Halse v Employment Court of New Zealand
[2024] NZCA 232
•17 June 2024 at 12 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA253/2023 [2024] NZCA 232 |
| BETWEEN | ALLAN GEOFFREY HALSE |
| AND | EMPLOYMENT COURT OF NEW ZEALAND |
| Hearing: | 18 March 2024 (further submissions received 11 April 2024) |
Court: | Cooper P and Ellis J |
Counsel: | S M Henderson for Applicant |
Judgment: | 17 June 2024 at 12 pm |
JUDGMENT OF THE COURT
The proceeding is stayed, pending either the grant of leave to continue the proceedings under s 169 of the Senior Courts Act 2016 or the expiry or setting aside of the order made by Moore J on 19 June 2023.
____________________________________________________________________
REASONS OF THE COURT
(Given by Ellis J)
Mr Halse has applied to this Court under s 213 of the Employment Relations Act 2000 (the ERA) for judicial review of a decision of the Employment Court dated 13 September 2022.[1] In that decision, the Employment Court struck out Mr Halse’s application for judicial review of a number of decisions made by the Employment Relations Authority (the Authority). In general terms, the impugned Authority decisions were made in the context of an ongoing dispute involving Mr Halse and the Rangiura Charitable Trust (the Trust), a point we return to shortly.
[1]Halse v Employment Relations Authority [2022] NZEmpC 167 [strike-out judgment].
The matter came before this Court as a result of directions made by Miller J on 11 July and 9 October 2023 and Goddard J on 5 March 2024. The upshot of those directions was that there was to be a hearing to address whether this Court had jurisdiction to strike out Mr Halse’s application for review on its own motion and, if so, whether that jurisdiction should be exercised here. Because each of the respondents abided the decision of the Court, counsel was appointed to assist.
As matters transpired, however, there was a prior issue. On 19 June 2023 (after the Employment Court had struck out Mr Halse’s review application) Moore J issued his decision in Halse v Rangiura Trust Board.[2] In it, Moore J made an extended order under s 166(4) of the Senior Courts Act 2016 restraining Mr Halse from commencing or continuing civil proceedings “on this matter or any related matter in any senior Court, another Court, or Tribunal”.[3] That order undoubtedly applies to civil proceedings in this Court, if they relate to the matter that was before Moore J.
[2]Halse v Rangiura Trust Board [2023] NZHC 1519 [restraint order judgment].
[3]At [118]. Moore J did not specify the duration of the extended order and we proceed on the basis that the default period of three years applies.
Despite a copy of Moore J’s decision being emailed to Mr Henderson (Mr Halse’s counsel) in July 2023, he advised us at the hearing he had not read it and, it appears, Mr Halse did not tell him of its existence. Nor did it become known to counsel assisting until shortly before the hearing, at which point it was drawn (again) to Mr Henderson’s attention, and to ours.
On the face of it, it seemed Moore J’s decision presented a jurisdictional impediment to the present application for review, absent the grant of leave. It will be observed (for example) that the Trust was both the respondent in the proceeding before Moore J and is the named third respondent in the present application. But Mr Henderson said he was not in a position to address that question orally before us. We gave him more time to do so (in writing), and time for counsel assisting to respond.
We have now received those further submissions. Their upshot is that Mr Henderson says the application for review is not barred by Moore J’s order (absent a prior grant of leave) but counsel assisting says it is. So that is the question we must now resolve.
Background
Mr Halse is the sole director and shareholder of CultureSafe NZ Ltd (CultureSafe), a company specialising in cases of alleged workplace bullying. As part of its services, CultureSafe provides an advocacy role for employees who pursue personal grievances against their employers or previous employers.
On 5 March 2018, Mr Halse, the Trust, and a Trust employee (for whom Mr Halse was acting) signed a Record of Settlement (ROS). The ROS included the following term:
Neither party, nor their representatives, shall make disparaging or negative remarks about the other. Allan Halse has agreed to sign the Record of Settlement to indicate his agreement at being bound to this term in the Record of Settlement.
Between April and June 2018, Mr Halse posted disparaging comments on the CultureSafe Facebook page about a separate employment dispute between a different employee and the Trust. In June 2018, the Trust sought an interim non-publication order against Mr Halse on the basis of the ROS. In July 2018, the Trust filed a Statement of Problem in the Authority. What happened next was summarised in the Employment Court’s 2022 decision as follows:[4]
[34] On 20 July 2018, the Authority issued a direction by email informing the parties that a non-publication order had been made and would remain in force until a telephone conference could be held. This is the second decision called into question in the statement of claim.
