Barclay defends himself against Kiwibuild management complaints

Stephen Barclay, has defended himself over complaints of his behaviour as head of KiwiBuild.

NZ Herald:  Former KiwiBuild boss Stephen Barclay resigned amid ‘leadership complaints’

The former head of KiwiBuild Stephen Barclay resigned amid an employment investigation that revealed complaints from employees, contractors and stakeholders regarding his “leadership behaviour”.

Ministry of Housing and Urban Development Chief Executive Andrew Crisp today shed more light on the saga.

The reason for Barclay’s resignation on January 18 had previously been unknown, aside from that it was an “employment dispute”.

“The allegations reflected behaviours that are not consistent with standards expected of senior public servants,” said Crisp in a statement.

He said the alleged conduct related to Barclay’s treatment of employees, contractors and stakeholders. They were not linked to the implementation of the KiwiBuild programme.

“I commenced an employment investigation into those allegations. While the investigation was ongoing, Mr Barclay resigned.”

There was no exit payment or confidential deal reached with Barclay, Crisp said, adding that Barclay resigned with immediate effect and received no payment in lieu of notice.

A spokesman for Housing Minister Phil Twyford said as Barclay’s former employer, Andrew Crisp is best placed to comment on his departure and it’s not appropriate for Minister Twyford to comment on an employment matter regarding a public servant.

But Barclay has responded – Stuff: Former KiwiBuild boss Stephen Barclay suing Government over departure, says he was on track to meet first year goal

Barclay put out a statement following the news on Monday pushing back at the complaints. He said divulging the existence of the complaints was itself a breach of privacy.

The statement also revealed that Barclay is pursuing a constructive dismissal case – essentially alleging that he was forced to resign and taking the Government to court over it.

“Mr Barclay was employed by MBIE from July to October 2018 when the KiwiBuild programme was transferred to the Ministry of Housing and Urban Development. During this period, there were no issues raised about his performance, management style or leadership,” a spokeswoman for Barclay said.

“Within two weeks of the KiwiBuild programme moving to MHUD, he can confirm there were a small number of complaints from individuals who held a close relationship to the CEO, Mr Crisp. The nature of the complaints related to Mr Barclay’s direct management style and dealings with certain individuals.”

“They were entirely linked to the implementation of the KiwiBuild programme which was Mr Barclay’s only remit. His commitment was to execute against the targets of the KiwiBuild programme, and he was attempting to do this at pace.”

“As soon as Mr Barclay was informed of the complaints, he responded to them within the week, requesting the complaints be independently investigated and additional people relevant to the complaints be questioned. These requests were repeatedly denied and Mr Barclay was suspended from his role for more than two months.”

“This made his position untenable and led to him resign in his and the KiwiBuild programme’s best interests. At the point in which he was suspended, the number of KiwiBuild homes were on track to meet the Year One target.”

And Barclay is continuing his defence this morning.

Whether complaints against him and his dismissal were justified or not, this looks like another nail in the dysfunctional KiwiBuild coffin.

Another Nottingham court failure highlights failures of courts

Dermot Nottingham keeps clocking up failures in courts. The latest is in the Supreme Court, which dismissed an extension of time to appeal a prior appeal.

There is some history going back over four years (with related proceedings that go back to events in 2009). The judgment being appealed: NOTTINGHAM v DISTRICT COURT AT AUCKLAND [2018] NZCA 75 [28 March 2018]:

[1] On 27 April 2017 Gilbert J granted the second respondents’ application to strike out Mr Nottingham’s statement of claim in a judicial review of the District Court at Auckland alleging a criminal conspiracy to pervert the course of justice. The Judge ruled that the claim was replete with scandalous and outrageous allegations without any attempt having been made to provide supporting factual particulars, almost all of the relief sought could not be granted in the context of an application for judicial review and that the flaws in the claim were of such a fundamental character that they could not be saved by amendment.

[2] Mr Nottingham did not file a notice of appeal of that judgment within the required time…

Background

[3] In March 2014 Mr Nottingham commenced a private prosecution in the Auckland District Court against the second respondents. Following a Judge alone trial extending over 17 sitting days, on 20 June 2016 Judge Paul dismissed all charges, acquitted the second respondents and made an order that the appellant pay costs totalling $117,000. Mr Nottingham’s application for leave to appeal pursuant to s 296 of the Criminal Procedure Act 2011 was declined by Davison J.

[4] The prequel to the criminal proceedings were complaints by both Mr Nottingham and Mr Honey to the Real Estate Agents Authority which culminated in a decision of the Real Estate Agents Disciplinary Tribunal,
an appeal to the High Court and a further appeal to this Court.

