MACKENZIE v LEGAL SERVICES COMMISSIONER HC WN CIV-2012-485-1299

MACKENZIE v LEGAL SERVICES COMMISSIONER HC WN CIV-2012-485-1299 [18 March 2013]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2012-485-1299[2013] NZHC 511UNDER section 59 of the Legal Services Act 2011IN THE MATTER OF an appeal from a decision of the Legal AidTribunalBETWEEN JOHN MORGAN MACKENZIEAppellantAND LEGAL SERVICES COMMISSIONERRespondentHearing: 11 March 2013Counsel: Appellant in personD P MacKenzie for respondentJudgment: 18 March 2013RESERVED 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.[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.1 MacKenzie v Legal Services Commissioner [2012] NZHC 3098.[3] The background to Mr MacKenzie's attempts to bring proceedings againstthe 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have the Court acknowledge the wrongdoing that he considers was involved when (on his reconstruction) life support was withdrawn from his son afterhe was fatally injured in a motor cycle accident. His son's heart was removed inTauranga Hospital for transporting to Greenlane Hospital where at least one valve ofit was used in a transplant operation. The deceased's family did not consent to hisheart 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 fromthe 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.32 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" forthe 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 compensatorydamages 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 todisclose. 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 ahospital 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, andthe 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 hospitalauthorities accountable for alleged wrongdoing in the removal of his son's heart, andlegal 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 mistakeWhere, 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 whatprecisely 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 afourth 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 JSolicitors:Minter Ellison Rudd Watts, Wellington for respondentCopy to:J M MacKenzie, Tauranga