SPECIAL LEAVE HIGH COURT

This page is designed to take attempt to understand how special leave applications are determined in the high court of Australia. Initially I would recommend to read extracted relevant provisions below to deal with the issue. 

DISCRETION AND JUDICIAL POWER: 

Court said: "From time to time statements have been made which draw attention to the unusual character of an application for special to appeal is Such an application has special features which distinguish it from most other legal proceedings. It is a long-established procedure which enables an appellate court to control in some measure or filter the volume of work requiring its attention. Ordinarily, it results in a decision which is not accompanied by reasons, or particularly by detailed reasons. It involves the exercise of a very wide discretion and that discretion includes a consideration of the question whether the question at issue in the case is of such public importance as to warrant the grant of special leave to appeal.

The Court continued:

To that extent, at least, the Court, in exercising its jurisdiction to grant or refuse special leave to appeal, gives greater emphasis to its public role in the evolution of the law than to the private rights or interests of the parties to the litigation. Notwithstanding these special features, an application for special leave to appeal, like an application for leave to appeal, is an accepted and long-standing curial procedure in this country."

After referring to the nature of the hearing and the end result of the Court's determination, the conclusion reached was that the application involved an exercise of judicial power.

COURT OF REVIEW V. COURT OF APPEAL:

Catchwords: error of law, error of fact, error of mix fact and law, prima facie case of erorr [excercise of an error, whether of law or fact, on the part of the court att instance is an indispensabk condition of a sucessful appeal],  if wrongly decided might seriously interfere with the administration of criminal justice, question of fact [substitute for the view taken by the Court of Criminal Appeal a different view of the evidence and of the effect of the summing up, assessment of the credibility,  facts which are undisputed],  qualified appeals, lies somewhere between the unqualified appeal and review, purpose of High Court appeals serve both public and private interests,  question of principle or law+interest of adminstration of justice [inconsistent with established facts or was glaringly improbable,  Nor will the Court set aside an exercise of discretion otherwise than for disconformity with the principles, ventilating an issue of fact [considered as general importance for issue of fact or mix of fact and law also be regarded as involving an error of principle on the part of the court below in its approach to an issue of fact], contrary to evidence, ] The Interests of the Administration of Justice [].

MORRIS v. THE QUEEN [1987] HCA 50. "The Court must necessarily place greater emphasis upon its public role in the evolution of the law than upon the private rights of the litigants before it. Whilst procedurally and otherwise this Court performs in many ways a truely appellate function, more significantly it operates as a court of review and this must ultimately be the most important factor in the selection of those cases in which special leave to appeal is to be granted"

[WHITEHORN v. THE QUEEN [1983] HCA 42]

Leave to appeal may be given where an applicant makes out a prima facie case of error. That is not enough to attract special leave to appeal, which should only be given where, in addition, there is some special feature of the case which warrants the attention of this Court. It would be wrong to attempt to formulate rules which would confine the exercise of the jurisdiction to grant special leave. It remains a discretionary jurisdiction. Sufficient has, however, been established in the decided cases to provide a clear guide to those occasions when it is appropriate to grant special leave and those when it is not........In exercising its wide discretion to grant special leave to appeal, it is proper that the Court should be influenced by the function which it performs as the final appellate court in the judicial hierarchy. The number of applications for special leave increases year by year, particularly in the criminal law. Since the number of cases with which the Court can properly deal in any one year is limited, it is inevitable that a careful choice must be made having regard to the duty which the Court has to develop and clarify the law and to maintain procedural regularity in the courts below. The Court must necessarily place greater emphasis upon its public role in the evolution of the law than upon the private rights of the litigants before it. Whilst procedurally and otherwise this Court performs in many ways a truly appellate function, more significantly it operates as a court of review and this must ultimately be the most important factor in the selection of those cases in which special leave to appeal is to be granted. See generally Jolowicz, "Appeal and Review in Comparative Law: Similarities, Differences and Purposes", [1986] MelbULawRw 17; (1986) 15 Melbourne University Law Review 618................."It has been repeatedly affirmed by this Court that it is not a court of criminal appeal and that it will not grant special leave to appeal in criminal cases unless some point of general importance is involved, which, if wrongly decided, might seriously interfere with the administration of criminal justice: see now Judiciary Act 1903 (Cth), s.35A. It would not be in accordance with that practice to grant special leave to appeal in this case where no question of law is involved and where this Court is merely being asked to substitute for the view taken by the Court of Criminal Appeal a different view of the evidence and of the effect of the summing up: cf. Reg. v. Howe [1958] HCA 38; (1958) 100 CLR 448.

