MacKenzie v Attorney-General - [2015] NZHC 2208

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2012-470-977 [2015] NZHC 2208

IN THE MATTER OF the Judicature Act 1908

BETWEEN

JOHN MORGAN MACKENZIE Applicant

AND

ATTORNEY-GENERAL Respondent

Hearing: (on the papers)

Appearances:

J M Mackenzie, in person, Applicant
I M G Clarke for Respondent

Judgment:

14 September 2015

JUDGMENT OF ANDREWS J [Application for leave to appeal to the Court of Appeal]

This judgment is delivered by me on 14 September 2015 at 2.00pm pursuant to
Rule 11.5 of the High Court Rules
Registrar / Deputy Registrar

Solicitors:
Crown Law Office, Wellington
Copy to:
J M Mackenzie (Applicant)

MACKENZIE v ATTORNEY-GENERAL [2015] NZHC 2208 [14 September 2015]

Introduction

[1] In a judgment delivered on 11 August 2015,1 I dismissed Mr Mackenzie’s application for judicial review of the decision of Associate Judge Bell to strike-out Mr Mackenzie’s proceeding against the Crown Health Funding Agency.2

[2] Mr Mackenzie has applied for leave to appeal from my judgment.

Approach to the application

[3] Pursuant to s 26P(1AA) of the Judicature Act 1908, my determination of Mr Mackenzie’s application for review is final, unless I give leave or, in the event that I refuse leave, unless the Court of Appeal gives special leave to appeal.

[4] In determining whether leave should be given, the same principles apply under s 67 of the Judicature Act, relating to applications for leave to make a second appeal: that is, an appeal from a decision of the High Court on an appeal from the District Court, or from a decision of the Court of Appeal from a decision of the High
Court.3 As the Court of Appeal explained in Sharma v Wati:4

… the proposed appeal must raise some question of law or fact capable of bona fide and serious argument. In addition, the case must involve some interest, public or private, which is of sufficient importance to outweigh the costs and delay of a further appeal.

[5] The Court of Appeal also noted in Waller v Hider that on a second appeal:5

… this Court is not engaged in the general correction of error. Its primary function is then to clarify the law and to determine whether it has been properly construed and applied by the Court below. It is not every alleged error of law that is of such importance, either generally or to the parties, as to justify further pursuit of litigation which has already been twice considered and ruled upon by a Court.

[6] The threshold for leave is high. Mr Mackenzie must establish that his intended appeal raises a question of law or fact that is capable of bona fide and

1      Mackenzie v Attorney-General [2015] NZHC 1876.
2      Mackenzie v Crown Health Funding Agency [2015] NZHC 191.
3      See Rafiq v Meredith Connell [2015] NZCA 145.
4      Sharma v Wati [2012] NZCA 195, (2012) 21 PRNZ 161 at [11].
5      Waller v Hider [1998] 1 NZLR 412 (CA) at 413.

serious argument, and…

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 [2015] NZHC 2208
Case: [2015] NZHC 2208
Decision Date: 14 September 2015

CaseChat Overview and Summary

In MacKenzie v Attorney-General, the applicant, John Morgan MacKenzie, sought leave to appeal the High Court's decision to dismiss his application for judicial review regarding a case against the Crown Health Funding Agency. The initial application was dismissed on the basis that the Attorney-General was the appropriate defendant, the limitation period for MacKenzie's claim had expired, and any potential amendment to the pleadings would not be permissible due to the statute of limitations.

The legal issues before the court involved the proper defendant in a case against the Crown, the applicability and commencement of the limitation period in tort claims, and the permissibility of introducing a new cause of action in amended pleadings. The court examined whether these issues were capable of bona fide and serious argument and whether the case involved an interest of sufficient importance to warrant an appeal.

The court found that the issues raised by MacKenzie did not meet the threshold for an appeal. The decisions of both the Associate Judge and the High Court applied well-established law in a straightforward manner. The court emphasized that the threshold for granting leave to appeal is high and noted that it is not every alleged error of law that justifies further litigation. Consequently, the court concluded that MacKenzie's proposed appeal did not raise any issue capable of bona fide and serious argument, and the costs and delay of a further appeal outweighed the interest in proceeding with the appeal.

The application for leave to appeal was therefore refused.

Orders