Appeals in the law are creatures of statute: Attorney-General v Sillem [1864] EngR 352; (1864) 10 HLC 704 at 720-721, Mickelberg v The Queen [1989] HCA 35, Deane J at [4], R v Ferguson; ex parte A-G (Qld) [2008] QCA 227 at [20]. In other words, they never existed at common law, but were instead created by legislation. Therefore, appeals can only be made and determined in accordance with statutory provisions and Court rules about appeals, and primary regard must be had to them. The “common law” of appeals is the case law of interpretation of such provisions.

The joint judgment of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy (2003) 214 CLR 118 distinguished between four types of appeals:

“[20] Appeal is not, as such, a common law procedure. It is a creature of statute. In Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd, Mason J distinguished between (i) an appeal stricto sensu, where the issue is whether the judgment below was right on the material before the trial court; (ii) an appeal by rehearing on the evidence before the trial court; (iii) an appeal by way of rehearing on that evidence supplemented by such further evidence as the appellate court admits under a statutory power to do so; and (iv) an appeal by way of a hearing de novo. There are different meanings to be attached to the word “rehearing”. The distinction between an appeal by way of rehearing and a hearing de novo was further considered in Allesch v Maunz. Which of the meanings is that borne by the term “appeal”, or whether there is some other meaning, is, in the absence of an express statement in the particular provision, a matter of statutory construction in each case.”

It is important for practitioners to understand the different types of appeals in order to be able to know the nature of each type, and therefore how they will be considered and determined. Such knowledge is a prerequisite for practitioners to appraise themselves of the prospects of success in such appeals they may act in.

What is it?

An appeal in the strict sense, also known as an appeal stricto sensu, is the traditional type of appeal: in common law cases, the appellate court could ordinarily review only rulings of law. In England, the Criminal Appeal Act of 1907 introduced the right to criminal appeals against conviction on a question of law.

An appeal in the strict sense is an appeal where the issue is whether the judgment below was right on the material before the trial court: Ponnamma v. Arumogam (1905) AC 383, at p 388. Essentially, the appeal is on a question of law and the central issue is whether the primary judge has committed an error of law.

In Mickelberg v The Queen [1989] HCA 35, Mason CJ noted that:

“an appellate court, in hearing an appeal in the proper sense of the term, is called upon to redress error on the part of the court below. In deciding whether there was error, the appellate court looks to the materials which were before the court below…

“in an appeal in the strict sense the appellate court is confined to the question whether “the order of the Court from which the appeal is brought was right on the materials which that Court had before it”

In such an appeal, the parties are bound by the way they conducted their cases at first instance. The Court may  only set aside the judgment below on a ground not previously raised if the circumstances of the case are such as to justify that exceptional course: Chalmers Leask Underwriting Agencies v. Mayne Nickless Ltd (1983) 155 CLR 279, at p 283.

However, no new facts or evidence can ordinarily be admitted: R v Ferguson; ex parte A-G (Qld) [2008] QCA 227 at [20].

Discretionary decisions will not be set aside, unless there is a clear error by the primary judge. As the High Court stated in the often-quoted decision of House v The King (1936) 55 CLR 499:

“It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts, it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

Not all errors of fact will lead to an appeal being successful. Where the error of fact has not affected the final result or its effect has been negligible, no appeal lies. In De Winter and De Winter (1979) FLC 90-605, Gibbs J with whom Aickin J agreed said at 78,092:

 

“… The question is whether the invalid reason has influenced the ultimate conclusion, or whether the error was immaterial; if the error did affect the conclusion, the result may nevertheless be so plainly right that it can be allowed to stand notwithstanding the unsoundness of some of its foundations.”

Also, findings of fact based on the credibility of witness testimony will only be reversed if the trial judge “has failed to use or has palpably misused his advantage”, or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or the findings are “glaringly improbable”: Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 (Brennan and Gaudron JJ).

Which appeals?

In Queensland, a person convicted in the Supreme or District Court may appeal to the Court against the person’s conviction on any ground which involves a question of law alone. Also, appeals brought by the Attorney-General against sentence under s 669A(1) of the Criminal Code are strict appeals: R v Ferguson; ex parte A-G (Qld) [2008] QCA 227 at [20].

In civil matters, rule 765(2) of the Uniform Civil Procedure Rules 1999 provides that an appeal from a decision, other than a final decision in a proceeding, or about the amount of damages or compensation awarded by a court, is brought by way of an appeal in the strict sense.

An appeal against a decision not to extend a limitation period falls within this category: Kambarbakis v G & L Scaffold Contracting Pty Ltd [2008] QCA 262, [31] (Holmes JA).

What is it?

