In the matter of an Application by Vernon [2020] NSWSC 608

Senior Next of Kin

1. The issues in the Application revolve around the interaction between the Human Tissue Act 1983 (NSW) (hereinafter also referred to as "the HT Act") and the Assisted Reproductive Technology Act 2007 (NSW) (hereinafter also referred to as "the ART Act"). Not surprisingly, the HT Act deals with the removal of human tissue from a human, whether or not that person is alive or dead. The HT Act gives certain authority to the next of kin, in circumstances where the person from whom the tissue is to be removed, has not consented or is incapable of consenting to the removal.
2. Relevantly, next of kin is defined, for a deceased other than a child, as a person referred to in paragraph (b) of the definition of "senior available next of kin": [1] In turn, the "senior available next of kin", at paragraph (b), defines a priority of persons (all of whom would be next of kin) who would, depending upon the availability of persons above them in priority, be the senior available next of kin. Paragraph (b) of senior available next of kin is in the following terms: "(b) in relation to any other deceased person: (i) a person who was a spouse of the deceased person immediately before the deceased person's death, (ii) where the deceased person, immediately before death, had no spouse or where the deceased person had a spouse but the person who was then the deceased person's spouse is not available--a son or daughter (if any) of the deceased person, being a son or daughter who has attained the age of 18 years, (iii) where no person referred to in subparagraph (i) or (ii) is available--a parent of the deceased person, or (iv) where no person referred to in subparagraph (i), (ii) or (iii) is available--a brother or sister of the deceased person, being a brother or sister who has attained the age of 18 years."
3. Further to the foregoing, the HT Act defines "spouse" to mean a de facto partner, assuming for present purposes, that there is no more recently qualified spouse. The term "de facto partner" is defined in s 21C of the Interpretation Act 1987 (NSW), which is in the following terms: "21C REFERENCES TO DE FACTO PARTNERS AND DE FACTO RELATIONSHIPS (1) Meaning of 'de facto partner' For the purposes of any Act or instrument, a person is the 'de facto partner' of another person (whether of the same sex or a different sex) if: (a) the person is in a registered relationship or interstate registered relationship with the other person within the meaning of the Relationships Register Act 2010 , or (b) the person is in a de facto relationship with the other person. (2) Meaning of 'de facto relationship' For the purposes of any Act or instrument, a person is in a 'de facto relationship' with another person if: (a) they have a relationship as a couple living together, and (b) they are not married to one another or related by family. A de facto relationship can exist even if one of the persons is legally married to someone else or in a registered relationship or interstate registered relationship with someone else. (3) Determination of 'relationship as a couple' In determining whether 2 persons have a relationship as a couple for the purposes of subsection (2), all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case: (a) the duration of the relationship, (b) the nature and extent of their common residence, (c) whether a sexual relationship exists, (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them, (e) the ownership, use and acquisition of property, (f) the degree of mutual commitment to a shared life, (g) the care and support of children, (h) the performance of household duties, (i) the reputation and public aspects of the relationship. No particular finding in relation to any of those matters is necessary in determining whether 2 persons have a relationship as a couple. (4) Meaning of 'related by family' For the purposes of subsection (2), 2 persons are 'related by family' if: (a) one is the child (including an adopted child) of the other, or (b) one is another descendant of the other (even if the relationship between them is traced through an adoptive parent), or (c) they have a parent in common (including an adoptive parent of either or both of them). (5) Subsection (4) applies: (a) even if an adoption has been declared void or is of no effect, and (b) to adoptions under the law of any place (whether in or out of Australia) relating to the adoption of children. (6) Subsection (4) applies in relation to a child whose parentage is transferred as a result of a parentage order, or an Interstate parentage order, within the meaning of the Surrogacy Act 2010 in the same way as it applies in relation to an adopted child, even if the parentage order is discharged or otherwise ceases to have effect. For that purpose, a reference in that subsection to an adoptive parent is to be read as a reference to a person to whom the parentage of a child is transferred under such a parentage order."
4. As can be seen from the foregoing, a person is a de facto partner of another, if the two persons are in a de facto relationship. By s 21C(2) of the Interpretation Act, de facto relationship is defined as existing with another person if, relevantly to the issues in these proceedings, "they have a relationship as a couple living together".
5. In s 21C(3), the legislature sets out certain criteria that are required to be taken into account in determining whether the two persons have or had a "relationship as a couple". Those criteria are set out above and it is unnecessary to repeat them. Nevertheless, it is important to note that the criteria set out in the sub-paragraphs to s 21C(3) are not exhaustive and the Court, in the present proceedings, is required to consider "all the circumstances of the relationship" including the matters that are prescribed.
6. Before the Court, there is evidence in an Amended Affidavit of the Applicant sworn 15 May 2020, which describes their relationship. The circumstances of that relationship are corroborated in an Affidavit of the deceased's father, Stephen Katrakilis, sworn 14 May 2020.
7. Stephen Katrakilis is 68 years of age and attests to the fact that he is swearing the Affidavit on his own and his wife's behalf, she having authorised him so to do. He met the Applicant on about 4 May 2017, when she was brought to the family home for dinner by his now deceased son.
8. Stephen Katrakilis attests to the fact that the relationship between them grew and that she was accepted, by them, and it seems others, as the deceased's partner. This was certainly the case in relation to other members of their large extended family and their circle of friends.
