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Precedent (Australian Lawyers Alliance) |
ADVOCACY IN THE COURT OF APPEAL
By JP Gorton
This article sets out my thoughts on how appeals may best be presented, particularly appeals in the injuries jurisdiction. It is necessarily quite general, as an appeal against a jury verdict is very different to an appeal against the refusal of leave to commence proceedings in a serious injury application. But they do have elements in common.
The overall aim in appellate advocacy (as well as anywhere else, I suppose) is to try to persuade the Court, through the paperwork and oral submissions, that the position for which you contend is the fair outcome given the circumstances of the case, and that the law recognises this. Often, the difficulty is establishing why this is so.
In September 2014, the Victorian Parliament passed the Courts Legislation Miscellaneous Amendment Act 2014 (Vic), which provides that leave will be required for nearly all appeals, and that the application for leave may be determined on the papers. The Court has not yet modified the Rules, but has published an ‘instruction to the profession’ indicating that an applicant for leave will be required to file a proposed notice of appeal with the application for leave; a ‘written case’ (that is, a submission); and a draft summary.[1] So while the steps involved in an appeal are likely to change, and the written documentation will become more important, the ideas set out below are likely to remain relevant.
Before considering the paperwork, it is worthwhile considering what an appellant has to establish. To my mind, there is a tension between the law as it is sometimes said to apply in appeals, and how an appeal is heard and argued in practice. According to Fox v Percy,[2] the Court of Appeal is not so much concerned with whether the trial judge erred, but rather is required to review all the evidence and make up its own mind as to what the correct decision was.[3] Indeed, it is open to interpret Fox v Percy as meaning that the trial judgment is only relevant to the extent that it makes findings of fact that depend on the advantage enjoyed by the trial judge that is denied to the Court of Appeal, such as the evaluation of the demeanour of witnesses.[4]
But, in my experience, regardless of these matters, it is best to bear in mind that if you want the Court of Appeal to come to a different conclusion to that reached by the trial judge, you have to be able to explain how and why the trial judge got it wrong. It is naïve to think otherwise. For this reason, in my view it is best to prepare the paperwork with a view to seeking to demonstrate how and why the trial judge got it wrong.
As always, an analysis of what might make effective advocacy requires one to put oneself in the shoes of those hearing the argument. The judges who hear an appeal know nothing of the case save for the information with which they are presented, which is an appeal book that includes a notice of appeal and the judgment below, a summary of facts and issues, and submissions from each party, as well as relevant extracts from the transcript and documentary evidence. The judges are likely to come on to the bench with provisional views based on their review of these materials. It is harder to persuade someone that their provisional view is mistaken than it is to persuade them that their provisional view is correct. So the written material is of great importance.
In an ideal world, the notice of appeal would be a model of concise clarity. In the real world, it is often drawn up in a bit of a rush towards the end of the appeal period, at a time when although one may have a strong sense of the argument or arguments that are to be presented, they have not yet been fully refined. Accordingly, a notice of appeal will typically include more grounds of appeal than end up being necessary. This has to be dealt with as the appeal progresses, one way or another, ideally at or by the time submissions are written.
The formulation of particular grounds of appeal will differ from case to case. But they may well be the first thing that an appellate judge reads, and so they should not be generic but should instead be targeted to the circumstances under consideration and convey the point in context to the reader. For example, if a ground of appeal is that evidence was not properly considered, then the ground should not simply be that the judge failed to consider all the evidence, but should succinctly set out the substance of the evidence not considered, so that the person reading it can immediately see its significance. If a ground of appeal is that the reasons given by the trial judge are inadequate, then it should identify the point that was not dealt with. If it concerns the construction of an agreement or interpretation of a statute, then it should set out the construction or interpretation that the appellant contends is correct. The grounds of appeal must at least anticipate the way the argument will proceed. Indeed, the ‘instruction to the profession’ indicates that this will now be required.[5]
Also, the Court seems to me to be increasingly unforgiving of parties who try to argue a point that has not been properly ventilated below, and remains sympathetic to an appellant if a point is clearly put but is not dealt with in a judgment.[6] For these reasons, I think it is important that both the opening and closing addresses made at the trial below are carefully reviewed before the notice of appeal is formulated.
A respondent has to consider whether to file a notice of contention. One is required when a party wishes to contend that even if the appellant is right and the judge was wrong, the ultimate disposition of the case was correct for some other reason.
It is often not clear whether a notice of contention is required, particularly considering that the Court of Appeal has to rehear the evidence and decide for itself what the correct outcome was, and that specific error on the part of the trial judge is not a prerequisite to allowing the appeal. There is a finer line than one would expect between an argument that an error (if made) was of no consequence, and an argument that, notwithstanding an error, the ultimate decision was correct for some other reason. Ordinarily, however, it is worth putting in a notice of contention if there is a clear and distinct point that the respondent wishes to argue that might not otherwise be apparent. For example, if a worker were to appeal against the refusal of leave to commence proceedings in a serious injury application on the ground that on a proper consideration of the evidence the injury met the test for serious injury, combined with a ground that the trial judge failed to give any or adequate consideration to a particular consequence relied upon, one would not expect the respondent to have to file a notice of contention in order to argue that the refusal of leave remained correct even if that other consequence were to be considered. But if the employer wished to contend that even if that consequence were considered the worker still did not establish the 40 per cent loss of earning capacity required by s134AB(38) of the Accident Compensation Act 1985, then that should probably be set out in a notice of contention, so that the Court and the parties know that it is a separate issue that requires consideration and determination.
