MacKenzie v Legal Services Commissioner - [2013] NZCA 326

IN THE COURT OF APPEAL OF NEW ZEALAND

CA208/2013
[2013] NZCA 326

BETWEEN	JOHN MORGAN MACKENZIE Applicant
AND	LEGAL SERVICES COMMISSIONER Respondent

Hearing:	8 July 2013
Court:	O’Regan P, Wild and White JJ
Counsel:	Applicant in person R J Gordon for Respondent
Judgment:	23 July 2013 at 10.00 am

JUDGMENT OF THE COURT

AThe application for special leave to appeal is declined.
BThere is no order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by White J)

Mr Mackenzie seeks special leave to appeal to this Court against the High Court decision of Dobson J upholding the decision of the Legal Services Commissioner not to grant him civil legal aid.[1]
[1]MacKenzie v Legal Services Commissioner [2012] NZHC 3098.
It is necessary for Mr Mackenzie to seek special leave to appeal because his application to the High Court for leave to appeal to this Court was dismissed by Dobson J earlier this year.[2]
[2]MacKenzie v Legal Services Commissioner [2013] NZHC 511.
Mr Mackenzie wishes to sue the Crown Health Funding Agency for damages for mental suffering as a result of discovering that, following the death of his 20‑year‑old son Kenneth in a motorcycle accident in 1987, his son’s heart was removed without the knowledge or consent of the family and taken to Greenlane Hospital where one of the valves was successfully transplanted into a 16-year-old girl.
Information from the National Transplant Donor Co-ordination Office confirming the transplant was not, however, received by Mr Mackenzie until March 2005.
Mr Mackenzie decided that he needed legal representation to pursue his claim for damages and applied for civil legal aid. His application was declined by the Legal Services Commissioner on the ground that it lacked sufficient prospects of success.
Mr Mackenzie then applied to the Legal Aid Tribunal for a review of the Commissioner’s decision. The Tribunal in its decision of 30 May 2012 upheld the Commissioner’s decision.[3]
[3]Re CE (Civil) [2012] NZLAT 023.
Mr Mackenzie sought to challenge these decisions by applying to the High Court on a question of law under s 59 of the Legal Services Act 2011.
Dobson J upheld the Commissioner’s decision to decline legal aid on two grounds:
(a)Mr Mackenzie is a secondary victim and, as such, cannot sue for mental suffering caused by awareness of death or injury to a principal victim through negligence unless he can establish that he has suffered a recognisable psychiatric disorder or illness.[4]

(b)The limitation period for actions in tort is six years. At the very latest, the elements of the cause of action were available by 21 March 2005 when Mr Mackenzie received confirmation that Kenneth’s heart had been removed and used for transplant purposes. The period in which his claim could have been brought ended on 21 March 2011.
[4]van Soest v Residual Health Management Unit [2000] 1 NZLR 179 (CA).

Dissatisfied with Dobson J’s decision, Mr Mackenzie first sought leave from the High Court to appeal to this Court. He argued that…

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.

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Details

Case: [2013] NZCA 326
Decision Date: 23 July 2013 at 10.00 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the applicant, John Morgan Mackenzie, sought special leave to appeal against the High Court decision that upheld the decision of the Legal Services Commissioner not to grant him civil legal aid. The High Court decision had dismissed Mr. Mackenzie's application for leave to appeal to the Court of Appeal, and he now sought special leave to appeal directly to the Court of Appeal. Mr. Mackenzie's application was motivated by his desire to sue the Crown Health Funding Agency for damages for mental suffering after discovering that his deceased son's heart had been transplanted without the family's knowledge or consent.

The central legal issues in this case were whether Mr. Mackenzie had standing to sue for mental suffering as a secondary victim and whether his claim was time-barred by the limitation period under the Limitation Act 1950. The High Court had ruled that Mr. Mackenzie could not proceed with his claim as a secondary victim without establishing a recognisable psychiatric disorder or illness and that his claim was barred by the six-year limitation period. The Court of Appeal needed to determine if these decisions contained any legal errors justifying the grant of special leave to appeal.

The Court of Appeal held that the High Court's reasoning was correct and that no question of law warranted granting special leave to appeal. Mr. Mackenzie's arguments regarding his status as a secondary victim and the applicability of the Limitation Act 1950 did not meet the stringent criteria for special leave. The Court concluded that the High Court's decision was sound and that the application for special leave to appeal should be declined. Consequently, the application was dismissed, and there was no order for costs.

Orders