FOOTE v NEW ZEALAND POLICE [2022] NZHC 1670

FOOTE v NEW ZEALAND POLICE [2022] NZHC 1670 [14 July 2022]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECIV-2022-463-9[2022] NZHC 1670BETWEEN TONY CHARLES FOOTEAppellantAND NEW ZEALAND POLICERespondentHearing: 29 June 2022Appearances: E R Dyche for the AppellantA L McConachy for the RespondentJudgment: 14 July 2022JUDGMENT OF GORDON JThis judgment was delivered by meon 14 July 2022 at 12pm, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors/Counsel:E R Dyche, Pawson Law Ltd, Te PukeA L McConachy, Crown Solicitor, Rotorua[1] This is an appeal on a question of law concerning rights of appeal under theArms Act 1983 (the Act). On 18 October 2020 the Police revoked the firearms licenceheld by the appellant, Tony Foote. The revocation was during the promulgation periodfor amendments to the Act which changed the appeal regime. The new appealprovisions came into force on 24 December 2020.[2] Judge Ingram in the District Court held that the appeal process was governedby 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 thestatutory timeframe, the Judge held the Court had no jurisdiction to hear Mr Foote'sappeal against revocation.[3] In the District Court counsel and the Judge proceeded under themisapprehension that Mr Foote's appeal rights under the old regime were still live atthe date the new appeal provisions came into force. All concerned overlookedr 18.4(2)(b) of the District Court Rules 2014 which requires the appeal to be broughtwithin 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 Courtalso 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, alertedthe 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 atthe end of the day on Monday 16 November 20201. Ms Dyche accepts that was thecase. However, she takes the position that there is nevertheless still a live issue beforethis Court. That is because r 18.4(3)(b) of the District Court Rules provides that byspecial leave the Court may extend the time prescribed for appealing if the enactmentthat confers the right of appeal does not limit the time prescribed for bringing theappeal. Neither the Act nor the District Court Rules contain a time limit on makingan 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 extendthe time to bring an appeal applies in Mr Foote's case, notwithstanding the new appealregime.[7] The Police oppose the appeal and say that Judge Ingram correctly decided thatthe new appeal regime applied, notwithstanding that the revocation date was prior tothe 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 hisfirearms licence,2 and his firearms were uplifted.[11] On 7 December 2020, the Police notified Mr Foote to the effect that he had achoice between voluntarily surrendering his firearms licence for 12 months3 orcontinuing with the revocation process. Notwithstanding this letter, counsel agreedboth 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 surrenderhis 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 appealprovisions. He sought a review of the revocation decision by the Commissioner andfiled an originating application to appeal the revocation decision in the District Court.42 Pursuant to Arms Act 1983, s 27(1)(a), [now s 27(2)(a)] on the basis that Mr Foote was not a fitand proper person to be in possession of a firearm, in the opinion of a commissioned officer ofPolice.3 Pursuant to Arms Act 1983, s 27(2), [now s 27(1)] which provides that a person may at any timesurrender 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 tookaction under both the old and new regime.Ms Dyche advised the Court from the bar that former counsel requested the DistrictCourt put the appeal on hold while awaiting the outcome of the Commissioner'sreview. Counsel followed up the application for review, but no response wasforthcoming. As a consequence counsel determined to proceed with the appeal in theDistrict Court.[15] On 25 November 2021, the appeal was heard by Judge Ingram in the TaurangaDistrict Court. In a reserved judgment dated 22 February 2022, Judge Ingram heldthat 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 64of the Act.64 Appeal on a question of law(1) Where any party to any appeal under section 62B5 or to any applicationunder section 63 is dissatisfied with the decision of the District CourtJudge as being erroneous in point of law, he may appeal to the HighCourt on the question of law only.[17] The Notice of Appeal dated 23 March 2022 says the District Court Judge erredin law when he dismissed the appeal on the basis that he did not have jurisdiction tohear the appeal because Mr Foote had not complied with the requirements of the newlegislation. In particular, the Judge erred when he applied the new legislation ratherthan the old, and failed to recognise that this approach left Mr Foote with no avenuesfor appeal.Relevant law[18] The Act underwent a substantial review in 2019.6 The bill received RoyalAssent on 24 June 2020. The provisions relevant to this appeal came into effect on24 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 Christchurchmosques in March 2019 and the principal purpose of the recommended changes was to bettermanage the risks of firearms misuse.[19] A purpose section was introduced, as follows:71A Purposes of this Act(1) The purposes of this Act are to—(a) promote the safe possession and use of firearms and otherweapons; and(b) impose controls on the possession and use of firearms and otherweapons.(2) The regulatory regime established by this Act to achieve those purposesreflects 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 interestsof personal and public safety.