MacKenzie v Legal Services Commissioner [2013] NZCA 326 (23 July 2013)

Last Updated: 31 July 2013

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

1. The application for special leave to appeal is declined.
2. There is no order as to costs.

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REASONS OF THE COURT

(Given by White J)

[1] 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]
[2] 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]
[3] 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 20yearold 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.
[4] Information from the National Transplant Donor Co-ordination Office confirming the transplant was not, however, received by Mr Mackenzie until March 2005.
[5] 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.
[6] 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]
[7] 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.
[8] 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.

[9] Dissatisfied with Dobson J’s decision, Mr Mackenzie first sought leave from the High Court to appeal to this Court. He argued that the further pursuit of his arguments was of general or public importance because of the high level of public interest in the wrongdoing he seeks to disclose.
[10] Dobson J declined Mr Mackenzie’s application for leave to appeal. The Judge pointed out:

[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.

[11] Dobson J therefore concluded that Mr Mackenzie had not identified a question of law justifying the grant of leave to appeal.
[12] Mr Mackenzie’s application for special leave to appeal to this Court is brought under s 144 of the Summary Proceedings Act 1957 which applies by virtue of s 59 of the Legal Services Act. Although s 144 has been repealed by s 7(2) of the Summary Proceedings Amendment Act (No 2) 2011 as from 1 July 2013, s 144 continues to apply to this proceeding by virtue of s 397(2) of the Criminal Procedure Act 2011. This is in accord with the principles of ss 7 and 18 of the Interpretation Act 1999.
[13] By s 144(3) of the Summary Proceedings Act, an applicant for special leave to appeal must satisfy this Court that:

(a) there is a question of law;

(b) the question of law is one that ought to be submitted to this Court by reason of its general or public importance, or for some other reason; and

(c) the Court is of the opinion that it ought to be submitted.

[14] It is well-established that these criteria are to be strictly applied^[5] and that s 144 does not provide a further tier of appeals to this Court.^[6]
[15] Mr Mackenzie filed detailed submissions in support of his application for special leave to appeal and supplemented them with oral submissions during the hearing of his application in this Court. In particular, he disputes Dobson J’s categorisation of him as a “secondary victim”. He argues that Kenneth cannot be treated as the primary victim as he is no longer alive. Mr Mackenzie also steadfastly challenges the argument that his claim is barred by the Limitation Act 1950.^[7] He submits that s 28 of that Act, which allows for postponement of limitation periods in the case of fraud or mistake, applies in this case. Mr Mackenzie argues that the prospects of his intended claim are “perfect” and therefore his claim for civil legal aid should succeed. He also relies on the reference in s 144(3) of the Summary Proceedings Act to “some other reason” as supporting his application.
[16] We have considered all of Mr Mackenzie’s submissions carefully, but are unable to identify any question of law justifying the grant of leave to appeal. The decision of Dobson J is clearly correct. Mr Mackenzie has no standing to bring a personal claim and his intended claim is in any event well out of time. We agree with Dobson J that it was therefore open to the Commissioner applying s 10(4)(d)(i) of the Legal Services Act to decline the application for legal aid.
[17] In the absence of any identifiable question of law, the further questions, namely whether the question of law is one of general or public importance or for “some other reason” ought to be submitted to the Court, do not arise in this case.
[18] As the criteria for special leave are therefore not met, the application for special leave to appeal is declined.
[19] The respondent did not seek an order for costs. We agree that in the circumstances of this case there should be no order.

Solicitors:
Minter Ellison Rudd Watts, Wellington for Respondent

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

^[2] MacKenzie v Legal Services Commissioner [2013] NZHC 511.

^[3] Re CE (Civil) [2012] NZLAT 023.

^[4] van Soest v Residual Health Management Unit [2000] 1 NZLR 179 (CA).

^[5] R v Slater [1997] 1 NZLR 211 (CA) at 215.

^[6] Nottingham v T CA 216/00, 26 March 2001 at [13].

^[7] The provisions of the Limitation Act 1950 continue to apply by virtue of s 59 of the Limitation Act 2010.