Dirty tactics could jeopardize court costs and reputation

The decision concerned:

• whether Mr Joyce (the employee) should contribute to the costs of Ultimate Siteworks.
• whether the conduct of Joyce’s advocate, Mr Anderson, was relevant in the court’s decision around costs.

Advocate’s dirty tactics

A key factor relied upon by Ultimate Siteworks in seeking a costs award was the conduct of Joyce’s advocate, Mr Anderson. This conduct included:

• Sending abusive written emails.
• Making phone calls and sending texts to the employer’s counsel late at night, including at 1:21 a.m. on the day the substantive hearing was scheduled to commence.
• Posting one-star Google reviews of Mr Fleming (the lawyer for Ultimate Siteworks) and of Ultimate Siteworks’ previous advocate, using multiple accounts.

Judge Holden held that the conduct of Anderson was not relevant to the decision regarding costs, due to:

• The lack of “sufficient connection” between the alleged poor behavior of Anderson, so that it would be just to make Joyce responsible for that conduct through a costs award.
• The impact of Anderson’s actions was principally felt by Fleming, rather than by Ultimate Siteworks.
• The conduct did not appear to have increased the costs of Ultimate Siteworks.

Despite this, Judge Holden did accept that Anderson had behaved in an unprofessional and abusive manner, and that the conduct issues alleged were a “cause of concern from the court’s perspective.”

Had Anderson been a lawyer, a member of the Employment Law Institute, or a member of the Arbitrators and Mediators Institute of New Zealand, Judge Holden would have considered referring him to the appropriate regulating body,

Despite the lack of a professional body regulating the conduct of employment advocates, Judge Holden highlighted that “a representative does not have an unfettered right to appear before the court.”

Court has power to sanction unacceptable conduct

Where court processes are abused, the court has power to regulate the conduct of representatives engaging in unacceptable conduct in the course of matters before it. This can include preventing a representative from continuing with a proceeding where the circumstances require it.

While Anderson’s conduct was deemed not relevant for the decision about costs, the court did hold that Joyce should pay Ultimate Siteworks’ actual costs in respect of the substantive proceedings – $12,614.83.

Relevant to the Judge’s decision was that the employer had made two Calderbank offers prior to the hearing, which would have left the employee in a much better position than the result of the decision.

As lawyers, we are bound by the Lawyers and Conveyancers Act (Lawyers Conduct and Client Care) Rules 2008 and its relevant professional and disciplinary processes.

We owe a duty to be respectful and courteous to everyone we engage with in our professional capacity. Employment advocates who are not members of the Employment Law Institute of New Zealand do not.

All actions by representatives reflect on their client. Our advice is for people to choose a lawyer who will strongly represent them and their interests, without resorting to dirty tactics.

Tamsin Woolf is a Senior Solicitor in the Employment Law Team at Lane Neave in Wellington. Gwen Drewitt is a Special Counsel on the Employment Law Team at Lane Neave in Christchurch. Andrew Shaw is the Managing Partner and Head of the Employment Law Team at Lane Neave in Christchurch. Fiona McMillan is a partner on the Employment Law Team at Lane Neave in Auckland, and Andy Bell is a Partner specialising in employment law at Lane Neave in Wellington.