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Key decisions

  • Auguste v Nikolyn Pty Ltd [2016] FCA 1579
  • Australian Competition and Consumer Commission v Woolworths Limited [2016] FCA 1472
  • Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2016] FCAFC 184


When a significant delay between the trial and the delivery of judgment gives rise to appellable error

In Auguste v Nikolyn Pty Ltd [2016] FCA 1579 (23 December 2016) the Federal Court (McKerracher J) dismissed an appeal from the Federal Circuit Court of Australia (FCCA). One of the grounds of appeal from the decision of the FCCA raised whether significant delay in the delivery of judgment following trial had an operative effect on the conclusion of that judgment.

The proceeding in the FCCA was a building dispute in the form of a misleading and deceptive conduct claim. Mr Auguste brought a claim against building company Nikolyn Pty Ltd and its director in relation to plumbing works for a subdivision development on his land. The claim was in essence for damages caused by delay in construction of compliant plumbing works. The claim was dismissed by the FCCA and a significant portion of the counterclaim was allowed.

The judgment of the FCCA was delivered almost 23 months after the trial and five months after the FCCA stated that the judgment was anticipated to be delivered (at [58]-[59]). One of the grounds of appeal was that the conclusion of the trial judge was flawed by reason of the delay in judgment delivery (at [56](1)).

McKerracher J analysed the legal principles and authorities on excessive judgment delay (at [62]-[63]), in particular the reasons of the Full Federal Court in Tattsbet Ltd v Morrow (2015) 233 FCR 46 (Allsop CJ, Jessup J and White J). The critical question is ‘whether there is operative delay. That is, whether the delay can be seen as being problematic in the sense of confidence being placed in the judgment’ (at [65]). Examples given of operative delay are dealing with issues on only a cursory basis or overlooking clearly critical evidence. Bare credit findings based upon impressions of a witness would be the findings most vulnerable to attack on the basis of excessive delay (such as in Tattsbet): see (at [66]). However, McKerracher J held that none of the findings of the FCCA fell into that category (at [67]).

Further the Court held (at [78]) that: ‘Notwithstanding the delay, the reasons demonstrate that his Honour considered all of the evidence, such that it is clear that no delay had an operative effect on the conclusion reached to dismiss Mr Auguste’s claim and allow the cross-claim’. The remaining grounds of appeal in relation to misleading and deceptive conduct and other matters also failed.

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