SHARMA v AIR NEW ZEALAND LIMITED [2020] NZHC 230

SHARMA v AIR NEW ZEALAND LIMITED [2020] NZHC 230 [21 February 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2019-404-1504[2020] NZHC 230BETWEEN ANJELA SHARMAApplicantAND AIR NEW ZEALAND LIMITEDRespondentHearing: 22 November 2019Appearances: S J Grey for ApplicantS J P Ladd & B A Keown for RespondentJudgment: 21 February 2020JUDGMENT OF PAUL DAVISON JThis judgment was delivered by me on 21 February 2020 at 12:30pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:S Grey Lawyer, NelsonBell Gully, AucklandIntroduction[1] Ms Anjela Sharma (the applicant) applies for a mandatory interim injunctiondirecting Air New Zealand (the respondent) to immediately remove a 12 month ban(the ban) it imposed on 2 July 2019 preventing her from travelling on Air New Zealandflights.1[2] On 26 July 2019, the applicant filed this proceeding alleging that the 12 monthban imposed on her by the respondent is in breach of its contractual obligations to heras a passenger who had booked and paid for several flights on which she was yet totravel.[3] At the same time as the applicant commenced and filed this proceeding, sheapplied for an interim order quashing the ban imposed by the respondent on her. Theapplicant also applies for an order for a change of venue of the proceeding fromAuckland to Nelson where she resides, and where the events from which the disputebetween her and the respondent arose.[4] The respondent opposes both applications.Background[5] The applicant is a lawyer who resides and practises in Nelson. She travelsregularly out of Nelson to other centres for work, training, attending professionalcommittee meetings, family and recreational purposes.[6] Since around 1980 the applicant has been a regular user of the respondent's airservices, having travelled with Air New Zealand both nationally and internationallyon numerous occasions. The applicant has been a member of Air New Zealand's airpoints system since 1996, a member of the respondent's Koru Club2 for several years,and is a paid-up member of that club to 30 March 2020. The applicant says that she1 Including those of its subsidiary domestic carriers.2 A membership programme which offers its members various travel benefits, including access toan airport lounge.is dependent on travelling on the respondent's air services for work-related travel, tomaintain contact with members of her family, holidays and recreation.[7] The applicant says that on 1 December 2018 she and her husband,accompanied by their six adult children aged between 15 and 25 years were travellingto India for a family holiday. The first leg of their journey was a domestic Air NewZealand flight from Nelson to Auckland. The second leg was a Singapore Airlinesflight from Auckland to India travelling business class. When checking in at NelsonAirport they were unable to obtain their boarding passes for the Singapore Airlinesflight, and were told by the respondent's airport staff that they would have to obtainthem upon their arrival in Auckland.[8] Ms Sharma says that on the understanding that their business class ticketsentitled them to use of the Air New Zealand Nelson Airport Koru Club Lounge, sheand her family went to the Lounge. She says that she and her husband explained tothe respondent's staff that they were travelling first to Auckland and thence on to Indiaon a Singapore Airlines flight, which is an Air New Zealand code share partner, onbusiness class fares. They showed the Air New Zealand Koru Lounge hostess theirtravel documentation which included material confirming their business class fares onSingapore Airlines. They were permitted to enter and remain in the respondent's KoruLounge during a two-hour wait for the departure of their flight to Auckland.[9] The applicant says that while she and her family were waiting in the KoruLounge they were approached by a second member of the respondent's staff whochallenged the eligibility of the applicant and her family members to use the Lounge.The applicant says that after she had shown the second staff member her family'sbusiness class travel documentation on the Singapore Airlines flight to India, it wasaccepted that she and her family could remain in the Koru Lounge while they waitedfor their flight to depart.[10] However, the respondent's staff who were involved in the conversationsregarding the applicant's entitlement to use the Koru Lounge considered that theapplicant had acted in an intimidatory and bullying manner. On 4 December 2018 therespondent's Passenger Services Manager at Nelson Airport, having received reportsfrom the staff directly involved, sent a written report to the respondent's relevantmanagers. In the report she set out details of the interactions between the Air NewZealand staff and the applicant and her family. It is clear from the terms of theManager's detailed report that the Air New Zealand staff who had been directlyinvolved with the applicant and her family members on 1 December reported that theapplicant's conduct towards them was abusive and offensive.[11] The report described the applicant and members of her family as being veryloud, disruptive, and intimidating during their dealings with the Lounge hostess overtheir entitlement to use the Lounge. The report said that members of the applicant'sfamily called the Lounge hostess stupid and racist, and mocked and loudly mimickedher voice when she greeted other passengers entering the Lounge. The report furthernoted that at one point a member of the airport security staff was called to the Loungeand had offered to call the Police. The report said that while the applicant and herhusband were both Koru Club members, none of their six children were members.The Koru Club policy allows for members to bring a maximum of one guest.3[12] The report included the account of the second staff member who spoke to theapplicant on 1 December 2018 regarding her family members' eligibility to use theKoru Lounge, stating:I was assured everyone was travelling business class ex AKL, but in actualfact 2 passengers on PNR [redacted] and 1 passenger on PNR [redacted] weretravelling Premium Economy class. (and one other PNR).I approached her and asked if I could have a word outside the Lounge, as Ihave had to have a similar conversation with her before about entering theLounge using someone else's air points, and knew there would be analtercation of some sort. She became very loud and quite rude toward myselfand [the Lounge hostess], who was on the desk. She mentioned that we alwayspick on her and her family, and even called both of us racists. I made thedecision to walk away, as I could see the other patrons in the lounge becomingquite agitated with their behaviour.I feel Mrs Sharma uses bullying tactics to gain her own way every time shetravels,We are always courteous and helpful to her, but she pushes the boundaries ofdecency every time she travels, and I would like to put a stop to her countlessdemands with us.3 "Koru benefits" Air New Zealand www.airnewzealand.co.nz.[13] The Passenger Services Manager's report said that the applicant was known tothe respondent's staff working at Nelson Airport for engaging in intimidating andbullying behaviour in order to get her own way every time she travelled through theairport. The report concluded: I will continue to get information from my staff re previous incidents butthis single situation has left my staff feeling intimidated and rattled to the pointthat they have questioned their safety. To be perfectly honestly [sic], [Ms] Sharma and her family are not welcomein the Nelson Koru Lounge in the future. I am seeking action from the loyaltyteam to prevent this behaviour from happening again in [Nelson] andanywhere across the Air New Zealand network.