Western v Male

Case [2010] SASC 163

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

WESTERN v MALE

[2010] SASC 163

Judgment of The Full Court

(The Honourable Justice Nyland, The Honourable Justice Gray and The Honourable Justice Vanstone)

28 May 2010

PROCEDURE - COURTS AND JUDGES GENERALLY - COURTS - RULES OF COURT - VALIDITY OF RULES

PROCEDURE - COURTS AND JUDGES GENERALLY - COURTS - RULES OF COURT - VALIDITY OF RULES - INCONSISTENCY WITH STATUTE

Question of law referred by Supreme Court Master - whether Supreme Court Civil Rule 153(1) is ultra vires the rule-making powers of the Supreme Court - whether s 72 Supreme Court Act 1935 (SA) provides power for making of Rule 153(1) so as to validly require a defendant to submit to a medical examination with a medical practitioner nominated by a plaintiff - whether Rule 153(1) intended to apply to both plaintiffs and defendants.

Held: rule 153(1) is not ultra vires the rule-making powers of the Supreme Court - Rule 153(1) authorises the Court, as a matter of discretion, to require a defendant to submit to a medical examination requested by a plaintiff.

Supreme Court Civil Rules 2006 (SA) rr 12, 13, 153, 154, 155, 293; Supreme Court Act 1935 (SA) ss 49, 72; Aged and Infirm Persons' Property Act 1940 (SA) ss 7, 29; Common Law Procedure Act 1899 (NSW); Supreme Court and Circuit Courts Act 1900-1935 (NSW); Supreme Court Procedure Act 1900 (NSW); Acts Interpretation Act 1915 (SA) s 22; Supreme Court Civil Rules 1987 (SA) r 61.02; Family Law Act 1975 (Cth) s 67ZA, referred to.
Christie v Webb (1950) 51 SR (NSW) 8; Taylor v Guttilla (1992) 59 SASR 361; Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249, applied.
Sibbach v Wilson 312 US 1 (1940); Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd (2005) 222 CLR 194; Fothergill v Monarch Airlines Ltd [1981] AC 251; Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404; Bropho v Western Australia (1990) 171 CLR 1; Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297; Inland Revenue Commissioners v Ayrshire Employers Mutual Insurance Association Ltd [1946] 1 All ER 637; R (Daly) v Home Secretary [2001] 2 AC 532; Collector of Customs v Agfa Gevaert Ltd (1996) 186 CLR 389; R v Brown [1996] AC 543; Sargood Bros v Commonwealth (1910) 11 CLR 258; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269; Wellesley v Duke of Beaufort (1827) 38 ER 246, considered.

WESTERN v MALE
[2010] SASC 163

Full Court        Nyland, Gray and Vanstone JJ

  1. NYLAND J:      I agree with the reasons of Gray J.  I agree that the answer to the question should be as set out by him in his reasons. 

    GRAY J:

    Introduction

  2. A question of law has been reserved for the consideration of the Full Court by a…

Continue reading Western v Male

Sign in free to access the full text

Details
AGLC
Western v Male [2010] SASC 163
Case
[2010] SASC 163
Decision Date

CaseChat Overview and Summary

In the matter of Western v Male, the legal dispute centred on the validity of Supreme Court Civil Rule 153(1) and its authority to mandate a defendant to undergo a medical examination nominated by a plaintiff. This case was heard by the Full Court of the Supreme Court, which was tasked with determining whether the rule exceeded the rule-making powers granted by the Supreme Court Act 1935 (SA). The specific legal issues before the court were whether Rule 153(1) was ultra vires and if the Act provided the necessary power for the rule's creation, requiring a defendant to submit to a medical examination with a practitioner nominated by a plaintiff. Additionally, the court examined whether Rule 153(1) was intended to apply to both plaintiffs and defendants.

The court approached the matter by considering the inherent jurisdiction of the court to protect vulnerable individuals, drawing from the doctrine of parens patriae. It was noted that while this doctrine was of limited relevance, it underscored the court's role in safeguarding the interests of those unable to protect themselves. The court concluded that Rule 153(1) was within the scope of the court's rule-making powers as it operated within the rubric of practice and procedure. The rule was discretionary and aimed at facilitating justice in individual cases. The court found that the rule did not exceed the powers granted by the Supreme Court Act 1935 (SA) and was valid in authorising the court to require a defendant to submit to a medical examination requested by a plaintiff. Both Gray J and Vanstone J concurred in their judgments on these points.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Court has an inherent jurisdiction to act for the benefit of those who are unable to take care of themselves. This is known as the inherent parens patriae jurisdiction,[21] a doctrine which has a long and nebulous history, and a jurisdiction which has been materially affected – both expanded and contracted - by statute.[22] Although the parens patriae jurisdiction is of limited relevance to the present proceeding, it is instructive insofar as it demonstrates that a long-standing role of superior courts has been the protection of the interests of vulnerable people. In this context it should be noted that an order made pursuant to Rule 153(1) is a discretionary order, and in my opinion, made under the rubric of practice and procedure. In the exercise of its discretion in these circumstances, the role of the Court is to ensure that such an order is made properly for the purposes of practice and procedure. In my opinion, Rule 153(1), if properly used under the rubric of practice and procedure, will operate to facilitate in the Court’s ability to do justice in a given case. [21] See for example Wellesley v Duke of Beaufort (1827) 38 ER 236 at 243 (Lord Eldon): [I]t belongs to the King, as parens patriae, having the care of those who are not able to take care of themselves, and is founded on the obvious necessity that the law should place somewhere the care of individuals who cannot take care of themselves, particularly in cases where it is clear that some care should be thrown round them.[22] See for example section 67ZC of the Family Law Act 1975 (Cth).Conclusion For the reasons given, I would answer the question referred to the Full Court as follows – Rule 153(1) is not ultra vires the rule-making powers of the Supreme Court. The Rule authorises the Court, as a matter of discretion, to require a defendant to submit to a medical examination requested by a plaintiff. VANSTONE J: I agree that Supreme Court Rule 153(1) is not ultra vires the rule making power of the Supreme Court. I agree in general terms with the reasons of Gray J for that conclusion.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.