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One of the more convoluted aspects of legal proceedings concerns the hierarchy of appeals that can exist from different bodies, and on different grounds. The reason for, and type of appeal has a significant bearing on the ultimate outcome of a case.

In 1984, Justice Cox of the South Australian Supreme Court discussed the types of appeals that exist in South Australia in the case of Wigg v Architects Board of South Australia (1984) 36 SASR 111. His honour confined his discussion to: appeals, re-hearings, and re-hearings de novo.

The term ‘appeal’ has a number of definitions. In the Judiciary Act 1903 (Cth) it is defined as ‘an application for a new trial and any proceeding to review or call in question the proceedings decision or jurisdiction of any court or judge.’

The issue is complicated somewhat further by the emergence of administrative bodies such as the Australian Administrative Tribunal (AAT) and the state civil and administrative tribunals such as the Queensland Civil and Administrative Tribunal (QCAT). These are not courts per-se, but are nonetheless ‘court-like’ in many ways. They often hear ‘appeals’ of decisions made by government officials (administrative decisions) and sometimes their decisions can be appealed to the courts.

Appeals will usually increase the expense and length of a process. They involve one party asserting that a particular decision or decisions are wrong, and so seeking a higher authority to fix the outcome.

There are three aspects to appeals. One is whether an appeal can be made in the first place, two is to whom – or which body – the appeal will be made, and three is the rules which will govern the appeal.

When can an appeal be made

There are different rules governing when an appeal can be made. There is no central system of rules, and many of them have a long history stretching back into English law. However, there are frequently sections with in legislation that state whether or not a decision may be appealed, and the grounds on which it may be appealed. A common example is s668D of the Queensland Criminal Code which affords every person the right to appeal against a conviction. In practice there are many grounds for arguing an appeal, they include instances where there was an irregularity in court procedure – such as judge failing to properly explain the relevant law to the jury, or a where a verdict was unreasonable or not supported by the evidence.

Over time, courts have developed particular rules regarding when a case may or even must be overturned on an appeal.

To whom should the appeal be made

If a decision to be appealed has been made by a court, then the only option is to appeal to a higher court. This will not always be permitted, and in some cases – such as appeals to the High Court of Australia (Australia’s Supreme Court) require special permission (called ‘leave’) to do so.

Whether a body is the appropriate one to hear an appeal will depend on two things. One is who made the original decision, and by what authority that person made the decision. Two is the rules that establish the body which will ultimately hear the appeal.

In some cases, there will be a formal, highly designed regime to follow in making an appeal. In those cases, there will be a clear statement in statutes or government rules stating which body is the appropriate entity to hear an appeal. This is the case with decisions made by some government departments, such as decisions by the immigration department.

In other cases, there are laws quite apart from those under which the decision was made. A good example is the High Court of Australia. Under section 73 of the Australian Constitution there is a specific provision which allows the High Court to hear appeals from the Supreme Courts of the States.

What rules will govern the appeal

Not all appeals are the same. In the Wigg case, Justice Cox discussed three main types of appeal. In some cases, an appeal arises because one party alleges a specific mistake by a decision maker (such as a lower ranking court or government official). One example is from Western Australia, a case called Ostrowski v Palmer. In March of 2000, Mr Palmer was caught fishing for rock lobsters in an area of water in which they were protected. Mr Palmer had previously sought information from the Department of Fisheries as to whether he was allowed to fish for rock lobsters in those waters. He was advised that he could, however the department official gave him incorrect advice. He was subsequently charged with an offence under the Fish Resources Management Regulations.

The case went through several appeals and eventually reached the High Court of Australia. By that time, the case had been whittled down to a simple question – is the question of which laws apply to a space a question of law, or a question of fact. Mr Palmer argued that the lower courts, which had convicted him, had incorrectly stated that it was a question of law. The High Court decided against him, and found that the lower court had made the correct decision.

In that case, the High Court had only to address a question of law, however, in some cases courts may be asked to address a question of fact as well. To do so, the case is reheard by way of a rehearing. This is a hearing at which the court will re-examine the material that was before the lower court and determine whether the decision was correct on the material that was before the court. A rehearing of this type is common in appeals in criminal law where a defendant alleges that the verdict was ‘unsafe and unsound’ – in layman’s terms the defendant is arguing that the verdict is not supported by the evidence that was available to the court.

Another type of appeal identified by Justice Cox in the Wigg case was a rehearing de novo. This is a hearing conducted completely afresh, and replaces the original decision. In practical terms, a rehearing de novo means starting the case again from scratch. It is common in criminal matters where some irregularity in the trial resulted in a miss-trial, and the matter needs to go back before a jury.


It is important to be aware of whether a right of appeal exists, and what time limits apply. There are often strict limitations impacting whether you will have the ability to appeal, and on what grounds. There is a general principal that decisions of courts are final, and for that reason there are restrictions on the right of appeal for that reason. That being said and with great respect, mistakes do happen, and the interests of justice demand that an avenue of appeal exist.