[14] On 21 December 2018 while the applicant and her family were in India, therespondent sent her an email saying that she and her family had entered and remainedin the Koru Lounge at Nelson Airport without permission, and warning her regardingthe future use of its services (the warning letter). The email written by the respondent'sSenior Manager of Security was headed, "Warning letter regarding the future use ofAir NZ Services" and said:I am informed that on the 01 December 2018 you and your family attendedthe Nelson Koru Lounge. The Lounge staff advised that you and your familydid not meet the Lounge terms and conditions of entry. However you and yourfamily subsequently entered the lounge without permission. Upon entry, youand your family displayed loud and aggressive behaviour which wasunacceptable, inappropriate and upsetting for our Air New Zealand staff andother passengers.I remind you of the Lounge terms and conditions and the Air New Zealandconditions of carriage:https://www.airnewzealand.co.nz/lounge-access-terms-of-usehttps://www.airnewzealand.co.nz/conditions-of-carriageTo give further clarity to Lounge access availability, in order to access Korumembership benefits, all travel must be on Air New Zealand operated andticketed flights, regardless of class of travel. On this occasion, as your travelis booked on a Singapore Airlines ticket, you and your family are not eligiblefor Lounge entry in Auckland when flying home to Nelson on 1st January.Failure to comply, breach or non-acceptance of these conditions will result inyou not being permitted to enter the Lounge, board a flight at the time ofcheck-in/boarding, being offloaded, and/or being banned entirely from flyingon Air New Zealand services in the future.The above commentary and conditions are without prejudice to any otherrights Air New Zealand or its employees may have against you in relation tothis matter.[15] On 7 March 2019 the applicant sent an email to the respondent's ChiefExecutive, Mr Christopher Luxon. In her letter she provided a detailed account of theevents at the Koru Club Lounge, emphatically disputing that there was anyjustification for the warning letter sent to her on 21 December 2018. She alsocomplained about the author of the warning letter and the conduct of the respondent'sstaff involved in the events of 1 December. Andrew Leckie, Head of Regional Airportsfor Air New Zealand, responded to the applicant via email on 29 March 2019. In hisletter, Mr Leckie said that without going into what had or had not occurred on 1December, it was important to be clear that tickets issued by Singapore Airlines fortravel both within New Zealand and internationally do not satisfy Air New Zealand'srequirements for entry to its Koru Club Lounges. He said:To reiterate the letter [of 21 December 2018] outlines our Lounge Termsand Conditions and Conditions of Carriage and as you are aware goes on tofurther say "Failure to comply, breach or non-acceptance of these conditionswill result in you not being permitted to enter the lounge, board a flight at thetime of check-in/boarding, being offloaded, and/or being banned entirely fromflying on Air New Zealand's services in the future".For complete clarity Air New Zealand welcomes you and your family'scontinued custom and providing all of our Terms and Conditions andConditions of Carriage are consistently met there will be no need to furthercommunicate.Kind regards,[16] On 15 April 2019 the applicant made a formal request addressed to therespondent's privacy officer for the correction of her personal information held by therespondent. On 9 May 2019 Senior Legal Counsel for Air New Zealand, Mr HughRoberts responded to the applicant's personal information request. With his reply heattached a copy of a "Record Event" regarding the events of 1 December 2018 and acopy of the 4 December 2018 report prepared by the Passenger Services Manager.[17] Then on 24 June 2019 the applicant, when using the respondent's internetwebsite in order to check-in for an early morning flight the following day from Nelsonto Wellington, was denied online access. This meant that she would be required tocheck-in in person at Nelson airport. That same day she wrote again to Mr Luxon. Inthis second letter she provided a detailed account of her travel on an Air New Zealandflight from Wellington to Nelson on 13 April 2019, and complained about the mannerin which Air New Zealand's check-in staff at Wellington had treated her. Shecomplained that a dispute had arisen when she was waiting to check in, and that thestaff member had been abusive and hostile towards her. She said that although the AirNew Zealand staff member had been in tears, her distress appeared to be contrived.She said that when a team leader was called and attended, she had demanded that theapplicant and her son produce personal identification which the applicant was unableto do. The applicant said that it appeared that she had been "blacklisted" by therespondent's staff, and she described the conduct of Air New Zealand's staff memberstowards her and her family members as being aggressive and hostile, and a deliberateattempt to set her family up for failure. She also accused an Air New Zealand staffmember based at Nelson of embellishing her account of the incident, to the point oflying and describing her as being "on a venomous mission" against her. The applicantsaid that in the future when checking in for flights she would be recording allinteractions between Air New Zealand staff, herself and her family.[18] On 1 July 2019 Mr Roberts responded to the applicant's email addressed to MrLuxon of 24 June. He said:Mr Luxon has asked me to respond to your email to him dated 24 June.I have authority to deal with your complaint. Please direct all furthercorrespondence to me.Your email to Christopher Luxon is distasteful and insulting. We won'trespond to the content of that email.Rather, we will deal with the substance of your complaint. We disagree thatthe personal information that we have disclosed is inaccurate or untrue. Itreflects the views and opinions of our staff and the effect that your recentbehaviour has had on them. It is clear from your email to Mr Luxon, that youdon't consider that you are in anyway [sic] responsible for the position thatyou now find yourself in and that you have no awareness of the effects of yourbehaviour.Given the tone of your email, we have no confidence that your intimidatoryand aggressive behaviour toward our staff won't be repeated when you travelwith us again.While Air New Zealand will always endeavour to exceed our customer'sexpectations, we are very clear that we have obligations to our staff and wewill not tolerate ill treatment of them by any customer.I have forwarded the email that you sent to Mr Luxon to our Group SecurityTeam with a recommendation that they review your eligibility to access boththe Koru Lounge and Air New Zealand operated flights.If they elect to take further action, they will notify you directly.[19] On 2 July 2019, the respondent's Senior Manager of Group Resilience, MrGiles Carter, wrote to the applicant advising that as a result of her "recent intimidatoryand aggressive behaviours towards Air New Zealand staff" she would be banned for aperiod of 12 months from the date of the letter from travelling on Air New Zealandflights. At the time that the ban was imposed the applicant had booked and paid for anumber of return trips from Nelson dated between 18 July 2019 and 12 December2019. In addition, as of 2 July 2019, the applicant had a paid up Koru Clubmembership valid until 30 March 2020, and also had an accumulation of air pointsrewards.[20] On 4 July 2019 the respondent refunded the amounts which had been paid bythe applicant for those flights.[21] The applicant says that, as a result of the respondent's ban, on 18 and 19 July2019 she was forced to drive approximately 13 hours to attend one of her son'sbirthday celebrations in Invercargill.[22] In her statement of claim the applicant alleges three causes of action: (i) breachof contract; (ii) breach of principle 7 of the Privacy Act 1993; and (iii) breaches of theFair Trading Act 1986 by the manner in which the respondent treated her and herfamily as customers and failed to comply with the provisions of the Privacy Act.Applicant's Submissions[23] Ms Grey for the applicant submits that her claim against the respondentinvolves a serious question to be tried, and that the balance of convenience and overallinterests of justice are best served by the granting of interim orders directing therespondent to provide travel services to the applicant pending final determination ofher claim.[24] Ms Grey submits that the airfares purchased by the applicant were issued andsubject to Air New Zealand's Conditions of Carriage which contains the terms of itscontract for carriage of passengers. Ms Grey says that Article 7.1 of the Conditions ofCarriage, entitled "Right to Refuse Carriage", confers a discretion on the respondentto refuse carriage on one or more of the 12 grounds set out in 7.1, all being mattersarising prior to a passenger boarding an aircraft. Counsel says that Article 11 dealswith conduct occurring on board an aircraft such as may threaten or endanger anaircraft or its occupants during a flight. She submits that the provisions of Article7.1.11, which refer to the respondent's right to refuse carriage of a passenger wherethe respondent has previously notified the passenger in writing that it would notthereafter carry the passenger on its flights or those of its operators, can only beemployed by the respondent to justify refusing to carry a passenger where one or otherof the specifically described grounds and circumstances contained in Article 7.1.1 to7.1.9 has occurred.