[35] The first determination was dated 27 July 2018. It continued the non‑publication order made on 20 July 2018 until the substantive determination was concluded. A comment was made in the determination that the non‑publication order may require Mr Halse to amend some of the social media posts. He was recorded as denying breaching the settlement agreement while admitting making or permitting the posts that gave rise to the litigation.
[36] The second determination was dated 13 August 2018. The non‑publication order made on 27 July 2018 was reviewed and remained in place.
[37] The third determination was dated 16 August 2018 and dealt with the Trust’s application for a compliance order. The Authority was satisfied that Mr Halse was bound by the settlement agreement and an order could be made that he comply with it. The Authority was also satisfied that some of the social media posts breached the agreement. It rejected Mr Halse’s response in which he claimed the Trust’s application attempted to restrict his ability to represent other clients, and that his conduct was allowed by the Health and Safety at Work Act 2015 or the New Zealand Bill of Rights Act 1990 (NZBORA). An order was made but time to comply was allowed before it took effect.
[38] The fourth determination was dated 27 August 2018. A second compliance order was sought requiring Mr Halse to comply with the Authority’s non-publication order. He did not file evidence or make submissions. A compliance order was made with immediate effect.
[39] The fifth determination was dated 1 November 2018. Findings were made that the settlement agreement was breached 26 times and the non‑publication order 24 times. The Authority held that eighteen breaches of the settlement agreement occurred after a compliance order was made on 16 August 2018. Mr Halse and CultureSafe were held jointly and severally responsible for the breaches.
[40] This determination recorded Mr Halse’s statement that he intended to ignore the non-publication order made on 20 July 2018. He did not respond to a request for submissions on possible penalties beyond informing the Authority that he would “never pay a cent in penalties”. Nevertheless he was given what the Authority referred to as a fifth and final opportunity to provide any evidence or submissions.
[41] The sixth determination was dated 5 March 2019. It involved an extensive review of Mr Halse’s and CultureSafe’s actions. The Authority held that they gained from their behaviour by getting a financial benefit from the settlement agreement while simultaneously undermin[ing] the benefit the Trust derived from it. The response by Mr Halse and CultureSafe to the Trust’s application was described as a false and self-serving narrative that they were victims while avoiding the real issue. The outcome was the imposition of penalties on them totalling $52,800.
[42] The seventh and final determination was dated 21 June 2019. Mr Halse and CultureSafe were ordered to pay the Trust costs of $30,000.
[4]Strike-out judgment, above n 1 (footnotes omitted). The seven ERA determinations referred to are: R v A [2018] NZERA Auckland 237; R v A [2018] NZERA Auckland 250; R v Halse [2018] NZERA Auckland 253; R v Halse [2018] NZERA Auckland 275; RPW v H [2018] NZERA Auckland 338; RPW v H [2019] NZERA 121; RPW v H [2019] NZERA 367.
The Court went on to note that the Trust had successfully applied to the Court for a fine to be imposed on Mr Halse,[5] and then:[6]
[45] Mr Halse and CultureSafe unsuccessfully challenged the last two determinations, where penalties and costs were ordered. At the same time they unsuccessfully applied for extensions of time to challenge the remaining five determinations.
[46] To complete this picture, Mr Halse unsuccessfully sought to judicially review the Authority determinations, and decisions of [the Employment] Court, in the Court of Appeal. A subsequent application for leave to appeal to the Supreme Court was unsuccessful.
What was the “matter” before Moore J?
[5]Strike-out judgment, above n 1, at [44].
[6]Footnotes omitted. The relevant Employment Court decisions are RPW v H [2018] NZEmpC 103; RPW v H [2018] NZEmpC 120; and H v RPW [2020] NZEmpC 141. And in this Court and the Supreme Court see H v Employment Relations Authority [2021] NZCA 507, [2021] ERNZ 858; and H (SC 135/2021) v Employment Relations Authority [2021] NZSC 188.
The proceedings before Moore J involved a claim by Mr Halse against the Trust, Norris Ward McKinnon Ltd (a Hamilton law firm which acted for the Trust), Samuel Hood (a partner in the firm, who represented the Trust) and Erin Anderson (a former associate in the firm who had assisted with the Trust’s representation).[7] There were four causes of action pleaded: deceit, fraud, conspiracy to defraud and knowing assistance, said to involve “bogus employment proceedings” brought by the Trust and the firm for the purpose of “closing down CultureSafe”.[8]
[7]Restraint order judgment, above n 2. Although in 2018 orders were made by the Employment Court prohibiting the publication of the names of Mr Halse, Norris Ward McKinnon and Mr Hood (RPW v H [2018] NZEmpC 120 at [28]), those orders were revoked by the Court: strike-out judgment, above n 1, at [4].
