Bopping v Monash IVF Pty Ltd
[2024] VSC 463
•1 August 2024 (reasons published 7 August 2024)
| 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 aware of the problems with the screening program, in particular, the high number of false positive results.
The plaintiffs bring claims against Monash IVF for breach of contract, negligence, and misleading and deceptive conduct. In paragraph 21 of the Third Amended Statement of Claim, the plaintiffs alleged that Monash IVF failed to inform the plaintiffs of the following matters:
(a)adequately or at all as to the nature of niPGT-A, and in particular the risk that niPGT-A might produce false-positive results and therefore an erroneous determination that an embryo was aneuploidy and not suitable for transfer;
(b)that embryo biopsy was a more reliable pre-implantation genetic test to detect aneuploidy than niPGT-A;
(c)that clinical application of niPGT-A was not appropriate to determine embryos that were aneuploidy, and therefore not suitable for transfer, without confirmatory embryo biopsy;
(d)that niPGT-A was appropriate for use in prioritising embryos for transfer once the viability (euploid status) of the embryo had been determined by embryo biopsy;
(e)that whilst other providers of IVF medical services in Australia use niPGT-A including to prioritise embryos for transfer, it is not used by other providers of IVF medical services as the sole basis to determine the euploid status of the embryo;
(f)that it is good professional practice in the IVF treatment industry in Australia to publish results of clinical trials, thereby exposing the results to peer review so that new technologies do not compromise safety and/or increase the already considerable financial burden to patients;
(g)that the results of the clinical trial conducted by or on behalf of the defendants had not been published or otherwise made available for peer review in accordance with good professional industry practice;
(h)that the clinical trial was not a proper basis for clinical application of niPGT-A to determine viability of embryos in the course of treatment of patients by the defendants;
(i)that the defendants conducted the only fertility treatment program in Australia, further and in the alternative in the world, using niPGT-A testing results as the sole basis to:
(i) determine the aneuploid status of embryos;
(ii) discard or not proceed to transfer embryos.
Paragraphs 73 and 74 of the Third Amended Statement of Claim alleged as follows:
But for the breaches of the duty alleged:
(a)niPGT-A testing would not have been used as the diagnostic test to determine aneuploid status of embryos;
(b)the plaintiffs’ embryos would have been tested for aneuploid status by embryo biopsy PGT-A;
(c)the plaintiffs would not have failed to transfer embryos based upon the results of niPGT-A;
(d)the plaintiffs’ embryos would not have been discarded, donated and/or deselected for transfer based upon the results of niPGT-A;
(e)the plaintiffs would not have been exposed to the risk that a viable embryo may have been discarded or not transferred based upon the results of niPGT-A.
But for the breaches of the further duty, the plaintiffs:
(a)would have been informed by the defendants of the matters in sub-paragraphs 21 (a) to (i) above;
(b)would not have subjected their embryos to the niPGT-A testing at all or without confirmatory embryo biopsy to determine viability;
(c)refer to and repeat the allegations in sub-paragraphs 73(a) to (e) inclusive above.
Paragraph 75 of the Third Amended Statement of Claim alleged that the plaintiffs have suffered loss and damage by reason of Monash IVF’s breaches, including pain and suffering, loss of chance of pregnancy, the costs of the screening program and IVF treatment, medical and like expenses, loss of earnings and earning capacity, and physical inconvenience.
The plaintiffs identified the following questions common to the lead plaintiffs and group members (‘common questions’):
The questions of law or fact common to the claims of the plaintiff and each of the group members are:
(a)whether the facts concerning the niPGT-A testing and fertility treatment including IVF treatment provided by the defendants to patients in the relevant period are as alleged above;
(b)whether the defendants owed a common law duty of care to the plaintiffs and group members, and if so the content of the duty;
(c)if the defendants owed such a common law duty of care, whether the defendants breached that duty;
(d)whether the defendants breached the implied terms of any agreement with the plaintiffs and group members;
(e)if the defendants breached a common law duty or the agreement, was such breach a cause of any losses sustained by any claimants and/or class of claimants;
(f) whether the defendants made the representations;
(g) whether the representations were false, misleading and deceptive;
(h)whether there was any failure to comply with the Australian Consumer Law;
(i)what are the principles for identifying and measuring compensable losses suffered by the claimants resulting from the breaches alleged.
The trial of the common questions is scheduled to commence on or about 15 October 2024.
The current application
A number of plaintiffs continue to have embryos stored with Monash IVF (‘stored embryos’). The application before me has proceeded on the assumption that the stored embryos may be required as evidence in this proceeding.[3] Ordinarily, Monash IVF would be obliged to take all necessary steps to preserve potentially relevant evidence, and it accepts that it has that obligation.
[3]However, the stored embryos have not been the subject of any inspection and/or testing for the purpose of adducing evidence for the trial of the common questions. It may be that the stored embryos may be more relevant for assessing causation and loss and damage issues with respect to individual plaintiffs should the plaintiffs be successful on the common questions.
However, in the case of stored embryos located in Victoria, the obligation of Monash IVF as a party to this proceeding appears to conflict with its obligations under the Assisted Reproductive Treatment Act 2008 (Vic) (‘ART Act’) with respect to the storage of embryos. Monash IVF, with the support of the plaintiffs, have sought an order from this Court that Monash IVF retain the stored embryos beyond the five year period contemplated by the ART Act pending the hearing and determination of the proceeding (‘retention order’), even where the consent of the owners of the embryo is unable to be obtained.[4] The questions in the current application are whether the Court is empowered to make the retention order, and, if it is so empowered, whether it should do so.
