MacKenzie v Legal Services Commissioner - [2012] NZHC 3098

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…

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: [2012] NZHC 3098
Decision Date: 21 November 2012

CaseChat Overview and Summary

The appeal in MacKenzie v Legal Services Commissioner involved Mr. MacKenzie, who sought civil legal aid to pursue proceedings against the Crown Health Funding Agency. The crux of the appeal was the denial of legal aid by the Legal Services Commissioner, upheld by the Legal Aid Tribunal, on the grounds that Mr. MacKenzie's claim lacked sufficient prospects of success. Mr. MacKenzie believed his son's heart was unlawfully removed for transplant purposes without his consent, and he sought damages for the distress and alleged cover-up.

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.

Orders