FEDERAL MAGISTRATES COURT - APPEALING A FEDERAL MAGISTRATE'S DECISION
WHAT IS AN APPEAL?
In an appeal you are asking a higher court (the Family Court or the Federal Court, as appropriate) to set aside a decision made by a federal magistrate.
An appeal is not a re-hearing of the original dispute. Rather, it is an examination of whether the law was applied correctly in your case. To succeed, you must show that the federal magistrate applied the law incorrectly.
Often, the law permits a federal magistrate to make one of a range of decisions. An appeal court should not replace a decision with its own view of the best alternative if the original decision was made correctly.
If your appeal is successful, the court determining the appeal may make a different order to the one made by the federal magistrate, or order a retrial.
Your appeal will be dismissed if it is unsuccessful. If your appeal is dismissed, it is likely that you will be ordered to pay some or all of the other party's costs of the appeal.
DO YOU NEED A LAWYER TO APPEAL?
You will almost certainly need independent legal advice. Even if you propose to conduct an appeal yourself, it is important to obtain legal advice on whether you have valid grounds to appeal.
An appeal will only be successful if the federal magistrate has not applied the law correctly. Therefore, in order to be successful you must be able to convince the appeal court of how the law should have been interpreted. This will require you to develop an argument that may be quite technical and complex.
LAWYERS GIVE LEGAL ADVICE
Only a lawyer can give you independent, expert legal advice.
Lawyers are trained to interpret the law and apply it to individual cases. Lawyers also know Areas of Law, its practices and procedures. A lawyer will:
Define whether you have a legal issue suitable for consideration on appeal
Provide practical options available to you
Explain the costs involved in appeal litigation.
For these reasons, the court encourages you to obtain legal advice before starting court action. Legal advice can be obtained from:
Legal Aid Offices
Community Legal Centres
Private Law Firms - contact the Law Society or Institute in your State or Territory.
This fact sheet provides information only and is not a substitute for legal advice. |
