Litigation: 23 March 2019
The new civil appeals regime adopted by the Victorian Supreme Court in November of 2014 requires that leave to appeal be obtained in almost all cases regardless of whether the decision is final or interlocutory.
The relevant rule is found in s14A(1) of the Supreme Court Act 1986 (the Act) which provides that subject to the exclusions contained in ss(2):
"any civil appeal to the Court of Appeal requires leave to appeal to be obtained from the Court of Appeal.€
Under this new regime the Supreme Court under s14C of the Act is to consider whether an appeal has a real prospect of success. This concept was addressed by Whelan JA and Ferguson JA in Kennedy v Shire of Campaspe  VSCA 47 handed down on 23 March 2015.
Whelan JA and Ferguson JA made an analogy between the phrases 'no real prospect of success' as it appears in s63 of the Civil procedure Act 2010 and the phrase "real prospect of successas used in Section 14C of the Act. In coming to this conclusion their Honours gave weight to the words of Warren CJ and Nettle JA in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd  VSCA 158 at .
"the test under s 63 of the Civil Procedure Act should be construed as one of whether the respondent to the application for summary judgment has a 'real' as opposed to a 'fanciful' chance of success; that the 'real chance of success' test is to some degree a more liberal test than the 'hopeless' or 'bound to fail' test; and that, as the law is at present understood, the real chance of success test permits of the possibility that there may be cases, yet to be identified, in which it appears that, although the respondent's case is not 'hopeless' or 'bound to fail', it does not have a real prospect of succeeding."
At  of Kennedy v Shire of Campaspe Whelan JA and Ferguson JA also considered that the use of the permissive term "may" in section 14C of the Act gave the Supreme Court a wide discretion for the Court to refuse to grant leave, even if it was satisfied that the appeal had a real prospect of success, and that this discretion was with reference to comments made by the Attorney General in the second Reading speech which said the reforms were to:
"modernise and simplify appeal processes and improve the flexibility of courts ... to finalise unmeritorious cases.€
In obiter at  Whelan JA and Ferguson JA hypothesised concerning a situation where this discretion may be applied. There "may be cases where even though the prospects of the appeal are real, no substantial injustice will be done if the decision stands.This is worrying in the context of the later comments at  at which Whelan JA and Ferguson JA also noted that this test for granting leave stood in contrast to the applied in the High Court which:
"may have regard to any matters that it considers relevant and must have regard to whether a question of law of public importance is involved or in respect of which the High Court is required to resolve differences of opinion as to the state of the law and whether the interests of the administration of justice require consideration by the High Court."
In the writer's opinion, what Whelan JA and Ferguson JA are eluding to is the possibility that the application of s14A may lead to situations where cases that ought to reach the High Court to be considered for leave are never given the opportunity, because of being stymied at this level.
The logistical case load and practical benefits for the Supreme Court of Victoria being given this right to refuse leave to appeal seem to be rooted in preventing unmeritorious appeal cases being heard. Thus a more efficient system is achieved, although in the alternative it may simply be an additional step that results in more expense depending on how often the leave is exercised.
Also one another effect of this change may be that where jurisdiction overlaps plaintiffs and appellants entertain more jurisdiction shopping. It will be interesting to see how the Courts apply and exercise the discretion going forward, and practitioners should watch this space.
With Jonathon Lean