WEEK 12 – APPEALS
An appeal is a procedure by which an unsuccessful party seeks to have a court’s decision set aside or varied -
it is a right created by statute enabling a party to set aside or vary an unfavourable decision: Commonwealth
v Bank of New South Wales
“decision” means an order, judgment, verdict or an assessment of damages: r 744
The rationale of appeals is to correct errors of law or fact, to conduct a review removed from the drama of the
trial, and to encourage better judicial performance at first instance.
1.1 Queensland Court of Appeals
• The Queensland Court of Appeal is a division of the Supreme Court.
• It is composed of a President, four permanent judges of appeal, and trial division judges, who act on a
rotational basis according to the court calendar.
• Three judges will constitute a Court of Appeal.
• More than one Court of Appeal may sit at any time: See the Supreme Court Act 1991 (Qld) ss 28, 30, 31.
President of the Court of Appeal
• Manages the workload of the court (Supreme Court Act 1991 (Qld) s 32) and
• Produces an annual report (Supreme Court Act 1991 (Qld) s 32A)
Statutory Power to Appeal
• Appeal lies to QCA from every order made in the QSC, whether in chambers or in court: s16 Supreme
Court of Queensland Act 1991 ; s254 Supreme Court Act 1995
• Appeal against discretionary judgment as to costs or consent judgment only if the judge gives leave: s253
Supreme Court Act 1995
• Appeals from QDC all lie to QCA: s118 District Court of Queensland Act 1967 (Qld)
• Appeal from decision of a judicial registrar or registrar to QCA with leave
Powers of the Court
The appellate court has power to set aside, vary, discharge, or substitute the judgment of the court below:
Supreme Court Act 1991 (Qld) s 43, rr766 and 767
Generally the Court of Appeal:
• Has the powers and duties of the court which made appealed decision: r 766(1)(a)
• The court may draw inference from fact: r 766(1)(b).
• May receive further evidence as to questions of facts: r 766(1)(c).
• May make orders as to the whole or part of the appeal: r 766(1)(d).
IF power exercised by 2 or more judges
Powers may be exercised by 2 or more judges in proceedings dealing with:
• Applications in criminal proceedings for an extension of time within which to appeal or to apply
for leave to appeal: r 766(3)(a).
• Applications in criminal proceedings for leave to appeal: r 766(3)(b).
• Applications for leave to appeal in any other matter: r 766(3)(c).
• Civil proceedings other than appeals from judgments or orders given or made by a Supreme
Court judge: r 766(3)(d). IF powers exercised by 1 or more judges
Power may be exercised by 1 or more judges in proceedings dealing with:
• A proceeding about a question of practice and procedure in the Court of Appeal: r 767(a) or
• An application in a civil proceeding for leave to appeal or for an extension of time to apply for
leave to appeal: r 767(b) or
• An application for a stay of execution or for an injunction pending an appeal: r 767(c) or
• An appeal listed for hearing under rule 764: r 767(d).
2. T YPES OF A PPEALS
There are 2 major types of appeals:
• An Appeal
• Strict Appeal
Form view of whether judgment correctly decided
No new facts can be considered, only those facts known at trial
• De novo Appeal
New trial before Court of Appeal
• A rehearing
• Most common: r765(1) [only applies to appeal from single judge of QSC: r745(2)]
• Consider transcript and form own conclusion of judgment to be given
The statute giving the right to appeal governs which type of appeal should be commenced and such a right is
a substantive right – NOT procedural: rule 765 and 745 governs this
Single Court Supreme Court Judge: Rule 765 and Rule 745
• appeal is by way of a rehearing: r 765(1)
• if it is an appeal from a decision, other than a final decision, or about the amount of damages or
compensation awarded it is by way of an appeal: r 765(2)
• application for a new trial is by way of an appeal: r 765(3)
• unless the Court decides otherwise: r 765(4).
