McCOMISH & ORS -v- SHARPE & ANOR [2002] WASC 72

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASC 72
Case No:	CIV:1887/2001	Heard:	11 MARCH 2002
Coram:	MASTER BREDMEYER	Delivered:	10/04/02
No of pages:	4	Judgment Part:	1 of 1
Result:	Costs order made
Category:	B
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Parties:	TIMOTHY LAURENCE McCOMISH BRIAN JOSEPH PASS MELINDA EILEEN HENDRY JACOB BRUCE SHARPE (AN INFANT BY HIS NEXT FRIEND MELINDA EILEEN HENDRY) MYRNA ELIZABETH SHARPE DONALD BRUCE SHARPE
Catchwords:	Probate DNA test to establish paternity Costs Special costs order
Legislation:	Nil
Case References:	Nil G v H (1994) 181 CLR 387 Marshman v Cottone, unreported; SCt of WA (Scott J); Library No 970038; 31 January 1997 Re Newell (Dec) (1932) 49 WN (NSW) 181 Re Pope (Dec), Pope v Public Trustee (1975) 11 SASR 571 Re the Marriage of J & P (1985) 80 FLR 125

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : McCOMISH & ORS -v- SHARPE & ANOR [2002] WASC 72 CORAM : MASTER BREDMEYER HEARD : 11 MARCH 2002 DELIVERED : 10 APRIL 2002 FILE NO/S : CIV 1887 of 2001 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 - DNA test to establish paternity - Costs - Special costs order

Legislation:

Nil

(Page 2)

Result:

Costs order made

Category: B

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):

Nil

Case(s) also cited:

G v H (1994) 181 CLR 387
Marshman v Cottone, unreported; SCt of WA (Scott J); Library No 970038; 31 January 1997
Re Newell (Dec) (1932) 49 WN (NSW) 181
Re Pope (Dec), Pope v Public Trustee (1975) 11 SASR 571
Re the Marriage of J & P (1985) 80 FLR 125

(Page 3)

1 MASTER BREDMEYER: This is a reserved decision on costs. The plaintiffs are the administrators of the estate of the late Gregory Alan Sharpe (Gregory or the deceased), who died in Ghana on 16 April 1998. He died of severe malaria and brocho-pneumonia and was aged 35 years. The defendants are the parents of the deceased.

2 Melinda Eileen Hendry (Melinda) was in a de facto relationship with the deceased in Australia and she is the mother of Jacob Bruce Sharpe (Jacob), born on 14 October 1997. She says that Gregory is the father of Jacob. Gregory's name is shown as the father on the registration of birth.

3 The deceased died intestate. His estate is small. On intestacy, it will go to the son, or if there is no son, to the parents. The parents (the…

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 72
Case: [2002] WASC 72
Decision Date

CaseChat Overview and Summary

McComish v Sharpe is a decision of the Supreme Court of Western Australia, where the court dealt with the issue of establishing paternity through DNA testing and the allocation of costs. The plaintiffs, Timothy Laurence McComish, Brian Joseph Pass, and Melinda Eileen Hendry, are the administrators of the estate of the late Gregory Alan Sharpe, who died intestate in Ghana. The defendants, Myrna Elizabeth Sharpe and Donald Bruce Sharpe, are the parents of Gregory and challenge the paternity of their son's child, Jacob Bruce Sharpe. The case revolves around whether Gregory was the father of Jacob, a matter that was disputed by the defendants. The defendants sought an order for DNA testing to establish paternity, which was opposed by the plaintiffs.

The legal issues before the court included the admissibility of DNA testing to establish paternity, the reasonableness of the plaintiffs' opposition to the DNA testing, and the appropriate allocation of costs. The court needed to determine whether the plaintiffs' resistance to the DNA testing was reasonable and justified, particularly given that the testing could provide definitive evidence of paternity. Additionally, the court had to decide on the allocation of costs, considering the potential implications for the estate depending on the outcome of the DNA tests.

The court found that both the administrators and Melinda were unreasonable in not submitting to DNA testing. The court considered the proposal for DNA testing to be sensible and a superior form of evidence compared to the second-best evidence available at the time. The defendants had agreed to pay for the DNA testing, and the court held that the plaintiffs' opposition to the testing was unreasonable both before and after the summons was issued. The court ordered that the plaintiffs should pay the defendants' costs of the application, including any reserved costs. Furthermore, the court made orders that if the DNA tests show Gregory to be the father, the plaintiffs should be entitled to indemnify themselves against the defendants' costs from the estate. If the tests show Gregory is not the father, the plaintiffs should not have such indemnity.

In conclusion, the court's decision highlighted the importance of DNA testing in resolving paternity disputes and emphasised the reasonableness of such testing. The court held the plaintiffs accountable for their unreasonable opposition to the DNA tests and ordered them to bear the costs of the application. The outcome also provided a clear framework for the allocation of costs based on the results of the DNA tests, ensuring that the estate's resources were managed fairly.

Orders