Every court is different when it comes to appealing a decision. It is important to be aware of the different requirements if you are considering appealing a decision as well as the consequences that may result from the appeal.

On what basis can I appeal?

In most cases, the only basis to appeal a decision of a Court is:

  • An error in the law; or
  • There was a finding of fact on an important issue which could not be supported on the evidence.

Does the Court of Appeal hear from witnesses?

No – in most cases an appeal is not a re-hearing of your case and there will be no witnesses or new material.

Is there a time limit?

Yes – if you receive an adverse judgment you should immediately seek legal advice as to how long you have to appeal. Each Court is different.

You should also seek legal advice as to whether you need leave (permission) to appeal.

In many cases if you are out of time to appeal, you can seek leave (permission) to appeal out of time, however this is difficult and often leave is not granted.

Are there costs consequences?

Like every case, if you are unsuccessful in your appeal, you will most likely have costs awarded against you.

As always, all offers should be considered carefully. There will usually be higher costs awarded against you if you do not accept an offer which ultimately would have resulted in a better outcome that what the Court granted to you.

Can I appeal to the High Court?

In order to appeal to the High Court, you must have exhausted all other avenues of appeal.

The High Court does not accept every case which is filed – most are rejected through a process of applying for special leave.

The High Court will generally only accept cases (grant special leave) to those which give rise to a question of public importance, requires constitutional interpretation or settles an area of law which requires settling.

Lessons

It is always important to consider your appeal rights when you receive an adverse judgment. Notwithstanding this, you should do so on advice, as running an appeal can be an expensive process and inherently risky.

As each Court has different rules and time frames in relation to appeals, you need to act quickly when you receive an adverse judgment.

About the Author

Catherine Ballantyne

Special Counsel
A business disputes specialist, Catherine is a trusted advisor to businesses and individuals in obtaining successful outcomes. Businesses rely on Catherine as a trusted advisor as well as lawyer in guiding them through complex litigation and disputes.

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