REIHANA v GREGORY FORAN [2022] NZHC 2425

REIHANA v GREGORY FORAN [2022] NZHC 2425 [22 September 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2022-404-000436[2022] NZHC 2425BETWEEN TONI COLIN REIHANAApplicantAND GREGORY FORANFirst RespondentAIR NEW ZEALAND CHIEFEXECUTIVE OFFICERSecond RespondentHearing: 7 September 2022Appearances: Applicant in Person (by telephone)J Q Wilson and T M J Shiels for Respondents (by VMR)Judgment: 22 September 2022JUDGMENT OF VENNING JSTRIKE OUT/SUMMARY JUDGMENTThis judgment was delivered by me on 22 September 2022 at 3.30 pm, pursuant to Rule 11.5 of theHigh Court Rules.Registrar/Deputy RegistrarDateSolicitors: Bell Gully, AucklandCopy to: ApplicantIntroduction[1] Toni Reihana (Mr Reihana) is a New Zealand citizen living in Australia. InMarch 2022, he tried to book an airline ticket with Air New Zealand Limited (Air NZ)to return to New Zealand to celebrate his father's 80th birthday and to attend the annualharvest of the Sooty Shearwater (Titi) seabird at the Titi Islands off Stewart Island.[2] As Mr Reihana was not vaccinated for Covid-19, he was not able to purchasea ticket because at the time, subject to certain exceptions, Air NZ required allpassengers aged 18 or older travelling on Air NZ's international services to bevaccinated against Covid-19 (the Covid-19 vaccination policy). On 3 October 2021,Air NZ had announced the Covid-19 vaccination policy would apply to internationaltravel on or after 1 February 2022.[3] Mr Reihana's response was to issue proceedings against Air NZ's ChiefExecutive Officer, Greg Foran, and Air NZ.[4] Mr Foran and Air NZ seek to strike out Mr Reihana's claims as disclosing noreasonable cause of action or, in the alternative, they seek summary judgment asdefendants against Mr Reihana.Mr Reihana's claims[5] Mr Reihana represents himself. He raises three causes of action. In the first,he alleges that in making the Covid-19 vaccination policy decision on 3 October 2021Mr Foran and Air NZ made:jurisdictional error in the exercise of their legislative company decisionmaking powers, or otherwise, by failing to take account of all relevantbiomedical / immunological scientific considerations,therefore, their:"duty" to make a fully cognisant decision upon the relevance or necessity ofneeding to be Covid-19 vaccinated in order to undertake international airtravel, remains unfulfilled.[6] In the second, Mr Reihana alleges Air NZ breached the New Zealand Bill ofRights Act 1990 (NZBORA) and Human Rights Act 1993 on the grounds ofdiscrimination. He says his religious and political beliefs have been discriminatedagainst.[7] In the third, Mr Reihana alleges breach of a duty of care not to require itscustomers and clients to undergo potentially dangerous vaccinations. He says MrForan and Air NZ were negligent in failing to apply biomedical and immunologicalscience to justify making the decision to ban unvaccinated persons from flyinginternationally.[8] Mr Reihana says the breach has caused him to suffer loss of enjoyment and aloss of opportunity.[9] Mr Reihana seeks:(a) orders of certiorari invaliding the 3 October 2021 Covid-19 vaccinationpolicy decision;(b) mandamus requiring the respondents to "diligently" apply applicableand relevant biomedical and relatable scientific considerations to areconsideration of the 3 October 2021 Covid-19 vaccination policydecision;(c) costs;(d) damages for breach of the NZBORA and Human Rights Act;(e) damages in tort for pecuniary loss and loss of chance; and(f) such other order including punitive damages.Background[10] The applications to strike out and for summary judgment are supported by anaffidavit of Nirupum Ravaji, a senior legal consultant employed by Air NZ.[11] Mr Ravaji confirmed that on 3 October 2021 Air NZ announced the Covid-19vaccination policy would apply on or after 1 February 2022 to international travel. Inthe announcement Mr Foran said, inter alia:We've been hearing from both customers and employees that this measure isimportant to them. It came through loud and clear in our recent consultationprocess with employees and we want to do everything we can to protect them.Mandating vaccination on our international flights will give both customersand employees the peace of mind that everyone onboard meets the same healthrequirements as they do.As with anything, there will be some that disagree. However, we know this isthe right thing to do to protect our people, our customers and the wider NewZealand community. We'll spend the next few months making sure we getthis right, ensuring it works as smoothly as possible for our customers. Thisalso gives anyone wanting to travel from next year plenty of time to get theirvaccination.Air New Zealand's vaccination requirement will apply to all passengers aged18 and older arriving or departing Aotearoa on an Air New Zealand aircraft.Customers who are not vaccinated will be required to present proof thatvaccination was not a viable option for them for medical reasons.