Reihana v Foran [2023] NZCA 59 (14 March 2023)

Last Updated: 20 March 2023

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA561/2022 [2023] NZCA 59

	BETWEEN	TONI COLIN REIHANA Applicant
	AND	GREGORY FORAN First Respondent AIR NEW ZEALAND LIMITED Second Respondent

Counsel:	Applicant in person J Q Wilson and T M J Shiels for Respondents
Judgment: (On the papers)	14 March 2023 at 9.30 am

JUDGMENT OF COLLINS J
(Review of Deputy Registrar’s decision)

The application for a review of the Deputy Registrar’s decision is declined.
____________________________________________________________________

REASONS

Introduction

[1] Mr Reihana seeks a review of a decision of a Deputy Registrar declining Mr Reihana’s application to waive security for costs in relation to his notice of appeal.

[2] Mr Reihana wishes to appeal a judgment of Venning J striking out Mr Reihana’s statement of claim against the Chief Executive of Air New Zealand, Mr Gregory Foran, and Air New Zealand.^[1]

[3] In his proceeding Mr Reihana attempted to challenge Air New Zealand’s COVID-19 policy, which required all passengers over the age of 18 to be vaccinated against COVID-19 before travelling on Air New Zealand international routes between 1 February 2022 and 30 April 2022 (the policy).

[4] Mr Reihana raised three causes of action in the High Court. Firstly, he filed an application for judicial review of the policy decision on 3 October 2021. Relatedly, Mr Reihana also claimed that when they adopted the policy, Air New Zealand and Mr Foran breached the anti-discriminatory provisions of the New Zealand Bill of Rights Act 1990 (the NZBORA) and the Human Rights Act 1993 and acted negligently by requiring passengers to receive potentially dangerous vaccinations.

High Court decision

[5] In the High Court, Venning J concluded Mr Reihana’s statement of claim did not disclose a reasonably arguable cause of action. The Judge explained:

(a) Despite Mr Reihana’s subjective views about the dangers associated with COVID-19 vaccinations, the policy could not “seriously be argued to have been irrational, capricious or unreasonable, in the public law sense”.^[2]

(b) The application to declare the policy invalid was moot, as the policy was no longer operative.^[3]

(c) Section 3(b) of the NZBORA did not apply to Air New Zealand when it set the terms and conditions for carrying passengers in accordance with the policy.^[4]

(d) The claim of negligence was inherently defective.^[5]

(e) The claim against Mr Foran was misconceived because Mr Foran owed no personal duty of care to Mr Reihana.^[6]

Security for costs decision

[6] Mr Reihana’s notice of appeal was received on 14 October 2022. Security for costs was set at $7,060 pursuant to r 35 of the Court of Appeal (Civil) Rules 2005 (the Rules). On 9 November 2022 Mr Reihana applied for security for costs to be dispensed with. That application was dismissed by the Deputy Registrar on 18 January 2023.

[7] The Deputy Registrar explained that even if Mr Reihana was impecunious, security for costs should not be dispensed with because no solvent litigant would proceed with the appeal. She said:

[34] The appeal seems to have poor prospects of success, does not clearly involve greater potential benefits than costs, does not give rise to any substantive issue of public interest, and may be vexatious.

Analysis

[8] The application for review is brought pursuant to r 5A(3) of the Rules and appears to rely primarily on Mr Reihana’s impecuniosity and his contention that requiring him to pay security for costs will deny him access to justice.

[9] The criteria for dispensing with security for costs were explained by the Supreme Court in Reekie v Attorney-General.^[7]

[10] The following three principles articulated by the Supreme Court are relevant to the current review:

(a) Impecuniosity does not in itself warrant an order dispensing with security.^[8]

(b) The Registrar should only dispense with security for costs if satisfied the interests of justice require the respondent to defend the judgment under appeal without the usual protection provided by security for costs.^[9]

(c) The discretion to waive security is to be exercised to preserve access to this Court by an impecunious appellant in cases which a solvent appellant would reasonably wish to prosecute. Impecuniosity is not to be used as an advantage to prosecute an appeal which would not seriously be pursued by a solvent litigant.^[10]

[11] Venning J properly concluded Mr Reihana’s claim was untenable. Nothing submitted by Mr Reihana in this Court undermines the strength of that conclusion.

[12] The policy is no longer operative and no issue of public importance arises from the way in which Mr Reihana’s proceeding has been framed.

[13] Plainly, no solvent litigant would seriously pursue the appeal. Even if he is impecunious, Mr Reihana should not be able to use that status to advance an appeal that no solvent litigant would pursue.

Result

[14] The application for a review of the Deputy Registrar’s decision is declined.
Solicitors:
Bell Gully, Auckland for Respondents

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^[1] Reihana v Foran [2022] NZHC 2425 [High Court judgment].

^[2] At [39].

^[3] At [41].

^[4] At [48].

^[5] At [56].

^[6] At [60].

^[7] Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737.

^[8] At [20].

^[9] At [21].

^[10] At [35].