The Full Court of the Federal Court in SunshineLoans Pty Ltd v Australian Securities and Investments Commission [2025] FCAFC 34, comprised of Perram, Bromwich and Colvin JJ, recently succinctly summarised the principles concerning the proper preparation of a notice of appeal and subsequent conduct of the appeal.
The Court said:
Difficulties that arose from the manner in which Sunshine conducted the appeal
[129] The Federal Court Rules 2011 (Cth) require that the notice of appeal ‘must state…briefly but specifically, the grounds relied on in support of the appeal’: r 36.01. Difficulties may arise when litigants in person are called upon to meet the requirement: Arifin v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCAFC 61 at [30]. …
[130] The appeal brought by Sunshine advanced more than 30 grounds. It is not possible to say precisely how many grounds were advanced because of the use of sub-paragraphs to articulate separate grounds and the way in which some of the grounds were expressed.
[131] Many of the grounds were unfocussed in the sense that they alleged error at a high level of generality. In most instances they did no more than identify a contention that had been rejected by the primary judge. Universally, the ‘grounds’ failed to identify the paragraphs in the reasons of the primary judge where the alleged error in reasoning was said to have occurred. In almost all cases, the grounds failed to articulate what it was said the primary judge should have found. In consequence, the grounds of appeal were little more than a list of many of the arguments that had been advanced unsuccessfully before the primary judge. They failed to engage in any real sense with the reasons for decision of the primary judge. They manifested a fundamental misunderstanding of the nature of the right of appeal from a single judge of the Court conferred by the Federal Court of Australia Act. They provided no focus for the appeal.
[132] Appeal grounds should not include argument. Nor should they take the form of broad statements of the contentions that will be advanced on appeal. They must identify the nature of the error in the reasoning of the primary judge (pointing to where the error occurred) and state what should have been done by the primary judge, noting that the error may take the form of a failure to address a point of significance (see, for example, Cush v Dillon [2011] HCA 30; (2011) 243 CLR 298).
[133] When it comes to factual findings, the appeal grounds should reflect the well-established principles for challenging factual findings: see the recent summary in Frigger v Trenfield (No 3) [2023] FCAFC 49 at [134]-[147], especially at [141] concerning findings based upon a conclusion as to a lack of credibility of particular witnesses. Further, if findings are not challenged on appeal, they must be accepted. It is never appropriate to proceed, as Sunshine did in the present instance, as if there had been no factual findings by the primary judge and simply seek to argue the case by reference to the evidence before the primary judge (or worse still, some aspects of that evidence).
[134] Well drafted grounds of appeal are informed by an understanding of the reasoning pathway adopted by the primary judge. This is so for a number of reasons. It is an approach that ensures that consideration is given to whether the appeal grounds, if upheld, will provide a basis upon which the judgment or orders under appeal should be overturned. It will expose whether it is necessary for the appellant to succeed on all grounds or whether some grounds if upheld provide alternative bases upon which the appeal should be upheld. It will also expose whether the complaint goes nowhere in the overall scheme of things. Most importantly, it will inform what should be the subject of a separate appeal ground. Usually, there should be a separate appeal ground directed to each alleged error in the reasoning pathway, rather than rolling up issues in the same ground. It will also expose whether the ground is expressed with too much generality to enable the appeal court to understand the flaw in the logic of reasoning that is alleged, or to specifically direct attention to the point in the reasoning that is said to be infected with error.
[135] The formulation of an appeal ground is not like the formulation of a pleading. Grounds of appeal should not be elaborate nor should they set out matters at great length: Sansom v Sansom [1956] 1 WLR 945. The aim should be greater clarity rather than greater particularity: Maddren v Bell [1998] WASCA 215. Not every grievance will constitute a ground of appeal and findings as to subordinate or basic facts will rarely found a ground of appeal: Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157; (2002) 234 FCR 549 at [4]. Instead, it is necessary to focus upon intermediate findings or conclusions that are said to be in error (including references in the grounds to all the paragraphs that are challenged by the ground) and then, subsequently, make submissions in support of the ground by reference to the underlying facts and findings.
[136] Appeal grounds should also be prepared with a keen eye to conformance with the duty to exercise an independent judgment in regard to the arguments to be presented: Thiess Contractors Pty Ltd v Placer (Granny Smith) Pty Ltd [2000] WASCA 102 at [13]; and Dyczynski v Gibson [2020] FCAFC 120; (2020) 280 FCR 583 at [215]-[218].
[137] Sometimes, well prepared submissions in support of an appeal will remedy the burdens of a deficient notice of appeal by exposing the matters that should have been expressed in the grounds (but were not). Such a course is not to be encouraged because it poses difficulties for understanding whether there should be case management directions as to the conduct of the appeal. It is also likely to result in unfairness to any party opposing the appeal.
[138] In the present case, many of the matters alluded to in the appeal grounds were not addressed at all in the submissions or received only cursory mention in written submissions without being developed orally. Other aspects of the submissions bore no connection to any of the grounds. Difficulties were posed for the conduct of the appeal and the preparation of these reasons by the defective manner in which the appeal grounds were prepared. Those difficulties were most manifest when it came to those aspects of the appeal which sought to challenge the factual findings made by the primary judge and even more so the findings as to credibility. Those findings by the primary judge rested upon the consideration of documents, inferences drawn from those documents as well as, in certain respects, conclusions to the effect that witnesses for Sunshine were not credible because they gave a ‘schooled’ account which did not reflect the actual practices of Sunshine in dealing with its customers. As has been mentioned, impugned findings of that kind need to be challenged in accordance with established principles for challenging factual findings. Otherwise, as has been mentioned, the appeal must be conducted on the basis of the findings that have been made by the primary judge.
[139] The primary judge also found that there had been admissions by Sunshine that were consistent with his findings on certain key aspects.
[140] The appeal took the form of re-arguing the points that had been put to the primary judge in a road brush way without regard to any real analysis of the merits of the reasoning of the primary judge, the pathway by which conclusions adverse to Sunshine had been reached, the precise findings it was alleged that the primary judge should have made or the evidence that was relevant to those findings.
The decision is accessible here.
