Appealing a Court Decision

If you have had a judgment or an order made against you in a civil proceeding, you may have a right to appeal the decision.

Where a judge or a jury makes a mistake in the course of a court proceeding, an appeal allows a more superior appeal court to remedy that mistake.

This page does not relate to criminal proceedings, but we do act for clients on section 222 appeals under the Justices Act for Fraud, Business and White-Collar matters, see our Fraud, Business & White Collar Crime page. 

If you want to appeal a QCAT decision, we discuss this below and in more detail on our dedicated Appeal a QCAT Decision page.

Order of Appeal

Queensland Courts, Tribunals and Commissions

This is not an extensive list and is a general guide only as some exceptions apply.

Where did you lose?Appeal Court
Regular Courts
Magistrates Court (General) District Court
District CourtQueensland Court of Appeal
Supreme CourtQueensland Court of Appeal
Queensland Court of AppealHigh Court of Australia
 
Land & Planning Court
Land CourtLand Appeal Court
Land Appeal CourtQueensland Court of Appeal
Planning & Environment CourtQueensland Court of Appeal
 
Industrial Relations
Magistrates Court (Industrial)Industrial Court of Queensland
QIRCIndustrial Court of Queensland
Industrial Court of Queensland Queensland Court of Appeal

You can also appeal more than once, so for example, if you start in the Magistrates Court, you may be able to appeal to the District Court, then to the Queensland Court of Appeal and finally to the High Court of Australia.

Federal Courts, Tribunals and Commissions

This is not an extensive list and is a general guide only as some exceptions apply.

Where did you lose?Appeal Court
Regular Courts
Federal Circuit Court (other than family matters)Federal Court of Australia
Federal Court of AustraliaFull Court of the Federal Court of Australia
Full Court of the Federal Court of AustraliaHigh Court of Australia
 
Fair Work Commission
Fair Work CommissionFair Work Commission Appeal Bench
Fair Work Commission Appeal BenchFederal Court of Australia
 
Others
Administrative Appeals TribunalFederal Court of Australia
Taxation AppealsFederal Court of Australia
Commissioner or Registrar of Patents, Designs and Trade MarksFederal Court of Australia

Similarly to Queensland matters, you may be able to appeal more than once by following this hierarchy.

Talk to a Lawyer today

If you have any questions regarding any of our services, or just need a question answered about a court appeal, then make an enquiry and our Litigation team will be in touch with you as soon as possible.

What Courts are more likely to be appealed?

Appeals are most common from decisions in QCAT, other tribunals and the Magistrates Court. This is partly because these are very busy courts, often dealing with a wide variety of matters, and decisions are typically made on the day with a single person making the decision.

Additionally, Magistrates, Acting Magistrates, Members and Commissioners (all decision makers) typically range from those not holding a degree in law at all, through to ex-junior barristers. Whether working at the court for a long period of time, having vast industry experience, or being a solicitor or junior barrister, there is a wide variety of experience.

Decision-makers in lower courts and tribunals are the workhorses of the legal system, with more experienced judges reserved to decide more complex and serious matters, as well as considering appeals from the lower courts.

Additionally, and by virtue of their place in the court hierarchy, decisions made in lower courts and tribunals are inherently more likely to be appealed by a party who has not achieved a successful outcome.

Appeals from the District, Supreme and Federal Courts are less common because of the experience of the Judges (the vast majority of whom were previously very experienced barristers) and the additional time they have to consider their decisions.

Although typically decided by a single Judge, complex decisions are usually written and can take days, weeks or even months.

That said, there are appeal courts for a reason; everyone makes mistakes. Additionally, higher courts often have the power to change judge made law, so for example, a law that was made in 1920 might be decided in 2020 not to apply anymore, but these usually can’t be overturned in the Magistrates, District or Supreme Court.

As such, there can be compelling reasons to appeal to the Queensland Court of Appeal or the Full Court of the Federal Court of Australia.

The Queensland Court of Appeal (sitting with either three or five Judges) and the Full Court of the Federal Court of Australia (sitting with three or more Judges) are much less likely to make a decision which is subject to appeal.

Some appeals to the Queensland Court of Appeal, but not all, require what is called ‘leave to appeal’ (basically permission to appeal). An Application for Leave to Appeal will often be decided by a single judge before the full court (multiple judges) hear the appeal.

Leave is generally required to appeal a decision to the Queensland Court of Appeal:

  1. From decisions of QCATA;
  2. From decisions of the Planning and Environment Court; and
  3. For amounts awarded under $150,000.

