Appeals

Question 1

is there a right to appeal?

Answer 1

no, permission must be obtained.

Question 2

how can parties apply for permission?

Answer 2

• Parties can make an oral application for permission at the end of the hearing. If this is refused or not done, a written application can be made.

Question 3

how is a written application for permission usually dealt with?

Answer 3

o Written application is usually dealt with on paper (i.e. without a hearing)

Question 4

what is the position regarding permission hearings in the court of appeal?

Answer 4

o In the CoA, if they decide the application cannot be determined fairly without a hearing parties they must list a hearing 14 days after the relevant direction

o If the CoA refuse permission at the hearing then this is the end of the process, there is no further right of appeal

Question 5

what are the time limits to apply for permission to appeal?

Answer 5

• Application must be made within 21 days of a CC or HC decision and 28 days for a COA decision

Question 6

what is the test for permission?

Answer 6

• There must be a real prospect of success (i.e. more than fanciful); or
• There is some other compelling reason why the case should be heard (i.e. an important question or law or policy)

+ if the appeal is to the Court of Appeal or Supreme Court, the case must raise an important principle or practice

Question 7

when it is the second appeal, who grants permission?

Answer 7

• Permission is required from the Court of Appeal who would hear the case

Question 8

how does the test for permission change on second appeal?

Answer 8

• The same test is applied, however in relation to the ‘important point of principle’ it must be in relation to a new principle, not correcting an established principle. This is why it is quite rare.

Question 9

who will hear the appeal of a DJ in the CC?

Answer 9

CJ in the CC

Question 10

who will hear the appeal of a master/DJ in the HC?

Answer 10

HCJ

Question 11

who will hear the appeal of a CJ?

Answer 11

HCJ

Question 12

who will hear the appeal of a HCJ?

Answer 12

Court of Appeal

Question 13

what is a leapfrog appeal? Explain the route

Answer 13

When an appeal is heard by a higher appellate court than usual, i.e.:
* Appeal from CC/HC usually heard in the CC / HC - jump to the CoA
* Appeal from HC usually heard in CoA - jump to SC

Question 14

when will a leapfrog appeal be allowed from the CC/HC to the COA?

Answer 14

o The case must raise an important principle or practice or there is some other compelling reason for the CoA to hear it
o Permission must be given by either the CC/HC or the CoA

Question 15

when will a leapfrog appeal be allowed from the HC to the SC?

Answer 15

Exceptional and usually urgent cases only. 2 stages:
1. Trial judge grants a leapfrog certificate
2. Permission to appeal by the SC

Question 16

what are the grounds of appeal?

Answer 16

The court can only grant an appeal if the decision of the lower court was:
o Wrong (i.e. law, interpretation of facts or exercise of discretion); or
o Unjust because of a serious procedural irregularity in the proceedings of the lower court

Question 17

on what basis may a decision be ‘wrong’?

Answer 17

• Law
• Exercise of discretion
• Facts

Question 18

re: grounds (wrong)

explain wrong as to law

Answer 18

i.e. lower court wrong interpreted or applied statute

Question 19

re: grounds (wrong)

explain wrong as to exercise of discretion

Answer 19

the judge either erred in their approach; left out evidence; considered evidence they should not have or did not fairly balance various factors

Question 20

re: grounds (wrong)

explain wrong as to facts

Answer 20

the judge’s finding of fact was unsupported by evidence or no reasonable judge would have reached the same conclusion

Question 21

give an example was to how a decision may be unjust

Answer 21

• More difficult to evidence. Example - judge gave inadequate reasons or did not let a party make submissions