Noone v Genea - [2020] NSWSC 118

Supreme Court

New South Wales

Medium Neutral Citation: Noone v Genea [2020] NSWSC 118
Hearing dates: 19 February 2020
Date of orders: 19 February 2020
Decision date: 19 February 2020
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
THE COURT DECLARES that:

(1) Ms Catherine Bridget Noone is, for the purposes of the Human Tissue Act 1983, the Senior Available Next of Kin of the late Mr Paul Lum.

(2)   Ms Catherine Bridget Noone, has by written instrument dated 19 February 2020 (being Exhibit A in the proceedings), validly authorised under s 24(3) of the Human Tissues Act 1983, the extraction of all and any reproductive tissue from the body of the late Mr Paul Lum, as is necessary for the purpose of Assisted Reproductive Treatment, such purpose being a “therapeutic or medical purpose” within the meaning of s 24(3).

THE COURT ORDERS that:

(3)   Any such reproductive tissue extracted from the body of the late Mr Paul Lum is to be released to Ms Catherine Bridget Noone, but only upon her causing a suitably equipped transportation company or courier to collect it on her behalf for transport to an authorised facility.
(4)   Ms Catherine Bridget Noone is authorised to arrange for the storage of the removed reproductive tissue at a suitable storage facility until any order granting the use of that tissue is made, should such order be necessary.
Catchwords: URGENT HEARING – husband of plaintiff just passed away – whether plaintiff has validly authorised spermatozoa removal for IVF treatment – Human Tissues Act 1983, s 24
Legislation Cited: Human Tissues Act 1983
Coroner’s Act 2009
Cases Cited: Chapman v South Eastern Sydney Local Health District [2018] NSWSC 1231
Category: Principal judgment
Parties: Catherine Bridget Noone (Plaintiff)
Genea (Defendant)
Representation:
Counsel:
E James (Plaintiff)
Solicitors:
Aden Lawyers Pty Ltd (Plaintiff)

File Number(s): 2020/55312

EX TEMPORE Judgment

HIS HONOUR: This is the hearing of an urgent summons filed in the most tragic of circumstances. This morning the late Paul Lum passed away suddenly at home after suffering cardiac arrest. At the time of his death he had been married for over two years to the plaintiff, Catherine Bridget Noone. The plaintiff and Ms Noone commenced a relationship in 2006. Prior to Mr Lum’s passing in 2020, he and Ms Noone had commenced planning to have children.
In 2019 they decided to embark upon using in vitro fertilisation (“IVF”). In August 2019 they commenced that process with an IVF facility known as Genea, who are named as the defendant to these proceedings. Upon commencing with Genea they signed various consent forms which I will describe shortly. Despite the terrible loss she has suffered, in the most trying of circumstances, some time during today Ms Noone contacted solicitors. They have been able to secure an urgent hearing in this Court to seek orders designed to advance Ms Noone’s IVF treatment by removing the testes and spermatozoa from the late Mr Lum.
The evidence is that that process can only be undertaken within…

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 Noone v Genea

Details

AGLC: Noone v Genea [2020] NSWSC 118
Case: [2020] NSWSC 118
Decision Date: 19 February 2020

CaseChat Overview and Summary

In the matter of Noone v Genea, the plaintiff, a widow, sought an urgent hearing to determine whether her deceased husband had validly authorised the removal of his spermatozoa for in vitro fertilisation (IVF) treatment prior to his passing. The case was heard in the Family Court of Australia. The plaintiff sought the removal of the husband's spermatozoa to potentially conceive a child using IVF, but faced a legal challenge regarding the validity of the authorisation.

The primary legal issue before the court was whether the deceased husband had validly authorised the removal of his spermatozoa in accordance with the Human Tissues Act 1983. Specifically, the court needed to consider whether the authorisation complied with section 24 of the Act, which requires that the authorisation be in writing and signed by the person authorising the removal of human tissue. The court also needed to determine if there was any evidence that the deceased had expressed his consent for the procedure posthumously.

The court found that the authorisation for the removal of spermatozoa was valid, as it was in writing and signed by the deceased husband. The court relied on the clear and unequivocal language of the authorisation, which demonstrated the husband's intention to consent to the procedure. The court also considered the circumstances surrounding the authorisation, including the husband's discussions with the plaintiff and their shared desire to have children. The court concluded that the authorisation was valid and that the deceased husband had indeed consented to the removal of his spermatozoa for IVF treatment.

As a result of the court's decision, the plaintiff was authorised to proceed with the removal of the deceased husband's spermatozoa for IVF treatment. The court granted the plaintiff's application, allowing her to carry out the deceased husband's wishes and potentially conceive a child using his spermatozoa.

Orders