Halse v Rangiura Trust Board

[2023] NZHC 1519

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2022-419-000070

[2023] NZHC 1519

BETWEEN

ALLAN GEOFFREY HALSE

Plaintiff

AND

RANGIURA TRUST BOARD

First Defendant

AND

NORRIS WARD MCKINNON LTD

Second Defendant

AND

SAMUEL WALLACE HOOD

Third Defendant

AND

ERIN REBEKAH ANDERSON

Fourth Defendant

Hearing:

19 April 2023

Appearances:

Plaintiff in Person

Michael Robertson and Sophie Pasley for the First Defendant Virginia Wethey and Rachel Anderson for the Second to Fourth Defendants

Judgment:

19 June 2023

JUDGMENT OF MOORE J

This judgment was delivered by me on 19 June 2023 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules 2016.

Registrar/ Deputy Registrar Date:

HALSE v RANGIURA TRUST BOARD & ORS [2023] NZHC 1519 [19 June 2023]

Contents

Paragraph number

Introduction.............................................................................................................. [1]

Background.............................................................................................................. [5]

Statement of claim................................................................................................. [27]

Strike out application............................................................................................ [41]

Summary of respective positions.......................................................................... [42]

Legal principles – defendants’ strike out and summary judgment

applications........................................................................................................ [48]

Analysis on strike out/summary judgment applications....................................... [55]

Strike out.............................................................................................................. [58]

(a)Deceit.................................................................................................... [59]

(b)Fraud and conspiracy to defraud.......................................................... [69]

(c)Knowing assistance............................................................................... [78]

Abuse of process.................................................................................................. [84]

Summary judgment application........................................................................... [96]

Application under s 166 of the Senior Courts Act............................................ [103]

Result..................................................................................................................... [117]

Introduction

[1]    Mr Allan Halse, the plaintiff, brings causes of action in deceit, fraud, conspiracy to defraud, and knowing assistance against each of the four defendants, being Rangiura Trust Board (“Rangiura”), Norris Ward McKinnon Ltd (“NWM”), Mr Samuel Hood and Ms Erin Anderson.

[2]    The first defendant, Rangiura, applies to strike out the proceedings under r 15.1 of the High Court Rules Act 2016 (“the Rules”), alternatively for summary judgment under r 12.2.

[3]    This is supported by the second, third and fourth defendants, who also bring an application for an extended order under s 166 of the Senior Courts Act 2016 (“the Senior Courts Act”) restraining Mr Halse from commencing or continuing civil proceedings on this matter or any related matter in any senior Court, another Court, or Tribunal.

[4]This judgment deals with each of the applications.

Background

[5]    On 31 March 2022, Mr Halse brought these proceedings against Rangiura and its legal advisors.

[6]    The origin of the dispute is a mediation which took place on 5 March 2018. It was an employment dispute.

[7]    NWM is an incorporated Hamilton law firm. It represented Rangiura which runs a rest home in a small Waikato town. Mr Hood, the third defendant, is a partner of NWM. He represented Rangiura in the employment dispute. He was assisted by the fourth defendant, Ms Anderson, who at the time was an associate of the firm.

[8]    The employee was represented by Mr Halse, an employment advocate. He is not a lawyer. He is, however, able to take instructions and act in employment disputes

by virtue of the Employment Relations Act 2000.1 Mr Halse was the sole director and shareholder of CultureSafe NZ Limited (“CultureSafe”). CultureSafe, which is now in liquidation,2 held itself out as an employee advocacy service. It was incorporated by Mr Halse in 2014. For the purposes of these proceedings, the company is effectively indivisible from Mr Halse. In this judgment, references to Mr Halse and CultureSafe are interchangeable.

[9]    Mr Halse has regularly appeared in mediations before the Employment Relations Authority (“the ERA”). On his LinkedIn page, Mr Halse describes himself as:

“Acknowledged internationally as New Zealand’s leading anti-workplace bullying expert/advocate.”

[10]The promotion also states that:

“We [CultureSafe] have won the three largest pay outs in workplace bullying cases at the Employment Relations Authority.”

[11]   The mediation between Rangiura and its employee was facilitated by the ERA and run by a mediator employed by the Ministry of Business, Innovation and Employment.

[12]   The mediation was successful. The employment dispute was resolved and its terms recorded in a settlement agreement described as the “Record of Settlement” dated 5 March 2018 (“the Agreement”).3 Under the terms of the Agreement the employee resigned and Rangiura agreed to pay them outstanding wages, holiday pay, pay in lieu of notice and compensation for humiliation, loss of dignity and injury to their feelings. In addition, Rangiura requested the mediator to include an additional clause in the Agreement and for Mr Halse to be a signatory to the Agreement so that he would be bound personally to the agreed terms. This was Clause 8. It has been described as the “non-disparagement clause”.

[13]Clause 8 provided:

1      Employment Relations Act 2000, s 236.

2      Placed in liquidation by order of this Court on 1 August 2022.

3      R v Halse [2018] NZERA Auckland 253.

“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 to being bound to this term of the Record of Settlement.”

[14]   Annexed to the Agreement was a one-page document. At the top of the page was a line which reads:

“Allan Halse, Representative for [the employee]

We confirm that we fully understand that once the mediator signs the agreed terms of settlement:

1.   The settlement is final and binding on and enforceable by us; and

2.   Except for enforcement purposes, neither of us may seek to bring those terms before the Authority or Court whether by action, appeal, application for review, or otherwise; and

3.   The terms of settlement cannot be cancelled under s 37 of the Contract and Commercial Law Act 2017; and

4.   That s 149(4) of the Employment Relations Act 2000 provides that a person who breaches an agreed term of settlement to which subs (3) applies is liable to a penalty imposed by the Employment Relations Authority.”

