We currently have recently applied for special leave to appeal to the High Court of Australia in relation to 2 ongoing (although unrelated) matters.

The High Court is the final avenue of appeal in the Australian judicial system but having your appeal heard at this level is often a difficult task. All appeals to the High Court are by way of special leave to appeal or, in family law matters, pursuant to a certificate from the Family Court.

The difficulty of obtaining special leave to appeal, though, is illustrated by the fact that less than 10% of applications are successful. Further in 2007/2008 over 70% of the special leave applications filed were dealt with ‘on the papers’ meaning that the judges did not hear any oral submissions before they made their decision to refuse leave.

Section 35A of the Judiciary Act 1903 (Cth) gives the High Court a broad discretion to consider any matter it thinks relevant when deciding whether to grant leave to appeal. Without limiting this broad discretion the Court is required to consider the following:
1. Whether the proceedings involve a question of law:
a) that is of public importance; or
b) in which the High Court is required to resolve difference of opinions between different courts, or even within the same court, as to the state of the law.
2. Whether the administration of justice requires the High Court to consider the judgement upon which the application is based.

For leave to be given an appeal will always concern an error of principle either in the way the intermediate court has carried out its function or where the intermediate court has erred in its application of the principles. Questions of fact will rarely be considered.

One of applications regards the intermediate court’s error in applying the principles relevant to overturning a jury’s decision.  The other, in which leave to appeal was granted and Denis Bowles has only recently returned from the appeal hearing before a bench of 5 High Court judges, relates to the law of guarantees.