Practice & procedure

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Court of Appeal FAQs

 

What are my rights to appeal?

Your right to appeal is defined by legislation.  You will need to identify a particular Act of Parliament and section when lodging an appeal.  The registry cannot assist you in determining which law is applicable to your case as that is something that you should seek legal advice upon.

This is not an exhaustive list and parties should rely upon their own legal advice in the matter.

In many cases you may need to obtain leave before being permitted to appeal.  For example see s101(2) of the Supreme Court Act 1970.  If you file an appeal without obtaining leave, your appeal may be dismissed as being incompetent .

You should also be aware that in Muldoon v Church of England Childrens Home Burwood [2011] NSWCA 46, there are certain situations in which "an appeal from an appeal" is not permitted.  In Muldoon, this was an appeal from the Consumer Trader and Tenancy Tribunal to the District Court, and in which the Court of Appeal held that there was no further right of appeal.  You may need to obtain legal advice in respect of this.

How do I commence an appeal?

If you have the right to appeal, an appeal is commenced by filing a Form 105 - Notice of Appeal.  There is a filing fee for lodging an appeal.

You must serve the respondents to the appeal with a copy of the sealed copy of the appeal you received from the registry.

You must also serve the Court or Tribunal that you are appealing from with a copy of the sealed copy of the appeal (UCPR 51.42).

You should be aware that you will be required to prepare written submissions, appeal books, and also pay a hearing allocation fee and possibly a daily hearing fee, at a later date.

How do I commence a leave application?

If you need to seek leave to appeal, you need to file a Form 104 - Summons Seeking Leave to Appeal.  You must also file at least four copies of a White Folder with the Form 104 (UCPR 51.12).  There is a fee for filing a leave application.

You must serve the respondents to the appeal with a copy of the sealed copy of the appeal you received from the registry.

You must also serve the Court or Tribunal that you are appealing from with a copy of the sealed copy of the appeal (UCPR 51.42).

You should be aware that you may need to pay a hearing allocation fee, and possibly a daily hearing fee, at a later date.

What are the contents of the white folder for leave applications?

UCPR 51.12 provides for the contents of a White Folder.  A White Folder is used for leave applications.

  • a copy of the Summons seeking leave to appeal
  • a draft Notice of Appeal.  This is a Form 105 - Notice of Appeal, with the word "DRAFT" on it, usually so that the document reads "Draft Notice of Appeal".
  • a Summary of Argument.  This is a document, no more than ten pages, outlining why leave to appeal should be granted, and also addressing the matters in UCPR 51.12(4), which relates to costs, dealing with the matter in the absence of the public, and concurrency.
  • a copy of the reasons given by the Court or Tribunal for the decision being challenged
  • any other document that will be referred to in Court that is necessary for the Court to consider whether leave should be granted

White Folders are prepared before you file a leave application.

What are written submissions and when should they be filed?

Written submissions are an outline of the arguments that wish to present to the Court.  They cannot be more than 20 pages unless leave has been granted.

In an appeal, written submissions from the appellant are due six weeks after the appeal was filed (UCPR 51.37).  The respondents submissions are due four weeks thereafter.

In a leave application, the written submissions are the Summary of Argument to be presented in the White Folder.  The respondent files a response four weeks after the filing of the leave application.

What are the contents of the red, blue, black and orange appeal books and when are they due?

Red Book

The Red Book contains the pleadings in the Court below and the decision being appeal from. UCPR 51.27 provides for the format and contents of the book.  The Red Book is lodged and served by the appellant six weeks after filing the appeal.

Black Book

The Black Book contains the transcript and the written submissions from the Court or Tribunal below to the extent that they are necessary.  UCPR 51.28 provides for the format and contents of the Black Book.  The Black Book is lodged and served ten weeks before the hearing date of the case.  The parties can of course prepare the Black Book earlier.

Blue Book

The Blue Book contains the exhibits from the Court or Tribunal below, and will include any additional material relevant for the appeal.  UCPR 51.29 provides for the format and contents of the Blue Book.  The Blue Book is lodged and served ten weeks before the hearing date of the case.  The parties can of course prepare the Blue Book earlier.

Orange Book

The Orange Book contains the written submissions prepared by the parties for the appeal.  UCPR 51.30 provides for the format and actual contents of the Orange Book.  The Orange Book is lodged four weeks before the hearing date.  The Orange Book is the last book prepared, because the written submissions of the parties are updated with page references to the Red, Blue and Black Books to assist the Court in finding the material referred to in the appeal books.  The Orange Book is produced once all those updated submissions are prepared.

How do I seek a stay of the lower court proceedings?

The filing of an appeal or a leave application does not usually create a stay of proceedings.  If there is no automatic stay, a party seeking a stay of proceedings must file a notice of motion (Form 20) and an affidavit in support (Form 40).  The motion is usually returnable on the first Monday after it is filed.