Plaintiff v Defendant

(a) summarily dismissing the plaintiff's claim under ss 62 and 63 of the Civil Procedure Act 2010 (Vic) ('CPA'); or

(b) striking out the plaintiff's claim under r 23.02 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) ('Rules'); or

(c) permanently staying the proceeding under r 23.01 of the Rules.

1. The plaintiff, Mr Ian Williams, is a pensioner who has no legal qualifications or training and is self-represented. By his amended statement of claim ('ASOC') filed on 16 June 2025, he seeks, among other things, damages for the alleged wrongful conduct of the defendant in its handling of two unauthorised transactions on his bank account totalling $1,338.55, exemplary damages 'not exceeding' $379,005,000, as well as $10,000 for pain and suffering and unquantified damages in respect of a variety of matters including medical and transport expenses.[2]
2. For the reasons that follow, I am satisfied that the plaintiff's claim does not enjoy any real prospect of success and should be summarily dismissed.

1. The plaintiff opened a 'Spend Account' with the defendant on 11 October 2022, which account included a debit card. Use of that account is governed by the defendant's 'General Terms'. In addition, in respect of the provision of the account to the plaintiff, the defendant had adopted and was bound by the Australian Securities and Investments Commission ('ASIC') ePayments Code ('ePayments Code').
2. On 29 October 2022 at 9:37am, two payments totalling $1,338.55 ($823.55 and $515) were made from the plaintiff's bank account at a Coles Supermarket in Bundoora ('Transactions'). The plaintiff alleges that he did not authorise, and had no knowledge of, the Transactions until 2 November 2022 when he discovered them on his mobile banking application. The plaintiff notified the defendant about the Transactions the same day.
3. The defendant denies any liability in respect of the Transactions, citing terms and conditions in the General Terms. The defendant also relies on the matters established following its investigations into the Transactions, including that the plaintiff's debit card had been added to a Google Pay digital wallet and the Transactions were completed using that Google Pay digital wallet. The General Terms relevantly included provisions requiring the plaintiff to protect his Debit Card, PIN and mobile device and exclude liability for unauthorised transactions:

(a) using a device, including a digital wallet, which has been misused, lost or stolen; or

(b) where the security of a password, PIN, passcode or other code or method used to access an account, such as a digital wallet, has been breached.

1. In any event, and despite denying any liability to the plaintiff, on 21 December 2022 the defendant offered to refund the full value of the Transactions. The plaintiff refused this offer. Subsequently, on 1 May 2023, the defendant offered, again without admission of liability, to pay $1,500 in full and final satisfaction of the plaintiff's claims. Again, the plaintiff refused the offer.
2. On 30 November 2024, the plaintiff issued this proceeding. Following the defendant's successful application to set aside judgment obtained in default of appearance and because of the defects in the plaintiff's claim that had been notified to him by the defendant in correspondence dated 16 May 2025, the plaintiff filed the ASOC on

16 June 2025. 3. On 7 July 2025, the defendant filed this application.

Summary judgment: ss 62, 63 and 64 of the CPA

1. A defendant may apply for summary dismissal of a proceeding under s 62 of the CPA on the basis that the claim against them (or part thereof) has 'no real prospect of success'. Subject to s 64, the Court may give summary judgment under s 63 of the CPA if it is so satisfied.
2. The test under s 63 of the CPA is whether the claim has a 'real' as opposed to a 'fanciful' chance of success.[3] The authorities urge caution when exercising the power to terminate a proceeding summarily, given that, in consequence, the party against whom summary judgment is given will be deprived of the chance to pursue their claim or defence.[4] As such, the Court should only exercise the power where it is clear that there is no real question to be tried.[5]
3. Even if there is no real prospect of success of the claim, under s 64 of the CPA the Court may nevertheless decline to give judgment summarily if:

(a) having considered the circumstances of the case, it determines it is not in the interests of justice to do so; or

(b) the dispute is of such a nature that only a full hearing on the merits is appropriate.

