AUSTRALIA Law and Practice Contributed by: John Lee, Michael Williams, Siabon Seet and Vanessa Farago-Diener, Gilbert + Tobin
• applying for leave by filing a written applica - tion – within 14 days of the decision being made, to be either via a hearing or on the papers. In a state/territory Supreme Court, this can be done by filing a written application within 28 days of the material date of the decision or orders. Final Decisions or Orders If the decision appealed from is final and leave has not been considered, the party wishing to appeal must file a notice of appeal within 28 days of the decision being delivered, setting out brief grounds relied on in support of the appeal and the decision or orders it seeks. A copy of this must be served on the defendant. Appeals may be filed by either the plaintiff or the defendant to the decision appealed from. It is also possible for each of the parties to appeal the decision. In this situation, the defendant may file a notice of cross-appeal setting out the parts of the decision or the orders on which it seeks a different result. A party may choose this course even though it is successful in the overall result. 8.2 Factual or Legal Review Federal Court Appeals in the Federal Court of Australia may be against findings of fact or law. To succeed on appeal, an appellant must successfully demon - strate that the primary judge fell into error, such that the correctness of the decision reached is in doubt. Error may be found in discretionary matters, such as where an appellant believes the primary judge gave more or less weight to particular evi - dence than should have been given.
In the Federal Court, appeals may be: • in the strict sense – meaning that the Full Court may substitute its own judgment for the primary judge’s decision on a matter of law or clear error in a factual finding; or • on a question of law only – in this circum - stance, questions of law will be decided by the Full Court, whereas facts that are shown to have been determined in error will be remitted (sent down) to the court below for redetermination. A party may apply to the Court for further evi - dence to be admitted on appeal, no later than 21 days before the hearing of the appeal, sup - ported by an affidavit stating the facts on which Appeals to the Court of Appeal may be against any judgment or order of the court in any of its divisions. These appeals may concern errors of law, errors in factual findings, or a mixture of both. Where a party establishes error in the decision of the court below, the Court of Appeal may vary the orders made to correct the error, substitute its own decision for that given by the court below, or order a new trial be held. The Supreme Court may allow further evidence to be admitted on appeal. To do this, a party must apply by filing a motion with the Court, supported by an affidavit setting out the facts on which the party relies. The Court will make a decision to allow or dismiss the motion. Further Comments The confines of an appeal are set by the bounda - ries of the issues run at trial. This means that, for the party relies. Supreme Court
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