JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA 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
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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 779Edmeades v Thames Board Mills Ltd [1969] 2 QB 67Hallett v Cottam [2007] WASC 147Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd [2011] WASC 207Ross v Tower Upholstery Ltd [1962] NI 3S v S; W v Official Solicitor [1972] AC 24Secretary, Department of Health and Community Services v JWB (1992) 175 CLR 218
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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 hearing the defendant argued that the DNA test should not be ordered because in the circumstances of this case it would not establish the relationship between the parties. The defendant filed affidavit evidence supporting that position. The plaintiff filed affidavit material to the effect that the test would establish if the parties shared a common parent. The defendant wanted this question resolved prior to trial. Counsel proposed cross-examining the expert witnesses and making a final determination on the utility of the evidence. Counsel for the plaintiff maintained the evidence ought be made available to the trial judge who could either decline to admit the evidence or give such weight to it as he thought fit.
3 In my view the plaintiff's position is to be preferred. The admissibility or otherwise of any DNA evidence is a matter for the trial judge. By way of analogy, an order for discovery of documents does not mean any or all of the documents so discovered will be admissible at the hearing. Admissibility depends on many factors and it is for the trial judge to make that decision. To undertake a wide range in examination of scientific evidence at an interlocutory stage is inappropriate.
4 At the original hearing of this matter, counsel for the defendant was prepared to accept the court had power to order DNA testing. During the course of argument I suggested there may be some doubt about the existence of such a power. The matter was adjourned to allow counsel to consider this question. At the resumed hearing counsel for the defendant submitted the court did not have power to order DNA testing.
5 There is authority in this jurisdiction on the question. It is the decision of Simmonds J in Hallett v Cottam [2007] WASC 147. In Hallett his Honour considered whether or not the court had the power to order DNA testing. Relevantly his Honour determined there were three issues he had to consider [49]. They were:
1. Whether or not the court has jurisdiction to make orders sought or similar orders, either under O 28 r 1 or under the court's ancillary or inherent jurisdiction.
(Page 4) 2. If it has such jurisdiction, whether or not in the exercise of that jurisdiction the court should make the orders or similar orders. 3. If the court decides it should make orders, the terms of such orders and in particular the terms as to how the cost of the DNA testing analysis should be borne, as well as the related matter of the cost of the application itself.
6 In considering the first of these questions his Honour determined there was not power to make an order for DNA testing under O 28 r 1. His Honour considered this matter in some detail: [52] - [65]. He concluded the order did not permit the court to order DNA testing. In my view his Honour reached the correct conclusion for the correct reasons. I need say nothing more on that matter. 7 His Honour then examined the question of whether in the inherent power of the court he could order DNA testing. His Honour examined a number of authorities and concluded he did have the power to order DNA testing. His Honour placed particular reliance on the judgment of Lord MacDermott in the House of Lords decision S v S; W v Official Solicitor [1972] AC 24. His Honour concludes:
However, I do not consider that means - and Lord MacDermott indicates it does not mean - that there is no inherent jurisdiction of the sort contended for by counsel for the defendants. Indeed the authorities in the United Kingdom appear to me to so indicate [83].
8 Presumably his Honour was referring to the decision in S v S and the decision of the Northern Ireland Court of Appeal in Ross v Tower Upholstery Ltd [1962] NI 3. Apart from the decisions referred to in S v S, these are the only English decisions to which his Honour makes reference. 9 In my view, the issue ought be approached in a different way. There is no doubt that this court has an inherent jurisdiction to regulate civil proceedings. But that jurisdiction is not unlimited. There comes a point where some step which may aid the resolution of a civil dispute goes too far and infringes individual liberties in a way which is unacceptable.
10 The High Court considered this question in Secretary, Department of Health and Community Services v JWB (1992) 175 CLR 218 (Marion's case). McHugh J put the position this way:
It is the central thesis of the common law doctrine of trespass to the person that the voluntary choices and decisions of an adult person of sound mind concerning what is or is not done to his or her body must be respected and
(Page 5) accepted, irrespective of what others, including doctors, may think is in the best interests of that particular person. To this general thesis, there is an exception: a person cannot consent to the infliction of grievous bodily harm without a 'good reason' (Attorney-General's Reference [No 6 of 1980], [1981] 1 QB 715, 719). But save in this exceptional case, the common law respects and preserves the autonomy of adult persons of sound mind with respect to their bodies. By doing so, the common law accepts that a person has rights of control and self-determination in respect of his or her body which other persons must respect. Those rights can only be altered with the consent of the person concerned. Thus, the legal requirement of consent to bodily interference protects the autonomy and dignity of the individual and limits the power of others to interfere with that person's body (309 - 310).
