SCHOR -v- FURESH [No 2] [2012] WASC 305

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 305
Case No:	CIV:2389/2009	Heard:	9 AUGUST 2012
Coram:	MASTER SANDERSON	Delivered:	30/08/2012
No of Pages:	7	Judgment Part:	1 of 1
Result:	DNA testing ordered
Category:	A
Click here for Judgment in Adobe Acrobat Format

Parties:	GABRIELA MARIA ANGELA SCHOR MARY FURESH (as administrator of the intestate estate of PAUL SLIPCEVICH) MARY FURESH (as a beneficiary of the intestate estate of PAUL SLIPCEVICH)
Catchwords:	Practice and procedure Application for DNA testing Whether court has power to order DNA testing Basis for so ordering
Legislation:	Nil
Case References:	Anton Piller KG v Manufacturing Processes Ltd [1976] 1 All ER 779 Edmeades v Thames Board Mills Ltd [1969] 2 QB 67 Hallett v Cottam [2007] WASC 147 Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd [2011] WASC 207 Ross v Tower Upholstery Ltd [1962] NI 3 S v S; W v Official Solicitor [1972] AC 24 Secretary, Department of Health and Community Services v JWB (1992) 175 CLR 218

Last Updated: 30/08/2012

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : SCHOR -v- FURESH [No 2] [2012] WASC 305 CORAM : MASTER SANDERSON HEARD : 9 AUGUST 2012 DELIVERED : 30 AUGUST 2012 FILE NO/S : CIV 2389 of 2009 MATTER : The intestate estate of PAUL SLIPCEVICH, late of 143 The Esplanade, Mount Pleasant, Western Australia, Australia, deceased BETWEEN : GABRIELA MARIA ANGELA SCHOR

Plaintiff

AND

MARY FURESH (as administrator of the intestate estate of PAUL SLIPCEVICH)

First Defendant

MARY FURESH (as a beneficiary of the intestate estate of PAUL SLIPCEVICH)

Second Defendant

Catchwords:

Practice and procedure - Application for DNA testing - Whether court has power to order DNA testing - Basis for so ordering

Legislation:

Nil

(Page 2)

Result:

DNA testing ordered

Category: A

Representation:

Counsel:

Plaintiff : Mr P J Hannan

First Defendant : Dr P R MacMillan

Second Defendant : Dr P R MacMillan

Solicitors:

Plaintiff : Leach Legal

First Defendant : Lavan Legal

Second Defendant : Lavan Legal

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

Anton Piller KG v Manufacturing Processes Ltd [1976] 1 All ER 779
Edmeades v Thames Board Mills Ltd [1969] 2 QB 67
Hallett v Cottam [2007] WASC 147
Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd [2011] WASC 207
Ross v Tower Upholstery Ltd [1962] NI 3
S v S; W v Official Solicitor [1972] AC 24
Secretary, Department of Health and Community Services v JWB (1992) 175 CLR 218

(Page 3)

1 MASTER SANDERSON: There is an issue in this case as to whether the plaintiff and Mary Furesh share the same father. The plaintiff says they do. The defendant says they do not. The plaintiff has invited the defendant to have a DNA test. The defendant has declined. By this application the plaintiff sought an order that the defendant undergo the DNA test.

2 When the matter first came on for…

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 Schor v Furesh [No 2]

Details

AGLC: Schor v Furesh [No 2] [2012] WASC 305
Case: [2012] WASC 305
Decision Date

CaseChat Overview and Summary

The Supreme Court of Western Australia heard Schor v Furesh [No 2], a case involving a dispute over the paternity of the plaintiff, Gabriela Schor, and her potential relationship with the deceased's estate. Schor claimed that she and Mary Furesh, the administrator of the deceased's estate, shared the same father, while Furesh denied this. Schor sought a DNA test to resolve the issue, which Furesh refused to undergo. The central legal issue was whether the court had the authority to order Furesh to undergo a DNA test.

The court examined the inherent jurisdiction of the court to order DNA testing, considering previous decisions such as Hallett v Cottam, which established that the court could order DNA testing under its inherent jurisdiction. The court also referenced High Court decisions that emphasized the importance of individual autonomy and the respect for bodily integrity. Ultimately, the court concluded that while the inherent jurisdiction of the court could be used to compel a party to undergo DNA testing, it should be exercised judiciously and only when necessary to ensure the fair resolution of the case. The court found that the potential benefits of resolving the paternity dispute outweighed the infringement on Furesh's personal autonomy.

The court granted Schor's application for DNA testing, allowing Furesh the opportunity to make submissions on the issue and reserving the costs of the application to the trial judge. This decision underscores the court's commitment to ensuring that disputes are resolved fairly and effectively while respecting individual rights and liberties.

Orders