9. The Applicant had been treated as part of their family, invited to family gatherings such as the deceased's grandmother's 90th birthday and the weddings of various friends. The Applicant attended social engagements as a member of the family, accompanied the family on their holidays at their beach house on the South Coast, particularly, during the Christmas and Easter holidays and weekends away.
10. Because of the deceased's working hours, the Applicant would stay home and have family dinners with the deceased's parents, while the deceased was then working. During the last Christmas/New Year holidays, the Applicant and the deceased were assisting with fighting fires that threatened the parents' holiday home.
11. The Applicant and the deceased were at a party on 25 January 2020, when the Applicant collapsed. The party was a family celebration of the deceased's cousin's daughter's birthday. The Applicant conducted CPR on the deceased and the deceased was rushed to St George Hospital.
12. The Applicant has had her own medical issues. She was diagnosed with breast cancer and surgeons performed a double mastectomy and reconstruction over a period of approximately three years.
13. The deceased had established his own business, which caused added stress to him, over and above the illness suffered by the Applicant, and each of them continued to support each other with the difficulties they were facing during that stressful period. Nevertheless, because of the work commitments and the surgery, the couple lived together intermittently during that time and continued to see each other regularly, but were not living on a permanent, full-time basis with each other.
14. On 7 April 2017, the deceased decided to leave his own business and on 30 April 2017 made their partnership official by meeting each of the sets of parents.
15. Apart from the time spent with each other on holidays and regularly at other times, each of the Applicant and the deceased had difficulties as a result of the different illnesses of their fathers. The Applicant's father has Cerebral Palsy and the deceased's father has Parkinson's disease. This, it seems on the evidence before the Court, was the only reason that they were not living together on a permanent full-time basis.
16. Nevertheless, at the end of 2019, the Applicant and the deceased decided to rent premises in Kogarah, which was close to each of their parents' home. They also decided that, they would become "formally engaged" and they would marry and commence IVF as soon as the Applicant completed the probationary period with her new employer in 2020.
17. During the course of that process, the deceased collapsed, as earlier stated, and, on 14 May 2020, died. The IVF was necessary because of the Applicant's illness and the narrowed window of opportunity for her pregnancy. This last factor also informs the Court's exercise of discretion.
18. Bearing in mind the foregoing, it is clear that the relationship between the Applicant and the deceased was an ongoing relationship from at least 2013, which was formalised and made public, categorised as "partners", in 2017. They were involved in a sexual relationship, in which there was financial dependence or interdependence and the arrangements for support went well beyond financial support to support during times of illness and with unwell parents.
19. They were each committed to a shared life and the reputation and public aspects of relationship were plainly that the Applicant and the deceased were partners. There is, in some way, a double counting of one factor under s 21C of the Interpretation Act.
20. A person is a de facto partner under s 21C(1) of the Interpretation Act, if the person is in a de facto relationship with the other person. The person is in a de facto relationship if they have a relationship as a couple living together and are not married.
21. The requirement that they be living together is also a criterion, prescribed by s 21C(3)(b) of the Interpretation Act, to be considered in determining the existence of a relationship as a couple. As a consequence, the nature and extent of their common residence is both a factor in determining whether the relationship as a couple exists and, quite separately, is required in order for the person to be in a de facto relationship and therefore a de facto partner.
22. The terms of s 21C(3)(b) of the Interpretation Act indicate that one can be in a de facto relationship as a couple even though the common residence is not "permanent". Reading this section as a whole and bearing in mind the purposes to which it is directed, it seems, on the face of it, that the term "living together", where used in s 21C(2)(a) is deliberately imperfect, in the grammatical sense. In other words, it requires continuity and not a past completed, act. Further, it seems that it does not require permanent, ongoing, cohabitation for all purposes.
23. The relationship between the Applicant and the deceased was one in which they lived together and continued to live together, from time-to-time, in circumstances where the periods during which the couple did not live together, were not as a result of any break in the relationship. As a consequence, on the facts before the Court, I consider that the relationship between the Applicant and the deceased was a de facto relationship and the Applicant is, or was immediately before the deceased's demise, his de facto partner. On one view of the issues before the Court, the foregoing is not essential. Even though the deceased's father, on his and his wife's behalf, attest to their view that the Applicant and the deceased were in a de facto relationship, each of them have delegated and nominated the Applicant as the senior next of kin for the purposes of the HT Act.
24. However, there are complications associated with such a delegation and the delegation by the deceased's parents does not render the delegatee the next of kin, but, rather, authorises the delegatee to exercise the functions on behalf of the next of kin. However, there is a tension between the wording of s 5A(1) and s 5A(2)(c) of the HT Act, which, given the conclusion as to de factor and spouse, it is unnecessary to resolve. If the parents were the next of kin, different capacities arise, particularly in relation to the operation of the ART Act.

The Human Tissue Act (HT Act)

1. As a consequence of the foregoing conclusion that the Applicant was the de facto partner of the deceased and the existence of a written instrument authorising the extraction of the reproductive tissue, I made the declarations in orders (1) and (2) of the orders made on 15 May 2020. It should be noted that the consent of the Applicant, dated 15 May 2020, was tendered to the Court, addressed to the relevant medical practitioner Dr Lok, and signed by the Applicant. The consent was in the following terms: "ALEXANDER KATRAKILIS - DATE OF BIRTH 17 MAY 1984, DECEASED ON 14 MAY 2020 I, Melissa Aynsley Vernon, being the senior next of kin, hereby authorise the extraction of such reproductive tissue of the late Alexander Katrakilis as is deemed necessary for the purpose of and sole usage for IVF." As stated, the consent was signed and it was dated 15 May 2020.
