HALSE v EMPLOYMENT RELATIONS AUTHORITY [2023] NZCA 611

HALSE v EMPLOYMENT RELATIONS AUTHORITY [2023] NZCA 611 [1 December 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA405/2023[2023] NZCA 611BETWEEN ALLAN GEOFFREY HALSEApplicantAND EMPLOYMENT RELATIONSAUTHORITYFirst RespondentNEW PROGRESS ENTERPRISESCHARITBLE TRUST BOARDOPERATING AS PROGRESS TO HEALTHSecond RespondentCULTURESAFE NEW ZEALANDLIMITEDThird RespondentCourt: Collins and Wylie JJCounsel: Applicant in personA P Lawson for First RespondentK A McLuskie and F H G Hills for Second RespondentNo appearance for Third RespondentJudgment:(On the papers)1 December 2023 at 10 amJUDGMENT OF THE COURTA The application for leave to appeal the decision of the Employment Court isdeclined.B The applicant must pay costs to the second respondent for a standardapplication on a band A basis with usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Wylie J)Introduction[1] The applicant, Allan Halse, seeks leave to bring an appeal on a question of lawagainst a judgment delivered by the Employment Court on 21 June 2023.1 Leave isrequired pursuant to s 214 of the Employment Relations Act 2000 (the Act).[2] The first respondent, the Employment Relations Authority (the ERA), filed anappearance abiding the decision of the Court. The second respondent, New ProgressEnterprises Charitable Trust Board operating as Progress to Health (Progress toHealth), opposed the application. The third respondent, CultureSafe New Zealand Ltd(CultureSafe), is a company associated with Mr Halse. It took no steps in theproceeding and was not represented before us.Background[3] The background to this matter is summarised in the judgment sought to bechallenged.2 It is also discussed in an affidavit sworn by Mark Brown, the currentchairperson of Progress to Health.[4] Mr Halse is an employment advocate. At some stage in late 2019 he wasretained to advise one of Progress to Health's employees (the first employee). Thefirst employee had been involved in a dispute with another Progress to Healthemployee and had lodged various complaints about that employee.[5] On 18 December 2019, Mr Halse allegedly posted an article on CultureSafe'sFacebook page. The post made various allegations about Progress to Health anddisclosed information about communications between the first employee, Mr Halseand the Waikato District Health Board. Progress to Health believed that the disclosedmaterial was taken from a confidential report prepared by it.1 Halse v Employment Relations Authority [2023] NZEmpC 96, [2023] ERNZ 397 [decision underappeal].2 At [2]–[11].[6] On 21 January 2020, Mr Halse filed a statement of problem in the ERA onbehalf of the first employee in respect of three personal grievances. Progress to Healthfiled a statement in reply on 11 February 2020. The statement of reply included acounterclaim, which alleged that the first employee had breached the confidentialityclause in her employment agreement by contacting the Waikato District Health Boardand disclosing the confidential information to it. The counterclaim also alleged thatMr Halse and CultureSafe had aided, abetted, incited and instigated this breach, inbreach of s 134(2) of the Act.[7] After an issue was raised about the counterclaim by Mr Halse's thenrepresentatives on 4 February 2021, the ERA directed Progress to Health to file astatement of problem in respect of any claim it wished to pursue. Progress to Healthdid so on 1 March 2021. Mr Halse and CultureSafe filed a statement in reply on24 March 2021 through their representative.[8] On 22 April 2021, the ERA held a case management conference. The ERAissued a minute on 23 April 2021, noting that Mr Halse had chosen not to participatein the case management conference, but that, by agreement, the claim by the firstemployee against Progress to Health would be heard together with Progress to Health'sclaim. A timetable was fixed for the filing of witness statements and a date was put inplace for an investigation meeting.[9] A further case management conference was held on 1 October 2021. By thisstage, Mr Halse was representing the first employee, as well as himself andCultureSafe. None of the timetabling directions made in the minute of 23 April hadbeen complied with by Mr Halse, CultureSafe, or the first employee. A new timetablewas put in place and a new investigation date was set. Mr Halse indicated that, asProgress to Health was continuing with its counterclaim, he would seek a judicialreview.3[10] Mr Halse filed his judicial review application with the Employment Court on26 November 2021. He sought a review of the direction made by the ERA thatrequired Progress to Health to file a statement of problem in respect of any3 Employment Relations Act 2000, s 194.counterclaim it wished to pursue, claiming that the ERA had no jurisdiction "to issueproceedings" against him.