Western v Male
[2010] SASC 163
•28 May 2010
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 Master of the Court:[1] Is Rule 153(1) in requiring a defendant to submit to a medical examination requested by the plaintiff ultra vires the rule-making powers of the Supreme Court?
[1] Pursuant to section 49 of the Supreme Court Act 1935 (SA) and Rule 293 of the Supreme Court Civil Rules 2006.
The question of law reserved arises from a proceeding in which Jillian Louise Western, the plaintiff, seeks a protection order over the estate of Maisie Olive Male, the plaintiff’s mother, and the defendant in the proceedings.
The plaintiff seeks the protection order over the defendant’s estate on the grounds that the defendant’s mental infirmity prevents the defendant from being able to, wholly or partially, manage her affairs, and causes her to be liable to or subject to undue influence in respect of her estate. The alleged undue influence is said to be exerted by the defendant’s son, Phillip Myers. It is this contention that caused the defendant’s mental condition to be in issue. The defendant and her son deny the existence of any undue influence.
The defendant, aged 89 years, recently entered a nursing home after selling her home. On 12 November 2009, the plaintiff made an application to the Guardianship Board to be appointed guardian and administrator of the defendant. In that application the plaintiff alleged that the defendant had been subject to undue influence by Mr Myers. Medical evidence was adduced by the defendant at the hearing before the Guardianship Board. That evidence was in the form of written reports from Dr Alan Cotton, a psychiatrist and Dr Mark Crawford, a general practitioner. The medical evidence was to the effect that the defendant was capable of managing her own affairs. The appointment for the reports had been arranged by Mr Myers. Neither medical practitioner had any contact with the defendant prior to the examination conducted for the purposes of the report. Before the Guardianship Board’s final determination, the plaintiff withdrew her application following negotiations between her solicitors and those of the defendant.
On 8 December 2009, the plaintiff instituted the within proceedings under section 7 of the Aged and Infirm Persons’ Property Act 1940 (SA), and sought a protection order over the estate of the defendant. That application also sought the appointment of Public Trustee as manager of the estate of the defendant, and an order that the defendant not make any further wills.[2] The defendant opposed the order.
[2] Pursuant to section 29 of the Aged and Infirm Persons Property Act 1940 (SA).
Section 7(1) of the Aged and Infirm Persons’ Property Act is in the following terms:
Circumstances under which protection order may be made
(1)Where it is made to appear to the satisfaction of the court that any person is, by reason of age, disease, illness, or physical or mental infirmity—
(a) unable, wholly or partially, to manage his affairs; or
(b)subject to, or liable to be subjected to, undue influence in respect of his estate, or the disposition thereof, or of any part thereof; or
(c)otherwise in a position which in the opinion of the court renders it necessary in the interest of that person or of those dependent upon him that his property should be protected as provided by this Act,
the court may make a protection order in respect of the estate or part of the estate of that person.
[Emphasis added]
Sometime in late 2009, a solicitor prepared documents setting out the terms of a proposed loan of $200,000.00 from the defendant to Mr Myers. On 6 December 2009, the Master granted injunctive relief restraining the defendant from making any loan or gift to Mr Myers. That injunction remains in place.
The plaintiff supported her action before the Master by affidavit evidence setting out the medical history of the defendant and her alleged conduct. Also before the Court are the medical reports which were before the Guardianship Board. It is to be noted that the plaintiff has sought to take issue with the conclusions of those reports. In his reasons for referring this question of law, it was noted by the Master that the plaintiff has not filed any affidavit containing expert evidence from a medical practitioner or the like which would support any allegation of mental infirmity or disposition to undue influence.
During the hearing before the Master the plaintiff requested that the defendant submit to a medical examination with a medical practitioner nominated by the plaintiff. The defendant refused. The plaintiff then sought an order under Rule 153(1) of the Supreme Court Civil Rules 2006 (SA) that the defendant submit to a medical examination with a medical practitioner nominated by the plaintiff.
By affidavit, the defendant deposed that she did not wish to be further examined because she had recently been examined by doctors who were satisfied as to her mental capacity and that these proceedings were exceptionally stressful for her. Throughout the proceedings it has been the defendant’s position that her daughter has been unduly interfering in her affairs.
