The problem is not confined to advocates

There are legitimate concerns about weak claims, disproportionate settlement positions and poor advocacy. Those concerns should be addressed. But they are not unique to employment advocates.

Employment Court litigation can also become unnecessarily expensive when lawyers, barristers or other representatives use weak interlocutory applications, misunderstand the available procedure, pursue relief in the wrong way, or allow collateral disputes to overwhelm the substantive case.

My position is straightforward: representatives should be judged by the quality, proportionality and procedural competence of their work. Professional title should not insulate anyone from that scrutiny.

Joyce v Ultimate Siteworks Limited

Joyce is a useful example because the litigation generated a substantial interlocutory history before the substantive challenge was resolved. I remain of the view that aspects of the opposing representatives' approach were unnecessarily combative and, at points, procedurally poor.

Ultimate Siteworks first sought security for costs. That application failed because the Court was not satisfied that the statutory basis for requiring security had been established. The judgment is here: Joyce v Ultimate Siteworks Limited [2023] NZEmpC 85.

There was then a partial strike-out application concerning the way Mr Joyce's dismissal claim had been pleaded. In my view, that was a weak strike-out point and an unnecessary use of interlocutory procedure. The resulting judgment is here: Joyce v Ultimate Siteworks Limited [2023] NZEmpC 153.

There were also disputes about disclosure and about the correct procedural route for compliance or sanctions relief. My position was that relief of that kind had to be pursued through the procedure actually available for it, rather than simply being added to an existing challenge in a procedurally defective way.

The later record matters. Ultimate Siteworks had mixed success across the interlocutory matters. Its sanctions application did not succeed, and an earlier request understood by the Court as being in the nature of contempt orders against me was withdrawn. In the later costs judgment, the Court treated the interlocutory costs position as neutral and found that the representative conduct complained of did not appear to have increased Ultimate Siteworks' costs.

The costs and conduct judgment is here: Joyce v Ultimate Siteworks Limited [2024] NZEmpC 204.

The Court criticised aspects of my communications. Those criticisms are part of the record. I disagree with aspects of the characterisation and with the disproportionate significance later placed on my conduct. They should not obscure the fact that the litigation was acrimonious in both directions or the procedural history that contributed to its cost and complexity.

Mr Joyce ultimately lost his substantive challenge. The judgment is here: Joyce v Ultimate Siteworks Limited [2024] NZEmpC 64. The later costs award was $12,614.83 for the substantive proceeding; the interlocutory costs position was treated separately. That is a more accurate account than reducing the litigation to criticism of one representative's communications.

Menzies v Corrigan

Menzies provides a different example. The underlying employer company was in liquidation, yet the compliance process ultimately produced orders directed personally at its former director, including interest and costs. The resulting litigation raised difficult questions about separate legal personality, compliance powers, liquidation and the practical ability to challenge Authority orders.

The Authority determinations included: Corrigan v Prime Focus Security Limited [2023] NZERA 125, [2023] NZERA 253, [2024] NZERA 448, and [2024] NZERA 556.

Mr Menzies challenged the compliance outcome and sought a stay. The Court recognised that the case raised complex issues, including the position of the company and the reach of the employment jurisdiction's compliance powers. The stay was granted subject to substantial payment conditions. The judgment is here: Menzies v Corrigan [2025] NZEmpC 22.

One procedural dispute concerned attempts to place Employment Court sanctions within the existing challenge. I opposed that approach. The Registry subsequently advised that a separate statement of claim was required for the compliance relief being discussed. In my opinion, attempting to pursue that relief through the existing challenge was a material procedural error and an example of procedurally incompetent case handling.

There were also disputes about document provenance and non-party discovery. The Court later took a strongly adverse view of my non-party discovery application and ordered costs against me personally. That judgment exists and I do not seek to conceal it. I do not accept that bringing the application was itself procedurally incompetent. My position was, and remains, that there were legitimate questions about the provenance and completeness of material passing through the opposing representatives' office and that seeking discovery to investigate those matters was properly arguable. I continue to disagree with aspects of the Court's assessment and do not regard the personal costs order as resolving those underlying questions.

