The New South Wales Court of Appeal can hear appeals from single judges of the Supreme Court as well as other NSW Courts and Tribunals. Not all parties are, however, entitled to appeal a decision. Below, we look at when a party can submit an appeal and some of the procedures and rules relevant to appeal proceedings.

Who Has a Right to Appeal?

The right to appeal is not automatic. Just because you are unsuccessful in the court proceedings, does not mean that you can appeal the decision to a higher court. Legislation governs a party’s right to appeal and accordingly, you must refer to the statute you are relying on. It’s then critical that you seek legal advice on whether you have a right to appeal.

Commencing an Appeal

A party must first file a notice of appeal, and the court will require the appellant pay a filing fee. The current filing fee for a notice of appeal is $1,054.00 for individuals and $2,886.00 for companies (as at 1 August 2015).

Once filed, you must serve a notice of appeal on the respondent and the court from which you are appealing the decision. In some circumstances, a party will require leave of the court before filing a notice of appeal. Leave to appeal is sought by way of a summons and must be accompanied with a ‘white folder’.  The white folder must contain the following:

  1. A copy of the summons seeking leave to appeal;
  2. The draft notice of appeal (which must have the word DRAFT on it);
  3. A summary of argument (no more than ten pages) which outlines the reasons why the court should grant leave;
  4. A copy of reasons provided by the court; and
  5. Any other documents which are necessary to allow the court to make its decision in respect of granting leave.

If leave is required and not sought, the court will dismiss a notice of appeal. A party must file a notice of appeal or a summons seeking leave to appeal within three months of the date of judgment.

Other Documents to be Filed in Court of Appeal Proceedings

There are a number of specific documents which the Court of Appeal requires parties prepare and file throughout the proceedings and has very specific guidelines to which these documents must comply.  

Written Submissions

Written submissions contain a party’s outline of argument. Counsel typically drafts written submissions due to their complex nature. The Court of Appeal requires that written submissions must not be more than 20 pages in length. An appellant must file and serve their submissions six weeks after filing an appeal with the Court. The respondent’s submissions are then due four weeks later.  

Appeal books

There are a number of appeal books which parties must prepare during Court of Appeal proceedings.

  • Red Book: The Red Book contains pleadings from the court below together with a copy of the decision that is being appealed. The appellant is to lodge and serve the red book six weeks after they have filed their appeal.
  • Black Book: The Black Book contains the transcript and any written submissions from court below to the extent they are necessary.  The Black Book is to be lodged and served ten weeks before the appeal hearing.
  • Blue Book: The Blue Book contains any exhibits from the court below together with any additional material which is relevant to the appeal.  The Blue Book is also lodged and served ten weeks before the appeal hearing.
  • Orange Book: The Orange Book contains written submissions which have been prepared for the appeal. Written submissions in the Orange Book must contain page references to the Red, Blue and Black Books to assist the Court and are lodged four weeks before the appeal hearing.

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Appeal proceedings are complex.  If you wish to appeal a court or tribunal’s decision, you should seek legal advice immediately. If you have any questions, get in touch with our disputes team on 1300 544 755. 

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