Appellate Practice – Book Review

Editors: G.Blank and H.Selby Publisher: The Federation Press, 2008 Reviewed by Gavin Rebetzke

As Chief Justice Gleeson points out in his forward to Appellate Practice, “judges have a strong interest in the level of competence that lawyers bring to their work”. That probably explains why so many distinguished judges have contributed essays for inclusion in a book which is a treasure trove of practical advice, comprehensively dealing with the subject stated by its title. Often, appellate advocacy is relegated to a single chapter of a general text on advocacy. Yet all lawyers are required at least to consider prospects for appeal from time to time. This book covers the field of appellate practice and is structured in a way which lends itself to experienced appellate lawyers as well as the inexperienced.

The book starts with the basics in two chapters written by the editors themselves entitled What is an Appeal? and Frequent Issues. These chapters provide an overview of the issues all barristers must grapple with when asked by a client if an appeal can be taken. Can an appeal be taken at all? If so, what is the nature of the appeal which can be taken? Is it an appeal stricto sensu, by way of rehearing, or by hearing de novo? These are questions that are fundamental and yet working out the nature of an appeal from many quasi-judicial bodies is often fraught with difficulty. What is the slip rule?  How can time be extended to appeal?

While experienced appeal advocates will probably not have need to resort to the preliminary chapters written by the editors, they are likely to be a very useful starting point or at least a useful refresher for everyone else when their client comes second place and is dissatisfied with the outcome.

The next chapter is a comprehensive essay on Notices and Grounds of Appeal by Sydney Tilmouth QC who makes the point that Notices of Appeal are occasions for advocacy.   Unless an advocate has considerable experience in the appellate jurisdiction, he or she would be well advised to read this essay every time an appeal notice is drafted.  The essay is to the point, ripe with apparently very sensible advice, and replete with case references.

Jennifer Hedge provides a detailed chapter on appeal papers and other material required for the hearing of an appeal. It includes a helpful checklist for the preparation of appeal papers and tables which summarise the appeal documentation required in High Court, Federal Court, Family Court and the Supreme Courts of all six states as well as the ACT and the Northern Territory. The tables are particularly useful because they identify the documents required and reference them to relevant court rules together with useful notes about obscure requirements in different jurisdictions.

It apparently does not help to be a colour blind appeal judge or advocate in New South Wales judging by the colour coded requirements of that state’s Court of Appeal. Of course, it will then be necessary to consult the relevant court’s rules and practice directions but starting with one of these tables is likely to be a more practical, efficient and effective method if a lawyer has not recently run an appeal in a particular jurisdiction. This is a chapter which ensures that the book is indispensable not only to the barristers’ branch of the legal profession, but also the solicitors’ branch.

Orders on Appeal are not neglected in an essay by Brian Donovan QC. Intervention is dealt with comprehensively by the Solicitor-General for New South Wales, MG Sexton SC. Problems of new, fresh and further evidence are explored by Ian Freckleton SC, and the often neglected subject of costs is afforded an in depth treatment by G E Dal Pont. These are all chapters which make the book an essential resource for all legal practitioners whether they are occasionally asked to consider appeal prospects or regularly appear before appellate courts.

The problems inherent in making a successful special leave application in the High Court are dealt with succinctly by Tim Game SC. His list of six questions would be an excellent way to commence an analysis of the prospects of success in a special leave application.

There are two chapters devoted specifically to appeal advocacy — written and oral. For Queensland barristers, they will no doubt become compulsory reading before fronting the Queensland Court of Appeal due to their respective authorship. The first chapter, dealing with written submissions, is written by the President of the Court of Appeal, Justice Margaret McMurdo. The importance of the President’s contribution reflects the trend toward written advocacy which must, by now, be nearing its zenith. The point is well made that written submissions need to be given significant attention. Reference is made to the United States where the writing of appellate briefs is apparently an advanced art form. Overall, the chapter provides both a convenient and utilitarian guide to written appellate advocacy.

The chapter on oral advocacy, written by Justice James Douglas, is a veritable guide to how to survive the appeal hearing in one piece and, at the same time, get the client’s case across to the judges in the best light. How to integrate written and oral submissions, dealing with questions from judges, dealing with authorities, and submissions in reply are all topics upon which helpful advice is dispensed.

The book does not only cater for barristers and solicitors – the final chapter by Justice Kirby may provide guidance for the judiciary as well. Entitled “Appellate Reasons”, Justice Kirby provides an essay on judicial opinion writing which canvasses governing principles, structure and style. His Honour concludes, “The advocate who helps the hard-pressed judge to make findings and write reasons promptly and effectively is specially valued”. It is for this reason that the issues canvassed in this chapter are not written only for other judges!

Most chapters in the book deal separately at some stage with civil and criminal appeals, making it a valuable resource in both civil and criminal matters. The book is comprehensively indexed with quaint but pleasingly old fashioned references to page numbers rather than paragraphs. It is a worthy addition to The Federation Press’s stable of offerings for the Australian legal profession.

This is a book which should be on the bookshelves of every lawyer’s office.1

Gavin Rebetzke Roma Mitchell Chambers

1.     The text was released on 1 April 2008. The price direct from the publisher is $165. the RRP is $174.95. See http://www.federationpress.com.au/bookstore/book.asp?isbn=9781862876804#bookreviews