Types of Appeals
Not every decision can be appealed to the High Court. If you are dissatisfied with a case in any Court or Tribunal at first instance, there is generally (and not always) a right of appeal. These appeals may come in two forms:
- Merits appeals, where the decision itself can be reviewed on its merits where the appeal will essentially reconsider the evidence and make a fresh decision which may or may not accord with the original decision;
- An appeal based on an error of law. This is not a reconsideration of the facts (although the facts will be considered as against the ultimate legal challenge) and it is much different to a merits appeal. It is not an opportunity to complain about a decision that could have been determined differently, even if the apparent decision seems unfair. Such grounds include a misapplication of law by the court, a determination of a fact which was contrary to the evidence, a failure to provide a party with reasons for the decision, a failure to consider a relevant fact or law, placing too much weight on a fact, a denial of procedural fairness to a party, a miscarriage of the judges discretion. These are outlined in the underpinning law which provides the appeal right as well as in cases most notably House v The King.
Outcomes of an Appeal
What the Court will decide
The Court will decide to:
- Dismiss the appeal (that is, not grant the appeal relief being sought)
- Uphold the appeal (that is, grant the appeal)
If the Appeal is Upheld the Court will generally:
- Send the matter back for a re-hearing to another judge;
- Substitute a new decision.
Appealing to the High Court
Appealing to the High Court of Australia is a two-step process. You first need to apply for and be granted, special leave to appeal. Special leave refers to a procedure in the High Court of Australia where parties apply to have their cases heard by the court. During this process the court decides whether or not the appeal a party is attempting to raise merits the attention of the High Court. The High Court may have regard to any matters that it considers relevant but shall have regard to:
- whether the proceedings in which the judgment to which the application relates involve a question of law:
- that is of public importance, whether because of its general application or otherwise; or
- in respect of which a decision of the High Court, as the final appellate court, is required to resolve differences of opinion between different courts, or within the one court, as to the state of the law; and
- whether the interests of the administration of justice, either generally or in the particular case, require consideration by the High Court of the judgment to which the application relates.
If you want to appeal you need to act urgently as the time is often limited and there are complex considerations and pleadings which will likely need to be prepared. Contact us at Michael Vassili Lawyers for expert guidance. Time is limited, so don’t delay seeking justice.
