Court of Appeal upholds dismissal of lawsuit against Air New Zealand's vaccine policy

The Court of Appeal has declined to grant an extension of time in a lawsuit challenging Air New Zealand's COVID-19 vaccination policy.

In Reihana v Air New Zealand Limited [2023] NZCA 506, Toni Reihana booked a ticket with Air New Zealand to travel from Australia to New Zealand. The airline had announced that starting February 1, 2022, any person aged 18 or over wishing to fly is required to be vaccinated against Covid-19. Since Reihana was unvaccinated, he was unable to travel on the ticket he booked.

Reihana sought judicial review of Air New Zealand's COVID-19 vaccination policy, arguing that the policy was unjust, discriminatory and posed potential dangers. He alleged that the airline breached a duty of care not to require its customers to undergo “potentially dangerous” vaccinations. Reihana's initial proceedings were struck out in September 2022, and he subsequently filed a notice of appeal. However, due to his failure to comply with procedural rules, the appeal was deemed abandoned as of May 12.

Reihana requested the High Court for an extension of time to apply for the allocation of a hearing date and to file his case on appeal. Air New Zealand opposed Reihana's application, arguing his delay in complying with the procedural rules could be explained by other demands on his time. He said he supervised his sons' building project between March and May, and he missed notification of the timetabling requirements because there was no internet or cell coverage or mail service.

The court noted that Reihana's delay in compliance with procedural rules was significant. Despite receiving extensions, he failed to apply for a hearing date or file the case on appeal. The court emphasised that the philosophy behind the rules was to ensure expeditious resolution once the High Court has determined a matter.

The court found that Reihana's explanations for the delay were inadequate, noting that he had shown no urgency in complying with his obligations. The court also highlighted that Air New Zealand had withdrawn the challenged policy, and the issues raised by Reihana were no longer of great significance.

The court concluded that Reihana's request for an extension of time was not justified in the circumstances of the case, stating that he had neither the willingness nor inclination to pursue his appeal in a timely fashion. As a result, the court declined Reihana's application.