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APPEALS – POLICY
Policy
No notice of appeal, or application for leave to appeal or cross-appeal on behalf of any
Crown Law client shal be filed without the following authorisation:
Tribunal and District Court appeals to Team Managers in consultation with
the High Court
Deputy Solicitors-General
Case stated appeals to High Court, Deputy Solicitors-General
applications for review under s 26P
Judicature Act 1908
Appeals to Court of Appeal
Deputy Solicitors-General
Appeals to Supreme Court
Solicitor-General (original authority)
Criminal Appeals are managed in accordance with the Prosecution Guidelines and not
this policy.
References
Cabinet Directions for the Conduct of Crown Legal Business 2016
Commentary
• From time to time, counsel must consider whether or not to appeal a decision of a
court or tribunal, or whether or not to apply to review a decision of an Associate
Judge of the High Court.
1 For the purpose of this policy “appeal” refers to appeals,
cross-appeals, applications for review of an Associate Judge and applications for
leave to appeal.
• Paragraph 29 of the Cabinet Directions states:
No Minister or government department may initiate any appeal from the decision of a
court or tribunal, or an application for judicial review, without the approval of the
Solicitor-General, which maybe general or specific.
• Accordingly, prior to filing any notice of appeal, counsel must obtain the approval of
the Solicitor-General or his delegate. This includes all requests to appeal, including
those requests that come from clients but with which counsel disagree.
• For some purposes, the Solicitor-General has delegated his authority under the
Cabinet Directions in respect of some appeals to Deputy Solicitors-General and
Team Managers, as the policy reflects.
• There is an important qualification, however. As will be obvious, these delegated
authorities are based on the court hierarchy. Of course, the court hierarchy is not
always a good measure of the importance of a case. There may be occasions (likely
to be rare) where an appeal from, say, a decision of the District Court wil raise issues
with important consequences for the Crown or cause public or political controversy.
1
Applications for judicial review under the Judicature Amendment Act are covered by the policy on filing proceedings [document
710514].
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APPEALS – POLICY
• Counsel and those with delegated authority should be sensitive to such cases. Where
they occur, the Solicitor-General, or a Deputy, should be involved in the decision-
making despite the delegated authority.
‘Protective’
• Appeal times are usually short. Counsel should ensure that sufficient time is allowed
Appeals
for the approval process. Filing appeals on a ‘protective’ basis is discouraged.
• Filing appeals for the purpose of keeping the Crown’s options open is incompatible
with the model litigant approach. We should bear in mind that there is another party
to the litigation who does not appreciate that the Crown has filed its appeal on a
‘protective’ basis. Furthermore, filing pro-forma appeals tends to suggest a degree of
disorganisation on the Crown’s part.
• In exceptional circumstances where this course of action is unavoidable and a
protective appeal application for leave has been filed, formal approval must still be
sought to maintain the appeal. The same template should be used with the necessary
modifications.
• In these circumstances it is important that the client understands that,
notwithstanding the filing of a notice of appeal or application for leave, the decision
whether to proceed is subject to the Solicitor-General’s approval. If approval is not
given the notice of appeal wil be withdrawn.
Supporting a
If, in an appeal, Counsel intends supporting the judgment on other grounds, consultation
decision on other with a Team Manager is required where Counsel intends to pursue a different argument
grounds
from that made in the lower court.
Procedure
• Counsel responsible for the file must prepare a memorandum containing a
recommendation to the Solicitor-General, or the appropriate delegate, whether or
not to approve an appeal. A
precedent memorandum is included in the Precedents
(Non Court Documents) Worksite page.
• The memorandum must:
• Be addressed to the person whose approval is sought and directed via counsel’s
Team Manager and the relevant Deputy Solicitor-General, who wil note whether
they agree or not with the recommendation.
• State the subject matter which the memorandum addresses and highlight the last
day by which a decision is sought.
• State which parts of the judgment it is sought to appeal.
• Provide a succinct history of the case.
• State reasons why an appeal or review is proposed.
• State the significance of the issues, including the client’s views and the
consequences if an appeal or review is not brought.
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APPEALS – POLICY
• Assess the prospects of success of an appeal.
• Assess whether other means of attaining the client’s objective are available and, if
so, whether they are preferable to an appeal.
• For civil matters, attach:
• a draft notice of appeal/notice of application for leave to appeal;
• a copy of the memorandum as to representation for the intended appeal or
application for leave as required by the representation policy.
• Where the nature of the appeal requires the memorandum to be reviewed by a Team
Manager and, as the case may be, a Deputy Solicitor-General, each must make an
independent, objective assessment whether the Crown should appeal a decision.
Input from Senior Crown Counsel may also be sought.
• The decision whether or not to approve an appeal, is to be made by the person with
the authority to make that decision. It follows that a Team Manager who disagrees
with a recommendation that counsel has made should not decide to withhold the
memorandum from a Deputy Solicitor-General if the decision to be made is properly
for the Deputy Solicitor-General.
• Likewise, in the case of a matter requiring the Solicitor-General’s attention, the Team
Manager’s and Deputy Solicitor-General’s consensus is not a pre-condition for
forwarding the memorandum to the Solicitor-General.
Policy
Policy Owner – Convenor, Professional Standards Committee
Information
Policy published on 30 April 2008. Updated 13 July 2018
Next review date 13 July 2021
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Document Outline