Mr Halse placed his signature immediately to the right of the first line.

[15]   Below the section reproduced above was a box containing signatures which appear to be those associated with Rangiura, followed by “Certifications signed and dated by the mediator”.

[16]   By mid to late April 2018, just seven or so weeks after the Agreement was signed, Mr Halse was acting for other employees of Rangiura complaining about employment issues.

[17]   Rangiura responded by seeking to appoint an independent investigator. It appears that Mr Halse took issue with this. It is said that he made numerous disparaging comments about the investigator, refused to allow his clients to participate in the investigation and threatened to publicly malign Rangiura if it did not capitulate to his demands. Relying on cl 8 of the Agreement, Rangiura warned Mr Halse that if he carried out his threats, he would be in a breach of the non-disparagement clause of

the Agreement. Mr Halse ignored those warnings. Instead, he posted disparaging and highly unflattering comments about Rangiura on CultureSafe’s Facebook page.

[18]   Rangiura instructed NWM. NWM advised Mr Halse that Rangiura considered his Facebook comments to be in breach of the Agreement. He was asked to remove the posts. He refused. He responded by making further posts of a similar sort.

[19]   Rangiura applied to the ERA for an order requiring Mr Halse and CultureSafe to comply with the terms of the Agreement. This was on 20 July 2018.

[20]   This was followed by two further non-publication orders made on 27 July 2018 and 13 August 2018. On 16 August 2018, the ERA issued a determination confirming that the compliance orders required Mr Halse to comply with the terms of the Agreement.4

[21]   While Mr Halse admitted that he was the author of the unflattering and abusive social media posts, he disputed that the Agreement imposed any legally enforceable obligations on him or his company and thus compliance orders should not have been made. He also claimed that none of the posts related to Rangiura’s employee who was a party to the Agreement.

[22]   Furthermore, he claimed that the communications could not be restricted by a compliance order because the communications were made in the course of advocating for clients who were employed by Rangiura and as such, represented an unlawful attempt to limit his ability to raise health and safety concerns about Rangiura’s workplace.

[23]   The ERA rejected these claims. It observed that s 149 settlement agreements override the desire of an individual to publicise matters that the certified settlement prohibits them from publicising. The publication interest required the maintenance of public confidence in certified s 149 settlements. The ERA determined that neither Mr Halse nor CultureSafe had demonstrated any real appreciation or understanding of the legal obligations created by certified s 149 settlements, nor did they demonstrate

4      R v Halse [2018] NZERA Auckland 253.

any appreciation or recognition that the obligations under such an agreement must be complied with. In the face of refusals to provide undertakings accepting their obligations under the Agreement, the ERA determined that a compliance order which included a prohibition against making any further disparaging remarks about Rangiura should be made. It also directed Mr Halse to take active steps to remove published or publicly available remarks already posted.

[24]   This judgment was followed by numerous further decisions of the ERA and judgments of the Employment Court. Mr Halse also appealed unsuccessfully to the Court of Appeal and the Supreme Court, each of which declined or dismissed his applications to circumvent the effect of the original decision by the ERA.

[25]   Notably, at the time the present claim was filed, Mr Halse had also issued proceedings in the Employment Court seeking judicial review of the first seven determinations of the ERA, along with the first, second and fourth judgments. This is discussed later in the context of the s 166 application under the Senior Courts Act.

[26]    It is against that background that Mr Halse’s most recent proceedings in this Court fall to be considered.

Statement of claim

[27]   Mr Halse sues Rangiura, NWM, Mr Hood and Ms Anderson in a 37-paragraph statement of claim.

[28]Under the heading, “Nature of the claim”, Mr Halse asserts:

“[7] The defendants have acted against me with deceit and dishonesty in order to obtain money unlawfully for themselves and to cause me loss, and they continue to do so. They have knowingly assisted each other in that deceit and dishonesty, and they continue to do so.”

[29]   This is then followed by an allegation that Rangiura and NWM conspired to commit fraud for the purpose of concealing an internal fraud and bringing “bogus employment proceedings” against Mr Halse for the purpose of closing down CultureSafe.

[30]   In respect of Mr Hood, Mr Halse alleges that he facilitated Rangiura to breach its duties as trustee by preparing false documents with the intention of misleading and deceiving Tribunals to cause Mr Halse loss. Mr Hood is also accused of assisting NWM to present misleading invoices to Rangiura. It appears these are the firm’s bills of cost relating to NWM’s attendances on these matters.

[31]   In respect of Ms Anderson, Mr Halse alleges that she deceived him into signing the Agreement for the purpose of misleading and deceiving Tribunals and causing Mr Halse loss. She assisted NWM to present the misleading invoices to Rangiura and accepted money from NWM for these services.

[32]   The statement of claim then gives further detail under the heading, “Particulars of deceit”. Mr Halse refers to the mediation on 5 March 2018 and the Agreement which followed. He claims that Ms Anderson procured his signature by deception for the purpose of making a claim against him in order to cause him loss and damage.

[33]   Then, under the heading, “Particulars of fraud, conspiracy to defraud and knowing assistance”, Mr Halse alleges that the fraud and conspiracy to defraud by the defendants commenced no later than July 2018. They conspired to use the Agreement to cause Mr Halse loss, to obtain “gain to themselves” and to pervert the course of justice.

[34]   He claims that the defendants misrepresented the Agreement as a contract between him and Rangiura requiring him to remain silent about Rangiura’s wrongdoings, despite the defendants knowing it was not a contract and that Mr Halse had not agreed to remain silent about Rangiura’s wrongdoings.

[35]   Mr Halse says that the Agreement was not a contract because none of the requirements or pre-requisites of a contract was present.

