Justice delayed is justice denied
“Justice delayed is justice denied” is a legal and societal saying. It means that if legal redress to an injured party is available but it takes too long to achieve it, it is effectively the same as having no remedy at all.
Former chief justice of the United States, Warren E Burger, noted in an address to the American Bar Association “the risk is that people come to believe the law – in the larger sense – cannot fulfill its primary function to protect them and their families in their homes, at their work, and on the public streets”.
In the recent decision of the Employment Court in Tovio Ugone v Star Moving Limited Judge Kerry Smith imposed a $20,000 fine on Stuart Biggs, the director and shareholder of Star Moving for his continued non-compliance with court orders, and warned him that if other cases came before the Employment Relations Authority or the Employment Court for not complying with orders that he faces a serious risk of a custodial sentence.
Ugone was employed by Star Moving as an operations manager at its Wellington depot. Ugone suffered a knee injury at work in June 2020. He could not work and went on ACC and was unable to return in any capacity until August 13, 2020.
After providing Star Moving with a letter confirming that he could return to work on restricted, sedentary, duties, Ugone was given a letter stating that due to his extended absence and a restructuring of the Wellington depot, that Star Moving had decided to disestablish his role as operations manager.
Ugone claimed that he was unjustifiably dismissed. The Employment Relations Authority found that the letter provided to Ugone amounted to a “sending away” – that Ugone was unjustifiably dismissed. Ugone was awarded $28,000 for lost wages, $27,500 compensation and costs of $5000 (a $6000 penalty was also imposed on Star Moving for failing to supply Ugone’s employment agreement).
When Star Moving failed to pay, Ugone asked for compliance orders from the authority. When making the compliance orders in May 2023 the authority was also satisfied that Biggs, as the sole director of Star Moving, was responsible for the earlier orders not being complied with and that he was in a position to prevent further non-compliance by the company. Compliance orders were made against him personally.
Despite the compliance orders the debt owed by Star Moving to Ugone was still not paid until August 2023, just before liquidation proceedings involving Star Moving were to be heard in the High Court.
Ugone asked for further remedies against Star Moving and Biggs. A fine and a custodial sentence were requested.
Where any person fails to follow a compliance order made by the authority, the person affected by the failure to comply can ask the Employment Court to exercise its powers under the Employment Relations Act to order that the person in default:
▍ to be sentenced to imprisonment for a
term not exceeding three months
▍ order that the person in default be fined
a sum not exceeding $40,000
▍ order that the property of the person in default be sequestered
The Court of Appeal has confirmed that a fine may be imposed even where compliance had been achieved, although that is be a factor in assessing the amount of any fine. Similarly, cases also confirm that it is not necessary for a party to first try and get enforcement in the District Court before requesting a fine in the Employment Court.
In another case, a fine of $7500 was imposed for what the court considered was a deliberate and flagrant breach of the compliance order. The former employee had forwarded emails containing links to confidential documents to newly elected members of the employer (a local authority). Even that was not enough of a deterrent in that case, a further decision was necessary as the court’s two previous financial orders had failed to stop the employee. The employee was sentenced to a 21 day term of imprisonment.
Returning to Ugone’s situation, in imposing the $20,000 fine on Biggs the court referred to a number of decisions involving other parties involving Biggs that it said showed a theme that companies Biggs controlled did not comply with orders made against them unless under compulsion. The court said that this must influence the amount of uplift in the fine.
For Ugone the law has fulfilled its primary function of protecting legal rights. Ugone was successful in his claim in the authority. He has finally been paid for the wrong-doing that occurred in 2020. Biggs has now been fined, and has been warned that a custodial sentence may be imposed should there be further non-compliance. While Ugone has had to go to extraordinary lengths to get his debt satisfied, maybe justice has been done?
Westpac is introducing new scam-busting technology – but only in Australia.
It said it was introducing SaferPay, which would mean additional screening on every payment, via artificial intelligence.
When it thought people might be making a payment to a potential scammer, they would be asked further questions.
A Westpac spokesperson said it was not currently rolling out that technology in New Zealand, although it was considering it as part of a range of measures to help keep customers safe.
Banks have been under fire in New Zealand from those who think they are not doing enough to protect scam victims.
The Government last month called for new measures, including investigating a voluntary reimbursement scheme to improve customer compensation, and more work on “confirmation of payee” technology.
New Zealanders lost nearly $200 million to scams last year.
But commentator Janine Starks said New Zealanders had been left behind.
She said there was different urgency about protecting customers here, compared to Australia, because new laws there would bring in big fines for those without adequate scam detection.
“Australia has had real-time payments for over five years … Everything is a lot further ahead due to regulators demanding action on open banking and getting their payment system overhauled and in line with world standards.
“Not having the same tech as the Aussies to make our payments safer, is just another display of gross under-investment in tech that has driven NZ banking to levels of embarrassment.
“We are not even looking for authorised fraud like the Aussies.
“SaferPay is not new by any stretch, it’s just new in Australia and I’d be very surprised that Westpac NZ have any practical chance of bringing it in here, when there are so many other priorities, like hooking up confirmation of payee and moving to real-time payments.
“I don’t believe they’ve got the right tech to monitor a safer-pay system, so this would be a big project.”