[4]The use of the term ‘owner’ or ‘owners’ in these reasons is for ease of reading, and is not intended to indicate that I have reached a conclusion that embryos are ‘property’ within the meaning of the law.
Since the commencement of this proceeding in December 2020, the solicitors for the parties have been corresponding about the fate of the stored embryos, as follows:
(a) in April 2021, Monash IVF, at the request of the plaintiffs, provided an undertaking that it would retain all niPGT-A tested aneuploid embryos for the duration of the proceeding (‘undertaking’);
(b) in April 2023 the solicitors for Monash IVF suggested that the undertaking be formalised via a Court order, but this did not occur;
(c) in January and February 2024, the solicitors for the plaintiffs asserted that the undertaking should extend to all niPGT-A screened embryos, not just aneuploid embryos, stating that it ‘…may become necessary to have an independent expert re-test a sample of niPGT-A embryos in order to provide evidence as to the accuracy or otherwise of the [screening program]’;
(d) in March 2024, the solicitors for Monash IVF wrote to the solicitors for the plaintiffs alerting them to their previous correspondence regarding s 33(2) of the ART Act, informing them that Monash IVF’s application for approval from the Patient Review Panel (‘PRP’)[5] to retain the stored embryos beyond the five year period prescribed by that provision had been rejected, that any obligations Monash IVF had assumed pursuant to the undertaking are superseded by their obligations under the ART Act, and that they would soon commence writing to patients informing them of their election rights under the ART Act;
[5]See paragraph 18 of these reasons.
(e) subsequently, the solicitors for the plaintiffs agreed with the approach suggested by Monash IVF, being to approach the Court to seek an order for the formalisation of the undertaking;
(f) on 21 March 2024, the solicitors for the defendant wrote to the associate to Keogh J (‘managing judge’) as follows:
Dear Associate,
We act on behalf of the Defendants in Proceeding S ECI 2020 04761, Danielle Bopping & Michelle Pedersen vs Monash IVF Pty Ltd and Ors.
The Defendants have sought the consent of the Plaintiffs to send this email to the Court, but no reply has been received. However, the proposed orders as attached are sought by consent.
In the early stages of the Proceeding, the solicitor for the Plaintiffs wrote to the non-Compass Defendants (at the time) requiring that all aneuploid niPGT-A screened embryos of Group Members remain in storage with the defendants unless the defendants:
·received an express written direction from the gamete provider(s)/patient(s)(depending on the relevant legislation) to discard his/her embryo; or
·otherwise as required by law.
The basis for the request was that the niPGT-A aneuploid embryos formed part of the evidence in the Proceedings.
The non-Compass Defendants provided an undertaking to the above effect on 16 April 2021.
In accordance with section 33 of the Assisted Reproductive Treatment Act 2008, a registered ART provider (which would include the non-Compass Defendants) must not cause or permit an embryo to remain in storage following the latest of the day that is five years after the day the embryo was placed in storage.
The five year limitation will shortly fall due for the first cohort of embryos to which the undertaking applies.
In an effort to not prejudice potential evidence in this Proceeding while also not offending the legislation, the defendants approached the Patient Review Panel in accordance with the legislation, however, the Panel did not consider that it was the appropriate body to make the orders as sought. The parties to this Proceeding now seek an order in the Proceeding allowing the Defendants to continue to store those aneuploid embryos screened by niPGT-A for an extended period up to a further five years or as required for the purpose of the Proceeding.
We attach proposed consent orders agreed between the parties and respectfully request that the orders be made in Chambers at His Honour’s convenience.
(g) the following day, the associate to the managing judge replied as follows:
His Honour requires an explanation of the source of power to make the orders, and the considerations relevant to the exercise of that power.
(h) no reply was received by the managing judge until the outline of submissions relied upon by Monash IVF in this application was forwarded to the Court on 18 July 2024; and
(i) in the meantime, the solicitors for the plaintiffs and the solicitors for Monash IVF corresponded regarding the following matters;
(i) which party should bear the responsibility for responding to his Honour’s request;
(ii) Monash IVF’s intention to write to Victorian group members whose embryos were approaching the five year limitation period under the ART Act, which the solicitors for the plaintiffs said may have been a breach of the communication protocols agreed for the purpose of the proceeding; and
(iii) whether the consent of the solicitors for the plaintiffs to the proposed orders was consent on behalf of all plaintiffs with embryos in storage in Victoria. However, not all plaintiffs are clients of the plaintiffs’ solicitors, such that the plaintiffs’ solicitors were not in a position to provide consent on behalf of all plaintiffs.
The correspondence referred to above was annexed to an affidavit sworn by Philip Atkin, a partner with Monash IVF’s solicitors, on 22 July 2024. Mr Atkins’s affidavit concluded as follows:
I am instructed by the Defendants, and I believe, that their records show that there are currently 274 patients with a collective number of 537 niPGT-A screened aneuploid embryos that are in storage in Victoria. Of the 537 embryos:
(a)127 of those embryos belonging to 68 patients will reach the 5 year limitation period in 2024; and
(b)389 of those embryos belonging to 203 patients will reach the 5 year limitation period in 2025.