[25] Furthermore says Ms Grey, irrespective of whether a prior breach of any ofthose provisions has occurred, carriage can only be refused under Article 7.1 providedthe respondent has exercised "reasonable discretion" in doing so. She submits that therespondent's exercise of reasonable discretion requires it to satisfy a standard ofobjective reasonableness. She submits that satisfying the objective test of what is areasonable exercise of discretion will depend on the circumstances and require allrelevant considerations to be taken into account.[26] Ms Grey further submits that the respondent's exercise of reasonable discretionimplicitly requires fairness and for the passenger to be accorded natural justice. Shesays that natural justice requires the passenger to be notified of any allegations andgiven an opportunity to be heard before a decision to refuse carriage is made. Shesubmits that a decision made without complying with the requirements of naturaljustice, or based on error of fact or law, will inevitably be unreasonable andconsequently be set aside.[27] Ms Grey submits that Article 11 of the Conditions of Carriage, entitled"Conduct on Board Aircraft", contains the grounds on which the respondent mayremove a passenger from its aircraft or refuse to carry them in the future, by reason oftheir conduct on board an aircraft. Ms Grey submits that passengers such as theapplicant who have booked and paid for their airfares do not expect their travel to bearbitrarily restricted nor to incur a ban unless such consequences were based onobjectively reasonable and robust grounds. She submits that frequent travellers withAir New Zealand who pay for Koru Club Lounge membership have an expectationthat they will be permitted to use those facilities and services whenever they travelwith the respondent, and that they will be able to book future travel and use the KoruLounge services throughout the currency of their Koru Club membership.[28] In relation to the alleged breach of contract, Ms Grey submits that therespondent breached the contractual obligations it owed to the applicant pursuant toArticle 7.1 by imposing the ban upon the applicant notwithstanding the applicant'sdenial of any misconduct in relation to the events of 1 December 2018 in the NelsonAirport Koru Lounge.[29] She says that the respondent's decision to ban the applicant for a period of 12months was not lawful, reasonable, procedurally fair or compliant with its contractualobligations pursuant to Article 7.1 because:(a) It failed to act fairly and disregarded its obligation of according naturaljustice to the applicant. The breaches of natural justice included failingto provide the applicant with: specific notice about the process andpossible outcomes including a ban; and the opportunity to be heardbefore a decision was made.(b) It failed to act promptly during the period between 1 December 2018and 2 July 2019 despite the applicant's repeated requests forinformation which would have enabled her to know the respondent'sspecific concerns about her conduct.(c) It failed to exercise its discretion on an objectively reasonable basisprior to making the decision to impose a ban upon her. The applicantsays that the decision to impose a ban was unreasonable as it was basedon patently false allegations and without due consideration for theproportionality of a ban compared to the gravity of the conductcomplained of.(d) It purported to impose a one year ban upon the applicant despite theabsence of a contractual provision for doing so in relation to conductnot occurring on board an aircraft. Article 11 governs conduct takingplace on board an aircraft.[30] Ms Grey submits that at this interim stage the Court is not required to andcannot resolve the conflicts of evidence as regards what took place during theapplicant's dealings with Air New Zealand staff prior to its decision to impose the ban.Further, she submits that the applicant is simply required to establish that she has anarguable case, and if so, whether the balance of convenience favours the granting ofthe interim relief sought. Nevertheless Ms Grey submits that the applicant's evidenceis comprehensive, coherent, detailed and is confirmed by her recordings of the mostcritical conversation she had with the respondent's staff.[31] As to the balance of convenience, Ms Grey submits that the ban has had andcontinues to have a significant adverse effect on the applicant, including on her legalwork, family, and recreation. She says there were no documented security or otherallegations regarding her conduct at Nelson Airport or otherwise until the respondent'sstaff report following the 1 December 2018 misunderstanding at the Koru Lounge.The applicant says that the travel ban has seriously interfered with her ability to travelfor professional purposes and to travel between Nelson and Invercargill and Dunedinto visit members of her family.[32] Ms Grey submits that the obtaining of interim relief and reinstatement of theapplicant's ability to travel with the respondent will not dispose of the whole of theapplicant's claim but only that part of it which is most urgent. She says that the interimorder sought does not resolve the issue of other contractual breaches by the respondent.These include the termination of the applicant's right to access the Koru Club Loungeduring the period of the ban despite her membership being paid up to 30 March 2020.Nor does the interim order concern the respondent's obligation to correct privateinformation it holds regarding the applicant.[33] As regards the application for transfer of venue for the substantive hearing ofthe proceeding to Nelson, Ms Grey submits that many of the events on which the claimis based arose in Nelson. Further, she notes that both the applicant and her counselreside in Nelson, as do several key Air New Zealand staff likely to be summonsed aswitnesses.[34] Ms Grey says that as the respondent is a commercial airline, it is far moreexpedient for it to fly counsel and witnesses around the country to attend courthearings than it is for the applicant. Moreover, the applicant is unable to fly directlyfrom Nelson to Auckland to attend court; the ban bars any present travel with Air NewZealand, and the alternative air carrier, Jetstar, has discontinued its Nelson service.[35] Ms Grey submits that in these circumstances it is in the interests of justice thatthe proceeding be transferred to the High Court at Nelson.The Respondent's Submissions[36] Mr Ladd for the respondent submits that the mandatory interim injunctionsought by the applicant will determine the substantive issue concerning therespondent's travel ban. He notes that the applicant's substantive claim will not beheard and determined before the ban expires on 2 July 2020, and thereafter providedthe applicant adheres to the respondent's Conditions of Carriage she will be able toresume travelling on Air New Zealand flights, rendering her application for interimrelief redundant.[37] The respondent submits that given that the mandatory interim injunction willeffectively determine the issue in dispute in the proceeding, the applicant mustestablish her arguable case such as to provide the Court with a high degree of assurancethat it is right that it be granted.[38] Counsel submits that the respondent has no legal obligation to carry anyone onits flights, including the applicant.[39] The respondent says that it is not a monopoly supplier of essential services. Assuch, it bears no obligation to carry the applicant as a passenger. In the absence of anylegal basis requiring Air New Zealand to carry the applicant her applicant must fail.[40] Mr Ladd further submits that the exercise of reasonable discretion in acontractual context does not import the natural justice considerations claimed by theapplicant to: specify the grounds on which it relied to impose the ban; to providereasons to the applicant; to provide an opportunity to the applicant to be heard beforereaching a decision; acting unfairly by imposing the ban on the applicant as therepresentative member of her family who has challenged the respondent.[41] Mr Ladd further submits that the applicant has not and cannot establish anarguable case based on breach of contract. He says that in the absence of an arguablecase of breach of contract, the applicant is only left with a damages claim related topast cancelled flights.