[12] Mr Reihana's claim is dated 16 March 2022, although the proceedings wereapparently not served on Air NZ until 22 April 2022. By that time, on 13 April 2022,Air NZ had announced the Covid-19 vaccination policy would end on 30 April 2022.[13] Mr Ravaji also confirms that all travel on Air NZ flights are subject to Air NZ'sconditions of carriage which are publicly available on the Air NZ website. He attacheda copy to his affidavit. The conditions of carriage at the time included the conditionthat Air NZ might refuse carriage or service if the passenger: will not or cannot show valid travel or health documents for their entirejourney (including evidence of vaccinations or inoculations against COVID-19 and/or negative COVID-19 test results if requested by Air New Zealand).[14] The conditions go on to record that, in the event a passenger was refusedcarriage as the passenger was unable to provide necessary Covid-19 vaccinationevidence or other required health documentations:we [Air NZ] are not liable to the Passenger in any way. For the avoidance ofdoubt this includes liability for any refund of the Passenger's ticket.[15] Mr Ravaji also identified the following public announcements made by theNew Zealand Government relating to Covid-19 vaccination requirements forinternational travel, including:(a) On 3 October 2021 , the New Zealand Government announced thatfull COVID-19 vaccination would become a requirement for all non-New Zealand citizens arriving into the country from 1 November2021.(b) On 15 February 2022, the New Zealand Government announced thatfully COVID-19 vaccinated travellers would be able to enter NewZealand without entering Managed Isolation and Quarantine facilities(MIQ) from 28 February 2022.(c) On 28 February 2022, the New Zealand Government announced thatself-isolation requirements for all COVID-19 vaccinated travellersentering New Zealand would be removed from 2 March 2022 and thatMIQ would still be required for travellers not vaccinated againstCOVID-19.(d) On 18 March 2022, the New Zealand Government announced thatCOVID-19 unvaccinated New Zealand citizens did not need to enterMIQ or to self-isolate. Minimum COVID-19 vaccinationrequirements for travel to New Zealand continued to apply to non-New Zealand citizens (including permanent residents) unless they hada relevant exemption.(e) On 23 March 2022, the New Zealand Government announced achange to New Zealand's COVID-19 public health settings. Thatincluded no longer requiring COVID-19 vaccine passes for entry tocertain business and the removal of almost all of the COVID-19'vaccine mandates'.(f) A series of further changes have been made to the New ZealandGovernment's COVID-19 vaccination requirements for internationaltravel.[16] Mr Reihana has filed an affidavit in opposition to the application. In thataffidavit he annexes various documents, including news items regarding Air NZ'sCovid-19 vaccination policy and reports of cases overseas ruling on the constitutionalvalidity of mandatory vaccination requirements generally and in specific cases. Healso attaches articles which question the efficacy of the Covid-19 vaccine and discussa co-relation between the vaccine, booster shots of the vaccine and death.[17] In support of his opposition to the application to strike out Mr Reihana:(a) alleges unvaccinated New Zealand citizens who were extorted intobeing vaccinated in order to fly international with Air NZ may havesustained serious or maiming adverse effects or died;(b) reasserts the cautionary note in Couch v Attorney-General1 that theclaim must be considered on the basis upon which it was presentlypleaded, but also on any basis it might be pleaded and says any defectsin the pleadings could be addressed by amendment;(c) emphasises the public law nature of the breaches of the Bill of RightsAct alleged and other breaches;(d) notes the claims include a claim in tort for breach of duty of care;(e) refers to a breach of a