Glissan, Kimberly; Glissan, James --- "Whether, when and how to appeal" [2020] PrecedentAULA 26; (2020) 158 Precedent 4

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WHETHER, WHEN AND HOW TO APPEAL

By Kimberley Glissan and James Glissan AM ESM QC

The case is over. You not only certified it as having reasonable prospects of success, you had confidence in it. ‘The judge did not agree and he told us so’.^[1] What is the next step?^[2]

SOLICITOR

The question for the litigation solicitor is always not so much can we appeal as ought we appeal. Two questions arise from that issue:

1. Are there grounds for an appeal?

2. What are the prospects of that appeal?

The answers to these questions must always be partly informed by the answer to the further question of whether the client can afford to appeal, or possibly whether the client can afford not to appeal, for there are some appeals that, simply put, must be run. This is often the case for a losing defendant. One issue to consider then is how to advance a doubtful appeal so as to give it the best chance of succeeding – are we going to be arguing that current law or practice is wrong, or that existing authority should be overturned?

All of these issues are discussed below.

Do I appeal?

There are a range of steps that a solicitor needs to take before the appeal process is commenced, and before any preparation of notices of intention to appeal or other steps are taken.

The first steps

A first step where an appeal is contemplated is always to immediately inform yourself of the limitation period for appealing, and of any other limitations on appeal. In some jurisdictions 28 days is permitted for appeal. In others, the time limit is 21 or even 14 days. Some jurisdictions permit an application to be brought out of time, while others provide a final or absolute bar.

The next questions to be answered are:

• How long do I have to appeal?

• On what basis may I appeal – am I restricted to questions of law, or can I argue fact or mixed fact and law?

• Is leave required and in what circumstances?

• Does the matter go forward by stated case, as an appeal or as a hearing de novo?

• In what circumstances can I introduce fresh evidence or new evidence, and in any event what is the difference between the two?

• Is it possible to file a notice of intention to appeal, and if so when must the appeal proper be filed?

Instructions

No appeal will be commenced without clear and direct instructions from the client, or the tutor or next friend. If the client is a corporation, is it in a position to offer or provide security for costs? Is a stay necessary? Moreover the client will need to be informed of the likely cost of appeal. This is in my experience often underestimated, because of the apparent ability to use the material from trial. Is there additional but justifiable cost in instructing fresh counsel for the appeal?

Discuss costs and these related issues with the client and obtain careful and precise instructions on all of these matters before undertaking any serious work in the matter – or fail to do so at your peril.

Trial counsel

This is your best immediate resource (unless the conduct of trial counsel is the likely issue on appeal). You should review the trial and discuss with trial counsel the outcome, the reasons, and the reasoning disclosed by the judgment. If there are factual errors these might not support an appeal unless they point to error elsewhere in the reasons. If your counsel at trial shares your concerns, she will be likely to advise an appeal and suggest possible grounds for your consideration. Counsel will also usually be able to advise on the limitation and leave issues referred to above.

If trial counsel is of the opinion that an appeal lies, and the client instructs you to act, you must be astute to commence within time or, if the rules permit, file one of the following documents: a notice of intention to appeal; an application for extension of time within which to appeal; or a notice of appeal without grounds or in general terms. Depending on the jurisdiction, any may be possible. In both criminal and civil matters in the superior courts in NSW, notices of intention provide a window to allow time for the preparation of the appeal papers, resulting from the requirement that submissions must now be filed together with the grounds of appeal.

In order to determine what options are open, the practice directions of the various courts provide the best and most readily available sources of information.

Advice to client

Before commencing, provide an advice to the client covering the following matters:

• the result at trial;

• the reasons you advise an appeal and the bases for it, expressed in clear, non-technical language;

• your opinion or that of counsel of the prospects of success;

• the likely costs of an appeal; and

• the possibility of the need to apply for a stay of judgment.

As we are now dealing with a new proceeding, you will need to provide a fresh costs disclosure and fee agreement referable to the appeal matter and provide an estimate of disbursements. If you intend to brief senior counsel or fresh counsel to conduct the appeal this should also be disclosed in the advice.

The brief on appeal

Collect and collate – do I have everything?

