Step 10: Appealing a Judge’s Decision
Primary Content Source: Wesley Budler
What is an appeal?
If you have appeared before the court, received the court`s judgment and the result is not a result that you had hoped for, you may want to consider whether to challenge such decision through the courts. This process is known as an appeal and would require that you lodge an application to seek to overturn the order (or part of an order) of the court in which you first appeared. You should consider your options carefully and seek advice before deciding whether to apply to the court for an appeal. As you would have discovered through your first appearances at court, there are significant costs involved in pursuing a claim through the courts and an appeal is no exception.
When should I consider an appeal and is my case appealable?
Ideally, you should consider whether you would appeal before final judgment is handed down so that you are well prepared. It is important that you discuss your intentions and your reasons for appeal with your counsel.
You can consider the best route to take which may involve one of the following:
Seek permission to appeal once a final judgment is handed down. If you do not seek permission to appeal from the lower court, you can still seek permission to appeal to the higher (appeal) court, provided you are still within the time limits which we discuss below. However, you will have lost the opportunity to seek permission to appeal from the judge in the lower court.
Seek an adjournment. If you have not considered it in advance, it is possible to apply for an adjournment at the hearing when the judgment is handed down, so that you can discuss with your counsel whether to apply for permission to appeal.
Seek an extension of time for service of the appeal notice.
Seek a stay of the order contained in the judgment pending appeal, especially if carrying out that order would defeat the benefit of a successful appeal (for example, an order to demolish a building).
Do I need permission to appeal?
Yes, you will need to obtain permission to appeal except in very limited circumstances (such as an appeal against a committal order for example).
In order for your application for appeal to be granted you will need to establish one of the following conditions:
the appeal would have a real prospect of success; this means that your prospect of success must be realistic; or
there is some other compelling reason why the appeal should be heard. For example, where the decision of the appeal court would be to the public advantage.
How long do I have to appeal and are there any time limits applicable?
Your notice of appeal needs to be filed with the correct appeal court within 21 days after the judge handed down its decision (unless the court orders otherwise). The 21 days starts to run from the date of the court decision. However, there are circumstances in which you can apply for an extension of time or if the time period has expired, you may make an application to vary the time limit for filing an appeal notice.
What are the costs of appeal?
Before filing an appeal you should discuss the cost implications of filing including the implications if you lose the appeal.
For a comprehensive guide for court fees involved, click here.
When will the courts uphold an appeal?
Generally, the appeal court will allow the appeal where the decision of the lower court was either (i) wrong, or (ii) unjust because of a serious procedural or other irregularity in the lower court. A decision is wrong if there was an error of law, an error in the exercise of the court’s discretion or there was an error of fact.