Judge critical of Talley's request

00:00, Dec 28 2012

The Employment Court has thrown out Talley's Group's bid for a woman to pay $10,000 security for costs in fighting for her fish processing job.

Chief Judge Graeme Colgan said the company's application could be seen by the woman as "a strategy to persuade or compel her to abandon the case".

Lynette Turner claims she was unjustifiably dismissed in July last year by Talley's, where she did seasonal work for 10 years.

Talley's argued that she did not raise the issue within the required 90 days so the Employment Authority did not have jurisdiction to investigate the alleged grievance.

Authority member Michael Loftus agreed and in August ruled that her application failed and her personal grievance claim was dismissed.

However, Mrs Turner, represented by lawyer Anjela Sharma, is challenging that decision and the case is scheduled to be heard in February.


The authority also ordered Mrs Turner to pay Talley's costs of $1750.

Mrs Turner, earning $14 an hour as a laundry worker, sought an order to stay payment of the costs until her challenge was heard and decided, saying it would not affect Talley's and she had few financial resources.

Chief Judge Colgan decided she should pay $50 a month into her solicitor's trust account from February.

However, he also ruled she should not have to pay the $10,000 security payment that Talley's asked for.

Talley's grounds for seeking the payment included her failure to pay the costs awarded by the authority, her poverty, and the company being put to additional and "unnecessary" expense of the legal action.

It also criticised her arrangements made to pay her lawyer after the case concluded.

Chief Judge Colgan said the company's claim that she should provide security for its costs and that her challenge should be stayed unless and until she did so, was without merit.

He noted the court only rarely granted such applications and in extraordinary circumstances, which did not exist in this case.

"It is difficult to accept that the defendant would not have been advised otherwise, which has no doubt caused Mrs Turner to fear that Talley's application for security is a strategy to persuade or compel her to abandon her case."

He said Mrs Turner's case had been rejected on grounds of non-compliance with time limits, before there had been any opportunity to examine it on its merits.

"To now seek to place a barrier in the way of Mrs Turner's challenge by requiring her to pay what, for her, will be an impossibly high sum as security for costs, will deprive her of access to justice."

The company claimed that it had a strong case "but I conclude, without determining the issue, that this is not able to be established at this stage", the judge said.

The weakness in the company's grounds for an order for security was illustrated "by its attacks on what it can do no better than suspect are the financial arrangements" with her lawyer, he said. "That is a matter between Mrs Turner and her lawyer and, frankly, none of Talley's business," said Chief Judge Colgan.

The company said that a property search revealed that the address where Mrs Turner lived was owned by someone else.

"That is not surprising, not only because a substantial proportion of the workforce lives in rented accommodation, but so, too, does an even greater proportion of those in low-wage jobs as Mrs Turner's. That is not a ground for requiring her to give substantial security for the defendant's costs in the proceeding. Not everyone, especially low-paid employees, has equity in their homes that can be offered as collateral security," he said.

He dismissed Talley's application for security, and ordered it to contribute $750 towards her costs of defending "this unmeritorious application".

The Nelson Mail