[8]Restraint order judgment, above n 2, at [29].
The Trust applied to strike out the proceedings or alternatively, for summary judgment. The second, third and fourth respondents made an application for an extended restraint order under s 166(4).
Mr Halse filed an affidavit in opposition to the summary judgment application which captured the focus of his claim, summarised by Moore J as follows:
[97] … Mr Halse explains the background to his involvement with Rangiura and how an employee had reported an internal fraud to Rangiura’s board. Mr Halse was asked to attend an employment mediation with that employee. This was the mediation on 5 March 2018. Mr Halse says that Rangiura was represented by Ms Anderson who he had worked with before and trusted. He said an agreement was reached between Rangiura and his client and that Ms Anderson asked him to sign the Agreement. He said that after he signed the Agreement, he represented other employees of Rangiura. He took exception to aspects of Rangiura’s conduct and commented about this on CultureSafe’s Facebook page. This was followed by Mr Hood and Ms Anderson writing to him and threatening him with defamation. Mr Halse then refers to the various ERA proceedings and his dealings with NWM and the lawyers connected to it.
[98] The balance of the affidavit relates to criticisms of the ERA and the proceedings in the Employment Court, particularly Mr Halse’s claim that the ERA had no jurisdiction to make the orders against him. Mr Halse describes, in some detail, the proceedings in the Employment Court before claiming that Judge Perkins was misled by Mr Hood and Ms Anderson in the course of their submissions to the Court. It would appear the submissions that he criticises related to their legal submissions. The final parts of the affidavit are devoted to the reasons why Mr Halse believes Judge Perkins’ decision was flawed and how that has affected the reputation of New Zealand’s lawyers, legal system and the judiciary.
[99] Significantly, despite the length and detail of Mr Halse’s affidavit, only two paragraphs discuss the circumstances in which the Agreement was signed and only one deals with the particulars. It reads:
“7.An agreement was reached between Rangiura and my client. Erin Anderson asked me to sign the agreement document to indicate that I would be obliged to them, as well as to my client, not to talk about the settlement. She did not offer me any payment or other inducement for that and I received none. There was no legal contract between us. I signed as she requested and I have not talked about the settlement.”
[100] Mr Halse does not dispute he signed the Agreement. He does not appear to dispute that he was bound by its terms, although he does suggest that Ms Anderson indicated to him that the effect of the document would be that he was obliged not to talk about the settlement. He makes no reference to the non-disparagement obligations. He does not say whether he read the terms of the Agreement before he signed it. He does not explain why he believes the Agreement does not prohibit him from making disparaging or negative remarks about Rangiura.
[101] The gravamen of Mr Halse’s claim appears to be that he is not bound by the Agreement, either because he was not aware of its terms when he signed the document or whether there was no jurisdiction to permit the enforcement of the Agreement. That claim is unsustainable on the uncontradicted evidence[.]
Moore J granted the application for strike out and the application for an extended order.[9] He recorded he was also “easily satisfied” that grounds for summary judgment had been made out, had it been necessary to determine that application.[10] An appeal by Mr Halse against Moore J’s decision is currently before this Court.
What is the “matter” with which the present proceeding is concerned?
[9]Restraint order judgement, above n 2, at [117] and [118].
[10]At [102].
As noted earlier, the genesis of the present proceeding is the Employment Court’s decision striking out Mr Halse’s claim for judicial review of the seven Authority decisions, as well as the Authority’s “decision” to accept the Trust’s original application and an unsigned Authority direction. The basis for the application was described by the Employment Court as follows:
[15] The statement of claim referred to several grounds on which the proceeding relied. The primary claim was that the Authority’s minute, and the seven determinations, were made “without original jurisdiction” and in breach of Mr Halse’s “right to justice”. Claims were made that the Authority had no power to deal with the proceeding filed by the Trust, because the dispute did not arise from an employment agreement or relationship, that the Authority had no power to make “non-identification” orders, or to enforce a contract between Mr Halse’s former client and the Trust against him on the basis that it had no “general jurisdiction in contract”.
[16] Other grounds called into question the Authority’s enforcement of the settlement agreement by the imposition of penalties under s 149 of the Act. The pleading was that the “penalty” for breach of contract is compensatory damages and that there was no “power to impose fines without authority of Parliament”, followed by a pleading that enforcing concealment of evidence of wrongdoing and fraud is an offence.
