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See UCPR 51.10 for more information.
The procedural rules for appeals are contained in Part 51 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).
The procedural rules for judicial review are contained in Part 59 of the UCPR.
In all dealings with the Court of Appeal, reference should be made to Practice Note No. SC CA 1 (issued 1 May 2023, commenced 8 May 2023) which makes additional provision for the preparation and conduct of proceedings in the Court of Appeal.
This page from the Court of Appeal website provides links to judgments addressing common procedural and preliminary issues arising in Court of Appeal proceedings.
These resources are a starting point only, and do not provide a definitive list of issues or authorities.
⚖️ You MUST file this [Form 104] Summons Seeking Leave to Appeal within 28 days after the material date UNLESS you have previously filed and served a NSW UCPR [Form 103] Notice of Intention to Appeal (Court of Appeal).
⚖️ If you have filed a [Form 103] Notice of Intention to Appeal (Court of Appeal), you MUST file and serve this [Form 104] Summons Seeking Leave to Appeal within three months after the material date (not the date of filing of the [Form 103] Notice of Intention to Appeal (UCPR 51.6).
You MUST also file or lodge a copy of the summons with the court below (UCPR 51.42).
For example, if the material date is 1 December 2007, then you MUST file the this [Form 104] Summons Seeking Leave to Appeal by 2 March 2008, but as that is a Sunday, then filing the originating process by Monday 3 March 2008 would be acceptable (see UCPR 1.11 - Reckoning of Time).
The following guidance has been extracted from Practice Note No. SC CA 1.
An application for an extension of time to lodge an appeal or a summons will generally be heard concurrently with the hearing of the appeal or summons. UCPR rr 51.9(2), 51.10(3), 51.11(3) and 51.16(3) provide for extension applications to be included in the originating process.
Any delay should be addressed in a filed affidavit.
The main provisions creating appellate jurisdiction in the Court of Appeal and stating when leave to appeal is required are:
⚖️ Appeals from Supreme Court: Part 7 Supreme Court Act 1970 (NSW), ss 101 (general provision, including matters requiring leave in s 101(2)), 101A (question of law concerning criminal contempt), 102 (appeal after Supreme Court jury trial), 103 (appeal from separate decision in Supreme Court);
⚖️ Appeals from Land and Environment Court: Land and Environment Court Act 1979 (NSW), ss 57, 58. See also Supreme Court Act 1970 (NSW) s 48(1)(a)(i);
⚖️ Appeals from Dust Diseases Tribunal: Dust Diseases Tribunal Act 1989 (NSW) s 32. See also Supreme Court Act 1970 (NSW) s 48(1)(a)(iia);
⚖️ Appeals from District Court: District Court Act 1973 (NSW) ss 127, 142N. See also Supreme Court Act 1970 (NSW) s. 48(1)(a)(iv);
⚖️ Appeals from Workers Compensation Commission constituted by Presidential member: Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 353; and
⚖️ Appeals from other Tribunals (including certain orders made by NCAT): If the relevant statute confers a right of appeal to the Supreme Court and if s 48(1)(a)(vii) or (viii) Supreme Court Act 1970 (NSW) applies, the appeal is assigned to the Court of Appeal.
Appeals from the Supreme Court, District Court, Dust Diseases Tribunal and Presidential Members of the Personal Injury Commission are subject to monetary limits.
Appeals from final money judgments involving amounts of less than the monetary limit (in the case of the Supreme Court and the District Court, $100,000) only lie with leave.
Leave is also required to appeal from final decisions where the value of the matter in issue does not exceed the monetary limit: s 101(2)(r) of the Supreme Court Act 1970 (NSW).
Evidence may be led as to the value of the matter at issue in a proposed appeal: see Gaynor v Attorney General of New South Wales (2020) 102 NSWLR 123; [2020] NSWCA 48 at [15]–[17].
You MUST state the statutory provision under which the application for leave to appeal is brought.
The following guidance has been extracted from Practice Note No. SC CA 1.
The Court will determine on the papers whether to decide the question of leave at a separate hearing, or concurrently with the substantive appeal.
An applicant for leave to appeal should indicate in the summary of argument whether (and if so why) the matter is thought appropriate for a concurrent hearing: UCPR, r 51.12(4)(g).
In particular, it should address the following matters:
(1) the extent to which the argument on the application for leave is expected to address the merits of the appeal;
(2) the extent to which the application for leave will require reference to materials which would be relevant to the appeal;
(3) whether the appeal will involve an issue of public importance;
(4) any prejudice which may be suffered as a result of delay flowing from a separate leave application; and
(5) any matter relevant to the reason why leave is required in the circumstances of the case.