There are a range of restrictions (in addition to the above) as to when certain matters may require leave of the court, but most matters in the District and Supreme Court are capable of being appealed as a right (i.e. leave is not required).

Appeals at this stage usually involve serious or complex questions of fact or law, are very well considered (some decisions span over one hundred pages in length) and are heard by very experienced Judges that have to agree by a majority.

Typically, appeals from these courts to the High Court of Australia are made with the view to change the law. That said, errors of law do occur; the decision in the case of George Pell is a recent example of when the High Court of Australia has said that a State Court got the law wrong.

There are hundreds of thousands of cases in Australia each year, and only sixty-one appeals were heard by the High Court of Australia in the 2018-19 financial year.

In order to appeal to the High Court of Australia, a person must seek leave to appeal. Generally, the High Court of Australia will not grant leave to appeal unless the matter is one of public importance, or the interests of the administration of justice require consideration of the matter by the High Court. The High Court of Australia accepted less than ten percent of leave applications in 2018/19.

The High Court of Australia consists of seven Justices. These Justices have exceptional and extensive experience in deciding cases.

Almost all decisions are written, can be very lengthy and are decided by a majority decision. These are very well-considered matters, with decisions often taking a significant amount of time.

The seriousness of the consideration in the High Court of Australia is party necessary because it is the highest Court in the land, and its decisions cannot be appealed.

Lodging a Notice of Appeal

A Notice of Appeal or an Application for Leave to Appeal (depending on the matter) must be filed within a specified period.

The dates of when something has to be filed are typically short, but the legislation governing the timeframe for appeal depends on the type of matter you are appealing.

You usually have one month in criminal matters and twenty-eight calendar days for most other civil matters. But there are several exceptions, for example, you have twenty business days in the Planning and Environment Court.

In some rare circumstances, the time can be extended, or you may have another option available to you, but in all events, you should seek legal advice without delay.

It is best to speak to a lawyer about lodging a Notice of Appeal or an Application for Leave to Appeal even if you intend to represent yourself, including to appropriately identify the relevant timeframe.

If an appeal is started incorrectly, or without proper grounds, there can be consequences for the party who lodged it, including being ordered to pay the respondent’s legal costs.

A Notice of Appeal must set out concisely what the grounds of appeal are. These typically include:

  1. Situations in which the trial judge made an error of law and/or fact;
  2. Where evidence was admitted that should not have been admitted;
  3. Conversely, where admissible and relevant evidence was not admitted; and
  4. Where a decision has been made that is manifestly perverse or unjust.

An appeal is not a rehearing of an entire trial or application, but rather a hearing of the particular issues forming the grounds of appeal. In some cases, however, if an appeal is successful, then the appellate Court will order a retrial or a rehearing.

Evidence in an appeal is usually limited to the evidence that was put before the Court at the trial or application. The Court will generally not allow new evidence to be presented and admitted at the hearing of an appeal unless there is a very good reason to do so.

What do I do after an appeal is filed?

Generally, once the Notice of Appeal has been filed, the relevant Court will issue directions, often involving a timeline by which the parties must:

  1. File and exchange their outline of argument;
  2. File the list of material that they intend to rely on at the hearing of the appeal;
  3. Agree to and file an Appeal Record Book (which will contain all the relevant material the Court should refer to in making its decision – if in the Queensland Court of Appeal).

If an appellant fails to meet the stipulated deadlines, the appeal may be dismissed for failure to prosecute the appeal.

Effect of Appealing a Decision

Simply appealing a decision does not usually prevent the original decision from being enforced.

If a judgment has been made against you, the party who obtained that judgment is entitled to take steps to enforce the judgment, including by issuing a bankruptcy notice or an enforcement hearing summons.

A separate application must be brought to prevent a decision from being enforced pending the outcome of the appeal. For the Court to grant such an order would require the applicant to demonstrate that they are likely to suffer irreparable harm should the decision be enforced.

If an appeal is successful, the original judgment will usually either be set aside and amended or set aside and retried.

Do I need a Lawyer?

Appealing a decision of a Court or Tribunal is an extremely complex matter. Whether you are appealing to the High Court of Australia (or are appealing from the Magistrates Court to the Court of Appeal, you should get an experienced lawyer.

If you have had a judgment made against you that you wish to appeal, our litigation lawyers have the skills and expertise to assist you with all aspects of the appeals process to ensure you put your best case forward and receive the outcome you desire.

Do you need to appeal a Court decision?

We offer an initial, no cost, obligation-free consultation to assess the strength of your case.