These two matters are quite similar – Te Whatu Ora v Shaw, and ClubsNSW v Stolz. Neither employers’ legal team appears to be in control of the “lawfare” they initiated, specifically SLAPPs that arose out of their former employees’ personal grievance claims.
What is a SLAPP (Strategic Litigation Against Public Participation)?
Wikipedia says: ”lawsuits intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition. In a typical SLAPP, the plaintiff does not normally expect to win the lawsuit. The plaintiff's goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs, or simple exhaustion…”
Meet the SLAPP bringers:
Bay of Plenty District Health Board (now Te Whatu Ora) v Shaw
Tauranga grandmother Ana Shaw is originally from South Africa. In 2010 she accepted a cardiac physiologist position in Tauranga Hospital. In a depressingly common example of a whistleblower retaliation case, Shaw was dismissed in March 2015 for reporting a fraud to her managers at the Bay of Plenty District Health Board (BOP DHB). She appealed it all the way to the Supreme Court, but it ruled against her. Te Whatu Ora / Health NZ might normally have been relieved it was over, but it has inherited a bizarre set of proceedings that BOP DHB brought against Shaw in December 2018: it seeks a finding of contempt, penalties and costs. What she is supposed to have done wrong has not been specified, but the best description we have is “act[ing] in a manner that obstructed, delayed and/or prejudiced the substantive proceedings, made scandalous allegations and breached the rule of sub judice”. What’s interesting is that officers of BOP DHB have done most of these things themselves in addition to “flipping” her first advocate at a meeting on 22 January 2015, and stalking Shaw at her subsequent workplace! Both sides have filed photographic evidence of the alleged stalking, in the Employment Court.
ClubsNSW v Stolz
Troy Stolz was, until late 2019, the manager of anti-money laundering and counter terrorism financing (AML/CTF) compliance with ClubsNSW, the peak body that regulates electronic gaming machines (pokies) in sports and veteran’s clubs. A constant menace in this game is drug dealers laundering cash sums of up to AUD 5,000 through the pokies, and individual clubs not being vigilant enough about it. Stolz sought support to improve the abysmal AML/CTF compliance rates across the State but was stonewalled by his CEO and resigned in disgust, raising a personal grievance claim. He alerted two media organisations and Member of Parliament Andrew Wilkie about the money laundering problem and was sued by ClubsNSW for breaching confidentiality. There is also a private prosecution for contempt of court. Without being distracted by those proceedings, the NSW Crime Commission recommended a cashless pokies system which has garnered tentative support from NSW Premier Perrottet. This seems to be good progress given that both major State political parties have long been reliant on donations from the gaming industry.
Five similarities between the two matters:
1) Te Whatu Ora absorbed all 20 District Health Boards in mid-2022 and is now New Zealand’s largest employer. ClubsNSW enjoys political influence because of large donations that it can afford to make because “the house always wins”. Both entities’ actions could loosely be described as SLAPPs, and both arose out of employment relationships and rely on the idea that employers are legally entitled to sue employees and former employees who report their wrongdoing and serious wrongdoing.
2) Both former employees have seen their support bases attacked. Shaw’s former advocate Allan Halse, from early 2017 to 2020, is a co-defendant in these proceedings. Shaw’s lawyer in the SLAPP proceedings, Caroline Sawyer, was subject to a recent smear campaign which was closely followed by the retirement of a former colleague known to have orchestrated previous smears. And I personally have been reported to NetSafe, purportedly under the Harmful Digital Communications Act (which went nowhere), for covering these proceedings. Across the ditch Troy Stolz’s wife has been joined as a defendant for “aiding and abetting”, whatever that means, and comedian/journalist Jordan Shanks-Markovina (friendlyjordies) faces contempt proceedings for having his colleague interview Stolz on what you might think was an important matter of public interest. That was not long after Stolz was diagnosed with Stage 4 bone cancer – he is only expected to live for about a year. While there’s no proof of ClubsNSW involvement, Shanks-Markovina’s Bondi house was then firebombed.
3) BOP DHB has embarrassed its successor, Te Whatu Ora / Health NZ, by “gifting” it the now four year old, unresolved and oddly vague proceedings. Until it finds a way to shut this down, the proceedings could do lasting damage to our reputation as a skilled migrant destination, as the public may have noticed from long waiting lists to receive medical treatment. Some estimates put the legal costs of destroying Ana Shaw’s medical career because she reported a fraud as high as a million dollars. Similarly, ClubsNSW has embarrassed itself by bringing so much heat onto the money laundering operations it has been turning a blind eye to for whatever reason, that cashless pokies are almost certainly on the way. Club owners expressed concern about job losses if they are forced to go cashless (sure, smurfs like a good porterhouse steak too).
4) As of last week the Shaw SLAPP is four years old and Te Whatu Ora does not appear to have a plan to resolve it, unless doubling down is their plan. Likewise ClubsNSW.
5) Both proceedings blew out because of overreaching attempts to shut people up as a workaround to laws that apply to whistleblower protection and freedom of expression in each country. Lawyers are being instructed, as British doctor Chris Day would say, to “argue junior doctors out of whistleblowing protection”. Or cardiac physiologists. Or AML/CTF compliance officers.
Media coverage
Te Whatu Ora’s barrister won’t comment on these strange proceedings that Halse formally claimed “should never have been issued”, so where they’re going is anyone’s guess. Surprisingly only Leighton Associates has covered it. Both Stolz and Shanks-Markovina are represented by the firm Xenophon Davis whose partners appear to be quite media-savvy, and the proceedings are well covered by domestic media.
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