1. An application for summary judgment under the CPA must be made by summons supported by an affidavit verifying the facts of the claim and stating that it is the belief of the deponent that the claim has no real prospect of success. The defendant relies on two affidavits of Margaret Truong affirmed on 4 April and 3 July 2025. The opposing party, here the plaintiff, may show cause against the application by affidavit or otherwise. The plaintiff has filed an affidavit in opposition to the application, which he affirmed on 4 August 2025.

1. In relying on the power to strike out under r 23.02 of the Rules, the objection taken by the defendant is to the manner of expression of the pleading. That is, the defendant alleges that the ASOC does not disclose a cause of action or its contents are such that it is scandalous, frivolous or vexatious,[6] or may prejudice, embarrass or delay[7] the fair trial of the proceeding, or is otherwise an abuse of process.[8]
2. The defendant impugns the sufficiency of the ASOC by reference to the principles of pleading carefully detailed by John Dixon J in Wheelahan v City of Casey (No 12) ('Wheelahan'), [9] including that the ASOC:

(a) fails to fulfil the recognised function of a pleading in civil proceedings, being to alert the defendant to the case they need to meet and to define the precise issues for determination so that the court may conduct a fair trial;

(b) fails to state all the material facts to establish a reasonable cause of action, instead pleading conclusions from unstated facts and including irrelevant facts by way of background which do not disclose a cause of action so as to be embarrassing within the meaning of r 23.02;

(c) lacks particulars sufficient to put the other party on guard as to the case that must be met;

(d) is so prolix that the defendant is unable to ascertain with precision the causes of action and the material facts that are alleged against it; and

(e) is so badly drawn that it fails to serve the overarching purpose of the CPA.

Summary dismissal or stay under r 23.01 of the Rules

1. Rule 23.01 of the Rules authorises the Court to stay a proceeding or give judgment to a plaintiff or defendant where any claim in the proceeding is scandalous, frivolous or vexatious or an abuse of the process of the Court.
2. The defendant contends that the proceeding should be stayed, or summarily dismissed, for failing to disclose a cause of action, and because it is otherwise an abuse of process. It contends that once the exemplary damages claim and the claims to unspecified damages are excised, there being no basis for them, then the total value of the plaintiff's claim is limited to the amount of the Transactions, or $1,338.55. The defendant has offered on more than one occasion to reimburse the plaintiff in respect of the Transactions, offers the plaintiff has refused. It submits that the proceeding is scandalous, frivolous and vexatious in putting the defendant to the expense of defending the claim in this jurisdiction, given the amount of the claimed loss.

Does the proceeding enjoy a real prospect of success?

Exemplary damages - the plaintiff's reasons for bringing the proceeding

1. It is readily apparent that, for the plaintiff, his case against the defendant is about much more than the re-imbursement of the amount of the Transactions. In his affidavit, which contains extensive submissions which I will treat as such, the plaintiff states that he 'claims exemplary damages...to deter systemic misconduct'.[10] The plaintiff submitted that his claim for exemplary damages of up to $379 million was not for personal benefit but instead 'to discourage and punish egregious conduct and make an example of NAB, and to deter similar conduct from other entities.' [11] The plaintiff submitted that what he wants is for banks:

a) ...to be proactive in finding solutions to this ever growing problem. > > b) To follow the UK lead and adopt a similar legislation and codes of conduct. > > c) [To] [t]ake a close look at their corporate governance and be more focused on client's security. > > d) [To have] [p]ositive action, honesty, integrity, and transparency in all their dealings with clients, to hopefully restore trust and confidence in the banking system. Because for me, I keep any spare money I have at home, and I have friends doing the same thing. [12]

He contends that the defendant has shown a 'systemic disregard for consumer rights and equitable obligations',[13] and failures in its corporate culture require 'full public scrutiny and judicial determination'.[14] The plaintiff repeated these sentiments at the hearing.