Stay of Execution
The Court of Appeal has power under r 761 to grant a stay of execution: Engwirda v Engwirda & Ors. The
court will have regard to: Asia Pacific International Pty Ltd v Peel Valley Mushrooms
• Good arguable case;
• Applicant disadvantaged if no stay
• Respondant disadvantaged if stay
3. P ARTIES TO AN A PPEAL
Each party directly affected by the relief claimed or in maintaining the original judgment must be made a
respondent to an appeal (r 749). A person must consent before becoming and appellant and a failure to
consent will render that person a respondentThe Court of Appeal has powers to include, remove, or substitute
parties (r 750)
The appellant is the party that brings the appeal
The respondent is the party responding to the appeal
4. P ROCEDURAL A SPECTS
4.1 Commencing an Appeal – Notice of Appeal An appeal commences by filing a notice of appeal (r 746(1), form 64) - also need service and security
Practice Direction 1 of 2005 – need to File in Supreme Court Registry, Brisbane: r746
Prescribed form – Form 64: r747 – Needs to contain:
• Whole or part of decision appealed
• Grounds of appeal
• Decision appellant wants
IF leave given to start an appeal
If leave is given to start an appeal, the notice of appeal must set out:
• Order giving leave: r 747(2)(a).
• Concise statement of the reasons why leave is given: r 747(2)(b).
• The specific questions for which leave was given: r 747(2)(c).
Filing - the notice of appeal must be filed within 28 days of the decision appealed from: r 748
Service - service must be as soon as practicable on all other parties directly affected by the terms of the
appeal; r 748 and other parties the Court directs r 752
IF an appeal is lodged outside the required 28 Days
If outside the 28 days it will not be heard unless an application is granted for extension of time,
however the Court of Appeal may extend time.
Court discretion to extend time – see Hunter Valley Developments v Cohen consider:
• Whether applicant has reasonable reason for delay
• Whether respondent prejudiced by delay
• Effect of delay on the public
• Substantive merits of the appeal
• Overall fairness
Amendment of Notice
The notice of appeal may be amended without leave within the 28 days or at another time with the leave of
the Court of Appeal (r751).
4.2 Written Outline of Argument
Practice Direction 1 of 2005 - “a concise written statement of the issues and arguments in a proceeding….”
(para 3 PD 1 of 2005)
Purpose: para 8 PD 1 of 2005
Requirements: para 9 PD 1 of 2005:
• By each party
• No more than 10 pages
• By whom prepared
• Lodge 5 copies with registry and serve parties
• Court of Appeal may require further written submissions
• Limits content of oral argument
• May proceed on written arguments alone
• By appellant: 28 days before hearing
• By respondant: 14 days before hearing
• Replies in some circumstances 4.3 Appeal Record Book
• Practice Direction No 6 of 2002: details the timetable for the lodgement and exchange of paginated
bundles of documents
• Practice Direction No 26 of 1999: An index may also be required for an application for leave to
Appeal Record book
• This is the central document around which an appeal is argued.
• The appellant arranges preparation of an appeal book either themselves or more commonly in
association with the appeal records section (r 758).
• An undertaking to pay costs is required if the latter approach is adopted (r 759).
Definition of an appeal record book: Practice Direction No 26 of 1999
“the compilation of materials from the primary court hearing, including:
• transcripts of evidence,
• transcripts of summing up or sentencing remarks,
• together with material reports, records or other relevant materials”;
Item 11 of the practice direction has very specific details including a comprehensive index mentioned above.
Lists of authorities are filed by both parties (2 clear days before the hearing) in two parts:
• Part A – list of authorities (cases and legislation) upon which reliance will be made.
• Part B – list of other references the party may refer to
• A respondent may contend that the decision appealed from should be varied by way of a notice of cross-
appeal which then is served on all parties affected: r 754.