Legislative Scheme
The power to make Rules of Court is to be found in section 72 of the Supreme Court Act 1935 (SA). That section provides that Rules of Court may be made under the Act by any three or more judges of the Supreme Court for any of the following purposes:
(a) for regulating the sittings of the court, and of the judges sitting in chambers and the vacations to be observed by the court and the officers of the court;
(b) for regulating the pleading practice and procedure of the court in any jurisdiction, and the initiating of actions and proceedings therein;
(c) for imposing mutual obligations on parties to proceedings in the court to disclose to each other the contents of expert reports or other material of relevance to the proceedings before the proceedings are brought to trial;
(d) for regulating any matters relating to the referral of a proceeding or issues arising in a proceeding to a mediator or arbitrator, the conduct of mediations or arbitrations or the referral of questions for investigation and report by an expert (whether appointed under section 67 or otherwise);
(e) for regulating and directing the means by which particular facts may be proved, and the mode in which evidence thereof may be given in any proceedings, or at any stage of the proceedings, and in relation to the purposes aforesaid for allowing examinations, affidavits, or depositions to be read at any trial or hearing, or in any cause or matter, or allowing secondary evidence to be given, and for providing that the court or a judge may give special directions or make special orders in relation to any of the matters aforesaid;
(ea) for empowering the court—
(i)to order the carrying out of a biological or other scientific test that may be relevant to the determination of a question before the court; and
(ii)to include in such an order directions about the carrying out of the test and, in particular, directions requiring a person (including a party to the proceedings) to submit to the test or to have a child or other person who is not of full legal capacity submit to the test; and
(iii)if a party is required to submit to the test, or to have another submit to the test—to include in the order a stipulation that, if the party fails to comply with the order, the question to which the test is relevant will be resolved adversely to the party;
…
[Emphasis added]
Rule 153 of the Supreme Court Civil Rules, titled “obligation to submit to medical examination at request of another party”, provides:
(1)A party whose medical condition is in issue in an action must, at the request of another party to the action, submit to a medical examination, at the cost of the party making the request, by a medical expert nominated by that party.
(2)If a party is asked to submit to a medical examination after the action has been referred for trial, the party is not obliged to comply with the request unless the Court authorises or ratifies the request.
(3)A party who asks another to submit to a medical examination must, at the request of the other party, pay to the other party a reasonable sum to cover the cost of travelling expenses and loss of earnings from attendance at the medical examination.
(4)A medical practitioner who carries out a medical examination at the request of a party must prepare a written report setting out the results of the examination.
(5)A party who asks another party to submit to a medical examination under this rule must give the other parties to the action a copy of the report obtained on the examination.
(6)If the party undergoing the examination does not receive a copy of the medical expert's report within 14 days after the date of the medical examination, that party may ask the medical practitioner for a report on the examination.
In the event of non-compliance with Rule 153, Rule 154 provides:
(1)If a party fails to comply with an obligation to submit to a medical examination under this Part, the Court may stay the action until the party complies with that obligation.
(2)The Court may order that a party is not to be entitled to damages for a period for which the party is in default of an obligation to submit to a medical examination under this Part.
The question that arises in the present proceedings is whether Rule 153(1), insofar as it extends to a defendant, is outside the rule making power of the Court as provided by section 72 above.
It was the plaintiff’s primary contention that sub-sections 72(1)(b) and 72(1)(ea) of the Supreme Court Act provide the power for the making of Rule 153(1) of the Supreme Court Civil Rules so as to validly require a defendant to submit to a medical examination with a medical practitioner nominated by a plaintiff. The plaintiff submitted that it was intended that Rule 153(1) apply to both plaintiffs and defendants.
The defendant contended that none of the powers in section 72 of the Supreme Court Act provided for Rule 153(1) to validly cause a defendant to submit to a medical examination with a medical practitioner chosen by a plaintiff where the defendant is not seeking any rights or remedies. It was further submitted that in circumstances where a defendant was not seeking any rights or remedies, Rule 153(1) was not intended to apply to defendants.