Mason, Sir Anthony --- "The Regulation of Appeals to the High Court of Australia: The Jurisdiction to Grant Special Leave to Appeal" [1996] UTasLawRw 1; (1996) 15(1) University of Tasmania Law Review 1.

In the exercise of its appellate jurisdiction, the High Court acts as a court of appeal rather than as a court of review. See generally Jolowicz, "Appeal and Review in Comparative Law: Similarities, Differences and Purposes", [1986] MelbULawRw 17; (1986) 15 Melbourne University Law Review 618. Although the High Court's appellate jurisdiction is expressed with reference to 'appeals', they are not unqualified appeals. An unqualified appeal would call for a fresh hearing on the facts as well as the law. A review, on the other hand, involves no fresh hearing and is limited to errors of law, whether substantive or procedural. 

Appeals to the High Court are qualified appeals, in the sense that the Court will not, as a general rule, disturb findings of fact based on an assessment of the credibility of Although an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or are established by the trial judge's findings of fact, the Court will give weight and respect to the conclusion of the trial judge. [An appellate court will interfere when the decision is clearly wrong on grounds which do not depend merely on credibility as, for example, on the ground that the evidence which was accepted was inconsistent with established facts or was glaringly improbable:  Brunskill v Sovereign Marine & General Insurance Co Ltd [1985] HCA 61;  ABALOS v. AUSTRALIAN POSTAL COMMISSION [1990] HCA 47; PETER JOHAN DEVRIES AND ANOR v. AUSTRALIAN NATIONAL RAILWAYS COMMISSION AND ANOR [1993] HCA 78; (but cf the dissenting judgment of Deane and DawsonJJ at 480-483)] Nor will the Court set aside an exercise of discretion otherwise than for disconformity with the principles regulating the exercise of a discretion.....NORBIS v. NORBIS [1986] HCA 17; "In conformity with the dictates of principled decision-making, it would be wrong to determine the parties' rights by reference to a mere prefer-ence for a different result over that favoured by the judge at first instance, in the absence of error on his part. According to our conception of the appellate process, the excercise of an error, whether of law or fact, on the part of the court att instance is an indispensabk condition of a sucessful appeal." ..........Even where our conception of appeal is so qualified, the appeal amounts to something more than review and lies somewhere between the unqualified appeal and review. 

The precise nature of High Court appeal is important in terms of Professor Jolowicz's discussion as he identifies the purpose of 'pure' appeal in serving the private interests of litigants, whereas the purpose of review is to serve public interest by clarifyig and developing the law. If this identification of purpose is to be accepted, it would follow that the purpose of High Court appeals serve both public and private interests. For my part, the purpose of appeals to the High Court is primarily to serve public interest as identified above. 

Provisions do not rule out grant of special leave for the purpose of ventilating an issue of fact.  HATZIMANOLIS v. A.N.I. CORPORATION LIMITED [1992] HCA 21; considered as general importance for issue of fact or mix of fact and law. But the case can also be regarded as involving an error of principle on the part of the court below in its approach to an issue of fact.

Likewise, the Court might grant special leave to appeal on an issue of fact when the resolution of that issue is so contrary to the evidence as to engage in a significant way the interests of justice in the particular case. A finding of fact might be so outrageous as to call for intervention. And, of course, the Court could grant special leave because the way in which an issue of fact was resolved raises an important question of principle. A primary judge might 'misdirect himself in relation to the finding in such circumstances as to raise such a question. And a question of principle might arise by means of a challenge to an existing principle or authority, such as  WARREN v. COOMBES [1979] HCA 9.