[42] The respondent submits that Article 7.1.11 which provides that Air NewZealand may refuse to carry a passenger where it has previously notified her or him inwriting that they would not be carried, is a stand-alone provision that does not dependon any of the other grounds for refusing to carry passengers set out in Article 7.1.[43] As regards the exercise of the reasonable discretion provision of Article 7.1,counsel submits that the discretion must be exercised in good faith, and not in a mannerthat is arbitrary, capricious, or unreasonable in the public law sense of being a decisionthat no reasonable decision-maker could make. However, in the contractual contexthere, it is not for the Court to substitute itself for the contractual decision maker.[44] Mr Ladd submits that the evidence clearly establishes that the respondentexercised its discretion in good faith. Further, it has not been shown to have made thedecision to refuse carriage of the applicant capriciously or unreasonably. He says thatthe imposition of the ban followed a substantial history of incidents involving theapplicant which included her engaging in bullying and intimidatory behaviour tomembers of the respondent's staff, and which continued despite the respondent givingher a written warning.[45] Mr Ladd also notes that in dealing with the incidents and staff complaintsabout the applicant's behaviour, the respondent proceeded in accordance with itsstandard operating procedure for dealing with such matters. This procedure involveda review of the relevant statements and material by senior Air New Zealand staff whohave extensive security qualifications and experience, and who were independent ofthose staff members directly involved in the incidents. He also notes that theapplicant's correspondence, containing her detailed account of events and hercontentions, was received and considered by the senior staff responsible for securitybefore the decision was made to impose the ban.[46] The respondent says that its safety and security standards and procedures areof critical importance. Mr Ladd notes that, as an airline operator, Air New Zealand issubject to the requirements of the Civil Aviation Act 1990, and associated rules andregulations. These statutory requirements and rules import New Zealand'sinternational obligations under the Chicago Convention on International CivilAviation, imposing stringent safety and security obligations on Air New Zealand.[47] Mr Ladd also notes that, as an employer, Air New Zealand is subject to theprovisions of the Health and Safety at Work Act 2015. In particular, it has a duty toensure the physical and mental health and safety of its employees while they are atwork.4[48] Mr Ladd submits that on the basis of the respondent's detailed evidence, it isclear that the respondent acted in good faith to protect its staff and passengers usingits air services. He submits that it is also clear that the respondent made its decisionafter following a reasonable process and that it had a substantial and reasonable basisfor the decision to impose the 12 month ban. He says that in making the decision therespondent exercised its contractual discretion to prevent the applicant from travellingon her booked flights in accordance with the terms of carriage. Mr Ladd submits that4 Health and Safety at Work Act 2015, ss 36(1)(a) and 16.the respondent had an entirely reasonable basis for refusing to carry the applicant as apassenger for the duration of the 12 month ban.[49] Turning to the issue of the balance of convenience, Mr Ladd notes that the testrequires the Court to weigh the harm to the applicant from refusing interim relief,against the harm to Air New Zealand resulting from granting the interim order. Hesubmits that the evidence presented by the applicant falls well short of establishingthat she will suffer any significant or irreparable harm due to the ban.[50] He says that the applicant has failed to: provide details of the nature and extentof legal work she does outside Nelson; explain whether she has lost any workopportunities as a result of being unable to fly on Air New Zealand; nor detailalternative arrangements she has made to travel and work around the ban. Counselnotes that the applicant says that the ban has resulted in her being unable to attend twocontinuing legal education courses. She also asserts, in general terms, inconvenienceand stress caused by the increased travel times and cost which she now incurs having,for example, to drive to family events.[51] Mr Ladd says that there is an alternative air carrier, Sounds Air, which operatesto and from Nelson. He notes that the applicant has not explained why she cannot flywith Sounds Air from Nelson to Wellington to connect with the Jetstar network beyondsaying that the Sounds Air aeroplanes are small and that their passengers have a 15kilogram baggage limit. He submits that the applicant's evidence regarding the effectof being unable to fly with Air New Zealand amounts to mere inconvenience.[52] Mr Ladd says that if the applicant's claim succeeds, she can be compensatedfor any losses incurred and shown to be consequences of a breach of contract, by anaward of damages.[53] Addressing the issue of balance of convenience, Mr Ladd says that amandatory interim order requiring the respondent to carry the applicant on its aircraftpending the hearing and determination of her claim would cause a risk of further harmand distress to its staff members located at Nelson Airport and elsewhere who wouldbe required to deal with the applicant. He says that Air New Zealand's ability tomanage abusive customers is an important aspect of its ability to discharge its statutoryobligations relating to the public's use of its air services and to provide its staff with asafe working environment. He says that the granting of a mandatory injunction wouldundermine its ability to discharge these obligations. Mr Ladd says that the fact thatmuch of the applicant's unacceptable behaviour occurred after receipt of the warningletter indicates that she is likely to repeat that sort of conduct.[54] As regards the application for transfer of the proceeding to Nelson, therespondent says that the proceeding was correctly filed in the High Court at Aucklandunder rule 5.1(1)(a) of the High Court Rules 2016. Further, that the Nelson Registryis not more convenient to all parties for the purposes of rule 5.1(5). Mr Ladd notes thatthe respondent's staff responsible for the management and carriage of the proceedingare based in Auckland, and the respondent's witnesses are based in Auckland,Wellington and Nelson. Mr Ladd says that should the matter proceed to a substantivehearing, the respondent may need to call additional witnesses who are not based inNelson, and he notes that a hearing date for the substantive hearing is more likely tobe available earlier in the Court at Auckland than in Nelson.DiscussionA Law relating to interim mandatory injunctions[55] Arnold J summarised the principles governing interim injunctions in NZ TaxRefunds v Brooks Homes Ltd:5The applicant must first establish that there is a serious question to be tried or,put another way, that the claim is not vexatious or frivolous. Next, the balanceof convenience must be considered. This requires consideration of the impacton the parties of the granting of, and the refusal to grant, an order. Finally, anassessment of the overall justice of the position is required as a check.[56] As Palmer J expressed in Clode v Oliphant, "[a]n interim injunction is usuallygranted for the purpose of preserving the status quo pending trial of the substantiveproceeding."6 Here, the applicant seeks a mandatory interim injunction directing the5 NZ Tax Refunds Ltd v Brooks Homes Ltd [2013] NZCA 90, (2013) TCLR 531 at [12] (footnotesomitted). See also: American Cyanamid Co v Ethicon Ltd [1975] AC 396, [1975] 1 All ER 504(HL).6 Clode v Oliphant [2018] NZHC 1442 at [21].respondent to reinstate her cancelled bookings and forthwith accept her futurebookings. She seeks to disrupt the status quo. Her application will be subject to thesame test as one seeking an interim prohibitory injunction, however it has beenobserved that it will be a rare application for an interim mandatory injunction that "willwithstand the scrutiny of that test".7B Interim relief as final disposition of the proceedings[57] The 12 month ban is due to expire in early July 2020 and there will be aninevitable delay in the obtaining of a substantive fixture for the determination of theapplicant's claim. It is thus clear that a grant of interim relief would effectively operateas a final disposition of the applicant's claim.