Appeals are often referred to as “creatures of statute.” This is because a dissatisfied litigant does not have an “automatic” right of appeal. The right to appeal is governed by the applicable legislation. Therefore, before proceeding with an appeal, it is crucial to consider the relevant statute and determine:
- whether you have a right of appeal, or
- whether you must seek leave (permission) of the court to appeal.
A party who does not apply for leave, where it is required, may have their appeal dismissed as incompetent and be ordered to pay the other party’s legal costs. On the other hand, seeking leave where it is not required can incur unnecessary cost and delay.
In the case of Arthurell v Ryan’s Mulching Qld Pty Ltd [2016] QDC 306, the District Court has clarified the position under the Magistrates Court Act 1921 (Qld), particularly in the case of appeals from interlocutory decisions. In that case, the appellant wished to appeal an interlocutory decision of the Magistrates Court to dismiss his application for certain declarations relating to a notice to admit facts. The case is somewhat unusual in that the appellant applied for leave to do so whereas the respondent contended that no leave to appeal was required on the proper interpretation of the Act.
Section 45 of the Magistrates Court Act provides a right of appeal from a judgement or order of a Magistrates Court where the action involves an amount more than the minor civil dispute limit (currently $25,000). If the action involves less than the minor civil dispute limit, then leave to appeal must be sought. The question of the amount involved can appear complicated in the case of an interlocutory application.
While the language used in s.45 does not accord with the UCPR and is more consistent with the former rules of Court, the Court held that the relevant figure for the purposes of an appeal from an interlocutory decision is the amount claimed in the proceeding. In the case of Arthurell, the amount claimed was more than $25,000, so no leave was required.
The question of the costs for the application for leave and the substantive appeal has been reserved.
The case emphasises the following points for litigants:
- Check the relevant legislation to determine whether you have a right of appeal or need to seek leave.
- Whether leave is required can depend on the amount involved, nature of the decision appealed from and whether an appeal has already been brought. Often leave will be required to appeal interlocutory or ancillary decisions, as there is a greater emphasis on the finality of those decisions – but as Arthurell demonstrates, the words of the statute are paramount.
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