Supreme Court New South Wales Medium Neutral Citation: Pronesti v Napoli [2024] NSWSC 1049 Hearing dates: 19 August 2024 Date of orders: 19 August 2024 Decision date: 19 August 2024 Jurisdiction: Equity - Applications List Before: Kunc J Decision: Parentage testing procedure ordered Catchwords: SUCCESSION — Family provision — Claim by adult child — Bare paternity — Where parentage testing procedure could bring proceedings to an end Legislation Cited: Civil Procedure Act 2005 (NSW) s 56 Status of Children Act 1996 (NSW) ss 26-31 Cases Cited: Kohari v NSW Trustee and Guardian [2016] NSWSC 1372 Category: Procedural rulings Parties: Peter Pronesti (Plaintiff/Applicant) Angela Napoli bht Antonio Napoli (Defendant) Antonio Napoli (First Respondent) Giuseppe Napoli (Second Respondent) Representation: Counsel: T Catanzariti (Plaintiff/Applicant) M Fraser (Defendant) MM Pringle (First and Second Respondents) Solicitors: Agostino & Co Solicitors (Plaintiff/Applicant) Maxwell Berghouse & Ives (Defendant) Capitol Legal (First and Second Respondents) File Number(s): 2024/153425 Publication restriction: None EX TEMPORE JUDGMENT (REVISED) Summary 1. Cinquefrondi is a small town in Calabria, in the boot of Italy. The relationships between immigrants to Australia from that town have reverberated across the decades to assume importance in these proceedings, including the motion now before the Court. That motion seeks orders for certain persons to undergo a parentage testing procedure, more colloquially known as a DNA test. 2. Without disrespect I shall refer to those involved by their Christian names, in some cases Anglicised. They all trace their origins to Cinquefrondi. 3. For the reasons which follow, the Court will grant the relief sought in the motion. 4. Ms T Catanzariti of Counsel appeared for Peter, the applicant on the motion. Ms M Fraser of Counsel appeared for the estate of the late Salvatore Napoli and Mrs M Pringle represented the two other respondents to the motion (to whom I shall refer as the Napoli brothers). I acknowledge the assistance the Court has received from the written submissions of Ms Catanzariti and Mrs Pringle, and the submissions advanced today by all counsel. Procedural history 1. By summons filed on 24 April 2004, the plaintiff Peter Pronesti seeks provision from the estate. The now 99 year old defendant is Salvatore's wife, Angela. By reason of the infirmities of her advanced age, her son Antonio has been appointed her tutor for these proceedings. 2. Salvatore died in 2003, which means Peter's proceedings are brought well out of time. Peter says that the reason for the delay is that until September 2023, he believed himself to be the youngest of eight children born to Rosa Pronesti and her husband, the late Giuseppe Pronesti. However, it was then that Rosa allegedly told Peter that his real father was Salvatore Napoli. 3. Peter accepts that his claim for a family provision order solely depends upon his being Salvatore's son. He says he will discontinue these proceedings if he is not. To that end, by motion filed on 8 July 2024, Peter seeks orders that he, together with Antonio (in his personal capacity) and Giuseppe Napoli (both being sons of Salvatore) undergo a parentage testing procedure under Division 6 of the Status of Children Act 1996 (NSW) (the Act). 4. The estate disputes the allegation that Peter is Salvatore's son. All of the respondents opposed the relief sought in the motion. Evidence 1. Before setting out the evidence, I should make a preliminary observation. No party should assume that evidence I have admitted on an interlocutory basis would be admissible at a final hearing in the form in which I have received it today. Some of that evidence related to what are obviously sensitive and difficult matters for the families concerned. Quite properly, no party sought to cross-examine the others' witnesses. As I indicated during the course of argument, the importance of that evidence today was to establish that there is a dispute in these proceedings about Peter's parentage. In acceding to Peter's motion, the Court makes no findings as to the truth or otherwise of the respective allegations which demonstrate the existence of that dispute. 2. The evidence included affidavits filed by Peter, and by Giuseppe Napoli. Antonio Napoli did not file an affidavit. I observe at the outset that there was no evidence in which either of the Napoli brothers said in terms that they personally objected to undergoing a test. Insofar as their counsel resisted the motion, there was certainly no evidence from either of the Napoli brothers (to the extent the Court might infer their objection) or submission put on their behalf, of any reason why they might personally object to the test. Nor was there any evidence that the Napoli brothers would not obey the order (although I acknowledge that s 29 of the Act provides that they can do so without penalty, with the Court then able to "draw such inferences as appear just in the circumstances"). 3. There were also two matters of common ground: 1. That by reference to applicable common law and statutory presumptions, Peter was the son of Rosa and the late Giuseppe Pronesti; 2. That the test proposed in the motion (being by reference to the Y chromosome) could not definitively establish that Salvatore was Peter's father. The most it could do was establish, if positive, that Peter, Antonio and Giuseppe shared a common paternal line, but not distinguishing brothers from paternal cousins and the like. However, a negative result would demonstrate that they did not share a common paternal line, which would necessarily exclude Salvatore as Peter's father (there being no evidence to suggest that Antonio and Giuseppe Napoli were anything other than Salvatore's sons). 1. Peter's evidence established three things: 1. Peter says that in September 2023, Rosa – in the presence of a witness who has provided confirmatory instructions to Peter's solicitor – told Peter that Salvatore was his birth father, whereas until then Peter had always believed Giuseppe Pronesti was his birth father. To Peter's observation at the time of her alleged disclosure, Rosa had "some dementia" and has now lost capacity to give evidence. 2. Peter has since undertaken a DNA test with the person he believed to be his brother of the full blood Salvatore (Sam) Pronesti. The result of that test excludes them having a shared patrilineal heritage. That is to say, it demonstrates that Giuseppe Pronesti was not Peter's birth father (there being no evidence to suggest that Sam was anything other than Giuseppe Pronesti's son). 3. Peter says that after he had received the results of the test referred to in the preceding sub-paragraph, he had spoken to Giuseppe Napoli, who had said that he (Giuseppe) was 99.9% sure Salvatore was Peter's birth father. 