Ex parte application of Mercedi Cooper [2018] NSWSC 766

Ex parte application of Mercedi Cooper [2018] NSWSC 766

Because medical efficacy required immediate action and the applicant sought only to preserve the position pending later determination, the Court authorised post mortem retrieval and storage of sperm from the deceased, subject to safeguards including approval by the Glebe Morgue, notice to NSW Police, police permission to attend, custody and appropriate storage by the doctor, and no use of the sample until further order.

Jurisdiction
Australia
Judgment Date
12 May 2018
Procedural Posture
Ex Parte Application for Post Mortem Sperm Retrieval From the Body of a Deceased Romantic Partner / Urgent Duty List Application; Ex Tempore Interlocutory Orders Made Pending Further Order and Stood Over for Directions
Outcome
Post mortem sperm retrieval authorised on an urgent ex parte basis, with storage and non-use pending further order; proceedings stood over for directions.
Legal Topics
['ex Parte Urgent Application' 'post Mortem Sperm Retrieval' 'mandatory Interlocutory Injunction' 'human Tissue Act 1983 (nsw)' 'custody and Non Use of Retrieved Sample']
['civil Procedure' 'medical Law' 'human Tissue Law'] ['ex Parte Urgent Application' 'post Mortem Sperm Retrieval' 'mandatory Interlocutory Injunction' 'human Tissue Act 1983 (nsw)' 'custody and Non Use of Retrieved Sample']

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Procedural Posture

Ex Parte Application for Post Mortem Sperm Retrieval From the Body of a Deceased Romantic Partner / Urgent Duty List Application; Ex Tempore Interlocutory Orders Made Pending Further Order and Stood Over for Directions

Legal Issues

  1. 1 ['Whether the Court should urgently authorise post mortem sperm retrieval from the body of Mr Samih Zraika.' "Whether Part 4 of the Human Tissue Act 1983 (NSW), the parens patriae jurisdiction, or the Court's inherent power supported the making of the orders." 'Whether safeguards should be imposed concerning police presence, custody, storage and non-use of any retrieved sample.']

Ratio Decidendi

Because medical efficacy required immediate action and the applicant sought only to preserve the position pending later determination, the Court authorised post mortem retrieval and storage of sperm from the deceased, subject to safeguards including approval by the Glebe Morgue, notice to NSW Police, police permission to attend, custody and appropriate storage by the doctor, and no use of the sample until further order.

Court Disposition

Post mortem sperm retrieval authorised on an urgent ex parte basis, with storage and non-use pending further order; proceedings stood over for directions.

Orders

  • ['The court authorises post mortem sperm retrieval by way of the taking of such tissue as is necessary from the body of the deceased Mr Samih Zraika by a suitably qualified doctor who meets the approval of the officers of Glebe Morgue.' 'For this purpose, the officers of Glebe Morgue are to make available the body...