2. It is appropriate to note that s 5A of the HT Act seems to deem the delegatee of the next of kin to be a next of kin at the same level as the delegator. Nevertheless, the delegatee is exercising the functions of the delegator. Further, it should be noted that s 4(2A) of the HT Act expressly includes ova and semen as tissue, unless the context or subject-matter otherwise indicates or requires. In my view, this definition, which includes ova and semen in the term "tissue", is an important factor in resolving the issues that have arisen in this proceeding. In these reasons the terms "semen, "sperm" and "spermatazoa" are used interchangeably.
3. Part 4 of the HT Act deals with the removal of tissue after death. Section 23 of the HT Act deals with the removal of tissue while the body is at a hospital, and s 24 of the HT Act deals with the removal of tissue where the body is not at a hospital.
4. At the time that the Court was required to deal with the application, s 24 of the HT Act applied. As already indicated, the HT Act deals with all tissue and the donation of organs. As a consequence, there are a number of provisions that are plainly directed at the donation of organs for therapeutic purposes or medical or scientific purposes.
5. The terms of s 24(3) of the HT Act deal with the capacity of a senior available next of kin to authorise a removal of tissue from a deceased person's body. Such removal must be for the purpose of "its transplantation to the body of a living person, or its use for other therapeutic purposes or for medical purposes or scientific purposes".
6. There are limitations on the power of the senior available next of kin to authorise removal of tissue in understandable circumstances, such as, circumstances where the deceased had expressed an objection to the removal of tissue. Subsection 24(3) of the HT Act is in the following terms: "24 AUTHORITY TO REMOVE TISSUE WHERE BODY OF DECEASED NOT AT A HOSPITAL … (3) If the body of a deceased person is at a place other than a hospital, a senior available next of kin of the person may, by instrument in writing or in any other manner prescribed by the regulations, authorise the removal of tissue from the deceased person's body for the purpose of its transplantation to the body of a living person, or its use for other therapeutic purposes or for medical purposes or scientific purposes."
7. By operation of s 27 of the HT Act, an authority signed by the senior available next of kin is sufficient authority, relevantly, for a medical practitioner to remove tissue from the body of the deceased person.
8. Section 35 of the HT Act indemnifies or renders unactionable the carrying out of a procedure that is authorised under the Act, except in relation to negligence in the carrying out of a procedure. On the other hand, s 36 of the HT Act creates a criminal offence for a person to remove tissue from the body of another person, including a deceased, except in accordance with a consent authority that is sufficient for the removal of the tissue. As a consequence, the determination of whether authority has been given is an important aspect of the functions of the person carrying out a procedure, because, in the absence of such authority, it would be a criminal offence to remove tissue.

The Assisted Reproductive Technology Act (ART Act)

1. As earlier stated, one of the major issues in these proceedings is the relationship between the ART Act and the HT Act. It is necessary to deal with and recite or summarise some of the terms of the ART Act.
2. First, it is necessary to deal with some of the definitions under s 4(1) of the ART Act. The ART Act defines an "ART provider" as any person who provides ART services. Then, the ART Act defines "ART service" to mean: "any one or more of the following services, treatments or procedures that is [sic] provided for fee or reward or provided in the course of a business (whether or not for profit): (a) an ART treatment, (b) the storage of gametes and embryos for use in ART treatment, (c) the obtaining of a gamete from a gamete provider for use in ART treatment or for research in connection with ART treatment."
3. The ART Act also defines "ART treatment" to mean: "assisted reproductive technology treatment, being any medical treatment or procedure that procures or attempts to procure pregnancy in a woman by means other than sexual intercourse, and includes artificial insemination, in-vitro fertilisation, gamete intrafallopian transfer and any related treatment or procedure that is prescribed by the regulations."
4. A "gamete" is defined to mean a human sperm or a human ovum and a "gamete provider", in relation to a gamete, means "the individual from whom the gamete has been obtained and, in relation to an embryo, means an individual from whom a gamete used to create the embryo was obtained." The provisions of s 4B of the ART Act deal with the definition of a "donated gamete" which: "(a) is a reference to a gamete donated by a gamete provider for use by a person other than the gamete provider or the gamete provider's spouse, and (b) includes a reference to a gamete used to create a donated embryo (whether or not the gamete was originally obtained from the gamete provider as a donated gamete and whether or not the embryo was originally created for use as a donated embryo)".
5. Further, a "donated embryo" is a reference to: "an embryo donated after its creation for use by a person who is not: (a) one of the gamete providers from whom the gametes used to create the embryo were obtained, or (b) the spouse of one of those gamete providers."
6. The provisions of s 12 of the ART Act require counselling to be available and the provisions of s 13 of the ART Act specify the information which must be available to certain persons and differentiates, in the Table thereto, between a person proposing to provide a gamete (other than as a donated gamete), on the one hand, and, on the other hand, a person proposing to provide a donated gamete.