[20] Commentary on the inclusion of the purpose section observed:8A purpose statement is a key aid to interpreting the Act and anchors all actorsin the firearms regulatory regime to a set of clear and transparent expectationsand principles. It helps users of the legislation to understand decisions andactions should be underpinned by behaviours and practices that are consistentwith 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 personwhose firearms licence had been revoked a right of appeal to the District Court, byway of originating application. No time limit on filing such an application wasprescribed under the Act. The old s 62 relevantly provided:62 Right of review of official decisions(1) This subsection applies to–(c) 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 originatingapplication, 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 anappeal by way of originating application, as noted above, it is now accepted by both7 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 Rulesapplied. 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 rightof appeal specifies a period within which the appeal must bebrought; or(b) in every other case, within 20 working days after the decisionappealed against is given.(3) By special leave, the court may extend the time prescribed for appealingif 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 everyother 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) theapplicant must first apply to the Commissioner for a review of the decision revokinga firearms licence. The application must be made in the prescribed manner, and within28 days of the date on which they receive the notice of the relevant decision.9 Thereview decision will be made on the papers within 28 days of the application beinglodged, and the applicant will be notified of the review decision in writing.10 TheCommissioner may accept a late application no later than 28 days after the end of thefirst 28 day period if satisfied there are extenuating circumstances that affected theperson's ability to apply in time.11[24] The revocation decision may only be appealed to the District Court once theCommissioner's review has been completed and the applicant has been notified.12 Notime 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 toapply and that, under the new regime, the time limits in the Rule operate from the dateof 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 torevoke, a firearms licence.(2) A person who is the subject of a decision to which this section appliesmay apply in the prescribed manner to the Commissioner for a review ofthe 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 bereviewed; and(c) the outcome the applicant is seeking.(4) An application must, subject to subsection (5), be made within 28 daysafter the date on which notice of the relevant decision is given to theperson.(5) The Commissioner may accept a late application no later than 28 daysafter the closing date in subsection (4) if satisfied that there areextenuating circumstances that affected the ability of the claimant tomake 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 originatingapplication, appeal to a District Court Judge against the decision asfollows:...(b) a decision to issue subject to conditions imposed by a member of thePolice, 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 personhas 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 appealedagainst.(4) Subsection (5) applies if—...(b) a firearms licence has been revoked on the ground set out in section27(2).(5) If this subsection applies, the District Court Judge may, even though theJudge finds that ground established, vary or reverse the decision appealedagainst if satisfied that, since the decision was given, adequate measureshave been taken to deny access to the firearm to the person whoselikelihood 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 Act2020 (2020 No 23).14 Section 62B: inserted, on 24 December 2020, by section 90 of the Arms Legislation Act2020 (2020 No 23).[27] The rationale for the new appeal regime was explained as follows:15Currently a person may make an appeal to the District Court in relation tocertain decisions. This is costly to the individual and creates a burden on theCourts. Introducing an intermediary step, for some decisions, provides anopportunity to ensure those decisions are robust and in some cases will avoidthe need to appeal to the Courts.[28] In a related report on the Bill by the New Zealand Police, the Departmentcommented that:16The review step will provide an opportunity to ensure that decisions arerobust. Outcomes could be that the decision is changed (avoiding court), thedecision is explained better (which may avoid a court appeal), or Police or theapplicant will be better prepared to bring or defend an appeal. The appealright to the district court remains.District Court decision[29] In the District Court, Judge Ingram held that the requirements imposed by thenew regime applied to Mr Foote. Accordingly, as Mr Foote had not first applied to theCommissioner for a review of the revocation decision and been notified of thereviewer'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 andsubmissions on behalf of Mr Foote and the Police. The Judge then found thatMr Foote's appeal rights were properly governed by the amended legislation anddismissed the appeal on the basis that he did not have jurisdiction to decide it. Asnoted above, the decision was given on the (mistaken) basis that Mr Foote's appealrights