Differences between appeals proper, rehearings and rehearings de novo explained

The following handy passage is from the case referred to in the previous post, Papps v Medical Board of South Australia [2006] SASC 234, per Gray J:

[31] Martin J in Thompkins v South Australian Health Commission [2001] SASC 147 addressed the relationship between r 97 and the right of appeal granted by s 57 of the Controlled Substances Act 1984 (SA). He observed at [27]:

… as Cox J pointed out in Wigg v Architects Board of South Australia (1984) 36 SASR 111 at 117, if an examination of the lan-guage and policy of the Act granting the right of appeal leads to a conclusion that Parliament intended to create a particular kind of appeal, a Supreme Court rule cannot be applied to define the nature of the appeal. In addition, classifying an appeal as an appeal by way of “rehearing” does not in itself provide an answer as to the nature of the appeal.

[32] Cox J in Wigg v Architects Board at 112-113 undertook an examination of the different types of appeal that may be created with respect to the decisions of judicial and administrative bodies. Martin J adopted this analysis in Thompkins v South Australian Health Commission at [28]-[31]:

His Honour identified three types of appeal. First, an appeal “strictly so called” in which the question is whether the judgment com-plained of was right when given and there is no issue of introducing fresh evidence in the appeal court. All that is decided is whether the court below came to the right decision on the material that was before it.

The second type of appeal identified by Cox J is the appeal by way of rehearing. His Honour described this appeal as follows (p 111):

This is a rehearing on the documents, but with a special power to receive further evidence on the appeal. The lat-ter power is necessary, because the question on a rehearing of this kind is whether the order of the court below ought to be affirmed or overturned in the light of the material before the appeal court at the time it hears the appeal.

The third type identified is an appeal de novo in which the appeal court hears the matter afresh. Regardless of which party appeals, the appeal is conducted as an original cause and all the evidence is given afresh unless the parties agree to the material used before the original body being used on the appeal. The judge who hears such an appeal will determine the question upon the material pre-sented before the judge and will not be limited in any way by the decision that has been made by the body appealed from.

As Cox J observed (p 113):

Which type of appeal is given by a particular Act will depend upon its construction. The use of the word “rehearing” will not be decisive, because that is a word to which different meanings have been given … . It will be a matter of discerning Parliament’s intention from an examination of the legislation as a whole.” (footnotes omitted)

[33] Which of these three kinds of appeal is designated by a statutory provision will depend upon the legislative intention as disclosed by an examination of the legislation as a whole: Westmite Pty Ltd v Law Society of South Australia (1999) 73 SASR 454 at 455. Both Cox J and Martin J observed that a statutory appeal procedure does not always fit easily into one of the three categories. It is open to the legislature to create any kind of appeal, including an appeal that combines features of one or more of the traditional categories.

[34] Ultimately, the nature of the appeal must depend on the terms of the statute conferring the right: Re Coldham; Ex parte Brideson (1990) 170 CLR 267 Section 66 of the Medical Practitioners Act confers wide powers upon a single judge of this Court. It provides that the hearing is to be a rehearing on the documents, but with the power to receive further evidence on the appeal.”

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