Edwards v Westpac New Zealand Limited

[2019] NZHC 2212

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-081

[2019] NZHC 2212

BETWEEN

JOHN ANTHONY EDWARDS

Plaintiff

AND

WESTPAC NEW ZEALAND LIMITED

Defendant

Hearing:

4 September 2019

Appearances:

No appearance by or for plaintiff

M Robinson and E Rushbrook for defendant

Judgment:

5 September 2019

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[1]                 In this proceeding the plaintiff, Mr John Edwards, sues Westpac New Zealand Ltd, in connection with an account held for him by Westpac. The proceeding was commenced on 20 February 2019 by notice of proceeding and statement of claim in the usual way. The statement of claim extended to 19 pages and 75 paragraphs. An amended statement of claim was filed and served on 5 March 2019. It is even longer.

[2]                 On 24 August 2019 Westpac filed and served an interlocutory application for an order striking out the claim pursuant to r 15.1 of the High Court Rules 2016. On 24 May 2019 Mr Edwards filed and served a notice of opposition. Both the application and the opposition were of course supported by affidavit evidence.

[3]                 Westpac’s application was set down to be heard on 4 September 2019. Both parties filed and served submissions for the hearing.

EDWARDS v WESTPAC NEW ZEALAND LIMITED [2019] NZHC 2212 [5 September 2019]

[4]                 When the matter was called, Mr Edwards was not present. I am informed that, when he arrived, just like everyone else, including solicitors and counsel, he was asked by the Ministry of Justice’s security personnel to subject himself to a security inspection. He apparently refused. As a result, he was denied access. In those circumstances, the view I take was that Mr Edwards elected not to participate in the hearing. The case proceeded in his absence.

[5]                 Mr Robinson spoke to his synopsis of submissions. He also referred me  to Mr Edward’s response which I have of course read and considered.

[6]Rule 15.1 provides that the Court may strike out a pleading if it:

(a)discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or

(b)is likely to cause prejudice or delay; or

(c)is frivolous or vexatious; or

(d)is otherwise an abuse of the process of the court.

[7]                 As to the approach which the courts take to applications under this rule,     Mr Robinson referred to the commentary in McGechan on Procedure, the Court of Appeal’s judgment in The Attorney-General v Prince1 and this Court’s judgment in Marshall Futures Ltd v Marshall.2 He summarised the relevant principles — correctly I think — as follows:

(a)Pleaded facts are assumed to be true save for allegations which are entirely speculative and without foundation.

(b)The cause of action must be clearly untenable.

(c)The jurisdiction is to be exercised sparingly, and only in clear cases.

(d)The jurisdiction is not excluded by the need to decide difficult questions of law.

(e)The Court should be particularly slow to strike out a claim in any developing area of law.

(f)Where a defect in a pleading challenged as disclosing no reasonably arguable cause of action can be cured by amendment, which the party

1      The Attorney-General v Prince [1998] 1 NZLR 262.

2      Marshall Futures Ltd v Marshall [1992] 1 NZLR 313.–

is willing to make, the court will almost always permit amendment rather than striking the pleading out. In Marshall Futures Ltd v Marshall his Honour Justice Tipping distinguished between a pleading “which is a total write-off and one which is deficient but is capable of effective repair”.

(g)The categories of pleading that might improperly prejudice or delay for the purposes of Rule 15.1(1)(b) are “potentially very wide, and certainly defy definition.” These include: unnecessarily prolix pleadings; excessive pleading of matters of evidence; unintelligible pleadings; pleading of irrelevant material.

(h)A frivolous proceeding for the purposes of Rule 15.1(c) is one which “trifles with the court’s processes”. A vexatious proceeding also contains an element of impropriety, often a procedural impropriety.

[Footnotes omitted]

[8]                 Mr Robinson then referred me to Mr Edwards amended statement of claim and took me through the various components of that document. It would serve no useful purpose to reiterate that exercise here. It is sufficient to say that the statement of claim consists of a narrative description of Mr Edward’s various frustrations over eighteen years, but contains no pleading of a recognisable cause of action, nor any claim for relief.

[9]                 Mr Robinson alerted me to the fact that this is not the first occasion on which Mr Edwards has sought to initiate court proceedings against Westpac. He had made two attempts to prosecute Westpac. In neither case was his charging documentation accepted. He has also commenced previous civil proceedings, which have come to anything for one reason or another.

[10]              In addition to reviewing the originating documentation in this case, I have read and tried to follow the other documentation Mr Edwards has filed prior to and for this hearing. Having done so, I am unable to see any substantive basis for a claim by him against Westpac — pleaded or not.

[11]              In my view, Westpac has made out a proper foundation for the striking out of Mr Edward’s amended statement of claim and I make an order striking it out.

[12]              Westpac is entitled to its costs on a 2B basis together with such disbursements as may be allowed by the Registrar.

[13]              By way of observation I add that it is apparent to  me from  the papers that Mr Edwards has been shown every courtesy by Westpac and that the organisation, through its officers, has done everything it could to assist him in dealing with whatever underlying concerns he may have.

Associate Judge Johnston

Solicitors:
Russell McVeagh, Wellington for defendant