How the High Court of Australia Selects Appeals: Litigation Process
The High Court of Australia is the country's supreme judicial authority, tasked with interpreting and applying Australian law, especially in federal and constitutional issues. Yet not all cases are accorded the opportunity to be heard by the High Court. Rather, the Court uses its discretion in choosing appeals by employing a procedure called special leave to appeal. Knowing how the High Court determines which appeals to accept is important to litigants, attorneys, and participants in legal proceedings. This article examines the criteria, procedures, and importance of this litigation process.
The Role of the High Court in Australian Litigation
The High Court of Australia was created in 1901 pursuant to Section 71 of the Australian Constitution. It is the ultimate appellate court, deciding disputes concerning the Constitution, federal law, and important legal principles. The Court adjudicates cases from:
The High Court enforces consistency in the interpretation of Australian laws and establishes legal precedents, which lower courts are bound to obey. Still, because of the sheer amount of litigation, it cannot accept all appeals before it, thus having to employ a rigorous special leave to appeal mechanism.
What is Special Leave to Appeal?
Special leave to appeal is the procedure by which litigants are required to apply for permission from the High Court to have their case heard. In contrast to lower courts where appeals are heard as of right, the High Court has discretion in determining which cases are worthy of its attention. The procedure ensures that the Court only hears cases of legal importance, avoiding frivolous litigation and saving judicial resources.
Factors Used by the High Court in the Granting of Special Leave
Section 35A of the Judiciary Act 1903 (Cth) requires the High Court to look at a number of factors before deciding whether to grant special leave:
Legal Importance of the CaseOne of the most important considerations in the decision is whether or not the case involves a question of general importance of a legal nature. The High Court largely only hears cases that:
Clarify or develop principles of law.
Have significant implications for the broader community.
Affect public interest, such as cases involving human rights, constitutional interpretation, or government policy.
Conflicting Decisions in Lower CourtsThe High Court is usually called upon when there exist inconsistent judgments in various courts, such as creating uncertainty in the law. Where various State Supreme Courts or the Federal Court have given conflicting decisions on a comparable issue, the High Court can grant special leave to fix a uniform precedent.
Error in Application of LawIf the lower court has committed a manifest legal mistake, especially in the interpretation of statute or the application of common law rules, the High Court is likely to consider the appeal. This ensures lower courts are in line with sound legal principles.
Interests of JusticeIn certain situations, the High Court can look at whether the denial of hearing an appeal would lead to a miscarriage of justice. For instance, if the decision of a lower court has brought about considerable injustice or unfairness, the High Court can intervene to correct the situation.
Likelihood of SuccessThe High Court determines if the appeal has a reasonable chance of succeeding. If the appeal does not have merits or only wants to reargue findings of fact and not the issues of law, the Special Leave will not be granted.
The Special Leave to Appeal Process
Filing an ApplicationA party wishing to appeal must prepare and file an Application for Special Leave to Appeal with the High Court. The application states:
The issues of law involved.
Grounds on which the appeal may be heard.
Precedent and legal argument in favor of hearing the appeal.
Written ArgumentsApplicants should make written submissions explaining the grounds of their application. The respondent (the adverse party) also has permission to make a submission stating reasons why special leave is not to be granted.
Hearing by the JusticesApplications in general are settled without oral hearings and are disposed of on written submissions. For more complicated cases, there can be a brief oral hearing in the presence of two or three Justices.
Court's DecisionThe Court has two options:
Grant Special Leave – to go forward to a hearing in full in the High Court.
Refuse Special Leave – and thus maintain the ruling in the lower court, from which no appeal would be permitted.
Recent High Court Cases and Their Relevance
As an example of how the High Court determines what appeals to grant, let us consider some interesting recent cases:
Case Study 1: Love v Commonwealth (2020)This case determined whether Aboriginal Australians, as non-citizens, were outside the jurisdiction of deportation legislation. The High Court was granted special leave because of the constitutional nature of the question, and the court eventually decided that Aboriginal Australians cannot be classed as "aliens" in Australian law.
Case Study 2: WorkPac v Rossato (2021)The High Court considered whether casual workers who worked on ongoing, long-term contracts were entitled to the rights of permanent employment. The ruling had broad implications for employment law, impacting businesses and employees throughout Australia.
Case Study 3: Palmer v Western Australia (2021)The case was a constitutional challenge to WA's border closures during the COVID-19 pandemic. The Court granted special leave because of the important public health and constitutional issues at stake.
Challenges in the High Court Appeal Process
Although appealing to the High Court is a fundamental aspect of Australian litigation, it has a number of challenges:
Cost and AccessibilityAppealing to the High Court is costly, involving high legal fees for filing applications, making submissions, and holding hearings. This makes access to the Court difficult for individuals and small organisations.
Strict Selection CriteriaSince the High Court only hears cases of significant importance, many appeals are rejected, leaving some litigants without further legal recourse.
Time DelaysThe process of applying for special leave and awaiting a decision can take months, delaying justice for appellants and respondents alike.
The High Court of Australia has an important function in defining the country's legal framework through the judicious choice of appeals that present important issues of law. Under the special leave to appeal mechanism, the Court guarantees that only appeals presenting wide-ranging implications in law or material errors of law are heard on a full hearing. Litigants embarking on litigation in Australia must understand the High Court appeal criteria and process.
High Court litigation is best navigated with the help of expert legal advice. If you are thinking of appealing or need help in the litigation process,
Contact New South Lawyers today. Our skilled legal team can offer strategic advice and representation to achieve the best result for your case.