7. Criminal offences are created by ss 19, 21, 22 and 25 of the ART Act, amongst other provisions. The offence described in s 19 is committed by an ART provider who provides ART treatment to a woman using a gamete in circumstances where the gamete provider has not consented. The offence described by s 21 of the ART Act renders it illegal for an ART provider to supply a gamete or an embryo to another person, including another ART provider, where the gamete provider has not consented. The provisions of 22 of the ART Act make it an offence for the ART provider to export, or cause to be exported, a gamete or an embryo, except with the consent of the gamete provider and in a manner that is consistent with the gamete provider's consent. Export, for the purposes of s 22 of the ART Act, means export from the State.
8. Lastly, s 25 of the ART Act renders it a criminal offence for an ART provider to store a gamete or an embryo, except with the consent of the gamete provider and in a manner that is consistent with the gamete provider's consent. As earlier explained, the consent of the gamete provider must be in writing (see s 17 of the ART Act), which impacts the reference to consent in each of the criminal sanctions to which earlier reference has been made. Further, by operation of s 17A and s 17B of the ART Act, the identity of the person giving the consent and other relevant particulars are required to be verified and confirmed.
9. The ART Act was first promulgated in 2007. The provisions of s 4(2A) of the HT Act were in existence at least as at 1 November 2003. As a consequence, at the time of the promulgation of the Assisted Reproductive Technology Act, the Human Tissue Act expressly defined human tissue to include that which, in the ART Act, would be defined as a gamete.
10. Further, at the date of the promulgation of the ART Act, the HT Act expressly permitted the removal of semen from a deceased. It did so in terms that did not relevantly qualify the capacity of the senior available next of kin to consent to the removal of semen, provided (irrelevantly for present purposes) the person from whom the semen is removed has not objected.
11. Further again, and by comparison, the HT Act defines the donor, in relation to blood, to mean "the person from whom the blood has been removed". There is no further definition of donor in the HT Act or equivalent definition in the ART Act.
12. In contrast, the ART Act defines a donor to mean "the gamete provider from whom a donated gamete has been obtained". Given that each of the statutes deal with the same subject matter, in different ways, it must be assumed that the legislature was aware of the terms of the HT Act at the time it promulgated the ART Act.
13. The difference between the use of the term "removed" and "obtained" is significant, and, in this case, crucial.
14. Where, as here, one is required to construe the terms of two statutes, each of which has been promulgated by the same legislature, one is required to facilitate the primary object of statutory construction, namely, to construe the relevant provisions so that they are consistent with the language and purpose of all of the provisions of the statue, and, in this case, both statutes. [2] As the High Court explained in Project Blue Sky, supra, a legislative instrument is construed on the primary basis that its provisions are intended to give effect to harmonious goals. Conflict between the provisions of the one piece of legislation are alleviated by adjusting the meaning of the competing provisions so that the statute achieves the result that will best give effect to the purpose and language of the provisions "while maintaining the unity of all the statutory provisions". [3]
15. It is a long-standing principle of the construction of statutes that are in pari materia [4] that they should be construed together so that inconsistencies in one statute may be resolved by looking at another statute on the same subject. I am not here referring to statutory definitions. [5]
16. Where two statutes deal with the same or similar subject matter and together form the scheme of legislation to be prescribed, it is appropriate to look at each of the statutes in construing the expression in any one of them. [6]

Previous Judgments of the Court

1. The Court has been referred to two previous judgments of this Court, dealing with the capacity of the Court to make the declarations that have been made. The first, in time, is the judgment of Fagan J of 10 August 2018, being Chapman v South Eastern Sydney Local Health District. [7] The second is Noone v Genea, [8] a judgment of Beech-Jones J.
2. In somewhat similar circumstances to the manner in which the Court as presently constituted was required to deal with the matter, the judgment of Beech-Jones J was delivered ex tempore and dealt with the urgent hearing of the application to remove sperm from the plaintiff's deceased husband. In Chapman, Fagan J did not have the degree of urgency faced either by Beech-Jones J or by me. In the case of Chapman, the hearing occurred on 6 July 2018 and orders were made on 10 August 2018.
3. The Reasons for Judgment of Fagan J were made in the context that urgent orders had been made, on an earlier occasion, by Garling J and it was necessary for Fagan J to deal with the subsequent provision of the semen obtained as a consequence of the orders of Garling J. His Honour Justice Fagan held that, with the benefit of consideration and hindsight, the orders, made or issued by the Court on an urgent basis in that proceeding, should not have been made. While much of his Honour's discussion is obiter dicta, I am grateful for the consideration and analysis that his Honour published. At [58] and following, Fagan J dealt with the extraction of sperm (a subset of gamete) removed from the body of the deceased.
4. Essentially, his Honour held, as, with respect, he was required so to do, that the removal of sperm was, unless the provision was read down, a matter governed by the terms of ss 23 and 24 of the HT Act. However, his Honour concluded that s 23, and presumably s 24, of the HT Act was required to be read down so that it did not empower a designated officer to authorise the removal of sperm from the body of a deceased person who had not given written consent, because as soon as it was removed, the removal, transfer and storage would constitute an offence under s 36(1) of the HT Act, under s 81C of the Crimes Act 1900 (NSW), and and/or, subject to issues associated with bailment, under ss 19, 21, 22 and 25 of the ART Act.
