The lost cause of Lynne Snowdon
In the end, it was a rout. After a 12-year, multimillion-dollar battle that began with a disagreement over newsroom budgets, former Radio New Zealand journalist Lynne Snowdon conclusively lost her Employment Court case last week.
She'd claimed RNZ treated her badly and then dismissed her unfairly. She'd claimed senior executives committed financial fraud then conspired to cover it up.
Along the way she'd made sundry complaints to the police, the Serious Fraud Office, the High Court, the Ombudsman, the Audit Office, the Commerce Select Committee, the Court of Appeal. She had invited a judge to recuse (disqualify) herself because she was biased.
But on Tuesday, the music stopped. Judge Tony Ford, of the Employment Court in Wellington, delivered a devastating written judgment based on an epic hearing that started last September and finished in February.
The judgment crushed each of Snowdon's three main claims. Her employment grievances weren't justified. Her dismissal had been fair. There had been no fraud whatsoever. In some cases the "evidence" that was meant to have supported her claims was non-existent.
Before spelling out his conclusions, though, Ford counted up some dreadful numbers. In the leadup to a normal employment hearing, he wrote, there might be a maximum of two preliminary (or "interlocutory") hearings to figure out some procedural issues. This case had involved 23.
It is almost unheard of for the rulings from those minor hearings to be appealed. Snowdon appealed six of them. The case involved thousands of pages of evidence and exhibits. The hearing was delayed for years, and when it finally happened it took 47 days. It concerned events that mainly occurred over a decade ago. Millions have been spent or are owed.
How, asked Ford plaintively, could a relatively straightforward employment dispute "spiral out of control and result in such an appalling set of statistics"?
It's a pretty good question.
The speck of grit at the centre of this pearler of an employment wrangle was a disagreement over staff budgets.
In 1994, Snowdon had been wooed home from her job with the BBC in London by RNZ's then chief executive, Sharon Crosbie. By 2002, she was running the newsroom but, after the staff budget repeatedly blew out, Crosbie accused her of mismanagement. In January, Snowdon went on paid sick leave. She was dismissed in 2005 by Crosbie's successor, Peter Cavanagh.
A Sunday Star-Times article from early 2003 shows RNZ staff had sharply divergent views of the matter. Snowdon's backers saw her as a plucky supporter of quality news, undermined by savage cost-cutting and Crosbie's divisive management style. Crosbie's backers said Snowdon had been given ample opportunities to fix things and had failed.
With each passing year, though, the question became less whether Snowdon had a legitimate grievance in the first place (though Judge Ford concludes that she did not), and more along the lines of "What on earth is she doing?" Her costs have been reported as exceeding $3.5m.
What happens, says Victoria University law professor Gordon Anderson, is if people are dismissed and they believe they're not at fault, they "get extremely pissed off". At fault or not, though, Anderson recommends pragmatism.
"I tend to say, 'If you win you'll probably get a few thousand, so do you want to f... your life up for three years, or just put it behind you and move on?'
"But there are some people who just get obsessed. They are absolutely convinced of their case, and somehow think you'll get justice if you keep going to court.
"But there's a Billy Bragg line - 'This isn't a court of justice son, this is a court of law' - which people tend to forget."
Reading the judgment, it appears Snowdon isn't the only person who might be accused of getting obsessed. In the background, always, has been the figure of her husband, John Hickling, a lawyer. In 2002, Hickling helped his wife prepare a financial analysis of her newsroom's budget problems, as she argued with Crosbie over who was to blame.
In a 2005 affidavit he said he'd already spent 1800 hours preparing documents for interlocutory proceedings. At the time, the case's then-judge Coral Shaw (now retired), suggested Hickling was over-reaching himself: "He purports to reach a number of conclusions on subjects which I find are issues for the court to decide."
Judge Ford, too, took issue with Hickling's eagerness. He said Hickling's input into the evidence of chartered accountant David Vance (a witness for the fraud part of the hearing) meant Vance's status as an independent expert witness was "hopelessly compromised".
Worse still, while Vance was being cross-examined, he revealed that he had been phoned the previous evening by Hickling, who had started advising him on what to say on the stand, before Vance hastily cut him off. Unsurprisingly, Ford rejected Vance's evidence.
Last week, when the Star-Times called Snowdon's cellphone, it was Hickling who answered, giving a "no comment" both from himself and on Snowdon's behalf. When asked if Snowdon was still planning to pursue her defamation action, which had been adjourned in the High Court pending the result of this Employment Court case, Hickling said "everything is under review".
