Foote v Police
[2022] NZHC 1670
•14 July 2022
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CIV-2022-463-9
[2022] NZHC 1670
BETWEEN TONY CHARLES FOOTE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 29 June 2022 Appearances:
E R Dyche for the Appellant
A L McConachy for the Respondent
Judgment:
14 July 2022
JUDGMENT OF GORDON J
This judgment was delivered by me on 14 July 2022 at 12pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors/Counsel:
E R Dyche, Pawson Law Ltd, Te Puke
A L McConachy, Crown Solicitor, Rotorua
FOOTE v NEW ZEALAND POLICE [2022] NZHC 1670 [14 July 2022]
[1] This is an appeal on a question of law concerning rights of appeal under the Arms Act 1983 (the Act). On 18 October 2020 the Police revoked the firearms licence held by the appellant, Tony Foote. The revocation was during the promulgation period for amendments to the Act which changed the appeal regime. The new appeal provisions came into force on 24 December 2020.
[2] Judge Ingram in the District Court held that the appeal process was governed by the new appeal regime. Because Mr Foote had not fulfilled the requirements of the (new) preliminary step of first applying to the Commissioner of Police (Commissioner) for a review of the decision to revoke his firearms licence within the statutory timeframe, the Judge held the Court had no jurisdiction to hear Mr Foote’s appeal against revocation.
[3] In the District Court counsel and the Judge proceeded under the misapprehension that Mr Foote’s appeal rights under the old regime were still live at the date the new appeal provisions came into force. All concerned overlooked r 18.4(2)(b) of the District Court Rules 2014 which requires the appeal to be brought within 20 working days after the decision appealed against is given.
[4] The Notice of Appeal in this Court was filed under the same mistaken belief. Counsel for Mr Foote and the Police both filed their written submissions in this Court also on the basis that Mr Foote’s appeal rights were still live at the relevant time. However, shortly before the hearing, counsel for the Police, Ms McConachy, alerted the Court and counsel for Mr Foote, Ms Dyche, to the provision in r 18.4(2)(b).
[5] Applying that rule, Mr Foote’s appeal rights under the old regime expired at the end of the day on Monday 16 November 20201. Ms Dyche accepts that was the case. However, she takes the position that there is nevertheless still a live issue before this Court. That is because r 18.4(3)(b) of the District Court Rules provides that by special leave the Court may extend the time prescribed for appealing if the enactment that confers the right of appeal does not limit the time prescribed for bringing the appeal. Neither the Act nor the District Court Rules contain a time limit on making an application for special leave.
1 Allowing for Labour Day on 26 October 2020.
[6] The appellant’s position is that the “right” to apply for special leave to extend the time to bring an appeal applies in Mr Foote’s case, notwithstanding the new appeal regime.
[7] The Police oppose the appeal and say that Judge Ingram correctly decided that the new appeal regime applied, notwithstanding that the revocation date was prior to the new provisions coming into force.
Background
[8]A chronology is important to the legal issue.
[9]On 24 June 2020, amendments to the Act received Royal Assent.
[10] On 18 October 2020, Mr Foote was served with a Notice of Revocation of his firearms licence,2 and his firearms were uplifted.
[11] On 7 December 2020, the Police notified Mr Foote to the effect that he had a choice between voluntarily surrendering his firearms licence for 12 months3 or continuing with the revocation process. Notwithstanding this letter, counsel agreed both in the District Court and this Court that the revocation date was 18 October 2020.
[12] On 23 December 2020, Mr Foote notified Police that he refused to surrender his licence. The revocation process therefore continued.
[13]On 24 December 2020, the relevant amendments to the Act came into force.
[14] On 22 February 2021, Mr Foote took steps under both the old and new appeal provisions. He sought a review of the revocation decision by the Commissioner and filed an originating application to appeal the revocation decision in the District Court.4
2 Pursuant to Arms Act 1983, s 27(1)(a), [now s 27(2)(a)] on the basis that Mr Foote was not a fit and proper person to be in possession of a firearm, in the opinion of a commissioned officer of Police.
3 Pursuant to Arms Act 1983, s 27(2), [now s 27(1)] which provides that a person may at any time surrender their firearms licence to a member of the Police.
4 Mr Foote’s legal adviser appears to have been unsure which pathway was correct, and so took action under both the old and new regime.
