Bopping v Monash IVF Pty Ltd - [2024] VSC 463

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
GROUP PROCEEDINGS

S ECI 2020 04761

BETWEEN:

DANIELLE BOPPING & ANOR (according to the attached Schedule)	Plaintiffs
v
MONASH IVF PTY LTD (ACN 006 942 990) & ORS (according to the attached Schedule)	Defendants

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	30 July 2024
DATE OF JUDGMENT:	1 August 2024 (reasons published 7 August 2024)
CASE MAY BE CITED AS:	Bopping v Monash IVF Pty Ltd
MEDIUM NEUTRAL CITATION:	[2024] VSC 463

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GROUP PROCEEDINGS — Plaintiffs received pre-implantation genetic testing of embryos during the course of receiving fertility treatment from the defendants which produced false positive results indicating an abnormality — Application by defendants to retain the plaintiffs’ embryos beyond the five year period contemplated by s 33(2) of the Assisted Reproductive Treatment Act 2008 (Vic) — Where the retained embryos may be relevant evidence and the plaintiffs’ solicitors consent to the extension of the storage period — Whether the Court is empowered to make the retention order — Hartnett t/as Hartnett Lawyers v Bell (2023) 112 NSWLR 463 and Hamilton v Oades (1989) 166 CLR 486 referred to — Inherent jurisdiction of the Court does not extend to authorise conduct which would otherwise contravene a statutory provision and making such an order would be futile — Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr P Hamilton of counsel	Margalit Injury Lawyers
For the Defendants	Mr I Thomas of counsel	Colin Biggers & Paisley
The Contradictor	Mr J Pizer SC with Ms RA McEwen of counsel

HER HONOUR:

Introduction and background

These reasons concern an application in a group proceeding. The lead plaintiffs and group members (‘plaintiffs’) are former patients of clinics affiliated with the second defendant, Monash IVF Pty Ltd (together, ‘Monash IVF’). [1] The plaintiffs received in-vitro fertilisation (‘IVF’) treatment from Monash IVF between May 2019 and October 2020, during which they were offered a non-invasive embryo screening process known as and referred to in the pleadings as the niPGT-A testing program.[2]
[1]The group members also include the spouses and other family members of patients of Monash IVF, but the distinction is irrelevant for present purposes.
[2]Traditionally, embryos created through IVF are screened for genetic abnormalities via biopsy. Only embryos which are found to be chromosomally normal are considered suitable for transfer. Some embryos are not considered suitable for biopsy, and some patients may prefer non-invasive screening methods.

The plaintiffs allege that the niPGT-A testing program (‘screening program’) led to a number of viable embryos being falsely found to be aneuploid, or chromosomally abnormal, and were accordingly not transferred to the plaintiffs. The plaintiffs allege that Monash IVF knew, or should have known, that the screening program would result in a significant number of viable embryos being wrongly characterised as aneuploid, but nevertheless proceeded to offer the screening program to its patients. The plaintiffs also allege that Monash IVF failed to suspend the screening program immediately after it became…

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: [2024] VSC 463
Decision Date: 1 August 2024 (reasons published 7 August 2024)

CaseChat Overview and Summary

The case of Bopping v Monash IVF Pty Ltd involved plaintiffs who had undergone fertility treatment, including pre-implantation genetic testing of their embryos, at the hands of the defendants. The testing produced false positive results, indicating the presence of an abnormality. Subsequently, the defendants sought an extension of the storage period of the embryos beyond the five-year limit stipulated by section 33(2) of the Assisted Reproductive Treatment Act 2008 (Vic), arguing that the embryos could serve as relevant evidence in potential litigation. The plaintiffs' solicitors had given their consent to this extension.

The primary legal issue that the court had to resolve was whether it had the authority to grant an order permitting the retention of the embryos beyond the statutory period. This question hinged on the court's inherent jurisdiction and whether it could permit actions that contravened the statutory provisions. The court considered precedents such as Hartnett t/as Hartnett Lawyers v Bell (2023) 112 NSWLR 463 and Hamilton v Oades (1989) 166 CLR 486, which established that the inherent jurisdiction of the court does not extend to authorising conduct that would otherwise breach a statutory provision. The court also contemplated that granting such an order would be futile, given the statutory constraints.

Upon considering the statutory framework and the precedents, the court determined that it did not have the power to make the retention order sought by the defendants. The court concluded that its inherent jurisdiction could not override the explicit provisions of the statute, and making such an order would be ineffective given the statutory limits. Consequently, the court dismissed the application by the defendants to extend the storage period of the embryos.

Orders