statutory duty of care under s 137 of theCompanies Act 1993;(f) repeats his allegations of negligence, takes issue with the affidavit ofMr Ravaji for Air NZ and notes it discloses no reliance upon expertscientific or biomedical grounds; and(g) traverses generally his allegations as to the dangers and failings of theCovid-19 vaccination.1 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].Principles[18] The jurisdiction to strike out is used sparingly. The Court will only strike outproceedings where the causes of action are so clearly untenable they cannot possiblysucceed.2 As Elias CJ and Anderson J noted in Couch v Attorney General:3It is inappropriate to strike out a claim summarily unless the court can becertain that it cannot succeed.[19] If the defect in the pleadings can be cured then the court would normally orderan amendment of the statement of claim.[20] However, in Attorney-General v McVeagh, the Court of Appeal confirmed thatthe striking out jurisdiction is founded on the realisation that court resources are finiteand are not to be wasted.4 If a claim is doomed to failure there can be no justificationfor allowing it to continue.[21] In Commissioner of Inland Revenue v Chesterfields Preschools Ltd, the Courtof Appeal confirmed the further basis upon which this Court may strike out pleadings.5The Court confirmed the grounds of strike out at High Court Rules 2016 (HCR)15.1(1)(b)–(d) concerned misuse of the Court's process.[22] The Court is entitled to receive affidavit evidence on an application to strikeout and will do so in an appropriate case.6 Evidence of uncontested fact, such as thatadvanced by Air NZ in this case, is admissible on a strike out application. However,it will not attempt to resolve genuinely disputed issues of fact.7[23] As to the summary judgment application, the Court can give summaryjudgment against a plaintiff where none of the causes of action can succeed.82 Attorney-General v Prince and Gardner [1998] 1 NZLR 262 (CA) at 267.3 Couch v Attorney-General, above n 1.4 Attorney-General v McVeagh [1995] 1 NZLR 558 (CA).5 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR679.6 Attorney-General v McVeagh, above n 4.7 Attorney-General v McVeagh, above n 4.8 High Court Rules, r 12.2(2).The first cause of action[24] Mr Reihana's first claim seeks to judicially review the decision of 3 October2021, under the Judicial Review Procedure Act 2016 (JRPA).[25] The starting point is that as a corporation, Air NZ is a private entity. The JRPAonly applies to the exercise, failure to exercise, or the purported or proposed exerciseof a statutory power.9 The first issue under the first cause of action is whether theimposition by Air NZ, a private entity, of a condition of carriage in its contract withcustomers can be said to be the exercise of a statutory power.[26] Section 5 of the JRPA provides the meaning of a statutory power:5 Meaning of statutory power(1) In this Act, statutory power means a power or right to do any thingthat is specified in subsection (2) and that is conferred by or under—(a) any Act; or(b) the constitution or other instrument of incorporation, rules, orbylaws of any body corporate.(2) The things referred to in subsection (1) are—(a) to make any secondary legislation; or(b) to exercise a statutory power of decision; or(c) to require any person to do or refrain from doing anythingthat, but for such requirement, the person would not berequired by law to do or refrain from doing; or(d) to do anything that would, but for such power or right, be abreach of the legal rights of any person; or(e) to make any investigation or inquiry into the rights, powers,privileges, immunities, duties, or liabilities of any person.[27] Air NZ's requirement for vaccination as a condition of carriage is plainly notthe exercise of a power or right under s 5(1)(a) of the JRPA. If the JRPA is to applyto Air NZ it could only be pursuant to s 5(1)(b) of the JRPA. However, a power orright exercised by a corporation will only be a statutory power in the circumstances9 Judicial Review Procedure Act, s 3.set out in s 5(2). Section 5(2)(a), (b), (d) and (e) can have no application to the presentcase. The only possible issue is whether it could be said that in the circumstances theCovid-19 vaccination policy was the exercise of a statutory power to require personstravelling with it to do or refrain from doing anything that they would otherwise notbe required by law to do or refrain from doing.