1. Giuseppe Napoli's affidavit was directed to the suggestion that there were two other men who could have been Peter's birth father, including one who was not from Cinquefrondi. 2. The affidavit read on behalf of the estate included some solemn documents signed by Rosa in the 1990s which were said to demonstrate that she acknowledged her eight children, including Peter, as hers and Giuseppe Pronesti's. Submissions 1. Ms Catanzariti submitted that Peter's evidence demonstrated that there was a proper basis to contend Salvatore was Peter's birth father and that, given the estate's refusal to acknowledge Peter as Salvatore's son, there was obviously a dispute in the proceedings about Peter's parentage. She contended there was real utility at this early stage of the proceedings to order the test, because the proceedings would immediately come to an end if the results showed no patrilineal connection between Peter and the Napoli brothers. Ms Catanzariti also relied on the fact that the Napoli brothers had raised no personal objection to undergoing the test, whether medical, religious or otherwise (being objections which the Court would have been bound to consider and determine under s 27(4) of the Act). 2. The essence of Mrs Pringle's thorough submissions was, to quote her written outline, that Peter's motion should fail because the orders sought were "unlikely to either advance or clarify the question of the plaintiff's true paternity". However, when I put to her that there had to be some real utility if the test could disprove Peter's contention that Salvatore was his birth father, Mrs Pringle did not press her clients' objection further. 3. Ms Fraser pressed the estate's objection on what, without disrespect, can be distilled to two grounds as I understood them. 4. First, it was for Peter to make out his entitlement to a family provision order, and the test would not determine whether he was Salvatore's son. She also placed emphasis on the fact that even by Peter's own admission, Rosa was suffering from dementia and had now lost capacity, such that her evidence could be given little weight, assuming it was received in an admissible form at a final hearing. This was said to demonstrate the weakness of Peter's argument today that there even was a seriously arguable issue about his parentage. Second, Ms Fraser submitted that requiring tests for patrilineality might encourage others to come forward as potential claimants. Consideration 1. The Court accepts Ms Catanzariti's submissions set out in [15] above. In doing so, I respectfully adopt the characteristically and helpfully compendious exposition of the relevant authorities set out by Hallen J in Kohari v NSW Trustee and Guardian [2016] NSWSC 1372 at [40] – [51]. 2. The jurisdictional prerequisite for ordering a parentage testing procedure under s 26 of the Act is that these are "proceedings where the parentage of a child is in issue". That is satisfied by reference to the evidence I have set out above. In the absence of any objection by the Napoli brothers to undergoing the test, and even allowing for the possibility that they can refuse to comply with the order, the Court finds there is real utility in ordering them to undertake the test because a negative result will bring these proceedings to an early end, saving everyone time, trouble and costs. 3. I do not accept Ms Fraser's submissions set out in [18] above. 4. Her first submission ignores the possibility of the test producing a negative outcome. Nor do I accept her reliance on Rosa's apparent mental condition at the time she allegedly made her disclosure to Peter as being relevant for today's hearing. However that disclosure might be treated at a final hearing, the evidence – when taken with the other matters referred to in [12] above - is of sufficient weight on an interlocutory basis to warrant the making of the orders sought. 5. I reject her second submission because there is no basis in the evidence or even by speculation to think that the outcome to which she referred is likely, especially when it is understood that the test cannot prove specific paternity. It seems to me that identifying a class of persons with nothing more than a patrilineal connection is unlikely to incite further claims. Costs 1. Peter's motion sought a costs order only against the estate. No costs were sought against the Napoli brothers, and they made no application for their costs. 2. Insofar as the estate is concerned, Ms Catanzariti submitted that the estate had opposed the motion and that costs should follow the event. The Court has determined, she submitted, a discrete issue which will never be revisited. The estate had more than adequate opportunity to agree to the tests being undertaken before the motion was filed. It could also have submitted to the outcome of the motion once it had been filed, and left the Napoli brothers to be the active contradictors. 3. Ms Fraser, on behalf of the estate, submitted that costs should be reserved. She said this was a case where the costs outcome should abide what ultimately happens in the final result. It was for Peter to prove his status as a person eligible to seek a family provision order, and determining the costs of the present application should await whether or not he was able to do so. She further submitted that there was a duty on the part of her client to protect the estate which warranted opposition to the motion. 4. The court accepts Ms Catanzariti's submissions set out in [25] above. 5. As to Ms Fraser's submission concerning protection of the estate, I respectfully disagree that the duty required ongoing opposition to the present motion. That submission overlooks both the duty to protect the estate by avoiding unnecessary costs, and the requirement upon the estate as a litigant under s 56(3) of the Civil Procedure Act 2005 (NSW) to assist the Court to further the achievement of the overriding purpose. In other words, in my view, her client's duty to the estate in relation to the present application was to have promptly acceded to the plaintiff's request for the tests, or later the motion, when it became apparent that a negative result could bring these proceedings to an end. 6. In the events which have happened, and where I have been informed that there is only notional rather than actual estate, it is regrettable that Antonio as tutor has now been exposed to the costs of this application. However, that exposure is not a reason against making the costs order. Conclusion 1. The Court will make orders in accordance with the motion with some minor variations. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 August 2024