NEW ZEALAND COUNCIL OF LICENSED FIREARMS OWNERS INCORPORATED v MINISTER OF POLICE [2020] NZHC 2110

NEW ZEALAND COUNCIL OF LICENSED FIREARMS OWNERS INCORPORATED v MINISTER OFPOLICE [2020] NZHC 2110 [20 August 2020]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2019-485-676[2020] NZHC 2110UNDER the Judicial Review Procedure Act 2016 andPart 30 of the High Court Rules 2016IN THE MATTER OF an application for judicial reviewBETWEEN NEW ZEALAND COUNCIL OFLICENSED FIREARMS OWNERSINCORPORATEDApplicantAND MINISTER OF POLICEFirst RespondentGOVERNOR-GENERALSecond RespondentAppearances: J E Hodder QC and T Nelson for the ApplicantA Powell and C Tocher for the RespondentsJudgment: 20 August 2020JUDGMENT OF COOKE J(Costs)[1] By judgment dated 25 June 2020 I dismissed the claims brought by theapplicant relating to restrictive measures imposed in relation to certain military styleammunition following the Christchurch mosque shootings, and directed thatmemoranda should be filed if costs could not be resolved.1 By memorandum dated10 July 2020 the respondents have sought costs on a 2B basis. In response bymemorandum dated 27 July 2020 the applicant does not dispute the quantification of1 New Zealand Council of Licensed Firearms Owners Inc v Minister of Police [2020] NZHC 1456at [132].the claim for costs but contends that costs should not be ordered, or should be reducedbecause the proceeding concerned a matter of public interest, and that any costs awardshould be stayed pending appeal. Those proposals have been opposed by therespondents by memorandum dated 3 August 2020.Reduced costs award[2] I do not summarise the relevant background which is fully set out in thesubstantive judgment.[3] Under r 14.7(e) of the High Court Rules 2016 costs can be declined or reducedif the proceeding concerned a matter of public interest and the party opposing costsacted reasonably in the conduct of the proceeding. This has been applied in relationto litigation brought by interest groups involving matters of public interest not forpecuniary gain.2 This is commonly where the unsuccessful party is under resourced,or at least not publicly funded.3 As the respondents submit, however, that principlecannot squarely be invoked by the applicant here as the members of the firearmscommunity it represents were seeking declarations that they were entitled tocompensation, and challenging the legality of the prohibition of ammunition.[4] There is, however, a closely related reason for departure from the normal costsconsequences — that is when the litigation involves fundamental rights. In Attorney-General v Udompun a full court of the Court of Appeal held that applying the normalcosts rules for litigation involving the rights outlined in the New Zealand Bill of RightsAct 1990 could discourage litigants from bringing claims in relation to such rights,and indemnity costs could sometimes be seen as appropriate when an applicantsucceeded.4 This was not articulated by the Court of Appeal in reference to r 14.7, butmight be said to involve a combination of sub-paragraphs (e) and (g).2 See New Zealand Climate Science Education Trust v National Institute of Water and AtmosphericResearch Ltd [2013] NZCA 555 at [13] referring to Ratepayers and Residents Action AssociationInc v Auckland City Council [1986] 1 NZLR 746 (CA).3 Chief Executive of the Department of Corrections v Sutherland [2018] NZCA 623, (2018) 29CRNZ 126 at [69].4 Attorney-General v Udompun [2005] 3 NZLR 204 (CA) at [186]. See also Hammond J at [219]–[225]. The right to bring such proceedings is itself reflected in s 27(2) of the New Zealand Bill ofRights Act 1990.[5] The applicant's case here did involve a question of fundamental rights eventhough the rights are not articulated in the New Zealand Bill of Rights Act. It is notsuggested that declarations of inconsistency could be made in these circumstances.But the Court concluded that the measures imposed were not consistent with thecommon law right not to be deprived of property without compensation, althoughParliament had clearly legislated inconsistently with the right. I also accept that theevidence before the Court suggested that the Crown's view was that the right was notengaged at all. It can accordingly be said that the Court's judgment vindicated theright notwithstanding that the claims were unsuccessful.[6] As I indicated in the substantive decision, the Court plays an important role incases of this kind to ensure that the rights of a minority group, and the rule of law havebeen respected.5 Questions of legality, and legal principle, should be central when thegovernment is responding to a crisis or emergency.6 Litigation challenging decisionsmade in such circumstances is not to be discouraged by costs awards, particularly if itproperly concerns the protection of individual rights. Such access to the Courtemphasises the rule of law, and a culture of legality. These factors should be takeninto account in deciding costs in this case.[7] But the impact of these factors has must be proportionate. There were twomain aspects of the applicant's challenge, and the second was a more conventionalchallenge to the legality of the definition of prohibited ammunition by Order inCouncil. That did not involve a question of individual rights, at least in any directsense. The applicant should meet costs on this aspect of its claim on a conventionalbasis. Secondly, whilst the other main aspect of its challenge involved inconsistencywith rights, its claim was still unsuccessful. Neither is the applicant said to be animpoverished group for whom such proceedings were financially onerous.[8] This is not a case where costs should not be awarded to the Crown. But it is acase where some reduction in the costs award is appropriate. The reduction should beproportionate to the extent the vindication of rights and the principle of legality is5 New Zealand Council of Licensed Firearms Owners Inc v Minister of Police, above n 1, at [5].6 Consider Quake Outcasts v Ministry for Canterbury Earthquake Recovery [2015] NZSC 27,[2016] 1 NZLR 1 and Borrowdale v Director-General of Health [2020] NZHC 2090 at [291] inrelation to decisions made during emergency response situations.important to the proceeding. The costs claim is for a total of $25,071.15. I haveconcluded that there should be a 20 per cent reduction in that award. Costs areawarded to the respondents on that basis.Stay[9] The applicant has lodged an appeal to the Court of Appeal. It seeks a stay ofthe costs award either under the inherent jurisdiction, or r 12 of the Court of Appeal(Civil) Rules 2005 on the basis it is pursuing an appeal in good faith, the Crown willnot be adversely affected by the stay, the appeal raises novel and important questions,and that its appeal is strongly arguable. The respondents oppose on the basis that anappeal does not operate as a stay, there is no suggestion of impecuniosity on theapplicant's part, and there is no reason for concern that any reversal of costs causedby successful appeal would not be met by the Crown.[10] I see no reason why the costs order should be stayed. The position would bedifferent if a party in the applicant's position had financial difficulty in the conduct ofthe appeal, especially given that the challenge involves fundamental rights. But thereis no evidence of this here. For these reasons I decline the application for a stay.Cooke J