We kick off this instalment of Snails’ Progress with a full Federal Court decision to set aside a judgment of FCFC Judge Julia Baird, where there had been a delay of almost three years in the delivery of her judgment.

Microsoft Corporation brought a claim against CPL Notting Hill Pty Ltd over copyright infringement. The trial was in August 19-23 with final addresses on December 16, 2019. The reasons were delivered on September 30, 2022, and final orders arrived on December 6, 2022.

Baird said there were a small number of copyright infringements, which warranted modest damages (around $6,000) and no injunctive relief.

HH rejected Microsoft’s case that the infringements were more widespread, and they had been concealed by the respondents.

On appeal the tech giant contended it did not get a fair trial – cross-examination of witnesses was curtailed to such an extent that it was denied procedural fairness, and the lengthy delay in the delivery of the judgment contributed to a failure by the judge to consider the evidence in its totality and the inherent improbability of CPL’s version of events.

On appeal John Nicholas, Helen Rofe and Ian Jackman sent it back for its third trial – with Nicholas saying:

“… the weight that can be given to findings made by the primary judge that were substantially based on the witnesses’ demeanour is greatly diminished due to the time that elapsed between the trial and the delivery of judgment.”

Justice Ian Jackman brought his trademark shoulder tackle to the appeal reasons, setting out the relevant principles regarding judicial delay.

A delay of 12 months is generally regarded as “substantial [and] excessive” (Beaman v Bond), while almost 17 months was described by Carr, Emmett and Gyles JJ in Expectation Pty Ltd v PRD Realty Pty Ltd as “grossly inordinate”.

Importantly, an appellate court “should be more disposed to find error where there has been operative delay” – leaving it open to inference that “the judicial function has miscarried” (Monie v Commonwealth).

There is also authority that a judge may feel under pressure to complete a long-delayed judgment, suggesting that the issues may not have been grappled with properly.