1. Whilst an award of exemplary damages does serve the several purposes of punishing a defendant,[15] demonstrating the Court's disapprobation, publicly denouncing conduct[16] and deterring others from engaging in similar conduct, they are a form of damages that are only available in an action in tort. Even where available, they are awarded rarely and only where the tort was committed in circumstances involving a deliberate, intentional or reckless disregard for the claimant's rights. Exemplary damages are not available for breach of contract, nor are they an equitable remedy. There is also no general right to seek exemplary damages for breach of statute, wherein the remedies available are governed by the terms of the statute breached.
2. I am satisfied that the ASOC discloses no cause of action in tort in respect of which exemplary damages could be claimed against the defendant. In paragraph 4.2(d) of the ASOC, the plaintiff alleges that the defendant 'breached its duty to monitor account activity and protect customers from unauthorised transactions as required under the ePayments Code and its own security protocols.' In paragraph 7 of the ASOC, the plaintiff alleges that the impugned conduct 'forms part of the overall cause of action against NAB for negligent handling of fraud claims and denial of procedural fairness.' I have drawn attention to these two references because they invoke wording associated with the tort of negligence, however, there is nothing else in the ASOC by which any action in tort is disclosed. There is no articulation of any relevant duty, the source of the duty and its scope, there are no material facts alleged regarding breach of the identified duty and there is no pleading of causation or loss and damage arising from any alleged breach of duty. Moreover, there are no material facts pleaded in the ASOC by which it is alleged that the defendant would be liable for exemplary damages for its alleged tortious conduct.
3. In his submissions, the plaintiff relies on regulatory enforcement proceedings commenced by ASIC or the Australian Competition and Consumer Commission against banks and other corporate defendants enforcing provisions of the Australian Securities and Investments Commission Act 2001 (Cth), the Corporations Act 2001 (Cth), the Australian Consumer Law ('ACL') or the ePayments Code. The plaintiff asks this Court to impose exemplary damages as a form of penalty akin to those sought by these regulators in such proceedings. In this regard, the plaintiff clearly misapprehends the respective roles and rights of a plaintiff in a civil proceeding, and those of a regulator, as well as the availability of remedies and the jurisdiction of the Court to grant appropriate relief.
4. Given this, I am satisfied that the plaintiff's claim to 'damages not exceeding $379,005,000'[17] enjoys no real prospect of success, is an abuse of process and is vexatious. For all of these reasons, this part of the plaintiff's claim should be dismissed.

Does the ASOC disclose any other cause of action?

1. Mr Williams describes his claims against the defendant as comprising claims for breach of the ePayments Code, misleading and deceptive conduct, unconscionable conduct and violations of the Charter of Human Rights and Responsibilities Act 2006 (Vic) ('Charter'). Despite claiming damages equivalent to the value of the Transactions, the plaintiff's claims are based almost entirely on the plaintiff's reaction to the defendant's conduct in denying liability for the Transactions. It is to be recalled that the defendant denied liability for the reason that the plaintiff had not protected the security of his account in accordance with the General Terms, including by adding his debit card and authorising access to his account via the Google Pay digital wallet. By its denial, the defendant said no more than that it was not responsible for the losses occasioned by the Transactions. However, the plaintiff appears to have understood this denial of liability as tantamount to an allegation that the plaintiff had personally made the Transactions in Bundoora using his biometric data and that he was effectively making a false claim of fraud against the defendant. The plaintiff has, thereafter, set out to disprove his involvement to the defendant, seeking access to CCTV footage, documents and other records. In this regard, the plaintiff alleges in the ASOC that:

(a) on 2 November 2022, he rejected the defendant's investigation findings to the effect that he was responsible for the Transactions and he informed the defendant he 'was approximately 180 kilometres away from Coles Bundoora' and that, as a 70 year old pensioner, the defendant's response 'was insulting, hurtful and stressful';[18]

(b) on 8 November 2022, he provided Google Maps evidence to the defendant showing his presence in Bendigo at the time of the Transactions;[19]

(c) following his formal complaint to Victoria Police, its investigation confirmed his location via GPS data and identified alternate suspects and the defendant 'refused to re-consider its stance or re-investigate the matter, thereby engaging in conduct that was unreasonable, unconscionable, and in breach of its obligations under the Banking Code of Practice and the ePayments Code';[20] and

