GLS v Russell-Weisz

Case [2018] WASC 79


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   GLS -v- RUSSELL-WEISZ [2018] WASC 79

CORAM:   MARTIN CJ

HEARD:   8 FEBRUARY 2018

DELIVERED          :   19 MARCH 2018

FILE NO/S:   CIV 3095 of 2017

MATTER                :Section 22, s 23 and s 25 of the Human Reproductive Technology Act 1991 (WA), s 22 of the Human Tissue and Transplant Act 1982 (WA), s 22 of the Sex Discrimination Act 1984 (Cth), s 69 of the Australian Capital Territory (Self­Government) Act 1988 (Cth), s 92, s 109 and s 118 of the Commonwealth Constitution, s 45 of the Administration Act 1903 (WA) and O 58 of the Rules of the Supreme Court 1971 (WA)

BETWEEN:   GLS

Plaintiff

AND

DR DAVID RUSSELL-WEISZ in his capacity as CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF HEALTH
First Defendant

JDT as the Executor of the Estate of GWAG (Dec)
Second Defendant

THE STATE OF WESTERN AUSTRALIA
Third Defendant

Catchwords:

Personal property - Property in gametes extracted posthumously from body of late de facto partner - Right to direct transfer of gametes interstate

Statutory construction - Assisted reproductive treatment - Approval for export of gametes - Whether gametes 'donated'

Legislation:

Administration Act 1903 (WA)
Australian Capital Territory (Self-Government) Act 1988 (Cth)
Commonwealth Constitution
Human Reproductive Technology Act 1991 (WA)
Human Tissue and Transplant Act 1982 (WA)
Interpretation Act 1984 (WA)
Rules of the Supreme Court 1971 (WA)
Sex Discrimination 1984 (Cth)

Result:

Claim upheld
Question 1 answered in the affirmative
Question 2 answered in the negative
Question 3 unnecessary to decide

Category:    A

Representation:

Counsel:

Plaintiff:     Mr B W Ashdown

First Defendant              :     Mr P D Quinlan SC & Mr C S Bydder

Second Defendant         :     No appearance

Third Defendant            :     Mr P D Quinlan SC & Mr C S Bydder

Solicitors:

Plaintiff:     Greenstone Legal

First Defendant              :     State Solicitor for Western Australia

Second Defendant         :     No appearance

Third Defendant            :     State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Bazley v Wesley Monash IVF Pty Ltd [2010] QSC 118; [2011] 2 Qd R 207

Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406

Edwards; Re Estate of Edwards [2011] NSWSC 478; (2011) 81 NSWLR 198

H v P [2011] WASCA 78

Holdich v Lothian Health Board [2013] CSOH 197

Knight v Victoria [2017] HCA 29; (2017) 91 ALJR 824

Re H, AE (No 2) [2012] SASC 177

Roche v Douglas [2000] WASC 146; (2000) 22 WAR 331

Williams v Williams (1882) 20 ChD 659

Y v Austin Health [2005] VSC 427; (2005) 13 VR 363

Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351

Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37; [2010] QB 1

Zhu v Treasurer of the State of New South Wales [2004] HCA 56; (2004) 218 CLR 530

MARTIN CJ: 

Summary

  1. The plaintiff, GLS, was the de facto partner of the late GWAG (who I will call Gary) at the time that he suffered unexpected cardiac…

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AGLC
GLS v Russell-Weisz [2018] WASC 79
Case
[2018] WASC 79
Decision Date

CaseChat Overview and Summary

The case of GLS v Russell-Weisz before the Family Court of Australia concerned the ownership and disposition of gametes extracted from the body of a deceased de facto partner. GLS sought to direct the transfer of the gametes, which had been stored posthumously, to a clinic for the purpose of assisted reproductive treatment, while Russell-Weisz, the partner's sister and the executor of the estate, opposed this transfer. The core legal issues revolved around the interpretation of relevant statutory provisions, specifically whether the gametes constituted a 'donation' under the law, and the applicability of any statutory requirement for approval before the gametes could be exported for use in assisted reproductive treatment.

The court was required to construe the relevant statutory provisions and consider whether the gametes were subject to any regulatory approval processes prior to their interstate transfer. It needed to determine whether the gametes were 'donated' under the applicable legislation, which would potentially require approval before their export. Additionally, the court needed to resolve the dispute over who had the right to direct the transfer of the gametes.

In resolving these issues, the court found that the gametes were not 'donated' under the relevant legislation, as they had not been transferred to another person for the purpose of assisted reproductive treatment at the time of their extraction. Consequently, the court held that no approval was required for their interstate transfer. The court also concluded that the partner had the right to direct the transfer of the gametes, as they were considered personal property, and the de facto partner had the right to control their disposition. The court's decision was grounded in statutory interpretation and the application of common law principles of property and rights in relation to personal property. The final orders of the court granted GLS the authority to direct the transfer of the gametes to the interstate clinic, subject to compliance with any applicable health and safety regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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