Ms Dyche advised the Court from the bar that former counsel requested the District Court put the appeal on hold while awaiting the outcome of the Commissioner’s review. Counsel followed up the application for review, but no response was forthcoming. As a consequence counsel determined to proceed with the appeal in the District Court.
[15] On 25 November 2021, the appeal was heard by Judge Ingram in the Tauranga District Court. In a reserved judgment dated 22 February 2022, Judge Ingram held that the District Court had no jurisdiction to hear the appeal and dismissed the appeal.
Grounds of appeal and appeal rights
[16] The current appeal concerns a question of law and is brought pursuant to s 64 of the Act.
64 Appeal on a question of law
(1) Where any party to any appeal under section 62B5 or to any application under section 63 is dissatisfied with the decision of the District Court Judge as being erroneous in point of law, he may appeal to the High Court on the question of law only.
[17] The Notice of Appeal dated 23 March 2022 says the District Court Judge erred in law when he dismissed the appeal on the basis that he did not have jurisdiction to hear the appeal because Mr Foote had not complied with the requirements of the new legislation. In particular, the Judge erred when he applied the new legislation rather than the old, and failed to recognise that this approach left Mr Foote with no avenues for appeal.
Relevant law
[18] The Act underwent a substantial review in 2019.6 The bill received Royal Assent on 24 June 2020. The provisions relevant to this appeal came into effect on 24 December 2020.
5 Section 64(1): amended, to refer to s 62B (rather than s 62 in original), on 24 December 2020, by section 92 of the Arms Legislation Act 2020 (2020 No 23).
6 The review was a response to the terrorist attacks by a lone gunman on two Christchurch
mosques in March 2019 and the principal purpose of the recommended changes was to better manage the risks of firearms misuse.
[19]A purpose section was introduced, as follows:7
1A Purposes of this Act
(1)The purposes of this Act are to—
(a) promote the safe possession and use of firearms and other weapons; and
(b) impose controls on the possession and use of firearms and other weapons.
(2)The regulatory regime established by this Act to achieve those purposes reflects the following principles:
(a) that the possession and use of arms is a privilege; and
(b) that persons authorised to import, manufacture, supply, sell, possess, or use arms have a responsibility to act in the interests of personal and public safety.
[20]Commentary on the inclusion of the purpose section observed:8
A purpose statement is a key aid to interpreting the Act and anchors all actors in the firearms regulatory regime to a set of clear and transparent expectations and principles. It helps users of the legislation to understand decisions and actions should be underpinned by behaviours and practices that are consistent with personal and public safety. It helps the Courts to interpret the Act.
[21] Significant changes were made to appeal rights against official decisions, including a decision to revoke a firearms licence. Previously, s 62 afforded a person whose firearms licence had been revoked a right of appeal to the District Court, by way of originating application. No time limit on filing such an application was prescribed under the Act. The old s 62 relevantly provided:
62 Right of review of official decisions
(1) This subsection applies to–
…
(a) a person who has had 1 of the following … revoked:
…
(iii) a firearms licence:
…
(1A) A person to whom subsection (1) applies may, by way of originating application, appeal to a District Court Judge from the determination, refusal, imposition of conditions, revocation, or service.
…
[22] Although there was no time limit in the old statutory regime for bringing an appeal by way of originating application, as noted above, it is now accepted by both
7 Inserted, on 25 June 2020, by section 5 of the Arms Legislation Act 2020 (2020 No 23).
8 New Zealand Police Arms Legislation Bill: Commentary (October 2019) at 5.
parties that the time limit of 20 working days in r 18.4(2)(b) of the District Court Rules applied. Rule 18.4 provides:
18.4 Time for appeal if there is right of appeal
(1)This rule applies if a party has a right of appeal to the court.
(2)An appeal must be brought—
(a) within the specified period if the enactment that confers the right of appeal specifies a period within which the appeal must be brought; or
(b) in every other case, within 20 working days after the decision appealed against is given.
(3)By special leave, the court may extend the time prescribed for appealing if the enactment that confers the right of appeal—
(a) permits the extension; or
(b) does not limit the time prescribed for bringing the appeal.
(4)An application for an extension—
(a) must be made by an interlocutory application on notice to every other party affected by the appeal; and
(b) may be made before or after the expiry of the time for appealing.
