Mackenzie v Attorney-General - [2015] NZHC 1876

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2012-470-000977 [2015] NZHC 1876

IN THE MATTER of the Judicature Act 1908

BETWEEN

JOHN MORGAN MACKENZIE Applicant

AND

THE ATTORNEY-GENERAL Respondent

Hearing: 29 July 2015

Appearances:

Mr Mackenzie (Applicant) in person
I Clarke for the Respondent

Judgment:

11 August 2015

(RESERVED) JUDGMENT OF ANDREWS J

This judgment was delivered by me on 11 August 2015 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors: Crown Law Office, Wellington

MACKENZIE v ATTORNEY-GENERAL [2015] NZHC 1876 [11 August 2015]

Introduction

[1] Mr Mackenzie has applied for judicial review of the decision of Associate Judge Bell, delivered on 17 February 2015, in which his Honour struck out Mr Mackenzie’s claim against the Crown Health Financing Agency (“CHFA”).1

[2] Mr Mackenzie has applied for judicial review of two findings by Associate

Judge Bell:

(a) That the Attorney-General is the appropriate defendant;2 and

(b) That Mr Mackenzie’s claim is time-barred under the Limitation Act

1950, as it was filed outside the times fixed under that Act.3

[3] On 1 October 1987, Mr Mackenzie’s son Kenneth suffered severe head injuries in a motorbike accident. He was admitted to Tauranga Hospital but died early in the morning of 2 October 1987, after his life support was withdrawn. Kenneth was 21 when he died. What happened thereafter has clearly caused extreme distress to Mr Mackenzie, compounding the grief arising from his son’s sudden and tragic death.

[4] Kenneth’s heart was removed from his body either shortly after his death

(which Mr Mackenzie believes to be the case) or during a post-mortem carried out

12 hours after his death. Documentary evidence before me tends to show that this was done without the consent of Kenneth’s family; indeed after they had been asked, but refused, to give consent. Kenneth’s heart was sent to the Greenlane Hospital Heart Valve Laboratory. The aortic valves were surgically removed and later
implanted into a teenage girl.

1 Mackenzie v Crown Health Financing Agency [2015] NZHC 191 (“the Associate Judge’s decision”).
2 At [18].
3 At [93]. The Limitation Act 1950 applies in this case: see ss 59 and 61of the Limitation Act
2010.

[5] Mr Mackenzie says that Kenneth’s body was mutilated, and his heart stolen.

In about 2002, he began making inquiries as to what had occurred.4 In a letter dated

21 March 2005, the National Transplant Donor Co-ordination Office told Mr Mackenzie that the heart valve bank had retrieved the aortic valves from Kenneth’s heart and implanted them into the teenage girl.

[6] Mr Mackenzie then corresponded with the Bay of Plenty Health Board, the pathologist who carried out the post-mortem, the CHFA, Cabinet Ministers, and Members of Parliament, seeking redress. On 24 November 2006, the CHFA wrote to Mr Mackenzie saying that, having taken legal advice, it was not satisfied that he had a claim against CHFA, and therefore it could not offer him compensation.

[7] Mr Mackenzie filed a statement of claim on…

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 1876
Case: [2015] NZHC 1876
Decision Date: 11 August 2015

CaseChat Overview and Summary

This case concerned a judicial review of a decision by an Associate Judge, who had struck out a claim by Mr Mackenzie against the Crown Health Financing Agency (CHFA). Mr Mackenzie sought judicial review of two findings made by the Associate Judge: (a) that the Attorney-General was the appropriate defendant; and (b) that Mr Mackenzie's claim was time-barred under the Limitation Act 1950. Mr Mackenzie claimed relief by way of an apology, an admission of liability by the Crown, and compensation for the removal of his son's heart without consent. The court considered the submissions from both parties, with Mr Mackenzie arguing that the Crown Law Office should be the defendant, and that the limitation period should have started when the CHFA denied his claim for compensation. The court found that the Associate Judge correctly identified the Attorney-General as the appropriate defendant and did not err in holding that Mr Mackenzie's claim was statute-barred. The court dismissed the application for judicial review. However, the court invited the Attorney-General to consider the propriety of not enforcing an order for costs against Mr Mackenzie, given his limited means and the genuine nature of his belief that pursuing the proceeding was necessary.

Orders