In the Australian legal system, appeals serve an important purpose of guaranteeing justice and rectifying legal flaws. If a party is not satisfied with the decision of a court, they can appeal to have the ruling overturned. Not all appeals are created equal. The procedure differs depending on whether an appeal is mandatory or discretionary. Litigants, attorneys, and individuals who are part of the legal process need to know these differences.

This article delves into the salient points of distinction between discretionary and compulsory appeals, from the legal bases and processes to implications in the Australian court system.

What is an Appeal?

An appeal is a judicial process in which a higher court considers the ruling of a lower court. The appellant (the party filing the appeal) wants the ruling overturned or changed because of errors in the law, mistakes in procedure, or misapplications of the law. Appeals are a cornerstone of litigation because they allow for a way to overturn court rulings and ensure the integrity of the judicial system.

Learning about Mandatory Appeals

Definition of a Mandatory AppealA mandatory appeal, or an appeal as of right, is an appeal that a higher court is required to hear if a party properly files it. This is to say that if the appellant fulfills the requisite legal requirements, the appeal must go forward, and the court has no option to deny it.

When Do Mandatory Appeals Occur?Mandatory appeals generally occur in certain legal situations, including:

• Criminal Cases: Automatic appeals are permitted on some criminal convictions, particularly in cases where stringent punishments such as life imprisonment or capital punishment have been imposed.
• Some Family Law Issues: Some child welfare or family violence order cases are permitted to automatically appeal.
• Administrative Appeals: Government-related cases, e.g., denials of visa applications by the Administrative Appeals Tribunal (AAT), usually require mandatory appeal to higher courts.

Process of a Mandatory Appeal

• Filing the Notice of Appeal: The appellant has to file within the stipulated period, typically 28 days from the date of the ruling.
• Preparation of Grounds of Appeal: The appellant has to state the particular legal mistakes committed by the lower court.
• Submission of Written Arguments: Both sides present written arguments stating their legal stand.
• Hearing Before the Higher Court: The court hears legal arguments and delivers a ruling.
• Final Judgment: The appellate court can affirm, vary, or reverse the lower court judgment.

Examples of Mandatory Appeals in Australia

• Appeals from the Magistrates' Court to the District Court in certain criminal cases.
• Appeals in visa refusals under Australia's Migration Act 1958 (Cth).
• Appeals under the Family Law Act 1975 (Cth) concerning child protection.

Understanding Discretionary Appeals

Definition of a Discretionary AppealA discretionary appeal is an appeal a higher court may accept or deny. In contrast to mandatory appeals, these appeals mandate the appellant to request permission or leave to appeal, and the court makes a decision whether to accept the case.

When Do Discretionary Appeals Apply?Discretionary appeals generally apply in:

• High Court Appeals: Most High Court of Australia cases necessitate special leave to appeal.
• Sophisticated Civil Disputes: Leave is frequently needed for appeals from the Federal Court to the Full Federal Court.
• Some Criminal Matters: Discretionary appeals are possible against sentences or convictions in the Court of Appeal or Supreme Court.

Process of a Discretionary Appeal

• Application for Leave to Appeal: The applicant makes an application asking permission to appeal.
• Assessment by the Court: The court determines if the case has important questions of law.
• Granting of Leave: In case leave is granted, the appeal goes on to a full hearing.
• Final Judgment: The court can confirm, alter, or reverse the decision.

Examples of Discretionary Appeals in Australia

• Appeals to the High Court of Australia pursuant to Section 35A of the Judiciary Act 1903 (Cth).
• Appeals to the Full Court of the Federal Court in civil proceedings.
• Appeals against sentencing in the Supreme Court of a state.

Key Differences Between Mandatory and Discretionary Appeals

Feature	Mandatory Appeal	Discretionary Appeal
Right to Appeal	Automatic if the criteria are satisfied	Requires permission of the court
Common Cases	Criminal convictions, family law cases, administrative appeals	High Court appeals, complex civil and criminal cases
Court's Role	Must hear the appeal	Has discretion to grant or refuse leave
Process	Direct appeal process	Requires application for leave
Legal Standard	Legal right to appeal	Must demonstrate significant legal error or public interest

Implications of Appeal Type in Litigation

For LawyersKnowing whether an appeal is mandatory or discretionary assists lawyers:

• Plan case presentations.
• Develop more robust legal arguments.
• Advise clients on achievable appeal results.

For Litigants

• In Mandatory Appeals: Litigants are assured of a chance to have their case heard.
• In Discretionary Appeals: Litigants need to ensure there are solid legal grounds to convince the court to hear the case.

For the Legal System

• Guarantees that only important cases reach the top courts.
• Assists in the efficient management of judicial resources.
• Safeguards against vexatious or unnecessary litigation.

How to Negotiate the Appeals Process in Australia

Steps for a Successful Appeal

• Know Your Appeal Rights: Consult with legal professionals to see if the appeal is obligatory or optional.
• File Within Timelines: Appeals should be lodged within legislative timeframes.
• Collect Sound Legal Arguments: Emphasize legal mistakes and precedents in favor of your case.
• Get Professional Advice: Use seasoned litigation attorneys to manage the intricacies.
• Prepare for Possible Outcomes: Be cognizant that the appeal can lead to affirmation, amendment, or reversal of the lower court decision.

External Resources for More Information

• Federal Court of Australia
• High Court of Australia
• Australian Law Reform Commission

It is imperative to know the difference between discretionary and mandatory appeals in order to conduct effective litigation in Australia. Mandatory appeals provide automatic review in certain legal scenarios, whereas discretionary appeals demand wise legal strategy and court permission. Having knowledge regarding when and how to appeal can have a serious bearing on the outcome of legal disputes.

Working through the process of appeal may be difficult. If you require specialist legal support with an appeal,

Contact New South Lawyers today to assist you with expert guidance specific to your situation. Phone us now to talk over your legal avenues!