• Cross-appeals have similar requirements as a notice of appeal: r 755
(a) the part of the decision to which the cross appeal relates
(b) the grounds of the cross appeal
(c) the decision the respondent seeks
The notice must be filed within 14 days after the day of service of the notice of appeal of the respondent, and
as soon as practicable serve on other parties: r 755.
4.5 Notice of contention
The decision at first instance was correct but for the wrong reason - i.e. a contention that the decision should
be affirmed BUT on other grounds - the decision at first instance was correct but for the wrong reason.
• Must be in the required form: r 757, form 66
• Must be filed within 14 days after the day of service of the notice to appeal and be served as soon as
practicable on all other parties. r 757(3)
4.6 Consent orders
The parties can agree that an appeal be dismissed by consent. A memorandum in form 68 is required to be
filed to deal with issues such as costs, security for costs etc: r 762. 4.7 Listing the appeal
The Registrar sets the hearing date, or assigns the case for hearing at a particular sitting (r 760): Practice
Direction No 26 of 1999.
5 S UBSTANTIVE B ASIS UPON WHICH APPEALS ARE BROUGHT
There are numerous basis on which an appeal may be brought. These include:
• Error of law
• Wrong exercise of discretion
• Finding of fact wrong
• Incorrect inference
• Judge’s view of conflicting evidence
• Fresh evidence available
• New points and objections after trial
• Excessive / inadequate damages
• Other grounds
5.1 Error of Law
It is necessary to show that the outcome at trial would have been different had the correct principles been
applied: Norbis v Norbis
The primary example is the wrongful admission or rejection of evidence.
Other Examples include:
Interpretation of a statutory provision:
1. The learned trial judge was wrong in law in holding that section  of the [Judicature] Act means [insert details];
In relation to contract - No concluded agreement
2. The learned trial judge was wrong in law in holding that the plaintiff and the defendant had reached a concluded agreement;
In relation to contract - No repudiation of agreement
3. The learned trial judge was wrong in law in holding that the defendant’s conduct in [insert details] amounted to a repudiation
of the agreement;
In relation to contract - No Frustration
4. The learned trial judge was wrong in law in holding that by reason [insert details] the contract had been discharged by
In relation to contract - Consideration
5. The learned trial judge was wrong in law in holding that there was no consideration for the contract, in that [insert details]
amounted to good consideration;
6. The learned trial judge was wrong in law in finding that the guarantee was discharged by [insert details];
Admission of Evidence
7. The learned trial judge erred in law in admitting (or failing to admit) evidence of [insert details];
Interpretation of a lease
8. The learned trial judge was wrong in law in holding that clause  of the lease entitled the lessor to [insert details];
No Fiduciary Relationship
9. The learned trial judge was wrong in law in holding that there was a fiduciary relationship between the plaintiff and the
No Estoppel 10. The learned trial judge was wrong in law in holding that the defendant was estopped from denying there was a contract
between the plaintiff and the defendant.
Denial of Natural Justice
11. The learned trial judge failed to accord procedural fairness to the defendant: Escobar v Spindaleri
Failure to State Adequate Reasons
12. The learned trial judge failed to state adequate reasons for their decision: Housing Commission of New South Wales v
Tatmar Pastoral Co
5.2 Wrong Exercise of Discretion
Appeals based on practice and procedure usually argue that there has been a mis-exercise of discretion. Such
appeals are considered more cautiously than substantive appeals.
There is a strong presumption that the discretions are properly exercised - it is very hard to get over this
Adam Brown Male Fashions Pty Ltd v Philip Morris Inc (1981)
• Discretion on substantive matter v procedural matter
• If discretion was exercised with respect to a procedural matter, appeal could should be reluctant to interfere with primary
• If exercised with respect to a substantive matter, must consider whether decision was wrong or unreasonable
• Issue related to releases from undertakings
• To be merely a practical, procedural matter and HCA refused to overturn decision of primary judge
House v R (1936)
• Sentencing issue
• HCA set out appropriate approach to be followed by a court for an appeal against the exercise of a discretion
• Not sufficien