Reihana v Foran
[2022] NZHC 2382
•16 September 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-436
[2022] NZHC 2382
BETWEEN TONI COLIN REIHANA
Applicant
AND
GREGORY FORAN
First Respondent
AIR NEW ZEALAND LIMITED
Second Respondent
Hearing: 29 June 2022 Appearances:
Applicant in person
J Q Wilson and T M J Shiels for Respondents
Judgment:
16 September 2022
JUDGMENT OF PETERS J
This judgment was delivered by Justice Peters on 16 September 2022 at 12.15 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 [2022] NZHC 2382 [16 September 2022]
[1] This judgment determines an application by the respondents of 25 May 2022, seeking an order that the applicant in the proceeding, Mr Reihana, give security for costs, and that the proceeding be stayed until does so. Mr Reihana opposes the application.
High Court Rules 2016, r 5.45
[2] The application is made pursuant to High Court Rules 2016, r 5.45, the relevant parts of which are as follows:
5.45 Order for security of costs
(1)Subclause (2) applies if a Judge is satisfied, on the application of a defendant,—
(a)that a plaintiff—
(i)is resident out of New Zealand; or
…
(b)that there is reason to believe that a plaintiff will be unable to pay the costs of the defendant if the plaintiff is unsuccessful in the plaintiff’s proceeding.
(2)A Judge may, if the Judge thinks it is just in all the circumstances, order the giving of security for costs.
(3)An order under subclause (2)—
(a)requires the plaintiff against whom the order is made to give security for costs as directed for a sum that the Judge considers sufficient—
(i)by paying that sum into court; or
(ii)by giving, to the satisfaction of the Judge or the Registrar, security for that sum; and
(b)may stay the proceeding until the sum is paid or the security given.
...
[3] Rule 5.45 (1) sets out “threshold” grounds, one of which must be established before the Court may order security under r 5.45(2). If a threshold ground is
established, then the Court has a discretion as to whether to order security and, if so, in what sum.1
Threshold
[4] There is no dispute that Mr Reihana is resident outside of New Zealand. In addition, it is also clear that Mr Reihana will be unable to pay the respondents’ costs if unsuccessful in his proceeding. In his affidavit of 31 May 2022, Mr Reihana deposes that he is a beneficiary, and that his income as such is modest. Mr Reihana also states that he receives no taxable income.
[5] Given that, the threshold to which I referred above is met, and the issue becomes whether it is just in all the circumstances that Mr Reihana should provide security. The respondents’ case on this point is that it is just, because Mr Reihana’s claim is without merit and legally untenable.
Exercise of discretion
[6]Mr Reihana’s proceeding arises from the following circumstances.
[7] On 3 October 2021, the second respondent (“Air NZ”) announced that from 1 February 2022 any person flying wishing to travel on its international network would have to be vaccinated against COVID-19 (“policy”).
[8] In mid-April 2022, Air NZ announced that the policy would cease on 30 April 2022.
[9] Mr Reihana’s case is that in early March 2022 he booked a seat on an Air NZ flight from Australia to New Zealand, for travel in the week of 14 March 2022. However, Mr Reihana was unable to travel on the flight as he is unvaccinated, or at least he was at the time, and the policy was still in effect.
[10]Mr Reihana challenges the policy on the following grounds.
1 McLachlan Ltd v MEL Network Ltd (2002) 16 PRNZ 747 (CA).
[11] First, Mr Reihana contends that in implementing the policy, the respondents failed to take account of scientific information to the effect that an unvaccinated traveller who returned a negative test for the virus prior to boarding presented no greater risk of spreading the virus than a traveller who was vaccinated. Thus, the policy served no purpose.
[12] Secondly, Mr Reihana contends that by implementing the policy, the respondents were in breach of provisions of the New Zealand Bill of Rights Act 1991 (“NZBORA”) and the Human Rights Act 1993.
[13] Thirdly, Mr Reihana claims that the respondents were negligent in that they owe their customers a duty of care not to insist that they have an unnecessary vaccination before flying. Mr Reihana alleges that it would have been sufficient to require an unvaccinated customer to return the negative test to which I have referred.
Submissions
[14]The respondents make the following submissions about the merits of the claim.
[15] First, as a general point, there are no circumstances in which Mr Foran, as the Chief Executive of Air NZ, may be liable to Mr Reihana on any cause of action pleaded. I am satisfied that submission is correct and do not refer to Mr Foran again.
[16] Secondly, as regards the first cause of action, Mr Reihana has not identified in his statement of claim any exercise of a statutory power, any failure to exercise such a power, or any proposed or purported exercise of a statutory power by Air NZ. Thus, there can be no claim for judicial review which is dependent on such an exercise, or failure to exercise, and so on.
[17] Moreover, Air NZ submits that public law remedies (which include judicial review) are not available against it, and that it is not within the scope of NZBORA.
[18] Thirdly, Air NZ contends that it may establish such commercial policies regarding carriage, including the need for vaccination, as it sees fit and that it owes no duty of care to anyone in doing so.
Discussion
[19] I recognise that Mr Reihana is unlikely to be able to pursue this proceeding if I order him to provide security. However, the apparent merits of a claim and its prospects of success are an important consideration. A defendant to litigation which has little prospect of success should be protected for their costs if there is doubt as to the plaintiff’s ability to pay.
[20] For the reasons the respondents advance, I am satisfied the prospects of success of this proceeding are poor as against Air NZ. The claim has no prospect of success at all against Mr Foran.
[21] I also take into account that Mr Reihana would or should have known of the policy before he booked his flight. To the extent he suffered loss or inconvenience, it was avoidable.
[22] In those circumstances, I am satisfied that it is appropriate to order provision of security.
[23] As to quantum, in a minute of 18 May 2022, Woolford J recorded the parties’ agreement that Category 2 would be an appropriate costs classification for the proceeding. The respondents have calculated that costs on a 2B basis for a one day substantive hearing would be $19,837 and they seek an order that security be provided accordingly.
[24] I do not propose to order the provision of security in that sum. I do, however, order security in the sum of $10,000, being approximately 50 per cent of the sum the respondents have proposed.
Result
[25] I make an order that the applicant, Mr Reihana, give security for the respondents’ costs in the proceeding in the sum of $10,000. This sum is to be paid into the High Court at Auckland, or security given for that same sum to the satisfaction of the Registrar of the High Court at Auckland.
[26] The proceeding is stayed on terms that Mr Reihana is not to take any further step in the proceeding until such time as the security is paid into the High Court at Auckland or Mr Reihana provides security to the satisfaction of the Registrar of the High Court at Auckland.
Costs
[27] The respondents having succeeded on this application, Mr Reihana is to pay their costs on a 2B basis, together with all usual disbursements.
Peters J
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