Fertility Australia Pty Ltd & Ors v Wendy Read & Charles Goble

Earlier today, in the midst of the colour and movement of the Common Law duty list which was – surprisingly enough – being conducted remotely from the friendly confines of the Coffs Harbour court complex, I made the following orders:

I indicated to the parties I would provide brief reasons as soon as I could. These are those promised reasons.

The proceedings in this Court were commenced by summons by Fertility Australia Pty Ltd and two associated parties (Adelaide Fertility Centre Pty Ltd trading as Repromed and Monash IVF Group Ltd). Those three parties are also the named defendants in certain proceedings currently extant in the District Court of New South Wales. 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.

Meanwhile, there is a class action before the Supreme Court of Victoria known as Danielle Bopping & Michelle Pedersen v Monash IVF Pty Ltd & Ors (case no: S ECI 2020 04761). Those proceedings were commenced in December 2020 but the relevant pleading is a second amended statement of claim filed on 18 August 2023. A defence was filed on 27 October 2023.

The summons filed in this Court sought orders removing the proceedings from the District Court of New South Wales to this Court and in turn transferring the proceedings to the Supreme Court of Victoria. In support of the summons were two affidavits of the plaintiffs’ solicitor which set out the relevant chronology, summarised the issues in each set of proceedings and annexed relevant documentation such as the pleadings in each case to which I have fleetingly referred, case management orders made by Keogh J in the Victorian proceedings, a letter from the defendants’ solicitor, and the relevant rules of the Victorian Supreme Court.

I had the great benefit of comprehensive and very helpful submissions over the hand of Ms Barrett, counsel for the plaintiffs (in this Court). Ms Barrett appeared this morning and offered to walk me through the evidence and develop her submissions. However, that proved to be unnecessary because of the clear and thorough written submissions filed by Ms Barrett and a misericordious development to which I will refer in the next paragraph. Moreover, by the time I had reviewed the evidence and submissions, it was clear that this is precisely the kind of circumstance to which the cross-vesting legislation was directed.

The happy development to which I referred to in the last paragraph is that, by the time the case came on for hearing, the parties had reached agreement and the defendants (in this Court) did not oppose the making of the orders.

While consent orders were helpfully prepared and provided to my associate, Ms Barrett acknowledged correctly that I 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”).

Section 8 of the Act relevantly provides:

Section 5(2) of the Act relevantly provides:

At the brief hearing, Ms Barrett referred me to the decision in Comino v Kremetis & Anor (2023) 110 NSWLR 224; [2023] NSWSC 32 where Chen J summarised some of the relevant principles at [70]:

Ms Barrett identified three broad issues raised for determination in the present case:

By reference to the decision in Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 726, Ms Barrett submitted that:

She went on to identify the common questions of fact and law in the present case:

The written submissions continued:

A perusal of the pleadings in each of the cases currently on foot in the Supreme Court of Victoria and the NSW District Court compelled an acceptance of these submissions.

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.

I was of the view that the circumstances engaged both s 5(2)(i) and the more general “interests of justice” requirement or test in s 5(2)(iii).

For similar reasons, and to facilitate making the appropriate order under s 5, it was also necessary to make the order under s 8(1) removing the District Court to this Court.

Accordingly, I was satisfied of the relevant matters required by ss 5 and 8 and made the orders sought by the plaintiffs, consented to by the defendants and set out in paragraph 1 of this judgment.