High-fives all around at Bay of Plenty DHB’s senior management and external legal team, after an apparently successful defence of personal grievance claims by Ana Shaw, who came from South Africa to work at Tauranga Hospital as a cardiac physiologist from 2010 to 2015.
Mainstream media reported three legal developments of this long-running case as follows:
The Employment Court’s dismissal of Shaw’s claims – 4 February 2022 (Judge Smith)
The Court of Appeal’s refusal of leave to appeal – 13 June 2022 (Justices French and Katz)
The Employment Court’s $48,960 costs award against Shaw – 28 June 2022 (Judge Smith)
We have previously noted Judge Smith’s relatively media-friendly stance, and that’s a compliment.
But despite the extensive coverage nobody seems to have noticed the elephant in the room.
The Zombie SLAPP
Without commenting on Judge Smith’s 4 February decision, as it’s a substantive matter now before the Supreme Court, we can at least note that the calculation of the costs award appears consistent with the methodologies we have seen used previously, and is about what we predicted.
[28] The DHB is a publicly funded health-service provider. There is no reason why that public funding should bear the full burden of this litigation without the DHB being able to attempt to defray some of the expenses by obtaining a costs order against Ms Shaw.
But $48,960 is less than 20% of what the DHB has spent so far on bogus “contempt” proceedings against Shaw and her former employment advocate Allan Halse since late 2018 which has so far not yielded a judgement, let alone an tangible or intangible result. It’s what Judge Corkill recently referred to as Strategic Litigation Against Public Participation [SLAPP] and we go one better and describe it either as a “Zombie SLAPP” because it doesn’t appear to have a viable exit strategy, or alternatively a “BLAPP” because the proceedings are bogus, and the product of a failed strategy, as we see from the estimated $300,000 that has been sunk into it since late 2018.
SLAPP stayed, but not struck out
The SLAPP was stayed by Judge Corkill on 24 May and this was the only publicised decision in 2022 that was not reported by other media. Since 2020 Shaw and Halse have been trying to get the very existence of these proceedings judicially reviewed by the Court of Appeal.
Frankly, the SLAPP is an embarrassment to the DHB, its successor Ta Whata Ora (Health NZ), and New Zealand’s justice system, particularly the employment jurisdiction.
The media-friendly (and media-savvy) Judge Smith has skilfully rendered his decisions for ease of reportability of the substantive matter by mainstream media, steering reporters away from the SLAPP which is currently in the Employment Court before Judge Corkill, the Court of Appeal, and the Supreme Court.
But Leighton Associates has been reporting on the SLAPP since the end of 2019.
Supreme Court and UNCAC
Ana Shaw reiterated that she would be applying to the Supreme Court to appeal the Court of Appeal’s decision to decline leave to appeal (yeah, we know that’s a lot of appeals in one sentence).
And while she’s at it, she and Halse have one last shot at a judicial review of the SLAPP, also in the Supreme Court. Then, if all domestic remedies are exhausted, they will seek an examination under the United Nations Convention Against Corruption (UNCAC).
What the DHB wants out of the SLAPP
All we have to go off is the DHB’s 5-page Amended Statement of Claim which refers to Shaw as the “third defendant”.
12 (b): On 11 July 2018, [Halse / Culturesafe] emailed the Authority, alleging that an employee, namely the Chief Operating Officer of [the DHB], was stalking and harrassing the third defendant.
12 (c) and 13: [The DHB seeks] a declaration that [Shaw, Halse and Culturesafe] obstructed, delayed and/or prejudiced the Substantive Proceedings, made scandalous allegations, and breached the rule of sub judice.
(Material Particulars): On 1 June 2018 the third defendant participated in the RNZ interview alleging being “belittled, bullied and ignored by management at the hospital...”, and shared a link to the RNZ interview to her personal Facebook page.
Yes, wow.
As to the costs award on the substantive matter, Judge Smith notes:
[12] ... Her evidence was that her financial circumstances are strained. She stated her only assets are household effects and a car of limited value. She deposed to working as a retail assistant, having no savings or funds available to meet a costs order and a substantial credit card debt.
Just chuck it on the tab, Your Honour!