MACKENZIE V THE ATTORNEY-GENERAL [2016] NZCA 24

MACKENZIE V THE ATTORNEY-GENERAL [2016] NZCA 24 [22 February 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA591/2015[2016] NZCA 24BETWEEN JOHN MORGAN MACKENZIEApplicantAND THE ATTORNEY-GENERALRespondentHearing: 15 February 2016Court: Wild, Winkelmann and Kós JJCounsel: Applicant in personI M G Clarke for RespondentJudgment: 22 February 2016 at 4 pmJUDGMENT OF THE COURTA Application for special leave to appeal is declined.B The applicant must pay the respondent costs on this application for special leave on a band A basis and usual disbursements.C Application for transcript of hearing declined.____________________________________________________________________REASONS OF THE COURT(Given by Winkelmann J)[1] Mr Mackenzie seeks special leave under s 26P(1AA) of the Judicature Act 1908 to appeal a decision of the High Court by Andrews J,1 upholding a decision of Associate Judge Bell striking out Mr Mackenzie's claim.21 Mackenzie v Attorney-General [2015] NZHC 1876 [HC decision].2 Mackenzie v Attorney-General [2015] NZHC 191 [AJ decision].[2] Mr Mackenzie's son, Kenneth, was fatally injured in a motorcycle accidenton 1 October 1987. Mr Mackenzie says that a doctor asked him for consent to takeKenneth's aortic valve but he refused. In 2002 Mr Mackenzie began to makeenquiries about what had happened to Kenneth's heart. On 21 March 2005 the National Transplant Donor Co-ordination Office confirmed to Mr Mackenzie that hisson's aortic valve had been removed and successfully transplanted.[3] On 31 August 2006 Mr Mackenzie wrote to the Crown Health Financing Agency (CHFA), at that time the Crown entity responsible for liabilities arising out of the actions of hospital boards and their staff prior to 1 July 1993. In his letter he set out the facts and sought compensation. He received a prompt reply saying the CHFA would be referring the matter to the Crown Law Office for advice. The CHFA wrote again on 24 November 2006, acknowledging correspondence from Mr Mackenzie in August and September 2006. In that letter, it said that the valve was removed during the post-mortem process by the Coroner because at the time valves were taken from otherwise healthy hearts at post-mortem for possible later transplantation. The CHFA said that in its view this would not constitute an actionable wrong, secondly, in any case the CHFA was not responsible for the actions of the Coroner, and thirdly, the Limitation Act [1950] would be a likely bar to any claim. The CHFA denied liability.[4] Mr Mackenzie commenced this proceeding against the CHFA on 23 November 2012. He alleged his son's heart had been removed without consent,and that was only disclosed to him after many years of seeking an explanation. The CHFA owed him a duty under which it was "legally required to agree with theevidence provided and offer acceptable compensation claimed and agree to libel damages for the obstruction to the Justice I have sought over many years at greatcost to me". Along with a statement of claim he filed an affidavit providing moredetail, particularly of his attempts to obtain acknowledgement of the removal and compensation.[5] The respondent applied to strike the proceeding out on the grounds that the statement did not disclose a reasonably arguable cause of action, and that allconceivable causes of action were time barred under the provisions of the Limitation Act.[6] In his judgment Associate Judge Bell substituted the Attorney-General for the CHFA as defendant.3 He traced through the various statutory reconstructions of the health sector, and concluded that the CHFA no longer existed, and that the Attorney-General was the appropriate defendant.[7] The Associate Judge was satisfied that Mr Mackenzie had an arguable case that as the personal representative of his son he could sue for the unauthorised removal of the aortic valve from Kenneth's body for use in a transplant operation onthe basis of a claim in tort.4 However, the Associate Judge struck out the claim as statute-barred pursuant to the Limitation Act on the basis that the limitation period started on [2] October 1987 when Kenneth's heart was removed, or at the latest,21 March 2005.5[8] Mr Mackenzie then applied to review the decision of Associate Judge Bell.[9] Before Andrews J Mr Mackenzie accepted that as the CHFA had been disestablished by statute, another defendant must be named but argued that Crown Law was the appropriate defendant. Andrews J held that the Associate Judge did not err in holding that the Attorney-General was the appropriate defendant because there was no statutory provision to the effect that Crown Law may sue or be sued in its own name (as is necessary under s 14(2)(a) of the Crown Proceedings Act 1950).6[10] Andrews J also found that the Associate Judge was right to find that the limitation period started to run on 2 October 1987 or (at the latest) 21 March 2005.7She said that the only basis to extend the start of the limitation period would be s 28(b) of the Limitation Act which provides for a postponed start to the limitation3 At [18].4 At [75].5 At [86] and [89].6 HC decision, above n 1, at [32] and [33].7 At [43].period in causes of alleged fraud.8 But the fact that Kenneth's heart had been takenwas made clear by the letter of 21 March 2005. That was the latest possible date. Adopting that date, the statement of claim was filed some 20 months out of time.