The Appellate Jurisdiction

Appeals are applications to higher courts by a party who believes that the decision at first instance was incorrect. Appellate work is a special area of law and usually requires specialist lawyers who are knowledgeable in the area of appeals. Appeals are primarily heard and determined in the Federal Court in its appellate jurisdiction.



Across Australia, numerous courts have a specific ‘jurisdiction’, which refers to the scope of a Court's power to decide on a particular issue. This will usually depend on the purpose for which a Court was established and is typically defined within the legislation establishing said Court. Jurisdiction is often determined based on the location of the Court, the type of parties to a case or subject matter, the amount of money in the dispute or the penalties that can be handed down. Other Courts may also have a specific jurisdiction, like the Children’s Court or have a broader general jurisdiction, like the Supreme Courts of the states and territories. The distinction between jurisdictions also applies to the time a case is heard. If it is the first time that a matter is heard, then that will mean the Court at first instance is hearing a matter in its ‘original jurisdiction’. Whereas if a matter is heard a second time against the decision made by a Court in the original jurisdiction, the Court hearing that matter again will have ‘appellate jurisdiction’.

The appellate jurisdiction of the Federal Court of Australia includes:

  • Appeals for decisions by a single judge of the Federal Court exercising its original jurisdiction.
  • Appeals from other Courts in some circumstances. E.g., the Supreme Court of the Australian Capital Territory or Northern Territory (Section 24 of the Federal Court of Australia Act 1976)
  • Fair Work appeals
  • Appeals from decisions of the Federal Circuit and Family Court of Australia

Appeals sometimes reach the High Court of Australia; however, there is no automatic right to do so. An individual may apply to the High Court for permission to appeal, called a ‘special leave’ application. However, this is only granted in the most exceptional cases.


Types of Appeals

Strict Appeals: Where a Court with appellate jurisdiction determines whether the Court at first instance made a mistake, and it will be constrained to only considering evidence that was available to the first Court.

Rehearing Appeals: Where the appellate Court will consider the law at the time of the appeal and any events leading up to it. Here, fresh evidence can also be brought in.

Appeals De Novo: Where the appellate Court retries all the issues heard at first instance with the opportunity to consider fresh evidence. Each party will be able to present their case, and the Court will hear the whole matter and is not constrained to only reviewing the decision of the first Court.


Types of Review

Merits Review: This applies to decisions by government agencies rather than by the Courts. This right is created by legislation where a person is directly affected by the decision of a government agency and thus allows for the decision to be reviewed by other government officials.

Judicial Review: This is a common law right, meaning it is not derived from legislation. This applies to a higher appellate court, whether it is a decision by a government agency or by a lower Court or Tribunal. Traditionally, the grounds that can form the basis of a judicial review application include:

  • That a decision was beyond the legal power of the decision maker (the decision was ultra vires)
  • The decision was made in breach of procedural fairness.
  • There was a jurisdictional error on the part of the Court or Tribunal where Courts decide over a matter without jurisdiction.
  • There was an error of law on the face of the record (a mistake was made in the record of the decision rather than the reasoning)


Appealing Discretionary Decisions

Some decision-makers in particular areas of law (e.g., family law, immigration law, probate law) have discretionary power. This means they can decide on a matter by making a judgment and considering all relevant information on a case-by-case basis. With discretionary powers, the decision maker has the choice of either choosing to exercise a particular power (or make a particular decision) or not. Conversely, some decision-makers have mandatory powers where they have an obligation to exercise a particular power in a certain way. Appealing a decision by a decision maker with discretionary powers is different to usual appeals.

In 1936, the High Court laid down the principles of appealing the decision of a discretionary decision maker in the case of House v The King (1936) 55 CLR 449. Justices Dixon, Evatt and McTiernan identified four grounds on which a party may make an appeal:

  1. The decision maker considered irrelevant material.
  2. The decision maker failed to consider relevant material.
  3. The decision maker made a mistake of fact; or
  4. The decision was unreasonable or wholly unjust.

The case determined that a person seeking an appeal must establish that the decision maker made an error while exercising their discretion. These grounds are known as ‘House Errors’ and continue to be used today. The grounds identified in this case can be applied to cases in criminal law, civil penalties, family proceedings, costs, valuation of property, quantum of damages and more.

If you or someone you know wish to discuss this issue further, then please do not hesitate to contact us on 02 8999 9809.

Freedman & Gopalan Solicitors
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