Progress to Health and Te Whatu Ora (BOP DHB) in the Employment Court – by Tristam Price

There were two very similar hearings in the Auckland Employment Court on 10 February, where advocate Allan Halse applied for a stay of costs orders and/or proceedings pending his application for a Judicial Review in the Court of Appeal which the Employment Court had declined in 2022. Halse asserts that the Employment Court erred in declining him the right to review, hence the appeal to the Court of Appeal.

Judge Kathryn Beck reserved both decisions and required submissions from Halse, namely the Court of Appeal filings, by 28 February to assist the Court in its decision. A transcript and/or audio recording of the hearings will be released shortly after the Court’s decision.

For the first time we are reporting the existence of a SLAPP (strategic litigation against public participation) brought by New Progress Enterprises now known as Progress To Health (PTH). In January 2020 a PTH employee “JN” raised a personal grievance through Halse’s company at the time, Culturesafe NZ Ltd, which specialised in workplace bullying, as Halse continues to do. Within weeks PTH had lodged a cross claim (counterclaim) against Halse which the Court heard was for allegedly aiding and abetting a breach of JN’s employment agreement.

We don’t know what the alleged breach was, but we are aware that JN’s personal grievance claim remains unresolved.

For context, there was a flurry of “copycat” litigious activity with the aim of putting Halse out of business at that time, and Leighton Associates had only been publishing for a few months. Halse (and Culturesafe) represented a trainee teacher who claimed she was being bullied by a high school that was under statutory management. The statutory manager then dismissed her, and an unjustified dismissal claim was added and filed in the Employment Relations Authority (ERA), Waitomo News published an article on these events in December 2019. In retaliation for that publication the school launched a cross claim against both the teacher and Halse, on 23 December 2019. In a development that was humiliating for the statutory manager and its lawyer, the teacher was served (by email) while giving birth to her second child. You heard that right. We published an article that focused on this incident. A screenshot of our article, along with the Waitomo News article were raised by the school's lawyer in an ERA directions hearing, the morning after the lawyer sent a memorandum (a copy of which we have), basically doubling down on its position. To any party intending to bring abusive and/or secretive proceedings against a weaker party, most media is the enemy. Predictably, Member Robin Arthur balked, and refused to entertain the cross claim, thus local and specialist media have unwittingly trashed a SLAPP and saved the taxpayer some money!

That’s what was happening in Dec 2019/Jan 2020 and Halse told the Court the PTH matter was a “copycat” SLAPP. In the absence of publicised material that might assist in research, the PTH SLAPP has meandered along unreported for over three years.

Genevieve Taylor of Crown Law, representing the Employment Relations Authority, appeared by video link in relation to both the PTH and Te Whatu Ora matters, as did Mark Beech for Te Whatu Ora. The PTH hearing was not attended by PTH’s lawyer Karina McLuskie, and she has not responded to a couple of questions I had. However, McLuskie’s firm did not raise the SLAPP in January 2020; that was the brilliant idea of another lawyer whose animosity towards Halse is known through a 2018 LinkedIn article.

The costs awarded against Halse for losing on the strikeout of the Judicial Review applications (which he is appealing) are unknown, but must be substantial enough to justify an application to the Employment Court to stay those costs. We’ll probably know Judge Beck’s decision in a month or two.

As to the Te Whatu Ora proceedings, we believe these were launched because sacked whistleblower Ana Shaw claimed that the former COO of Bay of Plenty District Health Board (BOP DHB) was stalking her outside her workplace at the time, Spotlight in Tauranga. At the time, her three year old personal grievance claims against BOP DHB were in the ERA and she was represented by Halse. The photographic evidence of the alleged stalking that she submitted to the ERA before the Investigation Meeting appear to have served as a springboard for BOP DHB to bring fresh retaliatory proceedings against Shaw and Halse in December 2018, which as we see from the recent hearing, remain unresolved despite an estimated $500,000 legal bill for the taxpayer. We see this zombie-SLAPP as vague at best, probably bogus, and a failed legal experiment that has even failed to fail.

And now Progress to Health is associated with it by having its own hearing on the same day, three years after receiving some dubious advice from its former lawyer. We bet they're thrilled.