Right to appeal...think again!

Since 10 November 2014, the landscape of civil appeals in Victoria has changed significantly. Pre 10 November 2014, a party wishing to bring an appeal against a final decision in the civil jurisdiction could do so by right. Now, the Courts Legislation (Miscellaneous Amendments) Act 2014 (Vic) (the Act) provides that any party wishing to bring an appeal is required to first obtain leave to appeal (subject to a few discreet exceptions¹).

The new regime falls in line with the existing system for criminal appeals in Victoria and the existing practice for interlocutory appeals in the civil jurisdiction to create a uniform approach to civil appeals. During parliamentary debate, the aim of the amendments were described to “modernise and simplify appeal processes” and simplify the civil appeals regime in Victoria.

In addition to the requirement for leave to appeal, additional changes have been made as a result of the Act to the Supreme Court Act 1986 (Vic) with the insertion of sections 14A to 14D. The main changes include:

1. An application for leave to appeal must be filed within 28 days from the date of the judgment, order, determination or other decision which is the subject of appeal. This is distinct from the previous limits of 14 or 21 days.
2. An application for leave to appeal is commenced by filing the application for leave to appeal. This is different to the previous practice where an application was initiated by service of the application.
3. The Court of Appeal may grant an application for leave to appeal if it is satisfied that the appeal has a “real prospect of success”. This has altered the common law test that previously applied to appeals from interlocutory decisions, which required that the primary decision be met with enough doubt to justify leave.
4. An application for leave can be determined without an oral hearing. There is no entitlement to an oral hearing and the decision is for the Court. If the Court dismisses an application for leave to appeal without an oral hearing, the applicant may apply to have the dismissal set aside or varied at an oral hearing before the Court of Appeal constituted by two or more Judges of Appeal; however, if the Court of Appeal dismisses an application for leave to appeal without an oral hearing and has determined that the application is totally without merit, the applicant has no right to apply to have the dismissal set aside or varied.
5. Applications for leave to appeal will be listed either with the hearing of the appeal or the hearing of the appeal will be listed at a later date.

The real question that has arisen by way of the amendments to civil appeals, is what the test of “real prospect of success” entails. The Court of Appeal considered the formulation of this test in Kennedy v Shire of Campaspe² where Whelan and Ferguson JJA made an analogy between the phrases “no real prospect of success” in the Civil Procedure Act 2010 (Vic) (which applies this test to summary judgment applications) and the phrase “real prospect of success”.

Their Honours considered Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd³ where Warren CJ and Nettle JA stated that the test of “no real prospect of success”:

 “…should be construed as one of whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success; that the ‘real chance of success’ test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test; and that, as the law is at present understood, the real chance of success test permits of the possibility that there may be cases, yet to be identified, in which it appears that, although the respondent’s case is not ‘hopeless’ or ‘bound to fail’, it does not have a real prospect of succeeding.”

Whelan and Ferguson JJA further stated that “For the purposes of leave, it is only necessary to distinguish between those whose prospects are real and those whose prospects are fanciful. There is no bright line that divides the two.” The Court confirmed its discretionary basis for granting leave and stated that there are “some different considerations that may play a part in the exercise of the Court’s residual discretion to refuse leave, even where the appeal has a real prospect of success.”

The practical effect of this decision is that the test of “real prospect of success” means that even when there are matters with real prospects of success, the Court still has a discretion to refuse to grant leave to appeal.