[28] There is a strong argument that it was not Parliament's intent that s 5 of theJRPA would apply to conditions of carriage of Air NZ. Decisions of a private entitysuch as Air NZ are not normally amenable to judicial review.10 The concept of judicialreview being available and applicable to actions of private corporations andincorporations in such situations has not been readily accepted by the Court. InHopper v North Shore Aero Club Inc, the Court of Appeal observed:11Although it is conceivable that the actions of the club were, on a literalreading, pursuant to a "statutory power of decision", such a classificationseems to strain the statutory definition.[29] However, as the authors of Judicial Review: A New Zealand Perspective note:12Authorities have been inconsistent on whether there are limits to judicialreview in this area, but now seem to have settled on the common statement inthree Court of Appeal judgments13 that judicial review "may be available,depending on the specific circumstances" where the actions involved are (1)public or quasi-public functions, or (2) a membership decision is involved, or(3) breach of natural justice is alleged.[30] None of those three general categories apply to Mr Reihana's situation.[31] As noted, Air NZ is a private corporation. It does not carry out public or quasi-public functions. In Sharma v Air NZ Ltd, Davison J accepted the submission for AirNZ that it had no legal obligation to carry anyone on its flights and that it was not amonopoly supplier of essential services.1410 Hopper v North Shore Aero Club Inc [2007] NZAR 354 (CA).11 At [12].12 Graham Taylor Judicial Review: A New Zealand Perspective (4th ed, LexisNexis, Wellington,2018) at [2.15]13 Te Whakakitenga O Waikato Inc v Martin [2016] NZCA 548, [2017] NZAR 173; Stratford RacingCub Inc v Adlam [2008] NZCA 92, [2008] NZAR 329; and Hopper v North Shore Aero Club Inc,above n 10.14 Sharma v Air New Zealand [2020] NZHC 230.[32] Despite the Government's majority shareholding in it Air NZ is not a StateOwned Enterprise nor one of the companies identified as a mixed ownership modelcompany provided for in the Public Finance (Mixed Ownership Model) AmendmentAct 2012.15 Furthermore, the Government's status as a majority shareholder wouldnot create any further scope of review because of clearly defined roles of shareholdersand directors of a company.16[33] Nor does Mr Reihana's situation raise a membership decision or an arguablebreach of natural justice, primarily for the reasons that follow in relation to MrReihana's second cause of action.[34] However, even assuming for present purpose there was a basis for judicialreview of the decision to implement the Covid-19 vaccination policy, any such reviewwould be constrained or limited. As Davison J observed in the Sharma decision:17 such a decision to refuse carriage will be lawful so long as it is notunreasonable in the sense that it is irrational, capricious, or unreasonable inthe public law sense of being a decision that no reasonable decisionmakercould make.[35] Air NZ has a reasonable discretion in fixing its conditions of carriage. AsMander J observed in C & S Kelly Properties Ltd v Earthquake Commission:18 Commonwealth Courts are willing to intervene in the exercise of a primafacie unfettered discretion. Such intervention will ordinarily be premised onan implied term to constrain the exercise of the discretion so as to give effectto the 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.[36] Mr Reihana's challenge as to the requirement for vaccination is based on hisargument the policy and requirement was not scientifically justifiable. While the15 Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056. The presentcircumstances can be distinguished from the judicial review in Ririnui as this is not a State OwnedEnterprise.16 Companies Act, s 128; and Automatic Self-Cleansing Filter Syndicate Co Ltd v Cuninghame[1906] 2 Ch 34 (CA).17 Sharma v Air New Zealand, above n 14, at [66].18 C & S Kelly Properties Ltd v Earthquake Commission [2015] NZHC 1690 at [73].Court cannot resolve any disputed factual issues on a strike out application such asthis, there are a number of relevant matters of which there can be no dispute thatconfirm the reasonableness of Air NZ's actions. At the time Air NZ issued its Covid-19 vaccination policy on 3 October 2021, the New Zealand Government requiredpersons entering New Zealand who were not citizens to be vaccinated. It cannot besaid it was not open to Air NZ to consider it was necessary to require passengers to bevaccinated bearing in mind its obligations under the Health and Safety at Work Act2015 and the Civil Aviation Act 1990 to passengers and staff.