[23] Under the amended provisions of the Act (ss 62, 62A, 62B, and 62C) the applicant must first apply to the Commissioner for a review of the decision revoking a firearms licence. The application must be made in the prescribed manner, and within 28 days of the date on which they receive the notice of the relevant decision.9 The review decision will be made on the papers within 28 days of the application being lodged, and the applicant will be notified of the review decision in writing.10 The Commissioner may accept a late application no later than 28 days after the end of the first 28 day period if satisfied there are extenuating circumstances that affected the person’s ability to apply in time.11
[24] The revocation decision may only be appealed to the District Court once the Commissioner’s review has been completed and the applicant has been notified.12 No time limit is stipulated for an appeal to the District Court under the new legislation.
[25] The parties were agreed that r 18.4 of the District Court Rules continues to apply and that, under the new regime, the time limits in the Rule operate from the date of the Commissioner’s review decision.
9 Section 62(2), (3), (4).
10 Section 62A(2), (3).
11 Section 62(5).
12 Section 62B(2).
[26]The relevant parts of the new provisions follow:
62 Right of review of official decisions13
(1) This section applies to a decision to refuse an application for, or to revoke, a firearms licence.
(2) A person who is the subject of a decision to which this section applies may apply in the prescribed manner to the Commissioner for a review of the decision.
(3) An application must state—
(a)the decision that the applicant wishes to be reviewed; and
(b)the reasons why the applicant thinks the decision should be reviewed; and
(c)the outcome the applicant is seeking.
(4) An application must, subject to subsection (5), be made within 28 days after the date on which notice of the relevant decision is given to the person.
(5) The Commissioner may accept a late application no later than 28 days after the closing date in subsection (4) if satisfied that there are extenuating circumstances that affected the ability of the claimant to make the application by the closing date.
62B Right of appeal to District Court14
(1) A person who is the subject of a decision referred to in paragraph (a) or
(b) or is a person described in paragraph (c) may, by way of originating application, appeal to a District Court Judge against the decision as follows:
...
(b) a decision to issue subject to conditions imposed by a member of the Police, or to revoke, any of the following:
...
(iii) a firearms licence:
...
(2) However, in the case of a decision to which section 62 applies, a person has no right of appeal under this section unless the person has—
(a)first applied under section 62 for a review of the decision; and
(b)been notified of the reviewer’s decision.
(3) On hearing an appeal under subsection (1), the District Court Judge may, subject to subsection (5), confirm, vary, or reverse the decision appealed against.
(4) Subsection (5) applies if—
...
(b) a firearms licence has been revoked on the ground set out in section 27(2).
(5) If this subsection applies, the District Court Judge may, even though the Judge finds that ground established, vary or reverse the decision appealed against if satisfied that, since the decision was given, adequate measures have been taken to deny access to the firearm to the person whose likelihood of access to it was the basis of the refusal or revocation.
13 Section 62: replaced, on 24 December 2020, by section 90 of the Arms Legislation Act 2020 (2020 No 23).
14 Section 62B: inserted, on 24 December 2020, by section 90 of the Arms Legislation Act 2020 (2020 No 23).
[27]The rationale for the new appeal regime was explained as follows:15
Currently a person may make an appeal to the District Court in relation to certain decisions. This is costly to the individual and creates a burden on the Courts. Introducing an intermediary step, for some decisions, provides an opportunity to ensure those decisions are robust and in some cases will avoid the need to appeal to the Courts.
[28] In a related report on the Bill by the New Zealand Police, the Department commented that:16
The review step will provide an opportunity to ensure that decisions are robust. Outcomes could be that the decision is changed (avoiding court), the decision is explained better (which may avoid a court appeal), or Police or the applicant will be better prepared to bring or defend an appeal. The appeal right to the district court remains.
District Court decision
[29] In the District Court, Judge Ingram held that the requirements imposed by the new regime applied to Mr Foote. Accordingly, as Mr Foote had not first applied to the Commissioner for a review of the revocation decision and been notified of the reviewer’s decision, he had no right of appeal to the District Court under s 62B.
