The proceedings in this Court were brought initially before the Duty Judge but ultimately came to the Expedition List for directions where the matter was expedited. The plaintiff subsequently prepared an extensive statement of claim which runs for some 2,000 paragraphs. There was a proposal that there be further amendments on the morning of the hearing, however that issue was not proceeded with.
The defendant asserts that the proceedings are frivolous and vexatious. Further that there is no reasonable cause of action disclosed and that the proceedings are otherwise an abuse of the process of the Court and should be dismissed.
The procedural history of the current matter involves numerous directions hearings. First before Pembroke J as Duty Judge on 19 September 2018. Subsequently, the matter came before me on 21 September and certain directions were made about the filing of evidence.
Again, on 23 October 2018, there were some further directions which involved matters of particulars and it was at that point that I made an order that the matter proceed by way of pleadings. The matter was again before me on 20 November and 14 December, and again orders were made of a procedural nature.
As I have already observed the pleading comprises some 2,000 paragraphs and bears a date, January 2019. I am not entirely sure when that was first served on the defendants. But what the pleading sought to do was to add a very significant number of additional defendants who were unrelated to the current defendants.
A number of persons ultimately, including the South Eastern Sydney Local Health Service, the State of New South Wales and others, appeared before the Court in order to have their positions reserved. Ultimately, the plaintiff indicated that she did not wish to proceed against any of those persons for the time being and as a result of that I made orders staying the proceedings against various defendants on 22 March 2019.
Subsequently, in May of this year, I fixed the hearing of the matter against the current defendants for two days, 16 and 17 July. The plaintiff on the morning of 16 July, although she had previously distributed a very detailed index of documents, handed to the Court three lever arch folders of documents which comprise many and varied documents. Some of them are affidavits previously prepared and deployed by her in the past, going back as early as 2014.
There are many medical records and other documentation which has come into her possession over the years, some of which relate to her current grievances. The current grievances stem from arrangements that she made in 2013 and 2014 with what might be described as the Monash defendants. At that point she dealt with a corporate entity described as Fertility Australia Pty Ltd, and the Fertility Australia Trust trading as Fertility East. That entity was acquired by the first defendant, Monash IVF, sometime in 2014.
At all relevant times Fertility East was an authorised assisted reproductive technology provider pursuant to the Assisted Reproductive Technology Act 2007, a New South Wales Act. As at 2013 and 2014, Fertility East had an arrangement in place with a corporate entity known as the European Sperm Bank of the United States of America, whereby Fertility East would facilitate patients such as the plaintiff obtaining vials of semen which were transported to Australia and held, and/or stored by Fertility East on behalf of its patients' as an authorised provider under the New South Wales legislation.
On 9 July 2013 it appears the plaintiff executed a contract with the European Sperm Bank for the purchase of donor semen, and in July of 2013 Fertility East received vials of semen from European Sperm Bank, totalling five in number. They were held by Fertility East on behalf of the plaintiff until late 2014. Storage charges were paid by the plaintiff to Fertility East. On 31 October 2013, one vial of the donor semen was used in an assisted reproduction procedure undertaken by the plaintiff but that procedure was unsuccessful.
However, by 2014 the plaintiff and Fertility East became involved in a dispute which ended in proceedings being commenced in the Supreme Court, numbered 00151962 of 2014. In June 2014, Rein J, before whom the matter was heard, made a number of orders by consent which disposed of the proceedings.
The arrangements involved an offer on the part of Fertility East, without any admissions being made, and it was anticipated that certain treatment would ensue and theoretically at least the matter was resolved between the parties.
However further disputation arose and the plaintiff on motion brought the matter back before His Honour in which she sought to set aside orders which had been made by consent on 16 June.
On 17 July 2014 his Honour, in an ex tempore judgment after setting out a deal of procedural detail which I need not rehearse, refused her the relief she sought. The effect of that proceeding was that the orders that had previously been entered in June 2014 remained intact.
His Honour said at [30] for example, that the plaintiff failed to persuade him, (which was one of her apparent arguments), that the particular terms of the agreement required her or the defendant to do something illegal, and he had significant doubts about numerous of the other submissions that she made. He therefore came to the view that the plaintiff had failed to demonstrate any reason or reasons for the setting aside of that agreement.
Later in 2014, on 16 September in fact, the plaintiff wrote to Fertility East seeking transfer of one vial of the donor semen to a new clinic, and made various claims and allegations against Fertility East. On the same day, Fertility East responded to the plaintiff's letter, denying the various claims and allegations, but seeking details of the new clinic. On 19 December 2014, the remaining four vials of donor semen which were being held by Fertility East on behalf of the plaintiff were transported to another assisted reproduction technology provider otherwise known as Genea Limited. The position is that since 19 December 2014, Fertility East has held no sperm from that particular donor on behalf of the plaintiff.
As a result of certain exchanges which occurred today between myself and the plaintiff, it appears that sometime in February or March 2015, two of those four vials were used in attempted reproductive procedures, both of which again failed. There is presently in possession of Genea a frozen embryo from the plaintiff and the remaining two vials of donor sperm.
The case which the plaintiff appears to want to bring against the current defendants is one either in contract or in tort. The description of the statement of claim as prolix, even so far as it relates to the relevant defendants, is indeed an understatement. It is not only just a long document, it is also complex. It is replete with argumentative material as indeed, if I may say so with respect, are many of the plaintiff's affidavits in the court books. It is not an easy document to comprehend. It is plain and obvious that many of the allegations and many of the contentions which the plaintiff seeks to advance in the statement of claim are arguments which in part or in whole have already been addressed by Rein J in 2014.
I have found it difficult if not impossible to understand both the document itself and the plaintiff's attempts during the course of today to explain to me precisely what the contractual obligations are which are said to have been breached by the defendants. I do not at the moment even pretend to understand what damages may or may not flow, because in the first instance I do not understand the contractual breaches. Secondly, so far as any tortious action is concerned, I am not sure that I understand what duty of care arises. On the stated factual chronology I have referred to which appears to be uncontroversial, it is not suggested as I understand it for example that the storage facilities provided were inadequate. It is also not suggested again as I understand it, that somehow or other the sperm that was used in the first unsuccessful attempt in late 2014 was somehow negligently administered or that the procedure was in some way negligently performed. It is not suggested that the four remaining vials, having been transported to Genea, were transported negligently or somehow detrimentally affected in transit.
In other words, I must say with great respect to the plaintiff and although she feels a very deep sense of grievance, I find it impossible really to understand what if any case she has. The plaintiff, notwithstanding the fact that she is a litigant in person, impresses me as a highly intelligent woman who has been emotionally traumatised for whatever reason by the events that have taken place. However, much as I try to understand her allegations, and much as I try to identify what legal category or categories into which they may fall, no cause of action is apparent. The breadth and voluminous nature of the pleading does not enlighten the position at all. Rather it obscures and occludes any ability to make what may or may not be comprehensible, intelligible. The evidence filed in support is likewise voluminous, unintelligible and quite frankly unexplained in any coherent way.
I am therefore of the view that these proceedings are vexatious and frivolous. I do not see that they disclose any reasonable cause or causes of action and the evidence filed likewise is not rationally supportive of any cause or causes of action. I propose to dismiss the proceedings in their entirety. I will reserve the question of costs for the timebeing.
[3]
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Decision last updated: 19 July 2019