AB (a pseudonym) v Alfred Health - [2025] VSC 551

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PRACTICE COURT

S ECI 2025 03424

AB (a pseudonym)	Plaintiff
-v-
ALFRED HEALTH	Defendant

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JUDGE:	Quigley J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 June 2025
DATE OF JUDGMENT:	4 September 2025
CASE MAY BE CITED AS:	AB (a pseudonym) v Alfred Health
MEDIUM NEUTRAL CITATION:	[2025] VSC 551

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HUMAN TISSUE REMOVAL — Urgent application for an order granting the removal of spermatozoa and associated tissue from body of deceased domestic partner — Limited power to make such an order — Court itself has no power to authorise removal — Declaratory powers of the Court in the circumstances — Whether Plaintiff was ‘senior available next of kin’ for the purposes of s 26 of the Human Tissue Act 1982 (Vic) — Whether the purposes of the procedure amounts to ‘medical purposes’ — Declaration made that the Plaintiff was ‘senior available next of kin’ and consent could be given — Declaration that the Defendant was authorised to remove spermatozoa and associated tissue from the body of the deceased — Human Tissue Act 1982 (Vic) ss 3, 26 — Relationships Act 2008 (Vic) s 35 — Y v Austin Health [2005] VSC 427 — P v Melbourne Health [2019] VSC 500, applied.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P O’Bryan-Gusah	--
For the Defendant	Mr H Hassan	In‑House Solicitors, Alfred Health

HER HONOUR:

INTRODUCTION

On 13 June 2025, the Plaintiff (‘AB’) made an urgent application to the Practice Court of the Supreme Court of Victoria seeking, inter alia, an order that the Defendant (‘Alfred Health’), by a designated officer, be authorised to remove spermatozoa and associated tissue from the body of the deceased, referred to by the pseudonym ‘YZ’. The Plaintiff seeks this order so to preserve the tissue by the Royal Women’s Hospital and its authorised representatives, until further relief, if any, is sought by her.

I made orders addressing the Plaintiff’s application in the Practice Court on 13 June 2025, and gave brief oral reasons for those orders. I now publish my reasons in greater detail.

It is appropriate that the identities of the Plaintiff and the deceased be protected by the use of pseudonyms and that, subject to any further order, the Court Registry should treat the file as confidential.

The Defendant had been notified of the pending application and was legally represented.

EVIDENCE AND SUBMISSIONS OF THE PARTIES

At the hearing, the Court was informed of the following matters though the affidavits filed and by the submissions made by the parties:

(a) On the evening of 10 June 2025, the deceased, a 38 year old man, died in the Intensive Care Unit at the Alfred Hospital. The deceased had suffered an out of hospital cardiac arrest due to a pulmonary embolism. The deceased’s body was being held at the Alfred Hospital’s mortuary facility, pending release to the next of kin or authorised person.

(b) The Defendant is a public health…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] VSC 551
Decision Date: 4 September 2025

CaseChat Overview and Summary

In the matter of AB (a pseudonym) v Alfred Health, the plaintiff sought an urgent order to allow the removal of spermatozoa and associated tissue from the body of their deceased domestic partner. The application was brought under the Human Tissue Act 1982 (Vic). The court was required to determine whether the plaintiff was the'senior available next of kin' and if the purposes of the procedure were 'medical purposes'. The defendant, Alfred Health, argued that the plaintiff lacked the necessary standing to consent to the procedure.

The court considered whether the plaintiff was indeed the'senior available next of kin' under section 26 of the Act. It was also necessary to determine whether the intended use of the removed tissue qualified as a'medical purpose'. The court found that the plaintiff was the 'senior available next of kin' and therefore had the authority to consent to the removal of the tissue. Additionally, the court held that the purposes of the procedure were medical in nature, thus falling within the ambit of the Act. Consequently, the court made the necessary declarations and authorised the removal of the spermatozoa and associated tissue by the defendant.

Alfred Health was authorised to remove the spermatozoa and associated tissue from the body of the deceased. The court also declared that the plaintiff was the'senior available next of kin' and had the authority to give consent for the procedure. This decision was based on the interpretation of the relevant statutory provisions and the application of precedents such as Y v Austin Health and P v Melbourne Health.

The final orders of the court included a declaration that the plaintiff was the'senior available next of kin' and had the authority to consent to the removal of the spermatozoa and associated tissue. Alfred Health was authorised to proceed with the removal as per the terms of the declaration.

Orders