The Interests of the Administration of Justice. Cases which raise questions concerning maintenance of procedural regularity come within this ground. They may also raise a question of public importance. In general, questions relating to practice and procedure lie within the province of the relevant court below. The High Court is reluctant to grant leave in such cases, though in special circumstances, where the point is sufficiently important, the Court will do so: see for example Cachia v Hanes [1994] HCA 14, Carnie v Esanda Finance Corporation Ltd [1995] HCA 9.

PROVISIONS:

COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 71; Judicial power and Courts; The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes.

s80 of Judiciary act 1903,  s32 of Judiciary act 1903, s2 of Judiciary act 1903; "Matter" includes any proceeding in a Court, whether between parties or not, and also any incidental proceeding in a cause or matter.

Rule 1.06 of the High court rules 2004 interprets; "proceeding " includes an application to commence a proceeding. 

HIGH COURT RULES 2004 - RULE 41.01; Initiationof application for leave or special leave to appeal; 41.01.1 An applicationshall be in Form 23 and shall name as partiesall those who were partiesto the proceedingin the courtbelow at the time of the judgmentbelow.41.01.2 An applicationshall be signed: (a) by a legal practitioner on behalf of the applicant;or (b) if the applicantis unrepresented--by the applicant.41.01.3 An application:(a) must not exceed 12 pages; and (b) must be typed in at least 12 point (TimesNew Roman or equivalent font size) with line spacing of 1.5 lines. 41.01.4 An applicationshall be accompanied by the following: (a) a copy of the sealedorder or judgmentof the courtbelow; (b) a copy of the reasons for the judgmentbelow; (c) if the judgmentbelow determines an appealor reviews a decision: (i) a copy of the primary sealedorder or judgmentor decision; and (ii) the reasons (if any) of the primary court ordecision-maker that were before the courtbelow. HIGH COURT RULES 2004 - RULE 41.02; Time for filing application; 41.02.1 An applicationshall be filed within 28 days after the judgmentbelow was pronounced. 41.02.2 If an applicationis not filed within the time limited by rule 41.02.1, the applicantshall: (a) in the application,seek an order that compliance with that time limit be dispensed with; and (b)file and serve an affidavit explaining the failure to comply with rule 41.02.1.

JUDICIARY ACT 1903 - SECT 34; Appeals from Justices of High Court,  JUDICIARY ACT 1903 - SECT 35 Appeal from courts of States.
 

JUDICIARY ACT 1903 - SECT 35A; Criteria for granting special leave to appeal; In considering whether to grant an application for special leave to appeal to the High Court under this Act or under any other Act, the High Court may have regard to any matters that it considers relevant but shall have regard to: (a) whether the proceedings in which the judgment to which the application relates was pronounced involve a question of law: (i) that is of public importance, whether because of its general application or otherwise; or (ii) in respect of which a decision of the High Court, as the final appellate court, is required to resolve differences of opinion between different courts, or within the one court, as to the state of the law; and (b) whether the interests of the administration of justice, either generally or in the particular case, require consideration by the High Court of the judgment to which the application relates.

THREE DIMENSIONS OF S35A:

THE VICTORIAN BAR - CONTINUING LEGAL EDUCATION, 22 NOVEMBER 2004 "ADVOCACY AND SPECIAL LEAVE APPLICATIONS IN THE HIGH COURT OF AUSTRALIA".

It follows that, generally speaking, cases that attract the grant of special leave will fall into one of two classes. Either the point is one of general application, in the sense that a point of principle is at stake, or the case falls into the less numerous class of "visitation" cases. This latter class of case (the so-called "visitation" jurisdiction) comprises cases where the interests of justice in the particular case require a grant of special leave. 

Here the s35A has three basic dimensions in application.

1. High Court may have regard to any matters that it considers relevant.

but 

2. Shall have regard to: question of law either with public interest [whether because of its general application or otherwise]  

    or to resolve differences of opinion between different courts, or within the one court, as to the state of the law.