An appeal by rehearing on the evidence before the trial court is similar to an appeal in the strict sense. Again, findings of fact based on the credibility of witness testimony will only be reversed if the trial judge “has failed to use or has palpably misused his advantage”, or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or the findings are “glaringly improbable”: Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 (Brennan and Gaudron JJ).

As the High Court said in Fox v Percy (2003) 214 CLR 118:

“The “rehearing” does not involve a completely fresh hearing by the appellate court of all the evidence…

“The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”. On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.

Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect”. In Warren v Coombes, the majority of this court reiterated the rule that:

‘[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.””

As McGill DCJ observed in Barry v. Queensland Nursing Council [2001] QDC 146, the appeal can be described as:

“an appeal where the appellate tribunal was entrusted with making its own determination on the evidence before it, whether or not new evidence was received. The position was not one where the decision under appeal was to be disregarded, and the proceedings conducted as if there had not already been any decision, but the Misconduct Tribunal was required to make up its own mind on the matter, although being entitled to have regard to the views expressed on a relevant point by the original decision maker.”

It follows from the above that the main difference between an appeal by way of rehearing on the original evidence and a strict appeal is the requirement in the rehearing that the appeal Court draws its own conclusions from the undisputed facts and the factual findings of the trial judge from the disputed facts.

However, an error on the part of the primary judge still needs to be demonstrated in order for the appeal to be successful: Norbis v Norbis (1986) CLR at 518- 519 (per Mason and Deane JJ); Allesch v Maunz (2000) 203 CLR 172 (Majority), Williams v The Minister [2000] NSWCA 255 at [61] per Heydon JA, Scrivener v Director of Public Prosecutions [2001] QCA 454 at [10]; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 at [30]; Coster v Bathgate [2005] QCA 210, Teelow v Commissioner of Police [2009] QCA 84; [2009] 2 Qd R 489 at [4]; Commissioner of Police v Al Shakarji [2013] QCA 319 at [7], [65]; White v Commissioner of Police [2014] QCA 121 at [8], Berge v Thanarattanabodee [2018] QDC 121; Hemelaar & Anor v Walsh & Ors [2017] QDC 151 at [7]. However, “a sufficiently clear difference of opinion may necessitate that conclusion.”: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 at [29].

Furthermore, parties are largely bound by the way they conducted their cases at first instance. If a new matter is raised and evidence could have been given which by any possibility could have prevented the point from succeeding, the point cannot be taken: Coulton v Holcombe [1986] HCA 33 at [7]-[8]. When an appellate court is faced with a fresh point, it must consider the importance of the finality of litigation, the difficulty of the party against whom the new point is raised reaching back in time to hypothetically assess how their conduct of the trial would or may have been different, the related potential unfairness on counsel conducting an appeal and whether allowing the new point would be in the interests of justice: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 at [38].

Which appeals?

Nowadays, appeals to the Federal Court are by way of rehearing: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 at [20].

Section 93A(2) of the Family Law Act 1975 provides that “in an appeal the Family Court shall have regard to the evidence given in the proceedings out of which the appeal arose and has power to draw inferences of fact”.

In Queensland criminal matters, an appeal against a decision in relation to a criminal offence dealt with summarily in the Magistrates Court can be made to the District Court under section 222 of the Justices Act 1886, and such an appeal is by way of a rehearing: see section 223 of the Justices Act 1886.

Section 118(8) of the District Court Act (Qld) provides that an appeal from the District Court in its original jurisdiction is by way of rehearing, save for its original criminal jurisdiction, providing it relates to an amount or claim for more than the Magistrates Courts jurisdictional limit of $150,000.

In Queensland civil matters, rule 765(1) of the Uniform Civil Procedure Rules 1999 provides that an appeal against a final decision on liability to the Court of Appeal under chapter 18 is an appeal by way of rehearing. This provision also applies to appeals from the Magistrates Court to the District Court: see rule 785(1).

In Murdock v Sterling Law (Qld) Pty Ltd [2019] QDC 226, an appeal against a summary judgment was dealt with by way of rehearing, possibly because summary judgment was considered to be a final judgment.

Discretion of appeal Court

Section 93A(2) of the Family Law Act 1975 provides that the Family Court may in its discretion receive further evidence when exercising its appellate jurisdiction.

In Queensland, rule 766 of the Uniform Civil Procedure Rules 1999 provides that the Court of Appeal may, on special grounds, receive further evidence as to questions of fact, either orally in court, by affidavit or in another way. This provision also applies to appeals from the Magistrates Court to the District Court: see rule 785(1).

Rule 766 therefore confers on the Court of Appeal and the District Court a discretion of whether or not to admit further evidence on appeal.

