In Australian litigation, the appeal process allows parties to challenge a legal decision they believe was incorrect. However, not all cases can proceed directly to a full appeal. Depending on the nature of the case and the court involved, some parties must first obtain leave (permission) before appealing. Understanding the key differences between a full appeal and a leave-to-appeal application is essential for anyone considering legal action. This article takes a detailed glance at both procedures, their relevance, and under what circumstances each is used in Australian courts.

What is an Appeal in Litigation?

An appeal is a request in writing to have a decision made by a lower court reviewed and reversed by a higher court. Appeals are not rearguments of the case but a review of whether there were legal mistakes that influenced the decision. The appeal court does not rehear facts but reviews if the original decision was within the law.

What is a Full Appeal?

Full appeal is when a party has a right to automatically appeal a ruling of a lower court. It is when they do not need permission from the court to move ahead with the appeal. In most cases, full appeals are permitted in those cases where there are serious errors of law or matters of very high public concern.

Features of a Full Appeal

• No prior permission (leave) needed.
• The appeal on a matter of substance of law.
• The appellate court examines if the law was applied properly.
• Involves extensive legal arguments and, in certain instances, oral hearings.
• The appellate court can affirm, reverse, or alter the lower court's ruling.

When Can You File a Full Appeal?

Full appeals in Australia are usually permitted in the following situations:

• Appeals from a Supreme Court to the High Court: Certain constitutional issues might not need leave.
• Final decisions in civil proceedings: Where the court has decided in a manner that profoundly affects rights and obligations.
• Criminal law cases: Where there are compelling reasons to contest that the verdict was unreasonable or a conclusion to a mistake of law.

What is a Leave-to-Appeal Application?

A leave-to-appeal application is an application to a superior court for leave to appeal a ruling. Not every case is eligible for automatic appeal, so a party has to first establish that their case has enough merit. If leave is awarded, the case goes on to a full appeal. If leave is refused, the ruling of the lower court is still binding.

Features of a Leave-to-Appeal Application

• Needs permission from the court of appeal.
• Typically reserved for appeals against interim rulings or lesser decisions.
• The application is required to establish a reasonable prospect of success.
• Can be determined without an oral hearing, on the basis of written submissions.
• If granted, the appeal then goes forward in the usual way.

When is Leave to Appeal Necessary?

Leave to appeal is necessary in the following cases:

• Interim Orders: Rulings which do not finally dispose of the whole case, e.g., interlocutory judgments.
• Family Law Appeals: Some orders, like parenting orders, might be subject to leave.
• Federal Court Appeals: Civil appeals to the Federal Court are generally subject to leave unless otherwise stated.
• Criminal Sentences: Defendants in sentencing appeals frequently need leave.

Differences Between a Full Appeal and a Leave-to-Appeal Application

Feature	Full Appeal	Leave-to-Appeal Application
Permission Required	No	Yes
Prevalent in	Final orders, constitutional issues	Interim orders, procedural decisions
Basis of Review	Legal error in the judgment	Whether an appeal is meritorious
Probability of Success	Greater if significant legal error exists	Must establish a good case for appeal
Power of the Court	Can affirm, vary, or reverse the decision	Can grant or refuse leave

Process of Appeal in Australia

Process of appeal takes a number of steps, be it a complete appeal or application for leave to appeal.

Step 1: Filing Notice of AppealA party wishing to appeal must submit a Notice of Appeal within the time specified. The document sets out the grounds of appeal and the grounds of challenge on law.

Step 2: Seeking Leave (if required)Where leave is required, the applicant needs to make a leave-to-appeal application, explaining why their case ought to be heard. The court considers the merits before ruling on whether or not to grant the appeal.

Step 3: Filing Written SubmissionsBoth sides submit written submissions outlining their positions in law. These submissions must cite case law and legislation relevant to the issue.

Step 4: Hearing the AppealIn certain appeals, the appeal court conducts an oral hearing at which both sides make arguments in front of a panel of judges. The court then deliberates and delivers a judgment.

Step 5: The Court's DecisionThe appeal court can:

• Upbhold the ruling (appeal is rejected)
• Reverse the ruling (in the appellant's favour)
• Reform the decision (partially reversing the ruling)
• Direct a retrial (remit the case to a lower court for retrial)

Chief Considerations Before Lodging an Appeal

Before appealing, parties should take into account:

• Legal Reasons: Appeals have to be grounded on mistakes of law and not merely disappointment with the verdict.
• Time Constraints: Appeals must be lodged within strict time frames, usually 28 days after the judgment.
• Costs Involved: The appeals process can prove to be expensive, with lawyer fees and court charges.
• Prospects of Winning: Professional advice from lawyers is useful in finding out the prospect of winning the appeal.
• Influence on Parties: Postponement of finalizing cases with an appeal has cost and psychological implications.

External Resources for More Information

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

It is important to know the distinction between a full appeal and an application for leave to appeal when dealing with the Australian legal system. A full appeal grants immediate access to a higher court, whereas an application for leave to appeal demands prior permission. Both methods involve meticulous legal scrutiny and planning.

If you are thinking of appealing, professional legal counsel is strongly advised.

Contact New South Lawyers today about your case and the most appropriate legal recourse available to you.