Gonzales v State Coroner of New South Wales (No. 3)

[2018] NSWSC 1162

Supreme Court

New South Wales

Medium Neutral Citation:	Gonzales v State Coroner of New South Wales and Anor (No. 3) [2018] NSWSC 1162
Hearing dates:	27 July 2018
Date of orders:	27 July 2018
Decision date:	27 July 2018
Jurisdiction:	Common Law
Before:	Johnson J
Decision:	Orders made concluding the proceedings (see [11]).
Catchwords:	CIVIL PROCEDURE - urgent application by wife for sperm retrieval from deceased body of husband - order made authorising extraction and retention of sample pending further order of the Court - sample taken and retained - Plaintiff does not wish to proceed with application - orders made concluding proceedings with associated order for destruction of sample taken
Legislation Cited:	---
Cases Cited:	Gonzalez v State Coroner of NSW [2018] NSWSC 153 Gonzalez v State Coroner of NSW and Anor (No. 2) [2018] NSWSC 1093
Texts Cited:	---
Category:	Procedural and other rulings
Parties:	Carolina Gonzales (Plaintiff) State Coroner of New South Wales (First Defendant) Attorney General for New South Wales (Second Defendant)
Representation:	Counsel: Mr GR James AM QC; Mr E James (Plaintiff) Mr D Kell SC (Second Defendant)   Solicitors: AHA Taylor Lawyers (Plaintiff) Crown Solicitor’s Office (Second Defendant)
File Number(s):	2018/55022
Publication restriction:	---

Judgment

1. JOHNSON J: These proceedings were commenced by urgent application made by the Plaintiff, Carolina Gonzales, on 16 February 2018 in circumstances described in Gonzalez v State Coroner of NSW [2018] NSWSC 153.

2. As a result of orders made on 16 February 2018, a sample was obtained which has been stored since then at a facility made known to the Court pending further order of the Court.

3. On 15 March 2018, I granted leave to the Attorney General for New South Wales to intervene in the proceedings and to be joined as the Second Defendant.

4. The proceedings have been before the Court on a number of occasions and are listed for hearing on 25 September 2018.

5. The Court has been informed that the Plaintiff, for personal reasons, does not wish to continue with the proceedings. The Court is asked to make orders which would bring the proceedings to an end with an associated order that the sample presently retained be destroyed.

6. The Attorney General became a party to the proceedings, not only to assist the Court by acting as a contradictor, but also because the proceedings raised significant legal issues where an application such as that made urgently on 16 February 2018 is brought before the Court.

7. To the extent that the present proceedings may have served as a vehicle for clarification of important legal issues, I have been informed today by the Crown Advocate, who appears for the Attorney General, that some of these issues are being litigated in separate and unrelated proceedings before this Court.

8. On 13 July 2018, an issue arose concerning compliance with an undertaking to the Court to pay filing fees by the solicitors for the Plaintiff, which gave rise to the judgment Gonzalez v State Coroner of NSW and Anor (No. 2) [2018] NSWSC 1093. In light of the apology given to the Court by the solicitor for the Plaintiff, I will not refer the matter to the Law Society of New South Wales or the Legal Services Commissioner. The publication of the judgment of 13 July 2018 will serve as a reminder to the legal profession of the importance of compliance with undertakings given to a Court.

9. I note that application has been made by a representative of the media to access the Court file in these proceedings. There have been a number of applications of this type made whilst the proceedings have been on foot. In circumstances where the Court will shortly make orders which bring these proceedings to an end, and where there has been no final hearing of the matter and where no affidavits have been read in open court so that no determination of the Court is required, it seems to me to be inappropriate to grant representatives of the media access to the Court file.

10. The history of the litigation, and the position which has now been reached, will be apparent from the two earlier judgments of the Court, together with the present judgment. The fact that the proceedings were commenced, and have concluded, will be apparent sufficiently from the judgments of the Court which will be publicly available. I decline the application for access to the Court file for the reasons just given.

11. I am satisfied that the orders which the Plaintiff asks the Court to make, and which are accepted as being appropriate by the Attorney General, should be made in this case. The effect of the orders will be that the proceedings will be brought to an end, the hearing dates presently fixed will be vacated and a regime will be put in place for the destruction of the sample taken following the orders made on 16 February 2018 with the Court to be informed when that step has been taken in compliance with the order of the Court. There will be no order as to costs.

[The Court made orders accordingly].

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Decision last updated: 27 July 2018