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GLS v Russell-Weisz

GLS v Russell-Weisz

Case [2018] WASC 79 19 March 2018

Adverse Possession

Statutory Interpretation

Unjust Enrichment

Property Law

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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

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…

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.

Continue reading GLS v Russell-Weisz

Details

AGLC: GLS v Russell-Weisz [2018] WASC 79
Case: [2018] WASC 79
Decision Date: 19 MARCH 2018

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