Section 72(1)(b) Supreme Court Act
It is convenient to first address section 72(1)(b), which as earlier extracted, relevantly provides that Rules of Court may be made:
for regulating the pleading practice and procedure of the court in any jurisdiction, and the initiating of actions and proceedings therein;
It was said that rules concerning medical examinations are rules dealing with the “practice and procedure” of the Court for the purposes of the Act.
In Christie v Webb[3] the New South Wales Supreme Court addressed the validity of a court Rule which a defendant purported to use to call upon a plaintiff to show cause why further proceedings in the matter should not be stayed unless and until the plaintiff submitted to a medical examination. The terms of the relevant Rule were as follows:
(1)Where any action is brought to recover damages for or arising out of personal injury and the person who is alleged to have suffered such injury has been requested by or on behalf of any party to submit to a reasonable medical examination and such person neglects or refuses to consent thereto, then such party may at any time apply to a Judge for an order staying any further proceedings in the action unless and until the said person submits to such medical examination.
(2)Such application may be made at the hearing or in Chambers, and the Judge may make the order upon such terms and conditions, including any order as to costs, as to him may seem proper.
[3] Christie v Webb (1950) 51 SR (NSW) 8.
There, the rule-making power of the court was contained in three sources: Common Law Procedure Act 1899, which allowed judges to make such general rules and orders for “the effectual execution of this Act and of the intention and object hereof…as in their judgment shall be necessary or proper”; Supreme Court and Circuit Courts Act 1900-1935 which provided that “Judges or any three of them may make all such general rules and orders as to them may seem meet … for the regulation of practice and pleadings in the Court in all respects in the several branches of its jurisdiction…’; and the Supreme Court Procedure Act 1900, which relevantly provided that three or more Judges of the Court could make Rules of Court for specific purposes set out in the legislation, and also “generally for the purpose of regulating the practice and procedure of the Court”.
The issue in Christie was whether the provision made by the impugned rule for medical examination and orders in relation thereto, was a matter of “practice and procedure”. The following remarks of Street CJ are apposite to the within proceedings:[4]
…In Yonge v Toynbee, Buckley LJ says: “The expression ‘practice and procedure’ is not confined to steps in the action itself, but covers also matters in connection with the action.”
It is on this interpretation of the meaning of the words “practice and procedure” that the present case must be decided. The Courts have always recognised the distinction between substantive and adjective law, the former being that part of the law by which rights, duties and liabilities are created and defined, while adjective law provides a method of enforcing and protecting the same through the rules of procedure by which the substantive law is applied to particular cases. It must always be borne in mind that the object of legal proceedings is to secure the due administration of justice and to protect and enforce the rights and duties both of plaintiffs and defendants, and rules of practice and procedure are designed to aid in achieving these objects. It is a paramount principle that a claim honestly made by a plaintiff and a defence honestly put forward by a defendant must be investigated according to the rules of practice and procedure observed by the Court in order that there may be a proper adjudication upon the dispute then in question, and such rules are intended to afford to each litigant a proper opportunity of effectually proving his claim or making good his defence.
[Emphasis added]
[4] Christie v Webb (1950) 51 SR (NSW) 8 at 10-11.
Street CJ continued, to make the following observations about the extent of the general power conferred on Judges to make rules concerning practice and procedure:[5]
Another example of the legislative understanding of the extent of the right to regulate practice and procedure is to be found in the rules originally annexed as a schedule to the High Court Procedure Act, 1903, and now contained in Statutory Rule No 118 of 1928. The Act is describe as “An Act to regulate the practice and procedure of the High Court”, and in the original schedule, by Order XXXVII, Rule 1, power was given to the Court or a Justice to make any order that is necessary for the detention or preservation of any property or thing, and also to authorize any person to enter upon or into any land or building in the possession of any party. This rule obviously authorizes a Court to permit or order that to be done which would amount to a trespass to land or personal property, but none the less the Commonwealth Legislature, by including this rule in the schedule to the Act, obviously regarded such a matter as one of practice or procedure.