[37] Further, Mr Reihana's challenge to the scientific reasonableness of the decisionto require passengers to be vaccinated cannot stand beside the analysis in the cases ofFour Aviation Security Service Employees v Minister for COVID-19 Response; FourMidwives, NZDSOS Inc and NZTSOS Inc v Minister for COVID-19 Response;NZDSOS Incorporated v Minister for COVID-19 Response; Yardley v Minister forWorkplace Relations and Safety; and Meng v Chief Executive, Ministry of Business,Innovation and Employment.19[38] As in Meng v Chief Executive, Minister of Business, Innovation andEmployment Mr Reihana is asking the Court to examine and rule on the scientificvalidity and safety of the Covid-19 vaccinations, which is an exercise that goes wellbeyond the boundaries of judicial review.[39] Despite Mr Reihana's subjective views as to the dangers associated with thevaccination, in the circumstances the 3 October decision to implement a vaccinationpolicy cannot seriously be argued to have been irrational, capricious or unreasonable,in the public law sense, as would be required for the first cause of action to have anyprospect of success.[40] Next, the fact that the Covid-19 vaccination policy was kept under revision andlater removed entirely at an appropriate time and in keeping with the change in the19 Four Aviation Security Service Employees v Minister for COVID-19 Response [2021] NZHC3012; Four Midwives, NZDSOS Inc and NZTSOS Inc v Minister for COVID-19 Response [2021]NZHC 3064; NZDSOS Incorporated v Minister for COVID-19 Response [2022] NZHC 716;Yardley v Minister for Workplace Relations and Safety [2022] NZHC 291; and Meng v ChiefExecutive, Ministry of Business, Innovation and Employment [2022] NZHC 82.New Zealand Government requirements also confirms the reasonableness of Air NZ'saction in relation to the policy.[41] Further, in any event, the principal relief sought under the JRPA cause of actionis moot. The policy Mr Reihana complains of is no longer operative. It was revokedwhen circumstances changed. In fact, Air NZ had announced it would withdraw thepolicy before these proceedings were served on it.[42] The claim under the JRPA is not justiciable. The pleaded facts do not disclosea cause of action which is reasonably arguable.The second cause of action — NZBORA[43] Section 3 of the NZBORA provides that it applies only to acts done by:(a) the legislative, executive or judicial branches of the Government ofNew Zealand; or(b) any person or body in the performance of any public function, poweror duty conferred or imposed on that person or body by or pursuant tolaw.[44] Section 3(a) does not apply. Nor can it be reasonably argued that by providingfor conditions of carriage Air NZ was acting in the performance of a public function,power or duty imposed by or pursuant to law as is required for s 3(b) of NZBORA toapply. In Ransfield v Radio Network Ltd, Randerson J considered the plaintiff's claimthat their ban from participation in talkback radio programmes operated by The RadioNetwork Ltd was a breach of their rights under NZBORA. Randerson J accepted thatit could arguably be said The Radio Network Ltd was performing a function or powerconferred by law as it was operating pursuant to licences issued under the RadioCommunications Act 1989, so that in that sense, the Radio Network Ltd wasperforming a function or power conferred by law. However, as the function was aprivate one the NZBORA had no application to The Radio Network Ltd's conduct oftalkback radio programmes.20[45] In the present case Air NZ operates pursuant to approvals under the CivilAviation Act, but the focus of those regulatory approvals is on safety. The requirementto obtain such approvals in order to operate is very different to the situation of thecommercial licences issued to The Radio Network Ltd.[46] In any event, the function and business of carrying passengers is part of AirNZ's commercial operation and is a private function. As Randerson J went on to notein the Ransfield case:21The primary focus of inquiry under s 3(b) is on the function, power, or dutyrather than on the nature of the entity at issue. Nevertheless, the nature of theentity may be a relevant factor in determining whether the function, power, orduty being exercised is a public one for the purposes of s 3(b).And:22 In a broad sense, the issue is how closely the particular function, power, orduty is connected to or identified with the exercise of the powers andresponsibilities of the state. Is it "governmental" in nature or is it essentiallyof a private character?