John Morgan MacKenzie v The Attorney-General - [2016] NZSC 60

IN THE SUPREME COURT OF NEW ZEALAND

SC 21/2016
[2016] NZSC 60

BETWEEN	JOHN MORGAN MACKENZIE Applicant
AND	THE ATTORNEY-GENERAL Respondent

Court:	Elias CJ, William Young and Arnold JJ
Counsel:	Applicant in person I M G Clarke for Respondent
Judgment:	1 June 2016

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The applicant’s son was severely injured on 1 October 1987 and died the next day in hospital. His heart was subsequently removed and the aortic valves transplanted into a teenage girl. He says that the removal of the heart and transplanting of the aortic valves were effected despite familial consent having been refused. The applicant was informed of the transplantation of the aortic valves by letter of 21 March 2005. On 24 November 2006, the Crown Health Funding Agency wrote to the applicant to the effect that it would not offer him compensation.
The applicant’s proceedings against the Attorney-General were commenced on 23 November 2012, more than 25 years after the key events to which they relate. In substance they are by way of complaint about the removal of his son’s heart and seek, amongst other things, compensation. He sought legal aid for the proceedings but was unsuccessful; this primarily because of the limitation defence which was available.[1] He challenged the refusal of legal aid as far as this Court. This resulted in two judgments: first the dismissal of his application for leave to appeal[2] and secondly a recall application.[3] In the second judgment, the Court noted that the applicant had “the fixed idea that time did not begin to run for limitation purposes” until receipt of the 24 November 2006 letter. The judgment pointed out that this was not in accordance with the way the Limitation Act 1950 operated.[4]
[1]See Re CE (CIVIL) [2012] NZLAT 023; and MacKenzie v Legal Services Commissioner [2012] NZHC 3098.
[2]MacKenzie v Legal Services Commissioner [2014] NZSC 23.
[3]MacKenzie v Legal Services Commissioner [2014] NZSC 49.
[4]At [2].
The applicant’s proceedings were struck out by Associate Judge Bell as barred by the Limitation Act 1950.[5] His application for review under subs 26P(1) of the Judicature Act 1908 was dismissed by Andrews J.[6] She too was of the view that the claim in relation to the removal of the applicant’s son’s heart was out of time.[7] She rejected attempts by the applicant to broaden the scope of his claim to encompass a challenges to the letter of 26 November 2006 and in particular to allege tortious conduct on the part of the Crown Law Office. Any claim along the lines foreshadowed would itself be time barred.[8]
[5]MacKenzie v Attorney-General [2015] NZHC 191 at [93].
[6]MacKenzie v Attorney-General [2015] NZHC 1876 at [50]–[51].
[7]At [43]–[46].
[8]At [47]–[49].
Applications for leave to appeal against the judgment of Andrews J were later dismissed by Andrews J[9] and the Court of Appeal.[10]
[9]MacKenzie v Attorney-General [2015] NZHC 2208.
[10]MacKenzie v Attorney-General [2015]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NZSC 60
Decision Date: 1 June 2016

CaseChat Overview and Summary

In the case of John Morgan MacKenzie v The Attorney-General, the applicant, John Morgan MacKenzie, sought compensation from the Attorney-General for the removal and transplantation of his son's heart and aortic valves. The son had died in 1987, and his heart was transplanted into a teenage girl. MacKenzie was informed of this transplant in 2005 and was refused compensation in 2006. His legal action against the Attorney-General began in 2012, but was struck out as time-barred under the Limitation Act 1950. The Supreme Court of New Zealand was asked to consider the applicant's application for leave to appeal against the dismissal of his claim.

The central legal issue was whether the Supreme Court had jurisdiction to hear the applicant's appeal, given the finality of the High Court's review decision under section 26P(1AA) of the Judicature Act 1908. The court also had to consider whether the applicant's arguments raised questions of public or general importance, or if there was an appearance of a miscarriage of justice, which would warrant the grant of leave to appeal.

The Supreme Court ruled that there was no jurisdiction to hear the appeal, as the High Court's decision under section 26P(1) of the Judicature Act was final and not subject to further appeal. The court noted that the applicant's arguments had already been thoroughly examined in previous judgments, and did not present a question of public or general importance or an appearance of a miscarriage of justice. Consequently, the application for leave to appeal was dismissed.

The Supreme Court did not make any further orders in this matter, as the dismissal of the application for leave to appeal concluded the proceedings.

Orders