Appellate Procedure in Australia
Introduction
The appellate system in Australia provides for the review of decisions of courts and tribunals by higher courts. The system is hierarchical, with three principal tiers: the primary court (at first instance), the intermediate appellate court (the Court of Appeal or Full Court of the relevant superior court), and the High Court of Australia as the final court of appeal. The appellate process is governed by a combination of constitutional provisions, statutes, and court rules, and is central to the development of the common law and the correction of error.
The Three-Tier Appellate Structure
The Australian appellate hierarchy begins with the primary court — the court of first instance that hears and determines the matter at trial. In state matters, the primary court may be the District Court (for most indictable criminal offences and civil claims up to the monetary limit) or the Supreme Court (for the most serious cases and unlimited civil jurisdiction). In federal matters, the primary court is typically the Federal Circuit and Family Court of Australia (FCFCOA) or the Federal Court of Australia.
The intermediate appellate court differs by jurisdiction. In the state systems, it is the Court of Appeal (a division of the Supreme Court, as in New South Wales and Victoria) or the Full Court of the Supreme Court (as in Queensland, South Australia, Western Australia, and Tasmania). In the federal system, it is the Full Court of the Federal Court of Australia (comprising three or more judges). The intermediate appellate court hears appeals from the primary court and from certain tribunals.
The High Court of Australia is the final court of appeal for all Australian matters, both state and federal. Appeals to the High Court are by special leave only (s 35A of the Judiciary Act 1903 (Cth)), requiring the applicant to demonstrate a question of law of public importance or a significant injustice.
Appeal as of Right and Appeal by Leave
An appeal as of right is available in limited circumstances, principally from a final judgment of a primary court to the intermediate appellate court. The right to appeal is conferred by statute (e.g., s 101 of the Supreme Court Act 1970 (NSW); s 24 of the Federal Court of Australia Act 1976 (Cth)). An appeal as of right lies on a question of law; an appeal on a question of fact, or against the exercise of discretion, generally requires leave.
An appeal by leave is required for most interlocutory decisions (decisions made during the course of proceedings that do not finally determine the rights of the parties), appeals from the District Court to the Court of Appeal, and appeals to the High Court. The requirement for leave serves as a filter to ensure that only matters of sufficient importance or merit occupy the time of the appellate courts.
Special Leave to Appeal to the High Court
Under s 35A of the Judiciary Act 1903 (Cth), an application for special leave to appeal to the High Court must demonstrate either: (a) that the proceeding involves a question of law that is of public importance, whether because of its general application or because of the need for the authoritative resolution of a conflict of authority; or (b) that the interests of the administration of justice require consideration of the appeal, having regard to the need for finality in litigation and the resources of the Court.
Special leave is granted in approximately 10–15% of applications. The High Court will not grant special leave merely because the applicant believes the decision below is wrong; the case must raise an issue that warrants the attention of the nation’s highest court. The Court usually hears applications for special leave in a special sitting, with each party having 20 minutes to present submissions. If leave is granted, the appeal is heard at a later date.
Interlocutory Appeals
An interlocutory appeal challenges a decision made during the course of proceedings that does not finally determine the rights of the parties — for example, a decision on discovery, joinder, or summary judgment. Leave to appeal is almost always required for interlocutory decisions, reflecting the policy that proceedings should not be fragmented by piecemeal appeals. The test for leave requires the applicant to demonstrate that the decision is attended by sufficient doubt to warrant reconsideration and that substantial injustice would result if leave were refused.
Types of Appeals: Strict, Rehearing, and De Novo
Australian law recognises three types of appeal. A strict appeal is limited to questions of law and is determined on the record of the proceedings below; the appellate court does not receive fresh evidence and does not make its own findings of fact.
An appeal by way of rehearing is the most common form of appeal in Australia. The appellate court reviews the record of the proceedings below, including the transcript and exhibits, and may draw its own inferences of fact. However, the court does not generally receive fresh evidence (except by leave) and will not interfere with the trial judge’s findings of fact that turned on the credibility of witnesses, unless the findings were “manifestly wrong” or the judge “failed to use or palpably misused” their advantage in seeing and hearing the witnesses: Fox v Percy (2003) 214 CLR 118.
A de novo appeal is a complete rehearing, as if the original proceeding had not occurred. This form of appeal is rare in Australia, confined to appeals from inferior courts or tribunals where the legislature has provided for a complete rehearing (e.g., some appeals from the Magistrates Court to the District Court).
Standard of Review on Appeal
The standard of review differs according to the nature of the decision under challenge. On an appeal on a question of law, the appellate court determines for itself whether the primary judge made an error of law. On an appeal on a question of fact, the appellate court will not substitute its own view of the facts unless the primary judge’s findings were “manifestly wrong” or “against the weight of the evidence.” The High Court has emphasised that appellate courts must respect the advantages enjoyed by the trial judge in seeing and hearing witnesses: Devries v Australian National Railways Commission (1993) 177 CLR 472.
On an appeal against the exercise of discretion, the appellate court will not intervene unless the primary judge acted on a wrong principle, took into account an irrelevant consideration, failed to take into account a relevant consideration, or made a decision that was “plainly unjust” or “unreasonable.” This standard reflects the principle that the exercise of discretion is not to be lightly disturbed.
Appeal Against Sentence
An appeal against sentence may be brought by the convicted person (arguing that the sentence is manifestly excessive) or by the prosecution (arguing that it is manifestly inadequate). The appellate court will not interfere merely because it would have imposed a different sentence; it must be satisfied that the sentencing judge made an error of principle or that the sentence is “unreasonable or plainly unjust”: House v The King (1936) 55 CLR 499. The court may increase or decrease the sentence, or substitute a different type of penalty.
Appeal Against Conviction
An appeal against conviction challenges the correctness of a guilty verdict. The appeal may be based on an error of law (e.g., misdirection of the jury, wrongful admission of evidence) or on the ground that the verdict is “unreasonable or cannot be supported having regard to the evidence” (the unsafe and unsatisfactory ground). If the appeal is allowed, the conviction is quashed, and the appellate court may order a new trial or enter a verdict of acquittal.
Powers of the Appellate Court
The powers of the appellate court are conferred by statute (e.g., s 6 of the Criminal Appeal Act 1912 (NSW); s 28 of the Federal Court of Australia Act 1976 (Cth)). The court may: dismiss the appeal; allow the appeal and set aside the decision below; substitute its own decision; order a new trial; make any order that ought to have been made; or refer the matter back to the primary court for further hearing.
In civil appeals, the appellate court has the power to re-exercise the discretion of the primary judge, including by making findings of fact and entering judgment. Where an error of law is established, the court may itself determine the matter rather than remitting it for rehearing, provided that it is in a position to do so fairly.
Stay of Proceedings Pending Appeal
The filing of an appeal does not automatically stay the operation of the judgment below. An application for a stay of proceedings must be made to the court that delivered the judgment or to the appellate court. The applicant must demonstrate that there is a “real risk” that the appeal will be rendered nugatory if a stay is not granted, and must weigh the balance of convenience. The court may impose conditions on the stay, including the payment of security for costs.