REIHANA v FORAN [2023] NZCA 506

REIHANA v FORAN [2023] NZCA 506 [20 October 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA561/2022[2023] NZCA 506BETWEEN TONI COLIN REIHANAApplicantAND GREGORY FORANFirst RespondentAND AIR NEW ZEALAND LIMITEDSecond RespondentCourt: Brown and Wylie JJCounsel: Applicant in personJ Q Wilson and T M J Shiels for the First and Second RespondentsJudgment:(On the papers)20 October 2023 at 10 amJUDGMENT OF THE COURTA The application for an extension of time is declined.B Mr Reihana must pay to the respondents jointly costs for a standardinterlocutory application on a band A basis together with usualdisbursements.____________________________________________________________________REASONS OF THE COURT(Given by Wylie J)Introduction[1] The applicant, Toni Reihana, filed proceedings against Air New Zealand andits Chief Executive Officer, Greg Foran, in relation to the airline's Covid-19vaccination policy. Those proceedings were struck out by Venning J in a judgmentissued on 22 September 2022.1 Mr Reihana filed a notice of appeal against thatjudgment on 14 October 2022. However, Mr Reihana has since failed to comply withr 43(1) of the Court of Appeal (Civil) Rules 2005 (the Rules). As a result, his appealis treated as having been abandoned as of 12 May 2023.[2] Mr Reihana now seeks an extension of time, pursuant to r 43(2) of the Rules,to apply for the allocation of a hearing date and to file his case on appeal.[3] The application for an extension of time is opposed by the respondents.Background[4] In March 2022 Mr Reihana was a resident in Australia. He wanted to travelfrom Australia to New Zealand and, in early March 2022, he booked a ticket withAir New Zealand to do so. Air New Zealand had announced in October 2021 thatfrom 1 February 2022, any person aged 18 or over wishing to fly on its internationalnetwork was required to be vaccinated against Covid-19. Mr Reihana wasunvaccinated and as a result he was unable to travel on the ticket he had booked.Mr Reihana's return to this country was delayed. He had intended to assist his sonswith a building project on Te Kanawera Tītī Island, but was unable to do so becauseof his inability to return to New Zealand at the relevant time. Access to the island iscontrolled and the building project had to be delayed by a year.[5] Mr Reihana sought judicial review of Air New Zealand's Covid-19 vaccinationpolicy. He raised three causes of action. First, he alleged that in making their policydecision in October 2021, the respondents made a jurisdictional error by failing to takeaccount of all relevant biomedical/immunological scientific considerations and that asa result, they failed to make a fully cognisant decision.2 Secondly, Mr Reihana allegedthat the respondents breached the New Zealand Bill of Rights Act 1990 and theHuman Rights Act 1993, because the policy discriminated against him.3 Thirdly, healleged that the respondents breached a duty of care not to require Air New Zealand1 Reihana v Foran [2022] NZHC 2425 [strike out judgment].2 At [5].3 At [6].customers to undergo "potentially dangerous" vaccinations. He asserted that Mr Foranand Air New Zealand were negligent in failing to apply biomedical and immunologicalscience in making the decision to ban unvaccinated persons from flyinginternationally.4[6] Mr Reihana sought:(a) certiorari invalidating the October 2021 Covid-19 vaccination policydecision;(b) mandamus requiring the respondents to "diligently" apply applicableand relevant biomedical and relatable scientific considerations to areconsideration of their October 2021 policy decision;(c) costs;(d) damages for breach of the New Zealand Bill Rights Act and theHuman Rights Act;(e) damages in tort for pecuniary loss and loss of a chance; and(f) such other order, including punitive damages, as the Court consideredappropriate.[7] The respondents sought security for costs and an order that the proceeding bestayed until security was provided. Mr Reihana opposed this application. It camebefore Peters J on 29 June 2022. In a judgment issued on 16 September 2022,the Judge ordered Mr Reihana give security for costs.5 Inter alia, she recorded thatshe was satisfied that the prospects of success of Mr Reihana's proceeding were pooras against Air New Zealand and that his claim had no prospect of success at all asagainst Mr Foran.6 Mr Reihana sought leave to appeal this judgment. Peters J declined4 At [7].5 Reihana v Foran [2022] NZHC 2382 at [25].6 At [20].leave.7 Mr Reihana then sought special leave from this Court. French and Collins JJdeclined special leave.8 In the course of doing so, they recorded that Peters J hadcorrectly assessed that the prospects of success were poor against Air New Zealandand non-existent against Mr Foran.9[8] Before Venning J, the respondents sought that the proceedings should be struckout as disclosing no reasonable cause of action against them. As noted, Venning Jstruck out all three causes of action.10 In a careful and comprehensive judgment heconsidered that none of the causes of action was reasonably arguable.11 He alsocommented that his reasoning in relation to the strike out application would also havesupported the entry of summary judgment for the respondents, because there was nobasis on which the pleaded claims could succeed.12[9] As noted, Mr Reihana filed a notice of appeal against Venning J's judgmentwith this Court on 14 October 2022.