under the old regime were extant on 24 December 2020. However, aspects ofthe Judge's reasoning can be said to relate to the new and more limited basis on whichthe 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 limitsfor both the review process and appeals. The legislative purpose must havebeen to introduce limits on the right of appeal. Those notified of an appealabledecision prior to the commencement date of the new legislation must be takento have had knowledge of the change. In my view, effect must be given to thatintention. The legislation can be read as requiring prospective appellants inrelation to decisions made after the legislation was passed, but before it came15 Arms Legislation Bill, above n 8, at 27.16 New Zealand Police Finance and Expenditure Committee Final Departmental Report: ArmsLegislation Bill (2 December 2019) at 147.into force, to file their appeals on or before the new legislation'scommencement date. Failing that, they are required to comply with the newmore restrictive appeal rights.[20] In light of the Commissioner's power to extend time, and the absence ofa corresponding power vested in the Court, and the extended period after thelegislation received the Royal Assent before coming into force, I consider thatthe legislature must have intended that prospective appellants were requiredto act promptly or risk the time bar. On this view, the right to appeal an adversedecision was not removed by the new legislation, but the time within whichthe appeal must be commenced was truncated by the prospective operation ofthe new time limits.[31] In summary, Judge Ingram held that Mr Foote could be taken to have hadknowledge of the legislative change, that he had the option of either appealing directlyto the District Court under the old regime prior to 24 December 2020 or seeking areview of the decision by the Commissioner under the new regime on or after thatdate. The Judge considered that appeal rights per se survived the amendment, subjectto new time limits; that the effect of the amendments coming into force wasprospective (rather than retrospective); and that the purpose of the legislation was topromote a prompt response from persons affected by official decisions on firearmslicences. For all those reasons, Judge Ingram held that the new regime applied toMr Foote from 24 December 2020. As Mr Foote had not complied with the newrequirements, 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 timefor appealing the revocation decision to the District Court irrevocably accrued on18 October 2020, the date of the notice of revocation, and is unaffected by thecommencement of new legislation on 24 December 2020. In short, she says that"right" arose prior to the new legislation and continues. Therefore, the new provisionshave no application to Mr Foote; the requirement to seek a review by theCommissioner and associated time limits are irrelevant. On this approach, Mr Footeis able to apply for special leave to extend the time for appealing the revocationdecision 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 existinglegal right to commence an application for special leave to extend the time prescribedfor appealing under the pre-amendment provision. The amendment should not affectthis right. Under the amended provisions, Mr Foote would lose that "right" becauseof the requirement to first apply to the Commissioner. As noted above at [23], theapplication to the Commissioner must be made within 28 days of the date on whichnotice of the relevant decision is received.17 In Mr Foote's case, this time had alreadyexpired before the amendments came into force.[34] Ms Dyche refers to Accolade Autohire Ltd v Aeromax Ltd,18 in which the Courtof Appeal considered the issue of a shortened appeal time. That case involved anappeal against a High Court decision that was filed in the Court of Appeal withinthree months of the date of judgment. However, after the date of judgment but beforefiling the appeal, new legislation,19 which shortened the appeal time from three monthsto 28 days, came into force.[35] In Accolade, the Court of Appeal found that the appeal was filed within timeand held that it would be "unfair and unjust to deprive the appellants of the right theyhad acquired"20 where the new legislation showed no intent to retrospectively revokethat right. The reasoning is summarised as follows:21(a) That the parties' right of appeal was established at the latest by the dateof 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 unlessthe new Rules made it plain that they operated retrospectively so as todeprive 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 Rules1955.20 At 18.21 At 16.Respondent's position[36] Ms McConachy submits that Mr Foote's substantive right – to appeal to theDistrict Court against the revocation of his firearms licence – subsisted in identicalform after the Act was amended; all that changed was the manner in which it had tobe exercised. He could make the same arguments, governed by the same appellatetest, 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 theCommissioner's prior review of the impugned decision.[38] Ms McConachy says that the relevant amendments apply prospectively (in theordinary way) to regulate appeals filed after 24 December 2020. No one is entitled toa particular procedure, and rights of appeal or the ability to apply for leave to extendtime which accrued before that date, but which were exercised afterwards, mustcomply with the new procedural regime.