And whose vanity project was this anyway? We examine the possible motives of several players.
It started with a 2015 Personal Grievance claim. Actually two, for unjustified disadvantage and then unjustified dismissal. Nothing unusual about that, except for the whistleblower status of the employee, and the length of time it took to get the case heard by the ERA and eventually, the Employment Court. A Court hearing that was scheduled for February was affected by Auckland going into Covid Level 3 and will now take place in June. It’s a challenge of an ERA determination from late 2018.
Expensive. Nasty. Long running. Shaw v Bay of Plenty District Health Board (BOP DHB) is all those things, yet not novel enough in itself to be worthy of an article. However, a related but reversed set of proceedings kicked off in late 2018 - not Shaw v BOP DHB but BOP DHB v Shaw.
BOP DHB v Shaw is a SLAPP, or Strategic Lawsuit Against Public Participation. To give you an idea of where SLAPPs are in the legal landscape, 30 out or 50 American States currently have anti-SLAPP legislation. New Zealand does not. The purpose of a SLAPP is usually not to win, but to bury the other party in legal costs and stress. After a careful analysis of BOP DHB v Shaw we have concluded that it does not have a legal basis.
This particular SLAPP was cleverly constructed in such a way that NZ mainstream media would be unable to articulate an article that the public would understand, and the underlying allegations of fraud would be obfuscated. Indeed, it took us a long time to understand what was going on, but now that we do, we have spent more time on BOP DHB v Shaw than any other case, starting with Two types of SLAPPing: Anna, we need to talk dated 11 November 2019. Our latest dated 4 May 2021 is a three minute read.
Back to the question: whose vanity project was the SLAPP? We’ll assume that the alleged intimidation and harassment of Ms Shaw at her place of work in 2018 was not part of the plan, and that the SLAPP was opportunistic, however misconceived.
ERA Member Anna Fitzgibbon had issued three directions to advocate Allan Halse, including requiring him to not comment publicly about BOP DHB, or to contact the DHB except through its counsel Mark Beech.
The week after issuing the third direction, ERA Member Fitzgibbon dismissed Ms Shaw’s personal grievance claims. That dismissal was challenged to the Employment Court. A hearing before Judge Smith is scheduled for June 2021. Mr Halse is no longer representing Ms Shaw due to a “dual role” conflict.
A fourth direction from Member Fitzgibbon in relation to publicity embarrassing to the DHB, followed.
We suspect that the SLAPP was the vanity project of both Mark Beech and Anna Fitzgibbon who wanted to get an unprecedented “contempt of authority” finding across the line. In addition, Member Fitzgibbon expressed her dismissal of Ms Shaw’s Personal Grievance claims with a tone that some might consider condescending and even retaliatory:
“Ms Shaw’s dismissal... was justified. Accordingly, Ms Shaw does not have an employment relationship problem.”
Ms Shaw had reported fraud, internally, and been dismissed for it. Needless to say, Ms Fitzgibbon’s determination was challenged to the Employment Court.
In February 2019 Member Tetitaha removed the “contempt of authority” proceedings along with the Personal Grievance claims to the Employment Court and while the reasons were not clear we think this was an honest attempt to prevent the SLAPP from progressing.
The Personal Grievance claim originally was allocated to Judge Corkill. The SLAPP was also allocated to Judge Corkill and later the Personal Grievance was re-allocated to Judge Smith.
Judge Corkill arranged a preliminary hearing on 8 April 2020 (remotely), referring to cases that suggested he had no jurisdiction. Ms Shaw and Mr Halse’s defence included that point, and also that the ERA had no jurisdiction to make gagging orders in this context. An application to strike-out the SLAPP was duly submitted.
Then for some reason the parties were advised by telephone that Judge Corkill was re-running the hearing. Based on the material produced, we believe there was an intervention that undermined the judicial independence of the Employment Court. A second hearing took place on 29 June, 2020.
Judge Corkill’s preliminary decision on jurisdiction on 22 September, 2020 was that the Employment Court has jurisdiction and BOP DHB’s application for a finding of contempt (of the ERA), penalties and costs will be entertained after all. As previously mentioned, Allan Halse ceased representation of Ana Shaw due to a conflict, in late 2020. Ms Shaw is now represented by Simon Mitchell for the Personal Grievance claims to be heard by Judge Smith, and Caroline Sawyer is representing her in the SLAPP proceedings to be heard by Judge Corkill.
We suspect that the SLAPP is also the vanity project of Judge Corkill, because BOP DHB did not apply for a preliminary hearing on jurisdiction; he called it himself.
In a legal experiment there has to be a guinea pig. It’s likely that Ana is collateral damage in an attempt to shut down Culturesafe NZ Ltd.
We suspect that a known rogue lawlord got to Judge Corkill. We note that nobody has been found in contempt of the ERA in the 20 year history of the Employment Relations Act 2000. We only know of one, or possibly two findings of Contempt of (the Employment) Court. The Contempt of Court Act 2019 became law in August 2020.
We don’t know if, and to what extent, the lawmakers influenced Judge Corkill’s decision to change his line on jurisdiction.
Several ERA and Employment Court decisions, including in the BOP DHB v Shaw matter, are among several under Judicial Review by the Court of Appeal. The finding of the Court of Appeal will probably not be as significant as the fact that the Judicial Review was applied for in the first place. In other words, serious wrongdoing will be exposed no matter what.
The Role of Media
Where there’s a significant power imbalance, media tends to level the playing field as we saw with Pitter Patter. But we see that the BOP DHB v Shaw proceedings were brought and trial-managed in an environment where those involved were confident that the proceedings were too complicated for mainstream media to understand, let alone report.
In late 2018, Leighton Associates, whose reporting may have killed off two unrelated SLAPPs and prevented an unknown number of others, didn’t exist.
From late 2019 when reporting on BOP DHB v Shaw started, the proceedings have slowly mutated to look like an experiment that nobody is in control of – a Zombie SLAPP!
Meanwhile, Ana Shaw is just going to have to wait some more...