(d) after CCTV footage was obtained and forwarded to the defendant, it maintained its 'stance that the plaintiff was responsible'.[21]

1. The ASOC continues in this vein, repeating these allegations, and variations of them, about the defendant's handling of the plaintiff's complaint about the Transactions. The plaintiff claims that, amongst other things, the defendant:

(a) engaged in misleading conduct in breach of the ACL by asserting that the plaintiff used biometric data without evidentiary foundation and by refusing to provide the plaintiff with documents he requested;[22]

(b) engaged in unconscionable conduct in breach of the ACL by:

• (A) refusing to reconsider or investigate the plaintiff's fraud report after being provided with exculpatory evidence;
• (B) persisting in blaming the plaintiff based on unverifiable internal biometric data, whilst withholding internal records;
• (C) exploiting the plaintiff's vulnerability as a 70 year old pensioner when he had limited means to challenge the bank;
• (D) proposing a confidential goodwill settlement that required the plaintiff to waive all rights without the defendant accepting liability;
• (E) causing the plaintiff to suffer financial loss through medical expenses due to stress and emotional distress;[23]

(c) breached the ePayments Code by failing to provide relevant documents and preventing the plaintiff from properly challenging its decision, contributing to the plaintiff's psychological harm;[24]

(d) breached the defendant's duty of good faith by its unreasonable and negligent handling of the complaint;[25] and

(e) contravened the Charter as a 'public authority' by failing to provide the plaintiff with a public hearing and failing to allow the plaintiff to meaningfully respond to its allegations.[26]

1. None of these allegations is particularised, and fundamental elements of each cause of action are missing from the ASOC, including, most pertinently, allegations regarding the loss and damage alleged to have been suffered by the plaintiff in respect of each of them. For example, there is no articulation of how the defendant was a public authority under the Charter, what duty of good faith was owed to the plaintiff and how that arose, how he relied on the alleged misleading conduct or otherwise how the defendant's conduct caused him any loss. As noted above, none of the allegations in the ASOC support the plaintiff's claim for exemplary damages. The plaintiff asserts an entitlement to be paid his unidentified and unquantified medical, transport and parking expenses, none of which are particularised nor linked to any of the asserted causes of action.
2. I also accept the defendant's submission that the ASOC offends every one of the rules propounded by J Dixon J in Wheelahan. It is prolix, full of allegations about background or irrelevant matters, lacks allegations of material fact relevant to any identifiable cause of action, pleads conclusions from unstated facts, is ambiguous and lacks particulars. Overall, the ASOC is drafted in a way that is insufficient to disclose any reasonable cause of action against the defendant. I am not satisfied, given their extent, that the deficiencies could be efficiently and effectively cured by amendment. Nor, given the small amount of money that may ever be truly in issue in the proceeding, do I consider that it would be consistent with the overarching purpose under the CPA to allow the plaintiff a further opportunity to amend.
3. In the circumstances, having determined there is no cause of action supporting the claim for exemplary damages, in light of the deficiencies in the ASOC and given that it fails to disclose a reasonable cause of action, I am satisfied that the plaintiff's claim against the defendant enjoys no real prospect of success and judgment should be given summarily in accordance with s 63 of the CPA.

Should the proceeding nevertheless continue under s 64 of the CPA?

1. The plaintiff contended that the matter should proceed to trial under s 64 of the CPA, in part because further evidence needs to be produced in order to determine whether the plaintiff was the 'authoriser' of the disputed Transactions.[27]
2. I am not satisfied that there is anything in the circumstances of the case, especially having regard to the purposes for which it is brought and the small quantum of any realistic losses that could be claimed by the plaintiff, which would justify its continuing under s 64.

