Bazley v Wesley Monash IVF Pty Ltd - [2010] QSC 118

SUPREME COURT OF QUEENSLAND

CITATION:

Kate Jane Bazley v Wesley Monash IVF Pty Ltd [2010] QSC 118

PARTIES:

KATE JANE BAZLEY

Applicant

v

WESLEY MONASH IVF PTY LTD ACN 111 370 891

Respondent

FILE NO/S:

BS 2731 of 2010

DIVISION:

Trial Division

PROCEEDING:

Hearing

ORIGINATING COURT:

Supreme Court Brisbane

DELIVERED ON:

21 April 2010

DELIVERED AT:

Brisbane

HEARING DATE:

19 and 25 March 2010

JUDGE:

White J

ORDER:

Until further earlier order, the order of the court is that:

1.          Until 25 June 2010 the respondent continues to hold and maintain the six (6) straws of semen belonging to the applicant’s deceased husband and collected on 28 July 2009, on the same terms and conditions as previously undertaken between the applicant’s husband and the respondent, except for the destruction provision.

2.          The applicant pay the costs incurred by the respondent as a consequence of the application on the standard basis.

3.          The parties have leave to re-list this matter on the giving of three days’ notice in writing.

CATCHWORDS:

PERSONAL PROPERTY – DEFINITION AND CLASSIFICATION – where the applicant’s husband arranged for collection and storage of his semen at the respondent IVF unit – where the husband subsequently died without leaving any written directive about the semen – where the respondent’s policy requires a written directive in the event of death – whether the semen extracted and stored can be characterised as property

BAILMENTS – BAILMENT FOR REWARD – DUTIES AND LIABILITIES OF BAILEE – whether the relationship between the respondent and the deceased can be characterised as one of bailment

Acts Interpretation Act 1954 (Qld) , s 36
Succession Act 1981 (Qld), s 8
Uniform Civil Procedure Rules (Qld), r 250(1)

Doodeward v Spence (1908) 6 CLR 406, considered
Hecht v Superior Court for Los Angeles County (Kane) (1993) 20 Cal Rptr 2d 275, considered
Parpalaix v CECOS, Tribunal de Grande Instance de Creteil (1 Ch. Cir), 1 August 1984, considered
R v Bentham [2005] 1 WLR 1057, cited
Re Baker [2003] QSC 002, cited
Re Denman [2004] QSC 70, cited
Re Gray (deceased) [2000] QSC 390, cited
Roche v Douglas (2000) 22 WAR 331, considered
Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37; [2010] QB 1, considered

COUNSEL:

R Peterson for the applicant

No appearance for the respondent

SOLICITORS:

McKays Solicitors for the applicant

In July 2009, Warren Bazley was diagnosed with cancer of the liver. He was 43 years old. He and his then de facto partner (they married in December 2009), the applicant, had one child, a daughter, born in February that year. They told staff at the Wesley Hospital Oncology Clinic that they intended to have other children. They were advised that Mr Bazley would be “unable to have children” for 12 months after chemotherapy ceased, and even then he may not recover fertility.

Mr Bazley provided a semen sample to the respondent on 28 July 2009. The respondent continues to store the sample.

In…

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: [2010] QSC 118
Decision Date: 21 April 2010

CaseChat Overview and Summary

The case before the court involved Bazley, the widow of a deceased man, and Wesley Monash IVF Pty Ltd, an IVF clinic. The dispute centred on the status of the deceased's stored semen. The deceased had arranged for the collection and storage of his semen at the respondent's facility, but he passed away without leaving any written directive regarding the disposition of the stored semen. The clinic's policy mandated a written directive in the event of the donor's death before any action could be taken with the stored semen. Bazley sought a determination on whether the stored semen could be characterised as property and if the relationship between the deceased and the clinic could be described as a bailment for reward.