On 22 July 2024, the Monash IVF issued a summons, which sought the following orders:
1.Notwithstanding the requirements of the Assisted Reproductive Treatment Act 2008 (Vic), the Defendants are ordered to maintain and continue to store all aneuploid niPGT-A screened embryos of Group Members remaining in storage in the state of Victoria irrespective of results from alternative PGT-A and whose embryos are governed by the Assisted Reproductive Treatment Act 2008 (Vic), unless the defendants:
a.receive an express written direction from the gamete provider(s)/patient(s) to discard or transfer (uterine transfer) or transport (to an approved Assisted Reproductive Treatment provider) his/her embryo; or
b. otherwise as required by law.
2.The Defendants will inform the gamete provider(s)/patient(s) whose aneuploid niPGT-A screened embryos are governed by the Assisted Reproductive Treatment Act 2008 (Vic) of these orders and will specifically inform those gamete provider(s)/patient(s) that:
a.all of the gamete provider(s)/patient(s) aneuploid niPGT-A screened embryos will remain in storage pursuant to an order of this Court;
b.all of the gamete provider(s)/patient(s) embryos remaining in storage and not otherwise captured by (a) above will remain subject to the provisions of the Assisted Reproductive Treatment Act 2008 (Vic) including the right to discard the embryos in accordance with, and as required by, the Assisted Reproductive Treatment Act 2008 (Vic); and
c.the Defendants will seek further instructions from the gamete provider(s)/patient(s) whose aneuploid niPGT-A screened embryos are governed by the Assisted Reproductive Treatment Act 2008 (Vic) on the question of the ongoing retention of those embryos at the conclusion of this Proceeding.
Given the query raised by the managing judge in March 2024, and given that the plaintiffs consented to the making of a retention order, on 24 July 2024 I appointed Mr Jason Pizer SC[6] as the Contradictor to the application.
[6]With Ms Rebecca McEwan as junior counsel.
The legislative framework
The use and storage of embryos produced by IVF procedures and not required for immediate transfer is governed by Part 3 of the ART Act, which is headed ‘Offences relating to the use and storage of gametes and embryos and other matters’.
Section 32 of the ART Act provides as follows:
32 Prohibition on storing embryos except in particular circumstances
(1)A person must not cause or permit an embryo to be placed or remain in storage except as permitted by section 34A.
Penalty: 240 penalty units or 2 years imprisonment or both.
(2) Subsection (1) does not apply if—
(a) the person is a registered ART provider; and
(b)it is intended to transfer the embryo to the body of a woman in a treatment procedure in accordance with this Act; and
(c)the persons who have produced the gametes from which the embryo has been formed have consented to its storage for the purpose of later transfer.
(3) A consent under subsection (2)(c)—
(a) must be in writing; and
(b)must be given as soon as practicable after the consent has been given, to the registered ART provider storing the embryo.
Section 33 of the ART Act provides as follows:
33 Storing embryos for later transfer
(1) This section applies to an embryo stored as referred to in section 32(2).
(2)A registered ART provider must not cause or permit the embryo to remain in storage except as permitted by section 34A—
(a)if one of the persons who produced the gametes used to form the embryo has specified a storage period of less than 5 years, after that period; or
(b) in any other case, after the latest of the following days—
(i)the day that is 5 years after the day the embryo was placed in storage;
(ii)if each responsible person in relation to the embryo consents to storage for a period of not more than 5 years in addition to the period referred to in subparagraph (i), the day that is the end of that additional period;
(iii)if the Patient Review Panel gives approval under section 33A for a longer or further period of storage, the day that is the end of the period approved by the Panel.
Penalty: 240 penalty units or 2 years imprisonment or both.
Section 33A of the ART Act provides as follows:
33APatient Review Panel may approve longer or further storage of embryos
(1)If the responsible persons in relation to the embryo have given written approval for a specified longer storage period, the Patient Review Panel may approve the longer storage period if it considers there are reasonable grounds to do so in the particular case.
(2)If a responsible person is unable to give written approval, or the person's written approval is unable to be obtained, the Patient Review Panel may approve a longer storage period if it considers there are exceptional circumstances for doing so in the particular case.
(3)If an application is made for approval under subsection (1) or (2) after the period for storage of the embryo referred to in section 33(2)(b) has expired, the Patient Review Panel may approve a further storage period if it considers there are exceptional circumstances in the particular case for failing to seek approval before the expiry of the period.
(4) An approval under this section may be subject to conditions.
Note
In deciding to approve a longer or further storage period, the Patient Review Panel must have regard to the guiding principles in section 5—see section 91(2).
The PRP is established by s 82 of the ART Act, and is constituted by five people appointed by the Governor-in-Council. The functions of the PRP include, among other things, considering applications for extended storage periods for gametes or embryos or for the removal of embryos from storage. Decisions of the PRP are reviewable by the Victorian Civil and Administrative Tribunal (‘VCAT’). The guiding principle in s 5 of the ART Act of relevance to the current application is the principle that ‘the health and wellbeing of persons undergoing treatment procedures must be protected at all times’.
Sections 34 and 34A of the ART Act provides as follows:
34 Removal of embryos from storage
(1)A registered ART provider must not remove an embryo from storage, or cause or permit an embryo to be removed from storage, unless—
(a)it is to be used, in accordance with this Act, in a treatment procedure; or
(b)written consent to its removal has been given to a designated officer of the registered ART provider by the responsible persons in relation to the embryo; or
(c)the responsible persons in relation to the embryo are unable to agree on the period for which the embryo is to be stored and the Patient Review Panel has directed that the embryo be removed; or
(d)it is required to be removed by reason of the operation of section 33(2).