[In cases of that kind, on the hearing of the appeal, counsel must give close attention to identifying the principle which it is said should be applied by the Court to the resolution of the matter. That requires much closer and deeper analysis than is achieved by focusing upon the particular facts of the case and suggesting that "therefore" the Court should arrive at the result which you urge. ....................It requires consideration of what the Court has already said about the subject. What is it that you draw from earlier decisions of the Court? That will usually require distillation from a number of decisions or from a number of opinions in one or more decisions. It requires you, as counsel, to articulate what you say is to be derived from the cases rather than simply pointing to a number of passages in the Reports. It requires you to identify whether you can legitimately say that the principle you advance has been decided by a majority of the Court in a particular case or, as may often be the case, is a principle which finds support in the opinions of one or more members of the Court which travelled rather further than the ratio decidendi of the particular case in which these statements were made. It requires you to pay the strictest attention to whether the view you propound finds support only in dissenting opinions. But in the end you must be able to answer that most innocent of questions from the bench, "What is the principle that you say applies?" That will require your formulation of the principle in a way that can find accurate and sufficient support in what has gone before in the Court or, if what you propound is new, can be shown to be a logical development from what has gone before..................On appeal, especially in a case which is thought to raise a point of general principle, it will seldom be sufficient to reproduce the argument that you advanced in the intermediate court of appeal. That court, almost certainly, will have approached the case very differently from the way the High Court will. Of course you cannot completely recast your case. There are important respects in which you are bound by the way in which the case has been conducted below[8]. But, for the reasons I have given earlier, the argument you advance on appeal in the High Court will have far less reading from decided cases and much more emphasis on your articulation of what is said to be the applicable principle.]

and

3. Interest of justice in particular case require consideration.     

If you say the case is one in which the interests of justice in the particular case warrant a grant of special leave, what is it about the case that reveals that to be so? That presents particular difficulties in some criminal cases where the point which is said to warrant the attention of the High Court is a point that has not been taken at trial or on appeal. What is it about the case that suggests that there may have been a miscarriage of justice?

Wickham, Ben --- "The Procedural and Substantive Aspects of Applications for Special Leave to Appeal in the High Court of Australia" [2007] AdelLawRw 10; (2007) 28(1) Adelaide Law Review 153; at [155], However, it is surprising to observe the regularity with which counsel are lost for words when faced with the exasperated question from the bench of ‘what question of principle is involved?’ The Court is directed to have regard to the well-known criteria postulated in s 35A of the Judiciary Act which provide a template for decision-making. Broadly, the application should give rise to a question of law of public importance, or the interests of the administration of justice may require a grant of leave. The latter is sometimes referred to as the Court’s visitation or visitorial jurisdiction.

Mason, Anthony --- "The High Court as Gatekeeper" [2000] MelbULawRw 31; (2000) 24(3) Melbourne University Law Review 784;

Generally speaking, a question of law of public importance will arise if the case involves a question of legal principle rather than a question of the application of legal principle…. Sub-sections (a)(i) and (ii) are directed to the court’s law-making function. The grant of special leave in relation to such questions of law enables the court to clarify the law by formulating the correct legal principle, there being a controversy as to how the principle should be stated. The formulation of the correct legal principle is incidental to the exercise of judicial power in adjudicating the controversy between the parties to the litigation. But it is the need to clarify the law — to formulate the correct principle — that is the decisive consideration in the grant of special leave…..

Sub-section (b), though expressed in very general terms, commonly applies to two categories of case  

substantive -  which fall under the rubric of miscarriage of justice. Under sub-s (b), special leave may be granted where the outcome of the case involves a miscarriage of justice. That occurs when any error results in such a miscarriage, even if the error is not one of legal principle. Criminal cases provide examples of substantive miscarriage of justice.

procedural — Sub-section (b) also covers cases where there is procedural irregularity…..Special leave may be granted in the categories to which sub-s (b) applies even if the law does not call for clarification. This is because the judgment under challenge is inconsistent with the proper administration of justice. So the grant of special leave in these cases does not primarily engage the court’s law-making role.

FINDING RELEVANT AUTHORITIES:

Finding successful precedents closely related with grounds of the special leave application is not an easy task, time consuming. Click here. Discretionary judgment.

1. But it is not surprising that searching of journals by title in AUSTLII database can be a starting point to pick out relevant cases in specific grounds of the leave application. 

2. High court database of decided cases is designed in a very clever way for the overall users. Catchword of each decided case can be googled using the browser. It means if you type "evidence special leave" it will pick up some cases from high court database.

