“Two Strikes” and “You’re Out”

New Zealand’s senior courts are readily using new powers to restrain litigants that abuse the court system under a recently introduced “two strikes” rule.

As part of the Judicature (Timeliness) Legislation Amendment Act 2025, which came into force in February 2026, litigants who have two plainly abusive proceedings struck out within two years are restrained from pursuing existing claims or filing new claims for three years.

The problem

New Zealand’s senior courts (the High Court, Court of Appeal and Supreme Court) face serious challenges from litigants, frequently self-represented, who pursue meritless or otherwise abusive civil proceedings. These proceedings consume valuable judicial resources and can cause stress and cost to the other parties involved. This problem is particularly acute in the context of the delays already prevalent in the senior courts (see our previous article). The increased use of AI by self-represented litigants to generate excessively lengthy filings has also exacerbated the issue.

Parliament has responded with the introduction of ss 164A - 164C to the Senior Courts Act 2016 (Senior Courts Act). These provisions came into force in February 2026. They give all senior court judges two tools:

to strike out civil proceedings without a hearing or notice if it is plainly an abuse of process; and
to impose a three-year restraint on litigants commencing or continuing civil proceedings where two strike out orders under s 164B are made within two years.

The new regime

Sections 164A and 164B: strike out without a hearing

Under ss 164A and 164B, court registrars can refer civil proceedings to a judge and the judge may strike out the proceeding without a hearing and without notice if they believe that the proceeding is “plainly an abuse of process of the court”. This provision is modelled off an earlier rule that allowed High Court judges, upon referral from the registrar, to make similar orders. However, that power was limited to the High Court only.

Section 164C: automatic three-year restraint for repeat offenders

The more significant addition to the Senior Courts Act is s 164C. If a litigant has two civil proceedings struck out under s 164B within a two-year period, s 164C is triggered. The litigant concerned is automatically prevented from commencing or continuing any civil proceedings for the next three years.

It is possible for the litigant to apply to the High Court for leave to bring or continue a civil claim, but there is no right of appeal if leave is declined. The litigant retains the right to defend proceedings against him/her and bring private prosecutions.

This new power adds to the courts’ existing ability to restrain litigants under s 166 of the Senior Courts Act from commencing or continuing civil proceedings in any court or tribunal. However, these new provisions are broader and more powerful. In particular, they:

(a) operate automatically (ie no application is required);

(b) apply to all senior courts, not just the High Court;

(c) apply to all civil proceedings brought by the individual or entity concerned. This differs from the orders made under s 166, which only apply to new proceedings filed on a particular matter (or related to that particular matter); and

(d) are more pro-active, rather than reactive. That is, a s 166 order responds to identified bad behaviour, whereas the new powers allow registrars to refer plainly abusive proceedings to a judge for consideration before the proceedings are progressed.

Use of the new powers

Despite being new, there are already several cases where s 164B has been applied, and one case where s 164C has been triggered.

There is well established case law on when a proceeding will be an “abuse of process” and, in the cases already published citing the new sections, judges have not held back in their criticism of the proceedings that have been struck out. For example:

In Foley v ASB Bank Limited, the Court of Appeal found that the appellant’s defences and counterclaims were “legal nonsense”. In Ellis J’s view, the appeal was “plainly an abuse of process of the court”, and that “[p]ermitting such proceedings to continue risks bringing the courts and the administration of justice into disrepute”.
In Ora Ora Titles Private Trust v ANZ Bank New Zealand Limited, Boldt J described the plaintiff’s claim as “choked with pseudo-law” and struck out the proceeding on the basis it would be manifestly unjust (and likely impossible) for the defendants to respond to it.
In Martins v Inland Revenue Department, La Hood J found that the plaintiff’s documents were “repetitive, rambling, and fell well short of fulfilling the requirements of a proper pleading”. In striking out the claim under s 164B, La Hood J commented that “right thinking people would regard the Court as exercising very poor control over its processes if it were to allow this claim to be treated as a proper proceeding”.

The process does require court registrars to be proactive in reviewing and referring potentially abusive claims, and it is encouraging to see that they are clearly doing so.

However, the process is not entirely foolproof. In Foley, for example, the appellant immediately applied to recall the Court of Appeal’s decision upholding the order under s 164B. This necessitated a further decision by the Court of Appeal dismissing the recall application as obviously meritless.

Striking the right balance

In enacting the new rules, Parliament was required to navigate the tension between addressing abuses of court processes and safeguarding access to justice.

On the one hand, allowing vexatious litigants unfettered access to the courts invites abuse of the justice system, clogging the courts with frivolous claims. That itself inhibits access to justice, as an influx of meritless claims creates undue delays for genuine litigants and causes prejudice to defendants who are forced to respond.

At the same time, however, Parliament and the courts need to take care not to stifle genuine claims, particularly where a claim may be presented in an unorthodox manner but nonetheless has merit.

Although it is early days, our view is that Parliament has likely struck an appropriate balance. While the consequences for litigants subject to ss 164B and 164C orders are serious, we expect judges will exercise considerable caution before they restrict a litigant’s access to the courts. Indeed, the cases to date seem to confirm that the power is only being used in clear cut cases. Used appropriately, these provisions should enhance, rather than hinder, access to justice.