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The Appellate Jurisdiction of the Courts in Australia

The Appellate Jurisdiction of the Courts in Australia

By Dean Mildren AM RFD QC

CONTENTSREVIEWS

This work provides a detailed examination of the appellate jurisdiction of the superior Australian courts, including the State and Territory Supreme Courts, Courts of Appeal and Courts of Criminal Appeal, the Federal Court of Australia, the Family Court of Australia and the High Court of Australia. The principles on which they act when deciding appeals both civil and criminal, including sentencing appeals and appeals by the Crown, are also dealt with. There is a separate chapter dealing with the Defence Force Discipline Appeal Tribunal which hears appeals from military tribunals constituted by Defence Force Magistrates or Courts Martial. The principles on which leave to appeal or special leave to appeal may be granted or refused are also covered. Civil and criminal appeals are dealt with separately. There are also chapters which provide practical guidelines on the preparation of the grounds of an appeal or leave application. Best practice in the drafting of outlines of argument, and of appellate advocacy, whether as appellant or respondent, are also discussed. Other topics which are incidental to appeals – such as bail applications, stay applications, security for costs, costs on appeal in both civil and criminal cases, parties to an appeal, amicus curiae and interveners – are also examined.


CONTENTS

Foreword by Ian Barker QC
Preface
Table of Cases
Table of Statutes

The Right to Appeal
Types of Appeal
Alternatives to Appeals; Referrals; Case Stated; Declarations; and Judicial Review
Common Requirements for Lodging an Appeal
Preparing the Written Submissions
Responding to an Appeal
Applications for Leave to Appeal to Courts except the High Court
Appeals against Conviction in Criminal Proceedings
Appeals by Crown against Acquittals, Orders and Rulings
Sentencing Appeals
Appeals in Civil Cases
Leave Applications, Appeals and Removal to High Court
Reviews of and Appeals from Military Tribunals
Arguing an Appeal

Bibliography
Index


REVIEWS

The Hon Justice Dean Mildren 
has prepared a guide to appeals 
in Australia. It is intended, among other things, as a practical introduction for lawyers new to the practice from a judge’s perspective.
         Justice Mildren was appointed
 to the bench of the Supreme Court of the Northern Territory in 1991, retiring in 2013, and continues to sit as an acting judge.
         Justice Mildren writes in a engaging style, at times matter-of-factly: “Appeal Court judges
 are human and, just as an ordinary listener will become bored by 
a long-winded and rambling dissertation by a counsel who fails to come to the point, so will they”. There is also technical treatment of important principles and cases.
         An issue of great interest was the treatment of running weak points, as it is always a fraught forensic decision which points to run and which points to abandon even at trial level. “Before you reach the end of your speech, you should either abandon the weak points in your outline of argument, or simply tell the court that you rely on your written submissions in relation to them. My own advice is that abandonment will earn you gratitude from the bench, because that is one less issue they have to deal with, and you are likely to be raised in the esteem of the judges as a counsel who has given a lot of thought to their case and whose answers to the problems raised by the appeal are likely to be right.”

Tasman Ash Fleming, InPrint, Law Institute Journal Victoria, April 2016

Let me say from the start that this is quite an outstanding book.
          … the author brings his own experiences to life when he talks about arguing the appeal. From reminding the reader of the importance of engaging the Court to how to commence an opening address, this chapter, alone, is appropriate for any trial lawyer, of any age. We are never too old to learn or re-learn.
          This necessarily short review must surely have whetted your appetite to have a good look at this book. Its content has been meticulously researched. It is interesting to read. Above all, it is helpful.
          I suggest that The Appellate Jurisdiction of the Courts in Australia will become one of those books which becomes essential to a library of any firm or practitioner who engages in litigation and who, necessarily, will from time to time need to have available instant help as to how to initiate and pursue an appeal.
          A book such as this may also help to encourage instructing solicitors to a better understanding of the process involved in appealing. Read full review...

Brian Morgan, Hearsay, December 2015, 74

The author of this book is a former justice of the Supreme Court of the Northern Territory, and he brings his considerable experience to this comprehensive work on appeals in Australia.
        The book deals with every aspect of an appeal – from the types of appeal that exist, through to filing the appeal, obtaining leave where necessary, the grounds for an appeal and the powers of the appellate court. Civil appeals, criminal appeals and appeals from military tribunals are dealt with separately. The process for obtaining special leave from the High Court is also addressed as a discrete topic. The legislative provisions for each State and Territory are cited as well as relevant case law.
        The book goes beyond simply a discussion of the substantive law of appeals in Australia. The author has usefully included practical chapters, based on his own experience and discussion with other appellate judges, on how to identify grounds of appeal, draft notices of appeal and written submissions, and present the appeal through oral address.
        The author states that this book is aimed towards lawyers who are new to appellate work, but it will no doubt be invaluable to those who engage in appellate advocacy, irrespective of experience.

Queensland Law Reporter 6 November 2015 [2015] 43 QLR

   

Published 20 August 2015
Publisher The Federation Press
Hardback/256pp
ISBN 9781760020316
Australian RRP $174.95
International Price $165.00
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