Discretionary judgment:

The general rules governing appeals seem well settled. Where the decision challenged involves the exercise of a discretion, broadly described to include 

(a) states of satisfaction [Related to circumstances where the tribunal must exercise a discretion are situations where, under legislation, the tribunal, before making a decision, is required to be ‘satisfied’ or ‘of the opinion’ that certain conditions have been met. The conditions may be susceptible of precise and objective identification. Alternatively, the conditions may refer to broad concepts such as ‘the public interest’ and ‘the interests of justice’. The principles concerning when a court may interfere with such decisions are effectively the same as the House rules.]

and  

(b) value judgments [A distinction has sometimes been drawn between a ‘discretion’ strictly so called (where legislation provides that a tribunal may choose within a range or between several courses and, given the subjective content of the decision, there is no single correct answer) and where legislation provides for the exercise of a ‘value judgment’ (where an objective assessment or evaluation of the facts is required or a balancing exercise is undertaken and there is in theory at least only one correct answer, even where because of the flexible nature of the concepts under review rational minds might arrive at different answers)]

the principles developed in House v The King apply. COULTON v. HOLCOMBE [1986] HCA 33; (1986) 162 CLR 1

Uniform Evidence Law [The key distinction between the law of evidence and other areas of the law is that evidence is not substantive. Unlike the criminal law, tort law or the law of contracts(for example), it does not create legal rights or duties. By contrast, evidence law is procedural (or adjectival) in nature. It serves to lay down the process by which substantive legal issues are determined. The existence of evidence law is dependent upon the existence of substantive law...evidence law must ensure that the substantive law (whatever area of law that may be) achieves accurate results][evidence law largely designed to regulate the process of taking of evidences, acceptance, admissibility and other go to the discretion of the court mostly. As a result not substantive. Substantive law about evidence involves statutory provisions in various areas which regulate legal principles in decision making process].

Examples:

1. Appeal from federal court:

• AAT act on ground of question of law: Collector of Customs v Agfa-Gevaert Ltd 721[1996] HCA 36; 
• Assessment of Damage workers compensation:  Zheng v Cai [2009] HCA 52 
• Question of law under trade practice act: Australian Competition and Consumer Commission v Flight Centre Travel Group Limited [2016] HCA 49

2. Appeal from supreme court:

•  Discretionary judgment on interest of justice: COULTON v. HOLCOMBE [1986] HCA 33
• new trial : Campbell v Backoffice Investments Pty Ltd [2009] HCA 25.
• question of law: R & R Fazzolari Pty Limited v Parramatta City Council Mac's Pty Limited v Parramatta City Council [2009] HCA 12 ; Cassegrain v Gerard Cassegrain & Co Pty Ltd [2015] HCA 2.  Roberts v Bass [2002] HCA 57; Central Bayside General Practice Association Limited v Commissioner of State Revenue [2006] HCA 43.   
• Evidence: Suvaal v Cessnock City Council [2003] HCA 41;  Whisprun Pty Ltd v Dixon [2003] HCA 48 State Rail Authority of New South Wales v Earthline Constructions Pty Limited (In Liquidation) (S34-1998) [1999] HCA 3

OTHER VARIABLES:  

1. Comparative Merit of the case keeping in mind that (a) there might be plural appeals to lower courts already with satisfactory decisions, (b) some appeals will be dismissed in the judgment after clarification of law or legal principle may be so important.2. Private benefit, amount at stake and balance in public and private. [s35 as before 1984. Appeal as of right without special leave: an appeal lay to the High Court from judgments involving any claim, demand or question affecting the status of any person under the laws relating to aliens, marriage, divorce, bankruptcy or insolvency. Such an appeal was of right unless the judgment was interlocutory. Arguments in favour of abolishing appeals as of right prevailed as the volume of work coming to the High Court was oppressive and appeals as of right often involved issues of fact. Obvious difficulty existed in maintaining appeals as of right on the basis that some financial test was appropriate.]

3. Public interest in isolation. 

4. Volume of application actually aligned with comparative merits of the application because within limited resource high court does not have any specific time frame to put end of any specific case filed in any given year.

Click to read: News one, News two. A long list of appeal should not pass special leave.