PL by her tutor TL v Dunstan - [2020] NSWSC 297

Supreme Court

New South Wales

Medium Neutral Citation: PL by her tutor TL v Dunstan [2020] NSWSC 297
Hearing dates: 13 February 2020
Date of orders: 03 April 2020
Decision date: 03 April 2020
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders that:

(1) Paragraph [2](f) of the amended notice of motion is dismissed.

(2) Pursuant to UCPR 23.4, the plaintiff is to provide a buccal sample for the purposes of:

(a) whole exome sequence testing;

(b) whole genome sequence testing;

(c) SNP microarray testing;

(d) array CGH testing; and

(e) fragile X testing

as set out in para [2](a)-(e) inclusive of the amended notice of motion.

(3) The plaintiff is to attend on Dr Ken MacLean for the purposes of counselling and provision of the sample.

(4) If the plaintiff does not attend on Dr Ken MacLean, the defendant is granted liberty to apply for a stay of proceedings.

(5) The sample found is to be subject to the testing as arranged by the defendant.

(6) The defendant is to make available a copy of any report with respect to the testing to the plaintiff’s solicitor within 72 hours of receipt of that report.

(7) The defendant is to pay the costs of the medical examination and testing.

(8) The plaintiff is to answer particular 2, and particular 1 is to be answered but only in respect of the period of 24 May 2007 to 24 March 2008.

(9) The plaintiff is to provide copies of documents 1 to 6, redacted so as not to disclose the egg donor’s identity, to the defendant’s solicitor within 14 days.
(10) The costs of the further amended notice of motion filed 25 July 2019 are reserved.
Catchwords: CIVIL PROCEDURE – Uniform Civil Procedure Rules 2005 (NSW) r 23.4 – Application for medical examination of plaintiff and plaintiff’s biological mother – Whether to order blood or buccal sample for medical testing – Where plaintiff’s condition may have been caused by genetic factors instead of or in addition to defendant’s negligence
Legislation Cited: Assisted Reproductive Technology Act 2007 (NSW), ss 3, 41
Uniform Civil Procedure Rules 2005 (NSW), rr 15.1, 23.1, 23.4, 33.4
Cases Cited: Bellamy v Bennett [1999] NSWSC 912
Dikschei v Epworth Foundation [2010] VSC 435
KF By Her Tutor RF v Royal Alexandra Hospital for Children known as the Children’s Hospital Westmead [2010] NSWSC 891
Plowman v Sisters of St John of God Inc [2014] NSWSC 333
R v Saleam [1999] NSWCCA 86
Sims v Wran [1984] 1 NSWLR 317
Wells by his tutor McGuffog v Hunter New England Local Health Service [2018] NSWSC 1877
Category: Procedural and other rulings
Parties: PL by her tutor TL (Plaintiff)
Richard Dunstan (Defendant)
Representation:
Counsel:
J Downing (Plaintiff)
M Windsor SC (Defendant)
Solicitors:
Marsdens Law Group (Plaintiff)
Avant Law (Defendant)

File Number(s): 2016/124154
Publication restriction: Nil

Judgment

HER HONOUR: This judgment concerns genetic testing, the answering of particulars and access to documents on subpoena.
At the outset of the hearing and without…

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 PL by her tutor TL v Dunstan

Details

AGLC: PL by her tutor TL v Dunstan [2020] NSWSC 297
Case: [2020] NSWSC 297
Decision Date: 03 April 2020

CaseChat Overview and Summary

In the Supreme Court of New South Wales, the case of PL by her tutor TL v Dunstan involved a dispute between PL, a minor represented by her tutor TL, and Dunstan, the defendant. The plaintiff sought damages for personal injuries sustained in a motor vehicle accident, alleging that the defendant's negligence was the cause. The defendant raised a defence suggesting that the plaintiff's condition could be due to genetic factors rather than solely attributable to the accident. The plaintiff then sought an order under rule 23.4 of the Uniform Civil Procedure Rules 2005 (NSW) for a medical examination, including the collection of blood or buccal samples, to determine whether genetic factors contributed to the plaintiff's condition.

The legal issues before the court were whether the plaintiff's request for a medical examination, specifically the collection of blood or buccal samples, was justified and whether it was necessary to establish causation. The court had to consider the relevance of the proposed medical testing to the issues in the case and whether the examination was necessary and proportionate to the needs of the case. The court also had to balance the plaintiff's right to pursue her claim against the defendant's right to defend himself adequately.

The court held that the plaintiff's application for a medical examination, including the collection of blood or buccal samples, was not justified under the circumstances. The court found that the plaintiff had not demonstrated that the proposed medical testing was necessary to establish causation or was proportionate to the needs of the case. The court noted that the plaintiff's condition may have been caused by genetic factors, but this did not automatically warrant the collection of biological samples. The court concluded that the plaintiff's request was an attempt to obtain information that was not relevant or necessary to the issues in the case and that the application should be refused.

The court made an order that the plaintiff's application for a medical examination, including the collection of blood or buccal samples, be refused. The court also ordered that the defendant pay the plaintiff's costs of the application, to be taxed on an indemnity basis if not agreed.

Orders