When further evidence will be allowed

The principles upon which further evidence will be received was discussed by the Court of Appeal in Thomson v Smith [2005] QCA 446 where Muir JA cited the reasons of Lord Wilberforce in Mulholland v Mitchell [1971] AC 666:

“I do not think that, in the end, much more can usefully be said than, in the words of my noble and learned friend, Lord Pearson, that the matter is one of discretion and degree. Negatively, fresh evidence ought not to be admitted when it bears upon matters falling within the field or area of uncertainty, in which the trial judge’s estimate has previously been made. Positively, it may be admitted if some basic assumptions common to both sides, have clearly been falsified by subsequent events, particularly if this has happened by the act of the defendant. Positively, too, it may be expected that courts will allow fresh evidence when to refuse it would affront common sense, or a sense of justice.”

Similarly, in Pickering & Anor v McArthur [2010] QCA 341 it was said that:

“Guidance on the exercise of discretion to admit further evidence can also be found by consideration of decisions on preceding rules of court which require firstly that the further evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that if given it would probably have an important influence on the result of the case although it need not be decisive: third, the evidence must be such as to be apparently credible”

Should such evidence be received, the appeal Court may then give judgment as it thinks proper, or order a retrial, as the Court of Appeal did in Wiltshire v Amos [2010] QCA 294.

What is it?

An appeal de novo is the most unfettered type of appeal where the matter is heard afresh, as though the original decision had never been made. Therefore, parties are not bound by the findings at first instance or the way they presented their case at first instance. Parties may lead different evidence, and have a different case than at first instance. The decision-maker on appeal must hear and consider all of the evidence and re-decide the matter on the evidence before them.

Which appeals?

Section 96 of the Family Law Act 1975 provides that appeals from courts of summary jurisdiction shall proceed by way of a hearing de novo, unless the appeal is referred to a Full Court of the Family Court, in which case the Family Court may decide to have the appeal determined de novo.

Such appeals allowed for in Queensland are rare. The Uniform Civil Procedure Rules 1999 does not provide for any such appeals.

In criminal matters, a magistrate’s decision to dismiss a private complaint can be appealed against to the Supreme Court, and such an appeal is by way of an appeal de novo: see section 102D of the Justices Act 1886. Similarly, bail applications to the Supreme Court are usually made after bail has been refused by the Magistrates or District Court. Although technically a new application, it could be said in such cases to be a de facto appeal de novo.

Appeals under the Workers’ Compensation and Rehabilitation Act 2003 to the industrial commission are appeals de novo: see Church v Workers’ Compensation Regulator [2015] ICQ 31 at [27]. However, appeals from the industrial commission to the industrial court are by way of rehearing on the evidence below unless the court orders that additional evidence be heard: see section 561 of the Workers’ Compensation and Rehabilitation Act 2003.

An appeal in the strict sense or an appeal by rehearing on the evidence before the trial court can be subject to leave.

In other words, leave will be required in order for the appeal to be considered proper and determined on the merits. This is a barrier which restricts the number of matters that can be appealed from. There is case law that explains when leave may be granted.

When is leave required?

Section 45 of the Magistrates Courts Act 1921 provides that for Magistrates Court proceedings that are less than the minor civil dispute limit (currently $25,000), an appeal shall lie only by leave of the District Court, which will only be granted if some important principle of law or justice is involved.

Section 118 of the District Court Act 1967 provides that a party who is dissatisfied with a judgment of the District Court, whether in the court’s original or appellate jurisdiction, may appeal to the Court of Appeal, however should the judgment be for an amount or property worth less than the Magistrates Courts jurisdictional limit (currently $150,000), the appeal can only proceed with the leave of the Court of Appeal: see s118(3).

Furthermore, under section 150(3)(b) of the QCAT Act, the Court of Appeal’s leave to appeal will be required to appeal to it against a decision of QCAT’s appeal tribunal.

In a criminal law appeal to the Federal Court of Australia, leave is required unless the appeal involves a question of law alone: see sections 30AA and 30AB of the Federal Court of Australia Act.

For an appeal to the Federal Court under the Federal Court Rules 2011, any appeal against an interlocutory decision is subject to leave: see rules 35.10 and 35.11.

Section 94AA of the Family Law Act 1975 provides that leave is required to appeal against a prescribed decree by the Family Court or Supreme Court of a State or Territory constituted by a single Judge, or by the Federal Circuit Court of Australia and the Magistrates Court of Western Australia.

As is well known, before any appeal to the High Court can be dealt with on the merits, there is a need to apply for and then obtain the leave of one or more High Court judges. In most cases, once leave is granted a separate hearing will be conducted to determine the appeal.

When leave will be granted

The oldest leading authority of this test is the decision of Griffiths CJ in Johansen v. City Mutual Life Assurance Society Ltd [1904] 12 C.L.R. 186, at p. 188, later quoted and applied in Wanstall v Burke [1925] St R Qd 295:

“The practice we have always laid down… [is] of not granting special leave to appeal unless we are of the opinion that the case is one of gravity, or involving some important questions of law, or affecting property of considerable value; or unless it is a case which is otherwise of public importance, or is of a very substantial character.”

