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 that the case involves a public or private interest which is of sufficient importance to outweigh the cost and delay of a further appeal.

Submissions

[7]      Mr Mackenzie submits that both my judgment and that of Associate Judge

Bell are manifestly unreasonable and wrong in law.

[8]      In large part, Mr Mackenzie’s submissions on his application for leave to appeal repeat matters argued at the hearing of his application for judicial review (and before Associate Judge Bell).  In essence, he contends that I was wrong to find that:

(a)      The Associate  Judge  had  not  erred  in  finding  that  the Attorney- General was the appropriate defendant;

(b)The Associate Judge had not erred in finding that the limitation period for Mr Mackenzie’s claim started on 2 October 1987 or (at the latest) on 21 March 2005, and that his proceeding filed on 23 November

2012 was therefore statute-barred under the Limitation Act 1950; and that

(c)      Mr Mackenzie could not now amend his pleading to allege a fresh cause  of  action  (based  on  a  letter  sent  to  Mr  Mackenzie  on  24

November 2006) as any such cause of action would be statute-barred under the Limitation Act.

[9]      Mr Mackenzie’s submissions do not expressly address the tests for leave to be given, except insofar as he sets out the respects in which he contends that the two judgments of this Court are wrong.

[10]     Ms Clarke submitted that Mr Mackenzie’s proposed appeal does not raise questions that are capable of bona fide and serious argument.   In summary, she submitted:

(a)      In the absence of a specific statutory provision to the effect that the Crown Law Office can be sued in its own name, the Crown Law Office cannot be sued in its own name, and the Attorney-General would be the proper defendant.  The terms of s 14(2)(a) of the crown Proceedings Act 1950 are clear.   There is no statutory power, independent of s 14(2)(a), that enables the Crown Law Office to be sued in its own name.

(b)Mr Mackenzie was told in a letter dated 21 May 2005 that his son Kenneth’s heart was taken from his body.   The latest the limitation period for any claim in tort for wrongful removal of Kenneth’s heart could have begun was 21 May 2005.  This is the latest date on which Mr Mackenzie could reasonably have discovered what had occurred. The law on limitation is settled, and is set out in the judgment of the

Supreme Court in Murray v Morrell & Co Ltd.6

(c)      Any  claim  based  on  the  letter  from  the  Crown  Health  Funding Authority dated 26 November 2006 is different in substance from the claim made in Mr Mackenzie’s Statement of Claim, and would require an amendment to the Statement of Claim to introduce an additional cause or causes of action. As r 7.77(2) of the High Court Rules states, an amended pleading may only introduce a fresh cause of action if that cause of action is not statute-barred as at the date it is introduced into  the  Statement  of  Claim.    A  claim  based  on  a  letter  dated

26 November 2006 is clearly now well out of time.

[11]     For  the  reasons  set  out  in  Ms  Clarke’s  submissions,  I  conclude  that Mr Mackenzie’s intended appeal does not raise any issue capable of bona fide and serious argument.   In  respect of the matters raised by Mr Mackenzie, both the judgment of Associate Judge Bell and my own judgment involve the application of

well-established law, in an orthodox manner.

6      Murray v Morrell & Co Ltd [2007] NZSC 27, [2007] 3 NZLR 721 (SC) at [64].

[12]     In the circumstances, while I accept without question that Mr Mackenzie has very real and sincere concerns as to what happened concerning Kenneth’s body, I am not persuaded that that aspect outweighs the costs and delay of a further appeal.

Result

[13]     The application for leave to appeal is refused.

Andrews J