Topic 11: Appeals

Question 1

Topic 11: Appeals

Answer 1

Appealing is not a common law right, but a statutory right.

Question 2

Right to an appeal

Answer 2

Applies to an appeal in the Supreme Court, District Court, Industrial Court, Land Appeal and the Planning and Environment Court.

Question 3

Starting appeal or making application for new trial

Answer 3

An appeal started or an application for a new trial is started by filing a notice of appeal with the registrar of the Supreme Court at Brisbane.

No matter where the matter is heard, it must be filed there and a copy filed where the matter will be heard

Question 4

Content of Notice of Appeal

Answer 4

A notice of appeal must be in the approved form and state:

• whether whole or part of the decision is appealed
• Briefly and specifically the grounds of appeal
• the decision the appellant seeks

If leave is given to start an appeal, the notice of appeal must set out:

• The order giving leave
• concise statement of the reasons for why leave is given
• specific questions for which leave was given

Question 5

Time for appealing

Answer 5

An appeal must be filed within 28 days after the date of the decision appealed from and be served as soon as practicable.

Question 6

Parties to an appeal

Answer 6

It is not necessary that all parties in the first matter be in the appeal. It is only the relevant party necessary for the appeal.

Question 7

Cross Appeals

Answer 7

After your party puts in an appeal, another party may do the same in a cross appeal.

A cross appeal must state:

• the part of the decision to which the cross appeal relates
• Briefly and specifically the grounds of appeal
• the decision the respondent seeks

The respondent must file a notice of cross appeal within 14 days after the day of service of the notice of appeal on the respondent and serve a copy as soon as practicable.

Question 8

Appeal Book

Answer 8

An appeal book contains documents from the trial to appeal with an added outline of argument to why the outcome should be different to before.

Must be filed and served on both parties.

Question 9

Setting a date for an appeal

Answer 9

The registrar will set the date.

Question 10

Stay of decision under appeal

Answer 10

Your outcome continues until you apply for a stay.

To grant a stay, the court will look at

• whether or not the case has been made that its appropriate for a stay to be granted
• the ordinary principle is you are entitled to your fruits of judgement and there must be a sound reason to suspend that right
• consider the risk of the successful applicant to not be restored to their former decision if judgement is executed.

Question 11

Nature of appeal and application for new trial: Rehearing

Answer 11

This occurs where the matter is reheard on existing evidence + anything new e.g new laws. It is a new determination, not trying to find fault in previous trial.

Question 12

Strict appeals

Answer 12

considers whether the trial court made an error in their judgement. Limited to the rights and liabilities the parties had at the time.

Question 13

Hearing de novo

Answer 13

Court hears the whole matter freshly with all witnesses back up and rehearing all evidence as if not done before.

Question 14

Appeals to the High Court

Answer 14

Must obtain special leave to get to the High Court.

If you are appealing from a decision from a justice of a High Court exercising original jurisdiction, then you have an inherent right.

If the lower courts have a different opinion on matters, the High Court takes it as an opportunity to clarify what the law is.

Question 15

Procedure for appeals to District Court from Magistrates Court

Answer 15

Lower down the food chain and less formal or expensive.

Must file notice of appeal with the registrar of the District Court to which the appeal will be heard. Also file a copy in the magistrates court.

On filing in the magistrates court a notice of appeal, the registrar must arrange to the registrar of the District Court copies of all documents used in the proceeding to which the appeal is brought.

Question 16

Notice of appeal

Answer 16

Must state:

• name and last known address of each respondent
• whether the appellant seeks to put further evidence
• if so, state the nature of the of any evidence

The respondent has 14 days to respond to the notice of appeal.

Question 17

Preparation for hearing

Answer 17

The appellant and respondents who have filed must confer with the view to identifying:

• matters in issue in the appeal
• whether further evidence is sought to be put before court
• how long the hearing of appeal may take.

When the parties agree or not, they must file a certificate of readiness in approved form.

Question 18

Grounds of Appeal

Answer 18

• Mistake of Law

- Mistake of fact

Question 19

Exercise of discretion

Answer 19

If the judge was exercising discretion at the time, the view will be that the judge that heard the evidence is more likely to have made the right choice than a judge who did not have that opportunity.

Question 20

Finding of facts

Answer 20

Involves three classes

1. Cases involving the failure of the trial court to properly take into account all the evidence
2. findings as to credibility – here they will not overturn unless they are satisfied the judges advantage of seeing and hearing the witness give evidence was not sufficient to explain the finding. Very rarely interfered with.
3. inferences that may be drawn from facts found by the trial court.

Question 21

Cost of appeals

Answer 21

Costs follow the event. However, it must include a Appeal Costs Fund (ACF).

This applies where a pft in an appeal may lose on a matter of law, not being their fault. The Pft should not have to pay for that mistake of the court so they can claim legal costs from ACF.