LINCOLN V POLICE DEPARTMENT HC PMN CIV-2009-454-473

LINCOLN V POLICE DEPARTMENT HC PMN CIV-2009-454-473 5 August 2009IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY CIV-2009-454-473UNDER The Judicature Amendment Act 1972 BETWEEN RICHARD LINCOLN Plaintiff AND NEW ZEALAND POLICE DEPARTMENT Defendant Hearing: 29 July 2009 Appearances: Applicant in person A M Powell for Respondent Judgment: 5 August 2009 at 4.15pm I direct the Registrar to endorse this judgment with a delivery time of 4.15pm on the 5 th day of August 2009.RESERVED JUDGMENT OF MACKENZIE J[1] This is an application for interim relief under s 8 of the Judicature Amendment Act 1972 pending the hearing of this application for judicial review. [2] The Arms Act 1983 provides for the licensing of the owners of firearms. Special endorsements are required for the possession of certain categories of firearm, in particular, a special 'E' endorsement is required for possession of a "military style semi-automatic firearm". That term is defined in s 2 of the Act to mean:(a) A firearm which, after being loaded, fires, ejects, and chambers a cartridge with each pull of the trigger; but (b) Does not include—(i) A pistol; or (ii) A semi-automatic firearm that, with its magazine (if any), is maintained at all times in a sporting configuration:[3] The term "sporting configuration" is also defined, as follows:Sporting configuration, in relation to a semi-automatic firearm, means being without any of the following features: (a) A folding or telescopic butt: (b) A magazine that is capable of holding, or that, by its appearance, indicates that it is capable of holding,— (i) In the case of a magazine designed to hold .22 inch rimfire cartridges, more than 15 cartridges; or (ii) In any other case, more than 7 cartridges: (c) Bayonet lugs: (d) A military pattern free-standing pistol grip: (e) A flash suppressor:[4] The Act is administered by the New Zealand Police (Police). In administering the Act, it is necessary for Police to apply those statutory definitions to individual firearms and categories of firearm. There has been a recent change in the understanding of Police of what constitutes a sporting configuration for a semi- automatic firearm. That involves a change in how Police interpret what amounts to "a military pattern free-standing pistol grip" in paragraph (d) of that definition. The effect of that change in interpretation is that certain semi-automatic firearms that, on the previous Police interpretation, did not require an 'E' endorsement to a firearms licence, do require such an endorsement. An advisory note was issued by the National Manager Operations at Police on 9 June 2009 advising of that change in interpretation. Once steps to advertise and publicise the change in interpretation have been taken, Police will begin implementing that change. The effect of that will be that from 10 August 2009 all persons wishing to import, purchase, or sell firearms affected by the change in interpretation will need to comply with the procedures in that Act for the importation and sale and supply of military style semi-automatic firearms. For persons who at that date have in their possession firearms which are affected by the change in interpretation, Police intend to adopt an educative process,allowing time within which those people can take steps to regularise their possession of those firearms. Holders of firearm licences who possess a weapon, without an 'E' endorsement, which would, under the new interpretation, require an 'E' endorsement may apply for an endorsement permitting them to possess the relevant firearm. The normal process provided for under the Act for obtaining such endorsements will apply, except that the usual application fee will be waived if application is made before 31 March 2010. [5] The applicant is in possession of a firearm which is affected by the change in interpretation. That is to say, on the interpretation under which Police have hitherto been operating, the particular weapon is regarded as not having a military pattern free standing pistol grip. On the new interpretation, the weapon would be regarded as having a military pattern free standing pistol grip. The applicant holds a firearms licence and an 'A' endorsement (which authorises possession of the firearm under the present Police interpretation) but does not hold an 'E' endorsement. [6] The application for judicial review challenges the actions of Police in relation to the change in interpretation. The application for interim relief seeks interim orders: (a) Preserving the position of his firearms licence. (b) Preserving the approval, previously endorsed by the respondent, of the firearms that were the subject of that approval. [7] Under s 8 of the Judicature Amendment Act 1972, the Court may, if in its opinion it is necessary to do so for the purpose of preserving the position of the applicant, make an interim order for the purpose of prohibiting the respondent from taking any action consequential on the exercise of the statutory power; prohibiting or staying any proceedings in the meantime; or continuing in force any licence which has been revoked. [8] The