McComish v Sharpe

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.