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Whistleblower retaliation: Deep pockets, but unclean hands - by Tristam Price

Last month we described some of the similarities between ClubsNSW v Stolz, and Te Whatu Ora (formerly Bay of Plenty District Health Board, or BOP DHB) v Shaw and Halse.

The cases are otherwise not linked.

Today we introduce a new aspect: the legal doctrine of “clean hands” which Wikipedia explains:

“… an equitable defense in which the defendant argues that the plaintiff is not entitled to obtain an equitable remedy because the plaintiff is acting unethically or has acted in bad faith with respect to the subject of the complaint—that is, with "unclean hands". The defendant has the burden of proof to show the plaintiff is not acting in good faith

Ana Shaw and Troy Stolz are whistleblowers who reported serious wrongdoing such as faking of hospital records and rampant non-compliance with anti-money laundering laws, and were retaliated against by their former employers in spectacular fashion.

Also caught up in these proceedings are:

(BOP DHB v Shaw)

  • Allan Halse who represented Shaw as her employment advocate for a few years, and

  • Halse’s company Culturesafe NZ Ltd, until it was placed in liquidation in August 2022 as the result of a similarly out of control SLAPP brought by a Putaruru rest home (that matter remains unresolved too).

(ClubsNSW v Stolz)

  • Jordan Shanks-Markovina, a Sydney comedian and journalist whose production manager interviewed Stolz in hospital not long after a terminal cancer diagnosis.

  • Troy Stolz’s wife Dianne, for “aiding and abetting”. While that appears to be a non-starter it is certainly insulting.

A question that may come before the New Zealand Employment Court and Federal Court of Australia is whether the conduct of the former BOP DHB and ClubsNSW respectively was grubby enough for their well-funded private prosecutions to collapse if the clean hands doctrine is applied.

Secret commissions, stalking, money laundering and whistleblower retaliation (allegedly)

Photographic evidence of one of two managers (the future CEO, no less) allegedly stalking Shaw outside her place of work in 2018 was included in court literally days before the stalking ceased. We have been unable to confirm whether the adding of the stalking evidence to the court record amounts to “scandalous allegations” for which BOP DHB seeks a finding of contempt. Years earlier, during a meeting on 22 January 2015, which was a couple of months before Shaw was dismissed, an agitated business manager demanded that Shaw’s advocate meet him and the HR manager briefly outside. When the trio returned to the meeting room, the advocate immediately informed Shaw that he could no longer represent her, without giving a reason, although he agreed to stay until the end of the meeting. When we reached out to the advocate several months ago he denied having been threatened. What else could have caused him to flip, readers?

Across the ditch, evidence of ClubsNSW’s position under the clean hands doctrine can be found in this NSW Crime Commission report:

... which, along with other reports, has garnered support from Premier Dominic Perrottet for cashless gaming. This would not only make it harder for criminals to launder money through the pokies but also reduce harmful gambling addiction in the context of Australians losing twice as much per capita as New Zealanders, and three times as much as Americans.

It makes for dry reading, but another, more animated report publicised on Christmas Eve should have you giggling like the village idiot. It’s a 19 minute YouTube video by Alex Apollonov (Boy Boy/IDAT) which Shanks-Markovina (friendlyjordies) and Stolz participated in, showing how easy it is to launder money in New South Wales pokie dens:

Two weeks later it has amassed 1.2M views.

To conclude, we are looking forward to reporting any findings on whether or not these private prosecuting behemoths BOP DHB and ClubsNSW came to court with clean hands, and if not, what remedies are available to their targets.

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