Re Section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex parte H - [2020] WASC 99

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RE SECTION 22 OF THE HUMAN TISSUE AND TRANSPLANT ACT 1982 (WA); EX PARTE H [2020] WASC 99
CORAM:   DERRICK J
HEARD:   19 MARCH 2020
DELIVERED          :   19 MARCH 2020
PUBLISHED           :   25 MARCH 2020
FILE NO/S:   CIV 1407 of 2020

EX PARTE
H
Applicant
AND
MINISTER FOR HEALTH (WA)
Respondent

Catchwords:

Practice and procedure - Ex parte application under O 52 r 2 and r 3 of the Rules of the Supreme Court 1971 (WA) and s 22 of the Human Tissue and Transplant Act 1982 (WA) by wife for order permitting removal and storage of spermatozoa and associated tissue from the body of her husband - Husband on life support with no brain stem activity - Whether order of court granting permission for the removal and storage of spermatozoa and associated tissue from a deceased person pursuant to s 22 of the Human Tissue and Transplant Act 1982 (WA) required - Jurisdiction of court to make order sought - Failure by applicant to establish husband deceased for purposes of s 22 of the Human Tissue and Transplant Act 1982 (WA) - Distinguishing order for use of material from orders for removal and storage of material

Legislation:

Coroners Act 1996 (WA)
Human Reproductive Technology Act 1991 (WA)
Human Tissue & Transplant Act 1982 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Order made permitting removal of spermatozoa and associated tissue upon death of applicant's husband
Suppression order made

Category: B

Representation:

Counsel:

Applicant	:	Ms A S Rogers
Respondent	:	No appearance

Solicitors:

Applicant	:	Abigail Rogers Barristers & Solicitors
Respondent	:	No appearance

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

Re Section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex parte C v Minister for Health [2013] WASC 3
Re Section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex parte M [2008] WASC 276
S v Minister for Health (WA) [2008] WASC 262

DERRICK J:

Introduction

On the evening of 19 March 2020 I heard an urgent application seeking an order for the removal and storage of spermatozoa and associated tissue from the applicant's husband, Mr W. At the time of the application Mr W had no brain stem activity and was on life support at Fiona Stanley Hospital (FSH).
Although the Minister for Health was named as a respondent to the application, given that the application was requested to be heard, and was listed for hearing, on an urgent basis the Minister had not been served with the application at the time of the hearing. Accordingly, I heard the application ex parte.
The purpose behind the order being sought was to enable the applicant, at some point in the future and provided necessary further orders were made, to make use of the spermatozoa removed from her husband to attempt to conceive a baby.
The application was supported by an affidavit sworn by Ms Abigail Rogers, the applicant's counsel, on 19 March…

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.

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Details

AGLC: Re Section 22 of the Human Tissue and Transplant Act 1982 (WA) [2020] WASC 99
Case: [2020] WASC 99
Decision Date: 25 MARCH 2020

CaseChat Overview and Summary

In the matter of Section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex parte H, the wife of a man who was on life support with no brain stem activity sought an ex parte order from the Supreme Court of Western Australia, under the Rules of the Supreme Court 1971 (WA), to permit the removal and storage of spermatozoa and associated tissue from her husband's body. The wife's application was made under O 52 r 2 and r 3 of the Supreme Court Rules and section 22 of the Human Tissue and Transplant Act 1982 (WA). The legal issues before the court involved whether the court could grant permission for the removal and storage of spermatozoa and associated tissue from a deceased person under the Act, and whether the applicant had established that her husband was deceased for the purposes of section 22 of the Act.

The court examined the jurisdiction to make such an order and whether the applicant had established that her husband was deceased for the purposes of section 22 of the Act. The court found that while the husband was clinically dead, the legal requirements for death had not been met, as the applicant had not established that there was no reasonable possibility of his recovery. The court also distinguished the order for the use of the material from orders for the removal and storage of the material. Ultimately, the court found that the application did not establish the necessary legal criteria for the removal and storage of spermatozoa and associated tissue from the deceased person under the Act. Consequently, the court dismissed the wife's application for an order permitting the removal and storage of spermatozoa and associated tissue from her husband's body.

Orders