[36]   The next heading is, “Knowledge of the defendants”.  Under this heading,  Mr Halse claims that all the defendants were aware that the Agreement was not a valid contract.   Despite this, they held it out as valid and used it as a device to extort     Mr Halse’s silence and to obtain “bogus orders” from the ERA. He then claims that

the misrepresentations were made to the ERA and lists them. Essentially, it appears that the claim is that the defendants made submissions and sought orders which they knew were either outside the jurisdiction of the ERA or were predicated on the basis that Mr Halse was a party to a contract.

[37]   Mr Halse makes similar claims against the defendants in respect of the proceedings in the Employment Court, essentially claiming that they misrepresented to Judge Perkins of that Court that the ERA had the necessary jurisdiction to make the orders it did. Mr Halse claims that the defendants undertook this course of conduct knowing that their actions were unlawful  and  liable  to  cause  loss  to  Rangiura, Mr Halse and CultureSafe and that they caused such loss and continue to do so. He claims that the second to fourth defendants abused the trust of the Courts, Tribunals and the general public, and have thus brought the reputation of New Zealand and its legal profession and judiciary into disrepute.

[38]   Under the heading, “Damage caused”, without particularising or quantifying the damages sought, Mr Halse claims that he has incurred costs and expenses, reputational damage, damage to his health and damage to his business from the “illegal and dishonest actions of the defendants”. He repeats the assertion about the damage to the reputation of the New Zealand legal profession.

[39]   Under the heading, “Relief sought”, Mr Halse seeks damages from the defendants “jointly and severally for the loss caused to the plaintiff by their actions and deceit, fraud and conspiracy to defraud, with interest”. He seeks “exemplary and/or punitive damages to reflect the serious nature of such actions undertaken by the lawyers and those in a position of trust, in breach of their duties as trustees and officers of the Court”.

[40]In the last paragraph, he states, “I seek general or other relief and costs.”

Strike out application

[41]   Rangiura brings applications for both strike out and summary judgment. I shall deal with the strike out application first. If that is successful there is obviously no need to determine the application for summary judgment although I propose to briefly deal

with the issues engaged on that application because both applications are broadly aligned on the present facts.

Summary of respective positions

[42]   Rangiura seeks to strike out the proceedings in their totality. The other defendants support the application. Mr Halse opposes.

[43]   Rangiura’s position is that the statement of claim contains general allegations against it and the other defendants without being clearly tied to any specific cause of action. Rangiura categorises the allegations against it under three headings, namely that it:

(a)acted or instructed its agents (being the other defendants) to act against Mr Halse with deceit and dishonesty in order to obtain money unlawfully for itself and to cause Mr Halse loss;

(b)transferred money to NWM in breach of trust to conceal evidence of internal fraud and to bring “bogus” proceedings against Mr Halse; and

(c)must have known that the alleged internal fraud should have been investigated rather than covered up and that “employment proceedings” cannot be brought where there is no employment issue.

[44]   The statement of claim purports to include causes of action in deceit, fraud, conspiracy to defraud and “knowing assistance”.

[45]   Mr Robertson, for Rangiura, submits that to the extent the causes of action are available as a matter of law, the elements are not made out on the face of the claim; they are general allegations only with insufficient detail or particularity.

[46]   In response, Mr Halse, in lengthy and somewhat discursive written submissions, focuses on what he claims was a want of jurisdiction in the ERA and the Employment Court in making the orders it did. He refers to the judicial review application he filed in the Employment Court and in particular, the fact that the Crown

Law Office, representing the ERA, took no active steps in defending the ERA’s decision thus leaving it to the defendants to support the ERA’s decision, a course which he described as “grossly inappropriate”.

[47]   Except for a general repetition of the contents of the statement of claim,     Mr Halse does not address the questions engaged on this application, namely whether his claim reveals a reasonably arguable cause of action/s.

Legal principles – defendants’ strike out and summary judgment applications

[48]   Because the defendants have applied for both strike out under r 15.1 of the Rules and summary judgment under r 12.2, it is convenient to deal with the legal principles as they apply to both remedies. While both procedures share certain common features, it is important to bear in mind that the rules are distinct and have different purposes and effects.

[49]   When a Court grants a defendant summary judgment, it is deciding the case on the substantive merits. In effect, it says that the case can be decided now without the need for further pleadings, discovery and interlocutory steps, or for full hearing with oral evidence and cross-examination.5

[50]   Summary judgment is not appropriate where the case can only be decided on a full hearing with evidence, such as where there are contested assertions of fact which may only be resolved by adducing the evidence and testing it through cross- examination. The onus rests on the defendant throughout. It is insufficient that the plaintiff’s case may be assessed as weak. The Court must also be alive to whether a plaintiff’s case is capable of being recast to formulate an arguable claim.

[51]   In contrast, strike out applications under r 15.1 are concerned with the quality of the plaintiff’s pleadings. A pleading may be struck out for substantive grounds, such as when it does not reveal a reasonably arguable cause of action. On this point, it is common to apply the well-known test set out in Attorney-General v Prince6 (cited

5      Westpac Banking Corp v M M Kembla NZ Ltd [2001] 2 NZLR 298 (CA) at [58]–[64].

6      Attorney-General v Prince [1988] 1 NZLR 262 (CA).

by both Mr Robertson and Mr Halse) and endorsed by the Supreme Court in Couch v Attorney-General.7 The relevant principles are set out below:

(a)pleaded facts, whether or not admitted, are assumed to be true. This does not extend to pleaded allegations which are entirely speculative and without foundation;

(b)the cause of action or defence must be clearly tenable;

(c)the jurisdiction to strike out a claim or any part of it is to be exercised sparingly and only in clear cases. That reflects the Court’s reluctance to terminate a claim or defence short of trial;

(d)the jurisdiction is not excluded by the need to decide difficult questions of law requiring extensive argument; and

(e)the Court should be particularly slow to strike out a claim in any developing area of law.