5. His Honour Fagan J, with great respect, and without seeking to oversimplify his Honour's lengthy and learned analysis, came to the conclusion that s 25 of the ART Act was immediately engaged when the deceased person had not given written consent for removal of tissue and rendered a person, acting under authorisation of an authorised officer (and, presumably, the senior available next of kin under s 24) immediately and as a consequence to be in breach of s 25 of the ART Act. In order to arrive at that conclusion, his Honour was required to define the term "gamete provider" as relating to the person from whom the gamete was removed.
6. The entire analysis leading to his Honour's conclusion as to illegality depends upon the proposition that a person cannot lawfully be in possession of a gamete nor be a "gamete provider" unless the person is the one from whom the gamete was removed. With great respect to his Honour, I do not consider that the term is so confined.
7. While the person from whom a gamete is removed is plainly included in the definition of "gamete provider", there is no reason that a person otherwise lawfully in possession of a gamete, who provides consent in writing in accordance with the ART Act, is not a "gamete provider" to the ART provider under the ART Act.
8. In Noone, supra, as earlier stated, Beech-Jones J granted urgent orders in similar terms to those granted by me on 15 May 2020. In doing so, his Honour adopted the course often or usually adopted by the Court in dealing with these urgent applications, namely, holding that the Court had jurisdiction and power to make the orders in question. His Honour Beech-Jones J was referred to the judgment of Fagan J in Chapman, supra. He described the effect of the judgment in Chapman in the following terms: "[4] At the outset it should be noted that the legal framework within which this matter comes to be decided is significantly different from that addressed by Fagan J in Chapman v South Eastern Sydney Local Health District [2018] NSWSC 1231 ('Chapman'). [5] Chapman concerned the circumstance where orders had been made for the recovery of sperm from the late Mr Chapman while he was still alive but on life support. Section 24 of the Human Tissues Act 1983 was not engaged. In Chapman, Fagan J later concluded that s 36 of the Human Tissues Act meant that orders should not have been made in that case for the removal of testes and spermatozoa from the late Mr Chapman."
9. With great respect to Beech-Jones J, I accept his analysis of s 36 of the HT Act. According to Fagan J, removal of sperm from a deceased resulted in an offence under s 36 of the HT Act. But s 36 of the HT Act contains its own "exception", in that it prohibits the removal of tissue (which correctly is considered by both Fagan J and Beech-Jones J to include a gamete) "except in accordance with a consent or authority that is, under this Act, sufficient authority for the removal of the tissue by the firstmentioned person". Section 24 of the HT Act provides for that consent. So too would s 23 of the HT Act, if the body of the deceased was still at the hospital. [9]
10. Before considering the effect of all of the foregoing and stating the basis upon which the conclusion was reached that the Court, as presently constituted, had jurisdiction and power to make the orders sought, it is necessary to deal, briefly, with the effect of prior judgments.
11. The High Court, in Farah Constructions Pty Ltd v Say-Dee Pty Ltd [10] was required to deal with differing statements, including statements by the New South Wales Court of Appeal, relating to restitution-based liability and noted that it had been the cause of some confusion amongst trial judges. In the course of the reasons of the High Court, their Honours [11] said: "Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong. Since there is a common law of Australia rather than of each Australian jurisdiction, the same principle applies in relation to non-statutory law." [12]
12. The Attorney has provided reference to a number of judgments of this Court and of other courts. All of the judgments to which the Attorney has referred, save one, are single instance judgments. None are "binding", but, as a matter of comity, should not be departed from readily.
13. Each of the single instance judgments deal, at least in part, with whether sperm or other tissue is or can be "property" and the subject of ownership. Each of the single instance judgments refer to and rely on the judgment of the High Court in Doodeward v Spence [13] , as stating the common law of Australia with respect to the ownership of a dead body.
14. The judgments to which I have had recourse are Re Cresswell, [14] Chapman, supra; Noone, supra; and Re Section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex Parte C. [15] Doodeward, is the exception to which earlier reference was made, dealing with single instance judgments. It is appropriate to deal with Doodeward in some detail.
15. The judgment in Doodeward concerned ownership of a preserved body, which was stillborn and was born with two heads. The subject matter of the action was an action in detinue for the seizing by an Inspector of Police of the still-born two-headed child, which the appellant had possessed for some years. One of the issues discussed by the High Court was whether there could be property in a dead body. However, the answer to that question was not given in quite the terms that have, from time to time, been suggested.
16. Chief Justice Griffith dealt with authorities, referred to in support of the decision below, which related to human bodies awaiting burial. The learned Chief Justice analysed those judgments and came to the conclusion (at p 412) that "it does not follow from the mere fact that a human body at death is not the subject of ownership that it is for ever incapable of having an owner. If that is the law, it must have some other foundation".
