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 with the support of experienced litigation lawyers. 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 whether the original decision was within the law.
What is a Full Appeal?
A full appeal is when a party has the 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. Serious errors of law or matters of very great public concern are the most common grounds for a full appeal.
Features of a Full Appeal
- No prior permission (leave) needed.
- The appeal is 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 based on 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, such as 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 sentence appeals: 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 a 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
The process of appeal involves several steps, whether it is a full appeal or an application for leave to appeal under Australian criminal and civil law. Appealing a court decision requires strict compliance with procedural rules.
Step 1: Filing Notice of Appeal
A party wishing to appeal must submit a Notice of Appeal within the time specified. The document sets out the grounds of appeal and the legal basis of the challenge.
Step 2: Seeking Leave (if required)
Where leave is required, the applicant must make a leave-to-appeal application explaining why their case should be heard. The court considers the merits before deciding whether to grant leave.
Step 3: Filing Written Submissions
Both sides submit written submissions outlining their legal arguments. These submissions must cite relevant case law and legislation.
Step 4: Hearing the Appeal
In certain appeals, the court conducts an oral hearing where both parties present arguments before a panel of judges. The court then deliberates and delivers its judgment.
Step 5: The Court’s Decision
- Uphold the ruling (appeal dismissed)
- Reverse the ruling (in favour of the appellant)
- Vary the decision
- Order a retrial
Key Considerations Before Lodging an Appeal
- Legal grounds: Appeals must be based on errors of law, not dissatisfaction with the outcome.
- Time limits: Appeals must usually be filed within strict deadlines, often 28 days.
- Costs: Appeals can be expensive, involving legal and court fees.
- Prospects of success: Legal advice is essential to assess the likelihood of success.
- Impact on parties: Appeals can prolong disputes and add emotional and financial strain.
Authoritative External Resources
Understanding the distinction between a full appeal and an application for leave to appeal is essential when navigating the Australian legal system. A full appeal provides immediate access to a higher court, while a leave-to-appeal application requires prior judicial approval. Both processes demand careful legal planning and analysis.
If you are considering an appeal, professional legal advice is strongly recommended.
Contact New South Lawyers today to discuss your case and determine the most appropriate legal recourse available to you.