Special Leave To Appeal – 3rd edition
Author: David O’Brien
Publisher: The Federation Press
Reviewer: Carmen De Marco
Special Leave To Appeal is an invaluable resource concerning the historical development of this discretionary power of the High Court to grant special leave, the criteria for granting leave, distinguishing features of civil and criminal procedure and the art of making persuasive written and oral submissions to the Court.
The book provides a practical guide for practitioners in respect of the specific procedural rules which must be adhered to when making an application for special leave in respect of both civil and criminal matters. These include the rules concerning initiating documents, the lodgement and filing of documents, responding to material, interlocutory directions, stays, cross-appeals, bail and costs. The book also helpfully sets out the differences and overlaps between civil and criminal procedure governing these applications.
David O’Brien (who is Chairman of Partners at MinterEllison) examines the essential differences between the civil and criminal tests for granting leave and the unique criteria the Court employs when exercising their wide discretion. In doing so, he discusses the various decisions and legislative amendments which have impacted upon the criteria for the grant of special leave.
Significantly, this third edition includes reference to the 2016 amendments to Part 41 of the High Court Rules 2004 (Cth). These amendments streamlined the procedure for making applications and reduced the number of oral hearings by introducing the current practice whereby the majority of applications are now determined on the papers.
Of particular practical use for practitioners is the final chapter of Special Leave To Appeal which provides guidance on making persuasive written and oral submissions to the Court. This includes the advice of Kenneth Hayne AC QC, Dyson Heydon AC (but for how long) QC and David Jackson AM QC. This chapter usefully steps through each required part of the written submissions for both the respondent and applicant and provides guidance as to how practitioners should best address these parts of their submissions. This is valuable given the shift in focus to the written argument which may, in many cases, be an applicant’s only chance to persuade the Court.
The book also provides assistance to practitioners in respect of preparing oral submissions and addressing the bench when oral argument is permitted. This includes a helpful list of questions which the bench routinely asks practitioners during the course of oral argument.
With this book, O’Brien, who has over 30 years experience as a commercial litigation practitioner, has provided a definitive manual regarding the making of applications for special leave. Bringing an application for special leave to appeal to the High Court is a responsibility of which every advocate dreams. When the opportunity finally arrives, for the first time, it brings with it a weight of responsibility and stress that did not necessarily get expressed in those dreams.
Special Leave To Appeal will, definitely, assist the advocate making her first application for special leave but its usefulness is much more than that. Experienced advocates, who have made many such applications, including successfully so, will also find guidance and assistance from continuing to consult its pages.
I recommend Special Leave To Appeal due to its comprehensive, practical, and straightforward approach to the methodology of seeking intervention before what Justice CW Pincus has described as the “last nail in the coffin”.
Carmen De Marco
22 March 2022