Penalty: 480 penalty units or 4 years imprisonment or both.
(2)A person who removes from storage an embryo that is not to be used for a treatment procedure must ensure that—
(a)it is not removed from its container, other than for the sole purpose of observing the embryo; and
(b) it is disposed of in accordance with the regulations.
Penalty: 240 penalty units or 2 years imprisonment or both.
34A Time for removal of embryos from storage
(1)A registered ART provider may cause or permit an embryo to remain in storage for up to 3 months after—
(a)the responsible persons in relation to the embryo give written consent to its removal; or
(b) the expiry of the relevant period referred to in section 33(2); or
(c)in case of a pending application, the relevant day unless the Tribunal approves the longer storage period on the relevant day; or
(d)if the Patient Review Panel refuses to approve a further storage period under section 33A(3), the relevant day unless the Tribunal approves the further storage period on the relevant day; or
(e)in case of a direction under section 34(1)(c), the relevant day unless the Tribunal decides on the relevant day that the embryo should not be removed.
(2)In case of a pending application or a direction under section 34(1)(c), a registered ART provider may cause or permit an embryo to remain in storage until the earlier of the following—
(a)in case of a pending application, the Patient Review Panel approves the longer storage period; or
(b)if the Patient Review Panel refuses or has refused to approve a longer storage period, or has directed that an embryo be removed from storage, the relevant day.
(3)A person must not use an embryo kept in storage under subsection (1) or (2) unless the use by the person consists only of—
(a) storage of the embryo; or
(b) removal of the embryo from storage.
Penalty: 240 penalty units or 2 years imprisonment or both.
(4)For the purposes of this section—
pending application means either of the following that, on the expiry of the relevant period referred to in section 33(2), had been made but not yet decided—
(a)an application to the Patient Review Panel for approval of a longer storage period; or
(b)an application to the Tribunal for review of the Patient Review Panel's decision not to approve a longer storage period;
relevant day means the day—
(a)that is 28 days after the Patient Review Panel refuses to approve the longer or further storage period, or directs that an embryo be removed from storage; or
(b)if an application is made to the Tribunal for review of the Patient Review Panel's decision, the Tribunal decides the application.
The combined effect of ss 33, 33A, 34 and 34A of the ART Act is that:
(a) unused embryos are permitted to be placed in storage with a registered ART provider for the purpose of future transfer if the owners of the embryo provide their written consent;
(b) the maximum storage period is five years (subject to the grace period in s 34A), unless the owners of the embryo consent to a longer storage period, or the PRP gives approval for a longer storage period;
(c) if the owners of the embryo provide their consent for a longer storage period, then the PRP may approve the longer storage period if there are reasonable grounds for doing so;
(d) the PRP may approve a longer storage period if the owners’ written consent is unable to be given, or unable to be obtained, and there are exceptional circumstances;
(e) in relation to (c) and (d) above, it seems that approval must be sought from the PRP and considered by the PRP on a case by case basis;
(f) a grace period is provided under s 34A of three months after the expiry of the five year period referred to in s 33(2), save in cases where an application for a further storage period has been made to the PRP, which extends the grace period to the date upon which any application (including any application to VCAT for a review of the PRP’s decision) is heard and determined;
(g) a registered ART provider must, if an embryo is removed from storage for a purpose other than use in a treatment procedure, dispose of the embryo; and
(h) it is an offence for a registered ART provider to:
(iv) cause or permit an embryo to remain in storage beyond the five year period (as extended by any grace period) save in the circumstances specified in s 33(2);
(v) remove an embryo from storage in circumstances other than those specified in s 34; and
(vi) use a stored embryo during any grace period for any purpose other than the storage of the embryo, or the removal of the embryo from storage.
Accordingly, based upon the evidence of Mr Atkins extracted at paragraph 11 of these reasons, the grace period for some of the stored embryos will expire in August 2024 if no consent has been provided by the owners of the embryos concerned, or no application has been made to the PRP regarding those particular embryos.
Further, while this is not the subject of the current application, it seems to me that the terms of s 34 of the ART Act may cause some difficulties for any party wishing to conduct testing on the stored embryos for the purpose of this proceeding, unless such testing is considered to fall within the scope of the term ‘observing the embryo’. However, it is not necessary for me to resolve that issue in the context of the current application.
The parties’ submissions
Monash IVF submitted, in summary, as follows:
…the Court has power to make the Proposed Orders under either its inherent jurisdiction, section 47 of the Civil Procedure Act 2010 (Vic) (CPA), or Rule 37.01, for the purpose of preserving relevant evidence;
the exercise of that power would be consistent with the ART Act, even where individual gamete providers have not consented to a period of extended storage for an Affected Embryo. Further, if the Defendants were required by the Court to continue storing the Affected Embryos, they (the Defendants) would not be “causing or permitting” the storage of those embryos in a manner which contravenes the ART Act.
Monash IVF submitted that the parties to this proceeding agree that the stored embryos may be the subject of an order for the preservation of property and/or evidence, and that the Court’s inherent power to control its own proceedings and processes is not curtailed by the terms of the ART Act, because the ART Act does not clearly and expressly exclude the inherent jurisdiction of the Court.
Monash IVF noted that the inherent jurisdiction of the Court is broad, and may be exercised for the purpose of ensuring convenience and fairness in legal proceedings, preventing conduct which would render judicial proceedings inefficacious, and preventing an abuse of process. If the retention order was made, the obligation upon Monash IVF to discard the stored embryos would not arise.