The prequel goes back a long time – to 2009.

[5] On 12 September 2016 Mr Nottingham commenced this judicial review proceeding alleging that Judge Paul had conspired with court staff and with the second respondents to defeat the course of justice in order to wrongfully acquit the second respondents of the criminal charges Mr Nottingham had brought against them in the private prosecution.

[8] In the present case the delay of six months is substantial. While the notice of application states there are reasonable grounds including medical reasons for the delay, there is nothing in the extensive materials filed in support of the application that provides any detail of such a reason.

[9] Indeed it is difficult to understand how it could credibly be said that Mr Nottingham was precluded on medical grounds from lodging a simple notice of appeal within the 20 working day period provided in the Court of Appeal (Civil) Rules when he was actively involved in other litigation. On 15, 22 and 23 May 2017 he appeared in the High Court at Auckland in support of the application for leave to appeal heard by Davison J. He also appeared in the High Court on 12 June 2017 in support of an appeal from the District Court at Auckland finding him in contempt of Court for wilfully insulting a judicial officer.

[10] In Almond v Read the Supreme Court stated that a decision to refuse an extension of time based substantially on the lack of merit of a proposed appeal should be made only where the appeal is clearly hopeless. One of the examples given of a hopeless appeal was where there was an abuse of process such as a collateral attack on issues finally determined in other proceedings. We consider that Mr Nottingham’s judicial review proceeding is an example of such a collateral attack.

[11] Mr Nottingham’s private prosecution was dismissed. An application for leave to appeal was declined. An application under s 303 to this Court is still extant. In those circumstances we consider the nature of Mr Nottingham’s judicial review proceeding offends the general rule of public policy explained in Hunter.

[12] The implications of this collateral attack by a still further litigation process has obvious relevance to the third and fourth of the Almond v Read considerations.

[13] Having regard to all of these factors we conclude that the interests of justice plainly require that we should decline to exercise the discretion to extend time under r 29A for the filing of an appeal against the judgment of Gilbert J.

Result

[14] The application for an extension of time to appeal is declined. The appellant must pay the second respondents costs for a standard application on a band A basis with usual disbursements.

The latest judgment from the Supreme Court dated 20 November 2018 – Nottingham v Auckland District Court and Honey, Honey and Taka.

[1] Mr Nottingham wanted to appeal to the Court of Appeal against a decision of the High Court. He did not file his notice of appeal within time so applied for an extension of time. The Court of Appeal declined to grant an extension of time. Mr Nottingham seeks leave to appeal out of time to this Court against that decision.

[4] The principles applicable to the Court of Appeal’s decision whether or not to grant an extension of time were set out recently by the Court in Almond v Read. Mr Nottingham does not challenge those principles; rather, he seeks to challenge their application by the Court of Appeal to the particular facts of this case. No point of general or public importance accordingly arises. Nor does anything raised by Mr Nottingham give rise to the appearance of a miscarriage of justice. We add that his delay in filing in this Court is unexplained.

[5] For these reasons the application for an extension of time to appeal is dismissed. The applicant is to pay costs of $2,500 to the second respondents.

So a simple judgment, but again using court time and imposing further time and costs on the respondents after an extensive amount of litigation over nearly a decade.

In 2015 Nottingham told me that if ongoing litigation took him ten years he was up for it.

This judgment follows a similar judgment and a similar award of costs earlier this month: DERMOT GREGORY NOTTINGHAM v HEMI TAKA, MARTIN RUSSELL HONEY AND STEPHANIE FRANCIS HONEY [2018] NZSC 102 [5 November 2018]

Costs are supposed to be a deterrent to frivolous, vexatious and hopeless litigation, but they don’t deter Nottingham, who has clocked up hundreds of thousands of dollars in costs awarded against him which led to him being adjudicated bankrupt in September – see HONEY v NOTTINGHAM [2018] NZHC 2382 [11 September 2018].  I was involved in that proceeding and am owed court awarded costs by Nottingham for another failed private prosecution.

I met with the Safe and Effective Justice Advisory Group on Monday to have my say, making suggestions on what I want from the criminal justice system and and how we might make it better. This focused on much of what is again highlighted in this judgment – successive courts have allowed Nottingham to proceed through multiple stages of litigation, incessantly  breaching laws, court rules and timetables, and not paying costs that are supposed to deter these sorts of abuse of the judicial system.

The Advisory group will make recommendations to the Minister of Justice next year, and then it is over to the Minister, Cabinet and Parliament as to what they change.

As per what is highlighted above, requiring judges to enforce procedural legislation and timetables could make a significant difference in limiting vexatious and hopeless litigation.