Book Review: The Appellate Jurisdiction of the Courts in Australia

Hard Cover edition 221 pages

Author: Dean Mildren

Publisher: The Federation Press

Reviewed by Brian Morgan

For those to whom the name, Dean Mildren, is not familiar, let me tell you that he was, until recently, a Supreme Court judge in the Northern Territory. As an aside, he and I were opposed in a personal injuries trial, there, when he was in practice in the mid 1980’s.

Let me say from the start that this is quite an outstanding book.

One might be forgiven for wondering what could take over 200 pages to discuss, in relation to appeals. But when you actually look into the subject, there is a wealth of issues which the author has covered in great detail.

Obviously, there are criminal and civil appeals whose procedures may vary from Court to Court and State to State. There are appeals within the Federal sphere including in the Family Court of Australia. There are appeals from a Magistrate to the District Court or Supreme Court, appeals to a Full Court or Court of Appeal, plus appeals to the High Court.

There are appeals and reviews available from military tribunals.

The first issue is what right of appeal is available to a prospective appellant. Is there a right to appeal? Or is leave necessary? An issue of stark importance concerns the time limits that apply to initiating the appeal process. Speaking for myself, I have always tried to ensure that any appeal was filed within time. There is something particularly galling about running the gauntlet of needing to apply for an extension of time.

There are Crown appeals against an acquittal in criminal cases, appeals against sentence either by the Crown or the accused (all of which involve quite complex and different procedures) and appeals against conviction by accused persons.

Both in criminal and civil cases, there are occasions for seeking to introduce additional evidence on the appeal. What is the difference between “fresh” evidence and “new” evidence and in what circumstances will the Court receive it?

There are appeals seeking to correct errors. In a matter in which I was involved, the appeal was filed many years after the judgment had been finalised but it was evident on reading the judgment, more carefully, that the trial judge had made a finding of fact which entitled the Plaintiff to a particular head of damages. The judge had then omitted that entitlement from his final calculation and no one picked up the mistake for over 10 years.

Finally, 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.

Brian Morgan

Counsel

Chambers Brisbane