Types of appeals in Queensland and the Federal Courts

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, 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.

In Davies and Cody v The King (1937) 57 CLR 170 at 172, Latham CJ said:

“This is an application for special leave to appeal by two persons who have
been sentenced to death. This court is sitting in this matter as a court of
appeal and only as a court of appeal, and is not in this instance exercising
original jurisdiction. The only power of the court as a court of appeal is to
consider and determine whether the judgment of the court appealed from
was right upon the materials before that court.”

Essentially, the appeal is ordinarily taken on a question of law, ie whether the primary judge has committed an error of law: Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281.

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”

Errors of fact

As a matter of general principle, however, a strict appeal to the High Court is not limited to errors of law as intervention may be justified in cases of errors of factual inference: Livingstone v. Halvorsen (1979) 53 ALJR, at p 57; Lithgow City Council v Jackson (2011) 244 CLR 352 at [102]-[104] per Crennan J; Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 553.

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.”

New grounds

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 be admitted: Eastman v The Queen (2000) 203 CLR 1; R v Ferguson; ex parte A-G (Qld) [2008] QCA 227 at [20], Coal and Allied v AIRC [2000] HCA 47; 203 CLR 194; 74 ALJR 1348; 99 IR 309; 174 ALR 585 at [12].

Discretionary decisions

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:

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course.

It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.

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.”

As was said in Coal and Allied v AIRC [2000] HCA 47; 203 CLR 194; 74 ALJR 1348; 99 IR 309; 174 ALR 585 at [21]:

“Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process. And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal.”

Which appeals?

A Registrar’s refusal to accept a document the Registrar is satisfied is an abuse of the process of the Court or is frivolous or vexatious under r 2.26 of the Federal Court Rules 2011 (Cth) is amenable to review pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth): Nyoni v Murphy (2018) 261 FCR 164; [2018] FCAFC 75 (Barker, Banks-Smith and Colvin JJ) at [32], [41].

In Queensland criminal matters, 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.

As Muir JA said in Teelow v Commissioner of Police [2009] QCA 84; [2009] 2 Qd R 489 at [4]:

“It is a normal attribute of an appeal by way of rehearing that the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all of the evidence now before the appellate court, the order that is the subject of the appeal is a result of some legal, factual or discretionary error …”

Findings of fact

Lord Sumner in SS Hontestroom (Owners) v SS Sagaporack (Owners) [1927] AC 37, 47 said of witness testimony that:

“… not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. … If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge’s conclusions of fact should … be let alone.”

Dixon C.J. and Kitto J in Paterson v Paterson [1953] HCA 74; (1953) 89 CLR 212 observed that:

“Soon after the Judicature Act came into operation a full exposition of the duty of a court of appeal in rehearing questions of fact was made by Baggallay J.A. The case was The Glannibanta (1876) 1 PD 283, at pp 287-288 , and the Court consisted of James L.J., Baggalay J.A., and Lush J. After referring to the language of the Privy Council in admiralty cases to the effect that, if there was conflicting evidence and the judge, having had the opportunity of seeing the witnesses and observing their demeanour, had come on the balance of testimony to a clear and decisive conclusion, the Privy Council would not be disposed to reverse such a decision except in cases of extreme and overwhelming pressure, his Lordship said that they felt just as strongly the great weight that is due to the decision of a judge of first instance whenever in a conflict of testimony the demeanour and manner of the witnesses who have been seen and heard by him are material elements in the consideration of the truthfulness of their statements; but – [1728] EngR 448; (1695) Skinner 517 (90 ER 231) the parties are entitled to demand the decision of the court of appeal on questions of fact as well as of law; (1695) Skinner, at p 523 (90 ER, at p 235) the court cannot excuse itself from weighing conflicting evidence and drawing its own inferences and conclusions, though it should bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect; (1898) 1 Ch 704, at p 705 in the case in hand there was no reason to suppose that the judge at all proceeded upon the manner or demeanour of the witnesses. The decision below was reversed. In the same year in Bigsby v. Dickinson (1876) 4 Ch D 24, at pp 28-29 , James L.J., Baggallay and Bramwell JJ.A. followed The Glannibanta (1876) 1 PD 283 and reversed a Vice-Chancellor’s decision on facts in a case of nuisance. Their Lordships emphasized that an appeal on questions of fact existed. Then came the often cited case of Coghlan v. Cumberland (1898) 1 Ch 704, at p 705 . Lindley M.R. sitting with Rigby and Collins L.JJ. said in substance that the court of appeal must (1876) 4 Ch D 24, at pp 28-29 rehear and reconsider the materials, (1876) 1 PD 283 make up its own mind taking the judgment of the primary judge into account, (1898) 1 Ch 704, at p 705 be guided by his impression when the question which witness is to be believed turns on demeanour, (1904) AC 73 be warranted in differing even on credibility when other circumstances show whether the evidence is credible or not. It will be seen that so far the tendency of the decisions was to formulate and concede the restrictive considerations or rules but, at the same time, to emphasize and act on the power to review findings of fact. This tendency may be seen in Montgomerie & Co. Ltd. v. Wallace-James (1904) AC 73 . The House of Lords reversed concurrent findings of fact that there had been a user of a way by the public of forty years duration. Lord Halsbury L.C. proceeded on the ground that there was no question of truthfulness of testimony but the question was what were the proper inferences (1934) AC, at p 75 . Lord Shand conceded the importance to be attached to the primary judge’s opportunity of seeing the witnesses and to the fact of the finding being unanimously sustained, but said that the case was a special one (1904) AC, at p 79 . Lord Davey dealt with both topics extensively in reasons which should be read though this is not the place to set them out (1904) AC, at p 83 . Lord Lindley said that there was no rule preventing the reversal of concurrent findings (1904) AC, at p 92 . The earliets occasion on which this Court dealt with the matter was probably in Dearman v. Dearman [1908] HCA 84; (1908) 7 CLR 549 . The Court restored the decision of a primary judge who refused to act on the evidence of persons who said they were eyewitnesses of adultery. The position of a court of appeal was examined at length by Isaacs J. (1908) 7 CLR, at p 561 . Four years later in Khoo Sit Hoh v. Lim Thean Tong (1912) AC 323, at p 325 Lord Robson for the Judicial Committee restated the considerations. The substance of what his Lordship said was that [1912] HCA 60; (1912) 15 CLR 389 the court of appeal should be influenced by the opinion of the primary judge because he can estimate the intelligence position and character of the witnesses; (1912) AC, at p 325 it should remember that many points are elucidated at the trial which may be represented ambiguously or imperfectly by the notes and the elucidation may be through counsel; (1908) 7 CLR, at p 561 but it may turn out (a) that the judge has failed to take something into account, or (b) that he has given credence to evidence afterwards shown to be self-inconsistent or contrary to indisputable fact; (1916) VLR 425, at pp 441-443 except in rare cases such as those which are capable of being dealt with wholly by argument a court of appeal will hesitate to interfere. In the same year in this Court in Craine v. Australian Deposit & Mortgage Bank Ltd. [1912] HCA 60; (1912) 15 CLR 389 , Griffith C.J. and Isaacs J. reversed a finding by Madden C.J. as to the date when a fence was erected, basing themselves on the authority of Lord Robson (1912) AC, at p 325 . Barton J. dissented, placing his dissent on the authority of Isaacs J. in Dearman v. Dearman (1908) 7 CLR, at p 561 . An interesting contribution to the topic was made in MacBean v. Trustees Executors & Agency Co. Ltd. [1916] VicLawRp 57; (1916) VLR 425, at pp 441-443 by Cussen J., who (a) commented on the judicial tendency to distinguish between the findings of judges and those of juries (b) pointed out that in order LVIII, r. 1, of the then Rules of the Supreme Court of Victoria the words “by way of rehearing” were not reproduced and that the two classes of findings were assimilated, and (c) deprecated the court of appeal acting upon its own opinion upon a question of quantum. Next an example occurred of the connection which may exist between logical inference from observed facts and the impression created by witnesses. In Perpetual Executors & Trustees Association of Australia Ltd. v. Wright [1917] HCA 27; (1917) 23 CLR 185 , this Court refused to disturb a finding