[52]   The remedy is appropriate where a pleading is substantively deficient, such as when a pleaded cause of action is unknown to the law or when it is clear, even on the pleadings, that the claim must fail.

[53]   Substantively deficient pleadings cannot normally be cured whereas procedurally defective pleadings may be saved by amendment.

[54]   Pleadings may also be struck out as frivolous or vexatious or as an abuse of the process of the Court. When a defendant advances an affirmative defence, for example, limitation, the Court may strike out the proceedings as an abuse of process.8 Other grounds of abuse of process include relitigating a matter already determined, using the Court’s process for an improper purpose and duplicating proceedings.

7      Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].

8      Murray v Morel & Co Ltd [2007] NZSC 27, [2007] 3 NZLR 721 at [33].

Analysis on strike out/summary judgment applications

[55]   Mr Robertson described the statement of claim as “challenging to follow and the basis for the causes of action raised …not entirely clear”. This issue is further complicated by the inclusion of an affidavit filed by Mr Halse in support of the claim which includes further allegations against the defendant.

[56]   Mr Halse has not adopted the orthodox or usual form of pleading. No cause of action is specifically and separately pleaded, nor are the particulars supporting the specific cause of action set out in a way which permits a ready understanding of what is actually alleged. Instead, the allegations are interspersed and repeated throughout the whole document. Despite this, it would appear that Mr Halse’s allegations contain four causes of action, these being claims in deceit, fraud, conspiracy to defraud and knowing assistance.

[57]   The difficulty in comprehending the allegations is that in respect of Rangiura, general allegations of misconduct are made without being clearly tied to any specific cause of action.

Strike out

[58]   I shall first deal with the strike out application by reference to the four causes of action as I discern them from the pleadings.

(a)Deceit

[59]   The tort of deceit was described in Amaltal Corporation Ltd v Maruha Corporation as a misrepresentation as to a past or existing fact.9 Mere silence will not usually suffice. The representor must have no belief in the truth of the representation and intends the representee to act upon it. Critically, the representor must have lacked an honest belief and the truth of the statement at the time it was made.

[60]   The misrepresentation relied on by Mr Halse appears to be that Ms Anderson asked Mr Halse to sign the Agreement “to indicate that I would not reveal its terms”.

9      Amaltal Corporation Ltd v Maruha Corporation [2007] 1 NZLR 608 (CA) at [46]–[50].

This is not a false representation as to a past or existing fact, let alone one made by the representor with no belief in the truth of the representation and intending the representee to act upon it. At its highest, it is a representation of fact being the reason that Rangiura wanted Mr Halse to sign the Agreement. Whether or not Ms Anderson told or otherwise conveyed to Mr Halse the reason for Rangiura wishing Mr Halse to sign the Agreement, including cl 8, is unimportant in terms of proof of the tort. The pleaded representation, even if made, was not false.

[61]   For completeness, embedded in the claim’s narrative around this cause of action are allegations that Rangiura was in breach of trust. Not only is the nature and particulars of that breach difficult, if not impossible, to follow, but to the extent that any of the alleged breaches by Rangiura or any of the other defendants were committed, it is not a claim which can be brought by Mr Halse. He was never a party to those actions. Rangiura at no time owed him any fiduciary or other duty as a trustee.

[62]   I also agree with Mr Robertson that the suggestion in the claim that Mr Halse’s signature was “obtained” with the intention that it would be used to make claims against Mr Halse and cause him loss, is merely a general allegation without any sufficient supporting material or particulars to establish a prima facie case in deceit.

[63]   There is also some considerable force in Mr Robertson’s complaint that allegations of dishonesty or misconduct are in breach of the well-known requirement for specificity and good faith where such serious allegations are made.

[64]    Because dishonesty is required to establish liability, the pleading requirements for allegations of fraud or claims of other reprehensible conduct apply. These were discussed by the Court of Appeal in Schmidt v Pepper (Custodians) Ltd,10 where the Court observed:

“[15] Allegations of fraud or dishonesty are very serious. They must be pleaded with care and particularity. The authors of Bullen & Leake & Jacobs Precedents of Pleadings emphasise, counsel must not draft any originating process or pleading containing an allegation of fraud, unless they have reasonably credible material which, as it stands, establishes a prime facie case of fraud – that is, material of such a character which would lead to the conclusion that serious allegations could properly be based it. Fraud cannot

10     Schmidt v Pepper (Custodians) Ltd [2012] NZCA 565.

be left to be inferred from the facts – fraudulent conduct must be distinctly alleged and as distinctly proved. General allegations, however strong the words may appear to be, are insufficient to amount to a proper allegation of fraud.”

[65]   The Supreme Court has made similar observations, recording that the “plaintiff’s claim of fraud must be one that is fully and precisely pleaded and particularised and of sufficient cogency that it should go to trial”.11 The adequacy and cogency of the pleading could be tested by a strike out application under r 15.1:12

“While this rationale exceptionally warrants permitting an unsuccessful litigant to bring a proceeding seeking to reopen a judgment in concluded litigation on the ground it was procured by fraud, it also provides for pre-trial scrutiny of such claims to protect against abuse of that process. So where a defendant in a proceeding involving the fraud exception applies to strike it out, the plaintiff is required to discharge the onus of showing it has a case with an evidential foundation amounting to a prima facie case of fraud.”

