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 163Full Court Nyland, Gray and Vanstone JJ
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
A question of law has been reserved for the consideration of the Full Court by a…
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- Western v Male [2010] SASC 163
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- [2010] SASC 163
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CaseChat Overview and Summary
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.
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