Hosseini v Genea Limited [2021] NSWSC 1568

Supreme Court New South Wales

Medium Neutral Citation: Hosseini v Genea Limited [2021] NSWSC 1568 Hearing dates: 2 December 2021 Date of orders: 3 December 2021 Decision date: 03 December 2021 Jurisdiction: Common Law Before: Schmidt AJ Decision: (1) The plaintiff is entitled to possession of the reproductive tissue sample recovered from the body of her late husband, Ahmad Baratikeshe on or about 1 June 2019. (2) Upon request by the plaintiff, Genea Limited 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. (3) Upon receipt of the sample from Genea Limited, 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. Catchwords: PERSONAL PROPERTY — Ownership and possession — Rights of possession — Human tissue — Where plaintiff seeks possession of the reproductive tissue sample removed from her late husband's body with consent of the Coroner given under the Human Tissue Act 1983 (NSW) ADMINISTRATIVE LAW — Proper operation of the legislative scheme — Assisted Reproductive Technology Act 2007 (NSW) — Rights of possession — Where plaintiff is the executive and beneficiary of the estate of the deceased and the next of kin who authorized removal of the sample under the Human Tissue Act — Where no other party disputes or objects to the plaintiff's ownership or right to possession of the tissue — Proposed transport out of the State — Whether the plaintiff is entitled to an order for possession of the tissue — Plaintiff entitled to possession — Plaintiff entitled to transport the tissue out of the State ADMINISTRATIVE LAW — Proper construction of the Assisted Reproductive Technology Act 2007 (NSW)— The giving of required consent — Where there is no required form by which consent must be given — Whether the consent of the plaintiff is sufficient – Whether plaintiff is the gamete provider whose consent must be given for ART treatment — Plaintiff is not gamete provider and cannot give required consent for use of the gamete removed from her husband's body CIVIL PROCEDURE — Hearings — Application by Attorney General to intervene — Leave granted Legislation Cited: Assisted Reproductive Technology Act 2007 (NSW) Human Tissue Act 1983 (NSW) Cases Cited: Chapman v South Eastern Sydney Local Health District [2018] NSWSC 1231 Doodeward v Spence (1908) 6 CLR 406; [1908] HCA 45 In the matter of an Application by Adams (a pseudonym) (No 2) [2021] NSWSC 794 In the matter of an Application by Vernon [2020] NSWSC 608 Jocelyn Edwards; Re the estate of the late Mark Edwards (2011) NSWLR 198; [2011] NSWSC 478 Levy v The State of Victoria & Ors (1997) 189 CLR 579; [1997] HCA 31 Noone v Genea Limited [2020] NSWSC 1860 Project Blue Sky v ABA (1998) 194 CLR 355; [1998] HCA 28 Yan Xie v Chen Shaoji [2008] NSWSC 224 Texts Cited: Macquarie Dictionary (online at 2 December), "obtain" Second Reading Speech, Assisted Reproductive Technology Bill (Hansard, Legislative Assembly, 7 November 2007, p 3643. Category: Principal judgment Parties: Sanaz Hosseini (Plaintiff) Genea Limited (First Defendant) Attorney General for New South Wales (Second Defendant) Representation: Counsel: E James with A Katsoulas (Plaintiff) J Buncle (First Defendant) J Davidson (Second Defendant)