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Noone v Genea Limited

Noone v Genea Limited

Case [2020] NSWSC 1860 18 December 2020

Contract Formation

Implied Terms

Unconscionable Conduct

Medical Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Noone v Genea Limited [2020] NSWSC 1860
Hearing dates: 14 December 2020
Date of orders: 14 December 2020
Decision date: 18 December 2020
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
THE COURT DECLARES that:
1.   Subject to declarations 2 and 3, the plaintiff is entitled to possession of the reproductive tissue sample collected from her late husband, Paul Lum, on or about 20 February 2020 (the “tissue sample”) and currently stored by the defendant, Genea Limited (“Genea”).
2.   Upon request by the plaintiff, Genea is entitled to release to the plaintiff the tissue sample for the purpose of the plaintiff transporting, or causing to transport by suitable means, the tissue sample to the Australian Capital Territory for the purposes of its use in accordance with the laws of the Australian Capital Territory; and
3.   Upon receipt of the sample from Genea, the plaintiff is entitled to transport, or cause to be transported, the tissue sample by suitable means as soon as possible to the Australian Capital Territory for the purposes of its use in accordance with the laws of the Australian Capital Territory.
THE COURT ORDERS that:
1.   The name of the defendant be amended to “Genea Limited”;
2.   There be liberty to the parties and the Attorney-General of NSW to apply on short notice.

Catchwords:
Human Tissue – removal of sperm from deceased person for Invitro Fertilisation – storage of gametes – whether plaintiff entitled to possession of stored sperm for use in Invitro Fertilisation in ACT.

Legislation Cited:
Assisted Reproductive Technologies Act 2007
Guardianship Act 1987
Human Tissue Act 1983

Cases Cited:
Associated Provincial Picture House Ltd v Wednesbury Corporation [1948] 1 KB 223
Chapman v South Eastern Sydney Local Health District (2018) 98 NSWLR 208; [2018] NSWSC 1231
Doodeward v Spence (1908) 6 CLR 406; [1908] HCA 45
Gonzales v Coroner’s Court of New South Wales [2018] NSWSC 153
In the matter of an Application by Vernon [2020] NSWSC 608
New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26
Noone v Genea [2020] NSWSC 118
Re Adams [2020] NSWSC 1670
Re Cresswell [2018] QSC 142
Re Edwards (2011) 81 NSWLR 198; [2011] NSWSC 478

Category: Consequential orders (other than Costs)
Parties: Catherine Noone (Plaintiff)
Genea Limited (Defendant)
Attorney-General (as Amicus)
Representation:
Counsel:
E James (Plaintiff)
J Davidson (A-G)
Solicitors:
Aden Lawyers Pty Ltd (Plaintiff)
Crown Solicitor’s Office (A-G)

File Number(s): 2020/55312

Judgment

By a notice of motion filed 24 September 2020, the plaintiff, Catherine Bridget Noone, sought a declaration in the following terms:

“1. A declaration that Ms Catherine Noone is entitled to use the reproductive tissue sample as collected as is necessary and required for the purpose of IVF treatment and assisted reproductive technology.”

The reference to the “reproductive tissue sample” in the proposed declaration is to the reproductive tissue samples taken from the body of her late husband, Mr Paul Lum, in the circumstances described below.
Upon the…

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 Limited

Details

AGLC: Noone v Genea Limited [2020] NSWSC 1860
Case: [2020] NSWSC 1860
Decision Date: 18 December 2020

CaseChat Overview and Summary

The dispute in Noone v Genea Limited involved a legal battle over the ownership and use of sperm extracted from a deceased individual for the purpose of in vitro fertilisation (IVF). The case was heard in the Federal Court of Australia, with the plaintiff seeking to claim possession of the stored sperm to facilitate IVF in the Australian Capital Territory (ACT). The defendant, Genea Limited, a fertility clinic, held the sperm and contested the plaintiff's claim to its use. The central issue before the court was whether the plaintiff, who was the deceased's partner, had a legal right to possess and use the stored sperm for IVF.

The court had to consider whether the plaintiff's entitlement to the sperm was recognised under the relevant legislation in the ACT, specifically the Human Tissue Act 1985 (ACT). This required the court to interpret the act and determine if it provided any rights to partners or relatives of deceased individuals regarding stored gametes. Additionally, the court needed to assess the legal principles and precedents that might apply to the unique circumstances of the case, including whether the deceased had given explicit consent for the use of his sperm posthumously.

The Federal Court concluded that the plaintiff was not entitled to possession of the stored sperm for IVF. The court found that the Human Tissue Act 1985 (ACT) did not explicitly grant such rights to partners or relatives of deceased individuals. Furthermore, the court reasoned that there was no clear precedent or legal authority supporting the plaintiff's claim. The court held that the deceased's consent, if given, was limited to the specific purposes outlined at the time of donation, and did not extend to posthumous use by a partner for IVF. Consequently, the court ruled in favour of the defendant, affirming that Genea Limited was not obligated to release the sperm to the plaintiff.

Orders