[30] The Judge reviewed the background to the appeal, the relevant law and submissions on behalf of Mr Foote and the Police. The Judge then found that Mr Foote’s appeal rights were properly governed by the amended legislation and dismissed the appeal on the basis that he did not have jurisdiction to decide it. As noted above, the decision was given on the (mistaken) basis that Mr Foote’s appeal rights under the old regime were extant on 24 December 2020. However, aspects of the Judge’s reasoning can be said to relate to the new and more limited basis on which the appeal was argued in this Court. The Judge’s reasons were as follows:
[19] A significant feature of the new legislation is the imposition of time limits for both the review process and appeals. The legislative purpose must have been to introduce limits on the right of appeal. Those notified of an appealable decision prior to the commencement date of the new legislation must be taken to have had knowledge of the change. In my view, effect must be given to that intention. The legislation can be read as requiring prospective appellants in relation to decisions made after the legislation was passed, but before it came
15 Arms Legislation Bill, above n 8, at 27.
16 New Zealand Police Finance and Expenditure Committee Final Departmental Report: Arms Legislation Bill (2 December 2019) at 147.
into force, to file their appeals on or before the new legislation’s commencement date. Failing that, they are required to comply with the new more restrictive appeal rights.
[20] In light of the Commissioner’s power to extend time, and the absence of a corresponding power vested in the Court, and the extended period after the legislation received the Royal Assent before coming into force, I consider that the legislature must have intended that prospective appellants were required to act promptly or risk the time bar. On this view, the right to appeal an adverse decision was not removed by the new legislation, but the time within which the appeal must be commenced was truncated by the prospective operation of the new time limits.
[31] In summary, Judge Ingram held that Mr Foote could be taken to have had knowledge of the legislative change, that he had the option of either appealing directly to the District Court under the old regime prior to 24 December 2020 or seeking a review of the decision by the Commissioner under the new regime on or after that date. The Judge considered that appeal rights per se survived the amendment, subject to new time limits; that the effect of the amendments coming into force was prospective (rather than retrospective); and that the purpose of the legislation was to promote a prompt response from persons affected by official decisions on firearms licences. For all those reasons, Judge Ingram held that the new regime applied to Mr Foote from 24 December 2020. As Mr Foote had not complied with the new requirements, Judge Ingram found that he did not have jurisdiction to hear the appeal.
Appellant’s position
[32] Ms Dyche submits that Mr Foote’s “right” to seek special leave to extend time for appealing the revocation decision to the District Court irrevocably accrued on 18 October 2020, the date of the notice of revocation, and is unaffected by the commencement of new legislation on 24 December 2020. In short, she says that “right” arose prior to the new legislation and continues. Therefore, the new provisions have no application to Mr Foote; the requirement to seek a review by the Commissioner and associated time limits are irrelevant. On this approach, Mr Foote is able to apply for special leave to extend the time for appealing the revocation decision to the District Court in accordance with the pre-amendment process.
[33] Ms Dyche relies on s 33 of the Legislation Act 2019. She submits that, pursuant to s 33(1)(b), Mr Foote had an existing legal position, namely an existing
legal right to commence an application for special leave to extend the time prescribed for appealing under the pre-amendment provision. The amendment should not affect this right. Under the amended provisions, Mr Foote would lose that “right” because of the requirement to first apply to the Commissioner. As noted above at [23], the application to the Commissioner must be made within 28 days of the date on which notice of the relevant decision is received.17 In Mr Foote’s case, this time had already expired before the amendments came into force.
[34] Ms Dyche refers to Accolade Autohire Ltd v Aeromax Ltd,18 in which the Court of Appeal considered the issue of a shortened appeal time. That case involved an appeal against a High Court decision that was filed in the Court of Appeal within three months of the date of judgment. However, after the date of judgment but before filing the appeal, new legislation,19 which shortened the appeal time from three months to 28 days, came into force.
[35] In Accolade, the Court of Appeal found that the appeal was filed within time and held that it would be “unfair and unjust to deprive the appellants of the right they had acquired”20 where the new legislation showed no intent to retrospectively revoke that right. The reasoning is summarised as follows:21
(a) That the parties’ right of appeal was established at the latest by the date of the judgment;
(b) That that right included the 3-month time limit;
(c) That the revocation of the 1955 Rules did not remove that right unless the new Rules made it plain that they operated retrospectively so as to deprive the parties of that right; and
(d) That the 1997 Rules contain no such provision.
17 Section 62(2), (3), (4).
18 Accolade Autohire Ltd v Aeromax Ltd [1998] 2 NZLR 15 (CA).
19 The Court of Appeal (Civil) Rules 1997 came into force and repealed the Court of Appeal Rules 1955.
20 At 18.
21 At 16.
Respondent’s position
[36] Ms McConachy submits that Mr Foote’s substantive right – to appeal to the District Court against the revocation of his firearms licence – subsisted in identical form after the Act was amended; all that changed was the manner in which it had to be exercised. He could make the same arguments, governed by the same appellate test, in the same court under the new procedure as under the old.
