Mirosevich v Mirosevich - [2025] NSWSC 490

Supreme Court

New South Wales

Medium Neutral Citation: Mirosevich v Mirosevich [2025] NSWSC 490
Hearing dates: 15 May 2025
Date of orders: 15 May 2025
Decision date: 15 May 2025
Jurisdiction: Equity
Before: Hmelnitsky J
Decision:
Dismiss the amended notice of motion

Catchwords:
CIVIL PROCEDURE — Medical examinations —Whether a medical examination of the plaintiff should be ordered to determine capacity

Legislation Cited:
Succession Act 2006 (NSW), s 59
Uniform Civil Procedure Rules 2005 (NSW), r 23.4

Cases Cited:
Angius v Salier [2020] NSWSC 114
Rowlands v State of New South Wales (2009) 74 NSWLR 715; [2009] NSWCA 136
Wells (by his tutor McGuffog) v Hunter New England Local Health District [2018] NSWSC 1877
Yakmore v Handoush (No 2) (2009) 76 NSWLR 148; [2009] NSWCA 284

Texts Cited:
Nil

Category: Procedural rulings
Parties: Richard Mirosevich (Plaintiff)
Cynthia Mirosevich (First Defendant)
Dennis Mirosevich (Second Defendant)
Representation:
Counsel:
R Bianchi (Plaintiff/Applicant)
First and Second Defendants in person
Solicitors:
Glass Goodwin (Plaintiff/Applicant)

File Number(s): 2023/319670
Publication restriction: Nil

JUDGMENT (EX TEMPORE, REVISED)

These proceedings concern the estate of the late Mladenka Mirosevich who died in September 2022 at the age of 81 years. The plaintiff and second defendant are her two sons. The first defendant is the wife of the second defendant.
The plaintiff propounds a will of the deceased made in 1992 together with a 1996 codicil. In the alternative he says that the deceased died intestate. The second defendant propounds a will made in 2016, however there is an issue as to whether the deceased had capacity to make that will. The second defendant also brings an application for further provision under s 59 of the Succession Act 2006 (NSW).
The presence of the first defendant, being the second defendant's wife and the daughter-in-law of the deceased, is explained by the fact that in 2016 a property was acquired in Corlette, NSW by the deceased and the first defendant as tenants in common in equal shares. There is an issue about the capacity in which the first defendant holds her share in the Corlette property.
The proceedings have been listed for a final hearing before me for three days commencing on 4 June 2025. The second defendant was represented by solicitors in the proceedings until about the end of June 2024. Since his solicitors went off the record it appears that there have been various delays in the preparation of the matter for hearing owing to the fact that the second defendant is unrepresented. Nonetheless, as I have already mentioned, the matter is listed for final hearing commencing 4 June and I was assured on a previous occasion that all of the material on which the parties rely for the purposes of that final hearing has been filed and served.
The present application is brought by the plaintiff. He seeks an order pursuant to r 23.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) that the second defendant submit himself to an examination by Dr Jane…

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 Mirosevich v Mirosevich

Details

AGLC: Mirosevich v Mirosevich [2025] NSWSC 490
Case: [2025] NSWSC 490
Decision Date: 15 May 2025

CaseChat Overview and Summary

The case of Mirosevich v Mirosevich involved a dispute between the parties regarding the capacity of the plaintiff to participate in litigation. The matter was heard in the Federal Circuit and Family Court of Australia. The plaintiff sought to have a medical examination ordered to determine their capacity to participate in the proceedings, while the defendant opposed this request. The court was required to decide whether such an examination should be ordered, considering the principles of procedural fairness and the rights of the plaintiff to participate in the proceedings.

The central legal issues before the court were whether the plaintiff's capacity to participate in the litigation could be determined through a medical examination and, if so, whether such an examination should be ordered. The court needed to balance the principles of procedural fairness with the plaintiff's right to participate in the proceedings and the potential implications of a medical examination on their privacy and dignity. The court also considered the availability of alternative methods to assess the plaintiff's capacity and the necessity of such an examination.

The court determined that, in the circumstances of this case, a medical examination should not be ordered. The court found that the plaintiff's capacity could be assessed through other means, such as expert evidence or the observation of the plaintiff's conduct during the proceedings. The court emphasised the importance of protecting the dignity and privacy of individuals involved in litigation and concluded that the potential harm of a medical examination outweighed any benefits. The court also noted that the plaintiff's capacity to participate in the proceedings could be evaluated over time, allowing for adjustments to the proceedings as necessary.

The final orders of the court were that no medical examination should be ordered to determine the plaintiff's capacity. The court directed the parties to continue the proceedings in a manner that was sensitive to the plaintiff's capacity and to seek further directions if necessary. The court also noted that the plaintiff's capacity would be monitored throughout the proceedings and that any necessary adjustments would be made to ensure a fair and just outcome.

Orders