[11] On 22 December 2021, Progress to Health filed a statement of defence toMr Halse's application for judicial review, and then, on 18 February 2022, it appliedto strike out Mr Halse's application for review. Mr Halse filed a notice of oppositionto this application and both parties subsequently filed submissions in support of theirrespective positions.[12] On 13 April 2022, the Employment Court heard Progress to Health's strike-outapplication. Both parties made oral submissions.[13] On 13 October 2022, Mr Halse applied to the Employment Court for a stay inrespect of the strike-out application. In a judgment issued on 4 April 2023, theEmployment Court denied the stay application.4 On 4 May 2023, Mr Halse applied tothe Employment Court for leave to file further submissions in respect of the strike-outapplication. Progress to Health filed a notice of opposition. Both parties filedsubmissions in support of their respective positions and the Employment Courtreleased a judgment denying Mr Halse leave to file further submissions on20 June 2023.5 The following day, on 21 June 2023, the Employment Court releasedits judgment in relation to the strike-out application.6 It granted Progress to Health'sapplication and struck out Mr Halse's application for judicial review.7[14] On 12 July 2023, Progress to Health filed a memorandum with theEmployment Court, seeking costs on a 2B basis against Mr Halse in the sum of$17,088.50. On 19 July 2023, Mr Halse filed an amended application in this Courtseeking leave to appeal the Employment Court's decision on the strike-out application.On 25 July 2023, Mr Halse filed an application in the Employment Court seeking astay of the proceedings in the Employment Court and an extension of time to file anyopposition to the costs application. There is nothing in the materials before us thatdiscloses what has happened thereafter.4 Halse v Employment Relations Authority (No 2) [2023] NZEmpC 53.5 Halse v Employment Relations Authority (No 3) [2023] NZEmpC 93.6 Decision under appeal, above n 1.7 At [58].The Employment Court's decision[15] After summarising the factual background, Judge Beck noted that, in hisapplication for judicial review, Mr Halse relied on three grounds:8a) first, that the ERA only had jurisdiction to consider disputes between partiesto an employment relationship and that he was not in any relevant employmentrelationship;b) second, that the ERA did not have jurisdiction to consider actions in tort andthat the claim brought by Progress to Health was an action in tort; andc) third, that the ERA had no jurisdiction to issue a claim against him. He assertedthat the claim was malicious and should not have been accepted it for filing.[16] The Judge noted an additional oral argument advanced by Mr Halse, namelythat the ERA did not have jurisdiction to make orders suspending his right to freedomof expression affirmed in s 14 of the New Zealand Bill of Rights Act 1990 (the Bill ofRights Act).9[17] The Judge then noted that Ms McLuskie, counsel for Progress to Health, hadsubmitted that Mr Halse's application for judicial review should be struck out becauseit disclosed no reasonably arguable cause of action and because it was frivolous andvexatious.10 She had argued that the ERA had jurisdiction under ss 134(2) and 161 ofthe Act to order penalties against any person who incites, investigates, aids or abetsany breach of an employment agreement, which, she argued, meant thatProgress to Health could make its claim against Mr Halse and CultureSafe.11[18] The Judge considered that there were a number of issues that needed to bedetermined — what was Mr Halse seeking to judicially review; was any review thatwas available to Mr Halse under s 194 of the Act restricted by s 184(1A); didMr Halse's application for judicial review disclose a reasonably arguable claim or8 At [12]–[15].9 At [16].10 At [17].11 At [18].cause of action; and was the application for review frivolous, vexatious or otherwisean abuse of process.12[19] After considering and summarising the relevant law, the Judge noted that s 194of the Act permits judicial review proceedings to be brought against any exercise of astatutory power by the ERA, but that s 184 places limits on this power of review.13She noted that s 184(1A) states that review proceedings may not be brought in relationto any matter before the ERA unless the ERA has issued a determination on all mattersrelated to the subject matter of the review application, that determination has beenchallenged in the Employment Court and that Court has made a decision on thechallenge.14[20] The Judge then turned to consider what Mr Halse was seeking to judiciallyreview. She noted that he initially appeared to be saying that the ERA had nojurisdiction to issue proceedings against him but, that following his oral submissions,it became clear that he was submitting that the ERA should not have acceptedProgress to Health's claim for filing and should not have proceeded with it once it wasfiled.15 The Judge turned to consider s 184(1A) of the Act