[47] Randerson J then went on to identify a number of non-exclusive indiciarelevant to determination of that fact:23(a) The fact that the entity in question is performing a function whichbenefits the public is not determinative. If it were, anyone deliveringgoods or services to the public under licence or other authorityconferred by law, would fall within the section. That could not havebeen intended.(b) Whether the function, power, or duty is carried out in public isimmaterial. A public function, power, or duty under s 3(b) may beperformed in private.(d) The primary focus of inquiry under s 3(b) is on the function, power,or duty rather than on the nature of the entity at issue. Nevertheless,20 Ransfield v Radio Network Ltd [2005] 1 NZLR 233 (HC).21 At [69(d)].22 At [69(f)].23 At [69].the nature of the entity may be a relevant factor in determiningwhether the function, power, or duty being exercised is a public onefor the purposes of s 3(b).(f) Given the many and varied mechanisms modern governments utiliseto carry out their diverse functions, no single test of universalapplication can be adopted to determine what is a public function,duty, or power under s 3(b). In a broad sense, the issue is how closelythe particular function, power, or duty is connected to or identifiedwith the exercise of the powers and responsibilities of the state. Is it"governmental" in nature or is it essentially of a private character?(g) Non-exclusive indicia may include:(i) whether the entity concerned is publicly owned or is privatelyowned and exists for private profit;(ii) whether the source of the function, power, or duty is statutory;(iii) the extent and nature of any governmental control of the entity(the consideration of which will ordinarily involve the carefulexamination of a statutory scheme);(iv) whether and to what extent the entity is publicly funded inrespect of the function in question;(v) whether the entity is effectively standing in the shoes of thegovernment in exercising the function, power, or duty;(vi) whether the function, power, or duty is being exercised in thebroader public interest as distinct from merely being ofbenefit to the public;(vii) whether coercive powers analogous to those of the state areconferred;(viii) whether the entity is exercising functions, powers, or dutieswhich affect the rights, powers, privileges, immunities,duties, or liabilities of any person (drawing by analogy on partof the definition of statutory power under s 3 of the JudicatureAmendment Act 1972);(ix) whether the entity is exercising extensive or monopolisticpowers; and(x) whether the entity is democratically accountable through theballot box or in other ways.[48] Applying those indicia to the present case it is apparent that s 3(b) of NZBORAcan have no application to Air NZ when it set its conditions for carriage andimplemented the Covid-19 vaccination policy.The third cause of action — negligence[49] The proposed duty of care proposed by Mr Reihana in his third cause of actionis, at best, properly described as novel.[50] In South Pacific Manufacturing Co Ltd v New Zealand Security Consultants &Investigations Ltd, the full Court of the Court of Appeal considered the principles toapply on a strike out where it was alleged a duty of care arose in a situation not clearlycovered by existing authority.24 Reasonable foreseeability of loss or harm, proximitybetween plaintiff and defendant and a balancing of any relevant policy considerationsare all relevant considerations.25[51] Where the underlying relationship is a contractual one, the first inquiry whendetermining whether to apply a duty of care is particularly focused on the degree ofproximity or relationship between the parties. The second stage involves wider policyconsiderations that may tend to negative or restrict the existence of the duty in acontractual setting.26[52] Mr Reihana's claim seems premised on the basis that the contractual termsoffered by Air NZ, including the requirement at the time the passengers be vaccinated,were unfair contractual terms. There are however clear statutory regimes that governfair contractual terms, such as the Fair Trading Act 1986. There can be no duty in tortto perform or enter a contract. A duty to take reasonable care in or while performinga contract is a different concept. In the present case, Air NZ had no duty to enter acontract or carriage with Mr Reihana.