17. The Reasons for Judgment of Griffiths CJ then dealt with the fundamental principles that underpin such a principle. His Honour dealt with the notion that, after burial, the corpse forms part of the land in which it is buried and right of possession goes with the land. His Honour Griffiths CJ, then said at pp. 412-414: "I do not, myself, accept the dogma of the verbal inerrancy of ancient text writers. Indeed, equally respectable authority, and of equal antiquity, may be cited for establishing as a matter of law the reality of witchcraft. But in my opinion none of the authorities cited afford any assistance in the present case. We are, therefore, free to regard it as a case of first instance arising in the 20th century, and to decide it in accordance with general principles of law, which are usually in accord with reason and common sense. The foundation of the argument for the respondent must he that the continued possession of an unburied human body after death by any one except for the purpose of burial is necessarily unlawful. If it is, it follows that no action can be founded upon a disturbance of that possession. But, if it is not necessarily unlawful, then in my opinion it equally follows that, in any case in which the possession is lawful, the law will by appropriate remedies redress any such disturbance. The very term 'lawful possession' connotes a right to invoke the law for its protection. A lawful possession which does not involve any right cognizable by law is a contradiction in terms. … … So far as any argument is based upon the ecclesiastical law as part of the common law' it is sufficient to say that that part (if it be a part) of the common law was never in force in Australia. The question whether the possession of a corpse is injurious to the public health is manifestly not an abstract question of law, but a concrete question of fact, depending upon the circumstances of the particular case. … It is idle to contend in these days that the possession of a mummy, or of a prepared skeleton, or of a skull, or other parts of a human body, is necessarily unlawful; if it is, the many valuable collections of anatomical and pathological specimens or preparations formed and maintained by scientific bodies, were formed and are maintained in violation of the law. In my opinion there is no law forbidding the mere possession of a human body, whether born alive or dead, for purposes other than immediate burial. A fortiori such possession is not unlawful if the body possesses attributes of such a nature that its preservation may afford valuable or interesting information or instruction. If the requirements of public health or public decency are infringed, quite different considerations arise. To apply these principles to the present case. Neither public health nor public decency is endangered by the mere preservation of a perhaps unique specimen of malformation. … In my opinion it is not contra bonos mores to retain such a specimen unburied. If one medical or scientific student may lawfully possess it, he may transfer the possession to another. Nor can the right of possession be limited to students. The manner of use may be controlled, but the possession is not of itself unlawful. If, then, there can, under some circumstances, be a continued rightful possession of a human body unburied, I think, as I have already said, that the law will protect that rightful possession by appropriate remedies. I do not know of any definition of property which is not wide enough to include such a right of permanent possession. By whatever name the right is called, I think it exists, and that, so far as it constitutes property, a human body, or a portion of a human body, is capable by law of becoming the subject of property. It is not necessary to give an exhaustive enumeration of the circumstances under which such a right may be acquired, but I entertain no doubt that, when a person has by the lawful exercise of work or skill so dealt with a human body or part of a human body in his lawful possession that it has acquired some attributes differentiating it from a mere corpse awaiting burial, he acquires a right to retain possession of it, at least as against any person not entitled to have it delivered to him for the purpose of burial, but subject, of course, to any positive law which forbids its retention under the particular circumstances."
18. The extensive recitation of the passage from the Reasons for Judgment of Griffiths CJ is necessary because judgments have concentrated on two passages in the foregoing, which, in my opinion, are not the rationale of the judgment. First, concentration has been placed on the passage which deals with possession not being unlawful "if the body possesses attributes of such a nature that its preservation may afford valuable or interesting information or instruction". Further, concentration has been placed on the words in the judgment that make clear that when a person has by the lawful exercise of work or skill so dealt with a human body or part of the human body in its lawful possession that it has acquired some attributes differentiating it from a corpse awaiting burial, that person acquires a right to retain possession of it. Thus, it has generally been stated that Australian common law recognises that a human body cannot be the subject of lawful possession unless some work or skill has been applied to it to make it property. With respect, that is not what Griffiths CJ has said.
19. Once work or skill is applied to the human body to create something which differentiates it from a corpse awaiting burial, property is acquired and that, in my opinion, is the rationale of the Reasons for Judgment of Griffiths CJ. Applying that principle to these circumstances, the removal of semen from a dead body necessarily creates property in the semen because the semen is, at least initially, part of a human body, which has, by its removal, acquired attributes differentiating it from a mere corpse awaiting burial. The semen, once removed from the body, is property.
20. The Reasons for Judgment of Barton J in Doodeward are to the same effect. After pointing out that the law of England renders anyone who prevents the burial of any dead body or who without authority (and I stress without authority) neglects or dissects the human body has committed a misdemeanour, his Honour then asks the following rhetorical question at p.416 about a body that had been preserved: "If it were ever a corpse awaiting burial, was that a correct description of it when the plaintiff's possession of it was interfered with? It had then been in a state of preservation for thirty-nine years. … To take the simplest test, is it possible to affirm that the meaning conveyed by the term 'unburied corpse' to one who had never seen such an object as this, would include it?"
21. His Honour, Barton J, then, at p 417, notes that he had read the Reasons for Judgment of the Chief Justice and entirely agreed with it. The third member of the Court, Higgins J, dissented on the basis that there cannot be and never has been "any right of property or of possession … in corpses". [16] His Honour stated that the right of burial was a common law right and not merely an ecclesiastical right and distinguished the situation of a mummy on the basis that it had been turned into something very different than a human corpse by the skill of the embalmer. Even the dissenting judgment of Higgins J, provides room for the ownership of semen, once removed from a human body awaiting burial. Further, the right to remove the semen is no longer governed by the common law, it is governed by the terms of the HT Act, as aforesaid.