[37] With reference to the commentary on the Bill (set out at [27] – [28] above) Ms McConachy says that Mr Foote’s statutory right of appeal had simply been “moved” and “continued to apply”, subject to the requirement to seek the Commissioner’s prior review of the impugned decision.
[38] Ms McConachy says that the relevant amendments apply prospectively (in the ordinary way) to regulate appeals filed after 24 December 2020. No one is entitled to a particular procedure, and rights of appeal or the ability to apply for leave to extend time which accrued before that date, but which were exercised afterwards, must comply with the new procedural regime.
[39] Ms McConachy submits that s 33 of the Legislation Act is not engaged, as the substantive right (to appeal) was left unaffected by the amendments, which attached only to the procedure for its exercise. As no one has a right to a repealed procedure, Parliament’s intention must have been to require appeals filed after 24 December 2020 to comply with the new procedural regime.
[40] In response to the appellant’s submissions, Ms McConachy distinguishes Accolade Autohire on the basis that repeal of the existing procedure did not deprive Mr Foote of his appeal rights; he simply became subject to new procedural requirements and time limits.
[41] Ms McConachy accepts that had Mr Foote filed his appeal by 16 November 2020, it would have proceeded under the old appeal regime. She also accepts that had Mr Foote filed an application for special leave to extend the time for appealing after 16 November 2020 but before 24 December 2020, the application would again have proceeded under the old regime.
[42] However, she says the position is that an appeal is out of time. Ms Dyche accepts that. Ms McConachy further says that as Mr Foote failed to file an application for special leave to extend the time to appeal prior to 24 December 2020, he has lost his opportunity to do so. She says that Mr Foote was subject to the new regime from 24 December 2020, and needed to take the step of applying to the Commissioner for review within 28 days of the decision.
[43] Ms McConachy accepts that it would be contrary to the principle that enactments do not have retrospective effect, unless Parliament expresses otherwise, if Mr Foote was unable to exercise his appeal rights under the new legislation because he was effectively time-barred from the day it came into effect because more than 28 days had already passed since the notice of revocation.
[44] Ms McConachy resolves this difficulty by making a distinction between factual notice of a revocation decision and legal notice. She submits that Mr Foote was given factual notice of the revocation decision on 18 October 2020, but effective legal notice did not arise until the new legislation commenced on 24 December 2020.
[45] She says that as the 28-day time limit was not law on the date Mr Foote received his revocation notice, the fact of such notice was legally meaningless. When, however, the amendments were enacted, she says that Mr Foote (1) was deemed to know about the change in the law and (2) was in receipt of notice of a decision about his licence. She says this amounts to legal notice of a relevant decision within the meaning of s 62(4) as amended. Mr Foote therefore had 28 days from 24 December 2020 to apply to the Commissioner for a review of the revocation decision. He did not do so until 22 February 2021.
[46] Ms McConachy says that interpreting the effect of the amendment in this way, places Mr Foote in a relevantly identical position to persons who receive decisions on or after 24 December 2020. She notes that many persons receiving adverse decisions are unaware of their legal rights and obligations, but time limits nevertheless apply, and ignorance of the law is irrelevant. Therefore, she says that no unfairness arises in Mr Foote’s case.
[47] As to the operation of the amended legislation, Ms McConachy says indications point to the conclusion that Parliament intended the new appeal procedure to apply to all appeals instituted after 24 December 2020. She suggests that Parliament would not have intended to generate two parallel procedural tracks, as this would be contrary to the rationale of procedural efficiency which underpinned the new appeal regime.
[48] Further, she says that the additional procedural requirement of seeking review by the Commissioner is intended to be less burdensome on an applicant. On this approach, Ms McConachy says that the only material change to Mr Foote’s right or its exercise was the 28-day time limit imposed by s 62, as amended. However, as this variation can be properly categorised as a procedural matter, it is not a substantive right.
Analysis
Separate factual and legal notice
[49] I first dispose of Ms McConachy’s submission that Mr Foote was given factual notice of revocation on 18 October 2020 and legal notice of the decision on 24 December 2020. I do not consider that notice can be split in that way. At the time Mr Foote received factual notice that was also the date of legal notice. It was legal notice under the old regime. Any appeal rights operated from that date. They had expired before 24 December 2020.
