an appeal is a procedure whereby a person, challenges the decision of a lower court.
A person who is appealing a decision must be knowledgeable of the hierarchy of the courts in Australia so as to be able to file the appeal correctly in the proper court.
The ground for making an appeal is whether the lower court correctly applied the law in the decision of the appellant’s case. An appeal is not a rehearing of the case. Rather, the appeal court will be reviewing the decision of the lower court to see if there were errors in the application of the law. The appellant must convince the appeal court that the law was not correctly interpreted.
There are strict time schedules to follow whenever filing an appeal. The appellant has to follow the deadlines otherwise he might lose the remedy of appeal. Appellants need to remember that there is no automatic right to appeal in some cases.
Section 94AA of the Family Law Act 1975 prescribes the cases wherein leave to appeal is needed. Leave to appeal means that the appellant needs to have the permission of the Court before filing an appeal.
With respect to appeals to the High Court of Australia, a preliminary hearing will be conducted to determine whether the appeal is impressed with merit. The appeal process in the High Court is governed by the Rules of Court which contains the procedures legal practitioners have to follow.
A Notice of Appeal must be filed within 28 days from the assailed order being made. The Notice of Appeal must be filed at the regional appeal registry of the court and attaching therewith the order being appealed from.
A filing fee must be paid upon filing but the appellant can make an application to be exempted from the payment of a filing fee.
Once an appeal is filed, there will be a determination whether the appeal should be heard by a single Judge or Justice or the Full Court of the appeal court.
A copy of the Notice of Appeal must be served on the respondent and the independent children’s lawyer, if there is one, within 14 days of filing the appeal. Within 14 days of being served with the Notice of Appeal or within 28 days from the making of the assailed order, the respondent can file a Notice of Appeal which will be endorsed as a cross appeal. A filing fee also has to be filed for a cross appeal.
A draft index of the appeal books is then filed within 28 days of filing the appeal. The draft index must be filed in the regional appeal registry and a copy served to the respondent. A draft index is a list of the documents that were before the hearings in the lower court. Appeal books is a bound, fastened and indexed collection of the relevant documents in the lower court.
The next step to expect by the appellant is that the appeal will be scheduled for a procedural hearing with the appeal Judge. In the procedural hearing, the Judge or Registrar will make orders for the appeal process and to prepare the appeal case for hearing. The orders issued in the procedural hearing may include about the preparation of the appeal books and timetable for filing of documents or pleadings.
Oral testimony will not be heard in the appeal hearing. Thus, the presence of witnesses is no longer needed in an appeal hearing. The appeal court will go over the appeal books and hear the oral arguments of both parties. In an appeal, evidence not raised or presented in the lower court will not be considered.
There have been instances when it is the appellant will handle the appeal process without hiring a lawyer. However, the importance of having independent legal advice is emphasized considering that lawyers are trained in the practice of law, including filing an appeal.
After the appeal hearing, the appeal judge may make a different order from the one made by lower court judge or order a retrial to be conducted by the lower court judge. If the appeal is dismissed, the appellant might be ordered to pay costs.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.