[11] The Judge also addressed an argument advanced by Mr Mackenzie that theCHFA's letter of 24 November 2006 was evidence of a breach of statutory duty orbreach of duty of care, and that breach restarted the six-year limitation period.9The Judge found that the statement of claim did not contain such an allegation and to plead it now would require an amended statement of claim with a fresh cause of action, which would also face the Limitation Act obstacle.[12] Andrews J declined leave to appeal on 14 September 2015 concluding thatboth the judgment of Associate Judge Bell and her own judgment involve the application of well-established law, in an orthodox manner.10Application for special leave[13] The principles to be applied in respect of an application for special leave under s 26P(1AA) of the Judicature Act are as for a second appeal under s 67 of that Act.11 The appeal must raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal.12[14] The grounds on which Mr Mackenzie seeks leave to appeal are as follows:(a) That Andrews J erred in finding that his claim was statute-barred, because the limitation period had been postponed by the reason of theCHFA's fraudulent concealment of his claim, at least until the time of the letter he received from the CHFA declining his claim in November2006. The CHFA's response entailed an intention to deceive whichwas sufficient to invoke the fraud exception.8 At [45].9 At [47].10 Mackenzie v Attorney-General [2015] NZHC 2208 at [11].11 Gregory v Gollan HC Auckland CIV-2005-404-3485, 4 July 2007 at [5] and [6].12 Snee v Snee (1999) 13 PRNZ 609 (CA) at [15]; and Waller v Hider [1998] 1 NZLR 412 (CA) at 413.(b) The Judge also erred in finding that his claim against Crown Law was not adequately pleaded in the statement of claim. There was no need to amend the pleading to add it in. That being the case, alleging as he did a breach of statutory duty, that claim was not time-barred.(c) The Judge was wrong to find that he could not sue Crown Law.Analysis[15] None of the grounds which Mr Mackenzie seeks leave to advance is capable of serious and bona fide argument. For the reasons articulated by Andrews J, Mr Mackenzie's claim is time-barred under the Limitation Act. As Mr Mackenzie'sclaim is in tort, s 4(1)(a) of the Limitation Act applies. Time started running from 2 October 1987 when the heart valve was removed from Kenneth's body. Even ifMr Mackenzie is correct that the fact the valve had been removed from Kenneth'sbody was fraudulently concealed, it is nevertheless the case that once he received the letter of 21 March 2005 from the National Transplant Donor Co-ordination Office, telling him about the transplant, Mr Mackenzie knew all of the facts required to start a proceeding. This is the latest point in time at which time could be said to run forthe purposes of the Limitation Act. The CHFA's refusal of liability cannot amount tofraudulent concealment for the purposes of s 28(b) of the Limitation Act. It was no more than a refusal of liability.[16] As to the second proposed ground of appeal, Mr Mackenzie's argument wasclarified, if not re-formulated, in argument before us. He argued that the claim as pleaded against Crown Law was for negligent advice to the CHFA which caused the CHFA to decline liability. Mr Mackenzie says he should be entitled to sue Crown Law for that negligent advice because it caused him damage.[17] The claim as pleaded contains only two references to Crown Law, and then only as part of a narrative. There is no relief sought against Crown Law and no allegation of wrongful conduct on its part.[18] Mr Mackenzie says the Judge should also have had regard to the affidavit he filed with the statement of claim. Even if that were permissible, the affidavit isentirely consistent with the claim as pleaded. It does not assist Mr Mackenzie with this argument.[19] The Judge was therefore correct to say that if Mr Mackenzie were to seek a breach of statutory duty claim he would need to amend his pleading. The rule enabling fresh causes of action is r 7.77(2) of the High Court Rules. Rule 7.77(2) states an amended pleading may only introduce a fresh cause of action if that cause of action is not itself statute-barred. The fresh cause of action must be within time as at the date it was introduced into the amended pleading. The time limit for breach of statutory duty and negligence is six years.13 Mr Mackenzie would be out of time to file additional claims of that nature.[20] Finally, for the reasons given by Andrews J, there was no argument available to Mr Mackenzie that the proper defendant to this claim is Crown Law. Even if it were, that would not enable Mr Mackenzie to step around the Limitation Act barrier his claim faces.[21] Accordingly we are satisfied that Mr Mackenzie's proposed appeal is notcapable of bona fide and serious argument and that leave should be declined.[22] Mr Mackenzie asked that a transcript of this hearing be typed up and made available to him. Because there is time and expense involved in the preparation of a transcript of a hearing, transcripts are not prepared as a matter of course. Mr Mackenzie did not advance any good reason for requiring a transcript. Accordingly, that application is also declined.Result[23] We decline Mr Mackenzie's application for special leave to appeal thedecision of Andrews J dated 11 August 2015.[24] The respondent is entitled to costs on this application for special leave on a band A basis and usual disbursements.13 Limitation Act 1950, s 4(1)(a) and 4(1)(d).[25] Mr Mackenzie's request for a transcript of this hearing is declined.Solicitors:Crown Law Office, Wellington for Respondent