Monash IVF accepted that the Court’s inherent jurisdiction is not ‘at large’, and that the jurisdiction cannot be invoked or exercised to excuse compliance with statutory obligations or to authorise the commission of a criminal offence. However, Monash IVF submitted as follows (omitting citations):
Nonetheless, the mere fact that a statute or rule of court addresses a particular matter in a particular way does not necessarily exclude the Court’s inherent jurisdiction. “Very clear words in the statute would be required” to deprive the Court of its inherent powers to regulate its own processes. The broadly based principle is that “the jurisdiction of a superior court will not be cut down by legislation, unless there be an express statement to that effect, or unless the implication is clear beyond all doubt.”
Monash IVF distinguished the ART Act from the legislation considered by the High Court in the decision of Hamilton v Oades,[7] where the Court held that the inherent jurisdiction of the Supreme Court of New South Wales could not override a specific provision in the Companies Code abrogating the privilege against self-incrimination. In the current case, Monash IVF submitted that the ART Act does not expressly or clearly exclude the Court’s inherent jurisdiction, noting that ‘very clear words in the statute would be required’ to deprive the Court of its inherent jurisdiction.[8]
[7](1989) 166 CLR 486.
[8]Referring to Aravas v Metropolitan Water Sewerage and Drainage Board (1970) 72 SR (NSW) 596, 603-604 and Skouvakis v Skouvakis [1976] 2 NSWLR 29, 34.
Monash IVF submitted that making the orders sought by its summons would not be inconsistent with the ART Act. After canvassing the relevant provisions of the ART Act, Monash IVF submitted as follows:
The Defendants contend that when regard is had to the terms of the ART Act as a whole, any tension between the jurisdiction to make orders preserving the embryos and the terms of the ART Act is more apparent than real.
The purposes of the ART Act are described in section 1. They include regulation of the use of assisted reproductive treatment procedures. They do not include limiting the inherent or statutory powers of any Court to make orders necessary for the proper administration of justice.
Monash IVF referred to s 53 of the ART Act, which requires the creation and maintenance of a Central Register regarding pregnancies resulting from fertility treatment using donor gametes, and s 66A, which creates an offence to disclose any information in the Central Register, save to a court or tribunal, in support of its submission that:
…Parliament did not intend that the ART Act (or at least this part of the ART Act) should affect the ordinary process of litigation, or court procedures, where a person may be required or choose to give information to a Court. The exception is not suggestive of an intention to limit the Court's jurisdiction in this, or any other, part of the ART Act.
Counsel for Monash IVF accepted that this Court could not bind a subsequent court hearing a criminal prosecution brought under s 33(2) of the ART Act by making the retention order. However, he submitted that it is at least strongly arguable, or there is at least a prima facie case, that making the retention order would do so. Monash IVF submitted as follows:
Further, under sections 32 and 33, a Defendant storing an Affected Embryo would commit an offence only if it were to “cause or permit” the embryo to remain in storage other than in accordance with the strict terms of the Act. If the Court were to make the Proposed Orders, the continued storage would be undertaken at the direction of the Court, in accordance with the obligation to preserve relevant evidence, rather than as a result of the Defendants “causing or permitting” the embryos to remain in storage. The words “cause” and “permit” incorporate notions of free choice, rather than obligatory conduct, where a person is compelled to act in a particular way in the light of a competing obligation. As such in making the orders the Court would not be authorising or facilitating the commission of a criminal offence under the ART Act, something it does not have power to do under its inherent or statutory powers. Construing the words “cause or permit” in this manner would not curtail the Court’s powers to make orders for the purpose of administering justice, and would be consistent with both the scheme and purposes of the ART Act.
Finally, Monash IVF submitted that the relevant discretionary considerations support making the retention order. In particular:
(a) the stored embryos relate to questions in this proceeding;
(b) it may be necessary and/or appropriate for the stored embryos to be subject to further analysis for the purpose of expert evidence if issues regarding causation and loss and damage to individual group members are enlivened;
(c) removal of the stored embryos from storage in accordance with the timeframes in s 33(2) of the ART Act would be irreversible;
(d) Monash IVF are consulting with the owners of the stored embryos to ascertain their wishes; and
(e) the plaintiffs’ solicitors have asserted that discarding the stored embryos may cause further harm to group members, thus raising the spectre of further claims being made against Monash IVF if the stored embryos are removed from storage.
The Contradictor summarised their position as follows:
(a)the Defendants have an obligation, under section 33(2)(b) of the ART Act, not to cause or permit the relevant embryos to remain in storage for more than five years;
(b)the Defendants seek the Proposed Order to relieve them of that statutory obligation;
(c)the Defendants submit that the Proposed Order, if made, would require them to continue to store the embryos “notwithstanding the requirements of the ART Act”. Put another way, the Defendants contend that the Proposed Order, if made, would relieve them of the statutory obligation not to cause or permit the relevant embryos to remain in storage for more than five years;
(d) that contention is either right or wrong;
(e)if the contention is right, the Proposed Order would have the effect of excusing compliance with a statutory obligation. This Court should not make that order. It does not have the power to do so. Why not? Because this Court does not have the power (by reason of its inherent jurisdiction, any statutory provision or any rule of Court) to make an order that excuses compliance with a statutory obligation;
(f)but if the contention is wrong, the Proposed Order would not have the effect of excusing compliance with a statutory obligation. The Court should not make that order. It would be an exercise in futility. Why? Because making the Proposed Order would not change the fact that the Defendants would still be in breach of the statutory requirement, found in section 33(2)(b) of the ART Act, not to cause or permit the relevant embryos to remain in storage for more than five years;
(g)accordingly, the Court either does not have the power to make the Proposed Order, or making the Proposed Order would be an exercise in futility. Either way, the Court should not make it. Rather, the appropriate course - if the consent of all “relevant persons” cannot be obtained - is for the Defendants to apply to the Patient Review Panel for approval under section 33A(2) of the ART Act.