starting point for the exercise of the jurisdiction is the statutory threshold of necessity to preserve the position of the applicant. If that statutory threshold ismet, the Court must consider all the circumstances, including the strength or weakness of the case, the statutory framework, the public interest, and the private and public repercussions of granting relief. [9] The first question is whether the relief which the applicant seeks, or some other form of interim relief, is necessary for the purpose of preserving his position. The applicant submits that if the respondent implements its new interpretation prior to the decision of the Court on the application for judicial review, it will have the following specific consequences for him: (a) He would have to apply for an extra endorsement and fulfil the requirements for that endorsement. That would include having to purchase and install a special safe worth at least $1,000 plus freight and installation. It would require arranging referees of special criteria. It might require an appeal to the District Court if an endorsement was refused; (b) Although the respondent has indicated that an endorsement would not be required until March 2010 and that until then no action would be taken against the applicant, the applicant contends that this proceeding may not be resolved before then, and he is not prepared to accept an informal agreement not to prosecute him; (c) He will be no longer entitled to possession and control of his firearm which was, when he purchased it, approved for the current form of endorsement on his firearm's licence; (d) Until this matter is resolved he cannot purchase another firearm that is the subject of the reinterpretation; (e) If he elects to sell his firearm the available market for that will be affected by its reclassification;(f) He will be unable to lend his rifle to his brother-in-law who holds an "A" category endorsement and had offered him the opportunity, in return for the loan of the rifle, to take the applicant on a guided hunting trip on the private land of his employer, which opportunity has a limited duration; (g) He will no longer be able to import any of the firearms that are the subject of the new interpretation; (h) He can be subjected to private prosecution by any member of the public; (i) It is likely that there will be a significant quantity of firearms affected by the new interpretation which will go "underground" if the new interpretation continues to be advertised and that such firearms pose a direct threat to the safety and security of the applicant and his family; (j) The applicant says "I believe this matter is of such dire importance and exceptional consequences to me, others involved with firearms and every other New Zealander that the Court should immediately put a stop to it pending a full review". [10] In considering what is necessary to preserve the position of the applicant, it is important to note that Police do not have, under the Act, the ability to make a binding classification of the weapons in question. The question whether a weapon is a military style semi-automatic firearm, and if so whether it is in a sporting configuration, are questions to be determined by the application of the statutory definitions to individual weapons. That question must be determined, where necessary, by any Court which is determining some relevant issue. The Court will not be bound by the Police interpretation, but must itself apply the relevant definition to the firearm in question. [11] On that basis, it may well be questionable whether the actions of Police in arriving at the new interpretation, and publicising the steps which it proposes to takein consequence of that reinterpretation are the exercise of a statutory power under s 3 of the Judicature Amendment Act. It would not however be appropriate, on this application, to take a narrow view on that question. Counsel for the respondent expressly did not take any point of that sort. Mr Powell helpfully drew attention toGillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 403, where Lord Bridge (at p 426-7) discussed the circumstances in which the Court may correct errors of law in non-binding advice from a public authority. That issue may require closer attention on the substantive hearing of this application for review. At the interim relief stage it is appropriate to approach the question of necessity for preserving the position of the applicant by assuming (but without deciding) that the reinterpretation is capable of affecting the applicant's position. [12] The fact that the Police interpretation is not determinative is however relevant in another way on this application. What is sought is an order which would have the effect of putting a stop to the promulgation of the changed interpretation until the proceedings have been resolved. Ultimately, the question whether the previous interpretation, or the new interpretation, is to be preferred will be a matter for decision by the Court. Neither the previous interpretation, nor the new interpretation, has any particular legal status. In those circumstances, it would not be appropriate for the