22. In other words, the reliance by the Attorney on the sperm not becoming property until it is "cryopreserved", relying as it does on the statements of Fagan J in Chapman, is, in my opinion and with respect to Fagan J, not correct. On the authority, by which the Court, as presently constituted, is bound, of the High Court judgment in Doodeward, once the sperm is removed from the body, it is, by that process, separated from a human body awaiting burial and possesses attributes, separate from that human body, and able to be the subject of ownership.

Consideration

1. From the foregoing, it can be concluded that the sperm, immediately upon its removal from the deceased body is and can be property. It is unnecessary for the Court to deal with the ownership of the property, beyond that which it has already considered.
2. It may well be, if there were an executor to a will, that the property passes to the executor. No one suggests that the ownership rests in a person other than the Applicant in these proceedings.
3. An inference is available that all of the available beneficiaries of any will are aware of these proceedings and consented to the arrangement whereby the semen would be treated in accordance with the wishes of the Applicant. But it matters not. On any analysis, either the Applicant is entitled to the property or the parents, or someone else, are so entitled. The parents have passed that property to the Applicant. The Court is not dealing with the rights of ownership as against a party claiming superior title.
4. Further, it is unnecessary for the Court to deal with the situation where the semen was removed from a living person. It would seem, without having heard the parties on the issue, that the semen may well continue to belong to the unconscious person. I assume the person would be unconscious because, if he were not, then he would or could have either granted or refused consent and the ART Act would operate on that consent or objection.
5. It is appropriate that I restate that having determined that the Applicant is the senior available next of kin, her authority, a copy of which is before the Court, is sufficient to entitle an appropriately qualified medical practitioner, being an ART provider, to remove the semen from the deceased, pursuant to the terms of s 24 of the HT Act. In doing so, the Applicant would be, as determined by both Fagan and Beech-Jones JJ authorising its removal for "other therapeutic … medical … or scientific purposes".
6. Once removed, the semen (which is included in the term "gamete") becomes the property of the senior available next of kin, while the ART provider, who is undertaking the task of removing the semen from the deceased, is doing so at the behest of, with the authority of and on behalf of the senior available next of kin. At no time does the semen become the property of the ART provider who removes it. Further, the "ownership" by the senior available next of kin would be subject to any claim of superior title.
7. From the time of its removal, the senior available next of kin, being, in this case, the Applicant, becomes the lawful owner of the property. It may be that another, for example the executor of the estate of the deceased, has higher priority, but, in the absence of a claim by a third party with superior title, the senior available next of kin is entitled to ownership and, at the very least, lawful possession. In circumstances where the senior available next of kin has lawful possession of the semen, that person is included in the term "gamete provider" in the ART Act.
8. I reiterate that the ART Act defines a "gamete provider" as the person "from whom the gamete has been obtained" and not, as the HT Act defines "donor" to mean, in relation to blood, the person from whom the blood "has been removed". Thus, on its ordinary construction, a gamete provider may change and there may be a chain of ownership or lawful possession of the gamete.
9. In those circumstances, the ART providers, being the transportation company and the person providing or seeking to procure pregnancy in the Applicant, have the consent of the gamete provider under ss 19, 20, 21, 22, and 25 of the ART Act. No criminal conduct is involved and no inconsistency arises in the scheme produced by the express authority of the senior available next of kin to remove the semen under the HT Act and the operation of the ART Act. All of the other provisions of the ART Act requiring consent, then fall to be determined in the same way as the provision to which mention has just been made.
10. The only other provision which requires attention is the prohibition in s 23 of the ART Act. The provisions of s 23 seem, on their face, to deal with the gamete provider as one restricted to the person from whom the gamete was removed. However, that is not necessarily the situation.
11. One must ascertain the purpose of s 23 of the ART Act. Since the ART provider must have given consent for the use of the gamete for ART treatment to occur at all, the provisions of s 23 of the ART Act must be dealing with something other than the existence of consent.
12. It seems that consent for use after death is treated differently from consent for use of a gamete before death. Thus, a gamete provider who consents to the use of the gamete during his or her life is not, without more, assumed to have consented to the use of the gamete upon death. If that be the purpose, which, in my view it is, then treating the gamete provider as a subsequent provider in lawful possession, who has obtained the gamete lawfully after the death of the person from whom it was removed, does not qualify the harmonious goals otherwise achieved by the use of the term in that broader manner. It also provides consistency in the operation of ss 23 and 24 of the HT Act and s 23 of the ART Act.
13. I am indebted to the Reasons for Judgment of Edelman J in Ex Parte C, supra, which refers to a number of monographs and reasons for judgment in Australia and overseas. His Honour came to the view that there was power and jurisdiction in the Court to remove sperm from a deceased body and allow it to be used for the purposes of ART treatment, or its Western Australian equivalent.
14. During the course of the proceedings, I raised with counsel for the Attorney the validity or otherwise of a prohibition on exporting gametes out of New South Wales that is contained in the ART Act. The question raised by the Court was the extent to which such a prohibition could survive the provisions of s 92 of the Australian Constitution.
15. No party raised the issue of the constitutional validity of the provision. The gamete in question was to be taken to the Australian Capital Territory. Counsel for the Attorney submitted that, if that were a significant issue for the Court, then it would be necessary to adjourn and give notice under s 78B of the Judiciary Act 1903 (Cth) and follow the procedure prescribed in relation to such notice and the ensuing proceedings.
