Mackenzie v Attorney-General - [2016] NZCA 24

IN THE COURT OF APPEAL OF NEW ZEALAND

CA591/2015
[2016] NZCA 24

BETWEEN	JOHN MORGAN MACKENZIE Applicant
AND	THE ATTORNEY-GENERAL Respondent

Hearing:	15 February 2016
Court:	Wild, Winkelmann and Kós JJ
Counsel:	Applicant in person I M G Clarke for Respondent
Judgment:	22 February 2016 at 4 pm

JUDGMENT OF THE COURT

AApplication for special leave to appeal is declined.
BThe applicant must pay the respondent costs on this application for special leave on a band A basis and usual disbursements.

C Application for transcript of hearing declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Winkelmann J)

Mr Mackenzie seeks special leave under s 26P(1AA) of the Judicature Act 1908 to appeal a decision of the High Court by Andrews J,[1] upholding a decision of Associate Judge Bell striking out Mr Mackenzie’s claim.[2]
[1]Mackenzie v Attorney-General [2015] NZHC 1876 [HC decision].
[2]Mackenzie v Attorney-General [2015] NZHC 191 [AJ decision].
Mr Mackenzie’s son, Kenneth, was fatally injured in a motorcycle accident on 1 October 1987. Mr Mackenzie says that a doctor asked him for consent to take Kenneth’s aortic valve but he refused. In 2002 Mr Mackenzie began to make enquiries about what had happened to Kenneth’s heart. On 21 March 2005 the National Transplant Donor Co-ordination Office confirmed to Mr Mackenzie that his son’s aortic valve had been removed and successfully transplanted.
On 31 August 2006 Mr Mackenzie wrote to the Crown Health Financing Agency (CHFA), at that time the Crown entity responsible for liabilities arising out of the actions of hospital boards and their staff prior to 1 July 1993. In his letter he set out the facts and sought compensation. He received a prompt reply saying the CHFA would be referring the matter to the Crown Law Office for advice. The CHFA wrote again on 24 November 2006, acknowledging correspondence from Mr Mackenzie in August and September 2006. In that letter, it said that the valve was removed during the post-mortem process by the Coroner because at the time valves were taken from otherwise healthy hearts at post-mortem for possible later transplantation. The CHFA said that in its view this would not constitute an actionable wrong, secondly, in any case the CHFA was not responsible for the actions of the Coroner, and thirdly, the Limitation Act [1950] would be a likely bar to any claim. The CHFA denied liability.
Mr Mackenzie commenced this proceeding against the CHFA on 23 November 2012. He alleged his son’s heart had been removed without consent, and that was only disclosed to him after many years of seeking an explanation. The CHFA owed him a duty under which it was “legally required to agree with the evidence provided and offer acceptable compensation claimed and agree to libel damages for the obstruction to the Justice I have sought over many years at great cost to me”. Along with a statement of claim he filed an affidavit providing more detail, particularly of his attempts to obtain acknowledgement of the removal and compensation.

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.

Continue reading Mackenzie v Attorney-General

Details

AGLC: Mackenzie v Attorney-General [2016] NZCA 24
Case: [2016] NZCA 24
Decision Date: 22 February 2016 at 4 pm

CaseChat Overview and Summary

In the case of Mackenzie v Attorney-General, the applicant, Mr. John Morgan Mackenzie, sought special leave to appeal a decision of the High Court which upheld a decision to strike out his claim. The nature of the dispute centered around the unauthorized removal of his son's aortic valve for transplantation without his consent, and the subsequent denial of compensation by the Crown Health Financing Agency (CHFA). The Court of Appeal, comprising Wild, Winkelmann, and Kós JJ, was tasked with evaluating Mr. Mackenzie's application for special leave to appeal the High Court's decision.

The primary legal issue the court had to decide was whether Mr. Mackenzie's proposed grounds for appeal were capable of serious and bona fide argument. Mr. Mackenzie argued that the High Court had erred in finding his claim was statute-barred, that the claim against Crown Law was not adequately pleaded, and that he was incorrectly denied the ability to sue Crown Law. The court considered the statutory limitations imposed by the Limitation Act 1950 and whether the CHFA's actions could be considered fraudulent concealment to extend the limitation period.

The Court of Appeal found that none of Mr. Mackenzie's proposed grounds for appeal were capable of serious and bona fide argument. They held that the claim was time-barred under the Limitation Act, as the limitation period had started running from the date the heart valve was removed from Kenneth’s body. The court also noted that even if there had been fraudulent concealment, Mr. Mackenzie knew all the facts required to start a proceeding once he received the letter from the National Transplant Donor Coordination Office in March 2005. The court concluded that the CHFA's refusal of liability was not fraudulent concealment and did not restart the limitation period. Additionally, the court found that Mr. Mackenzie's claim against Crown Law was not adequately pleaded and that any such claim would also be time-barred. Thus, the application for special leave to appeal was declined.

The final orders of the Court of Appeal were that Mr. Mackenzie's application for special leave to appeal was declined, and the respondent was entitled to costs on this application for special leave on a band A basis and usual disbursements. Furthermore, Mr. Mackenzie's request for a transcript of the hearing was also declined.

Orders