McKenzie v Spark New Zealand Limited

[2025] NZHC 2121

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2025-404-001919

[2025] NZHC 2121

BETWEEN

ANGUS EDWARD MCKENZIE

Plaintiff

AND

SPARK NEW ZEALAND LIMITED

Defendant

On the papers
Counsel:	Plaintiff in person
Judgment:	31 July 2025

JUDGMENT OF VAN BOHEMEN J

[striking out proceeding as an abuse of process]

This judgment was delivered by me on 31 July 2025 at 2:30 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar Date……………………………..

Copy to: A McKenzie

Spark New Zealand Ltd

MCKENZIE v SPARK NEW ZEALAND LTD [2025] NZHC 2121 [31 July 2025]

[1]        Angus McKenzie has filed a statement of claim in which he seeks damages from Spark New Zealand Ltd (Spark) for allegedly misappropriating money from him or for behaving wrongly towards him.

[2]        The Registrar has referred the documents to me under r 5.35A of the High Court Rules 2016 (the Rules) on the basis that they believe, on its face, the statement of claim is plainly an abuse of the process of the Court.

Relevant law

[3]        If I consider the statement  of claim  amounts  to  an abuse of process,  under r 5.35B of the Rules, I may make orders or give directions to ensure the proceeding is disposed of or proceeds in a manner that complies with the Rules, including striking out or staying the proceeding under r 15.1.

[4]When deciding whether to strike out a proceeding under r 5.35B of the Rules,

I must determine:1

(a)whether it would be manifestly unfair to the defendant that they be required to respond; and

(b)whether right-thinking people would regard this Court as exercising very poor control of its processes if it were to allow the document to be regarded as a proper document, or if it were to allow the proceeding to proceed further.2

[5]        The power under r 5.35B must be exercised sparingly, and only in the clearest of cases, given that the rule contemplates a litigant being denied the fundamental right of access to the courts, with the possibility of the proceeding being halted before it is even served.3

1      Mathiesen v Slevin [2018] NZHC 1032, (2018) 25 PRNZ 116 at [6], citing Mathiesen v Fildes

[2017] NZHC 2258 at [4].

2      O’Neill v Judicial Conduct Commissioner [2023] NZCA 152 at [30].

3      Te Wakaminenga o Nga Hapu ki Waitangi v Waitangi National Trust Board [2023] NZCA 63, [2023] NZAR 180 at [15].

[6]        When considering the application of r 5.35B, I must take into account the broad public interest and the private interests of individuals who may otherwise be drawn into entirely unmeritorious proceedings. That must be weighed against the right of a litigant to bring proceedings.4

Mr McKenzie’s claim

[7]In his statement of claim, Mr McKenzie alleges that:

(a)Spark defrauded him of $4.00 after wrongly charging him $14.00 for casual rates and then, after Mr McKenzie complained, Spark refunded him $10.00;

(b)Spark wrongly advised him his credit balance had fallen below $1.00 and, after he had told Spark that $9.20 had wrongly been deducted from his account, Spark refunded him $10.00 but failed to follow through on an undertaking that a member of its “internal team” would call him;

(c)Spark wrongly deducted $10.10 from his account, leaving the account with a $0.00 balance after he was charged $3.70 in casual rates; and

(d)he was advised his data allowance had run out when he was not using his device and it was connected to the internet and, after he complained and was advised to bring his phone in for a “physical investigation”, Spark failed to tell him what a “physical investigation” was.

[8]        Mr McKenzie alleges that on each of these occasions, Spark acted in breach of the Consumer Guarantees Act 1993; the Fair Trading Act 1986; and the Crimes Act 1961, in particular, s 219 (theft), s 240 (obtaining by deception) and s 256 (forgery).

[9]        By way of remedy in each case, Mr McKenzie seeks an unspecified amount equal to the salary of a senior member of Spark.  He says he believes he should not

4      Jones v New Zealand Bloodstock Finance and Leasing Ltd [2021] NZHC 3220 at [20].

have to keep his service providers honest, and he is seeking to make things right by compensating himself and demanding punitive remedies from Spark.

Discussion

[10]      I proceed on the basis that Mr McKenzie’s claims are genuine and he is not seeking to make a mockery of this Court—although that possibility cannot be excluded.

[11]      In any event, it is apparent that Mr McKenzie’s claim in respect of such trivial matters should not have been brought in the High Court. He cannot bring his case within the jurisdiction of the Court by claiming an unspecified amount by way of punitive damages. I have no doubt that right-thinking people would regard the Court as exercising very poor control of its processes if it were to allow the proceeding to progress further. I also consider it that it would be unfair to require Spark to respond in the High Court on such minor matters.

[12]      I am satisfied Mr McKenzie’s claim is an abuse of process and should be struck out.

Result

[13]I direct that this proceeding be struck out.

[14]      I record that Mr McKenzie has a right to appeal this decision in accordance with r 5.35B(3).

[15]      I direct the Registrar to provide a copy of this decision to Spark in accordance with r 5.35B(4).

G J van Bohemen J