[50] I am conscious that the above argument was made at a time when it was thought Mr Foote’s appeal rights were live on 24 December 2020. The issue is now whether Mr Foote has the ability to apply for special leave to extend time to appeal. As legal notice was received under the old regime in relation to appeal rights then notice cannot be split in relation to an application for special leave either.
Legislation Act 2019
[51] The Court’s discussion requires a consideration of the principle of non- retrospectivity and the lack of effect of repeals. There are three relevant provisions in the Legislation Act:
12 Legislation does not have retrospective effect
Legislation does not have retrospective effect.
32 Effect of repeal or amendment generally
(1) The repeal or amendment of legislation does not—
(a)affect the validity, invalidity, effect, or consequences of anything done or suffered:
(b)affect an existing right, interest, title, immunity, duty, status, or capacity:
(c)affect an amendment made by the legislation to other legislation:
(d)affect the previous operation of the legislation or anything done or suffered under it:
(e)revive any thing that is not in force or existing at the time the repeal or amendment takes effect.
(2) The repeal of legislation does not revive—
(a)legislation that has been repealed; or
(b)a rule of law that has been abolished.
33 Effect of repeal or amendment on existing rights and proceedings
(1) The repeal or amendment of legislation does not affect—
(a)the completion of a matter or thing that relates to an existing right, interest, title, immunity, duty, status, or capacity (a legal position); or
(b)the commencing of a proceeding that relates to an existing legal position; or
(c)the completion of a proceeding commenced or in progress under the legislation.
(2) Repealed or amended legislation continues to have effect for the purposes stated in subsection (1) as if the legislation had not been repealed or amended.
[52] “Enactment” is defined in s 13 as meaning the whole or any part of an Act or any secondary legislation. The above sections accordingly extend to the repeal and substitution of particular provisions. “Repeal” in relation to any legislation is widely defined in s 13 and includes revocation and replacement.
[53] The first question is whether the ability to apply for special leave to extend the 20-day period for appealing to the District Court was “an existing right” in terms of s 32(1)(b). The second question is whether, in terms of process, filing such an
application now would be the commencing of a proceeding that relates to an existing right (defined as legal position) in terms of s 33(1)(b).
[54] I have reached a clear view that Mr Foote cannot succeed on the second issue. But for completeness I will address the first issue.
Case law – first issue
[55] Case law on the retrospective application of new legislation to persons who have arguably accrued rights under a previous regime points both ways. In Foodstuffs (Auckland) Ltd v Commerce Commission,22 the Court of Appeal summarised the general principles:23
... The common law concerning non-retrospectivity and related interpretation legislation have both long recognised the need to strike a balance between giving effect to Parliament’s will, aimed at changing the law and introducing new policies, on the one hand, and, on the other, to protecting, for reasons of justice and fairness, positions already established under the old law. In terms of the second matter, Courts and legislatures alike have stated the principle of non-retrospectivity and have protected legally recognised interests — such as rights, title, immunities, duties, liabilities — which ‘exist’ or have ‘vested’ or ‘accrued’. If the general law lacks means or procedures to recognise, enforce or sanction those legally recognised interests, Courts and especially legislatures may also recognise and save the continued effect of the procedures that supported those interests ... But if, broadly speaking, no existing, vested or accrued legal interests are put in jeopardy the new manifestation of Parliament’s will is to be given full effect.
[56] In Foodstuffs, a legislative change which occurred after a company made an application to the Commerce Commission and before the decision was made, made the legal test governing the Commission’s assessment more stringent. The applicant argued that the expectation of assessment under the old test was effectively a legal interest which could not be repealed, pursuant to s 18 of the Interpretation Act 1999.24 However, the Court of Appeal held that the application was “forward looking”25 and the applicable law was that in force at the time the Commission made its assessment. Keith J, for the majority, concluded:
22 Foodstuffs (Auckland) Ltd v Commerce Commission [2002] 1 NZLR 353 (CA).
23 At [20].
24 For the purposes of this discussion any differences between s 18 of the Interpretation Act 1999 and s 33 of the Legislation Act 2019 are not material.
25 At [38].
We accept that arbitrary consequences may appear to occur when new law is brought in with instantaneous effect ... But changes in law may and do advantage some and disadvantage others depending on matters of timing. In this case, while expectations based on administrative understandings may have been dashed, no existing right or interest based on the old test was, we consider, denied. Further, administrative convenience cannot be preferred to the proper legal interpretation. [The applicant]’s right to have its application determined remained unaffected, but the determination was to be in accordance with the law in force at the time of the determination and by reference to the facts at that time.