Parties will be advised as to whether a summons for leave to appeal will proceed by way of a leave only hearing or will be heard concurrently with the appeal by the Registrar, usually at the first directions hearing.
If a summons for leave to appeal is to proceed by way of a leave only hearing, each party will be given 20 minutes to advance oral argument in support of or in opposition to of a grant of leave, subject to any discretionary extension of time by the Court.
If a summons for leave to appeal is to be heard concurrently with the appeal, the Registrar will determine whether appeal books are to be filed or whether the White Folder will be sufficient to constitute the appeal books, and whether further written submissions are to be filed.
You MUST identify the orders made by the court below which are the subject of challenge.
Appeals are brought from orders, not from the reasons of the court below.
You MUST identify the orders you want set aside or varied and the orders you seek in their place.
If part or all of the judgment has been paid, you must identify that fact, together with any consequential order sought with respect to repayment (including any claim for interest) if the appeal succeeds (see UCPR 51.19).
See UCPR 51.17 for more information.
There is no separate form for cross-appeal or cross-summons seeking leave to cross-appeal.
Forms in cross-appeals (or applications for leave to cross-appeal) may be prepared based on other approved appeal forms, and modified with the following additional modifications:
⚖️ Replace ‘cross-claim’ with ‘cross-appeal’ (or ‘cross-summons’, as applicable);
⚖️ Replace references to ‘cross-claimant’ with ‘cross-appellant’ (or ‘cross- applicant’, as applicable); and
⚖️ Replace references to ‘cross-defendant’ with ‘cross-respondent’.
You MUST file and serve a [Form 102] List of Parties with this [Form 104] Summons Seeking Leave to Appeal.
Its purpose is to set out:
⚖️ The parties in the Court of Appeal and in the court below; and
⚖️ The contact details of parties in the Court of Appeal
You MUST file 3 copies of a folder of supporting documents (“White folder”) and serve the folder with the summons seeking leave to appeal.
An electronic copy of the White Folder must also be provided to the Court by USB or DVD, in the form of a PDF file.
Electronic copies of White Folders must be in text searchable format (by way of optical character recognition (OCR) or similar), and must not be password protected.
See UCPR 51.12 and Practice Note No. SC CA 1 for more information.
✅ Suitable for the NSW Courts under the Uniform Civil Procedure Rules (NSW) 2005;
✅ Recommended only for use by legal professionals +/or at a minimum with review by a legal professional prior to filing with the Court;
✅ For use in the NSW Court of Appeal registry.
Embedded Lawyer-Logic™ dynamically adapts to your answers to provide valuable guidance and help you avoid errors.
The preparation of a Summons Seeking Leave to Appeal may have potential legal and legal cost implications.
In short, due to the complexities involved:
➲ We recommend you contact our legal team to obtain legal advice and guidance.
Important Notes:
The party filing this Form is required to serve a copy of the filed Form together with all other filed documents on all other parties to the proceeding.
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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.
1️⃣ If an appeal is to be made against the decision of an Arbitrator, the application must be made to the Registrar, within 28 days of the Arbitrator’s decision, to have the appeal heard by a Presidential member: Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 352(1)-(2)(‘The 1998 Act’); Workers Compensation Commission Rules 2011 (NSW) r 16.2.
2️⃣ If an appeal is to be made against the decision of a Presidential member, the appeal lies to the NSW Court of Appeal: The 1998 Act s 353(1), (5); Supreme Court Act 1970 (NSW) s 48(1)(a)(vii), (2)(f).
3️⃣ If the appeal being made relates to any of the following a Summons Seeking Leave [that is, consent] to Appeal to the Court of Appeal is required: The 1998 Act s 353(4):
353 APPEAL AGAINST DECISION OF COMMISSION CONSTITUTED BY PRESIDENTIAL MEMBER
…
(4) The following appeals under this section may be made only with leave of the Court of Appeal--
(a) an appeal from an interlocutory decision,
(b) an appeal from a decision as to costs only,
(c) an appeal where the amount of compensation in dispute is less than $20,000 (or such other amount as may be prescribed by the regulations),
(d) an appeal from a decision made with the consent of the parties.
4️⃣ The rules applying to the general procedure in appealing to the NSW Court of Appeal, as set out in this FAQ apply to appeals against a decision of a WCC Presidential member: Uniform Civil Procedure Rules 2005 (NSW) r 51.1 (‘UCPR’).
Credits:
The above overview of the NSW Workers Compensation Commission (WCC) Appeal procedure was prepared by Shakvaan Wijetunga | Virtual Intern, 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.
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