The relevant costs judgments are: Menzies v Corrigan [2025] NZEmpC 107 and Menzies v Corrigan [2025] NZEmpC 186.

I regard the personal costs order against me as wrong. The discovery application was brought on Mr Menzies' instructions for a genuine evidential purpose in a challenge the Court itself had already said was brought for good reasons and in good faith and raised complex issues. At the same time, the other side was expressly seeking imprisonment for up to three months, a fine of up to $40,000 and sequestration of Mr Menzies' property. Against that background, I do not accept that losing an interlocutory discovery application justified treating his representative as personally liable for costs. Read the full chronology and my submissions.

Those procedural outcomes did not make the underlying company-law, accounting and compliance questions disappear. They were subsequently raised in further proceedings. My more detailed account of that history is here: The public record: Joyce, Menzies and commentary about employment advocates.

What these cases demonstrate

An adverse procedural outcome is not evidence of incompetence by itself. Employment Court procedure can involve genuinely contestable questions, and representatives must sometimes advance applications that are properly arguable but ultimately unsuccessful. That is part of litigation.

The distinction I draw is between an arguable application that fails and a procedural step that lacked an available legal route, an adequate basis, or reasonable proportionality from the outset. My criticism in Joyce and Menzies is directed at particular steps that I say fell into the latter category. I do not regard applications I advanced for my clients as incompetent merely because the Court ultimately disagreed with them.

Those failures have the same effect whether the representative is an advocate, solicitor or barrister. They consume Court time, increase client cost, delay the substantive dispute and make settlement harder.

Examples of procedural issues that deserve closer scrutiny across the profession include:

• applications pursued without an adequate factual or legal basis;
• applications seeking relief that is not available through the procedure being used;
• interlocutory applications disproportionate to the issue actually requiring determination;
• disclosure disputes pursued before reasonable attempts have been made to identify and narrow the real issue;
• sanctions or representative-costs applications used where the necessary legal threshold is not properly engaged; and
• avoidable failures to comply with filing, service or case-management requirements.

What should change

The Employment Court should publish accessible practical guidance on recurring procedural issues. That could include security for costs, stays, strike-out, disclosure, non-party discovery, compliance applications, sanctions, representative costs, joinder, contempt-type allegations and changes of representation.

Before filing interlocutory material, representatives should be expected to identify:

• the legal basis for the application;
• why the relief sought is actually available;
• why the application is proportionate to the dispute;
• what has been done to resolve or narrow the issue without Court involvement; and
• whether the application will delay determination of the substantive case.

Representatives should be able to articulate those matters before invoking the Court's interlocutory processes. That does not mean the legal position must be certain. Novel or contested procedural questions sometimes require determination by the Court, and an application does not become improper merely because the Court ultimately rejects the argument advanced. Better early triage would also allow plainly defective or premature procedural steps to be dealt with before they grow into expensive side disputes.

Judicial Settlement Conferences

I support greater use of Judicial Settlement Conferences. I have attended conferences that were difficult and conferences that were straightforward, but both experiences reinforced the value of direct judicial settlement intervention. A difficult conference can still produce a worthwhile settlement.

At present, Judicial Settlement Conferences ordinarily depend on the parties' willingness to participate. In my view, the Court should have greater ability to require attendance where a conference has a realistic prospect of resolving or materially narrowing the dispute.

Conclusion

Regulation directed only at employment advocates would miss an important part of the problem. Procedural incompetence causes the same cost and delay whether the representative is an advocate, solicitor or barrister.

The answer is not to assume that one professional label guarantees competence and another does not. Representatives should be judged by the quality of the work they actually perform: whether they understand the jurisdiction, use the correct procedure, narrow disputes where possible, and avoid disproportionate interlocutory litigation.

Better guidance, earlier triage and consistent expectations of procedural competence would improve the system for everyone using it.