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Proctor : July 2018
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8 PROCTOR | July 2018 QUT team wins at NOOT A Queensland University of Technology team has taken first place in this year’s Administrative Appeals Tribunal (AAT) Negotiating Outcomes on Time (NOOT) competition. The NOOT replicates the AAT’s conciliation processes and is open to teams from Queensland and South Australian universities. It is held over four rounds with teams scored on their written work and negotiation skills. The winning QUT team was Rhiannon Dudley (reserve), Bianca Stringer and Viktoria Naumova. The coach was Dr Lucy Cradduck. The Australian Law Reform Commission (ALRC) has released a discussion paper (DP 85) seeking feedback on its questions and proposals for law and system reform of class action proceedings and third-party litigation funders. Its terms of reference ask the ALRC to consider whether, and to what extent, class action proceedings and third-party litigation funders should be subject to Commonwealth regulation, and whether there is adequate regulation of conflicts of interest between third-party litigation funders, lawyers and class members; prudential requirements and character requirements of funders; and the proportion of settlement available to be retained by lawyers and litigation funders in class action proceedings. The discussion paper provides 16 proposals and asks 11 questions that focus on the introduction of regulation appropriate for third- party litigation funders and strengthening the role of the Federal Court to further supervise funded class action proceedings. It asks whether the introduction of contingency fee billing for solicitors acting in class actions would provide better protection for class members than the current system under which both lawyers and funders receive a proportion of settlement. It also proposes a system for regulatory collective redress, enabling potential class members to recover damages without going through the statutory class action regime. The discussion paper is available at alrc.gov.au/inquiries/class-action-funding. Submissions are due by 30 July. ALRC seeks input on class actions, litigation funding News Court grants woman right to use deceased partner’s sperm A Queensland woman has won a landmark court ruling to become the first person granted the right to use the sperm of a boyfriend who died almost two years ago to start a family. In the Supreme Court of Queensland on 20 June, Justice Brown granted Ayla Belinda Creswell, 24, of Toowoomba, the go-ahead to use the sperm of her partner of three years, bricklayer Joshua Davies, to commence IVF treatment in the wake of his unexpected death on 24 August 2016. Ms Creswell was granted permission to remove Mr Davies’ sperm within 24 hours of his death after an urgent 4.30am application before Supreme Court Justice Burns. Justice Brown, in her written decision, said she was satisfied that, as a result of the “work and skill applied” in removing, separating and preserving the sperm, it was capable of being deemed “property”. “The present case arises out of the most tragic of circumstances,” her Honour said. “Ms Ayla Cresswell and the deceased, Joshua Davies, had enjoyed a relationship for approximately three years when (he) – without any apparent warning signs or any obvious trigger – took his own life.” Justice Brown said the role of the court was to decide whether Ms Creswell had a right to “possession” of Mr Davies’ sperm, removed shortly after his death. “In making this application, Ms Cresswell has the support of her family and Joshua’s family, in particular his father, Mr John Davies, and his mother, Mrs Ione Davies,” her Honour said. “The Court’s power to order the removal and use of posthumous sperm has been the subject of uncertainty, particularly because many cases have had to be determined on an urgent basis, to ensure that the sperm is removed and preserved while it is still viable. “While there is a statutory regime in Queensland for removal of sperm from a deceased person, there is in the present case a question as to whether that applies and whether it was satisfied. There is no statutory regime in Queensland which applies to the use of posthumous sperm. “There has been no consideration in Queensland of the Court’s jurisdiction to make orders as to whether a party is entitled to possess and use any sperm that has been removed. Such a determination depends on whether the sperm can be characterised as property, and if it is, who has rights in relation to that property.” Justice Brown said there were four issues to be determined in this case: • the legal basis for the removal order made on 24 August 2016 and its present status • in relation to the sperm that had been removed and whether it was property capable of being possessed • whether Ms Cresswell had an entitlement to possession and use of the sperm removed from Mr Davies • if Ms Cresswell did have such an entitlement, how it was affected by discretionary factors which must be considered in determining whether any declaration may be made in Ms Cresswell’s favour. Justice Brown also determined that, while Ms Cresswell should be able to use Mr Davies’ reproductive tissue, it would be up to the particular medical clinic storing the sperm to decide if it was satisfied to go ahead with the any future IVF procedure. “It is apparent from the reasons that this is a complex and developing area of the law,” her Honour said. “There are a number of matters which are unresolved in this area that do not arise for decision in the present case. It may be an area considered appropriate for consideration by a body such as the Law Reform Commission, even though there are a number of issues which are likely to need to be resolved by Parliament.” by Tony Keim
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