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.
Judge Baird has been mentioned in previous dispatches from our Delay Correspondent … here and here.
Microsoft Corporation v CPL Notting Hill Pty Ltd
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Brother judges from the Federal Court are not immune from bouts of somnambulance.
Justice Darren Jackson seems to have hit a hurdle in getting the finished article down on paper.
On January 20, 2024 he delivered judgment in Dig It Landscapes Pty Ltd (in liq) v Bupa Aged Care Australia Pty Ltd (No 2) – a matter he heard on February 1-2, 2022. A gestation of two years – well into the “grossly inordinate” category.
His two-year delay in Australian Securities and Investment Commission v R M Capital Pty Ltd also fell the same category – heard March 1-2, 2022 – delivered February 29, 2024.
Also, Justice David Thomas from the Federales was overdue in a consumer law case, Coastal Karts Pty Ltd v Bellandra Holdings Pty Ltd (No 2). It was heard on May 30, 2022, and delivered on January 31, 2024 – a turnaround of 20 months.
Thomas also dragged the chain in a migration matter heard on September 27, 2022, with the reasons arriving on January 29, 2024, QHRY v Minister for Immigration, etc. – a relaxed 17 months.
There was a late submission on November 30, 2023 – more than a year after the hearing had been completed – dealing with a full court decision about “double counting” in the way family violence is weighed as a consideration.
Of course, if the judgment had been timely, the extra delay would have been avoided.
These are repeat appearances for Jackson and Thomas. See: The slow lane – no overtaking
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The same thing happened to Justice Jenni Hill from WA – one of the leading contenders for the Golden Snail.
On February 2, 2024, she delivered her reasons in the Litigation Capital Partners case, heard a distant two-years-and-three month previously.
HH explained things were complex and that after the hearing written submissions came in on April 8, 2022, dealing with a High Court judgment delivered in March 2022.
It still took close on another two years for Jenni to finish the judgment.
Justice Jenni’s priors in the two-years-plus category can be discovered here.
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Jo-Anne Finch v Heat Group Pty Ltd has been rattling around courts and tribunals since 2010. Our special correspondent had a story on the latest application here, where Judge Heather Riley said:
“Ms Finch noted the extraordinary delay in this court between the transfer from the Federal Court and the first directions hearing, which was almost five years.
Deputy Chief Judge Mercuri formally apologised for that delay. Ms Finch criticised MinterEllison for not following up with the court. However, the substantive proceeding is Ms Finch’s application. It was primarily her responsibility to follow up with the court, not the respondents.”
This is what Deputy Chief Judge Mercury said on August 5, 2022:
“For reasons that are not readily apparent, following its transfer, no further action was taken in relation to this matter until steps were taking by my chambers to have the matter listed for directions, which ultimately occurred on 2 March 2022. To the extent that that delay is the result of court inaction, I do apologise to the parties.”
It’s been flicked to Judge Janine Young for directions on March 25, 2024.
On it goes.
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A late entrant into the Snail Awards is Judge Nicholas Manousaridis of the FCFC.
He heard Donnola v Silverleaf Constructions Co Pty Ltd on October 17-18, 2022, and delivered his judgment on March 8, 2024, after a further submission on November 7, 2022.
Sixteen months is a long time to wait for unpaid wages and other entitlements.
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Hats off to Judge Caroline Kirton of the FCFC, who has lifted her game following our report from August 2023 detailing her chain dragging history of judgment delivery in the two-years-plus category – i.e. beyond “grossly inordinate”.
She’s now knocking them out in a month or two, particularly in migration cases – e.g. BVR18 v Minister for Immigration, Etc …
Bravo.
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Outfits like the National Judicial College of Australia display little to no commitment to cracking the whip or providing ongoing reeducation camps for slow coaches.
Wayne Martin, the former CJ of Western Australia, gave a detailed speech in 2014 on the history of delays and their consequences.
See: Timeliness in the Justice System: Ideas and Innovations … Because delay is a kind of denial
His successor, Peter Quinlan CJ, has been more philosophical about the problem, telling the Piddington Society in June 2021 that at least as far as judges are concerned:
“There is only so much each of us can do with the time that we have. And so we understand, and accept, that delays are a natural and inevitable part of the system. Part of the cost of doing business.”
He did go on to offer some judicial comfort to the miserable and afflicted:
“… the delays that appear to us to be unavoidable, can cause real distress … Even if all we can do is acknowledge to those affected that we are aware of those effects.”