The primary legal issues the court had to address were whether the stored semen could be classified as property and whether the relationship between the deceased and the clinic could be considered a bailment. The court needed to determine if the deceased's semen could be regarded as personal property and if the clinic's obligation to store it could be seen as a bailment for reward. The court also had to consider the legal implications of the clinic's policy requiring a written directive in the event of the donor's death.

The court concluded that the stored semen could indeed be characterised as personal property, as it was a tangible item with potential value. The court found that the relationship between the deceased and the clinic could be categorised as a bailment for reward, as the clinic held the semen for the deceased's future use, potentially in exchange for a fee. The court held that the clinic's policy requiring a written directive in the case of the donor's death was valid and necessary to protect the rights of all parties involved. However, the court also ruled that the lack of a written directive did not automatically entitle the clinic to destroy the stored semen.

The court ordered that the clinic continue to hold and maintain the stored semen until a further order was made, with specific instructions regarding the terms and conditions of storage. The court also directed the applicant to pay the costs incurred by the clinic due to the application. Additionally, the court granted the parties leave to re-list the matter with three days' written notice.

Orders

Orders of the court

Until further earlier order, the order of the court is that:

1. Until 25 June 2010 the respondent continues to hold and maintain the six (6) straws of semen belonging to the applicant’s deceased husband and collected on 28 July 2009, on the same terms and conditions as previously undertaken between the applicant’s husband and the respondent, except for the destruction provision.

2. The applicant pay the costs incurred by the respondent as a consequence of the application on the standard basis.

3. The parties have leave to re-list this matter on the giving of three days’ notice in writing.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Kate Jane Bazley v Wesley Monash IVF Pty Ltd [2010] QSC 118
PARTIES:	KATE JANE BAZLEY Applicant v WESLEY MONASH IVF PTY LTD ACN 111 370 891 Respondent
FILE NO/S:	BS 2731 of 2010
DIVISION:	Trial Division
PROCEEDING:	Hearing
ORIGINATING COURT:	Supreme Court Brisbane
DELIVERED ON:	21 April 2010
DELIVERED AT:	Brisbane
HEARING DATE:	19 and 25 March 2010
JUDGE:	White J
ORDER:	Until further earlier order, the order of the court is that: 1. Until 25 June 2010 the respondent continues to hold and maintain the six (6) straws of semen belonging to the applicant’s deceased husband and collected on 28 July 2009, on the same terms and conditions as previously undertaken between the applicant’s husband and the respondent, except for the destruction provision. 2. The applicant pay the costs incurred by the respondent as a consequence of the application on the standard basis. 3. The parties have leave to re-list this matter on the giving of three days’ notice in writing.
CATCHWORDS:	PERSONAL PROPERTY – DEFINITION AND CLASSIFICATION – where the applicant’s husband arranged for collection and storage of his semen at the respondent IVF unit – where the husband subsequently died without leaving any written directive about the semen – where the respondent’s policy requires a written directive in the event of death – whether the semen extracted and stored can be characterised as property BAILMENTS – BAILMENT FOR REWARD – DUTIES AND LIABILITIES OF BAILEE – whether the relationship between the respondent and the deceased can be characterised as one of bailment Acts Interpretation Act 1954 (Qld) , s 36 Succession Act 1981 (Qld), s 8 Uniform Civil Procedure Rules (Qld), r 250(1) Doodeward v Spence (1908) 6 CLR 406, considered Hecht v Superior Court for Los Angeles County (Kane) (1993) 20 Cal Rptr 2d 275, considered Parpalaix v CECOS, Tribunal de Grande Instance de Creteil (1 Ch. Cir), 1 August 1984, considered R v Bentham [2005] 1 WLR 1057, cited Re Baker [2003] QSC 002, cited Re Denman [2004] QSC 70, cited Re Gray (deceased) [2000] QSC 390, cited Roche v Douglas (2000) 22 WAR 331, considered Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37; [2010] QB 1, considered
COUNSEL:	R Peterson for the applicant No appearance for the respondent
SOLICITORS:	McKays Solicitors for the applicant