How to file an appeal to the NSW Court of Appeal?
NSW UCPR Procedure to file a valid timely Appeal to the NSW Court of Appeal:
1️⃣ If a Notice of Intention to Appeal (NSW UCPR Form 103) is to be filed with the Court of Appeal, it must be done so within 28 days after the material date: Uniform Civil Procedure Rules (NSW) 2005 NSW UCPR r 51.8; Supreme Court Act 1970 (NSW) s48(1)(a)(iv).
Note: The filing and service of a Notice of Intention to Appeal (NSW UCPR Form 103) is not an originating process and DOES NOT operate to commence proceedings in the Court of Appeal: NSW UCPR r 51.9 (3).
2️⃣ The material date in this case is the date of judgment or determination of the decision being appealed.
3️⃣ The effect of filing a Notice of Intention to Appeal (NSW UCPR Form 103) is to extend the clock from 28 days to 3 months from the material date within which a Notice of Appeal (NSW UCPR Form 105) is to be filed: NSW UCPR rr 51.6, 51.9(1)(a).
4️⃣ The reason for such an effect is that if a Notice of Intention to Appeal (NSW UCPR Form 103) is not filed, the Notice of Appeal (NSW UCPR Form 105) itself must be filed within 28 days of the material date: NSW UCPR r 51.16(1)(c).
5️⃣ Failure to lodge a Notice of Intention to Appeal (NSW UCPR Form 103) within the 28-day limitation requires two main steps to be taken:
➲ The Notice of Appeal (NSW UCPR Form 105) to be submitted; and
➲ An extension of time to be sought within that notice.
6️⃣ For the request for an extension of time, details regarding the following matters must be proffered:
➲ Explanation for the delay;
➲ No prejudice was suffered by the respondent due to the delay;
➲ The application has a real prospect of success;
➲ That the relief sought is within the Court’s jurisdiction;
➲ A compartmentalised outline of the issues/grounds of appeal to be raised.
7️⃣ Failure to satisfy the criteria set out in paragraph 6️⃣ above, which involves explaining away the delay and filing an arguable case, will result in a refusal by the Court to grant an extension of time, and accordingly, an unsuccessful appeal: Fisher v Roads and Maritime Services [2018] NSWCA 295, [5]-[7], [9], [17]-[18].
8️⃣ At the same time or before the filing of the Notice of Appeal (NSW UCPR Form 105) a Summons Seeking Leave to Appeal (NSW UCPR Form 104), if leave to appeal is required (Legal advice is strongly recommended on this point) must be filed and served on each necessary party: NSW UCPR rr 51.9, 51.10.
Note: Where the subject matter of an appeal is not a monetary sum or the matter at issue amounts to the value of less than $100,000, parties must seek leave to appeal: s 101(2)(r) Supreme Court Act 1970 (NSW).
9️⃣ A copy of the Notice of Intention to Appeal (NSW UCPR Form 103) +/or Notice of Appeal (NSW UCPR Form 105) + Summons Seeking Leave to Appeal (NSW UCPR Form 104) (if applicable) must also be filed in the Court registry of the Court below or or a copy lodged with the officer of the Court below: NSW UCPR r 51.42.
🔟 If a Summons Seeking Leave to Appeal (NSW UCPR Form 104) needs to be filed, it can include the request for an extension of time (if applicable): NSW UCPR r 51.10(3).
Court Published Resources:
Common Procedural and Preliminary Issues arising in Court of Appeal Proceedings
Credits:
The above overview of the NSW UCPR Court of Appeal procedure was prepared by Shakvaan Wijetunga | Virtual Intern, Blue Ocean Law Group℠
Minor updates + Court Published Resources added by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
Important Notice:
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.