that a document of an unusual nature was genuine because, although made on a comparison of handwriting, the demeanour and credibility of a witness who said that he had found the document must have entered into the question. The principles in question and the differences that exist between primary and appellate courts were discussed again by Barton A.C.J. (1917) 23 CLR, at pp 190-191 , by Isaacs, Gavan Duffy and Rich JJ. (1917) 23 CLR, at p 195 . Shortly afterwards in Scott v. Pauly [1917] HCA 60; (1917) 24 CLR 274 , where a decision of the Supreme Court upsetting the finding of the primary judge (Northmore J.) was affirmed, Isaacs J. took occasion to discuss the authorities and their effect (1917) 24 CLR, at pp 278-281 . Then once more the distinction was emphasised by the Judicial Committee between cases where the result depends upon a view taken of conflicting testimony and cases where it depends upon inferences from uncontroverted facts: Dominion Trust Co. v. New York Life Insurance Co. (1919) AC 254 . In Mersey Docks & Harbour Board v. Procter (1923) AC 253, at pp 258-259 , Viscount Cave referred again to the subject and said that it was the duty of a court of appeal to make up its own mind, not disregarding the judgment appealed from and giving special weight to that judgment in cases where the credibility of witnesses comes in question but with full liberty to draw its own inferences from the facts proved or admitted. The distinction between inferences from fixed facts and findings based on testimony frequently recurs. In Cooper v. General Accident, Fire, & Life Assurance Corporation Ltd. (1922) 128 LT 481 Lord Cave said: “The question is, not what are the facts, but what is the proper inference to be drawn from the facts proved, and upon that point, as has been often said, the appellate tribunal is not less competent to judge than the judge who actually hears the case” (1922) 128 LT, at p 483 . In S.S. Hontestroom v. S.S. Sagaporack (1927) AC 37 Lord Sumner gave an important summary of the competing considerations. His Lordship said: “Of course, there is jurisdiction to retry the case on the shorthand note . . . None the less, not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge’s conclusions of fact should, as I understand the decisions, be let alone” (1927) AC, at p 47 . These cautions did not prevent this Court reversing Mann J. on a pure question of fact depending on testimony in Federal Commissioner of Taxation v. Clarke [1927] HCA 49; (1927) 40 CLR 246 . Discussions of the principles will be found per Isaacs A.C.J. (1927) 40 CLR, at pp 262-266 and by Rich J. dissenting (1927) 40 CLR, at pp 292-293 . In the same way in Webb v. Bloch [1928] HCA 50; (1928) 41 CLR 331 . Knox C.J. (1928) 41 CLR, at p 356 and Isaacs J. (1928) 41 CLR, at pp 359-360 reversed a finding of Starke J. that there was an absence of malice in the publication of a libel by various persons called as witnesses before him. They did so on the ground that his finding was not based on credibility. Isaacs J. referred to the existence of “a constitutional and statutory duty upon this appellate Court to form its own independent opinion as to the proper construction of documents and the proper inferences from the evidentiary facts” (1928) 41 CLR, at p 360 . Some of these actual decisions may seem to impair the value in practice of the rules which govern the duty of the court of appeal in dealing with questions of fact, but from the very nature of such questions it is impossible for a report to reproduce the evidence which influenced the court except in outline and in many of the cases the strength of the considerations against the findings of the primary judges was very great. Any tendency to relax the rules was checked by the House of Lords in Powell v. Streatham Manor Nursing Home (1935) AC 243, at pp 263-268 . Lord Wright made the following points: 1. An appellant’s counsel opens as he chooses. (It is to be hoped that in making this point his Lordship did more than justice to counsel and less than justice to appellate courts.) 2. There is an antinomy in a duty to rehear and a restriction to recorded material. 3. Before a court of appeal upsets a finding into which credibility enters it should be convinced that the primary judge is wrong. 4. The court of appeal is not entitled to ignore findings based on credibility and to consider probabilities on the written material. 5. His Lordship repeats the questions put by Lord Sumner in S.S. Hontestroom v. S.S. Sagaporack (1927) AC, at p 50 . Finally Lord Wright discusses the modes of assessing the value of oral testimony. Another kind of finding was brought more decisively under the protection of the rules in Owen v. Sykes (1936) 1 KB 192 , where the court of appeal refused to review an award by Greaves-Lord J. of 10,000 pounds for personal injuries and discussed the grounds on which an appellate court should interfere with an estimate of damages by a trial judge. In Yuill v. Yuill (1945) P 15, at pp 20-22 , Lord Greene M.R. restates the standards and refers to Hvalfangerselskapet Polaris A/S. v. Unilever Ltd. (1933) 46 LlLRep, 29 as an illustration of the jurisdiction of the court of appeal to set aside a finding based in part on credibility because on carefully checking the whole evidence by a critical examination the primary judge’s impression on the subject of demeanour was found to be mistaken. In Watt or Thomas v. Thomas (1947) AC 484 , Lord Thankerton described the principle as a simple one and stated in thus: “I. Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge’s conclusion; II. The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence; III. The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question. It will hardly be disputed that consistorial cases form a class in which it is generally most important to see and hear the witnesses, and particularly the spouses themselves” (1947) AC, at pp 487-488 . Lord Simonds said: “I suppose that if ever there was a class of case, in which an overwhelming advantage lies with the judge who has the witnesses before him, it is in the arena of connubial infelicity and discord” (1947) AC, at p 492 . (at p224)”