[5] Christie v Webb (1940) 51 SR (NSW) 8 at 12.
In respect of the demarcation between procedural and substantive rules in this context, and the effect of a procedural rule impacting on substantive rights, the following observations of King CJ in Taylor v Guttilla are also pertinent:[6]
It is true that there are references in the judgments in both Circosta v Lilly and Re Grosvenor Hotel to the effect of the impugned rule on substantive rights or substantive law. When those judgments are read in the context of the issues to be decided in those cases, I find nothing in them, nor is there any consideration of legal principle, which would justify such a hard and fast distinction between procedural rules and substantive rights as would necessarily cause a rule, otherwise procedural in character, to cease to be so because it had an effect upon a substantive right. I see no reason of principle or authority which requires this Court to depart from its previous decision in Cleland v Boynes.
To say that Cleland v Boynes was correctly decided, is not to say that intrusion into the area of substantive law will never render invalid a rule which is otherwise apparently procedural in character. I apprehend that a rule of court which is ex facie procedural, may nevertheless amount to such a direct and radical intrusion into the field of substantive law as to lead to the conclusion that, although apparently procedural, it does not in reality possess that character. For that reason the absence of any effect upon substantive rights is a relevant consideration in relation to the validity of a rule (see Karasaridis v Kastoria Fur Products (1984) 37 SASR 345, per King CJ at 350-351, but the existence of such an effect is not necessarily determinative of validity (see per Zelling J at 358): Rigney v Rigney (1987) 48 SASR 291; Commonwealth Bank of Australia v Forshaw (1990) 55 SASR 247, per Cox J at 256. The difficulty in any particular case is to determine whether the rule has passed so far into the field of substantive law as to have lost its procedural character.
A rule of court, ex facie procedural, may nevertheless be properly characterised as non-procedural if it could not reasonably have been adopted for the purpose of regulating pleading practice or procedure: Williams v City of Melboume (1933) 49 CLR 142, per Dixon J at 155. That is a useful test of validity in some circumstances. The criterion for judging whether intrusion into substantive law or effect on substantive rights has deprived a rule of its ex facie procedural character, which will be found most useful in the generality of cases, is that of proportionality. This test has been developed in the High Court in recent cases as a means of determining whether an impugned law of the Commonwealth is a valid exercise by the Parliament of a power conferred by s 51 of the Constitution: Commonwealth v Tasmania (the Tasmanian Dam case) (1983) 158 CLR 1, per Deane J at 260; Richardson v Forestry Commission (1988) 164 CLR 261, per Deane J at 311; Nationwide News Pty Ltd v Wills (1992) 66 ALJR 658, per Mason CJ. In South Australia v Tanner (1989) 166 CLR 161, the High Court applied the test, on the submission of both parties, in considering the validity of regulations made pursuant to a statutory grant of power. In the joint judgment of Wilson, Dawson, Toohey and Gaudron JJ (at 165), the following passage appears:
"In the course of argument, the parties accepted the reasonable proportionality test of validity (cf Deane J in Commonwealth v Tasmania (the Tasmanian Dam Case)), namely, whether the regulation is capable of being considered to be reasonably proportionate to the pursuit of the enabling purpose."
[Emphasis added]
[6] Taylor v Guttilla (1992) 59 SASR 361 at 366-367.
Counsel for the defendant drew to the Court’s attention a decision of the United States Supreme Court, Sibbach v Wilson.[7] In that case, the Court considered the validity of a Federal Civil Rule of Procedure which purportedly conferred power to compel persons, including defendants, to undergo physical examination. The Rule was in the following terms:
Order for Examination. In an action in which the mental or physical condition of a party is in controversy, the court in which the action is pending may order him to submit to a physical or mental examination by a physician. The order may be made only on motion for good cause shown and upon notice to the party to be examined and to all other parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.
[7] Sibbach v Wilson 312 US 1 at 11 (1940).
