Lincoln v Commissioner of Police

[2013] NZHC 2268

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2012-409-000866 [2013] NZHC 2268

BETWEEN	RICHARD LINCOLN Applicant
AND	COMMISSIONER OF POLICE Respondent

Hearing:	2 September 2013 (on the papers)
Appearances:	Applicant in person M Coleman and L Inverarity for Respondent
Judgment:	2 September 2013

JUDGMENT OF PANCKHURST J (RE:  COSTS DECISION)

Introduction

[1]      Mr Lincoln sought declarations concerning procuring, importing, possessing and  using military style  semi-automatic firearms  (MSSA’s) under the Arms Act

1983.  In the end result, one declaration was made in the applicant’s favour, plus observations in relation to another proposed declaration supportive of his position. Otherwise, issues were either abandoned or were found not to be amenable to declaratory relief, as submitted by the respondent.

[2]      Costs were reserved.  The Commissioner seeks a modest contribution to his costs, given that the applicant was unsuccessful in obtaining wide ranging relief and also to reflect unnecessary expense caused by the applicant’s approach.

[3]      Costs calculated on a 2B basis amount to $33,034, plus disbursements of

$2,178, a total of $35,212. The Commissioner seeks 20 percent of this figure.

LINCOLN v COMMISSIONER OF POLICE [2013] NZHC 2268 [2 September 2013]

The arguments

[4]      In  seeking  costs  counsel  for  the  Commissioner  advanced  a  number  of propositions:

On balance, justice in this case warrants an award of modest costs to the respondent.

The applicant resisted the respondent’s refinement of the issues on multiple occasions right up until the eve of the hearing, when he adopted those issues (with one qualification) without further objection.   This involved the abandonment of a number of declarations, on which the respondent had been required to prepare legal argument and to provide evidence.

The respondent put the applicant on notice, right from the outset of his proceeding, that the broad and hypothetical declarations sought were not amenable to a declaratory jurisdiction.

Even after the respondent expressed his concerns about the scope of the applicant’s claim, the claim was substantially expanded with the filing of two amended statements of claim, both requiring further statements of defence by the respondent.

After filing sparse 14 page submissions ..., the applicant served 62 pages of “supplementary submissions” on the respondent at 2pm on the day prior to the hearing.

Of the issues on which the applicant was unsuccessful in obtaining declaratory relief, or favourable guidance, the respondent denies that there was any public interest in the pursuit of those matters, on a hypothetical basis and without any settled factual basis, in these declaratory proceedings.

I shall set out my assessment of these contentions shortly.

[5]      Mr Lincoln submitted that the parties should bear their own costs.  He relied upon these propositions:

Where there is sufficient public interest (and further the claim is not one of personal interest), the Court will depart from the skeleton of the (costs) rules.

Where proceedings are partially successful ..., the Court steers away from awarding costs ... .

Domestic arms control law is an important (and polarising) public interest matter  involving  issues  of  public  safety  and  security,  and  government balance of power over those whom are governed.

The restatement/refinement of issues and multiple statements of claim arose simply from the fact that as things progressed, the defendant was forced to particularise his position in Court and thus enable the plaintiff to understand

and shape his proceeding accordingly.  Had the defendant been forthcoming and consistent in the first instance, none of that would have been necessary.

On balance the outcome of the proceeding is approximately even.

Further action will be taken in respect of (two) remaining issues  (being public interest issues that the plaintiff has no direct and immediate personal interest in) unless such action is prohibited by the expense of an award of costs ...

Evaluation

[6]      My sense of this proceeding is that it was framed in unnecessarily broad terms and occasioned unnecessary expense.  Of the 12 declarations originally sought, some  were  not  pursued,  others  were  hypothetical  or  otherwise  unsuited  to declaratory relief and some raised genuine issues which were susceptible of declaratory relief, or at least serious discussion.

[7]      As  acknowledged  by  Mr  Lincoln  in  his  costs  memorandum,  he  had  no personal interest in some of the issues raised; rather he raised them as he said in the “public interest”.  This meant issues were raised for which there was not an adequate factual foundation, rendering them hypothetical or otherwise unsuited for declaratory relief.  It is not, I think, coincidental that Mr Lincoln is the president of the National Shooters Association and that he considers domestic arms control a polarising public interest matter.   Freedom of view and expression is of course a basic right, but it does not necessarily provide a basis for a wide ranging proceeding of the kind instituted here.

[8]      Despite  a  degree  of  success  enjoyed  by  Mr  Lincoln,  I  consider  this proceeding was largely misconceived and caused needless legal expense to the respondent.   A number  of  the  issues  were  capable  of  resolution  in  other  ways pursuant to Arms Act provisions.  These factors satisfy me that a modest award in favour of the Commissioner is appropriate, and I fix the award at the rounded figure of $7,000.

Solicitors:

M Coleman, Crown Law, Wellington

L Inverarity, Crown Law, Wellington