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
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".
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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