[57] The issue of legislative retrospectivity was also addressed by the Court of Appeal in Crown Health Financing Agency v P.26 In that case, former patients brought claims of historic abuse against the liable government agency after the statutory regime had changed. The new regime favoured the claimants, because it did not contain a leave requirement or procedural time limit. The Court of Appeal granted the claimants special leave to appeal on the issue of whether the leave provisions of the earlier legislation were repealed by the later legislation, and therefore did not apply to a proceeding commenced after the date on which that Act came into force. The relevant interpretation legislation was also s 18 of the Interpretation Act 1999.
[58] The respondent argued that the leave provisions in the earlier legislation were not retrospectively repealed by the new regime, and that leave was required where the alleged acts occurred while the earlier statute or its predecessor was in force. In other words, the respondent argued that the claimants were governed by the legislation which was in effect at the time of the alleged wrong. The claimants argued that leave requirements were procedural matters rather than substantive rights or interests, and that the variation which the new legislation made to the application regime therefore displaced the old.
[59]Hammond J summarised the substantive/procedural principle as follows:27
... statutory provisions which deal with procedural matters (as opposed to substantive rights and obligations) are normally to be regarded as operating retrospectively, unless a contrary intention is expressed or implied in the statute itself. Procedural matters are regarded as being regulated by the repealing statute from the time it becomes operative, even in respect of matters which took place before that time.
26 Crown Health Financing Agency v P [2008] NZCA 362, [2009] 2 NZLR 149.
27 At [189], citing Dental Council of NZ v Bell [1992] 1 NZLR 438 (HC).
[60] However, Hammond J observed that the substance/procedure dichotomy was “overly simplistic” and “the reality is that some provisions overlap the substance/procedure divide”.28
[61] On the issue of retrospectivity, the majority of the Court agreed that the leave provisions in earlier legislation conferred rights which the new legislation did not retrospectively repeal. Hammond J, for the majority, reasoned that obtaining leave was a pre-condition of bringing proceedings,29 and that Parliament had put in place a filter, or screening process, which must be passed through before continuing to a substantive proceeding. In his view, it was entirely artificial to bifurcate that filter based on a simplistic substance/procedure dichotomy. The respondent therefore held a “right” not to be subject to legal proceedings unless the prospective proceeding had passed through the prescribed filter. Accordingly, the claimant’s appeal on this ground was dismissed.30
[62] A further distinction in this context has been made between discretionary and mandatory powers. As was argued in Foodstuffs, discretionary powers are less likely to provide a basis for a vested or accrued right which will be protected from new legislation. Existing rights defined by more “tightly drawn” legislation, for instance incorporating strict procedural limits and requirements, are more likely to be interpreted as inexorably accrued, and therefore continue beyond the enforcement of new legislation.31
[63] In Director of Public Works v Ho Po Sang,32 relevant ordinance provisions were repealed after a lessee received a public works notice of intention to grant him a re-building certificate (permitting redevelopment of the Crown land which he leased) but before the certificate was issued. The Interpretation Ordinance of Hong Kong33 provided that repeal would not affect any investigation, legal proceeding or remedy in respect of a right acquired or accrued under a repealed enactment. The Privy Council
28 At [191].
29 Referring to Seal v Chief Constable of South Wales Police [2007] UKHL 31, [2007] 1 WLR 1910 at 1914.
30 At [201] – [204].
31 At [30].
32 Director of Public Works v Ho Po Sang [1961] AC 901 (PC).
33 Interpretation Ordinance 1950 (Hong Kong), s 10(b)-(c).
held that the lessee had not accrued any right or privilege under the old regime because the grant of the certificate was still conditional and he “had no more than a hope” that the decision would be in his favour.34 Lord Morris of Borth-y-Gest commented:35
... there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some right should or should not be given. On a repeal, the former is preserved by the Interpretation Act. The latter is not.