[58] Where a mandatory interim order will have the effect of a final order, the Courtshould adopt a more robust approach to its assessment of the merits of an applicant'scase than it would otherwise.8 The application is still subject to the same underlyinglegal test as that applied to applications for any standard interim injunction, howeverin assessing whether the application meets this test, the Court will apply additionalscrutiny.9 Before granting a mandatory interlocutory injunction, the Court willconsider whether the cogency of the applicant's case is such that the Court has asubstantial degree of assurance that at trial it would appear that the interim injunctionhad rightly been granted.10C A Serious Question to be Tried?[59] The fundamental issue is whether the applicant has established that hercontractual claim against the respondent involves a serious question to be tried. Itturns on whether there is any arguable contractual basis obliging the respondent toprovide the applicant with its flight services. A broader common law basis relating tothe provision of essential services by monopoly suppliers11 is not applicable to the7 Pilkington v Fidelity Life Assurance Co Ltd HC Wellington CIV-2007-485-2270, 14 April 2010 at[18], as cited in Clode v Oliphant [2018] NZHC 1442 at [21].8 McKay Electrical (Whangarei) Ltd v Hinton [1996] 1 ERNZ 501 (CA) at 507; Wilfred v Gan[2013] NZCA 457 at [21].9 Clode v Oliphant [2018] NZHC 1442 at [23].10 Precast NZ Ltd v Anystep Ltd [2016] NZHC 377 at [43]-[44].11 Vector Limited v Transpower New Zealand Limited [1999] 3 NZLR 646 at [51].applicant's claim. The respondent is not a monopoly supplier of essential services. ItsKoru Lounge and departure gates are not the modern day "public [wharves], untowhich all personsmust come" or from which all persons must depart.12 I willtherefore consider only the contractual basis for the claim.1 The terms of the contract between the applicant and the respondent[60] The applicant alleges that the respondent has breached the terms of the contractof carriage. For the applicant to establish that she has an arguable case here, the Courtmust be satisfied that the applicant has shown there to be an arguable factual and legalfoundation for her claim that the respondent acted in breach of its contract with her inimposing the ban. To determine this issue, it is necessary to first consider the relevantprovisions of the Air New Zealand Conditions of Carriage.[61] The terms of contract established between a passenger and the respondentwhen a ticket is purchased are set out in the "AIR NEW ZEALAND CONDITIONS OFCARRIAGE". The term "TICKET" is defined in the Conditions of Carriage as:"TICKET" means either the document entitled "Passenger Ticket andBaggage Check" or the Electronic Ticket, in each case issued by us or on ourbehalf, and includes these Conditions, Important Notices and Coupons.[62] Article 7 is entitled "REFUSAL OF CARRIAGE AND SPECIAL ASSISTANCE".Article 7.1 provides:RIGHT TO REFUSE CARRIAGEWe and/or Our Operators may at any time prior to boarding refuse to carryyou or your Baggage if, in the exercise of our reasonable discretion, we decideor establish any of the following:7.1.1 such action is necessary for reasons of safety;7.1.2 such action is necessary in order to comply with any applicable laws,regulations, or orders of any state or country to be flown from, into orover;7.1.3 your conduct, age or mental or physical state including yourimpairment from alcohol or drugs, is such as to require specialassistance, cause discomfort or make yourself objectionable to other12 Lord Hale's 'Treatise de Portibus Maris', as cited in Vector Limited v Transpower New ZealandLimited [1999] 3 NZLR 646 at [29].passengers or involve any hazard or risk to yourself or to other personsor to property;7.1.4 such action is necessary because you have failed to observe any of ourinstructions including non compliance with these Conditions inrelation to carriage of dangerous or prohibited goods;7.1.5 you have refused to submit to a security check;7.1.6 you have not paid the applicable fare, charges or taxes for your currentor any previous carriage with us;7.1.7 you do not appear to have valid travel documents; you may seek toenter a country through which you are in transit; you may destroy yourtravel documents during flight; you refuse to surrender your traveldocuments to the flight crew, against receipt, when so requested;7.1.8 the Ticket you present has been acquired unlawfully or has beenpurchased from an entity other than us or our Authorised Agent; hasbeen reported as being lost or stolen; is a counterfeit; or contains aFlight Coupon that has been altered by anyone other than us or ourAuthorised Agent, or has been mutilated;7.1.9 you cannot prove that you are the person named in the Ticket;7.1.10 you have previously committed an act or omission of the type referredto in Article 7.1 on a previous flight or at any location connected withairline services including airports and Ticket selling offices, and wehave reason to believe that such act or omission may be repeated on aflight operated by us or Our Operators;7.1.11 we have notified you in writing that we would not, after the date ofsuch notice, carry you on our flights or those of Our Operators. In thiscircumstance you will be entitled to a refund, less any reasonableservice fee to cover our administration costs;7.1.12 you are wearing or otherwise displaying gang patches, insignia, signsor symbols, or other attire which we deem offensive or believe willcause discomfort to other passengers and you have refused to removesuch offensive items.[63] Article 11 is entitled "CONDUCT ON BOARD AIRCRAFT". Article 11.1provides:GENERALIf in our opinion you conduct yourself on board the aircraft so as to endangerthe aircraft or any person or property on board, or obstruct the crew in theperformance of their duties, or fail to comply with any instructions of the crew,including but not limited to those with respect to smoking, alcohol or drugconsumption, or behave in a manner which causes or is likely to causediscomfort, inconvenience, damage or injury to other passengers, the crew orany property, including the aircraft, we may take such measures as we deemnecessary to prevent continuation of such conduct, including restraint. Youmay be off-loaded at any point, prosecuted for offences committed on boardthe aircraft and we may decide to refuse to carry you at any time in the future.[64] It is not disputed that when the respondent imposed the carriage ban on theapplicant it did so relying upon Article 7.1.11. It is also not disputed that therespondent had previously notified the applicant in writing that it would not carry heron its flights or those of its operators for a period of 12 months commencing 2 July2019.[65] The provisions of Article 7.1.1 – 7.1.12 set out 12 circumstances or groundsupon which the respondent may decide to exercise its discretion to refuse to carry acustomer on its aircraft. The 12 grounds are disjunctive. Article 7.1.11 cannot beinterpreted as requiring the prior occurrence of one of the other matters described in7.1 as a basis upon which written notice under 7.1.11 can be given. Article 7.1.11 isnot like Articles 7.1.4 and 7.1.10, which relate to breaches of other Articles. TheseArticles specify as their respective triggers "non compliance with these Conditions"and "[previous commission] of an act or omission of the type referred to in Article7.1". Article 7.1.11 includes no such prerequisite.[66] In my view, any pre-boarding or on-board conduct which causes the respondentto have legitimate concerns, about whether a customer will comply with its conditionsof carriage, entitles the respondent to give written notice to the customer under Article7.1.11, provided that the decision to refuse carriage is made pursuant to the exerciseof reasonable discretion. Or put another way, such a decision to refuse carriage will belawful so long as it is not unreasonable in the sense that it is irrational, capricious, orunreasonable in the public law sense of being a decision that no reasonabledecisionmaker could make.2 The decision to impose the ban as an exercise of reasonable discretion[67] The applicant construes the exercise of reasonable discretion as requiring therespondent to: take all considerations into account; notify the passenger of all mattersit considers relevant to the making of the decision; and give the passenger anopportunity to be heard before reaching a decision not to carry that person. As I havesaid, the 12 grounds upon which the respondent may in its reasonable discretion decideto refuse carriage are disjunctive. For the applicant to succeed in her claim she mustestablish that the respondent failed to exercise reasonable discretion in deciding not tocarry the applicant on its flights following the imposition of the 12 month ban.