IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2012-485-1299 [2012] NZHC 3098
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: 7 November 2012
Appearances: Appellant in person (by videolink) D P MacKenzie for respondent
Judgment: 21 November 2012
RESERVED JUDGMENT OF DOBSON J
[1] This is an appeal from a decision of the Legal Aid Tribunal (the Tribunal) upholding an original decision by the Legal Services Agency not to grant the appellant (Mr MacKenzie) civil legal aid to pursue proceedings against the Crown Health Funding Agency. Both decisions were made on the ground that Mr MacKenzie’s proposed claim lacked sufficient prospects of success. The Tribunal’s decision, delivered on 30 May 2012, can only be challenged on a point of
law.[1]
MACKENZIE v LEGAL SERVICES COMMISSIONER HC WN CIV-2012-485-1299 [21 November 2012]
[1] Legal Services Act 2011, s 59.
[2] To understand the context in which Mr MacKenzie has pursued this appeal, it is necessary to provide some detail of the circumstances in which he appears to be driven by a deep sense of grievance and injustice.
[3] On the evening of Thursday, 1 October 1987, Mr MacKenzie’s son, Kenneth John MacKenzie, aged 20, crashed his motorcycle, suffering severe head injuries. He was admitted to Tauranga Hospital where he was pronounced dead at 2am the following morning, after life support had been terminated.
[4] Kenneth’s heart was removed. There is a dispute about whether it was done immediately after he died, or during an autopsy some 12 hours later. The point matters because Mr MacKenzie believes the heart was removed at once for transplant purposes. Some support for that view may be found in evidence that the family were asked to authorise a transplant, but refused. There is an issue whether the coroner authorised the subsequent autopsy at all, and whether the autopsy was done as a pretext to justify taking the heart.
[5] The heart was taken to Greenlane Hospital in Auckland, where one of the valves was successfully transplanted into a 16 year old girl. What happened to the rest of the heart is not known for sure. It was likely treated as human tissue and cremated in Auckland. It was not usual at the time to return such tissue to the deceased’s family for burial.
[6] Kenneth’s family were not told at the time what had happened to the heart. The autopsy report indicates only that it was removed and weighed during the autopsy. Mr MacKenzie has long harboured suspicions about what happened. His reconstruction of events is that Kenneth’s mother had attended the hospital after Kenneth had been put on life support, and arranged with the doctor supervising his care that her son would stay on life support until 9am in the morning, affording an opportunity for the family to gather and make a decision in light of his condition about…
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- Case
- [2012] NZHC 3098
- Decision Date
CaseChat Overview and Summary
The central legal issues revolved around the likelihood of success for Mr. MacKenzie's claim. Key questions included whether Mr. MacKenzie could establish a recognisable psychiatric disorder, whether he had standing to sue as a secondary victim, and whether his claim was barred by the Limitation Act 1950. Additionally, the court considered whether the removal of the heart complied with the Human Tissues Act 1964 and whether any damages claimed would be recoverable.
The court found that Mr. MacKenzie could not establish a recognisable psychiatric disorder, which is necessary for a secondary victim to claim for mental suffering. Furthermore, the court determined that any claim for damages would be limited to compensatory damages, which Mr. MacKenzie could not substantiate. The court also held that the claim was likely to be time-barred under the Limitation Act 1950. Given these findings, the prospects of success for Mr. MacKenzie's claim were deemed very remote. The court further noted that the Tribunal was correct in concluding that Mr. MacKenzie's claim had no real prospects of success.
The appeal was dismissed, and the court denied the request for name suppression, emphasizing the principles of open justice. The Legal Services Commissioner was awarded costs, though the court suggested that enforcement of these costs might be reconsidered depending on future interactions with Mr. MacKenzie.
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