[66]   This principle assumes particular relevance in the present proceedings. Clause 8 of the Agreement is express in its terms. Mr Halse signed the second page adjacent to an express confirmation that he and his client fully understood the agreed terms of settlement. As will be discussed more fully later in this judgment, Mr Halse’s explanations around the signing of the document and his understanding of its implications, have evolved. His account is simply untenable on the face of the indisputable record. This is not a case where competing factual narratives need to be resolved to determine liability. Mr Halse’s stance, at least in the ERA and Employment Court, was that the ERA had no jurisdiction to make the orders it did. In my view, on the material before me, Mr Halse has fallen well short of discharging the onus on him of showing an evidential foundation amounting to a prima facie case of deceit. Even in his affidavit there is nothing which might be taken to support serious allegations of deceit and dishonesty against any of the defendants.

[67]   Furthermore, having regard to my findings above, this cause of action could not be salvaged by giving Mr Halse the opportunity to amend.

[68]It follows that the cause of action in deceit is struck out.

11     Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd [2012] NZSC 94, [2013] 1 NZLR 804 at [33].

12 At [33].

(b)Fraud and conspiracy to defraud

[69]   Again, the allegations of fraud and conspiracy to defraud against Rangiura and the other defendants are difficult to follow.

[70]   The first observation is that there is no independent civil cause of action in fraud. Instead, the case law13 makes it clear that fraud may be an element requiring proof in the context of other causes of action such as deceit or breaches of statutory obligations.14 In Ma v Tay, Ellis J was critical of counsel using the concepts of “common law fraud” and “deceit” interchangeably, noting that the reality was that the terms were not synonymous. Her Honour succinctly observed “there is no such thing as ‘common law’ fraud”.15

[71]   That in itself is sufficient to dispose of these two causes of action. However, it also appears that Mr Halse may be claiming that the defendants fraudulently misrepresented the law to the ERA and the Employment Court. Reading the statement of claim as a whole, it would appear that the alleged misrepresentation is related to the submissions of counsel to the ERA (and possibly the Employment Court) on the scope of the jurisdiction to make the orders and misrepresentations as to the applicable law.

[72]   If I am correct, it is plain that these causes of action, even if they existed, are wholly misconceived. While the fraud exception to the finality of judgments may extend to the defendant knowing the falsity of statements of fact which led a decision maker into error, the exception cannot apply to erroneous submissions on the law even if the party’s conduct is said to contribute to the making of the error.16 While counsel has a duty to the Court to ensure its legal submissions are not misleading, it is for the Court to determine what the correct legal position is. Counsel’s task is to assist the Court in that function. Thus, even if counsel was incorrect on the law (which I am not required to decide here) that does not provide a foundation for civil relief.

13 Ma v Tay [2013] NZHC 2292; Armitage v Nurse [1997] 2 All ER 705 (CA) at 710; Gray v Wilson (1998) 8 NZCLC 261,530 (HC); and Stephen Todd The Law of Torts in New Zealand (6th ed, Thomson Reuters, Wellington, 2013) at 787.

14 Property Law Act 1952, s 60; Land Transfer Act 1952, s 62; and Companies Act 1955, s 320(1)(c).
15 Ma v Tay, above n 13, at [42].

16 Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd, above n 11, at [28]–[30] and [39].

[73]   Mr Halse also places some emphasis on the assertion that Ms Anderson claimed that the Agreement was a contract between him and Rangiura; an assertion which he claims was untrue. How that claim, even if was true, gives rise to liability in this case is obscure.

[74]   The relevant assertions in the statement of claim are contained under the heading, “Particulars of deceit”. They are set out below:

“13.The context of the deceit was an employment relationship problem   that had arisen between Rangiura and an employee of Rangiura who had reported an internal fraud to the Rangiura Trust Board. Rangiura wanted to conclude that matter in an agreement reached in mediation. The matter was concluded by a settlement contract made between Rangiura and its employee on 5 March 2018. The contract included  a term that the employee would not disparage the Rangiura Trust Board.

…

15.The deceit occurred when Erin Anderson procured my signature on   the instrument recording the settlement contract between Rangiura and its employee. Erin Anderson asked me to sign the document to indicate that I would not reveal its terms.

…

17.I was not offered and did not receive any inducement or reward for my signature. There was no intention to create any legal relationship with Erin Anderson or the plaintiff and in any event, I have not revealed the terms of the contract.

18.Erin Anderson began soon afterwards to claim that the document was a contract between me and Rangiura by which I was obliged not to say anything the wrongdoing and offences of the plaintiff which was untrue.

…

22.The document of 5 March 2018 was misrepresented by the defendants as a contract between me and Rangiura obliging me to remain silent about wrongdoing by Rangiura, when the defendants knew it was not a contract and I had not agreed to remain silent about Rangiura’s wrongdoing.

23.No contract

24.There was no contract because none of the requirements of the contract was present. There was no offer and acceptance and no bargain, only a bare request. There was no consideration. There was no intention to create legal relations. There was no consensus as to what we were doing.”

[75]   In his submissions, Mr Halse does not address this issue directly, but it would appear from the above that he asserts the Agreement was not a contract and was not binding on him. To the extent it is relevant at all, that claim is untenable on the face of the core facts which are not disputed; particularly the terms of cl 8 and Mr Halse’s adoption of it.

[76]   These deficiencies and defects in pleading are so fundamental that they cannot be cured by amendment.

[77]   It thus follows that the causes of action in fraud and conspiracy to defraud, such as they are discernible in the pleadings, are struck out.

(c)Knowing assistance

[78]   This cause of action appears to be directed to the second, third and fourth defendants.

[79]   The gravamen of the allegation under this head appears to be contained in the following paragraphs:

“25.     Knowledge of the defendants

26.The Rangiura board members who signed the instrument of 5 March 2018 are a businessman and an accountant respectively. The other defendants are all lawyers. All were aware of the nature of a contract and at the arrangement procured with me was not a valid contract.