The Court held that the relevant Rule was one of practice and procedure, and that it did not exceed the authority granted by the Act merely because it touched on important rights. Critical to the reasoning in that case however, was that in the relevant Rules, contempt of court was not a remedy for refusal to obey the order made under the section. As such, it was said that “no invasion of freedom from personal restraint attached to refusal so to comply with its provisions”. Although from a different jurisdiction, this decision provides general support to the approach adopted by Street CJ and King CJ.
The present question is to be measured in the context of legal proceedings, the object of which, to borrow the words of Street CJ is to “secure the due administration of justice” and “to afford each litigant a proper opportunity of effectually proving his claim or making good his defence”. The general rule-making power conferred on the Court to make Rules with respect to practice and procedure, in my view, fosters and facilitates the attainment of that objective.
A mechanism by which a court can require parties to a legal action to submit to medical examinations is frequently conferred by statute. In many instances, as can be seen from the analysis above, that mechanism can be found in Rules of Court. It can also be seen from the foregoing authorities that although such a Rule may have the capacity to affect substantive rights of an individual, that fact alone is not enough to render it beyond the rule-making power of the Court. It is to be borne in mind that the preservation of substantive rights may also be in issue. For example, the application which gave rise to this question of law, involves the seeking of a protection order, which is designed not to interfere with rights, but to protect them. Further, while the plaintiff’s conduct concerns her mother, that conduct is largely regulated by the Aged and Infirm Persons’ Property Act. This case is very different, for example, from a case where a defendant who seeks to rely on Rule 153(1), is defending a claim by a plaintiff seeking damages for personal injury. These are relevant matters for a Court to consider when exercising the discretion pursuant to Rule 153(1).
It is my view that section 72(1)(b) confers on the court a general power to make rules with respect to practice and procedure, and that that power is not exceeded by the mere fact that Rule 153(1) has the capacity to infringe substantive rights – the extent of infringement is to be tempered by the overriding objective identified by Street CJ in Christie v Webb, and the Court’s supervision to ensure that it is properly used for practice and procedure. Accordingly, the Court will assess whether, in the circumstances of the particular case, it is reasonable to issue a direction pursuant to Rule 153(1). Is there, in the words of King CJ, an appropriate “proportionality”? When viewed within the rubric of practice and procedure, and on the construction given above, it can be seen that there are safeguards in place to ensure that the Rule is properly used for practice and procedure, thereby limiting any undue interference with a defendant’s substantive rights.
Section 72(1)(ea)
I now turn to the plaintiff’s reliance on section 72(1)(ea) as extracted above.
A purposive construction is the general approach to be taken to issues of statutory construction.[8] A purposive approach to statutory construction is also prescribed by section 22(1) of the Acts Interpretation Act 1915 (SA):
[W]here a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object.
[8] Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd (2005) 222 CLR 194 at [88] (Kirby J).
In Palgo Holdings Pty Ltd v Gowans, Kirby J made the following observations in relation to purposive construction:[9]
... a purposive and not a literal approach[10] is the method of statutory construction that now prevails:[11]
“A search for the grammatical meaning still constitutes the starting point. But if the grammatical meaning of a provision does not give effect to the purpose of the legislation, the grammatical meaning cannot prevail. It must give way to the construction which will promote the purpose or object of the Act.”
Courts are no longer satisfied with a literal or grammatical meaning of words that does not conform to the presumed legislative intention, including the policy that can be discerned from the law in question.[12] As Lord Diplock explained, in an extra-judicial comment,[13] “if ... the Courts can identify the target of Parliamentary legislation their proper function is to see that it is hit: not merely to record that it has been missed”.[14]
[9] Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249 at [35]-[36].
[10] Fothergill v Monarch Airlines Ltd [1981] AC 251 at 272-273, 275, 280, 290.
[11] Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423 (McHugh JA) approved in Bropho v Western Australia (1990) 171 CLR 1 at 20.
[12] Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation(Cth) (1981) 147 CLR 297 at 321.
[13] Referring to Inland Revenue Commissioners v Ayrshire Employers Mutual Insurance Association Ltd [1946] 1 All ER 637 at 641.
[14] Lord Diplock, ‘The Courts as Legislators’ in Brian Harvey (ed), The Lawyer and Justice (1978) 263, 274; cited in Kingston (1987) 11 NSWLR 404 at 424.