1. Insofar as the plaintiff is using the substantive proceeding to attempt to punish and make a public example of the defendant, this is an improper purpose for which to invoke the Court's procedure and is an abuse of process_.[28]_ For similar reasons, I consider the plaintiff's claims to be vexatious. The plaintiff clearly stated that he has no personal interest in receiving money from this proceeding.[29] His claims are groundless and his aims are to punish and embarrass. I consider this to be 'productive of serious and unjustified trouble and harassment' and thus vexatious.[30]
2. As I have found that the proceeding is an abuse of process and vexatious, either of rr 23.01 and 23.02 could also be invoked in determining the present application. Given an attempt has been made to articulate various causes of action, I am satisfied that there are claims to be dismissed, and so prefer that order over an order for a permanent stay.

1. The ASOC fails to disclose a cause of action against the defendant and so the plaintiff's claims enjoy no real prospect of success and will be summarily dismissed under s 63 of the CPA. I also consider that the proceeding is vexatious or an abuse of process, being no more than a speculative claim for exemplary damages for the plaintiff's stated purposes of punishing the defendant when the plaintiff's actual loss is less than $1,500.00.
2. I will order that, subject to the payment by the defendant to the plaintiff of the sum of $1,338.55, the proceeding be dismissed and that the plaintiff pay the defendant's costs of the proceeding on a standard basis, to be taxed in default of agreement.

[1] Ubank is a division of National Australia Bank.

[3] Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158; (2013) 42 VR 27, 39 [29] (Warren CJ and Nettle JA) ('Lysaght').

[4] Lysaght 40 [35] (Warren CJ and Nettle JA), 42 [40]-[42] (Neave JA).

[5] Lysaght 40 [35] (Warren CJ and Nettle JA).

[6] In Hoh & Anor v Frosthollow Pty Ltd & Ors [2014] VSC 77, Derham AsJ provided a useful explanation of the legal meanings of the terms 'scandalous', and 'frivolous and vexatious' (at [12]), which may not be words immediately understood by the plaintiff given he is not legally trained and represents himself:

'(a) Scandalous: Allegations made in a pleading for the purpose only of abusing or injuring the opposite party and allegations which are indecent or offensive are scandalous...; (b) Frivolous or vexatious: These words in combination have traditionally been used to describe a wide variety of circumstances in which a claim is found to be groundless, or lacking a legal basis or merit[.]'

[7] In addition to the terms set out at n 6 above, the authorities describe the terms 'prejudice, embarrass or delay' as being where a pleading places the opposite party in the position that they do not know what is alleged against them, usually because it is vague, unintelligible or ambiguous (Hoh & Anor v Frosthollow Pty Ltd & Ors [2014] VSC 77, per Derham AsJ at [12(c)] and the authorities cited therein).

[8] 'Abuse of process' is also a well examined concept but it may be unfamiliar to the plaintiff. In Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251, McHugh J (at 286) stated that there were three broad categories of abuses of procedure:

'(1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute.'

[9] [2013] VSC 316, [25] ('Wheelahan').

[10] Affidavit of Ian Williams filed 1 August 2025, [17] ('Williams Affidavit').

[11] Plaintiff's Submissions in Reply filed 16 July 2025, [2] ('Plaintiff's First Submissions').

[12] Plaintiff's First Submissions [2].

[15] XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1985] HCA 12; (1985) 155 CLR 448, 470-1 (Brennan J).

[16] Carter v Walker [2010] VSCA 340; [2010] 32 VR 1, 53 [284].

[27] Plaintiff's Submissions in Reply filed 27 August 2025, [15]-[16] ('Plaintiff's Reply Submissions').

[28] Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251, 286; Ofli v RACV Insurance Services Pty Ltd [2024] VSC 161, [54]; Ridgeway v R (1995) 184 CLR 19, 74-75; Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, 526-30; Kuksal v Victoria [2025] VSC 72; Yap v Lee (No 2) [2024] VSC 730; Mohareb v Office of the Director of Public Prosecutions NSW [2024] NSWCA 93.

[29] Plaintiff's Reply Submissions [2].

[30] Oceanic Sun Line Special Shipping Co inc v Fay [1988] HCA 32; (1988) 165 CLR 197, 247.