Appeals

An appeal is an application to a higher court by a party who believes that a decision of a lower court was incorrect. There is no right at common law to appeal against a decision, so a party can only appeal against a decision where an appeal is allowed by legislation.

Nature of appeals

The 'trial court' is the court that made the decision which is being appealed against. There are three general types of appeal from a decision of the trial court:

1. Appeals in the strict sense

An appeal where the appellate court, in determining whether the trial court made a mistake, is limited to considering the evidence that was before the trial court at the time that the trial court made the decision, and the law at the time of that trial. That is, the appellate court cannot consider any fresh evidence that may have come to light since the trial, or any changes in the law. The appeal is limited to particular issues raised by the appellant and therefore the appeal does not involve a rehearing of the whole case.

2. Appeals by way of rehearing

An appeal where the appellate court considers the law as at the time of the determination of the appeal, and may consider events up until the rehearing. Usually the appellate court can also receive fresh evidence. The appeal may be limited to particular issues raised by the appellant, or the appeal court may review the whole of the decision of the trial court.

3. Appeals by way of hearing ‘de novo’

An appeal where the appellate court retries all the issues tried by the trial court, without being limited to the evidence that was before the trial court, is called an appeal ‘de novo’. Each side presents their case again, and fresh evidence may also be presented. The court rehears the whole matter and does not simply review the decision before the lower court.

The legislation that provides for an appeal will generally also provide whether there is a right of appeal, or whether an appeal requires the consent of the appellate court (this is referred to as obtaining ‘leave’ to appeal). Legislation may also specify whether the appeal is only on a question of law, or whether the appellate court can consider whether the trial court made a mistake as to fact in its decision.

Legislation may also determine what the appeal court can do if it decides that there was an error by the trial court. Usually the appeal court will be able to make any decision that the trial court could make, or vary the decision of the trial court, or send the matter back to the trial court to be heard again correctly. However, legislation may impose limits on the remedies available to the appeal court.

Appeal courts usually consist of three or more judges. Each judge can make their own decision, or they can combine to write joint decisions. The decision of a majority of the judges of the appeal court is the decision of the court. For example, if the appeal court is made up of three judges, of whom two judges are in agreement and the other judge is in dissent, the decision of the appeal court is the decision of the two judges in agreement. A unanimous decision is a decision where all the judges agree on the point in question.

Appellate structure

The structure of appeals from Australian courts is generally as follows:

  • from an inferior court to another inferior court of intermediate status (for example, from the Local Court to the District Court)
  • from an inferior state or territory court to a single judge of the Supreme Court or other superior court of that state or territory
  • from an inferior state or territory court to a Full Court of the Supreme Court of that state or territory
  • from an inferior state or territory court exercising jurisdiction under a federal law to a single judge of a superior federal court
  • from a single judge of the High Court, the Federal Court, the Family Court, the Supreme Court of a state or territory to the Full Court, Court of Appeal or Court of Criminal Appeal of that court
  • from the Federal Magistrates Court to the Federal Court or the Family Court
  • from a single judge of the Supreme Court of a state or territory to the Full Court of the Federal Court
  • from the Federal Court, the Family Court or the Supreme Court of a state or territory to the High Court.

Some courts have only appellate jurisdiction (for example, the NSW Court of Criminal Appeal only hears appeals from decisions in criminal cases), while some courts have both appellate and original jurisdiction (for example, the NSW District Court hears appeals from decisions of the Local Court, and also has original jurisdiction in many civil and criminal cases).

High Court appeals

In its role as the highest court of appeal, the Full Court of the High Court generally hears appeals from:

  • a decision of a single judge of the High Court in its original jurisdiction
  • any other federal court or court exercising federal jurisdiction
  • Full Court of state and territory Supreme Courts of Appeal.

Generally, an appeal may not be brought to the High Court without the permission (‘special leave’) of the Court. In deciding whether to grant special leave, the Court considers:

  • whether the proceedings involve a question of law that is of public importance
  • whether it is necessary to resolve differences of opinion between different courts, or within the same court, as to the state of the law
  • whether the interests of the administration of justice, whether generally or in the particular case, require consideration by the High Court of the judgment.

Different types of review

An appeal is a right created by legislation to apply to a higher court to determine whether a decision of a lower court was correct, as described above. There are other forms of review that may achieve similar results to an appeal.

Merits review

A right of merits review applies to decisions by government agencies, rather than decisions of courts. It is a right created by legislation for a person who is affected by a decision of a government agency to have that decision reviewed by other government officers. The review may be internal (that is, the review is done by other government officers within the agency) or external (that is, the review is done by a body independent of the government agency, usually a tribunal). In undertaking a merits review, the reviewer looks not just at whether the original decision was correct, but also at whether the decision was the preferable decision in all the circumstances of the case. Merits review is not undertaken by courts, which are concerned with the legality of decisions, rather than their merits (see Tribunals).

Judicial review

This is a common law right (that is, it does not depend on legislation) to apply to a higher court to decide whether a decision of a government officer or of a lower court or a tribunal breached the law in one of several ways. Judicial review is also known as the ‘supervisory jurisdiction’ of the superior courts, because the superior courts take it on themselves to ensure that the actions of the executive government and of the lower courts are correct according to law.

There were traditionally four grounds for applying for judicial review of a decision:

  • the decision was ultra vires (it was beyond the legal power or authority of the decision-maker to make the decision)
  • the decision was made in breach of the rules of procedural fairness (for example, if the decision-maker did not give the person concerned a fair hearing)
  • in the case of a court or tribunal, there was a jurisdictional error (the court or tribunal mistakenly decided that it had (or did not have) jurisdiction over a particular matter)
  • in the case of a court or tribunal, there was an error of law on the face of the record (there was a mistake of some kind in the record of the court’s decision, not in its reasons for decision).

Other remedies include an injunction (a court order requiring a person to refrain from a breach of the law) and a declaration (a court judgment that conclusively declares the pre-existing rights of the parties, without separately ordering a person to do or refrain from doing anything). 

The traditional remedies that a court exercising supervisory jurisdiction could grant were called the prerogative writs. They consisted of the writs of: 

  • prohibition (which prohibit the lower court or tribunal from proceeding to exceed its jurisdiction)
  • certiorari (which cancels or ‘quashes’) a decision already made by the lower court or tribunal and removes the matter into the higher court)
  • mandamus (which compels an administrator to exercise power or jurisdiction according to law).

In NSW, these are now orders under the Supreme Court Act 1970, section 69.