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have the Court acknowledge the wrongdoing that he considers was involved when (on his reconstruction) life support was withdrawn from his son after he was fatally injured in a motor cycle accident.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 ought to be submitted for

further appeal.[3]

[2] Imported into the appeal structures under the Legal Services Act 2011 by s 60 of that Act.

[3] For example, R v Slater [1997] 1 NZLR 211 at 215 and Waller v Hider [1998] 1 NZLR 412 (CA).

[9]      Mr MacKenzie duly filed a further application for leave to appeal to the

Court  of  Appeal  on  31 January  2013.     The  arguments  foreshadowed  in  that application were that:

The decisions of the Legal Services Commissioner and the Legal Aid Tribunal  were  manifestly  unreasonable  and  wrong  in  law.   Although Mr MacKenzie did not contend my judgment had the same deficiencies, given  that  I  upheld  the  decision  below  the  same  criticism  must  be

implicit.

The decisions had wrongly assessed him as having an untenable claim

when he had strong prospects of success.

The decisions were wrong to treat him as not having standing to bring a claim in his own name.  (Mr MacKenzie has expressly rejected the notion

of seeking authority to sue in the name of his son’s estate.)

The decisions were wrong to characterise him as a “secondary victim” for

the purposes of excluding him from those who could bring a claim.

The decisions had wrongly assumed he would be claiming exemplary damages when he was not seeking either exemplary or compensatory

damages but “an all inclusive settlement”.

The  decisions  had  wrongly  interpreted  how  the  provisions  of  the Limitation Acts 1950 and 2010 would apply so that his claim could not be rejected as time-barred.  Further, that it would be iniquitous for a Crown agency to raise the Limitation Act defence against him when two Attorneys-General have responded to his complaints to them by inviting

him to commence proceedings.

[10]     Mr MacKenzie then argued that further pursuit of his arguments on each of these grounds assumes general or public importance because of what he claimed is a high level of public interest in the injustice involved in the wrongdoing he seeks to

disclose.    Mr MacKenzie  cited  the  extent  of  media  coverage  of  the  previous argument before me as evidencing a requisite level of importance for the matter to be referred to the Court of Appeal.

[11]     I  had  numerous  exchanges  with  Mr MacKenzie  about  the  distinction between:

the level of public interest that might be generated in a complaint about a hospital disobeying a family’s instructions in removing the heart from a recently deceased family member, and alleged wrongdoing by hospital authorities in circumstances surrounding the death and taking of the heart,

and

the relative importance of a question of law which an applicant for leave

must define for further argument in the Court of Appeal.

[12]     Mr MacKenzie appeared not to understand that the level of public interest in an issue generally does not, of itself, make out the requirement for any question of law  that  might  arise  in  the  proceedings  also  having  requisite  importance  as  a question of law.

[13]     Here, there is a disconnect between the sense of injustice Mr MacKenzie feels at not receiving state funding to pursue proceedings seeking to hold hospital authorities accountable for alleged wrongdoing in the removal of his son’s heart, and legal  issues  arising  in  the  analysis  of  the  criteria  required  to  be  considered  in assessing Mr MacKenzie’s entitlement to a grant of legal aid.

[14]     On all but the last of the issues Mr MacKenzie cited as having requisite importance, his arguments were a repetition of those considered previously.  He said that he had failed to put the arguments well at the last hearing.  However, apart from the importance of them to Mr MacKenzie’s crusade, he did not identify any reasons why they should be attributed importance as questions of law.

[15]     As to his Limitation Act arguments, Mr MacKenzie would now argue that the provisions of s 28 of the Limitation Act 1950 would apply to postpone the date on which the limitation period would start to run, because of either or both of fraud or mistake. That section relevantly provided:

28       Postponement of limitation period in case of fraud or mistake

Where,  in  the  case  of  any  action  for  which  a  period  of  limitation  is prescribed by this Act, either—

(a)       The action is based upon the fraud of the defendant or his agent or of any person through whom he claims or his agent; or

(b)      The right of action is concealed by the fraud of any such person as aforesaid; or

(c)       The action is for relief from the consequences of a mistake,—

the  period  of  limitation  shall  not  begin  to  run  until  the  plaintiff  has discovered the fraud or the mistake, as the case may be, or could with reasonable diligence have discovered it:

…

[16]     The fraud which Mr MacKenzie might arguably invoke was the prevarication and arguably misleading answers that he was given to his enquiries as to what precisely happened to his son’s heart.  Any obstruction to his establishing all the factual elements that he would need in order to bring the claims he contemplates was cleared away by March 2005.   However, that is the date that has been used consistently as the date from which time ran, to assess the availability of the Limitation Act defence.

[17]     As  to  the  prospect  of  relevant  mistake,  Mr MacKenzie  would  cite  as  a mistake his lack of awareness of the terms of s 28 as a means of deferring the commencement of the running of time for the purposes of the Limitation Act. However, the lack of awareness of a statutory provision that could be used to defer the limitation period, but is not raised in the pleadings, is not a mistake of the type that might avail for that purpose in s 28.

[18]     Accordingly, I am satisfied that Mr MacKenzie is not able to identify any question of law which has a measure of general or public importance, or which for any other reason ought to be submitted to the Court of Appeal for what would be a

fourth consideration of his claimed entitlement to legal aid for proceedings of the type that he is contemplating.

[19]     For  the  respondent,  Mr Duncan  MacKenzie  drew  to  my  attention  that Mr MacKenzie has apparently recently commenced, in the Tauranga Registry of the Court, a claim of the type for which he has been seeking legal aid.  Although the respondent is inclined to suggest that the commencement of such proceedings belies the claim that Mr MacKenzie could not commence such proceedings without legal aid, I have not placed any reliance on the apparent existence of those proceedings.

[20]     The application for leave must be, and is, dismissed.

Dobson J

Solicitors:

Minter Ellison Rudd Watts, Wellington for respondent

Copy to:

J M MacKenzie, Tauranga