Ultimately, Judge Joanna Holden ordered the Vice-Chancellor to pay general damages of $20,000, with costs reserved for the parties to reach an agreement.
Behind the scenes
The recent cost judgment revealed Wiles promptly sought $175,000 for costs. The university, in turn, argued it was entitled to more than $500,000 from her due to a rejected Calderbank offer made in August 2022. Calderbank offers are intended to encourage early resolution. However, if rejected, and the court outcome is worse, the rejecting party may have to fork out costs.
The university later offered Wiles $65,000 on a without-prejudice basis. Wiles’ total costs were $550,000, and the university’s were $1.4 million as at December 23, 2023. Wiles also sought leave to appeal the court’s ruling on academic freedom and the modest damages, but the Court of Appeal found the arguments weren’t disputing errors of law and didn’t meet the threshold. The decision noted academic freedom was not “unimportant” and underpinned her claims.
More importantly: “The short point is that [Wiles] succeeded with her claims, including because the University did not respond appropriately in protecting her right of academic freedom, and the associated freedom of expression.” So why couldn’t the parties agree?
The cost judgment
Wiles ultimately sought $380,000. The university opposed this, citing its Calderbank offer and arguing it was entitled to recover costs. Instead, it was “prepared to forgo seeking costs”, as “both parties had some success” and Wiles remained an employee.
In a precedent-setting move, the court wiped out the offer entirely. It came too late and was, as Judge Holden put it, “surprising” insofar as it was purely financial and included confidentiality and non-disparagement clauses.
The offer would silence the very issues Wiles wanted addressed: health and safety concerns, academic freedom and whether Wiles’ public commentary was, in fact, part of her job. (The latter was disputed right up until the last day of the hearing, Wiles’ barrister Catherine Stewart told me).
“I also acknowledge that, in order to achieve the matters of principle that were important to her, [Wiles] needed to continue with the litigation,” Judge Holden said.
Was the university flogging a dead horse?
I’ll now move on to the academic freedom and Te Tiriti findings as grounds for the university’s “success” and its “insistence that there was ‘no winning party’”.
Judge Holden put it bluntly: “As acknowledged, and as recognised by her application for leave to appeal the judgment, Associate Professor Wiles did not succeed on every point. Associate Professor Wiles was, however, ultimately the successful party. She is entitled to costs.”
The court reduced costs to reflect the additional time spent on Wiles’ unsuccessful claims. However, they were increased overall due to the case’s complexity and to account for the fact Wiles had to return to the court to secure costs.
When asked whether a cost-benefit analysis was done, what funding sources were used and for the rationale behind the Calderbank offer, the university didn’t respond. Mediation discussions were confidential, the spokesperson said. No further information about the $1.4m legal spend as at December 2023 was provided.
Instead, a spokesperson said the costs judgment marked the end of the legal action.
“The University is disappointed that it was not possible to avoid litigation and the costs associated, which were significant for both parties.”
Wiles, they said, filed her unsuccessful claims late, causing a year-long delay and requiring extra evidence and submissions. Her failed appeal, they added, led to further unnecessary costs. (See Judge Holden’s adjustment to costs, above.)
The university maintained it took reasonable steps to avoid litigation, citing multiple mediations and its Calderbank offer. The very offer that fell flat.
Wiles’ barrister Catherine Stewart said from Wiles’ view, the case was “the only way she could achieve safety in her employment”. The court recognised the key principles at stake “particularly in the context of the university increasingly srutinising her work and denying that her public commentary was part of her job”.
Where to from here?
The university spokesperson stated that the university has a “strong commitment” to staff wellbeing, citing the introduction of a Staff Risk Intervention Team and a 2021 Quantum Security audit. Recommendations were implemented before the 2023 hearing, and health and safety policy reviews are ongoing.
On the one hand, the time, effort and costs of vindication are sobering. On the other hand, this case illustrates what is required to raise issues of public importance.
“It is not common for an employee’s functions to include active participation in the media in relation to issues of public concern, or for an employer’s duties to include protecting the employee from third-party criticisms arising as a consequence,” the Court of Appeal decision read, for example.
What’s also clear is the uneven playing field. Wiles was (and remains) an employee with less power and fewer resources – a David and Goliath situation, as her barrister put it.
Despite the odds, Wiles largely achieved what she set out to do, and the case may have wider implications, Stewart said.
“The case sets a precedent for public-facing employees who work for the benefit of their employer, but find themselves in unsafe situations causing harm. This includes employees who undertake public commentary as part of their job in a wide variety of scenarios.”