27.Defendants misrepresented the instrument as a valid contract and used to try to extort my silence and then obtain bogus orders from the Employment Relations Authority.”

[80]   A claim in knowing assistance must be separately pleaded.17 In this case it is not.

[81]   It would appear that what Mr Halse is alleging is that the second, third and fourth defendants knowingly assisted Rangiura in perpetrating the deceit and fraud

17 High Court Rules 2016, r 5.17(1); Barnes v Addy (1874) LR 9 Ch App 244; and Andrew Butler (ed) Equity and Trusts in New Zealand (2nd ed, Thomson Reuters, Wellington, 2009) at 18.4 and 18.5.

and were knowing participants in a conspiracy to commit fraud. For the reasons already given, I am satisfied that these causes of action should be struck out. If they fail, the claim in knowing assistance must also necessarily fail because the knowing assistance alleged relates to conduct which I have already determined is not made out and cannot be made out on Mr Halse’s claim.

[82]   In any event, this allegation must also fail because, for the reasons already discussed, allegations of fraud, whether assessed jointly or severally, must be fully and precisely pleaded, particularised and of sufficient cogency that it should go to trial.18 Mr Halse has not provided a sufficient evidential foundation to support a prima facie case of fraud.

[83]It follows that this cause of action is also struck out.

Abuse of process

[84]   This Court has the power under r 15.1(1)(c) and (d) to strike out all or part of a pleading if it is frivolous or vexatious, or is otherwise an abuse of the process of the Court.

[85]   A frivolous proceeding is one which trifles with the Court’s processes,19 or one which lacks “the seriousness required of matters for the Court’s determination”.20 Meanwhile, the word “vexatious” connotes an element of impropriety; often a procedural impropriety.21

[86]   The notion of an abuse of processes, is an altogether wider concept which extends beyond the other grounds captured by the rule.22 It applies to the misuse of the Court’s processes such as commencing a proceeding that has been brought with an improper  motive  or  is  an  attempt  to  obtain  a  collateral  advantage  beyond   that

18     Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd, above n 11, at [33]; and

Shannon v Shannon [2002] 3 NZLR 567 (HC) at [51].

19     Commissioner of Inland  Revenue  v  Chesterfields  Preschools  Ltd  [2013] NZCA 53, [2013] 2 NZLR 679 at [89].

20     Deliu v Hong [2011] NZAR 681 (HC) at [21]–[22].

21     Commissioner of Inland Revenue v Chesterfields Preschools Ltd, above n 19, at [89].

22     Jessica Gorman and others McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HR15.1.05].

legitimately gained from a Court proceeding.23 Determining whether a proceeding amounts to an abuse of process requires:24

“…a broad, merits-based judgement which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the Court.”

[87]   As was demonstrated by this Court in Deliu v Hong, a pleading may be struck out as frivolous, even if it does not otherwise meet the criteria in r 15.1.25 In that case, Associate Judge Bell described reciprocal claims against one another by a barrister and solicitor as frivolous because the parties used the pleadings to direct insults at each other and the proceedings lacked the seriousness required of matters for the Court’s determination.26 While not all of Mr Deliu’s or Mr Hong’s causes of action were completely untenable, he found the proceedings were not being run to serve a useful purpose and their frivolous nature justified strike out.27

[88]   I am easily satisfied that on this ground alone, the entire proceedings in this Court should be struck out.

[89]   Whether or not they meet the definition of “frivolous”, they most certainly meet the definition of “vexatious” in that they are procedurally improper and justify strike-out.

[90]   Furthermore, they are plainly an abuse of process because Mr Halse is misusing this Court’s processes by commencing these proceedings in an attempt to obtain a collateral advantage, essentially the same claim as he has unsuccessfully brought in other Tribunals and Courts. As the Employment Court observed, his explanation that he was somehow “tricked” is unsustainable on the undisputed evidence. Mr Halse’s bullying and conduct towards others is the reason why cl 8 was inserted in an attempt to restrain him in his personal capacity.

23     Commissioner of Inland Revenue v Chesterfields Preschools Limited, above n 19 at [89].

24     Johnson v Gore Wood & Co [2002] 2 AC 1 (HL) at [31].

25     Deliu v Hong, above n 20, at [21].

26 At [22].

27     Deliu v Hong, above n 20, at [33].

[91]   Although the detail of the various related proceedings determined in other Courts and Tribunals will be discussed later in this judgment when dealing with the defendants’ application for orders under s 166 of the Senior Courts Act, I am also satisfied that the present claim amounts to a disingenuous collateral attack on various decisions of the ERA and Employment Court arising out of exactly the same subject matter. The claim represents an attempt to undermine the basis for the determinations of the ERA through Mr Halse reframing his assertions around the circumstances of the making of the Agreement and his obligations under it.

[92]   I further note the comments of the Employment Court regarding Mr Halse in H v RPW.28 Those proceedings involved challenges by Mr Halse to two determinations of the ERA, applications for leave to extend time to file challenges to five determinations of the ERA, and an application for orders preventing counsel and solicitors for the defendant from acting further in the proceedings. In his judgment delivered on 4 September 2020, Judge Perkins dismissed Mr Halse’s claim that he was somehow “tricked” by Ms Anderson into signing the Agreement. The Judge said:

“[24] There is nothing in the evidence of [Mr Halse] in support of the applications, or the submissions of [Mr Halse] and [CultureSafe], to explain the delay [in challenging the five determinations of the ERA] apart from a claim by [Mr Halse] that he was overwhelmed and, to use the word used in his and [CultureSafe’s] counsel’s … submissions, ‘tricked’ into signing the agreed terms of settlement. … His attempts to explain away the delay based on his naivety and the wiles of opposing counsel are somewhat disingenuous for several reasons. First, [Mr Halse], in his own pleadings, evidence and in submissions from his counsel, mentioned his experience as an employment advocate. Secondly, [Mr Halse] had been involved in previous settlements with other employers prior to the settlement in this case with [Rangiura]. [Rangiura], knowing of [Mr Halse’s] tactics in previous dealings, insisted that settlement in the present case depended upon [Mr Halse] and [CultureSafe’s] agreement to the terms of settlement and they being confirmed by the mediator.

