Since our September 2013 update, the Court of Appeal in WA has delivered an authoritative decision regarding the making of orders for DNA evidence in estate disputes.
In Furesh v Schor  WASCA, Ms Schor sought a declaration that she was the daughter of the deceased. The Court of Appeal held that the Supreme Court of Western Australia did not have inherent jurisdiction to make orders that a person submit to DNA testing. The Court held that:
- The previous decision in Hallett v Cottam  WASC – which found that the Supreme Court of Western Australia had inherent jurisdiction to make orders that a person submit to DNA testing – was wrong, in that it relied upon a “minority view” expressed a UK decision, S v S  AC which was itself wrong.
- The Court did not accept that there was a distinction between the court being unable to compel a competent adult to take a blood test “against his will” on the one hand, and on the other, being competent to make orders that a person “submit” to a blood test. Newnes JA said “it has for a very long time been established at common law that a person has a right of control and self-determination in respect of his or her body (and) to order such a procedure against the person’s will would be an important inroad into a fundamental right and justice would not be served by such an inroad…”.
In Furesh, as in Hallett, no notice of a request to submit to a medical examination had been served, as required by order 28, rule 1 of the Rules of the Supreme Court, so the issue of whether or not DNA testing could be ordered under that provision was not decided. The Court of Appeal did note the earlier decision in McComish v Sharpe, where orders for DNA testing were made under order 28 rule 1, but said that that case“provides very little guidance to a proper resolution of the issues in this case”.
For more information on this update or any other commercial dispute resolution matters please contact Catherine Sadleir on (08) 9321 3755.
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