The Contradictor accepted that, as matters currently stand, Monash IVF is in an invidious position. The Contradictor also accepted that the inherent jurisdiction of this Court extends to making the retention order for the purpose of preserving the subject matter of the proceeding and/or relevant evidence.
However, the Contradictor submitted that ‘[t]he inherent jurisdiction cannot authorise the making of orders excusing compliance with statutory obligations’.[9] Accordingly, this Court cannot, and should not make the retention order. Further, the Court’s statutory powers of case management (s 47 of the Civil Procedure Act 2010 (Vic) and s 33ZF of the Supreme Court Act 1986 (Vic), in relation to the group proceedings) do not extend the Court’s jurisdiction beyond the powers of the Court exercising its inherent jurisdiction.
[9]Referring to Harnett t/as Hartnett Lawyers v Bell (2023) 112 NSWLR 463 [123(a)].
Similarly, the Court’s power under r 37.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’) to make orders for the preservation of evidence and property do not extend the powers available to the Court under the inherent jurisdiction. Further, given the general nature of the Court’s statutory powers, which are directed to the management of a proceeding in this Court, they cannot be exercised in a manner which ‘…would circumvent or outflank the operation of the specific provision [governing the storage of embryos] in the ART Act’.
The Contradictor referred to the following statement of Toohey J in the decision of the High Court in Hamilton v Oades:[10]
The inherent jurisdiction of the Supreme Court of New South Wales does not enable that court to set at naught a clear statutory provision. Nor can such a power be derived from s 23 of the Supreme Court Act 1970 (NSW) which gives the court ‘all jurisdiction which may be necessary for the administration of justice in New South Wales. That general statement must yield to the specific provision in s 541(12) [of the Companies (New South Wales) Code].[11]
(emphasis added).
[10](1989) 166 CLR 486.
[11]Ibid 516.
The Contradictor also noted the observation of Mason CJ that ‘[t]he inherent jurisdiction is not a charter to which enables a court to turn its back upon the statute’.[12]
[12]Ibid 499.
Further, Dawson J observed as follows:
Nor does it carry the matter any further to invoke the inherent power of the Court to protect its own processes. That power…is subject to validly enacted legislation and contains no warrant for the disregard of a clearly expressed legislative intent.[13]
[13]Ibid 509-10.
The Contradictor referred to the recent decision of the New South Wales Court of Appeal in Harnett t/as Hartnett Lawyers v Bell,[14] where Bell CJ noted the following limitations on the scope of the Court’s inherent jurisdiction (omitting citations):
The inherent jurisdiction “is not confined to a situation in which there is no statute or rule of court that could possibly apply to what is to be done in that regard. The true rule is that a court may exercise its inherent or implied powers in a particular case, even in respect of matters that are regulated by a provision of a statute or rules of court, so long as it can do so without contravening any such provision”...
The court can do whatever “may be necessary to prevent any injustice occurring with respect to matters which come within its cognizance”...
The inherent jurisdiction of the court overlaps with, but is not displaced by, s 23 of the Supreme Court Act 1970 (NSW)…
On the other hand, “the inherent power and the jurisdiction conferred by s 23 of the Supreme Court Act are to be exercised only as necessary for the administration of justice”, and “the power is not at large”...
The inherent jurisdiction cannot authorise the making of orders excusing compliance with statutory obligations or preventing the exercise of authority deriving from statute...
The inherent jurisdiction does not extend to making orders simply because the court believes it would be fair to do so...[15]
[14](2023) 112 NSWLR 463.
[15]Ibid [123].
The Contradictor submitted that the Court should reject Monash IVF’s submission that because the ART Act does not disclose a sufficiently clear intention to curtail the inherent jurisdiction of the Court, this Court is empowered to make the retention order. The Contradictor submitted that this submission overlooks the fact that, by reason of the authorities referred to in the preceding paragraphs, this Court cannot authorise the breach of a statutory obligation. That the ART Act does not contain express words excluding the inherent jurisdiction or the statutory case management powers of the Court is irrelevant to the question of whether the Court is empowered to make an order which would excuse Monash IVF from compliance with its statutory obligations.
The Contradictor submitted as follows in relation to the submissions advanced by Monash IVF:
With respect, we say that's not the correct approach to adopt in this particular type of case, and it's in this particular type of case where there is a statutory obligation, and the question is whether the inherent jurisdiction is to be used in a way that would outflank, circumvent or excuse compliance with that obligation. In those circumstances, it is our submission that it is clear that the obligation imposed by statute marks a clear and unambiguous boundary that cannot be crossed.
It cannot be crossed by the inherent jurisdiction of this court. So it is not a matter of asking, ‘Well, where is the intention - either expressed in clear words or whether by necessary implication - that the inherent jurisdiction of the court is to be curtailed?’ That is not the question, because it is clear beyond doubt that the authorities say that the inherent jurisdiction of the court cannot be used to excuse compliance with a statutory obligation.
