Judge Stewart Brown in the Adelaide Registry of the FCFC brought the chopper down on a case that was commenced five years ago in respect of a cause of action that arose five years before that.
In a word, it has been glacial, partly due to sloth-like handling by the court and a failure by either party to file any evidence.
Over the interceding years Chopsonion Pty Ltd v Mulga Corporation Pty Ltd has been in the hands of at least five judges – Timothy Heffernan, Stewart Brown, Charlotte Kelly, Robert Cameron, Antoni Lucev and now back to Brownie.
It fell into a ditch when Judge Lucev took nearly two years to strike out some paragraphs in the statement of claim, granting leave to replead. He heard the strike out application on February 24, 2023 and delivered his reasons on Christmas Eve, 2024.
In the process the allocated week for a trial commencing May 22, 2023 came and went.
The “fresh” statement of claim (No 3) came back to HH Judge Brown who found that the pleadings remained murky and unhelpful.
The applicant contended that the disbursement of $130,000,000 sent to an accountant was not properly and professionally authorised. The claim was for the money back or compensation of $626,751 – being the amount that would have been saved had the money been applied to a finance facility paying six percent a month.
There have been failed mediations, applications for security, vacated trial dates and missing details of the false and misleading conduct that were central to the claim.
As Brown said:
“Due to the lack of any significant affidavits of evidence being filed in the matter, I confess that the background and context of these proceedings is, from my perspective, still shrouded in mystery.”
Muddling through the undergrowth, the case seemed to allege that the accountants ought to have known that the principal human being in charge of Chopsonion, a Mr Sharpe, had dealings with someone else that were misleading and deceptive. The applicant was obliged to inform whoever is now in control of the respondent of the director’s deception and therefore Mulga Corporation is complicit in the deception !!
HH spent a solid part of his reasons explaining the role of the Division Two court and the general principles of civil litigation – namely to do a lot of the less complicated grunt work to leave the higher ups to get on with the more complex stuff.
Consequently, simplified procedures and timeliness are preferred. Ultimately the application for the third amended statement of claim came to this:
“At this juncture, I can see no utility in allowing the applicant a further attempt to remedy its statement of claim. The case has been on foot for five years, in respect of a cause of action which is asserted to have arisen at least five years before that. The application has been marked by delay – in this context, I concede the court itself has contributed to this delay [nudge, nudge, Judge Lucev] – however, axiomatically, how the case has proceeded is not consistent with the overarching principles pertaining to the conduct of civil litigation.”
Chopsonion Pty Ltd v Mulga Corporation (No 2)
≈ ≈ ≈
Ginger Snatch had the unhappy duty to mention Judge Lucev in June, along with fellow Sand Groper, Justice Jenni Hill from the Supremes.
Ginger pointed to 10 of Antoni’s judgments from April, May and June 2025 that took anything between 14 months and almost two years to deliver – well outside the timeframe expected by the court and the parties.
At the time we were assured by the court that the judge was making strides to get on top of the workload – so imagine our bewilderment when we discovered four more cases that languished in HH’s bottom draw before coming out for an airing, anything between a year and two years later.
Dismissal of an amended originating application in a Fair Work case.
Hearing: August 8-10, 2023
Judgment: August 15, 2025
Time taken: Just over two years.
CWX17 v Minister for Rejections and Ethnic Festivals
Dismissal of an application to set aside an order rejecting a judicial review application.
Hearing: April 16 and May 23, 2024
Judgment: June 26, 2025
Time taken: 13 months.
FGS18 v Minister for Rejections, etc.
Unauthorised arrival by a Tamil … Application for judicial review of decision to reject Safe Haven Enterprise visa … Dismissed.
Hearing: March 25, 2024
Judgment: July 11, 2025
Time taken: Over 15 months.
Dang v Minister foe Rejections, etc.
Overturning a decision of the AAT … Remitting the matter back to the tribunal.
Hearing: April 22, 2024. Last submission, June 7, 2024
Judgment: July 16, 2025
Time taken: Over 13 months.
Ripe Tomasso
Jenni Hill J of the WA Supreme looms into view, once again.
HH recently seems to have given the accelerator a nudge and there have been few reasons to get upset about her languid judicial pace.
Then we came across Tomasso v IG Markets Ltd where she took 17 months to straighten out her thinking and deliver a judgment.
In the process she spent five paragraphs expressing her regret that she was not as quick “as I would have liked”, but that nothing has been impaired by the yawning gap between the hearing and the judgment on August 21, 2025.
A fellow called Adam Tomasso made a profit of $5.5 million through online trading, for little more than 30 minutes on a market called Test FX UP, operated on IG Markets’ platform.
However, under a term of the contract, the market provider reversed the transaction later that day.
Happily for Adam, HH found in his favour, awarding him damages in the sum of $5,518,251.44 together with interest – leaving citizens wondering whether her delay had any impact on the amount of interest.
It is a case of better late than never for Mr Tomasso.
Scale of offending
This handy guide about delays, issued by the Full Feds in Microsoft Corporation v Notting Hill Pty, should be pasted on the wall of chambers occupied by slow coach judges:
271. The relevant principles regarding the significance of delay in giving judgment are as follows:
(a) mere delay is not enough to uphold an appeal, and error must be shown: Monie v Commonwealth [2005] NSWCA 25; (2005) 63 NSWLR 729 at [44] (Hunt AJA, with whom Bryson JA agreed);
(b) a delay of 12 months is generally “substantial” and “excessive”: Beaman v Bond [2017] FCAFC 142; (2017) 254 FCR 480 at [65(b)] (McKerracher J, with whom Gilmour and Charlesworth JJ agreed); and a delay of almost 17 months was described as “grossly inordinate” in Expectation Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189; (2004) 140 FCR 17 at [75] (Carr, Emmett and Gyles JJ)
(c) an operative delay alters the normal approach an appellate court takes: Expectation Pty Ltd v PRD Realty Pty Ltd at [75]-[76];
(d) the appellate court should be more disposed to find error where there has been “operative delay”, and such delay permits an appellate court more readily to infer that the judicial function has miscarried: Beaman v Bond at [65(c)];
(e) whatever the cause of any particular delay, its consequences must be examined with an eye to the fair administration of justice: Tattsbet Ltd v Morrow [2015] FCAFC 62; (2015) 233 FCR 46 at [2] (Allsop CJ, with whom White J agreed);
(f) significant delay creates the need to look with special care at any finding of fact challenged on appeal, and the mere fact of a long delay itself weakens a trial judge’s advantage: Expectation Pty Ltd v PRD Realty Pty Ltd at [69]-[70]; Beaman v Bond at [65(e)];
(g) where there has been a delay, the trial judge is obliged to give specific reasons for accepting or rejecting the evidence of those witnesses whose evidence plays an important part in the factual finding made, and where there has been significant delay, there can be no assumptions that statements of a general assertive character made by the trial judge are based on a sufficient consideration of the evidence, or that evidence relevant to a particular finding not considered in the judgment has not been overlooked: Monie v Commonwealth at [43](5) and (6); Beaman v Bond at [65(e)];
(h) the problems are not limited to fading memory, but include pressure which a judge may feel to complete a long-delayed judgment, and a losing litigant’s perception that the judge may not have grappled with the issues raised by them: Expectation Pty Ltd v PRD Realty Pty Ltd at [74]; Monie v Commonwealth at [43](7), (8) and (9).
See also: Slumbering snails