[10] On 9 November 2022 Mr Reihana made an application in this Court forsecurity for costs to be dispensed with. In a decision dated 18 January 2023, theDeputy Registrar declined this application. Mr Reihana then applied for a review ofthe Deputy Registrar's decision. The application for review was declined by Collins Jin a judgment issued on 14 March 2023.13 In declining the application, Collins Jrecorded his agreement with Venning J's conclusion that Mr Reihana's claims wereuntenable. Collins J also observed that Air New Zealand's policy was no longeroperative and that no issue of public importance arose from the way in whichMr Reihana's proceeding had been framed. He further expressed the view that nosolvent litigant would seriously pursue the appeal.14[11] Allowing for this Court's vacation period, the time limits put in place by r 43(1)expired on 7 February 2023. The Deputy Registrar extended the deadline pursuant to7 Reihana v Foran [2023] NZHC 324 at [9].8 Reihana v Foran [2023] NZCA 310 at [9].9 At [8].10 Strike out judgment, above n 1, at [62].11 At [24]–[61]12 At [63].13 Reihana v Foran [2023] NZCA 59 at [14].14 At [11]–[13].r 43(1B) on three occasions — until 7 March 2023, then to 11 April 2023 and finally,until 11 May 2023. Mr Reihana still did not file his case on appeal or apply for theallocation of a hearing date. As a result, his appeal was deemed abandoned pursuantto r 43(1) as from 12 May 2023. On 29 May 2023 Mr Reihana applied informally fora further extension. The Deputy Registrar declined to further extend the deadline andadvised Mr Reihana that he would have to file a formal application. On 12 June 2023Mr Reihana applied formally for an extension of time to comply with r 43(1).Submissions[12] Mr Reihana has filed submissions in support of his application. In summary,he contends as follows.(a) His delay in complying with r 43(1) can be explained by other demandson his time. He was supervising his sons' building project betweenMarch and May 2023 and he missed notification of the timetablingrequirements because there is no internet or cell coverage on and nomail service to Te Kanawera Tītī Island. He did not receive notificationof Collins J's decision prior to his departure for the island. He was onthe island when emails were sent advising of the 11 May 2023extension to the deadline and he was still on the island when a followup reminder was sent by the Registry on 1 May 2023. He only returnedto the mainland on 15 May 2023. He sought to make an informalapplication for a further extension of time on 29 May 2023, but wasthen advised that he would need to make a formal application. Thedecisions about security for costs and the extension of the deadlinecame "too thick and too fast" and all while he was already rushing tocomplete the building project.(b) There is no material prejudice to the respondents due to his delay.(c) The Court's discretion should be exercised taking into account theconsequences of Air New Zealand's vaccination policy for him and hisfamily. The Court should exercise its discretion to grant an extension,given the circumstances of his case and the aim of his litigation, namelyto "fight for true justice in this covid vaccine holocaust depopulationsetting".[13] The respondents oppose the application for an extension of time on thefollowing grounds.(a) Mr Reihana has not offered an adequate explanation for his delay.(b) Mr Reihana has not paid the requisite security for costs, and there isnothing suggesting that he taken steps to arrange the payment ofsecurity.(c) The merits of the proposed appeal are weak. It is notgenuinely arguable.(d) That Mr Reihana is self-represented should not be determinative.Mr Reihana has experience in the procedural requirements ofadvancing appeals.Analysis[14] Rule 43(1) of the Rules provides that an appeal is to be treated as having beenabandoned if an appellant does not apply for the allocation of a hearing date and filethe case on appeal within three months after the appeal is brought. The philosophybehind the rule is that once a matter has been the subject of a determination by theHigh Court, any party wishing to challenge that determination must do soexpeditiously.15[15] The Registrar may, on informal application made before the end of thethree-month period, extend the period by periods up to one month at a time in variousdefined circumstances.16 Further, the Court, on an interlocutory application, can grantan extension of that period, or grant one or more further extensions of any extended15 See Airwork NZ Limited v Vertical Flight Management Ltd [1999] 1 NZLR 29 (CA) at 30 andNielsen v Body Corporate No 199348 [2010] NZCA 101 at [10].16 Court of Appeal (Civil) Rules 2005, r 43(1B).period.17 In Almond v Read,18 the Supreme Court summarised the principles that guidethe