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 regulation, fees, and incentives.

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sought orders that were described as being "in the nature of contempt orders" against me, but that request was withdrawn, and the conduct issues were dealt with in the costs context.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.

Regulation of employment advocates: what I agree with, and what I reject

I am not opposed to regulation in principle. I am opposed to regulation that is:

• designed by incumbents to eliminate competitors, rather than protect clients and the system;
• enforced behind closed doors with no transparency and no meaningful accountability;
• used as a weapon in live litigation (or threatened to pressure withdrawal), rather than a genuine quality-control mechanism.

If New Zealand is going to regulate lay advocates, it must be evidence-based and proportionate. It should preserve access to representation for people who cannot afford traditional lawyer billing, while setting clear standards for communications, confidentiality, client care, and conflicts.

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) .

As one example of why "industry self-regulation" can fail: when an advocate dies, clients can be left stranded. A regulator needs hard obligations and real operational capability to ensure continuity of representation (or at least orderly transfer of files).

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 .

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) .

Complaints, accountability, and transparency

I also 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, and (3) what regulatory response would actually fix it.

I have also seen first-hand how complaints systems can fail in practice. That includes situations where complaints are not properly investigated, or are "resolved" informally with no meaningful outcome. If regulators want public trust, they need auditable processes and transparency around outcomes (without breaching privacy).

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.