BETWEEN: TIMOTHY LAURENCE McCOMISH
BRIAN JOSEPH PASS
First Plaintiffs
MELINDA EILEEN HENDRY
Second Plaintiffs
JACOB BRUCE SHARPE (AN INFANT BY HIS NEXT FRIEND MELINDA EILEEN HENDRY)
Third Plaintiff
AND
MYRNA ELIZABETH SHARPE
DONALD BRUCE SHARPE
Defendants

Catchwords:

Probate - Medical examination - Application for an order that a mother and child submit to a DNA test to establish paternity - DNA test being in the form of a mouth swab

Legislation:

Rules of the Supreme Court, O 28 r 1

Result:

Application allowed

Category: A

Representation:

Counsel:

First Plaintiffs               :     Mr T J Dixon
Second Plaintiffs           :     Mr T J Dixon
Third Plaintiff               :     Mr T J Dixon
Defendants:     Mr K F Sleight

Solicitors:

First Plaintiffs               :     Dwyer Durack
Second Plaintiffs           :     Dwyer Durack
Third Plaintiff               :     Dwyer Durack
Defendants:     Patterson & Dowding

Case(s) referred to in judgment(s):

S v McC; W v W [1972] AC 24

Case(s) also cited:

Angliss v Urquhart [2001] NSWCA 441
Citibank Ltd v Commissioner of Taxation (1988) 83 ALR 144
Cocks v Juncken (1947) 74 CLR 277
Crofts v State of Queensland [2001] QSC 220
Doodeward v Spence (1908) 6 CLR 406
Forde v Skinner (1830) 4 C & P 239
G v H (1994) 181 CLR 387
Govers v Luff [2000] NSWSC 509
Jones v Dunkel (1959) 101 CLR 298
Marshman v Antonia & Ors, unreported; SCt of WA (Scott J); Library No 970038; 13 February 1997
Moore v Regents of University of California (793 P 2d 479)
Perpetual Trustees (WA) Ltd v Naso [1999] WASCA 80; (1999) 21 WAR 191
Potter v Minahan (1909) 7 CLR 277
R v Luffe (1807) 103 ER 316
Re L (an infant) [1968] P 199
Re Riley [1996] 1 Qd R 209
Re the marriage of J & P (1985) 80 FLR 126
Roche v Douglas as Administrator of the Estate of Edward John Hamilton Rowan (Dec) [2000] WASC 146
Sommersett's Case (1772) 20 How St Tr 1
The Banbury Peerage Case (1811) 1 Sim & St 153
The Public Trustee v Flegg & Ors [1998] WASC 349
W v W (No 4) [1963] 2 All ER 841
Weissensteiner v The Queen (1993) 178 CLR 243
Williams v Williams [1882] 20 Ch D 659

MASTER BREDMEYER: This is an application by the defendants which, as amended, is that the second plaintiff (Melinda) and her child, the third plaintiff (Jacob born on 14 October 1997) submit to DNA testing to establish whether the deceased, Gregory Allan Sharpe, is the father of the child, Jacob. Melinda has been asked to submit to this test, but will not consent. It is proposed that the tests be conducted by mouth swabs taken by a medical practitioner from Melinda and her child.
The factual background to this dispute is set…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McComish v Sharpe

Details

AGLC: McComish v Sharpe [2002] WASC 96
Case: [2002] WASC 96
Decision Date

CaseChat Overview and Summary

The application was by the defendants to compel the second plaintiff (Melinda) and her child (Jacob) to submit to DNA testing to establish whether Gregory Allan Sharpe was Jacob's father. Melinda was unwilling to consent to the test. The dispute centred on whether the court had the authority to order such tests and if so, whether it should do so in this case. The court found that it had the power to order DNA tests under its inherent jurisdiction and Rule 28 of the Rules of the Supreme Court. The discretionary factors weighed in favour of making the order. The court concluded that using DNA tests to determine paternity was in the best interests of all parties and would likely lead to a settlement of the case. The application was therefore allowed.

The final orders were that the second plaintiff and the third plaintiff submit to DNA testing by mouth swab to establish whether the deceased was Jacob's father. The defendants were to pay the costs of the application. The testing was to be conducted by a medical practitioner chosen by the plaintiffs and paid for by the defendants. The plaintiffs' solicitor was to be present at the testing if desired by the plaintiffs. The parties were to jointly select a medical practitioner to conduct the tests within 14 days of the orders. The defendants were to pay the costs of the application and any other costs unnecessarily incurred as a result of the plaintiffs' refusal to consent to the tests.

Orders