A recent case is a good reminder to choose advocates and lawyers carefully. Advocates who are members of the Employment Law Institute of New Zealand and lawyers are bound by certain ethical rules, while others are not.
At the end of the day, judges have broad discretionary powers when it comes to awarding costs – including considering any dirty tactics.
Ultimate Siteworks case
Ultimate Siteworks Limited were successful in defending a challenge in the Employment Court (Court) by a former employee. In October 2024, Judge Holden issued the Court’s decision regarding costs.
The decision concerned:
- Whether Mr Joyce (the employee) should contribute to the costs of Ultimate Siteworks; and
- Whether the conduct of Mr 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 Mr 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 1.21am on the day the substantive hearing was scheduled to commence; and
- posting one-star Google reviews of Mr Fleming (lawyer for Ultimate Siteworks) and of Ultimate Siteworks’ previous advocate, using multiple accounts.
Judge Holden held that the conduct of Mr Anderson was not relevant to the decision regarding costs, due to:
- The lack of “sufficient connection” between the alleged poor behavior of Mr Anderson, so that it would be just to make Mr Joyce responsible for that conduct through a costs award.
- The impact of Mr Anderson’s actions was principally felt by Mr 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 Mr 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 Mr Anderson been a lawyer, or a member of the Employment Law Institute or 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.”
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.
Decision
While Mr Anderson’s conduct was deemed not relevant for the decision about costs, the Court did hold that Mr 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.
Comment
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 (ELIZ) 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.
