Reihana v Foran

[2023] NZHC 324

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-436

[2023] NZHC 324

BETWEEN

TONI COLIN REIHANA

Applicant

AND

GREGORY FORAN

First Respondent

AIR NEW ZEALAND LIMITED

Second Respondent

Hearing:

On the papers

Appearances:

Applicant in person

J Q Wilson and T M J Shiels for Respondents

Judgment:

28 February 2023

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 28 February 2023 at 12 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors:           Bell Gully, Auckland Copy for:  Applicant

REIHANA v FORAN [2023] NZHC 324 [28 February 2023]

Introduction

[1]                 This is an application by the applicant, Mr Reihana, for leave to appeal against an order I made in a judgment of 16 September 2022.1 That order required Mr Reihana to pay or secure $10,000 as security for costs.

[2]                 I made that order because Mr Reihana was impecunious; resident outside of the jurisdiction (although Mr Reihana is now intending to return to New Zealand on 9 March 2023); his claim against Mr Foran had no prospects of success; and his claim against Air New Zealand most unlikely to succeed.

[3]                 As my order was an interlocutory one, Mr Reihana requires leave to appeal. Mr Reihana filed his application for leave on 17 October 2022, but it has only recently been brought to my attention. I understand that Mr Reihana was slightly out of time for filing his application. I grant the necessary extension as there is no prejudice to the respondents in doing so. I record that by email of 15 February 2023, Mr Reihana sought a hearing of the application before me, and before he returns to New Zealand. I am hearing another matter at present, scheduled to go well beyond 9 March 2023 and, in any event, am satisfied I am able to determine the matter on the papers, without a hearing.

[4]                 In addition to those introductory comments, I refer also to a decision delivered by Venning J on 22 September 2022, granting an application by the respondents to strike out  all  causes  of  action  pleaded  in  Mr  Reihana’s  statement  of  claim.2  Mr Reihana has appealed that decision to the Court of Appeal, not requiring leave to do so.

Criteria

[5]The Court of Appeal set out the criteria governing an application for leave in

Greendrake v District Court of New Zealand.3 That criteria is as follows:4

(a)a high threshold exists;

1      Reihana v Foran [2022] NZHC 2382.

2      Reihana v Foran [2022] NZHC 2425.

3      Greendrake v District Court of New Zealand [2020] NZCA 122.

4 At [6].

(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.

Discussion

[6]                 I decline this application for leave to appeal. As the respondents submit, the application for leave is deficient because Mr Reihana has not identified an error in my judgment. In his application for leave, Mr Reihana says:

2.        The grounds on which the interim order is sought are as follows:

i.)At   first   glance   and   a   quick   perusal   of   the   above    16th September 2022 decision of Peters J indicates the decision is flawed and warrants higher tier Court rectification

...

[7]                 This general statement does not meet the requirements of (b) of the Greendrake criteria referred to at [5] above. The error must be particularised. Given that it has not been, I am unable to assess whether the error is arguable, meets the criteria in (c) above, and whether (e) is satisfied.

[8]                 Had the position been otherwise, delay (item (d)) would not have been an issue, given the appeal brought against Venning J’s judgment.

Result

[9]I decline leave to appeal accordingly.

Peters J