[39] Ms McConachy submits that s 33 of the Legislation Act is not engaged, as thesubstantive right (to appeal) was left unaffected by the amendments, which attachedonly 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 2020to comply with the new procedural regime.[40] In response to the appellant's submissions, Ms McConachy distinguishesAccolade Autohire on the basis that repeal of the existing procedure did not depriveMr Foote of his appeal rights; he simply became subject to new proceduralrequirements and time limits.[41] Ms McConachy accepts that had Mr Foote filed his appeal by 16 November2020, it would have proceeded under the old appeal regime. She also accepts that hadMr Foote filed an application for special leave to extend the time for appealing after16 November 2020 but before 24 December 2020, the application would again haveproceeded under the old regime.[42] However, she says the position is that an appeal is out of time. Ms Dycheaccepts that. Ms McConachy further says that as Mr Foote failed to file an applicationfor special leave to extend the time to appeal prior to 24 December 2020, he has losthis opportunity to do so. She says that Mr Foote was subject to the new regime from24 December 2020, and needed to take the step of applying to the Commissioner forreview within 28 days of the decision.[43] Ms McConachy accepts that it would be contrary to the principle thatenactments do not have retrospective effect, unless Parliament expresses otherwise, ifMr Foote was unable to exercise his appeal rights under the new legislation becausehe was effectively time-barred from the day it came into effect because more than28 days had already passed since the notice of revocation.[44] Ms McConachy resolves this difficulty by making a distinction between factualnotice of a revocation decision and legal notice. She submits that Mr Foote was givenfactual notice of the revocation decision on 18 October 2020, but effective legal noticedid 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 Footereceived 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 toknow about the change in the law and (2) was in receipt of notice of a decision abouthis licence. She says this amounts to legal notice of a relevant decision within themeaning of s 62(4) as amended. Mr Foote therefore had 28 days from 24 December2020 to apply to the Commissioner for a review of the revocation decision. He didnot 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 onor after 24 December 2020. She notes that many persons receiving adverse decisionsare 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 inMr Foote's case.[47] As to the operation of the amended legislation, Ms McConachy saysindications point to the conclusion that Parliament intended the new appeal procedureto apply to all appeals instituted after 24 December 2020. She suggests that Parliamentwould not have intended to generate two parallel procedural tracks, as this would becontrary to the rationale of procedural efficiency which underpinned the new appealregime.[48] Further, she says that the additional procedural requirement of seeking reviewby the Commissioner is intended to be less burdensome on an applicant. On thisapproach, Ms McConachy says that the only material change to Mr Foote's right or itsexercise was the 28-day time limit imposed by s 62, as amended. However, as thisvariation can be properly categorised as a procedural matter, it is not a substantiveright.AnalysisSeparate factual and legal notice[49] I first dispose of Ms McConachy's submission that Mr Foote was given factualnotice of revocation on 18 October 2020 and legal notice of the decision on24 December 2020. I do not consider that notice can be split in that way. At the timeMr Foote received factual notice that was also the date of legal notice. It was legalnotice under the old regime. Any appeal rights operated from that date. They hadexpired before 24 December 2020.[50] I am conscious that the above argument was made at a time when it was thoughtMr Foote's appeal rights were live on 24 December 2020. The issue is now whetherMr Foote has the ability to apply for special leave to extend time to appeal. As legalnotice was received under the old regime in relation to appeal rights then notice cannotbe 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 inthe Legislation Act:12 Legislation does not have retrospective effectLegislation 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 anythingdone or suffered:(b) affect an existing right, interest, title, immunity, duty, status, orcapacity:(c) affect an amendment made by the legislation to other legislation:(d) affect the previous operation of the legislation or anything done orsuffered under it:(e) revive any thing that is not in force or existing at the time the repealor 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 legalposition; or(c) the completion of a proceeding commenced or in progress under thelegislation.(2) Repealed or amended legislation continues to have effect for the purposesstated in subsection (1) as if the legislation had not been repealed oramended.[52] "Enactment" is defined in s 13 as meaning the whole or any part of an Act orany secondary legislation. The above sections accordingly extend to the repeal andsubstitution of particular provisions. "Repeal" in relation to any legislation is widelydefined in s 13 and includes revocation and replacement.