This is more important where you are briefing fresh counsel or where counsel has already returned the brief from trial. Even so, it is vital that nothing that might be needed for or relied on at appeal is excluded from the brief. It is the overlooked material that so often causes problems, sometimes insoluble ones, during the hearing of the appeal, or at an earlier stage misleads the pleader into advancing a ground that cannot succeed or is otherwise flawed. Having said that, do not just put the file in a two-ring binder and send it off to counsel. What is required is a properly thought out presentation of the relevant material.

Briefing for an opinion

Whether what is sought is an advice on prospects of the appeal/grounds or, that decision having been already made, a brief to appear, the same general principles apply.

A sensible order for such a brief is:

1. Observations: These should be clear, concise and precise. Ideally, they will identify the matter at issue and the concern for appeal. No very great detail is required, as counsel will need to read the whole, but a general discussion of the area of concern helps focus the mind.

2. Pleadings (or indictment): Unless an issue arises as to amendment or alteration in the case, only the final pleadings are necessary at this stage. It is those that define the issues determined in the judgment, not variations between pleadings pre-trial. Any particulars or letters of particulars or of overt acts should be included as pleadings.

3. Principal judgment: If possible the revised and certified judgment is preferred.

4. Interlocutory decisions: These may give rise to separate grounds of error in relation to evidentiary issue briefs, or late amendment. If the latter, the competing pleading will of course need to be included.

5. Affidavits or witness statements: In courts where these provide the evidence in chief they are essential documents – they should be clearly and fully reproduced, together with attachments.

6. Transcript: This should be complete where possible.

7. Court book and/or exhibits: Unless you are confident that an exhibit is absolutely irrelevant to any issue on appeal, it should be copied and included where possible. Photographs and diagrams need to be in colour, full-size, clear and not trimmed or with portions missing or cut off. The copying of these is often the most frustrating part of an appeal brief.

8. Reports: Those tendered, including any notes, drafts or variations of which you are aware.

9. Any opinion from other counsel.

You are now in the hands of the advocate.

COUNSEL

What counsel needs in the brief

The short answer that most counsel will give is ‘everything, but only once’.

One problem that besets the incoming advocate who did not appear at the first instance hearing is the need to read the whole of the material available at trial. This may well include material that was available but not used, as sometimes fresh or new evidence grounds can be powerful assets in an appeal. It is important to have it all, but there is no benefit, and considerable disadvantage, in having 23 copies of the same letter or email chain. The solicitor has a responsibility to check the photocopying of the brief to ensure there is no duplication of material unless it is for a forensic purpose that can be described in the observations.

Transcript and judgments (final and interlocutory)

When one comes to consider an appeal, the first point of reference for the pleader is the final judgment to be challenged. It frequently happens that during the course of trial interlocutory decisions that impact on the ultimate outcome are delivered. These relate to issues of admissibility or discretion and may give rise to appellable error, and so grounds of appeal.

It follows that all such interlocutory decisions and the associated transcript must be considered in the context of the final judgment and of the appeal.

When drafting grounds of appeal, the reasons and the reasoning of the judge have to be analysed for legal orthodoxy and consistency with authority as well as considering the findings of fact, even where no appeal on fact lies.

In true appeals – those to the Court of Appeal and the Court of Criminal Appeal – factual issues are open to be agitated in most circumstances.

The real evidence and exhibits form part of the record and are capable of having a bearing on legal as well as factual issues. They form an essential component of the brief.

Demonstrating grounds of appeal

Finding error is the essence of all appellate advocacy, but not all errors are equal. Separating the wheat from the chaff is an essential skill for counsel considering an appeal. Not all grounds are good grounds, as not all errors are material. There must be more than mere error – the error must warrant reversal or setting aside the verdict or judgment. The advocate must consider whether the consequence of the error was operative. Moreover, it is important that the argument advanced should be one designed to capture the interest of the court and to demonstrate that it is supported by the merits of the case as well as the law. Bare technical mistakes of no moment destroy rather than advance the case. A careful selection among available grounds must be made and only those that matter used.

Grounds as advocacy

The notice should clearly identify the error complained of, its context, and perhaps contain a brief indication of the argument. The same reasoning applies to notices of contention or of cross appeal.

Too often a notice of appeal is lodged in general terms simply ‘to preserve the client’s position’, or adopts the unacceptable ‘shotgun’ approach: throw in every point, no matter how feeble, in the vain hope that some shot may reach the target. This is very poor advocacy indeed.

