Almost all legal systems provide for appeals in some shape or form, such that a dubious decision of a more junior judge may, subject to some constraints, be reviewed by a more senior judge. In England and Wales, for example, there is a Court of Appeal which hears appeals from other judges in the High Court. Sensibly, this is divided up into The Court of Civil Appeals and The Court Of Criminal Appeals because, obviously enough, there is no point in appeals being heard by judges who are more senior but less experienced in a particular area of the law. Indeed, the current system ensures that there is at least one construction law specialist in the Court of Civil Appeals, and at the moment that is the very competent Lord Justice Coulson.

In some Australian jurisdictions, the bizarre practice that has applied (including, until now, in South Australia) is that appeals in the Supreme Court are not heard by more senior judges, but just more judges of the same seniority, known as the Full Court[1]. Where cases are managed (sensibly enough) on the basis that specialist cases (such as construction cases) are heard in the first instance by a judge with some experience in that area (especially in construction cases), the effect of this is that appeals are heard by judges who are less qualified than the judge who heard the case in the first place. Particularly unsatisfactory is that commercial cases, including construction cases, come before judges sitting in the Full Court whose expertise lies in the area of criminal law. Unsurprisingly, this is meant that the track record for South Australia when decisions of its Full Court go to appeal to the High Court of Australia has been very poor.[2]

LiveseyAccordingly, it is much to be welcomed that the Parliament of South Australia has now passed legislation setting up a new Court of Appeal in South Australia, and also to be welcomed is the announcement by the Attorney-General Vickie Chapman that Mark Livesey QC has been appointed to preside over that new Court of Appeal. As the Attorney-General says in her announcement, Mark Livesey is highly respected, and with good reason:  he has an expertise in commercial cases which is not presently ubiquitous on the South Australian Supreme Court bench.

The majority of my time is spent in relation to large construction projects, and accordingly I practice far more in the courts of other States and Territories of Australia than in my home state of South Australia. I’m sorry to say that the overwhelmingly the opinion of lawyers that I hear at first hand in other states – particularly New South Wales and Victoria – expressed about the courts in South Australia is not flattering. They will often go to considerable lengths to keep high-value matters out of the South Australian courts, and when things are heard by the South Australian courts, they typically ask themselves not, “What is the relevant law?” but, “Given their oddities, what are the courts of South Australia likely to do with this one?” That is a shame. Those who have practised in Australia for far longer than me tell me that it was not always thus.

It remains to be seen how the new Court of Appeal will shake down. There are some competent judges with commercial experience presently sitting on the Supreme Court Bench, and presumably there will be some elevations?




[1] Strictly speaking, of course, this is a misnomer. Three judges normally sit.

[2] There is a joke that does the rounds. The opening sentence of counsel launching an appeal in the High Court of Australia is, “This is an appeal from the decision of the Full Court in South Australia. But I also have other grounds”

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