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Appealing A Court Decision
In certain cases, if you disagree with a Court or government department’s decision, you can appeal this decision. There are risks to submitting an appeal, including the possibility of a worse outcome, or being ordered to pay the legal costs of the other side if you are unsuccessful. It is therefore important that you obtain legal advice before you lodge an appeal.
What decisions are appealable?
Most decisions made by a judge or magistrate can be appealed. Some decisions made by Tribunal members (such as New South Wales Civil and Administrative Tribunal or the Administrative Appeals Tribunal) can be appealed. The correct court or tribunal to appeal to, however, must be identified. The pathway will be prescribed by legislation, as will the grounds on which you can appeal.
In some cases, there is not an automatic right to make an appeal and you may have to seek leave, or ask a court for permission, to appeal.
Some other decisions such as some decisions made by government authorities such as your local Council, the Australian Tax Office and Department of Home Affairs can also be appealed. You should obtain legal advice if there is a decision you think is unfair to confirm if an appeal can be lodged in the circumstances.
If you are not happy with the outcome of a civil court case, you should seek advice about whether this can be appealed. Normally, the outcome of a civil case is that one party pays money to another, so it is important to get clear advice about the costs and possible practical outcomes of an appeal. The costs of running an appeal can sometimes exceed the value of the original order which was made. Other orders can be made in civil proceedings, such as a direction to do a specific act or not do a specific act. These orders can also generally be appealed.
The outcome of a civil appeal can include:
- the decision being overturned;
- a new hearing being ordered (with or without directions);
- the appeal being dismissed.
Sometimes an appeal will be decided “on the papers”, being based only on written documents submitted to the Court. On other occasions, going to Court and making oral submissions will be required. Often, you will be limited in the evidence that you can provide on an appeal. There may not be any witnesses allowed in Court. This often happens as many appeals are limited to determining whether the original decision was made according to the law. There are some appeals, however, which can include new evidence being submitted. For example, if the original case was in the Small Claims Division, you are limited to appealing on the basis of a lack of jurisdiction or denial of procedural fairness. A lawyer can advise on the relevant rules and restrictions which govern an appeal you are proposing to make, so it is important you obtain legal advice.
Family Law Appeals
Family law appeals can be related to parenting decisions, property decisions, or decisions about child support. If you are not happy with a decision about family law, there is the ability to appeal to the appellate jurisdiction of the Family Court and Federal Circuit Court of Australia. Appeals can be complex, and involve complicated issues about the application of legal principles. With advice and assistance from a lawyer, however, a more favourable decision may be made.
The outcome of a family law appeal can include:
- The entirety of a decision being overturned;
- Only part of the orders being overturned;
- The appeal being dismissed and no change to the orders being made.
In certain circumstances, an urgent application can be made and a hearing of the appeal as soon as the circumstances justify.
Someone who is found guilty of a crime generally has the right to appeal to a higher court about the finding of guilt, or about the severity of the sentence. If you have pled guilty, you generally can only appeal the severity of the sentence. It is possible to reverse a guilty plea, but this is a much harder process, called a “traversal” and not an appeal.
The Police, or Crown, can generally only appeal if they think the sentence was not serious enough. An appeal against a finding of not guilty can generally only be made to the High Court of Australia, and they are very rare.
A criminal appeal can lead to:
- The overturning of a conviction;
- A less severe punishment;
- A new hearing;
- A more severe punishment in some circumstances;
- The appeal being dismissed.
If you were not present at the time of a criminal conviction or an AVO, you can apply to annul the previous conviction and sentence if you can establish certain necessary preconditions.
Who can file an appeal?
If there is a right to appeal, any party to the case can appeal. In some cases, leave must first be granted by the Court. If, in a civil case, you are directly affected by a judgment but were not a party to the original case, you may also be able to appeal. In criminal cases, only the parties to the case can appeal.
Time limits and fees
There are different time limits and different fees associated with different types of appeals. The general rule is that you have 28 days to appeal, but this can be as little as a few days depending on the specific decision you are appealing. You should consult a lawyer as soon as possible after a decision is made to decide if you want to appeal and to ensure that it is done within the required time limit.
A lawyer can help advise you on the relevant cost and time to make an appeal. In some cases, you can seek an extension of time; in others, however, there is no opportunity to extend the time. Contact us at Lawpoint to obtain assistance.
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