Reihana v Foran

[2023] NZCA 310

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA124/2023
 [2023] NZCA 310

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

Court:	French and Collins JJ
Counsel:	Applicant in person J Q Wilson and T M J Shiels for Respondents
Judgment: (On the papers)	21 July 2023 at 9.30 am

JUDGMENT OF THE COURT

The application for leave to appeal the order for security for costs is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

1. In a judgment delivered on 16 September 2022, Peters J ordered Mr Reihana provide security for costs in the sum of $10,000 and that his proceeding be stayed until he did so.[1]

   [1]Reihana v Foran [2022] NZHC 2382 at [25]–[26].

2. Subsequently, Peters J declined Mr Reihana’s application for leave to appeal the security and stay judgment.[2]  Mr Reihana now applies for leave from this Court to appeal the security for costs order.[3]

Grounds of application

[2]Reihana v Foran [2023] NZHC 324.

[3]Leave is required pursuant to Senior Courts Act 2016, s 56(5).

1. It is not easy to decipher the basis of Mr Reihana’s application.  He appears to suggest that Peters J erred by:

   (a)not addressing a “pivotal costs v benefits analysis”;

   (b)placing too much reliance on the fact that at the relevant time Mr Reihana resided in Australia;

   (c)over-emphasising the weakness of his case; and

   (d)failing to consider that no discovery had occurred nor had interrogatories been administered.

Governing principles

1. In Greendrake v District Court of New Zealand, this Court explained the criteria for leave to appeal in cases such as the one before us:[4]

   (a)the threshold for leave is high;

   (b)the applicant must identify an arguable error of law or fact;

   (c)the alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value;

   (d)the circumstances must warrant incurring further delay; and

   (e)the ultimate question is whether the interests of justice are served by granting leave.

Analysis

[4]Greendrake v District Court of New Zealand [2020] NZCA 122 at [6].

1. We agree with the respondents that there is no issue of general or public importance in the proposed appeal against the security for costs decision. This is because the High Court has struck out Mr Reihana’s claim,[5] and the issue of security for costs is therefore no longer operative.

   [5]Reihana v Foran [2022] NZHC 2425 at [62].

2. Mr Reihana has already lodged an appeal against the substantive strikeout decision.  He failed to pay security for costs in relation to that appeal leading to the appeal being deemed abandoned.  The proper course of action was for Mr Reihana to have properly prosecuted that appeal.  Mr Reihana cannot now continue this litigation under the guise of a challenge to the High Court security for costs order.

3. We also agree with the respondents that there is no arguable error of law in the judgment.  The thresholds for security for costs and stay were clearly satisfied.

4. Peters J correctly assessed that the prospects of success were poor against Air New Zealand and non-existent against Mr Foran.  The correctness of the Judge’s approach is proven by the fact that the High Court subsequently struck out the claim in its entirety.[6]

Result

[6]At [62]–[63].

1. The application for leave to appeal the order for security for costs is declined.

Solicitors:
Bell Gully, Auckland for Respondents