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Appeals – Will Disputes & Family Provision Claims In NSW

This page provides information for Appealing matters and when that avenue is available to an individual
Appeals in New South Wales
General Information
General Information
Appeals
  • There are limited avenues in appealing Family Provision matters as parties tend to sign a release of rights to ensure no further action is taken.
  • However, there are circumstances where an appeal may be warranted and these matters deal with questions of fact and if a determination was made previously which was incorrect.
  • Furthermore, there are instances where an addition eligible party joins the proceedings after a Family Provision order was made.
  • An Appeal is largely discretionary, this was found in the case of House v The King (1936) 55 CLR 499 [504]
    • It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
    • This case essentially states that the Applicant must establish that the sentencing judge has made an error in the exercise of his or her discretion.
  • This is furthered by the case of Markarian v The Queen (2005) 228 CLR 357 [25]
    • As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King … itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as “manifest excess”, or in a prosecution appeal, as “manifest inadequacy”