[53] The first question is whether the ability to apply for special leave to extend the20-day period for appealing to the District Court was "an existing right" in terms ofs 32(1)(b). The second question is whether, in terms of process, filing such anapplication now would be the commencing of a proceeding that relates to an existingright (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 whohave arguably accrued rights under a previous regime points both ways. In Foodstuffs(Auckland) Ltd v Commerce Commission,22 the Court of Appeal summarised thegeneral principles:23... The common law concerning non-retrospectivity and related interpretationlegislation have both long recognised the need to strike a balance betweengiving effect to Parliament's will, aimed at changing the law and introducingnew policies, on the one hand, and, on the other, to protecting, for reasons ofjustice and fairness, positions already established under the old law. In termsof the second matter, Courts and legislatures alike have stated the principle ofnon-retrospectivity and have protected legally recognised interests — such asrights, title, immunities, duties, liabilities — which 'exist' or have 'vested' or'accrued'. If the general law lacks means or procedures to recognise, enforceor sanction those legally recognised interests, Courts and especiallylegislatures may also recognise and save the continued effect of the proceduresthat supported those interests ... But if, broadly speaking, no existing, vestedor accrued legal interests are put in jeopardy the new manifestation ofParliament's will is to be given full effect.[56] In Foodstuffs, a legislative change which occurred after a company made anapplication to the Commerce Commission and before the decision was made, madethe legal test governing the Commission's assessment more stringent. The applicantargued that the expectation of assessment under the old test was effectively a legalinterest which could not be repealed, pursuant to s 18 of the Interpretation Act 1999.24However, the Court of Appeal held that the application was "forward looking"25 andthe 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 1999and 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 isbrought in with instantaneous effect ... But changes in law may and doadvantage some and disadvantage others depending on matters of timing. Inthis case, while expectations based on administrative understandings mayhave been dashed, no existing right or interest based on the old test was, weconsider, denied. Further, administrative convenience cannot be preferred tothe proper legal interpretation. [The applicant]'s right to have its applicationdetermined remained unaffected, but the determination was to be inaccordance with the law in force at the time of the determination and byreference to the facts at that time.[57] The issue of legislative retrospectivity was also addressed by the Court ofAppeal in Crown Health Financing Agency v P.26 In that case, former patients broughtclaims of historic abuse against the liable government agency after the statutoryregime had changed. The new regime favoured the claimants, because it did notcontain a leave requirement or procedural time limit. The Court of Appeal granted theclaimants special leave to appeal on the issue of whether the leave provisions of theearlier legislation were repealed by the later legislation, and therefore did not apply toa proceeding commenced after the date on which that Act came into force. Therelevant interpretation legislation was also s 18 of the Interpretation Act 1999.[58] The respondent argued that the leave provisions in the earlier legislation werenot retrospectively repealed by the new regime, and that leave was required where thealleged acts occurred while the earlier statute or its predecessor was in force. In otherwords, the respondent argued that the claimants were governed by the legislationwhich was in effect at the time of the alleged wrong. The claimants argued that leaverequirements were procedural matters rather than substantive rights or interests, andthat the variation which the new legislation made to the application regime thereforedisplaced the old.[59] Hammond J summarised the substantive/procedural principle as follows:27... statutory provisions which deal with procedural matters (as opposed tosubstantive rights and obligations) are normally to be regarded as operatingretrospectively, unless a contrary intention is expressed or implied in thestatute itself. Procedural matters are regarded as being regulated by therepealing statute from the time it becomes operative, even in respect of matterswhich 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 thesubstance/procedure divide".28[61] On the issue of retrospectivity, the majority of the Court agreed that the leaveprovisions in earlier legislation conferred rights which the new legislation did notretrospectively repeal. Hammond J, for the majority, reasoned that obtaining leavewas a pre-condition of bringing proceedings,29 and that Parliament had put in place afilter, or screening process, which must be passed through before continuing to asubstantive proceeding. In his view, it was entirely artificial to bifurcate that filterbased on a simplistic substance/procedure dichotomy. The respondent therefore helda "right" not to be subject to legal proceedings unless the prospective proceeding hadpassed through the prescribed filter. Accordingly, the claimant's appeal on this groundwas dismissed.30[62] A further distinction in this context has been made between discretionary andmandatory powers. As was argued in Foodstuffs, discretionary powers are less likelyto provide a basis for a vested or accrued right which will be protected from newlegislation. Existing rights defined by more "tightly drawn" legislation, for