The Contradictor submitted that the Court should not make the retention order if its effect is to excuse Monash IVF from compliance with its statutory obligations. However, the Contradictor also submitted that there is a real question mark as to whether the making of the retention order would in fact excuse Monash IVF from complying with their statutory obligations under the ART Act.
The Contradictor submitted as follows:
As noted in paragraph 15 above, section 33(2)(b) of the ART Act only contains two exceptions: where the consent of all “relevant persons” has been obtained, and where the Patient Review Panel has given its approval. There is no third exception. In particular, no provision of the ART Act empowers this Court make an order excusing compliance with the requirements of section 33(2)(b).
As noted in paragraph 16 above, the Defendants do not point to, or rely upon, a provision of that kind.
Rather, the Defendants submit that the Proposed Orders, if made, would mean that they would not be “causing or permitting” the storage of the embryos in contravention of section 33(2) (and hence would not be acting in breach of that provision).
That submission is unlikely to be correct. Once the expression “cause or permit” in section 33(2) is properly construed and understood, the preferable conclusion is that making the Proposed Order would not mean that the Defendants are no longer “causing or permitting” the embryos to remain in storage beyond the five year period. Put more directly, the Defendants would still be “causing or permitting” the embryos to remain in storage beyond the five year period even if the Proposed Order were made.
After discussing the proper construction of the words ‘cause or permit’ having regard to the text, context and purpose of the ART Act, the Contradictor submitted that:
(a) in relation to the text of s 33(2) of the ART Act:
Accordingly, the text of the section 33(2) supports the conclusion that a person will have caused embryos to remain in storage where they have deliberately and intentionally not removed those embryos from storage. That will be so irrespective of whether the person's act or omission was entirely voluntary.
(b) in relation to the relevant context:
That regime creates a series of offences, and it contains a series of carefully crafted exceptions. For example, there will be no contravention of section 33(2) if all the relevant consents are obtained, or if the Patient Review Panel grants an approval under section 33A. It would have been open to the Victorian Parliament to have created an exception where the conduct is otherwise authorised by law, or by an order of this Court. It did not do so. That should be taken to have been a deliberate choice.
(c) in relation to the purpose of the ART Act:
The purposes of the ART Act are set out in section 1. They include “to regulate the use of assisted reproductive technologies and artificial insemination procedures”. Part 3 of the Act sets out offences relating to the use and storage of gametes and embryos.
There is nothing in those purposes that would support an overly narrow reading of the expression “cause or permit” in section 33(2) that would have the effect of creating a new exception to the statutory prohibition contained in that section.
Applying the above to the current facts and circumstances, the Contradictor submitted as follows:
Here, there would be no difficulty in concluding that — even if the Proposed Order were made — the Defendants “caused” the embryos to remain in storage, in contravention of section 33(2) of the ART Act.
To start with, the Defendants are currently responsible for the actual physical storage and maintenance of the embryos on premises they control. Moreover, they currently retain physical control over those embryos. As a matter of common sense and ordinary language, the Defendants are currently causing the embryos to remain in storage. Noone else is doing so.
And it cannot be said that the Proposed Order, if made, would change that conclusion. If made, the Proposed Order would have been made with the knowledge of, and on the application of, the Defendants. It could not be said that the involvement or order of the Court — at the specific request of the Defendants — somehow broke the chain of causation. The Defendants (and no-one else) would retain physical control over the embryos at all times. The Defendants (and no-one else) would be storing them at all times. And the Defendants (and no-one else) would be deliberately and intentionally storing them at all times.
...
That being so, making the Proposed Order would be an exercise in futility. It should not be made for that reason.
Finally, the Contradictor submitted that, having regard to all of the above, if the consent of the owners of the stored embryos cannot be obtained in time, the appropriate course of action is for Monash IVF to apply to the PRP under s 33A(2) of the ART Act.[16]
[16]While this is not the subject of direct evidence, the Court was informed that in late 2023, an attempt was made by Monash IVF and its solicitors to seek a blanket approval from the PRP with respect to the stored embryos. However, as observed in paragraph 20 of these reasons, the legislative framework suggests that applications under s 33A of the ART Act need to be made and considered on a case by case basis.
Consideration
I shall proceed to consider the application for the retention order on the basis of the following assumptions:
(a) the inherent jurisdiction of the Court (and its co-extensive statutory powers) would permit the making of the retention order;
(b) the relevant discretionary factors weigh in favour of making the retention order, at least with respect of those stored embryos where there has been no express request by the owners of the stored embryos that they be discarded;
(c) there is likely to be a not insignificant number of instances where any attempt by Monash IVF to obtain the owners’ express consent to the ongoing storage of the stored embryos will be met with no response;
(d) making the necessary applications to the PRP on a case by case basis may well be a cumbersome and possibly unfruitful process, particularly given that the expiry of the storage period (including the grace period) for the oldest of the stored embryos is looming rapidly, and, may already have passed in recent days, and given the requirement for an applicant to establish ‘exceptional circumstances’; and
(e) there is a real risk that if the retention order is not made, potentially relevant evidence will be destroyed.
Accordingly, on balance, it would be desirable to make the retention order. However, for the reasons advanced by the Contradictor and summarised in the preceding section of these reasons, this Court is not empowered to make the retention order. The authorities[17] make it clear that the reach of the inherent jurisdiction of the Court does not extend to authorise engaging in conduct which would otherwise be a contravention of a statutory provision. Further, the principles of statutory construction do not support a contention that the express and specific provisions of Part 3 of the ART Act can be overridden by the broad, but general case management and related powers of the Court under, among other things, its inherent jurisdiction.