In Ramzy v Body Corporate for GC3 CTS38396 & Anor [2012] QDC 397, McGill DCJ also commented that:

“It has also been said that an important principle of justice requires that there be a question going beyond the consequence of the decision for the immediate parties to the proceeding: American Express International Inc v Hewitt [1993] 2 Qd R 352.”

In the Federal Court of Australia, the key principle informing the determination of whether to grant leave to appeal from a decision of a single judge is the decision that best promotes the overarching purpose, being the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: Nationwide News Pty Limited v Rush [2018] FCAFC 70 at [1]. An applicant must usually show that in all the circumstances, the decision to be appealed is attended with sufficient doubt to warrant its reconsideration on appeal and that supposing the decision to be wrong, substantial injustice would result if leave were refused: Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCAFC 844; (1991) 33 FCR 397 at 398-399 (Sheppard, Burchett and Heerey JJ). The sufficiency of the doubt in respect of the decision to be appealed and the question of substantial injustice bear upon each other so that the degree of doubt which is sufficient in one case may be different from that required in another. It has also been said that the considerations are cumulative such that leave ought not be granted unless each limb is made out: Rawson Finances Pty Ltd v Deputy Commissioner of Taxation [2010] FCAFC 139; (2010) 81 ATR 36 at 38 [5] (Ryan, Stone and Jagot JJ); Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd [2017] FCAFC 98; (2017) 252 FCR 1 at 4 [3] (Jagot, Yates and Murphy JJ).

Similarly, in order to secure leave to appeal in the Family Court of Australia, the appellants need to establish that the decision of the primary judge is attended by sufficient doubt to warrant it being reconsidered, and that substantial injustice would result if leave was refused: Medlow & Medlow (2016) FLC 93-692; E Pty Ltd and Ors & Zunino and Anor [2020] FamCAFC 216 at [3].

The very nature of the test shows that leave is not ordinarily granted. There must be some special feature of the proposed appeal concerning an important principle or point of law, or it must be a matter of significant gravity compared with other cases. The leave requirement is a barrier that restricts the appeals that can be heard and determined on their merits.

There are multiple types of appeals which exist in Queensland and the Federal Courts, depending on the body appealed from, the Court or body appealed to, and the value in dispute. Understanding which type of appeal applies, and nature of each appeal is essential to advising on the prospects of success on appeal, as well as how the appeal should be conducted in order to maximise the chances of success.

Strict appeals and appeals by way of rehearing are substantially similar because in both cases error needs to be established at first instance, however there are subtle differences. In appeals which are rehearings, there is a greater scope to admit further evidence, review findings made from undisputed facts, and assess the credibility of witnesses who gave evidence at first instance, subject to due allowance for the primary judge’s views.

An appeal de novo on the other hand means that the matter is heard afresh, and the decision at first instance is immaterial. There is therefore no need to demonstrate any error, and parties can run their cases differently and present new evidence, because they are not bound by the proceedings at first instance.

An appeal subject to leave needs to identify an important principle or a significant injustice in order for leave to be granted. In many cases, that if a difficult barrier to overcome. Appeals subject to leave are typically the most difficult types of appeals to succeed in for that reason.

The murders

On 27 January 1996, a secretary aged 18 named Sarah Spiers disappeared after leaving Club Bay View in Claremont and calling a taxi from a nearby phone booth. Her body was never found.

On 9 June 1996, Jane Rimmer, a 23 year old childcare worker, was last seen alive outside Claremont’s Continental Hotel on 3 August 1996, Her body was found in bushland at Wellard in Perth’s south on March 15, 1997.

Ciara Glennon, a solicitor aged 27, was last seen in Claremont after visiting the Continental Hotel on 3 April 1997. Her body was later found in bushland at Eglinton in Perth’s north.
Continue reading “Bradley Robert Edwards given life with non-parole period of 40 years for two Claremont murders”

The murders

On 27 January 1996, a secretary aged 18 named Sarah Spiers disappeared after leaving Club Bay View in Claremont and calling a taxi from a nearby phone booth. Her body was never found.

On 9 June 1996, Jane Rimmer, a 23 year old childcare worker, was last seen alive outside Claremont’s Continental Hotel on 3 August 1996, Her body was found in bushland at Wellard in Perth’s south on March 15, 1997.

Ciara Glennon, a solicitor aged 27, was last seen in Claremont after visiting the Continental Hotel on 3 April 1997. Her body was later found in bushland at Eglinton in Perth’s north.

A male driver, either in a Telstra vehicle or identifying himself as a Telstra worker, had been seen giving lifts to women in Claremont or neighbouring Cottesloe.