An effective ground of appeal identifies the precise point of error, indicates exactly where that error occurs in the judgment or transcript, and demonstrates why it was erroneous. The grounds of appeal should be numbered sequentially and ordered logically, in the sense that those which arise first should be dealt with first. For example, matters of jurisdiction would be dealt with in advance of other grounds; grounds which would result in the quashing of a conviction before any others in a criminal trial; and in a civil case, those giving rise to setting aside the verdict before those merely likely to result in the appeal being allowed in part.

A good ground of appeal will avoid generalised complaint.

Preparing submissions

It is necessary to reanalyse the case, taking into account the judgment and findings being challenged. That case analysis will also factor in the new considerations identified above, and relate both to the intrinsic merits of the case and an innate sense of justice. The situation can be more difficult for the advocate who appears for the first time on appeal. There is an advantage in this, as the advocate comes to the case with a fresh mind uncluttered by trial issues. The concomitant disadvantage is that the atmosphere of the trial is not readily available to fresh counsel.

In either case it is necessary to read (or reread) and master the evidence. For that purpose, counsel who comes to the appeal having conducted the trial must undertake that exercise again, with a conscious view to generating a new outlook on the case rather than just adopting the stance taken at trial.

In the end result, the time spent preparing an appeal is likely to be much more than the time spent actually arguing the case before the court.

Written advocacy

Given that so much appellate advocacy revolves around written materials, it is important that the materials be arranged in a way that encourages an orderly consideration of the issues to be raised on appeal. This process begins with the notice of appeal itself. A properly constructed notice of appeal, containing carefully drafted and orderly grounds, is itself an effective piece of advocacy.

At the hearing

There are some simple rules for the conduct of appeals – that is to say, simple to express, but perhaps difficult to achieve:

• Advance only good arguments; eliminate bad ones.

• Distinguish written and oral techniques.

• Make the notice of appeal an instrument of persuasion.

• Keep written submissions brief, issue-focused, coherent, logical, concise, accurate and well-presented.

• Oral argument should focus immediately on the central issues and be interesting, flexible, tactful and expeditious.

The rules for oral presentation:

• Begin strongly and interestingly.

• Answer questions from the bench instantly.

• Be flexible and tactful.

• Keep a close eye on the judges – observe and react.

• Prepare pre-emptive arguments.

Where to start

The best counsel commence their arguments with a sentence or two explaining the central issues at stake in the appeal, often using a citation from authority designed to achieve the same object; or a reference to an arresting fact which will intrigue the reader and capture attention. The opening is generally the one moment when the advocate plunges straight into reading a tedious extract from legislation or a lengthy citation of authority. The opening is the headline. It is the chance to communicate the advocate’s basic point of view. It is a moment for selectivity. First impressions are often important.

A good advocate will therefore give a lot of thought to the opening words of argument and to the strategy of explaining the case to the decision-makers.^[3]

It is very necessary to begin the argument on appeal on a ground upon which the appellant is most confident. It is vitally important for the advocate to consider the case not only in its legal or factual aspects, but in the more limited sense that the appeal judge will bring to the hearing.

Due to temperament, practice and the pressures of time judges will vary as to how much of the material they may have read or absorbed. The advocate must be especially attuned in an appeal to adapt to judges who are clearly on top of the material or to those who are not. The advocate must also be prepared to take judges more carefully through the case if that is required, or to go to the heart of the main point or issue if the court is so minded.

On this point, too, no matter to whom one speaks or what articles one reads about appellate advocacy, there seems to be universal agreement that authorities have a limited role. The High Court (indeed, as all appellate courts) discourages the lengthy reading of passages from those cases. As Mason J, as he then was, observed at an Australian Bar Conference, ‘Judgments are not a substitute for argument. They should not be used as biblical texts or utterances from the Oracle of Delphi’.^[4]

Dealing with the bench (hostile or friendly)

Persistent or unduly difficult judges require special care. The advocate must remain polite and composed. There are some techniques for survival:

• Answer the question as briefly as you can and then return to your theme.

• Avoid getting into an argument with the judge.

• Above all, do not evade the question, or put it off, no matter how embarrassing it is, or how it interrupts your line of reasoning.

