McComish v Sharpe

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.