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).

Exercise of Discretion

Discretionary decisions can be challenged on House v The King grounds (supra).

The test for whether an appellate court should interfere with the exercise of a discretion by a court below was set out by Kitto J in Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 (at 627) (cited with approval in Cambridge Gulf Exploration NL v Roberts [1995] NTSC 127 at [26] (Thomas J)):

“the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.”

As Gleeson CJ, Gaudron & Hayne JJ said in Coal & Allied Operators Pty Limited v Australian Industrial Relations Commission & Others [2000] HCA 47; 203 CLR 194; 74 ALJR 1348; 174 ALR 585; 99 IR 309:

“Because a decision maker charged with the making of a discretionary decision has some latitude as to the decision to be made the correctness of the decision can only be challenged by showing error in the decision-making process. And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate Tribunal. The errors that might be made in the decision making process were identified in relation to judicial discretion in House v The King in these terms:
“If the Judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or effect him, if he mistakes the facts, if he does not take into account some material consideration then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has materials for doing so.””

In Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 it was observed (at [120]) that:

“… when a court is invited to make a discretionary decision, to which many factors may be relevant, it is incumbent on parties who contend on appeal that attention was not given to particular matters to demonstrate that the primary judge’s attention was drawn to those matters, at least unless they are fundamental and obvious.”

In family law, discretionary decisions are notoriously difficult to appeal against based on the weight given to a relevant matter by the primary judge. In the High Court case of Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513, Stephen J made the following observations:

“The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge.”

See also Lovell v Lovell [1950] HCA 52, Norbis v Norbis [1986] HCA 17 and Keighley & Keighley [2023] FedCFamC1A 146. 

In Rowley & Amenta [2023] FedCFamC1A 53, it was said that “a complaint of inadequate weight is ‘nigh bound to fail'”.

In Bondelmonte v Bondelmonte [2017] HCA 8 the High Court held that only a House v The King error will permit an appellate court to interfere with parenting orders made by a primary judge under s 65D of the Family Law Act. It was also said that Orders made in the exercise of a judicial discretion under the Family Law Act, including orders as to the alteration of property interests, orders as to custody and parenting orders, can be set aside only on a strictly limited basis, in accordance with House v The King.

There is no Appeal that lies against the exercise of discretion to either adjourn a hearing or vacate hearing dates: ss 26(2)(b)(ii)- (iii) of the Federal Circuit and Family Court of Australia Act 2021, Falydn & Badenoch (No 3) [2023] FedCFamC1A 35.

New arguments

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 35 of the Federal Circuit and Family Court of Australia Act provides that in an appeal to the Federal Circuit and Family Court of Australia (Division 1) “must 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 35(b) of the Federal Circuit and Family Court of Australia Act 2021 provides that the Federal Circuit and Family Court of Australia (Division 1) 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”

The test is slightly different in family law. In CDJ v VAJ [1998] HCA 67 the High Court set out the principles for reopening evidence on appeal under a predecessor provision of Section 35(b) of the Federal Circuit and Family Court of Australia Act. It was held by the majority that for such evidence to be admitted, it is necessary to show the new evidence would likely have resulted in a different outcome.

Should such evidence be received, the appeal Court may then give judgment as it thinks proper, or order a retrial, as the Qld 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 cases 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 47A(6) of the Family Law Act 1975 provides that appeals from courts of summary jurisdiction shall proceed by way of a hearing de novo.

Such appeals allowed for in Queensland are rare. The Uniform Civil Procedure Rules 1999 does not provide for any such appeals. However, a review of a registrar’s order is normally a hearing de novo see Re Kwiatek and Kwiatek; ex parte Big J Ltd v Pattison (1989) 21 FCR 374. So for instance, an appeal against a registrar’s decision to a Judge with respect to renewal of a claim is a hearing de novo: King v Gunthorpe & Ors [2018] QSC 1 at [68]; Babcock & Brown Pty Ltd v Anderson [2010] QSC 287 at [55].

It is a similar position with respect to registrar’s orders in the family law jurisdiction. In the High Court case of Harris v Caladine [1991] HCA 9, which affirmed the constitutional validity of delegation of judicial powers to registrars to make consent orders, it was held that such appeals are appeals de novo. In Naylor & Naylor (No 2) [2021] FCCA 1572 it was observed that generally where a Register has exercised any delegated power, a party is entitled to a hearing de novo, before a judge of the Court. However, in Lawson & Glenning [2021] FedCFamC2F 118, it was held that “A Registrar’s hearing should not be used as a ‘dry run’ or a ‘practice run’ at a case, but rather the main event”.

In QLD 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.

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 (Qld) 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 (Qld) 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, leave of the Court of Appeal is 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 28(1)(b) of the Federal Circuit and Family Court of Australia Act 2021 provides that leave is required to appeal against a prescribed judgment of the Federal Circuit and Family Court of Australia (Division 2) or the Magistrates Court of Western Australia.

Section 47B of the Family Law Act 1975 and Section 28(1)(a) of the Federal Circuit and Family Court of Australia Act provide that leave is required to appeal matters under the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988.

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 Federal Circuit and 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 Court appealed from, the Court 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 discretion to admit further evidence and  greater scope to 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.