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 RespondentJudgment:
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 He was admitted to Tauranga Hospital but died early in the morning of 2 October 1987, after his life support was withdrawn.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…
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