There were two hearings in the Employment Court in early 2023, and a decision by Judge Beck on 21 June that sets out the way retaliatory proceedings brought by mental health and disability assistance provider PTH (New Progress Enterprises Charitable Trust Board operating as Progress To Health) against former employee Julie Nicholson will progress.
Nicholson, represented by Hamilton employment advocate Allan Halse, had filed personal grievance claims in the form of a Statement of Problem in the Employment Relations Authority (ERA) against her former employer PTH on 21 January 2020.
Paragraph 4 of Judge Kathryn Beck’s interlocutory decision says:
“[4] Progress to Health filed a statement in reply (dated 11 February 2020), which included a counterclaim. The counterclaim alleged that Ms Nicholson had breached the confidentiality clause in her employment agreement and sought penalties against Mr Halse and CultureSafe for aiding, abetting, inciting or instigating that breach pursuant to s 134(2) of the Employment Relations Act 2000 (the Act).”
Workplace bullying specialist
In the background, CultureSafe NZ Ltd was Halse’s company until it was placed in liquidation on 1 August 2022 with the judgement debtor being Rangiura Trust Board, which operated a Putaruru rest home. Culturesafe was collateral damage in a whistleblower retaliation event at Rangiura in 2018 (payroll fraud had been alleged, but that has never come before the courts). Halse narrowly avoided personal bankruptcy in those proceedings, and continues advocating for bullied employee clients as a sole trader. However, he has been targeted with several other SLAPPs (retaliatory or intimidation proceedings), some of which remain unresolved. He has applied for judicial review of most of these SLAPPs, but all have been struck out. The latest strikeout application was from PTH, which similarly succeeded, and presumably Halse will be liable to contribute to PTH’s costs unless bad publicity causes it to “drop hands” (walk away), which may have already happened as we’ll explain shortly.
For context, approximately 30 of the 50 American States have anti-SLAPP legislation. The United Kingdom has something similar – a 2022 warning by the Solicitors Regulation Authority not to accept instructions to bring SLAPPs. New Zealand has neither. We also note judicial activism against judicial reviews under the Judicial Review Procedure Act 2016.
At first glance, Judge Beck’s decision to deny Halse’s application for judicial review may appear to be a breach of natural justice:
“[15] … [Halse] submitted that the counter-claim of Progress to Health was malicious as it was a SLAPP – a strategic lawsuit against public participation. Additionally, he submitted that the Authority acted in bad faith when it proceeded with the claim.”
However, as the judge kicked the SLAPP down to the ERA to be heard at a later date, she trashed it, in two ways (in my lay opinion):
"[60] … I note that if the Authority was to find that Ms Nicholson did not breach her employment agreement, any claim against Mr Halse must fail in any case.”
Remember, Halse was almost certainly the real target in PTH’s SLAPP proceedings. Also,
“[46] … the Authority does have the power to dismiss frivolous or vexatious proceedings. Mr Halse has submitted that the proceedings brought against him are a SLAPP. The term SLAPP is an acronym for strategic lawsuit against public participation. SLAPPs are a form of abusive litigation where powerful plaintiffs bring claims against individuals or smaller organisations in retaliation for them speaking out about some matter of public interest. The concept of a SLAPP has received little attention in New Zealand; however, it is possible that claims of this nature could be struck out as being vexatious or an abuse of process.₁₇”
Tiny number, huge reaction
See that little 17 at the end? That refers to Footnote 17 in the 21 June decision. It cites an academic publication, specifically a 2021 Honours dissertation by a fourth year law student:
“₁₇ Lucille Reece “The Rise of the SLAPP: A Gap in New Zealand Law?” (LLB (Hons) Dissertation, Victoria University of Wellington, 2021).”
So when an excited Lucille Reece, now a trainee solicitor at Bell Gully, posted a screenshot of Judge Beck’s reference to her work on LinkedIn several days after the decision, it garnered 700 “likes” in the first 24 hours. It’s over 1,700 now. One impressed lawyer commented that he had “never seen an undergraduate dissertation cited in a judgment before”.
It’s great to see the vitality of youth manifest in nerdy intellectual pursuits, and that is in no way patronising to my kids’ generation! But where does that leave Karen Covell, CEO of Progress To Health, with respect to the SLAPP? PTH’s lawyer Karina McLuskie has not responded to two emails, so I gave Covell a heads-up that I’d contact her in a few days because blindsiding parties to proceedings (and their counsel) tends to cause annoyance and yield knee-jerk and/or inaccurate responses.
Leighton Associates has not seen Nicholson’s Statement of Problem dated 21 January 2020 (currently adjourned), or PTH’s Statement of Problem dated 1 March 2021. Being mindful of how PTH’s SLAPP must have affected Nicholson’s own health, I reached out to Halse who didn’t really comment on the case specifically, but said in a text:
“89% of our clients have been diagnosed with depression, anxiety or PTSD. 50% experience suicide ideation and 9% have attempted suicide. Work that out over 1,200 [bullied clients since 2014] and you’ll understand what we’re dealing with. I talk with at least one suicidal person each day.”
That’s an issue we will revisit in a future article.
SLAPP collapse? Or not?
In my follow-up email to Covell, I asked if the domestic legal profession’s new-found SLAPP-awareness had, in her opinion, made continuing PTH’s counterclaim untenable. I also asked whether PTH saw an urgent mediation as a way to wrap up the proceedings entirely.
Again, we received no response.
We’ll call it. Progress To Health’s SLAPP against Allan Halse and his client Julie Nicholson has almost certainly collapsed. While Leighton Associates was partly responsible for another SLAPP getting nipped in the bud in 2020 this one had nothing to do with us.
And by the way, who has the dubious distinction of being the first to run two SLAPPs in the employment jurisdiction at the same time – for PTH and Hamilton City Council? Tompkins Wake, the SLAPP-happy law firm, that’s who. The Council matter is currently under challenge to the Employment Court.
As to Nicholson’s personal grievance claims, we have limited information. But we will follow it and report when we can.
UPDATE: SLAPP-bringing crybaby 29 November 2023