Grindingly slow has been the delivery of judgments by Judge Antoni Lucev in the Perth Registry of the Circuit Court.
It took nearly two years and 84 paragraphs for the judge to deliver reasons in this migration case. He made orders to quash the decision that was riddled with jurisdictional error and send it back to the Immigration Assessment Authority for another crack.
It also took HH 22 months to cough up a decision in COF17 v Minister for Rejections and Turnbacks although this time the finding was for the Minister in the case of an Hazara from Afghanistan. The submission that the Immigration Assessment Authority had indulged in jurisdictional error failed to make the grade.
Two other Lucev migration judgments languished for 21 and 19 months respectively before seeing the light of day: CQS18 and CPM17 where a couple of Sri Lankans had their judicial review applications thrown out.
All were relatively straight forward migration cases where the legal issues have been well established.
Over in the Adelaide registry of the Circus Court, Chopsonion Pty Ltd v Mulga Corporation Pty Ltd, a misleading and deceptive conduct case, has been moving at a ludicrously slow pace.
It was commenced on July 28, 2020 and has been handled by five judges: Timothy Heffernan, Stewart Brown, Charlotte Kelly, Robert Cameron and most recently it has been in the hands of Judge Lucev, who took 22 months to strike out some paragraphs of the statement of claimant, granting leave to replead.
It’s far from over, which suggests that the court has forgotten about the legislation that says:
“In proceedings before it the Federal Circuit Court of Australia must proceed without undue formality and must endeavour that the proceedings are not protracted.”
In Faulkner v Tidewater Marine Australia Pty Ltd (No 5), even HH Sandy Street expressed his frustration at the delay in Judge Lucev’s docket.
The proceedings were commenced on July 30, 2013 and were part heard by Judge Lucev, commencing on October 28, 2016. There was a remaining outstanding witness in respect of which a dispute arose whether the evidence should be adduced by video or audio link.
Three years later Lucev delivered a judgment on the video link issue. It was before Judge Street in October 2019 who described the delay as “unsatisfactory”.
“The relevant judge is now on compassionate leave and will not be returning for approximately 12 months. In these circumstances, and given the substantial delay, the court is satisfied that it is an appropriate matter to make an order that the matter be reheard before another judge of the court.”
The respondent was unhappy with this, but needs must.
Judge Lucev was a partner at Freehills from 1992 to 1999. In April 1999 he went to the bar and while he was there spent 16 months as one of the counsel assisting the Royal Commission into the Building and Construction Industry.
In August 2006 he was appointed as a Federal Magistrate and in April 2013 he became a judge of the Federal Circuit Court. His appointment ends in 2029.
Too much modesty
Justice John Halley of the FCA took 17 months to deliver his reasons in J&J Richards Super Pty Ltd ATF The J&J Richards Superannuation Fund v Nielsen.
Justice Ian Jackboots in Microsoft Corporation v CPL Notting Hill Pty Ltd said that a 12 months delay is generally “substantial/excessive”, while 17 months was “grossly inordinate”.
Almost four months later the Full Court in Expectation Pty Ltd v PDR Reality Pty Ltd picked up the cry about “grossly inordinate” for a delay of 17 months.
Department of shockers
Judge Warwick Neville in the Circuit Court came a cropper with a fine of $6,500 for wages underpaid to a Filipino painter. The judge in an ex tempore judgment described it as a “quite modest matter”.
See Construction, Forestry and Maritime Employees Union v AMK Imaging Pty Ltd
It was far too modest by the time Justice Scott Goodman got his hands on it in the Federal Court.
He held that Neville mistook the facts or allowed extraneous matters to guide him and so erred in the exercise of the discretion to order the “manifestly inadequate” penalty.
The parties have till March 21, 2025 to make submissions on the new penalty.
Three months after his decision in the CFMEU case, Judge Neville retired.