Fertility Australia Pty Ltd & Ors v Wendy Read & Charles Goble [2024] NSWSC 420 (Link to Caselaw)
By way of background the court noted ([3]):
The District Court proceedings were commenced by statement of claim by Wendy Read and Charles Goble. Dr Read and Mr Goble are a married couple and their claim against the defendants is based on an assertion of what I will call, generically, professional negligence in the provision of fertility or in vitro fertilisation treatment (“IVF”). The defendants employed a new and novel procedure with a very long name (abbreviated to “niPGT-A”). There were risks and imperfections associated with that procedure.
Although only an interlocutory decision, this matter is of interest for two reasons.
Firstly in relation to the transfer, the court was not exercising a “consent jurisdiction”. Rather, the Court was required to reach satisfaction that the orders are appropriate by reference to the relevant criteria found in the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) (“the Act”).
Secondly, the decision foreshadows two interesting mental harm arguments as a part of the discussion as to common questions of fact and law between the Victorian and the NSW proceedings, as follows:
- Whether the Monash entities owed and breached a common law duty of care to avoid causing pure mental harm to patients (including the plaintiffs in each proceeding) who consented to having their embryos tested using niPGT-A.
- Whether the Monash entities in providing the niPGT-A test to patients (including the plaintiffs in each proceeding) were subject to and breached the statutory consumer guarantees of due care and skill and fitness for purpose established by sch 2 ss 60 and 61 of the Competition and Consumer Act 2010 (Cth) (“Australian Consumer Law”) and whether the damage allegedly suffered by such persons in the form of pure mental harm was reasonably foreseeable so as to be recoverable under s 272 of the Australian Consumer Law.
The court held:
I was satisfied that the New South Wales proceedings are related to the proceedings currently before the Supreme Court of Victoria and that it is more appropriate that the New South Wales proceedings be determined in Victoria. The proceedings in Victoria are further advanced and are being case managed by a senior Judge who is, no doubt, seized of the complexities of the issues between the parties. Similar expert evidence will be called in both cases and, in the case of the plaintiffs (defendants to the substantive proceedings) they have engaged lawyers who are clearly deep in the preparation of the case for hearing. While the defendants’ lawyers will need to catch up, it is also likely that they will benefit from the preparation undertaken by the plaintiffs to the group action in Victoria. The proceedings raise close to identical issues of liability and similar expert evidence will be considered by the Court in each state.
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