[68] The parameters of "reasonable discretion" in a contractual context have beensummarised by Mander J:13Commonwealth Courts are willing to intervene in the exercise of a prima facieunfettered discretion. Such intervention will ordinarily be premised on animplied term to constrain the exercise of the discretion so as to give effect tothe reasonable expectations of the parties. The exercise of contractualdiscretion will be open to challenge where it can be established that it was notexercised honestly in good faith; or not exercised for the purpose(s) for whichit was conferred; or when exercised in a capricious or arbitrary manner; orotherwise falls into the category of what would be considered Wednesburyunreasonableness.[69] The law does not require the outcome of the exercise of reasonable discretionto also be objectively reasonable.143 Good faith, reasonableness, and the absence of arbitrariness or capriciousness[70] While the Court is unable to resolve any disputed factual issues at thispreliminary and interim stage, it can give weight to factual matters where there is nodispute or where the evidence is obviously cogent and reliable.[71] The applicant has filed five affidavits in support of her application and in replyto the affidavits filed by the respondent in opposition. In her affidavits, the applicanthas set out her account of the events occurring at Nelson Airport on 1 December 2018,and of her subsequent communications with the respondent prior to and after beingadvised of the ban imposed on her. The applicant has also exhibited transcripts of therecordings she made of her conversations with the respondent's staff members during2019. She says that she has been a customer of Air New Zealand for almost 40 years,and she disputes that the respondent has any proper basis to impose a ban. She saysthat she cannot comprehend how the respondent's discretion to impose a severe 12month ban can be supported by what she views as unsubstantiated and disputed13 C & S Kelly Properties Ltd v Earthquake Commission [2015] NZHC 1690 at [73], as cited in L &M Coal Holdings Ltd v Bathurst Resources Ltd [2018] NZHC 2127 at [198].14 Briaganza v BP Shipping Ltd [2015] UKSC 17 1 WLR 1661 at [30].allegations against her and her family that had nothing to do with flight security. Shealso asserts that the ban could not reasonably be imposed seven months after the eventswhich the respondent asserts warranted the imposition of a ban.[72] The applicant says that the ban has and will continue to have significantramifications for her personally and professionally because Nelson offers limitedoptions for air travel by other air carriers. She says that prior to the ban she hadpurchased tickets for a number of flights with the respondent, and was unable to usethem. The applicant says that one of her sons resides in Invercargill and that Air NewZealand is the only airline serving that city. She says that as a consequence of the banshe has been unable to fly to Christchurch to attend family functions and will be unableto fly to Dunedin to visit her three sons who are studying there. The applicant says thatthe ban has affected her professionally as she has not been able to travel to attendcontinuing professional development courses as she would normally do. She says thatone effect of being unable to travel with the respondent will be to put severe limitationson her work as an independent workplace investigator, which is a role she has beendeveloping and for which she has invested a significant sum to obtain the necessaryqualifications. She further says that by the end of the ban she will have lost her accruedfrequent flying status and benefits with the respondent, as well as the benefit of herpaid Koru Club membership. She recognises that she could travel to Wellington toconnect with Jetstar flights. However, she says that those flights are typically mid-morning to mid-afternoon and are therefore not convenient by reason of the increasedtime required for travel which sometimes necessitates overnight stays when travellingto other centres.[73] The applicant says that she does not consider herself to present any securityrisk when travelling on the respondent's air services and similarly no risk to therespondent's staff when travelling on the respondent's air services in future. She saysthat her confidence that future travel with the respondent will be undertaken in anorderly manner is corroborated by the respondent's willingness to resume acceptingher bookings for flights once the ban has expired.[74] In opposition, the respondent has also filed affidavits sworn by three staffmembers based at Nelson Airport and one based at Wellington Airport. In theiraffidavits these staff set out accounts of their dealings with the applicant. The two staffmembers involved in the events in the Koru Lounge at Nelson Airport on 1 December2018 describe the applicant's conduct and language, as well as the abuse that wasdirected at them by accompanying members of the applicant's family. The KoruLounge hostess on duty that day says that her involvement with the applicant left herconfidence shaken. She says that whenever she saw the applicant following theincident, she felt panicked and fortunate to be able to avoid dealing with her. She saysthat some eight months after the events she is getting over the worst of the effects ithad on her. She describes the news of the ban as the best news ever; she greeted it witha huge sense of relief for herself and her colleagues. She says that the ban has had apositive impact on staff morale and that it is good to know that senior people withinAir New Zealand are looking out for her and her fellow staff members. The secondstaff member involved in the events of 1 December confirms the account of hercolleague in her affidavit, and of being reassured by the respondent taking action toback up their staff. She also speaks of being relieved by not having to deal with theapplicant because of the ban.[75] In another affidavit, a member of the respondent's staff who is a Team Managerbased at Wellington Airport describes an incident involving the applicant that occurredat the Air New Zealand check-in counter on 14 April 2019. She says she was called inwhen another staff member who had been attending to the applicant was reduced totears. She says the applicant was talking in an aggressive tone and several othermembers of the applicant's family were crowding around the staff member who wasclearly distressed. The Team Leader describes the applicant criticising the staffmember serving her, calling the staff member as "pathetic" and claiming that the staffmember had "put on the tears". The Team Leader says that she immediately recognisedthat the other staff member was in no state to continue working, so she took over thecounter to deal with the applicant and her family. She says that when she asked theapplicant for identification, the applicant initially refused to provide any, laterthrowing her identification at her. The Team Leader says that in her 24 years as an AirNew Zealand employee, the applicant's bullying behaviour is some of the mostextreme she has encountered. She says that the incident caused the staff memberinitially dealing with the applicant to lose her confidence; for months following theincident the staff member was afraid to work on her own at the check-in counter, andwas reassigned to other duties. The Team Leader also says that her staff reactedpositively when told of the ban, and are encouraged that, by imposing the ban, therespondent has signalled that it will not tolerate its staff being abused by customers.She says that she and her staff feel that they have the respondent's backing and werethe ban to be lifted by the Court, staff morale would drop from the current high to low.[76] Another of the affidavits filed by the respondent is sworn by a staff memberemployed as a Customer Service Agent based at Nelson Airport. In her affidavit shedescribes her dealings with the applicant at the check-in counter on 25 June 2019. Shesaid that when she requested the applicant to produce some personal identification asrequired by the check-in system, the applicant immediately became upset anddefensive, asking why she was being singled out. The staff member says that theapplicant then complained about her treatment and referred extensively to the Air NewZealand Passenger Services Manager at Nelson Airport, who she said was responsiblefor how she was being treated. It appeared to the staff member that the applicant wasfocussed on the Passenger Services Manager and "had it in for [her]." When theincident was reported to the Passenger Services Manager she became distraught andupset.