McComish v Sharpe

[2002] WASC 72

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 defendants) dispute their son's paternity of Jacob. They said that, prior to his death, before he left Australia to travel overseas, Gregory told his mother that he did not believe that he was Jacob's father and that he made enquiries about having a paternity test. He told his mother that he intended to have such a test after he returned from overseas. When the body was returned to Australia, the defendants obtained a sample of his body for DNA purposes and requested Melinda and her son to submit to DNA testing. Melinda refused.

4 In a chamber summons dated 19 October 2001, the defendants applied for an order that Melinda and her son submit to DNA testing. The application was opposed by the plaintiffs. I heard the contested application on 5 March 2002. I reserved my decision. On 11 March 2002, I gave oral reasons and ordered Melinda and Jacob to submit for DNA testing by way of mouth swabs. I reserved on costs. I have since received written submissions on costs from both parties.

5 The defendants seek the costs of this application against the plaintiffs. They say they had a win on the application and that costs should follow the event. They do not want the plaintiffs to indemnify themselves against costs out of the estate. The plaintiffs, on the other hand, seek an order that the costs of the parties be paid out of the estate. They say that their resistance to the application was reasonable, that the legal issues in the application were novel, and that the case involved the creation of new law. They also say that it is apparent from the affidavit of Melinda Hendry dated 2 October 2001 at par 15 that the first-named defendant, the mother of the deceased, adopted an antagonistic and coercive attitude to the Melinda. The grounds upon which the parents sought the DNA test were that Melinda told them that she had sexual intercourse in Melbourne on or about 28 January 1997 with someone

(Page 4)

other than Gregory. I mention again that Jacob was born on 14 October 1997. However, Melinda said she did not get pregnant from this man in Melbourne, because she had a blood test done on 5 February 2001, which showed that she was not pregnant.

6 The plaintiffs say that costs should come out of the estate. This means that if the DNA tests show that Gregory is the father, the costs will come out of the son's share of the estate. If, however, the DNA tests show that Gregory is not the father, the costs will come out of the defendants' inheritance, as they will inherit the estate.

7 I consider that the administrators and Melinda were both unreasonable in not submitting to DNA testing when asked. Although the law was not clear, the proposal for DNA testing was eminently sensible. As I said in my reasons on the merits - what is the point of the Court determining the paternity of Jacob on second-best evidence (I refer here to Melinda's sexual encounters and the interpretation of the doctor's blood test made in February 1997), when the first-class evidence of DNA testing is so readily available? The defendants agreed to pay for the DNA testing. I consider the plaintiffs were unreasonable in not agreeing to the test prior to the issue of the summons. When the chamber summons was brought, I consider they were unreasonable in opposing it. I consider that the plaintiffs should pay the defendants' costs of this application, including reserved costs in any event. If the DNA tests show that Gregory is the father, then the plaintiffs should be entitled to indemnify themselves against the defendants' costs, out of the estate. If, however, the tests show that Gregory is not the father, the plaintiffs should have no such indemnity. I will make orders to that effect.