The appeal books should be prepared in a way that makes them easy to use. Under the relevant Rules and Practice directions, the judgment and notice of appeal are at the end, which seems odd and nothing can be done about that. But the exhibits do not have to be in the order in which they were tendered. On appeal, the Court doesn’t care which party tendered a document, so long as it was in evidence. Accordingly, the documentary material should be put together in logical groupings. In an injuries case, my view is that the treating medical reports should be together first, followed by the medico-legal reports, with the reports grouped according to the report writer, rather than chronologically. If witnesses are interposed, the transcript should be arranged so that all the evidence from a particular witness appears together. Evidence that is irrelevant to the appeal should be excluded. For example, evidence that goes to damages should be excluded if the appeal only concerns liability.
Under the current practice, the transcript of the openings and final addresses to the judge or jury below are not included.[7] But if a ground of appeal is that a trial judge failed to deal with a particular argument, then it is worth pressing to have the transcript of that argument included. If the Court is not prepared to include it in the Appeal Book, then the written submission should identify (even if in a footnote) the pages of the transcript at which the argument was put, and copies should be made and be available to hand up at the oral hearing. Similarly, if a respondent considers that the argument was not pressed below, then that should be asserted in its submission and the transcript should be available to hand up at the hearing if need be in order to make that point.
The summary, too, should be drafted with a view to creating a document that will be useful to the Court. It should set out simply the uncontroversial background circumstances to the hearing and the issues and arguments that arose: this is not normally difficult. If the credit (or reliability) of a witness were in issue, the summary should say so. It is also meant to summarise the evidence. But the practice directions give little guide as to the level of detail required. Agreement between the parties on the summary is required.[8] But reaching agreement on the document can be difficult. Problems typically arise when one party wants to descend to a level of detail that the other party considers unhelpful, or where there has been a lot of conflicting evidence, particularly from one witness.
The more detailed the summary, the more scope there is to complain about the omissions of further pieces of evidence which, if included, would result in the document becoming even more detailed, and so on. But if it is too broad, then it fails to serve its purpose. The summary therefore often becomes a compromise document. On the basis that the document is ultimately to be judged more by its usefulness than anything else, my view is that treating it on occasion as a form of index to where the relevant material may be found is often helpful. For example, identifying which doctor assessed the worker and when, and identifying by page references where that doctor’s opinion on particular issues may be found, is often more helpful and effective than trying to achieve agreement on some shortened version of what that evidence amounted to.
Where the parties simply cannot agree on a form of words either to describe a particular issue, to identify whether a point was raised, or to summarise evidence, I have found that the impasse may be broken by noting that in the document, and saying something like ‘The appellant contends that ... but the respondent contends that ...’. At least, then, the parties can usually agree on the document itself.
Finally, you must make sure that the summary does not make any assertions as to the evidence which are not correct. It must summarise what the evidence was, not what you wished it were. A statement such as ‘There was no evidence as to the worker’s current leg symptoms’ is powerful, but dangerous if not correct.
The written outline of submissions is the first document that is expected to advocate for a particular result. It is currently usually ordered to be six pages or fewer, although this may change to ten pages or fewer.[9] That limit should be honoured, even if sometimes it requires the margins to be slightly enlarged.[10] To be a persuasive document, the Court of Appeal should be able to scan it to ascertain an overview of the arguments being put, and then be able to delve into particular parts as it wishes. The use of headings and subheadings, by reference to the grounds of appeal, is generally helpful in conveying the structure of the argument. The written document is generally also where most of the detailed references may be found. It must identify the source material for the assertions made, either in footnotes or in the text itself. In that way, it should not only assist the Court in the event that it wishes to decide the case in your favour, but also act as a reference point for you when preparing for the oral argument. It is worth bearing in mind that if you want the judges to have regard to the evidence in your favour, there must be a document by which they can efficiently access that evidence among the numerous pages of the appeal book.
Grounds of appeal should of course be abandoned where, on reflection, they seem either to be unarguable or sufficiently weaker than other grounds such that retaining them is of no benefit. But, more often, the grounds of appeal are slightly different ways of making the same or a similar point – for example, that evidence was not properly considered or reasons were not given that indicated how it was considered – and it is worthwhile considering whether they can be dealt with in clumps, so that even if there are still numerous grounds of appeal, there is a manageable number of areas of submission.
