‘David O’Brien’s third edition provides those involved in special leave applications with very useful practical guidance as to the making and conduct of such applications. But it is much more than that, it is a substantial historical work. The author is again to be congratulated.’
– from the Foreword by David Jackson AM QC
This much anticipated third edition of Special Leave to Appeal for the first time incorporates the significant 2016 amendments to Part 41 of the High Court Rules 2004 (Cth). These amendments established, among other things, that the determination of most applications is now on the papers, without an oral hearing.
To obtain special leave to appeal it is necessary to establish not only an error in the lower court’s judgment, but also some special feature of the case which warrants the High Court’s attention. There is no exhaustive list or comprehensive definition of what is ‘special’. That is largely to be gleaned from the High Court’s reasons for refusing special leave.
This book is as comprehensive a statement of the law and practice of applying for special leave as there is. With reference to over 2000 decisions and relevant statutory provisions, this work is an invaluable aid to preparing to make or meet an application.
The third edition addresses both civil and criminal applications. Key chapter headings include civil and criminal criteria for the grant of special leave, and civil and criminal procedure. There is also a final chapter on presenting persuasive submissions.
With a preface by Australia’s leading practitioner in this area, David Jackson AM QC, this is an essential work for anyone participating in an application for special leave to appeal to the High Court of Australia.
Foreword to the Third Edition
Foreword to the Second Edition
Foreword to the First Edition
Table of Cases
Table of Statutes
1. First Principles
2. Civil Criteria
3. Criminal Criteria
4. Civil Procedure
5. Criminal Procedure
6. Persuasive Submissions
Once again it is a privilege to be invited to write the Foreword to this very useful book,
now in its third edition.
There have been significant changes in the practice of the High Court since the
second edition. Of particular significance is that the vast majority of applications for
special leave are now dealt with on the papers, and only a relatively few are given an
oral hearing. This has given emphasis to the importance of the written submissions.
They may be the only submissions in the matter.
There has been also a complete change in the composition of the Court since the
second edition. It is inevitable that the approaches to the grant of special leave, and
its consequent grant or refusal, will reflect the attitudes of those composing the Court
from time to time. The concept of what is sufficiently “special” to merit the grant of
special leave necessarily involves value judgments. This book indicates the features
which may satisfy that test.
David O’Brien’s third edition provides those involved in special leave applications
with very useful practical guidance as to the making and conduct of such applications.
But it is much more than that, it is a substantial historical work. The author is again
to be congratulated.
David Jackson AM QC
[A] valuable and up to date guide for practitioners advising on or handling special leave applications. Read full review…
Andrew Westcott, Law Institute Journal, August 2022>
With this book, O’Brien, who has over 30 years experience as a commercial litigation practitioner, has provided a definitive manual regarding the making of applications for special leave.
I recommend Special Leave To Appeal due to its comprehensive, practical, and straightforward approach to the methodology of seeking intervention before what Justice CW Pincus has described as the “last nail in the coffin”.
Carmen De Marco, Barrister, Hearsay, (2022) June, Issue 88
This is the third edition of a work that deals with niche subject matter, but subject matter that is immensely important. As Pincus J observed in the forward to the first edition, for many litigants in Australia the ‘last nail in the coffin’ is the news that the High Court of Australia has refused special leave to appeal.
Overall, this is an extremely useful book for both the frequent flyer and the occasional tourist in the special leave lists. Read full review …
D F Villa SC, Bar News The Journal of the NSW Bar Association  (Autumn) 83