Court to make an interim order which would have the effect of preferring, on an interim basis and without hearing full argument, the previous interpretation over the new interpretation. [13] It is necessary to draw a distinction between the possible effect of the changed interpretation on the applicant himself, and the effect of the change in interpretation more generally. Some of the matters raised by the applicant are relevant to the former, others are relevant only to the latter. In particular, items (i) and (j) are related principally to the latter. I do no consider that the way in which other persons may react to advice by the Police of the changed interpretation can have direct effect on the applicant in a way which would render interim relief necessary to preserve his position. The claimed threat to the safety and security of the applicant and his family is not different from the potential threat to any other member of the public.[14] Items (d), (e) and (g) relate not to the present position of the plaintiff, but to his possible future position. If he were, in the future, to wish to purchase or import another firearm, or to sell his present firearm, then his right to do so will be determined in accordance with the proper construction and interpretation of the Act. It is not necessary, to preserve the present position of the applicant, to direct now what the proper interpretation of the Act should be if he should wish to alter his position by taking one or more of these steps. Further his position in these respects is not sufficiently different from that of any other person who may wish to purchase, import or sell a firearm, to raise a need to protect his position. Accordingly, I do not consider that any interim relief is necessary in terms of those matters. [15] As far as item (h) is concerned I am not satisfied that there is a sufficient risk of a private prosecution that that possibility is one which gives rise to a need to preserve the applicant's position. Further, the lawfulness or otherwise of the applicant's current possession of his firearm depends upon the proper application of the legislation to that firearm. For reasons I have earlier given, it would not be appropriate to grant interim relief in a form which would have the effect of precluding, if circumstances required it, the proper application of the definitions in the legislation to his firearm. [16] Similar considerations apply to the matter raised in paragraph (f). I do not consider that it would be appropriate to grant interim relief in a form which would enable the loan of a firearm which might, on the correct interpretation of the legislation, constitute a breach of the legislation. The granting of interim relief should not have the effect of allowing something which might be unlawful. The applicant's position on this point is not one which requires protection. [17] As far as the relief sought in (b) is concerned, there is presently no prosecution against the applicant. The evidence is that Police accept that, while the applicant is diligently and in good faith pursuing this judicial review proceeding, it would not be appropriate for any action to be taken against him for the unlawful possession of his firearm based on this changed understanding. The applicant says that he is not prepared to accept an informal agreement not to prosecute him. That is not the test. The test is whether this Court considers that interim relief is necessaryto protect his position. In the light of the indication which has very sensibly been given, I am of the view that interim relief is not necessary is this regard. [18] The remaining matters are paragraphs (a) and (c). Police have indicated that the endorsement will not be required until March 2010. There is accordingly a considerable lead time within which these proceedings may be pursued. Whether it will be possible to have this proceeding heard before March 2010 cannot at this stage be determined. The point appears to be a relatively narrow one and an early hearing seems possible, and desirable. I am not satisfied that interim relief to protect the applicant's position is necessary at this stage. [19] During the course of his oral submissions Mr Lincoln submitted that the changed interpretation will have immediate effect for firearms dealers and others purchasing from or selling to dealers. He sought an opportunity, if I were not otherwise minded to grant interim relief, to adduce further evidence of its effect on others. I am not prepared to afford such an opportunity. This proceeding is by the applicant alone and his is the only position which requires consideration on this application. [20] For these reasons, I am satisfied that interim relief is not necessary to protect the position of the applicant. It is therefore not necessary for me to consider the other factors which would be relevant to the granting or refusal of interim relief. [21] The application for interim relief is accordingly dismissed. [22] Mr Powell indicated that costs are not sought. There will be no order as to costs on this application."A D MacKenzie J"Solicitors: Crown Law, Palmerston North for Respondent