Appeals

Question 1

Where is permission NOT required to appeal a decision in CC/HC?

Answer 1

• against committal order
• refusal to grant habeas corpus
• secure accomodation order

Question 2

Where may an application for permission to appeal be made?

Answer 2

• to lower court when judgment handed down (oral)
• to appeal court in an appeal notice

Question 3

Where lower court refuses application - what can application do?

Answer 3

• application may be made to the appeal court
• order refusing permission must specify - court to which further application should be made, and level of judge which should hear it.

Question 4

How will application be considered at CC/HC?

Answer 4

• in the first instance, on paper, without oral hearing
• if declined on paper - may request oral hearing within 7 days of service of notice of refusal
• if judge consider application totally without merit , must state as such (cannot request oral hearing)

Question 5

How will application be considered at CoA?

Answer 5

• on paper without oral hearing in first instance
• judge then may direct that it be heard at oral hearing if of opinion it cannot be fairly determined on paper
• oral hearing must be listed within 14 days in front of same judge
• court may direct party to focus on particular submissions and that respondent should serve and file written submissions and attend hearing.

Question 6

Permission criteria for FIRST APPEALS

Answer 6

• real prospect of success OR
• some other compelling reason
  (order may limit issues and be made subject to conditions)

Question 7

Permission criteria for SECOND APPEALS

Answer 7

• real prospect of success AND
• raise an important point or principle or practice OR
• some other compelling reason for CoA to hear it

Question 8

Time constraints for appellant’s notice

Answer 8

• (unless directed otherwise) file at court within 21 days of decision which it wishes to appeal
• serve notice on each respondent ASAP, NLT 7 days after filed

Question 9

Time constraints for respondent’s notice
(who seeks to appeal/ask appeal court to uphold the decision of the lower court for reasons different from or additional to those given by lower court)

Answer 9

• file notice with court NLT 14 days after date served with appellant’s notice
• serve notice on appellant/other respondents ASAP and NLT 7 days after filed.

Question 10

lower court/appeal court may direct an official transcript of judgment of lower court be obtained at public expense for purposes of appeal IF…

Answer 10

• applicant qualifies for fee remission / in poor financial circumsstances that cost would be excessive burden AND
• necessary in interest of justice for transcript to be obtained.

Question 11

Can parties agree to extend/vary time limits

Answer 11

NO - only court may direct otherwise

Question 12

Does an appeal operate as a stay of any order/decision by lower court?

Answer 12

No - unless ordered otherwise, appeal from immigration and asylum chamber

Question 13

Power of the appeal court

Answer 13

• affirm, set aside, vary any order
• refer for determination by lower court
• order new trial/hearing
• make orders for payment of interest
• make a costs order
  appeal from CoA with jury - may make/vary award for damages

Question 14

How will appeals be limited?

Answer 14

• to a review of the decision of the lower court
• will not receive oral evidence/evidence that was not before lower court unless ordered otherwise
• appeal allowed where decision WRONG or UNJUST because of SERIOUS procedural irregularity

Question 15

Special grounds for admittance of new evidence in appeal

Answer 15

• evidence could not have been obtained with reasonable diligence for use at trial
• evidence would have important influence on result of case (need not be decisive)
• apparently credible