The Judge recorded that the statement of claim posed the following questions for resolution:[11]
Did Parliament intend to give the Employment Relations Authority jurisdiction:
(a) over third parties to the employment relationship;
(b) in relation to contracts other than employment agreements;
(c) to enforce void or illegal arrangements;
(d) to enforce contracts against third parties to those contracts;
(e) to make non-identification orders;[12]
(f) to make awards to parties’ lawyers personally;
(g) to override the fundamental right to justice;
(h) to suppress the fundamental right of freedom of expression?
[11]Strike-out judgment, above n 1, at [17].
[12]Clarified to mean non-publication orders.
In granting the application, made by Mr Hood (who was acting for the Trust), to strike out the claim, the Court said:[13]
[90] None of the questions asked in the statement of claim can be pursued in a judicial review proceeding. As discussed, some are not amenable to review because they pose questions more suited to appeals on a question of law. Others purport to dispute the Authority’s clear jurisdiction and the remainder are an abuse of process.
[91] Each of the Authority’s seven determinations dealt in one way or another with breaches by Mr Halse of the settlement agreement, non‑publication and compliance orders. The Authority had jurisdiction to make those decisions. If Mr Halse was dissatisfied with them his avenue to seek to overturn them was to file a challenge.
[92] That leaves for consideration the pleading questioning the Authority’s action in accepting the Trust’s claim and processing it, the direction provided by email, the minute and the Court’s decisions.
[93] The claim about processing the Trust’s application is misconceived and not a matter subject to judicial review; it involved no more than receiving a claim and did not involve the exercise or purported exercise of a statutory power of decision.
[94] The power to order compliance with the direction sent by email comes from s 137(1)(b) and was within the Authority’s jurisdiction. As to the minute, it was the conclusion of another Authority member about jurisdiction which was both correct but contained no decision about the Trust’s application against Mr Halse or the orders made in relation to him. They disclose no reasonably arguable cause of action and seeking to pursue them is an abuse of process.
[95] Finally, this Court does not have jurisdiction to review its earlier decisions.
[13]Footnotes omitted.
It is these findings that Mr Halse now seeks to review in this Court, provided he is not restrained from doing so. Mr Halse maintains that the Employment Court was wrong to strike out his claim and challenges the conclusions just set out.
Is the present matter (the application for review) “related” to the matter that was before Moore J?
We acknowledge at the outset Mr Henderson’s point that an order made under s 166 restricts an important right: the right of access to the courts.[14] We therefore accept that the ambit of such an order should not be construed liberally. But in the present case we think it is clear beyond doubt that the application for review falls within the order made by Moore J and is a “related matter” to the matter that was before him.
[14]In light of the ability to apply for leave, the right of access is, however, not completely abrogated.
Put simply, the origin of both proceedings — and the focus of Mr Halse’s complaint in each — is the non-disparagement clause contained in the 5 March 2018 ROS between the Trust and their employee, and the subsequent Authority orders and Employment Court decisions pertaining to that. And more specifically, [101] from Moore J’s judgment (set out at [13] above) makes it clear that questions which go to the jurisdiction of the Authority (the focus of the present application) were also raised in the claim before him.
Moreover, in making the restraint order, Moore J was cognisant of — and took into account — the Employment Court decision now sought to be reviewed. He expressly noted that the judicial review proceedings to which that decision related sought to challenge seven determinations of the Authority “on the same subject matter”.[15]
[15]Restraint order judgment, above n 3, at [112]. The words “the same subject matter” refer back to further proceedings said by Moore J (at [110]) to be “related” to other challenges by Mr Halse to determinations involving his breaches of the settlement agreement with the Trust.
For completeness, we record that we are unable to accept Mr Henderson’s submission that Moore J’s restraint order did not apply because its operation had not been raised in the proceeding before us by the Trust (a party both to this proceeding and the proceeding before Moore J). The operation of an order made under s 166 is not contingent on it being specifically invoked by a party to a subsequent proceeding; that is clear enough from the terms of the section, and from the order itself. This is because litigants are not the only intended beneficiaries of such an order. The point of an order is also to prevent future abuse of the processes of the courts themselves.
Conclusion
It follows that Mr Halse needs to obtain leave of the High Court in order to pursue the present application for review. Absent that, this Court has no jurisdiction to hear the matter.
The parties are, however, agreed that it would be appropriate to stay the proceeding pending the determination of Mr Halse’s appeal against the restraint order made by Moore J; if that appeal is successful, leave would no longer be required. We make an order for stay — which will expire once this Court’s decision on the appeal is delivered — accordingly.
Result
The proceeding is stayed, pending either the grant of leave to continue the proceedings under s 169 of the Senior Courts Act 2016 or the expiry or setting aside of the order made by Moore J on 19 June 2023.
Solicitors:
Henderson Reeves, Whangarei for the Applicant
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondents and counsel assisting the Court