[77] The respondent also filed affidavits sworn by its Senior Legal Counsel, HughRoberts, and by its Senior Manager of Group Resilience, Giles Carter.[78] Prior to joining Air New Zealand in 2016, Mr Carter had almost 25 years ofexperience in security and operations in both public and private sector positionsincluding with the British Army, Australian Defence Force as a senior operationsmanager, and as a senior operations manager and security manager working for an oiland gas field services company in Iraq. As Senior Manager of Group Resilience at AirNew Zealand, he is responsible for operational and corporate security. Mr Carter saysthat as part of its commitment to providing its employees with a safe workingenvironment, the respondent has adopted a "People, Safety and Working Policy", theintent of which includes:We will continuously strive to eliminate serious harm and ensure as far as isreasonably practicable the health and safety of our customers, employees,contractors, and visitors in all our endeavours.[79] Mr Carter has exhibited the respondent's Group Security Watch List ProcessStandard Operating Procedure document (the Watch List SOP), which he says wasdeveloped to provide a robust structure and consistency for the respondent's treatmentof unruly passengers. The Watch List SOP sets out the process by which the respondentand its staff are required to deal with any incidents considered to involve unruly,disruptive or dangerous conduct by customers. The process requires employees toreport any conduct which they consider may be a threat to the safety of therespondent's aircraft, staff, passengers or facilities. The reporting requires a writtenOperational Safety Report (OSR). The OSR is then referred to the Group Securitysection for investigation by a security advisor who collates information relating to thereported incident. Once the information has been collected, analysed and evaluated, arisk assessment is conducted to determine the severity of the incident and theappropriate response. The OSR provides four potential outcomes: no further action;information only; warning letter; ban. Mr Carter says that any decision to impose aninformation only, warning letter, or ban outcome is first subject to peer review withinthe Group Security section. Further, that the recommended outcome must be approvedby the Group Security Manager, who must also personally approve and sign anywarning or ban letter. In taking that step, the Group Security Manager consults withother relevant stakeholders, including the respondent's legal counsel.[80] In his affidavit Mr Carter describes how staff reported the incident involvingthe applicant in the Koru Lounge at Nelson Airport on 1 December 2018 in accordancewith the OSR and how the incident was thereafter investigated, documented andassessed. This process led to the issue of the warning letter sent to the applicant on 21December 2018.[81] Mr Carter also refers to the applicant's conduct after the warning letter hadbeen sent to her. These further incidents are said to have occurred:(a) On 1 January 2019 at the Koru Lounge at Auckland Airport, theapplicant and her family arrived back in New Zealand from India. Herconduct resulted in the preparation of a staff report which was sent toGroup Security.(b) On 27 or 28 January 2019, and on 21 February 2019, the applicantspoke to staff at Nelson Airport regarding the events of 1 December2018. This resulted in the preparation of another OSR for GroupSecurity. (It was resolved that no further action would be taken).(c) The applicant wrote letters to the respondent's Chief Executive, dated7 March and 24 June 2019.(d) A staff member attended the applicant at Wellington Airport on 25 June2019. The staff member submitted an OSR. The OSR investigationconcluded that the applicant's behaviour in dealing with the staffmember was intimidating, threatening and abusive. This assessmentfound that the applicant had engaged in sustained intimidation andbullying using aggressive behaviour which caused significant distressfor staff. The assessment further found that the applicant had notaccepted any responsibility for her actions and that she had a history ofsimilar conduct. The assessment recommended that, as the applicanthad not adhered to the respondent's conditions of carriage, a one yearban should be imposed.[82] Mr Carter says that he reviewed the assessment and discussed it and therecommended ban with his Group Security Manager, the Airport Manager for Nelson,and the respondent's Head of Regional Airports. The consensus was that the warningletter sent to the applicant in December 2018 had not had its desired effect. On thecontrary, the applicant had demonstrated a complete disregard for the letter. Itappeared that there had been a deterioration in her behaviour and treatment of staff,her hostility intensifying in a focus on a specific staff member.[83] Mr Carter says:In my judgment and in the judgment [sic] of other security professionals inthe Group Security function, the persistent and escalating nature of MsSharma's intimidation and bullying almost immediately after the warningletter had been issued elevated that behaviour squarely into the major severitycategory. The integrity of Air New Zealand's workplace had been breachedand the welfare and operational capability of staff had been affected. A banwas therefore the only response available under the Decision Support Matrixand the Watch List SOP. No other response would meet Air New Zealand'ssecurity standards or its obligations to provide staff with a safe and secureworking environment.[84] The affidavit evidence filed by the respondent comprehensively establishesthat its decision to impose the ban was reached following a process of informationgathering, assessment, and review. That process commenced in December 2018immediately following the events at the Nelson Airport Koru Lounge when therespondent received and considered the reports from its staff which set out theiraccounts of their dealings with the applicant. By that process, the respondent then senta formal, written warning to the applicant about the possible consequences of herbehaviour. Those consequences included denial of access to the Koru Lounge andbeing banned from flying on Air New Zealand's services if her unacceptable conductwas repeated.[85] The respondent's process provided the applicant with an opportunity tocomment on and present her own account of her dealings with Air New Zealand'sstaff. As I have noted, following her receipt of the warning letter, the applicant wrotetwo detailed letters to Air New Zealand's CEO. Further in separate correspondence,she requested and received copies of the respondent's staff reports regarding theirdealings with her. She thereby had the information on which Air New Zealand wasbasing its decisions.[86] It is also clear that the respondent's senior staff considered the applicant'saccount and explanation of her dealings with Air New Zealand. Having done so, therespondent's senior staff confirmed the warning that any further conduct of theapplicant involving a breach of its Terms and Conditions and Conditions of Carriagewould result in her not being permitted to enter the Lounge and being banned entirelyfrom flying on the respondent's services in the future. While the respondent made itsposition quite clear to the applicant, it nevertheless also made it clear to her thatprovided she complied with the respondent's Lounge Terms and Conditions andConditions of Carriage, she and her family would be able to continue to use itsservices. In the email sent by the respondent's Head of Regional Airports, Mr Leckie,to the applicant on 29 March 2019, the respondent advised the applicant that Air NewZealand welcomed her and her family's continued custom, and noted that there wouldbe no need for further communication from her or to her, provided that all of therespondent's terms of conditions of carriage were consistently met.[87] I find that the evidence in the respondent's affidavits establishes that its processwas thorough. The respondent gathered the relevant information, and was careful andmeasured in assessing and considering that information. Moreover, it is also clear thatits approach and attitude towards the applicant was constructive throughout, and thatthe respondent sought to preserve its relationship with the applicant. It was only aftershe continued, despite the warning letter, to engage in what the respondent consideredwas unacceptable treatment of its staff, as well as indicating in her correspondencethat she did not intend to desist, that the respondent finally made the decision to imposethe ban. In subsequent correspondence with the applicant through her counsel, therespondent advised that at the end of the 12 month period she would be free to use therespondent's air services once again.