11 It is not always easy to reconcile this statement of principle with the decided cases - particularly the English cases. For instance, in Edmeades v Thames Board Mills Ltd [1969] 2 QB 67 the appellant had refused to undergo a medical examination. The action itself was a claim for damages for injuries received at work. In the course of his judgment Lord Denning MR referred to Lord Justice Winn's committee on personal injuries litigation which had recommended legislation to require a plaintiff in personal injuries litigation to submit to a medical examination. Adopting his usual robust approach Lord Denning said: I do not think legislation is necessary. This court has ample jurisdiction to grant a stay whenever it is just and reasonable to do so. It can, therefore, order a stay if the conduct of the plaintiff in refusing a reasonable request is such as to prevent the just determination of the cause. The question in this case is simply whether the request was reasonable or not [71].
12 It is important to note what his Honour was actually saying. It was not that the court could insist the appellant submit to a medical examination. Rather, if he did not so submit his action for damages could be stayed. So the refusal to undergo the medical examination could be maintained and the integrity of the person preserved. But there were certain consequences for the appellant's cause of action. 13 Another example of this principle is to be found in the decision of Anton Piller KG v Manufacturing Processes Ltd [1976] 1 All ER 779. This was, of course, the first case dealing with what are now called 'search orders'. Lord Denning set out the basis upon which such orders could be made:
Let me say at once that no court in this land has any power to issue a search warrant to enter a man's house so as to see if there are papers or documents there which are of an incriminating nature, whether libels or infringements of copyright or anything else of the kind. No constable or
(Page 6) bailiff can knock at the door and demand entry so as to inspect papers or documents. The householder can shut the door in his face and say, 'Get out'. That was established in the leading case of Entick v Carrington [1558 - 1774] All ER Rep 41. None of us would wish to whittle down that principle in the slightest. But the order sought in this case is not a search warrant. It does not authorise the plaintiffs' solicitors or anyone else to enter the defendants' premises against their will. It does not authorise the breaking down of any doors, nor the slipping in by a back door, nor getting in by an open door or window. It only authorises entry and inspection by the permission of the defendants. The plaintiffs must get the defendants' permission. But it does do this: it brings pressure on the defendants to give permission. It does more. It actually orders them to give permission - with, I suppose, the result that if they do not give permission, they are guilty of contempt of court (782).
14 That then I think is what has to happen in a case such as this. Prima facie no sample for DNA testing can be taken from the defendant. To do so would be an assault. But the law could prevent the defendant from refusing to give consent. If she still continued to refuse to have the test then she would be guilty of contempt of court. 15 There then remains the question of whether or not such an order should be made in the exercise of the inherent power of the court. It is one thing to prevent a person interfering with someone coming onto their premises to conduct a search of documents. It is another thing entirely to allow a sample of body tissue to be taken. The latter is much more serious.
16 Were I dealing with this matter without the benefit of the decision in Hallett, I would have refused the order. In my view this is a matter which is best determined by the legislature. It is worthy of note that Victoria and Western Australia are the only two jurisdictions where the question is not covered by statute. Indeed in Western Australia dealing with such questions in relation to the Family Court of Western Australia: see s 94 and s 97 Family Court Act 1997 (WA). But Hallett is a decision which has stood for five years. There is ample judicial authority cautioning against inconsistent decisions at first instance: see Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd [2011] WASC 207 [16] (Edelman J).
17 To take a different approach from Simmonds J in Hallett I would have to be satisfied the decision was 'plainly wrong'. While I might disagree with the reasoning that led to his Honour's conclusion I am not satisfied that the decision is plainly wrong. I think it was open to his
(Page 7) Honour to come to the conclusion he did. That being so, I am satisfied I ought order the defendant submit to DNA testing.
18 The orders proposed by the plaintiff are rather complex although they appear to me to be entirely appropriate. However, rather than make those orders I will allow the defendant the opportunity to make submissions on the issue. The costs of this application should be reserved to the trial judge.