exercise of such discretions. Relevant factors include the following:19(a) the length of the delay;(b) the reasons for it;(c) the conduct of the parties and in particular the applicant;(d) any prejudice or hardship to the respondent or to others with alegitimate interest in the outcome;(e) the significance of the issues raised by the proposed appeal, both to theparties and more generally; and(f) the merits of the appeal (although a decision to refuse an extension oftime based substantially on the merits should be made only where theappeal is clearly hopeless because there is no point in extending timefor an appeal that has no prospect of success).20[16] While some latitude in respect to compliance with case managementrequirements can be permitted to litigants in person if the overall justice of anyparticular case requires this to be done,21 the court is likely to afford less latitude to alay litigant who has extensive experience in the appellate jurisdiction.22[17] In the present case, the delay is significant. The notice of appeal was filed on14 October 2022. The r 43(1) deadline was originally 7 February 2023. It wasextended on three subsequent occasions. Despite this, Mr Reihana has not applied forthe allocation of a hearing date. Nor has he filed the case on appeal. Further, security17 Rule 43(2).18 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801. Although the Supreme Court was dealingwith r 29A and not r 43, this Court has subsequently explained that the principles discussed by theSupreme Court in Almond v Read apply to any interlocutory application for an extension of timewhere there is a right of appeal: see Yarrow v Westpac New Zealand Ltd [2018] NZCA 601 at [4].19 Almond v Read, above n 18, at [38]–[39].20 White v Lynch [2016] NZCA 513 at [31].21 Robson v Gallagher [2011] NZCA 204 at [9].22 Erwood v Official Assignee [2015] NZCA 620 at [9].for costs on the appeal remains outstanding and there is nothing to suggest that anysteps have been taken in this regard.[18] No good reason has been advanced as to why Mr Reihana has not compliedwith his obligations. Although there is mention in the submissions of an affidavitprepared for filing in other unrelated proceedings, no affidavit has been filed. Ratherin his submissions, Mr Reihana says that he was on Te Kanawera Tītī Island, andeffectively uncontactable, from mid-March to mid-May 2023. Even accepting this,Mr Reihana was notified on 28 February 2023 that the deadline for compliance wasthen 11 April 2023. Insofar as we are aware, he did not take any steps to meet thatdeadline prior to his departure to the island. Mr Reihana says that he returned to themainland on 15 May 2023, but he does not explain why he did not engage with theRegistry seeking a further extension until 29 May 2023, or why he did not file a formalapplication seeking a further extension until 12 June 2023, despite being told that heneeded to do so on 29 May 2023. Nor has any reason been offered as to why securityfor costs has not been paid notwithstanding that Collins J declined a review of theDeputy Registrar's refusal to waive the payment of security on 14 March 2023.[19] Mr Reihana has had the benefit of a number of extensions granted by theDeputy Registrar, but, in so far as we can glean, he has shown no urgency in complyingwith his obligations. Rather it appears that he has wilfully chosen not to do so.[20] There is a prejudice to the respondents. They are entitled to have the appealbrought on for hearing promptly. They are prejudiced by the fact that the appeal hasbeen hanging over them for some time.[21] Importantly in this case, the issues raised by Mr Reihana are no longer of anygreat moment. Air New Zealand has since withdrawn the challenged policy. There isnothing to suggest that it is considering any new policy. The courts have consistentlyheld or observed that Mr Reihana's claims are untenable — first Peters J, thenVenning J, then French and Collins JJ, and most recently Collins J. We haveconsidered Mr Reihana's notice of appeal as well as the various judgments. We agreewith Venning J's analysis. Mr Reihana's appeal is hopeless. It has no prospect ofsuccess at all.[22] We accept that Mr Reihana is self-represented but, in the circumstances of thiscase, that fact is not determinative. Mr Reihana has experience with the proceduralrequirements for advancing appeals. He has previously pursued at least two appealsin this Court on a self-represented basis.23[23] For the reasons we have set out, we conclude that Mr Reihana's request for anextension of time is not justified in the circumstances of this case. Mr Reihana hasshown neither willingness nor inclination to pursue his appeal in a timely fashion.Result[24] The application for an extension of time is declined.[25] Mr Reihana must pay to the respondents jointly costs for a standardinterlocutory application on a band A basis together with usual disbursements.Solicitors:Bell Gully, Auckland for the First and Second Respondents23 Reihana v Hitchcock CA278/97, 16 November 1998; and Reihana v Rakiura Titi Committee[2017] NZCA 325, [2018] NZAR 1652.