An inherited zombie proceeding concludes in the Employment Court
First of all, we called Hamilton City Council v Halse a SLAPP less than two months ago but Judge Holden has since disagreed in a recent costs judgment, finding that it wasn’t a SLAPP. New Zealand doesn’t have anti-SLAPP legislation anyway.
And here’s the costs judgment that ordered Hamilton employment advocate Allan Halse to pay Hamilton City Council a $31,000 contribution to its costs on an unsuccessful challenge of a determination of the Employment Relations Authority (ERA) that ordered Halse to pay a $9,000 fine for disparaging the Council:
This article could in theory be considered disparaging of the Council, but then I didn’t work for it for six years (until early 2014), suffer a whistleblower retaliation event that included dismissal, raise a grievance and settle in mediation. Halse did.
The 14 February 2014 settlement agreement contained a non-disparagement clause and another clause that forbade the disclosure of its very existence.
The litigation that kicked off on 23 December 2020 is silent on why it’s appropriate for a Council, or any government department for that matter, to insist on a non-disparagement clause in the first place. Non disparagement clauses which are usually mutual, are to protect employees and businesses from reputational harm, not to shield public bodies from criticism.
But anyway, there is a non-disparagement clause and the Council dragged its former employee through the employment jurisdiction for 5.5 years. By the time the Council succeeded in having Halse fined $9,000 in February 2022, CEO Richard Briggs had already left. Its external lawyer has also moved on.
Halse appealed. There were five interlocutory judgments in 2023 and 2024 (too many to list in this short article), the substantive judgment on 20 May 2026, and the costs judgment of 8 September 2026, a whopping 12.5 years after the employment relationship ended.
[8] Mr Halse says that the Hamilton City Council was engaging in strategic litigation against public participation (SLAPP), which he says was litigation initiated by a law firm using employers as a vehicle to deny Mr Halse a fundamental right to freedom of expression under the New Zealand Bill of Rights Act 1990.
[13] These proceedings were a challenge by Mr Halse to a determination of the Employment Relations Authority. It was, therefore, Mr Halse’s case; the Hamilton City Council did not initiate the challenge, it was defending itself. There also is no basis for Mr Halse’s claim that the proceedings were being driven by a law firm. The Court proceedings were not a SLAPP.
Re-thinking what constitutes a SLAPP
A judge made a finding that suggests we were wrong to characterise the proceeding as a SLAPP.
So if the proceeding was not a SLAPP, what was it?
It was certainly zombified, stretching out over a 5 year 8 month period.
It comes from the same mindset, the applicant being a local body with a bottomless pot of money and apparently, a vendetta.
It was launched in December 2020, before ratepayers became sensitive to inappropriate expenditure having suffered around 60% in rates increases since that time.
We’re not criticising any local bodies for this, but steep rate increases over the last few years to fix creaking infrastructure are everywhere, even here in Lower Hutt.
It was weaponised costs
In New Zealand’s employment jurisdiction, parties’ costs usually don’t lie where they fall. The ERA has a tariff-based system where the unsuccessful party is expected to pay $4,500 for the first day of an investigation meeting (or on the papers equivalent) and $3,500 for each day thereafter, to the successful party. This could be subject to adjustment if the conduct of one party increases the costs of the other.
With several interlocutories, the total amount Halse was ordered to pay Hamilton City Council is $40,300. This is more than four times the amount of the fine ($9,000, payable to the Crown) and weaponisation of costs awards leading to a possible bankruptcy application appears to have been the intention at the outset.
As the proceeding became increasingly embarrassing for the Council, it would have faced the prospect that a successful challenge (appeal) would have reversed the costs and made the Council liable to pay some of Halse’s costs. Due to ratepayers’ sensitivity about money being spent frivolously, it would have been desperate not to lose.
And on paper it didn’t, but a vendetta from a long-departed senior management team has now cost Hamilton ratepayers more than $200,000.
So, duly noted if reluctantly, not a SLAPP. It’s a ratepayer-funded zombie proceeding with weaponised costs.
Tristam Price, Editor
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