Friendly judges can be almost equally problematic. As I have said on other occasions, not every helpful suggestion made by an appellate judge is a Trojan horse. Certainly, many are not intended to be, and are genuinely meant to be helpful. Nevertheless, all must be viewed in the context in which they arise. That context is the arguing of an appeal. It must be accepted that the judge in throwing out suggestions may well be working through, in his or her own mind, possible factual and legal principles and their consequences. The suggestion may not be the result of any settled view and indeed it may be merely designed to test the merits of counsel’s argument. It may, of course, be expressly designed to lead counsel astray, a form of ‘judicial advocacy’ which is by no means unknown. Whatever the reason, such suggestions, however helpful they may appear, must not be uncritically adopted. If you need time to consider what is put to you, say so. A moment’s silence for reflection is not by any means unreasonable, and will not adversely affect either your reputation or your prospect in the instant case. This precise point was dealt with at length by Mason J paper to the Bar Association Conference in 1984, where he said:

‘It is not easy for a counsel to reject a point offered by a judge which appears to support him but it is a mistake to take up an argument which is without arguable foundations. The judge may have no commitment to the point which he raises. Counsel may then be left to carry the point on his own and the judge will have no reason to thank him if his slender support serves only to demonstrate the fragility of the judge’s contributions.’^[5]

Responding to questions

It is a necessary part of the advocate’s armour to expect and know how to deal with questions from the bench. It is more likely that there will be incisive and penetrating questions on appeal than at trial. Advocates should regard these questions not as threats, but as windows of opportunity. There is a natural tendency to regard difficult questions as barriers to the development of argument but in truth an advocate who is fully prepared should have anticipated the questions in general, if not in terms, and have prepared answers to them. It should be apparent where the strengths and weaknesses of the case lie both for appellant and respondent, and if the case analysis has been properly undertaken it should not be too complex to anticipate the difficult questions and work out the most compelling available answer.

When a question is asked, it is certain that the worst answer of all is, ‘I’ll come back to that later if the court pleases’. You should be aware that judges ask questions because, in the main, they are genuinely interested in the answer or are troubled by the point raised. If the answer is not given almost immediately the judge may either lose interest, or more fatally may assume that an answer was not given because there is no effective answer.

Finishing

The usual advice is ‘finish strongly’ or ‘save your second-best point to conclude’. Depending on how the appeal has gone, sometimes just to finish at all is an achievement.

Where possible, my advice is to finish with a quick summary of your arguments – so that the central planks of your appeal are the last thing heard from you, in a short, pithy argument for success.

Kimberley Glissan is Principal Solicitor at Glissan & Associates. She practices in King St, Sydney and in Sutherland, specialising in commercial and general litigation and advising. PHONE [phone] EMAIL [e-mail].

James Glissan AM ESM QC is a Barrister at HB Higgins Chambers, 82 Elizabeth St. Sydney. He practices in civil and criminal litigation, appeals and commission of enquiry. PHONE [phone] EMAIL [e-mail].

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^[1] The Beatles, ‘Maxwell’s Silver Hammer’, Abbey Road (1969).

^[2] One of my favourite legal shaggy dog stories is about a rich litigant in Queen Victoria’s England, in the same position. ‘What now?’ he said. Solicitor: ‘we can appeal’. The client said ‘do so’. After an equally unsuccessful appeal to the High Court of Judicature, the question again was ‘what now?’ Solicitor: ‘we can go to the Court of Appeal’. The client said, ‘do so’. After an equally unhappy experience before their Lordships, the same question was posed. Solicitor: ‘we can apply for leave to the House of Lords’. Leaving the House, having finally been dismissed, the client asked ‘where do we go next?’ The solicitor replied ‘there is nowhere else, that was the end of the road’. ‘Nonsense’, said the client – ‘where next?’ After a moment the solicitor replied ‘Well, you could begin proceedings for a Private Act of Parliament’. ‘Do so at once’ he was told. In admiration, the solicitor grasped the client by the hand and said ‘My dear Sir, I should like to breed from you.’

^[3] Hon Justice Michael Kirby AC, ‘Ten rules of appellate advocacy’ (speech delivered at Australian Advocacy Institute Appellate Skills Workshop, Sydney, 1995).

^[4] AF Mason, ‘The role of counsel and appellate advocacy’, Australian Law Journal, Vol. 58, 1984, 537.

^[5] Ibid.