16. On its face, the provision of ART treatment by ART providers is a provision of commercial services that would be in trade or commerce. The transport of the material would, at least, be interstate intercourse. It would seem, on its face that a prohibition on the export of gametes out of New South Wales is a matter that, at least arguably, may impinge upon the provisions of s 92 of the Constitution.
17. Notwithstanding that preliminary view, the nature of the case, as already outlined, was such that the matter needed to be dealt with to finality urgently and without delay and therefore the Court proceeded, pursuant to the terms of s 78B(5) of the Judiciary Act.
18. It has been argued that orders of this kind are final and not interlocutory. Orders of this kind are final in effect, but interlocutory in nature in that they do not deal finally with the rights of the parties, although the effect may be that no further proceedings are required. [17]
19. The circumstances with which Fagan J was required to deal make that clear. Garling J dealt with the interlocutory hearing in Chapman and issued orders on 28 March 2018, which allowed for the removal of the sperm and its storage and Fagan J dealt with the use of the stored reproductive tissue.
20. Similarly, the orders issued by the Court in these proceedings, on 15 May 2020, allowed for the extraction of the sperm and its storage and provided for any further order granting some person the ability to use that tissue. The proceedings being interlocutory, and not finally disposing of the rights of the parties, the provisions of s 78B(5) of the Judiciary Act apply and it was unnecessary, given the urgency, for the Court to adjourn.
21. The purpose of the orders made was to allow for the extraction and storage of the sperm so as to prevent its destruction by effluxion of time. These orders would allow any disputed right of ownership as between the executor or another beneficiary under the will of the deceased to be determined and the rights, if any, of any other party and the Applicant to the utilisation of the stored sperm for reproductive purposes to be determined. That latter stage would be the determination of the rights, finally, of the parties.
22. For the foregoing reasons, I concluded that the Applicant was the spouse of the deceased and the Applicant had the capacity, pursuant to s 24 of the HT Act, to authorise the removal of the spermatozoa from the deceased and to provide it to a registered ART provider for the purpose of storing it. That determination was made on an interlocutory basis, albeit, without relying on "an arguable case" for the orders, but deciding the issues of jurisdiction and power to finality. [18]
23. Further, the proper construction of the HT Act and the ART Act involves no inconsistency and allows for the removal of the sperm, as tissue, pursuant to the provisions of the HT Act from a deceased, whereupon the senior available next of kin that had authorised the removal would be in lawful possession of the property, being tissue separated and distinct from a human body awaiting burial, and that senior available next of kin would, for the purposes of the ART Act be a gamete provider, rendering the conduct of the ART provider lawful, to the extent that work was done that was the subject of the consent of that subsequent gamete provider.
24. The day after the orders were made in these proceedings, the Court was informed that no viable tissue could be extracted. The inability to obtain viable tissue was not related to the delay.
25. I agree with Fagan J that appropriate legislative clarification would be of assistance, lest there continue to be differences between judicial officers of the State.
26. For the foregoing reasons and conclusions, except the immediately preceding paragraph, I made the orders on 15 May 2020 which were in the following terms:
27. THE COURT DECLARES: 1. Melissa Aynsley Vernon is, for the purposes of the Human Tissue Act 1983 (NSW), the Senior Next of Kin of Alexander Katrakilis. 2. Melissa Aynsley Vernon, has by written instrument, validly authorised under s 24(3) of the Human Tissue Act, the extraction of all and any reproductive tissue from the body of the late Alexander Katrakilis, as is necessary for the purpose of Assisted Reproductive Treatment, such purpose being a "therapeutic or medical purpose" within the meaning of s 34(3).
28. AND THE COURT ORDERS: 1. Any such reproductive tissue extracted from the body of the late Alexander Katrakilis is to be released to Melissa Aynsley Vernon, but only upon the Applicant causing a suitably equipped transportation company or courier to collect it on her behalf for transport to an authorised facility. 2. Melissa Aynsley Vernon is to store 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.

Endnotes

1. Section 4(1)(b) of the Human Tissue Act 1983 (NSW)
2. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69].
3. Project Blue Sky, supra, at [70].
4. Dealing with the same or similar subject matter.
5. Yager v The Queen (1977) 139 CLR 28 at 43; [1977] HCA 10.
6. Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719.
7. (2018) 98 NSWLR 208; [2018] NSWSC 1231.
8. [2020] NSWSC 118.
9. See 23(3)(b) of the Human Tissue Act.
10. (2007) 230 CLR 89; [2007] HCA 22.
11. Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.
12. Farah Constructions Pty Ltd v Say-Dee Pty Ltd, supra, at [135].
13. (1908) 6 CLR 406; [1908] HCA 45.
14. [2019] 1 Qd R 403; [2018] QSC 142.
15. [2013] WASC 3.
16. Doodeward v Spence (1908) 6 CLR 406 at 419; [1908] HCA 45, referring to Coke J.
17. Hall v Nominal Defendant (1966) 117 CLR 423; 40 ALJR 102; [1966] HCA 36; Allstate Life Insurance Co & ANZ Banking Ltd (No 3) (1996) 64 FCR 55 at 58; [1996] FCA 518; Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207 at [154]-[165]; [2002] NSWCA 104; Wickstead v Browne (1992) 30 NSWLR 1 at 11; [1992] NSWCA 272; Hussain v Shahidulalam [2018] NSWSC 1742 at [92].
18. General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 May 2020