[53] Next, a corporate entity choosing to offer terms of their contract under certainterms is not a harm. The lack of being offered a contract because Mr Reihana refusedvaccination cannot be regarded as a harm.24 South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Investigations Ltd[1992] 2 NZLR 282.25 North Shore City Council v Attorney-General [2012] NZSC 49.26 Rolls-Royce New Zealand Ltd v Carter Holt Harvey Ltd [2005] 1 NZLR 324 (CA) at [58].[54] Also the scope of the asserted duty is, as Mr Wilson submitted "incoherentlybroad". It would be potentially owed to every intending passenger whether inside oroutside New Zealand. Richardson J noted in South Pacific if the novel duty of carecould not reasonably be confined it would lead to "unacceptably indeterminateconsequences for the public interest".27 Also, the content would also apparentlyrequire some type of balancing of the various interests of passengers who might bedisadvantaged by Air NZ's terms of carriage or safety policies. Some vulnerablepassengers would be at risk if unvaccinated passengers were travelling at a time Covid-19 was active.[55] Finally, there are also strong policy considerations which would militateagainst any such duty. It would cut across Air NZ's position as a private commercialenterprise and its statutory duties under the Civil Aviation Act and the Health andSafety at Work Act 2015.[56] Although Mr Reihana emphasised that he had issued the proceedings at shortnotice, and relied on the comments of the Supreme Court in Couch,28 as to the needfor caution before striking out a novel cause of action this is not a case where theobvious defects in the pleadings could be addressed by an amended pleading. Thedefects are inherent in the claim.[57] I accept the submissions by Air NZ that the duty alleged by Mr Reihana fallswell short of the standards for a novel duty of care in tort.The claim against Mr Foran[58] The claim is against both Air NZ and Mr Foran. For the above reasons thereis no basis for the claim against either Air NZ or Mr Foran. However, in Mr Foran'scase there are further relevant principles which support the strike out summaryjudgment.[59] Mr Reihana's complaint is directed at Air NZ's conditions of carriage. Theconditions of carriage are those of Air NZ, not Mr Foran's. Mr Foran is not a director27 At 310.28 Couch v Attorney-General, above n 1.of Air NZ. Mr Reihana suggested that his reference to s 137 of the Companies Actwas simply to show that a duty of care could be owed but that is misapprehension onhis part. Even if he was a director, any duty under s 137 of the Companies Act is owedto the company, not the shareholders or wider members of the public such ascustomers.29[60] Mr Foran could only come under a personal duty to Mr Reihana if he hadassumed a duty of care, which would be dependent on assumption by Mr Foran ofpersonal responsibility.30 He has done nothing that could make him personallyresponsible for Air NZ's vaccination policy. There is no possible reason, or policy,consideration for imposing a separate duty of care on Mr Foran in this case.Alternative grounds for strike out[61] Apart from Mr Reihana's pleadings not disclosing a reasonably arguable causeof action and thus being amenable to strike out under HCR 15.1(a), r 15(1)(b) to (d)also apply. Mr Reihana's pleading is ill defined. The notice of opposition and thegrounds in it are unfocused and Mr Reihana seeks to use the proceedings as a vehiclefor him to pursue his subjective views about the failings and dangers of Covid-19vaccination. To allow Mr Reihana to do so would be to allow an abuse of the Court'sprocess.Result[62] For the above reasons each of Mr Reihana's causes of action against Air NZand Mr Foran are struck out.[63] The above reasoning would also support, if necessary, the entry of summaryjudgment for both defendants against Mr Reihana as there is no basis upon which thepleaded claims can succeed.29 Companies Act, s 169(3).30 Trevor Ivory Ltd v Anderson [1992] 2 NZLR 517 (CA).Costs[64] The defendant is entitled to costs on a 2B basis for steps associated with theproceeding to date together with disbursements as fixed by the Registrar.__________________________Venning J