[17]See the authorities relied upon by the Contradictor at paragraphs 36 to 39 of these reasons.
I agree that s 33(2) of the ART Act prescribes two specific pathways for extending the storage period for stored embryos, and that the inherent jurisdiction of the Court cannot be invoked to create a third pathway. The position may well have been different had the phrase ‘or otherwise in accordance with law’ been included in s 33(2), but it was not, and I agree that this was a deliberate choice by Parliament not to do so. The fact that Parliament may not have contemplated the current situation does not, of itself, confer upon the Court jurisdiction that it otherwise does not have.
Indeed, the nomination of the PRP as the body to consider applications for extensions of time under s 33(2) of the Act, which in turn carries with it a right of review by VCAT (and, ultimately, a right to apply for leave to appeal to this Court on a question of law) tells against there being any scope for the Court’s inherent jurisdiction to intrude upon the regime established by Part 3 of the ART Act.
It is correct to say that Parliament has not expressly excluded the jurisdiction of this Court from applying to the decision making process under Part 3 of the ART Act. Indeed, by reason of the right of review of any decision of the PRP to VCAT, and ultimately a right of appeal to this Court, this Court’s jurisdiction has not been excluded. However, the Parliament has by enacting the ART Act in the form that it did, carefully and clearly prescribed the pathway by which compliance with an ART provider’s obligations under the ART Act can be relieved or excused.
Further, I agree with the Contradictor that, given that the Court cannot excuse Monash IVF from its obligations to comply with the requirements of s 33(2) of the ART Act, it would be futile to make the retention order. Indeed, Monash IVF agrees that making the retention order would not excuse any non-compliance by Monash IVF with its obligations under the ART Act, but continues to maintain its position that the retention order should be made.
Monash IVF’s position seems to be based upon its contention that, if the retention order is made, then Monash IVF would have an argument, in the event that it is prosecuted for any breach of s 33(2) of the ART Act, that it did not ‘cause or permit’ the retention of the stored embryos, because it was acting under the compulsion of a court order.
The Contradictor in their submissions expressed a view that, properly construed, the words ‘cause or permit’ did not incorporate any notion of voluntariness. And, in any event, if Monash IVF’s preferred construction was accepted, then, arguably, the Court would be required to accept that the making of the retention order would be efficacious, which would mean that, for the reasons outlined above, the retention order would be beyond power.
I agree that this Court’s determination of what construction is to be given to the words ‘cause or permit’ cannot bind another court dealing with any prosecution of any breach of s 33(2) of the ART Act. Further, given the dilemma facing Monash IVF in determining how to proceed in relation to the stored embryos, it could arguably be counter-productive for me to attempt to resolve the differences between Monash IVF and the Contradictor regarding the construction of the words ‘cause or permit’.
It is not necessary for me to do so for the purposes of the current application. I agree with the Contradictor that, if making the retention order would be effective in relieving Monash IVF from its obligations to comply with s 33(2) of the ART Act, making the retention order would be beyond power. And, if it would not be effective, making the retention order would be futile. Either way, the retention order should not be made.
The futility of making the retention order is a powerful argument against making the retention order. And, if the order cannot excuse Monash IVF from complying with the requirements of the ART Act, there are a number of policy considerations which tell against making the retention order. Chief among them is that this Court should not make orders which are ineffective. But it also seems to me that it would undermine public confidence in the administration of justice for this Court to make orders which, at first glance, fly in the face of a comprehensive statutory regime for what is essentially the convenience of parties to private litigation, no matter how significant that litigation is to the parties concerned. And further, making an order which purports to compel Monash IVF to do something which is contrary to its statutory obligations under the ART Act exposes Monash IVF to further jeopardy, being the risk of facing Court imposed sanctions if it breached the retention order should it form the view that retaining the stored embryos exposed it to an unacceptable risk of prosecution. Placing a party such as Monash IVF in an even more invidious position than it already is cannot be in the interests of justice, and may also serve to undermine public confidence in the administration of justice.
Accordingly, the application for the retention order will be dismissed. The appropriate pathway for Monash IVF, to the extent that it cannot obtain the consent of the owners of the stored embryos, is to make the necessary applications to the PRP.
Once again, I express the Court’s gratitude for the assistance provided to the Court by the Contradictor, especially upon such short notice.
SCHEDULE OF PARTIES
| S ECI 2020 04761 | |
| BETWEEN: | |
| DANIELLE BOPPING | First Plaintiff |
| MICHELLE LOUISE PEDERSEN | Second Plaintiff |
| - v - | |
| MONASH IVF PTY LTD (ACN 006 942 990) | First Defendant |
| ADELAIDE FERTILITY CENTRE PTY LTD TRADING AS REPROMED (ACN 116 453 126) | Second Defendant |
| MONASH IVF GROUP LIMITED (ACN 169 302 309) | Third Defendant |
| MONASH IVF AUCHENFLOWER PTY LTD (ACN 111 370 891) | Fourth Defendant |
| PALANTROU PTY LIMITED (ACN 111 795 692) | Fifth Defendant |
| HOBART IVF PTY LTD (ACN 610 573 889) | Sixth Defendant |
| COMPASS FERTILITY PTY LTD (ACN 130 793 583) | Seventh Defendant |
| FERTILITY AUSTRALIA PTY LTD (ACN 117 504 766) | Eighth Defendant |
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