Rebuttal to RNZ interview with Graeme Colgan (former Chief Judge, Employment Court)

RNZ ran a Nine To Noon story titled "Lay advocate's abusive conduct prompts calls for regulation" (15 November 2024). It referenced the Employment Court costs judgment in Joyce v Ultimate Siteworks Ltd [2024] NZEmpC 204 and included comments from Graeme Colgan. This page sets out my response, and my view on why the comments do not justify new advocate regulation.

My rebuttal video

What the Joyce costs judgment was actually about

The costs decision in Joyce v Ultimate Siteworks Ltd [2024] NZEmpC 204 was primarily a costs assessment exercise. Ultimate Siteworks sought costs based on scale and raised (among other things) conduct concerns about me as Mr Joyce's representative. In the end:

• Ultimate Siteworks initially sought orders that were described as being "in the nature of contempt orders" against me, but that request was withdrawn, and the conduct issues were dealt with in the costs context.
• The Judge recorded that the conduct did not appear to have increased Ultimate Siteworks' costs, and emphasised that costs are compensatory, not punitive.
• The judgment did not find me in contempt of Court.

My separate write-up of the decision (with affidavits and submissions) is here: Joyce v Ultimate Siteworks - advocate and lawyer conduct .

A plain statement on my conduct in that case

I am direct and blunt. Sometimes I am too blunt. In that matter, I accepted that some communications were inappropriate. I also do not pretend the litigation experience is always polite on either side.

Equally, it is important to be accurate about what was (and was not) decided: I was not "kicked off" the case, and I was not found in contempt of Court. Those outcomes were sought by opposing counsel but did not occur.

There was also a substantive dispute about evidence and mitigation (job-searching) issues. I repeatedly advised that there were no documents, phone calls, or text messages showing our client searching for work before a certain point. When that position was not accepted and the argument kept being pushed anyway, I became frustrated and said things I should not have said. That is the context - not an excuse.

Why new advocate regulation is not justified

I do not support new regulation of employment advocates. I support transparency, proper client authority, accurate legal work, fair settlement advice, and consequences for misconduct. But those aims do not require licensing, registration, compulsory membership, a statutory code, a new regulator, or a new complaints body.

The existing system already has tools to deal with poor conduct, costs, hopeless claims, misleading material, lack of authority, and misuse of process. MBIE should not create a new regulatory regime simply because employer-side commentators dislike no-win-no-fee representation or dislike employees having practical representation.

If there is a genuine problem, it should be proved by independent empirical evidence showing widespread advocate-specific consumer harm that existing powers cannot address. Anecdotes, media outrage, and competitor complaints are not enough.

Why I say ELINZ is not suitable to regulate advocates

ELINZ is a membership organisation. In my experience, it is not structured to be a fair and independent regulator of a competing segment of the market. I have set out examples and supporting material in the regulation discussion here: Submissions on regulation of employment advocates (PDF) .

The ELINZ issue is not a reason to create a new regulator. It is a reason not to hand control of advocate representation to a membership body, competitor group, or employer-side lobby. Non-binding public guidance and client education are safer than compulsory membership or a regulator designed by market participants.

No win no fee: incentives, risk, and why the "quick low settlement" argument is too simple

Graeme Colgan suggested there is a strong incentive for no-win-no-fee advocates to push early, low settlements. That argument is too simplistic. The reality is that settlement advice is a balancing exercise, and the variables are not theoretical - they affect real people's lives.

When we advise on settlement, we consider (at a minimum):

• lost wages and likely future wage loss;
• compensation ranges in comparable cases;
• risk factors (including credibility issues and potential contributory conduct reductions);
• time to hearing (and the impact on the client);
• the costs of taking a case all the way versus an early resolution;
• enforcement and collection risk (getting a settlement is not the same as getting paid).

Some cases should settle early. Some cases should not. This is not unique to advocates - lawyers face the same dynamics. What matters is whether the representative gives frank advice, documents it, and lets the client decide with eyes open.

On the settlement process and payments, including s 149 settlements and invoicing issues, see: Payment on resolution of problem and advocates' GST invoices .

The contradiction in the anti-advocate argument

There is also a contradiction between this criticism and later employer-side lobbying. Graeme Colgan criticised no-win-no-fee advocates on the basis that they may supposedly settle cases too quickly and too cheaply. EMA's later public argument points the other way: it says advocates are delaying, escalating, inflating demands, and refusing to settle.

Those arguments cannot be treated as a coherent class-wide case for regulation. One says advocates settle too early. The other says advocates do not settle early enough. Both things may occur in isolated cases, but that proves only that individual representative conduct must be assessed individually. It does not prove that employment advocates as a class should be regulated.

I have dealt with that contradiction in more detail here: EMA's complaints about employment advocates are not a serious case for regulation.

Client sign-up and our terms of engagement

A lot of commentary assumes advocates trick clients or hide the ball. That is not how we operate. Our terms are fair, reasonable, and transparent. Clients are told clearly:

• we are advocates, not lawyers;
• what work we do (and what we do not do);
• how fees are calculated, including no-win-no-fee mechanics;
• what happens if an employer pays money to the client directly;
• the client can ask questions and take time before signing.

I demonstrate the sign-up process in my video above, including how we explain fees and risks.

The Shine Lawyers "No Win, No Fee No Nonsense" dispute

This also came up in public commentary about our work. Shine Lawyers filed an IPONZ revocation proceeding relating to trade mark branding and then withdrew. My summary of that dispute is here: Shine Lawyers v No Win No Fee Kiwi Limited - IPONZ revocation proceeding (discontinued) .

Accountability without a new regulator

I reject vague claims about "bad advocates" that are not supported by concrete examples or data. If someone says the system is being harmed, they should be prepared to show: (1) what pattern they are alleging, (2) how often it happens, (3) whether it is advocate-specific, and (4) why existing powers cannot deal with it.

Accountability does not require a new regulator. It can come from existing costs powers, strike-out powers, compliance orders, case-management directions, adverse findings, professional consequences for lawyers where lawyers are involved, and ordinary civil remedies where a client has a real contractual or negligence complaint.

Why low-level resolution matters

The employment law system functions best when parties resolve problems early and fairly. That is good for employees, employers, and the wider economy. Early resolution does not mean "cheap and nasty" - it means proportionate outcomes that reflect risk and likely remedy ranges.

Advocates often act where employers (and their lawyers) will not negotiate in good faith until the Authority or Court process forces them to. That pressure point is not a flaw - it is a feature of how disputes actually resolve in the real world.

If you want to discuss a no-win-no-fee employment matter, use the Employee Case Form on this site.