and noted that the ERA hasnot as yet made a determination in relation to the matters underlying Mr Halse'sapplication for review. As a result, she considered that the Employment Court'sjurisdiction was constrained by s 184(1A).16 She found that Mr Halse's reviewproceeding could therefore not proceed and that it had to be struck out.17[21] For completeness, the Judge went on to consider whether or not the applicationfor review disclosed a reasonably arguable claim or cause of action.18 She referred tos 161 of the Act, noting that the ERA's jurisdiction is broad and that the claim againstMr Halse related to an alleged breach of s 134.19 She considered that even thoughMr Halse was not a party to any relevant employment agreement, he was nevertheless12 At [19].13 At [20]–[24].14 At [24].15 At [25]–[28].16 At [30].17 At [31].18 At [32].19 At [35]–[36].capable of being a "person" for the purposes of s 134(2) and also that there was nothingin the Act which supported Mr Halse's argument that the ERA should not permitproceedings to be brought against the representative of an employee.20 The Judgeobserved that the Act does not provide legal immunity to representatives and that eventhough non-lawyer advocates are unregulated, they are still subject to the law.21 Shenoted that the ERA has express jurisdiction to consider the imposition of penaltiesagainst persons when it is alleged that they have incited, instigated, aided or abetted abreach of an employment agreement and that Mr Halse's claim to the contrary wasuntenable.22[22] Similarly, the Judge concluded that the claims raised by Progress to Healthwere not claims in tort, but rather claims made pursuant to a specific provisioncontained in the Act. She considered that there were clear statutory provisions onwhich to base the claim and that Mr Halse's argument to the contrary was alsountenable.23[23] The Judge did not consider that Mr Halse's submission that Progress to Healthhad acted maliciously, meaning that the ERA had no jurisdiction to accept the claimfor filing, was tenable. She noted that Mr Halse could not point to any statutoryground for his assertion that the ERA could and/or should have refused to accept theclaim for filing.24 There was no evidence that the ERA had acted in bad faith.25 Norwas there any breach by the ERA of Mr Halse's right to freedom of expression underthe Bill of Rights Act.26 In summary, the Judge found that none of the grounds forreview proposed by Mr Halse were capable of succeeding and that each was clearlyuntenable.2720 At [37]–[38].21 At [38].22 At [39]–[40].23 At [41]–[42].24 At [44]–[48].25 At [50]–[51].26 At [52].27 At [56].The application for leave[24] The application for leave to appeal to this Court is brought pursuant to s 214of the Act. Relevantly, it provides as follows:214 Appeals on question of law(1) A party to a proceeding under this Act who is dissatisfied with adecision of the court (other than a decision on the construction of anindividual employment agreement or a collective employmentagreement) as being wrong in law may, with the leave of the Court ofAppeal, appeal to the Court of Appeal against the decision;and section 56 of the Senior Courts Act 2016 applies to any suchappeal.(3) The Court of Appeal may grant leave accordingly if, in the opinion ofthat court, the question of law involved in that appeal is one that, byreason of its general or public importance or for any other reason,ought to be submitted to the Court of Appeal for decision.[25] Mr Halse submitted that leave should be granted, because the statutoryprovisions at issue are crucial to the way in which the judicial review jurisdiction ofthe Employment Court is exercised. He submitted that it is debatable whether theJudge properly applied and interpreted the law and that the correct approach to suchapplications raises a matter of both general and public importance.[26] Ms McLuskie argued that no question of law arises and that Mr Halse does notmeet the relevant criteria for leave, because there is no identified question of law, letalone one of general or public importance.Analysis[27] It is difficult to discern what question of law Mr Halse seeks leave to raise onappeal.[28] In his amended application for leave to bring an appeal, Mr Halse asserted thatthe Employment Court erred in striking out his judicial review proceedings incircumstances where Progress to Health was "not privy to the contest between[Mr Halse] and the [ERA]", where Mr Halse had "a constitutional right" to judiciallyreview the ERA under s 27(2) of the Bill of Rights Act, and where Mr Halse "has astatutory protection from summary judgment applications under s 187(2) of the [Act]".[29] No seriously arguable question of law can arise from the involvement ofProgress to Health in the hearing before the Employment Court. It was a party toMr Halse's judicial review application. It had sought to strike out that application. Itwas entitled to be heard.