Joyce v Ultimate Siteworks Limited [2024] NZEmpC 204 - costs, interlocutory outcomes and representative conduct

Joyce v Ultimate Siteworks Limited [2024] NZEmpC 204

Joyce v Ultimate Siteworks Ltd [2024] NZEmpC 204 was a costs judgment following Mr Joyce's unsuccessful challenge in the Employment Court. It has since been cited publicly for the Court's criticism of some of my communications as Mr Joyce's advocate. That criticism is part of the judgment. It is not the whole judgment, and I do not agree with every characterisation of my conduct or with the disproportionate weight that has sometimes been placed on it since.

The procedural record is more mixed. Ultimate Siteworks had mixed success on four interlocutory matters, failed in its application for sanctions, and initially sought orders which Judge Holden understood to be in the nature of contempt orders against me before that request was withdrawn. The Court also found that the conduct complained of did not appear to have increased Ultimate Siteworks' costs and did not provide a basis for allowing costs that otherwise would not have been ordered.

What the costs judgment actually ordered

Ultimate Siteworks calculated category 2B scale costs of $24,748 for the substantive proceeding. The judgment records, however, that its actual costs were below scale and that it sought an overall award of $15,370.29, together with $675 for the costs application.

The Court ultimately ordered Mr Joyce to pay $12,614.83, being Ultimate Siteworks' actual costs for the substantive matter only. The Court excluded the interlocutory matters from that award and made no order for costs on the costs application itself.

That order is part of the record. Recording it is not a statement that I agree with every part of the Court's reasoning or with the way the litigation has subsequently been portrayed.

The interlocutory record was mixed

The judgment expressly records Ultimate Siteworks' mixed success on four interlocutory matters and its lack of success on the sanctions application. Later in the judgment, the Court found the costs position on the interlocutory matters to be neutral.

• Ultimate Siteworks' application for security for costs was unsuccessful.
• Its strike-out application was unsuccessful.
• Ultimate Siteworks succeeded in obtaining disclosure orders.
• Mr Joyce obtained a stay, although it was conditional on payment into Court and that payment was not made.
• Mr Joyce succeeded on the other two interlocutory matters identified by the Court.
• Ultimate Siteworks failed in its application for sanctions for breach of the compliance order.

In my view, that history matters when assessing later commentary about the way the case was conducted. I remain critical of aspects of the opposing representatives' procedural approach. In particular, I regard the unsuccessful sanctions application and the initial pursuit of contempt-like orders which were later withdrawn as unnecessarily combative procedural choices. The Court itself did not treat the interlocutory history as a one-sided success for Ultimate Siteworks.

The conduct issue and costs

Ultimate Siteworks placed significant emphasis on allegations concerning my conduct. Judge Holden criticised aspects of my communications. I do not adopt the Court's characterisation as my own, and I do not accept that the later public portrayal of the issue fairly reflects its significance to the actual costs decision.

During the proceeding I apologised for particular communications. I would express some communications differently now. That should not be treated as an admission that the broader allegations or later descriptions accurately capture the overall nature or effect of what occurred.

For the costs question, the Court made three important findings. First, it was not clear that there was a sufficient connection between the alleged conduct of the representative and Mr Joyce to make him responsible for that conduct through costs. Secondly, the impact identified by the Court was principally on opposing counsel rather than on Ultimate Siteworks itself. Thirdly, the conduct did not appear to have increased Ultimate Siteworks' costs and did not justify costs that otherwise would not have been ordered.

The Court therefore did not uplift the costs award because of my conduct. It also made no costs order on the costs application, observing that the conduct issues sat outside the issue of costs and had taken up most of the time and energy on that application.

The litigation was acrimonious on both sides

I have never accepted a one-sided account in which the conduct of the opposing representatives disappears from the history. The judgment itself records my position that Mr Fleming and Ultimate Siteworks' previous representative were not blameless and that I had been talked over and shouted at. I remain of the view that aspects of the opposing approach were unnecessarily combative and procedurally poor.

That does not mean every allegation I raised about opposing representatives was determined in my favour. It means that the costs judgment should be read for what it actually decided. It recorded a difficult and acrimonious piece of litigation, mixed interlocutory outcomes, an unsuccessful sanctions application, a withdrawn contempt-like request, criticism of some of my communications, and a finding that those communications did not appear to increase the employer's costs.

What Joyce does not establish

• There was no contempt finding against me.
• I was not removed as Mr Joyce's representative.
• The Court did not find that the conduct complained of increased Ultimate Siteworks' costs.
• The Court did not award additional costs because of that conduct.
• The Court found the costs position on the interlocutory matters to be neutral.
• Ultimate Siteworks' sanctions application was unsuccessful.

Those distinctions matter. Criticism of particular communications should be recorded accurately, but it should not be inflated into findings the Court did not make or used to erase the procedural conduct and unsuccessful applications of the other side.

Primary source

Readers can review the Employment Court costs judgment directly. The relevant discussion of representative conduct is at [11]-[28], the interlocutory costs position at [30]-[36], and the final costs orders at [39]-[41].