IN THE SUPREME COURT OF NEW ZEALAND
I TE KŌTI MANA NUI
SC 2/2020
[2020] NZSC 2
BETWEEN

THE KIWI PARTY INCORPORATED
Applicant

AND

ATTORNEY-GENERAL
Respondent

Court:

Winkelmann CJ, Glazebrook and O’Regan JJ

Counsel:

G E Minchin for Applicant
G M Taylor for Respondent

Judgment:

11 February 2020

JUDGMENT OF THE COURT
A

The application for an extension of time to file an application
for leave to appeal is dismissed.

B
The applicant must pay costs of $2,500 to the respondent.
____________________________________________________________________

REASONS
[1]

The applicant commenced proceedings in the High Court seeking declarations

as to the validity of the Arms (Military Style Semi-automatic Firearms) Order 2019
(the Order), the process followed by Parliament in passing the Arms (Prohibited
Firearms, Magazines, and Parts) Amendment Act 2019 (the Act) and the validity of
the Act.
[2]

The High Court struck out the causes of action challenging the parliamentary

process and the validity of the Act but did not strike out the cause of action challenging

THE KIWI PARTY INCORPORATED v ATTORNEY-GENERAL [2020] NZSC 2 [11 February 2020]

 the validity of the Order.1 The Court also dismissed the applicant’s application for
interim orders aimed at preventing the implementation of the Act.2
[3]

On 4 June 2019, the applicant appealed to the Court of Appeal. The applicant

sought a direction that the appeal be set down before a full court. This was declined
and the matter has been set down for hearing before a divisional court on
3 March 2020. Disappointed at this turn of events, the applicant then made the present
application seeking an extension of time to apply for leave for a “leapfrog” appeal
directly to this Court. The present application was filed on 15 January 2020, almost
eight months after the date of the High Court decision.
[4]

This Court could grant leave to appeal only if satisfied that one or more of the

grounds for appeal in s 74 of the Senior Courts Act 2016 applies and that there are
exceptional circumstances warranting a leapfrog appeal as provided in s 75. The
applicant seems to have accepted that there were no exceptional circumstances in this
case, hence its appeal to the Court of Appeal. Its counsel, Mr Minchin, acknowledged
that this Court would be assisted by the considered views of the Court of Appeal when
addressing the matters the applicant wishes to raise in the event that this Court were
to grant leave. But he argues that the allocation of the case to a divisional court implies
that the Court of Appeal’s consideration of the issues would not be of assistance to this
Court.
[5]

We do not consider the Court of Appeal’s allocation of the case to a divisional

court provides a proper basis for the grant of an extension of time to seek leave for a
leapfrog appeal to this Court. The Court of Appeal is seized of the matter, the hearing
in that Court is imminent and it should be permitted to continue the process of dealing
with the appeal before it. In the event that either party seeks leave to appeal to this
Court against the Court of Appeal’s decision, this Court can consider the merits or
otherwise of granting leave with the benefit of the Court of Appeal’s views. In view
of the fact that the Court of Appeal has yet to hear the case, and given the likelihood
of a future application for leave to appeal to this Court from whichever party is

1
2

The Kiwi Party Incorporated v The Attorney General [2019] NZHC 1163 (Wylie J).
At [52].

 unsuccessful in the Court of Appeal, we refrain from giving any indication of view on
the merits of the applicant’s case.
[6]

The application for an extension of time to apply for leave to this Court is

dismissed.
[7]

The applicant must pay costs of $2,500 to the respondent.

Solicitors:
Thomas & Co, Auckland for Applicant
Crown Law Office, Wellington for Respondent