Oh yes - there's a defamation action in the wind too. Back in 2002, Crosbie hired accountancy firm Deloitte to review the troubled newsroom's operations. According to Snowdon, that report, which was later the subject of a newspaper article, "wrongly identified" her as the cause of the newsroom's problems, so in 2005 she filed defamation proceedings against RNZ, Deloitte and Crosbie, claiming damages of $2.65m in total.
That's not the only legal challenge to have sprouted from unlikely soil. In 2003, RNZ offered Snowdon a financial settlement that included a standard clause asking her to withdraw accusations she was then making against RNZ under the protection of whistleblowing legislation. Snowdon said she was "disgusted" and "repulsed" by the clause, and approached the police, accusing RNZ of "improper interference" with her whistleblowing. Police took no action.
There were other surprises: in 2007, Snowdon invited Judge Coral Shaw to recuse herself from the case. In 2009 she accused senior RNZ executives of fraud involving $795,000 of public money.
The fraud accusations were built upon the work of an IT consultant called Wayne Kedzlie, whose analysis of RNZ financial documents supposedly uncovered no fewer than 239,051 criminal offences by executives including Cavanagh, deputy chief executive Ken Law and chairman Brian Corban.
Ford's demolition of Kedzlie's contribution to the hearing was brutal. He found him "equivocal and evasive", and said his "extraordinary" financial report was characterised by "baseless conclusions and assumptions". Kedzlie was not, concluded Ford, a credible witness. He said there was "not a scintilla of evidence in support of a single [fraud] claim".
The prevailing tone of Ford's long judgment was one of bemused despair, but his conclusions were blunt: he said RNZ was justified in its action towards Snowdon in the workplace, and Snowdon was principally responsible for the rift that led to her dismissal. Even when Cavanagh initiated fresh mediation in late 2003, Snowdon "continued to display . . . the same aggressive and uncompromising stance she had displayed towards Ms Crosbie".
Ford said RNZ was entitled to costs.
This isn't how employment cases are meant to go, says employment law specialist Andrew Scott- Howman.
In 2000, NZ passed legislation that sought to switch employment law from an adversarial system to one focused on mediation.
The Employment Relations Act has led to an "era of compromise", where most claims are sorted in mediation, and the few that aren't go to the Employment Relations Authority (ERA), where costs awarded are kept below $3500 a day. Vanishingly few cases make it as far as court, and it's pretty much unheard of to have a case drag on like this one.
"We've moved to a culture where commercial efficiency is more important than justice," says Scott-Howman.
If employment cases are a gamble, the mediation-plus-ERA system lowers the stakes, says Scott-Howman. If you're taking a punt on what the authority might rule, the sums at issue will almost never exceed $20,000 or so. That's a figure that most people could either win or lose "and still move on in life". But once costs and claims are up in the millions, as in the Snowdon case, "a win or loss will have a significant impact".
Should it have been the duty, then, of Snowdon's lawyers to take her aside and advise her to cut her losses back in 2003 when a settlement was offered by RNZ, or at just about any point since then?
On Friday, Snowdon's lawyer Richard Fletcher said he couldn't comment on the case. QC Colin Carruthers, who also acted for Snowdon during the hearing, didn't return a call on Friday.
It's worth noting, however, that Snowdon has been represented by a number of different lawyers over the years (including former Police Association secretary Rob Moodie).
Gordon Anderson said he has no detailed knowledge of Snowdon's case, but on the face of it, "any lawyer who's doing their job properly would have advised her that she's on a bit of a no- winner. But if [a complainant] doesn't want to accept that advice, there's not much you can do about it."
Last week Crosbie, Law and Cavanagh - the three past and present RNZ staff who've drawn the most heat from Team Snowdon - didn't wish to comment. But new chief executive Paul Thompson, who inherited this crazy case from Cavanagh last year, said RNZ was "greatly relieved" at the findings.
RNZ's legal costs have been estimated as high as $1.5m, but Thompson said the final figure, and how much of that RNZ might try to recover from Snowdon, was not yet known.
"Clearly public money is involved, and we need to recoup as much as possible."
And what about the defamation action by Snowdon, if it goes ahead?
"We will not be directly involved, but we have an obligation to assist Ms Crosbie."
Sunday Star Times