The importance of context as an aid to statutory construction was noted by Kirby J in Palgo Holdings v Gowans:[15]
... the meaning of words in legislation is not derived by taking a word in isolation and construing it as if it existed in a vacuum. In the law, context is critical.[16] In a statute, a word (if undefined) normally takes its meaning from the surrounding text. Isolating a word … and affording it meaning torn from its context is a discredited approach to interpretation, given the way that language is ordinarily used and understood by human beings.[17]
[15] Palgo Holdings v Gowans (2005) 221 CLR 249 at [37].
[16] R (Daly) v Home Secretary [2001] 2 AC 532 at 548 [28] (Lord Steyn).
[17] Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 396-397, citing R v Brown [1996] AC 543 at 561.
On one view, sub-section 72(1)(ea) is primarily directed to issues of paternity provided for in Rule 155. That Rule provides the Court with power to direct a biological test to establish paternity if paternity is in issue in an action. Sub-rule (3) of Rule 155 provides that a person cannot be compelled to submit to the biological test, but in the event of non-compliance the Court may draw adverse inferences from that non-compliance. Consequently, it was said that section 72(1)(ea) cannot be used to allow Rule 153(1) to apply to defendants who are seeking to avoid a protection order under the Aged and Infirm Persons’ Property Act – an entirely different purpose.
Arguably, this interpretation is supported by the terms of sub-section 72(1)(ea)(iii). That sub-section permits a stipulation that refusal to submit to a test will result in the question to which the test relates being resolved adversely to the refusing party. It was said that this might be appropriate if paternity is in issue because of rights or liabilities affecting others which might ensue. However, the defendant submitted that in the context of a proposed protection order, the only person whose rights are likely to be affected or are at risk are those of the proposed protected person. It is to be noted that although the power to draw an adverse inference conferred by sub-section 72(1)(ea)(iii) was carried through to the Supreme Court Civil Rules 2006 with respect to Rule 155, it was not done so with respect to Rule 153(1).
An alternative approach could be to view sub-section 72(1)(ea) and Rule 153(1) as an interference with a person’s common law rights, such that a narrow construction is to be preferred. On this approach, the words in sub-section 72(1)(ea) and in particular “biological or other scientific test” would be construed narrowly so as to minimise the interference with a defendant’s personal rights. The most direct statement regarding the presumption against the invasion of common law rights can be found in the following remarks of O’Connor J in Sargood Bros v Commonwealth:[18]
It is a well recognised rule in the interpretation of Statutes that an Act will never be construed as taking away an existing right unless its language is reasonably capable of no other construction.
[18] Sargood Bros v Commonwealth (1910) 11 CLR 258 at 279.
A recent application of the presumption can be found in Plaintiff S157/2002 v Commonwealth of Australia where Gleeson CJ observed:[19]
[C]ourts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose. What courts will look for is a clear indication that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment. As Lord Hoffmann recently pointed out in the United Kingdom, for Parliament squarely to confront such an issue may involve a political cost, but in the absence of express language or necessary implication, even the most general words are taken to be "subject to the basic rights of the individual".
[Footnotes omitted]
[19] Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 492.
It is to be noted that the value and strength of the presumption in respect of different rights, particularly “lesser rights”, has been questioned. This qualification to the presumption can be found in the observations of McHugh J in Gifford v Strang Patrick Stevedoring Pty Ltd:[20]
There is a presumption admittedly weak these days that a statute is not intended to alter or abolish common law rights unless the statute evinces a clear intention to do so. In Malika Holdings Pty Ltd v Stretton, however, I warned of the need for caution in applying this presumption: nowadays legislatures regularly enact laws that infringe the common law rights of individuals. The presumption of non-interference is strong when the right is a fundamental right of our legal system; it is weak when the right is merely one to take or not take a particular course of action. Courts should not cut down the natural and ordinary meaning of legislation evincing an intention to interfere with these lesser rights by relying on a presumption that the legislature did not intend to interfere with them. Given the frequency with which legislatures now abolish or amend “ordinary”' common law rights, the “presumption” of non-interference with those rights is inconsistent with modern experience and borders on fiction. If the presumption still exists in such cases, its effect must be so negligible that it can only have weight when all other factors are evenly balanced.