[88] The fact the ban was imposed for a finite term of 12 months, and that theapplicant would thereafter be welcome to resume using the respondent's air services,is in my view, wholly inconsistent with the applicant's allegation that the ban wasimposed irrationally, capriciously, maliciously or unreasonably. Having regard to therespondent's legal obligations to keep its passengers and staff safe and the materialupon which the respondent based its decision to impose the ban, there are simply nogrounds upon which the respondent's decision could be considered to lack sufficientjustification or to have been made other than in accordance with the exercise of itsreasonable discretion.[89] As the Court's decision on this application for interim relief will operate todetermine the applicant's substantive claim, I have examined the evidence containedin the affidavits filed both in support and opposition in more detail than wouldordinarily be required at a preliminary stage of proceedings when considering anapplication for interim relief. While it is not possible to determine any disputed factsat this stage, it is appropriate to take account of evidence that is indisputable. Here therespondent has presented evidence and produced exhibits which prove that it has apolicy and procedure for dealing with staff reports of any bad behaviour by theairline's customers. The evidence appearing by the respondent's affidavits also clearlyestablishes that the respondent and its staff followed the procedure described, and thatthe decision to impose the ban on the applicant was arrived at after the procedure hadbeen followed and applied in good faith. Conversely, there is no cogent evidence tosupport the applicant's allegation that the respondent's decision to impose the ban wasunreasonable, irrational, arbitrary, malicious, or capricious.[90] I accordingly find that the applicant has not established that she has an arguablecase to support her claim that the respondent has acted in breach of contract byimposing the ban without having exercised reasonable discretion in deciding to do so.That being the case, the applicant has failed to establish the first pre-requisite forobtaining interim relief, and her application for a mandatory injunction requiring therespondent to provide her with air travel services pending determination of her claimmust fail.Balance of Convenience[91] I shall nevertheless also consider and determine the issue of balance ofconvenience. Denial of access to the respondent's air services causes the applicantinconvenience as there is currently no other provider offering direct flights within NewZealand from Nelson. The applicant is however able to use the services of Sounds Airto travel to Wellington where she can connect with the Jetstar network. While theapplicant may not favour travelling on Sounds Air by reason of smaller baggageallowances and aircraft sizes than the respondent's, those considerations do notprevent her from travelling by air to Wellington. I also consider that the duration ofthe ban and the remaining time until expiry are relevant considerations as regards thebalance of convenience. Making alternative travel arrangements rather than travellingon Air New Zealand until the ban expires in early July 2020, is not in my view asignificant inconvenience to the applicant.[92] On the other hand, were the respondent required to provide air services to theapplicant during the remainder of the duration of the ban, its air terminal staff at Nelsonparticularly, but also at Wellington and elsewhere, would be required to engage withthe applicant. They would risk confrontations with the applicant involving the kind ofbehaviour that the respondent has found to be unacceptable. The measures which ithas taken to protect its staff would cease to be of any effect, and it would need toemploy other measures to fulfil its obligations under the Health and Safety at WorkAct 2015.[93] A mandatory injunction, requiring the respondent to provide the applicant withair travel while awaiting the Court's determination of the merits of her claim, wouldalso frustrate the respondent's efforts to uphold the standards of behaviour set out inits Conditions of Carriage. These Conditions of Carriage are there for the protectionof its passengers. The maintenance of safety standards necessarily requires therespondent to be able act promptly whenever it encounters behaviour or circumstancesthat breach its Conditions of Carriage. The respondent's maintenance of standards ofits service to other customers, requires it to have regard to the effect of anyunacceptable behaviour by a customer on other users of its services. A mandatoryinjunction here would frustrate the measures the respondent has taken to uphold itsstandards as embodied in its conditions of carriage pending determination of theapplicant's claim. In my view, a mandatory injunction which operated to thwart therespondent's measures taken to uphold its standards in the interests of its staff andother customers would amount to a significant interference with how it goes aboutdischarging its statutory duties as an air carrier and as an employer.[94] Weighing the competing interests, I find that the balance of convenience in thiscase strongly favours the respondent, and not making an order which would removethe ban it has imposed on the applicant pending determination of the applicant's claim.Furthermore, should the applicant succeed in establishing her claim, any loss causedby a breach of contract can be adequately compensated by way of damages.The Overall Justice of the Position[95] For the reasons canvassed above, it is clear that upholding the ban is a justoutcome.Application for Transfer of Proceeding to Nelson Registry[96] The applicant's proceeding was correctly filed in the Auckland Registry. Rule5.1(1)(a) of the High Court Rules 2016 provides that where the proceeding names asole defendant, the proper registry for filing the proceeding is that nearest thedefendant's principal place of business. The respondent's principal place of businessis Auckland where it is headquartered. The respondent's senior staff responsible forthe conduct of the proceeding and likely to be witnesses are based in Auckland. Whileother members of the respondent's staff who are likely to be called as witnesses arebased in Nelson and Wellington, they will be readily available to travel to Aucklandfor the substantive hearing of the applicant's claim.[97] The applicant resides in Nelson and, as she has demonstrated by travelling toAuckland for the hearing of this interim application, she is well able to travel toAuckland to attend the substantive trial.[98] Moreover, I agree with the submission made for the respondent that as thesubstantive hearing is likely to take place after the expiry of the ban, the applicant willthen be able to use the respondent's air service to travel directly between Nelson andAuckland. In those circumstances she will be in no different position to any otherlitigant who is required by the High Court Rules 2016 to commence their proceedingin the court located nearest to the defendant's principal place of residence or business.[99] In my view there are no compelling or sufficient grounds for making an orderto transfer the proceeding to Nelson. The application is accordingly declined.Result[100] The applicant's application for a mandatory interim injunction directing therespondent to provide her with air services is dismissed.[101] The application for an order transferring the proceeding to the Nelson Registryis dismissed.[102] The respondent, having succeeded in relation to both of the applications, isentitled to an award of costs and to recover its reasonable disbursements. Therespondent is to file and serve a memorandum setting out its claim for costs anddisbursements within ten working days from the date of delivery of this judgment. Theapplicant is to file and serve a memorandum in reply within a further period of tenworking days following receipt of service of the respondent's memorandum. The costsmemoranda of the parties are not to exceed five pages in length apart from any annexedschedule or annexures relating to disbursements._____________Paul Davison J