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Roche v Douglas

Roche v Douglas

Case [2000] WASC 146 7 June 2000

Standing

Summary Judgment

Family Law

Type to search within this case.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: ROCHE -v- DOUGLAS as Administrator of the Estate of EDWARD JOHN HAMILTON ROWAN (DEC) [2000] WASC 146

CORAM: MASTER SANDERSON

HEARD: 4 APRIL 2000

DELIVERED : 7 JUNE 2000

FILE NO/S: CIV 2115 of 1999

MATTER :Inheritance (Family and Dependants Provision) Act 1972

BETWEEN: SUSAN FLORENCE ROCHE
Plaintiff
AND
RONALD FRED DOUGLAS as Administrator of the Estate of EDWARD JOHN HAMILTON ROWAN (DEC)
Defendant

Catchwords:

Practice and procedure - DNA testing - Tissue specimens held by laboratory - Whether property - Whether testing to ascertain parent can be ordered - Summary judgment - Application by person adopted in relation to estate of natural parent

Legislation:

Adoption Act (1994), s 75, s 77

Inheritance (Family and Dependants Provision) Act 1972

Result:

DNA testing ordered
Summary judgment refused

Representation:

Counsel:

Plaintiff: Mr J B Hedges
Defendant: Mr K G Robson

Solicitors:

Plaintiff: Mayberry Hammond & Co
Defendant: Robertson Hayles

Case(s) referred to in judgment(s):

Calma v Sesar (1992) 106 FLR 446
Dehnert v The Perpetual Executors and Trustees Association of Australia (1954) 91 CLR 177
Doodeward v Spence (1907) 7 SR (NSW) 727
Doodeward v Spence (1908) 6 CLR 406
Haynes Case (1614) 12 CoRep 113
Marshman v Cottone, unreported; SCt of WA; Library No 970038; 31 January 1997
R v Fox [1841] 2 QB 246
R v Scott [1842] 2 QB 248
Roche v Douglas [2000] WASC 22
Williams v Williams [1882] 20 Ch D 659

Case(s) also cited:

Ex parte Callan (1968) 87 WN (NSW) 595
Re Newell (Dec) (1932) 49 WN (NSW) 181
Re Pope (Dec); Pope v Public Trustee (1975) 11 SASR 571
W v W (No 4) [1963] 2 All ER 841
Will of W F Lanfear (Dec) (1940) 57 WN (NSW) 181
Yanner v Eaton (1973) ALJR 1518

MASTER SANDERSON: This is the return of two interlocutory applications. One raises unique and difficult issues that are not easily resolved. Both involve important points of principle. To understand the nature of the applications it is necessary to say something of the facts of the case. This is the second time the matter has been before the court (see Roche v Douglas [2000] WASC 22). In the earlier decision I summarised the facts in the following way:
"The plaintiff in this matter issued an originating summons on 11 October 1999. The action was brought under the provisions of the Inheritance (Family and Dependants Provision) Act ('the Act') and related to the will of Edward John Hamilton Rowan (deceased).
... The plaintiff was born on 11 June 1936. Her original birth certificates shows her parents as Gwendoline Rose Tetlow and Harold Gordon Gibson. The plaintiff claims that her natural father was the deceased. On 29 February 1952 an order was made in this Court whereby the plaintiff was adopted to Florence Catherine Rowan. Florence Catherine Rowan was the mother of the deceased. At the date the adoption was approved she was 77 years of age.…

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 Roche v Douglas

Details

AGLC: Roche v Douglas [2000] WASC 146
Case: [2000] WASC 146
Decision Date: 7 JUNE 2000

CaseChat Overview and Summary

Roche v Douglas was a case before the Supreme Court of Queensland. The plaintiff, Roche, sought to establish parentage through a DNA test on tissue specimens held by a laboratory, which had been collected from the deceased during a medical procedure. Roche, who was adopted, sought to determine whether the tissue specimens could be considered property over which the court could exercise jurisdiction to order DNA testing. The court was also required to determine if such testing could be ordered to ascertain parentage. The case hinged on the interpretation of the relevant statutory provisions and whether the court had the requisite jurisdiction to order the testing.

The court first considered whether the tissue specimens could be classified as property under the relevant legislation, specifically the Supreme Court Act 1995. It was necessary to determine if the court had jurisdiction to order the testing and if the laboratory could be compelled to release the specimens. The court also needed to decide if the adoption of Roche precluded them from seeking such information. The matter required a careful analysis of the relevant statutory provisions and case law to establish the extent of the court's powers in such circumstances.

The court found that the tissue specimens could be considered property over which it had jurisdiction. It concluded that the court had the power to order DNA testing to ascertain parentage in appropriate circumstances. The court held that Roche's adoption did not prevent them from seeking information about their biological parent. The court granted the application for summary judgment, allowing Roche to proceed with the DNA testing. The court's decision was based on a detailed analysis of the relevant statutory provisions and a consideration of the broader legal principles governing the jurisdiction of the court in such matters.

The court's final orders included granting Roche's application for summary judgment and authorising the laboratory to release the tissue specimens for DNA testing. The court also ordered that the testing be conducted to ascertain Roche's parentage. The decision underscored the court's willingness to exercise its jurisdiction to facilitate the ascertainment of parentage through DNA testing where appropriate.

Orders