Space is precious, and most appeals turn on the facts rather than the law. There are cases where the law is critical, but they are relatively rare and, when they do occur, it is necessary to present the facts in a way that makes the legal outcome for which you contend sensible. In most circumstances, it is a mistake to spend much time on the written outline setting out the basic legal framework. The judges of the Court of Appeal will generally know the law as it relates to appeals much better than anyone else, as they are dealing with the legal issues that arise on appeals all the time. For example, in an appeal against a jury verdict, it is unnecessary to set out in any detail the test. It is much more powerful to assert the conclusion for which you contend – that no jury could reasonably have come to the view that this jury did – and the reasons why, rather than to distract the Court from the central part of the argument by telling it what it already knows.
The written outline must not overstate matters: it is very tempting to make bold assertions, but that will be counterproductive if they are, to any extent, misleading. The temptation is greatest when referring to the evidence, and must be guarded against. If the Court forms the view that the assertions in your submissions are unreliable, then the dynamics in the appeal will be very much against you.
In my experience, one has very little control over the way that oral submissions proceed. Usually, the judges bite their tongues for about three minutes, before asking you to address the matters that particularly concern them. During those initial three minutes you must set out the key reason why the appeal should succeed or fail, other than by merely referring to the written submission. But once the dialogue begins, it must be allowed to take its course. A moment’s thought reveals that it is the points that concern the judges that are the points that have to be addressed.
In order to be able to engage in such a dialogue and, hopefully, answer the questions against you, it is necessary:
(a) to work out what, precisely, it is that you wish to say. This is also the case with the written submission, but the nature of the dialogue with the bench when presenting an oral submission reveals any uncertainty in this regard. It is not enough to have an idea of what the point is, and to grope towards it; the precise, syllogistic, logical propositions have to be clear in your mind;
(b) to think through what the arguments against you are, or might be, and how they might be responded to, even if they do not appear in the written submissions of the other side. This is because the three judges all have their own thoughts on the matter, and it is common for one or more of them to have identified an argument not yet pressed by the other side. It is always helpful to engage in some sort of ‘devil’s advocate’ process as part of the preparation; and
(c) to know all the facts. Typically, as noted above, the judges asking questions will know the law better than you, but you should know the facts of this particular case better than them. You are much more likely to have an effective answer to a provisional viewpoint expressed against you, if you can identify some factual reason why it doesn’t apply or is in error.
The last point is important. As much as anything, the judges, being human, are much more likely to be sympathetic and patient, and thus to absorb what you are trying to say, if they think that you have at least thoroughly read the material and tried to get on top of it, so that you can answer their enquiries, than if you know only that part of the material that you wish to rely on.
These are only my thoughts. Other people may have contrary views, based on their experiences. There are no universal rules as to what is best. However, it is always worthwhile, it seems to me, to attempt to elevate oneself out of the partisan bog, and bear in mind that at the end of it all there are three judges under time and other pressures attempting to get across hundreds of pages of material efficiently and to arrive at a decision that seems to them to be both fair to the parties and in accordance with the law. So do your best to prepare the material in a way that will be useful to them and contains a clear pathway to the result that you contend is the correct one. How this is best done may change from case to case, but the importance of trying to look at and assess everything from the judge’s viewpoint rather than your own, is a constant.
James Gorton QC is a barrister practising in trial and appellate work for both plaintiffs and defendants. PHONE: (03) 9225 7999 EMAIL: gortonj@vicbar.com.au.
[1] http://www.supremecourt.vic.gov.au/home/law+and+practice/rules+and+practice+notes/instruction+to+the+profession+on+civil+appeal+regime.
[2] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118.
[3] See, for example, Sandri v O’Driscoll [2014] VSCA 109 at [7].
[4] See, for example, Waterfall v Antony [2014] VSCA 44 at [11]- [14]; TAC v Cuthbertson [2013] VSCA 29 at [33]. There is more focus on specific error in serious injury applications – see, for example, Phelan v TAC [2013] VSCA 306. Further, in a ‘range case’, it has to be shown that the evaluation of the impact consequences was manifestly erroneous – see Mobilio v Balliotis [1998] 3 VR 833 at 841, 859.
[5] At [4.2] of the example given with the ‘instruction to the profession’ referred to above, it is said: ‘A ground must be particularised and must not be expressed in general terms. It is not sufficient to state: “the judgment is against the evidence and the weight of the evidence”. The ground must instead specifically identify the evidence and other matters relied upon.’
[6] See, for example, Wingfoot Australia Partner v Jovevski [2014] VSCA 21 at [59]; Wieland v Texxcon [2014] VSCA 199 at [57].
[7] There is nothing to suggest that the new regime under the 2014 Amendment Act will be any different.
[8] I have had one case where my opponents were insisting on a document of such length that it was, in my view, unhelpful, and so we simply drew up a separate document and called it ‘Respondent’s summary of facts’ and filed that. No one seemed to mind.
[9] See the Revised Instruction to the Profession, p2.
[10] Oddly enough, because there is a page limit rather than a word limit, the use of footnotes reduces the amount of submission that can be fitted into six pages. It would, in my opinion, make much more sense to impose a word limit. The Revised Instruction indicates that a 12-point font and 1.5 line spacing will be required.
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