[25] [Mr Halse’s] assertion that it was not until the hearing in November 2019 that he realised he had been tricked is equally disingenuous. These proceedings had been continuing before the [ERA] since 2018.

…

[38]      …The presentation of the argument of no jurisdiction, therefore, amounts to an attempt to relitigate issues and is simply a collateral attack on final determinations earlier issued by the [ERA]; not challenged, and not disputed. …

28     H v RPW [2020] NZEmpC 141.

[39]      [Mr Halse] was not tricked into signing the terms of settlement and deliberately chose not to challenge the five determinations. This was a positive decision he made and is confirmed by his attitude at the hearings when remedies were sought against him pursuant to s 140(6) of the Act and he was fined.

…

[44]      … [Mr Halse] entered into a campaign of endeavouring to intimidate [Rangiura] and its legal counsel by seeking political intervention in the proceedings, making accusations to the District Health Board (DHB) funder about [Rangiura] and threatening adverse publicity against the DHB and [Rangiura]. [Mr Halse] endeavoured to coerce the [ERA] into abandoning the investigation and made contemptuous comments about the [ERA Member]. He made a concerted effort to intimidate and discredit [Rangiura’s] legal counsel using accusations that they were wasting taxpayer’s money by acting for [Rangiura]. He claimed that a Calderbank offer that was sent by counsel for [Rangiura] in an attempt to settle the matter was blackmail and bullying. He made unfounded complaints to the Law Society. He used social media in an attempt to inflame hostility from members of the public towards those involved in the proceedings. He attempted to further intimidate by posting confidential and sensitive information about a [Rangiura] employee.

[45]      Thirdly, [Mr Halse] made it plain that he had no intention of participating in the [ERA’s] investigation in good faith and would ignore its directions and disobey its orders.

…

[48] [Mr Halse’s] behaviour on behalf of himself and [CultureSafe] is not disputed by him. It is confirmed in evidence and by contemporary documents.

… [Mr Halse] appears to wear criticism of his behaviour as a badge of honour. His modus seems to be to malign anyone he perceives to be in disagreement with his actions and views. I did indicate to him in an earlier judgment issued at that time that, as an advocate, he held a privileged position before the Court under s 236 of the Act. I suggested that he might do better to comply with the same requirements of behaviour as are imposed on legal counsel when conducting Court proceedings.”

[93]   More recently, the Employment Court has struck out Mr Halse’s application for judicial review of the orders of the ERA and decisions of the Employment Court on the basis that the issues raised by Mr Halse in that proceeding were more suited to appeals, constituted challenges to the ERA’s clear jurisdiction, and were an abuse of process.29

[94]   I set out the detailed record above because it is plain that these proceedings, when viewed in that wider context, represent yet another challenge, albeit in a different

29     H v Employment Relations Authority [2022] NZEmpC 167.

forum, to the same issues Mr Halse has unsuccessfully litigated before the ERA and the Employment Court.

[95]   It follows I am easily satisfied that the proceedings in this Court amount to an abuse of process.

Summary judgment application

[96]   In the alternative, Rangiura, supported by the other defendants, applies for summary judgment under r 12.2. I have already discussed the principles and the differences in the two procedures identified by the Court in Harris v Gray.30  Even if I had decided that Mr Halse’s claim should not be struck out in its entirety, I would have entered judgment against Mr Halse on the basis of r 12.2(2); that I was satisfied that none of the causes of action could succeed.

[97]   On this application, I am entitled to take into account Mr Halse’s affidavit.31 In his evidence, 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

30     Harris v Gray [2020] NZHC 36 at [8].

31     Sworn on 3 March 2022.

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,

[102]   I am easily satisfied that granting the defendants’ application for summary judgment would have been appropriate had I not already determined that the proceedings should be struck out.

Application under s 166 of the Senior Courts Act

[103]   The second to  fourth  defendants  have  also  brought  an  application  under s 166(4) of the Senior Courts Act for an extended order restraining Mr Halse from commencing or continuing civil proceedings on this matter or any related matter in any senior court, another court, or tribunal. That application is supported by the first defendant.

[104]   To make an extended order, the Court must apply a two-step test.32 First, the Court must be satisfied that there are at least two proceedings about any matter in any Court or Tribunal that are or were totally without merit.33 The proceedings concerned must be commenced by the party to be restrained, whether against the same or different persons.34 They may include interlocutory applications and appeals.35 A proceeding will be totally without merit if each cause of action pleaded is bound to fail.36 There is little difference in practice between this test and that for strike-out.37

[105]   If satisfied the threshold requirement is made out, the Court must determine as a matter of discretion whether an extended order is appropriate. In so doing, the Court may consider how the proceedings were conducted and any wider circumstances that weigh for, or against, an order being made.38 While vexatiousness is no longer an express requirement, the factors identified in Attorney General v Heenan which are indicia of a vexatious claim remain relevant to whether an order is necessary:39

(a)a deeply entrenched pattern of behaviour characterised by a refusal to accept adverse decisions;

(b)extravagant and baseless allegations against a wide range of people including judicial officers;

32     Mawhinney v Auckland Council [2021] NZCA 144, [2021] 3 NZLR 319 at [67].

33     Senior Courts Act 2016, s 167(2).

34     Section 167(5).

35     Section 167(4) and (6).

36     Mawhinney v Auckland Council, above n 32, at [60].

37     Mao v Buddle Findlay [2022] NZHC 2885 at [32].

38     Mawhinney v Auckland Council, above n 32, at [67].

39     At [70]; Attorney-General v Heenan [2009] NZAR 763 (HC) at [138].

(c)an abject failure to comply with the rules of the Court;

(d)the filing of prolix and confusing proceedings; and

(e)a failure to recognise any distinction between pleadings, evidence and submissions.