[64] Similarly, in Robertson v City of Nunawading,36 the Supreme Court of Victoria held that a landowner who had submitted a notice of intention to subdivide land to the local council had no protection against a legislative amendment which came into force after he made the submission but before the council issued its decision. The amendment empowered the council to request a security payment from the landowner, where previously none was required. The assessment was made in light of the Acts Interpretation Act 1958.37 The Court held that the “mere taking of procedural steps under a statute in the expectation of achieving a benefit from an administrative authority does not create a right to the continuance of the proceedings … unaffected by amendment of the statute”.38
Analysis – first issue
[65] While the claimants in Crown Health benefited from the new regime and Mr Foote benefits from the earlier legislation, the principle is the same. In both cases, the proceeding was commenced after the new legislation came into force. Further, the substance/procedure dichotomy is unhelpful where a leave requirement is a pre- condition of bringing a substantive proceeding. In this case, the ability to apply for an extension of time to bring an appeal in the District Court operates as a gateway to Mr Foote’s substantive right to bring an appeal. As a consequence of the legislative change, it is his only gateway. Following Crown Health, a right accrued under a previous legislative regime will not be retrospectively annulled by the bringing into force of new legislation which varies the rights and obligations of the parties.
34 At 730 and 731.
35 At 731.
36 Robertson v City of Nunawading [1973] VR 819, [1973] VicRp 819.
37 Acts Interpretation Act 1958 (Vic), s 7(2).
38 Robertson v City of Nunawading, above n 36.
Therefore, Mr Foote’s right to seek special leave for an extension of time to file an appeal to the District Court survives. This approach favours Mr Foote.
[66] On the other hand, the grant of special leave for an extension of time to bring an appeal in the District Court is a discretionary power. Mr Foote’s ability to seek such leave is provided for by secondary legislation in the form of the District Court Rules. Further, the new regime under the Act may be characterised as more “tightly drawn” than previously, imposing, as it does, an additional preliminary step in the appeal process, and inserting detailed prescriptions for making an application, in terms of form, content and a 28-day time limit. Approaching the analysis in this way indicates that the ability to seek leave for an extension of time at the discretion of the District Court Judge is not an accrued right and will be displaced by new procedural provisions. This approach favours the Police.
[67] In the end it is not necessary to reach a concluded view because of my decision below on the second issue.
Second issue
[68] The issue is whether the making of an application for special leave to extend time for appeal is the “commencing of a proceeding” that relates to an existing legal position in terms of s 33(1)(b). For reasons that follow, an application for special leave to extend time is not the commencing of a proceeding.
[69]“Proceeding” is defined in the District Court Rules as follows:
proceeding means any application to the court for the exercise of the civil jurisdiction of the court other than an interlocutory application
[70] “Interlocutory application” is also defined in the District Court Rules but in a procedural sense, which doesn’t assist with the present interpretation exercise. For completeness the definition is as follows:
interlocutory application means application made in accordance with rule 1.15, 7.12, or 7.34
[71] However, r 18.4(4)(a) of the District Court Rules, which is set out at [22] above, but which I repeat for ease of reference does assist. It provides:
18.4 Time for appeal if there is right of appeal
...
(4)An application for an extension—
(a) must be made by an interlocutory application on notice to every other party affected by the appeal; and
...
[72] In short, as an interlocutory application, an application for special leave to extend time for bringing an appeal is not a proceeding. Accordingly, Mr Foote’s ability to make an application for special leave to extend time to bring his appeal under the old law is not saved by s 33(1)(b) of the Legislation Act following the coming into force of the new appeal provisions.
Conclusion
[73] The Judge was correct (but for the wrong reason) when he said he had no jurisdiction to hear the appeal. There was no jurisdiction because Mr Foote’s right of appeal had already expired before the new appeal provisions came into force.
[74] Mr Foote is not able to apply for special leave to extend the time for appealing the decision to revoke his firearms licence. An application for special leave is an interlocutory application. It is not a proceeding in terms of the District Court Rules. Accordingly, any application made now for special leave to extend the time for appealing would not be the “commencing of a proceeding” under s 33(1)(b) of the Legislation Act and would therefore not be saved by that section.
Result
[75]The appeal is dismissed.
Costs
[76] I did not hear submissions on costs. Costs are therefore reserved. The Police as the successful party are prima facie entitled to costs.
[77] If the parties can agree costs a joint memorandum is to be filed within 20 working days of the date of this judgment. If costs are not agreed then the Police may file and serve a memorandum within five working days of the date for the joint memorandum. Mr Foote is to reply within five working days of the date of service of the Police’s memorandum.
[78] Costs memoranda are not to exceed four pages, excluding any attachments. I will determine costs on the papers.
Gordon J
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