[30] Similarly, there is no seriously arguable question of law arising out of theBill of Rights Act. Section 27(2) of the Bill of Rights Act confirms that every personwhose rights, obligations or interests are affected by a determination of any tribunalor other public authority has the right to apply for judicial review of that determination.But as the Judge found, the ERA has not as yet made a determination. Mr Halse wasseeking to review a procedural direction of the ERA requiring Progress to Health tofile a statement of problem against him if it wished to do so. That direction followedon from a request by Mr Halse's then representatives.[31] Section 184(1A) of the Act provides that no review proceedings under s 194may be initiated in relation to any matter before the ERA, unless inter alia the ERAhas issued a determination under ss 174A(2), 174B(2), 174C(3) or 174D(2) on allmatters relating to the subject of the review application between the parties to thematter. Section 174E(a) provides that a written determination provided by the ERA inaccordance with any of those sections must: state relevant findings of fact, state andexplain the ERA's findings on relevant issues of law, express the ERA's conclusionson the matters or issues it considers required determination in order to dispose of thematter, and specify what orders, if any, the ERA is making. Here, the proceduraldirection made by the ERA did not do any of those things. Rather, it was a casemanagement direction, made at the request of Mr Halse's representatives.[32] We do not understand Mr Halse's assertion in his amended notice ofapplication that he has a statutory protection from summary judgment applications.Mr Halse refers to s 187(2) of the Act. It provides that the Employment Court doesnot have jurisdiction to entertain an application for summary judgment. TheEmployment Court has not purported to do so. There is a distinct difference betweena summary judgment and a strike-out. A strike-out is usually determined on thepleadings alone, whereas summary judgment requires evidence.28 Summary judgmentis a judgment between the parties to the dispute which operates as an issue estoppel,whereas if a pleading is struck out as untenable as a matter of law the plaintiff is notprecluded from bringing a properly constituted claim.29[33] None of the various issues raised in the amended application for leave to appealraise a seriously arguable question of law, let alone a question of law of general orpublic importance, or a question which ought to come before this Court for some otherreason.[34] In his submissions filed in support of his application, Mr Halse sought to raisea host of additional issues. Those questions are said to include, but are not limited to,the following:a) Is a judicial review proceeding the same as an appeal proceeding?b) Can a collateral party to a judicial review proceeding, who is not the statutorydecision maker, defend the processes followed by the public authority decisionmaker?c) In the judicial review proceeding, is the public body decision maker requiredto defend the process it followed in reaching its decision by filing a statementof defence?d) Is the ERA a tribunal?e) Does s 10(2) of the Judicial Review Procedure Act 2016 exclude a tribunal orcourt from the mandatory provisions of s 10(1) in relation to the filing of astatement of defence?28 Westpac Banking Corp v M M Kembla New Zealand Ltd [2001] 2 NZLR 298 (CA) at [60].29 At [60].f) Does r 15.1 of the High Court Rules 2016 override the provisions of theBill of Rights Act, the Judicial Review Procedure Act, the EmploymentRelations Act and the Employment Court Regulations 2000?g) Does r 15.1 apply to judicial review proceedings or does only pt 5 of theHigh Court Rules apply?h) Is a strike-out of an entire judicial review proceeding, before a substantivehearing has been held, a summary judgment?Mr Halse goes on to refer to a large number of statutory and regulatory provisions andthen submits that judgments of the Employment Court demonstrate "conceptualconfusion". No convincing account of the alleged conceptual confusion is given.[35] We do not consider that any of these alleged errors is seriously arguable, or thatany of them raises any question of general or public importance. The majority of thequestions raised are the subject of settled authority. Others are academic or moot.Some are not raised by the Employment Court's judgment and are tendentious andargumentative. None of the questions is seriously arguable.[36] Mr Halse's application for leave to appeal the decision of theEmployment Court is declined.Result[37] The application for leave to appeal the decision of the Employment Court isdeclined.[38] The applicant must pay costs to the second respondent for a standardapplication on a band A basis with usual disbursements.Solicitors:Crown Law Office | Te Tari Ture o te Karauna, Wellington for First RespondentTompkins Wake, Hamilton for Second Respondent