[footnotes omitted]
[20] Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at 284.
On either approach, it is my view that section 72(1)(ea), and in particular the reference to “biological and other scientific test”, should be construed as not extending to medical examinations generally of defendants by a medical practitioner nominated by a plaintiff. There is, in my view, one important qualification to this opinion. Occasions may arise when specific biological tests, which are technically “medical” tests, could be required of a defendant at the request of a plaintiff. The purpose of the power relating to “biological or other scientific test” is to enable the effective examination of matters when they are in issue in a dispute before the Court. A specific paternity test, or other genetic test are examples, which in my opinion, would fall within the contemplation of the section and the words “biological or other scientific”, without offending the principles identified above. There will be a number of medical “tests” which would also amount to a “biological or other scientific test”, and a number which would not. With respect to the former category, if appropriate given the circumstances of the case, either sub-section 72(1)(b) or (ea) could be invoked as the basis to make an order pursuant to Rule 153(1).
Construction of Rule 153(1) of Supreme Court Civil Rules 2006
The question of law is restricted to the validity of Rule 153(1) in requiring a defendant to submit to a medical examination requested by a plaintiff. The plaintiff submitted that there is nothing in Rule 153(1) which indicates that it was not intended to apply to defendants. The plaintiff contended that the change in language from Rule 61.02 of the Supreme Court Civil Rules 1987 (SA) which provided that a request could only be made by “the party against whom the claim is made”, to the language in Rule 153(1) of the Supreme Court Civil Rules 2006, suggests a deliberate decision to expand the operation of the previous Rule.
Counsel for the defendant argued that the predecessors of Rules 153 and 154 were promulgated to allow courts to stay proceedings until a plaintiff had submitted to a medical examination in cases where the plaintiff was seeking damages. It was further contended that Rules 153 and 154 of the Supreme Court Civil Rules were primarily directed at plaintiffs who were seeking damages for personal injuries. As earlier mentioned, it was submitted that Rule 153(1) was not intended to allow for orders to be made for a defendant to submit to a medical examination if that defendant is not seeking relief or asserting a right. It was said that a defendant not seeking relief or assertion of a right has no “claim” which can be stayed pursuant to Rule 154. As a consequence, it was submitted that the only penalty for refusing to comply with an order under Rule 153(1) for the defendant to submit to a medical examination would be contempt of court. This was said to be excessive, harsh, unreasonable, unfair and contrary to the principle that persons are entitled to immunity from interference with their person.
In my view, a failure to comply with an order made under Rule 153(1) falls within the rubric of procedural irregularity. Thus, Rules 12 and 13 of the Supreme Court Civil Rules have application. Those Rules provide for the power to enforce compliance with procedural obligations and to deal with procedural irregularities by order for costs. Other remedies may also be available. The Court may subject a party to an order compelling them to undergo the examination pursuant to Rule 117, which confers power to make orders controlling conduct of litigation, or be subject to a stay of the action under Rule 154. Importantly, the Court retains a discretion as to whether to make an order under any of these Rules.
It was said by counsel for the defendant that an order for a stay of proceedings pursuant to Rule 154 as a sanction for breach of Rule 153(1), would be obviously ineffective. Consequently, it was contended that contempt of court was the only effective sanction for breach of a Rule 153(1) order. The plaintiff, however, pointed to multiple alternative sanctions. As outlined above, there are various remedies available to a party where another party has not complied with an order made under Rule 153(1). The remedies identified above demonstrate the breadth of the Court’s discretion to control its processes and procedures. Contempt of court is but one of those measures, as it may be utilised for non-compliance with almost any court order.
On a proper construction, Rule 153(1), applies to both plaintiffs and defendants, in addition to any other party. There is nothing on the face of the Rule to suggest otherwise. The repeated use of the term “a party” throughout the Rule, without the qualification which existed in the language of the Rule’s predecessor, is a persuasive factor in reaching this conclusion.
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.
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