[106]   I turn now to the threshold requirement under s 167(2), that is whether there are at least two proceedings that are or were totally without merit.

[107]   For the reasons I have already given in relation to the applications for strike- out and for summary judgment, I am satisfied that the present proceeding is totally without merit. Each cause of action pleaded is bound to fail.

[108]   A second, related proceeding is H v RPW which I discussed above at [92].40 This was the proceeding in which Mr Halse sought to challenge two determinations of the ERA regarding penalties and costs on the basis of a lack of jurisdiction; applied for leave to extend the time to file challenges to five determinations of the ERA (including first and second compliance orders); and applied for an order preventing NWM from acting further in the proceedings. Each of the determinations and orders he sought to challenge stemmed from his breaches of the Agreement with Rangiura.

[109]   Judge Perkins held that the arguments on jurisdiction amounted to an attempt to relitigate matters and a collateral attack on final determinations earlier issued by the ERA.41 In respect of the applications for leave, the Judge held that there was nothing in the evidence to explain the delay; that Mr Halse’s attempts to explain away the delay were disingenuous;42 and that the applications relied upon “a somewhat tenuous argument which ignores the statutory overlay of the Act”.43 Given these findings, the Judge did not consider it necessary to consider the application to prevent NWM from acting, although he expressed concern at the immoderate comments directed at opposing counsel.44

40     H v RPW, above n 28.

41 At [38].

42 At [24].

43 At [32].

44 At [37].

[110]   Overall, I am satisfied that the proceeding was entirely without merit in the required sense. This, alongside the present proceeding, is sufficient to meet the threshold requirement in s 167(2). However, for completeness, I record that Mr Halse has brought several further related proceedings, which are or were also completely without merit.

[111]   One is H v Employment Relations Authority, in which Mr Halse sought to judicially review 16 determinations and orders of the ERA and seven decisions of the Employment Court.45 Of these, 10 determinations and three decisions related to his breaches of the Agreement with Rangiura. The others related to separate employment disputes with the Bay of Plenty District Health Board and Turuki Healthcare Charitable Services, though arose again from Mr Halse breaching settlement agreements and continuing to making disparaging comments on social media. The Court of Appeal struck the proceeding out because Mr Halse had failed to follow the appropriate statutory pathway to challenge determinations of the ERA and decisions of the Employment Court. Given this finding, it was not necessary for the Court to engage with the submission that the proceeding was otherwise an abuse of process and vexatious, although it noted the following:46

“First there is merit in the submission made for the Board that H agreed to the course of action whereby preliminary jurisdictional matters were addressed by the Employment Court in the decision of 22 September 2020. Secondly H’s challenge to the Employment Court decision granting him an extension of time to file a statement of defence is misconceived because that judgment favoured H. The fact that that decision is included in what counsel for Turuki describes, with some justification, as the “omnibus” application for review suggests that the selection of orders and decisions challenged in the proceeding was somewhat indiscriminate.”

[112]   Subsequent to this, Mr Halse brought judicial review proceedings in the Employment Court seeking to challenge seven determinations of the ERA on the same subject matter.47 These were struck out on the basis that:

“[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

45     H v Employment Relations Authority [2021] NZCA 507.

46 At [41].

47     H v Employment Relations Authority, above n 29.

law. Others purport to dispute the Authority’s clear jurisdiction and the remainder are an abuse of process.”

The Court also found that no amendment of the pleading could cure the identified deficiencies.48

[113]   It follows that I am more than satisfied that Mr Halse has brought at least two proceedings about any matter in any court or tribunal that are or were totally without merit.49 The threshold step is met.

[114]   That finding brings me to the second step, namely whether it is appropriate to make an extended order. I am satisfied the answer to this must also be yes.

[115]   Each of the factors which are indicative of vexatiousness are engaged here.50 The proceedings to which I have referred above demonstrate an entrenched pattern of behaviour, characterised by Mr Halse’s refusal to accept adverse decisions or determinations relating to his breaches of the Agreement. He has in the past and continues to make extravagant and baseless allegations against a wide range of people, including judicial officers. There has been an abject failure to comply with the rules of the Court – something that Mr Halse appears to flaunt with a level of pride. He files proceedings which are often prolix and confusing, and fails to recognise the distinction between pleadings, evidence and submission. My difficulty in discerning the causes of action in the present proceeding exemplifies this.

[116]   These factors easily satisfy me that it is appropriate to make the order sought by the second to fourth defendants.

Result

[117]   The first defendant’s application for strike out under r 15.1 of the Rules is granted. The proceedings are struck out in their entirety.

48 At [96].

49     Senior Courts Act 2016, s 167(2).

50     Attorney-General v Heenan, above n 39.

[118]   The second, third and fourth defendants’ application for an extended order under s 166(4) of the Senior Courts Act is granted.   I make an order restraining     Mr Halse from commencing or continuing civil proceedings on this matter or any related matter in any senior Court, another Court, or Tribunal.

Moore J

Barristers/Solicitors:

Mr Robertson, Auckland Ms Pasley, Auckland Ms Wethey, Auckland Ms Anderson, Auckland

Copy to:
The Plaintiff