MacKenzie v Legal Services Commissioner - [2013] NZHC 511

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-485-1299 [2013] NZHC 511

UNDER section 59 of the Legal Services Act 2011

IN THE MATTER OF an appeal from a decision of the Legal Aid
Tribunal

BETWEEN JOHN MORGAN MACKENZIE Appellant

ANDLEGAL SERVICES COMMISSIONER Respondent

Hearing: 11 March 2013

Counsel: Appellant in person
D P MacKenzie for respondent

Judgment: 18 March 2013

RESERVED JUDGMENT OF DOBSON J

[1] On 21 November 2012, I dismissed an appeal brought by Mr MacKenzie under s 59 of the Legal Services Act 2011.[1] The effect of that judgment was to uphold earlier decisions of the Legal Aid Tribunal and the Legal Services Agency to not grant Mr MacKenzie civil legal aid to pursue proceedings against the Crown Health Funding Agency.

[1] MacKenzie v Legal Services Commissioner [2012] NZHC 3098.

[2] This judgment deals with Mr MacKenzie’s subsequent application for leave to further appeal to the Court of Appeal the decision not to grant him legal aid.

MACKENZIE v LEGAL SERVICES COMMISSIONER HC WN CIV-2012-485-1299 [18 March 2013]

[3] The background to Mr MacKenzie’s attempts to bring proceedings against the Crown Health Funding Agency, and the reasons why he has been held not to qualify for a grant of legal aid, are canvassed in my 21 November 2012 judgment.

[4] Mr MacKenzie submitted that he is committed to pursuing all possible attempts to have the Court acknowledge the wrongdoing that he considers was involved when (on his reconstruction) life support was withdrawn from his son after he was fatally injured in a motor cycle accident. His son’s heart was removed in Tauranga Hospital for transporting to Greenlane Hospital where at least one valve of it was used in a transplant operation. The deceased’s family did not consent to his heart being taken.

[5] All three decisions against Mr MacKenzie assessed his prospects of success in any claim he brought in his own name as insufficient to warrant a grant of legal aid.

[6] After my judgment was delivered, Mr MacKenzie filed a further document dated 5 December 2012 that was described as “Appellant’s Notice of Appeal from the High Court Judgment – 21.11.12 to the Court of Appeal”.

[7] On 12 December 2012, I issued a minute acknowledging that an objection on behalf of the respondent to the course Mr MacKenzie’s latest document contemplated was correct, and observing that if the document was to be treated as an application for leave to appeal, then leave would inevitably be declined. I invited Mr MacKenzie to file a further document that sought leave to appeal, having regard to the criteria required to be made out for leave to be granted.

[8] The relevant criteria are those set out in s 144 of the Summary Proceedings Act 1957.[2] An applicant for leave must establish a question of law which, by reason of its general or public importance, or for any other reason, ought to be submitted to the Court of Appeal and which the High Court considers…

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] NZHC 511
Decision Date: 18 March 2013

CaseChat Overview and Summary

The case of MacKenzie v Legal Services Commissioner is an appeal against the decision of the Legal Aid Tribunal and the Legal Services Agency not to grant Mr. MacKenzie civil legal aid to pursue proceedings against the Crown Health Funding Agency. Mr. MacKenzie has argued that the withdrawal of life support from his son after a fatal motorcycle accident, and the removal of his son's heart for transplantation without family consent, constituted wrongdoing for which the Crown should be held accountable. The court was required to decide whether Mr. MacKenzie's arguments raised questions of law of general or public importance that warranted further appeal to the Court of Appeal.

The court considered whether Mr. MacKenzie's arguments met the criteria for leave to appeal under section 144 of the Summary Proceedings Act 1957. The court noted that Mr. MacKenzie's arguments were largely repetitive of those previously considered and did not identify any reasons why they should be attributed importance as questions of law. The court found that Mr. MacKenzie's arguments about the applicability of section 28 of the Limitation Act 1950 were also unconvincing. The court concluded that Mr. MacKenzie was not able to identify any question of law which had a measure of general or public importance, or which for any other reason ought to be submitted to the Court of Appeal for further consideration of his entitlement to legal aid.

Accordingly, the application for leave to appeal was dismissed. The court did not place any reliance on the apparent existence of proceedings that Mr. MacKenzie had commenced in the Tauranga Registry of the Court, as it was not relevant to the issue of whether he was entitled to legal aid for such proceedings.

Orders