instanceincorporating strict procedural limits and requirements, are more likely to beinterpreted as inexorably accrued, and therefore continue beyond the enforcement ofnew legislation.31[63] In Director of Public Works v Ho Po Sang,32 relevant ordinance provisionswere repealed after a lessee received a public works notice of intention to grant him are-building certificate (permitting redevelopment of the Crown land which he leased)but before the certificate was issued. The Interpretation Ordinance of Hong Kong33provided that repeal would not affect any investigation, legal proceeding or remedy inrespect of a right acquired or accrued under a repealed enactment. The Privy Council28 At [191].29 Referring to Seal v Chief Constable of South Wales Police [2007] UKHL 31, [2007] 1 WLR 1910at 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 becausethe grant of the certificate was still conditional and he "had no more than a hope" thatthe 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 rightand an investigation which is to decide whether some right should or shouldnot 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 Victoriaheld that a landowner who had submitted a notice of intention to subdivide land to thelocal council had no protection against a legislative amendment which came into forceafter he made the submission but before the council issued its decision. Theamendment empowered the council to request a security payment from the landowner,where previously none was required. The assessment was made in light of the ActsInterpretation Act 1958.37 The Court held that the "mere taking of procedural stepsunder a statute in the expectation of achieving a benefit from an administrativeauthority does not create a right to the continuance of the proceedings unaffectedby amendment of the statute".38Analysis – first issue[65] While the claimants in Crown Health benefited from the new regime andMr 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, thesubstance/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 anextension of time to bring an appeal in the District Court operates as a gateway toMr Foote's substantive right to bring an appeal. As a consequence of the legislativechange, it is his only gateway. Following Crown Health, a right accrued under aprevious legislative regime will not be retrospectively annulled by the bringing intoforce 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 anappeal 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 bringan appeal in the District Court is a discretionary power. Mr Foote's ability to seeksuch leave is provided for by secondary legislation in the form of the District CourtRules. Further, the new regime under the Act may be characterised as more "tightlydrawn" than previously, imposing, as it does, an additional preliminary step in theappeal process, and inserting detailed prescriptions for making an application, in termsof form, content and a 28-day time limit. Approaching the analysis in this wayindicates that the ability to seek leave for an extension of time at the discretion of theDistrict Court Judge is not an accrued right and will be displaced by new proceduralprovisions. This approach favours the Police.[67] In the end it is not necessary to reach a concluded view because of my decisionbelow on the second issue.Second issue[68] The issue is whether the making of an application for special leave to extendtime for appeal is the "commencing of a proceeding" that relates to an existing legalposition in terms of s 33(1)(b). For reasons that follow, an application for special leaveto 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 civiljurisdiction of the court other than an interlocutory application[70] "Interlocutory application" is also defined in the District Court Rules but in aprocedural sense, which doesn't assist with the present interpretation exercise. Forcompleteness the definition is as follows:interlocutory application means application made in accordance with rule1.15, 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 everyother party affected by the appeal; and...[72] In short, as an interlocutory application, an application for special leave toextend time for bringing an appeal is not a proceeding. Accordingly, Mr Foote's abilityto make an application for special leave to extend time to bring his appeal under theold law is not saved by s 33(1)(b) of the Legislation Act following the coming intoforce of the new appeal provisions.Conclusion[73] The Judge was correct (but for the wrong reason) when he said he had nojurisdiction to hear the appeal. There was no jurisdiction because Mr Foote's right ofappeal 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 appealingthe decision to revoke his firearms licence. An application for special leave is aninterlocutory 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 forappealing would not be the "commencing of a proceeding" under s 33(1)(b) of theLegislation 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 Policeas the successful party are prima facie entitled to costs.[77] If the parties can agree costs a joint memorandum is to be filed within20 working days of the date of this judgment. If costs are not agreed then the Policemay file and serve a memorandum within five working days of the date for the jointmemorandum. Mr Foote is to reply within five working days of the date of service ofthe Police's memorandum.[78] Costs memoranda are not to exceed four pages, excluding any attachments.I will determine costs on the papers._____________________________Gordon J