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It is helpful to understand the various courts in New South Wales if you are going through court proceedings. The New South Wales Court of Appeal is the highest and final court of appeal. The NSW Court of Appeal is the highest court for civil matters and has appellate jurisdiction in New South Wales. The court’s jurisdiction includes hearing appeals from:

  • single judges of the NSW Supreme Court; and

  • any other NSW Court or Tribunal.

You must carefully consider whether you wish to appeal a decision in the New South Wales Court of Appeal. Appealing a decision is a costly and often complex exercise. You should note that if you are unhappy with the decision made by the NSW Court of Appeal, you can apply to the High Court for special leave to appeal the decision once more. In effect, the High Court acts as a court of final appeal. This article will go through the general steps and procedures necessary if you wish to appeal a decision.

Do You Have a Right to Appeal?

If you want to appeal a decision made against you, you must first establish that you are entitled to do so. Not every party will have such a right. This entitlement will depend on the type of matter you are appealing and the particular legislation that governs it. Furthermore, timing is also important; in some cases, you may only have a short window of time to appeal a decision that has been made against you. Therefore, you should always seek legal advice in the first instance to make sure you have a right to appeal.

Commencing an Appeal

1. Filing a Notice of Appeal

Firstly, you will need to file a Form 105 – Notice of Appeal. You will need to pay a filing fee as part of lodging your appeal. Furthermore, you will need to file the Notice of Appeal with the court and serve the notice on the respondent (the other party in the dispute).

Seeking Leave to Appeal

Some matters will require you to first seek leave or ask the Court’s permission to appeal. You will need to file a Form 104 – Summons Seeking Leave to Appeal. On top of filing your summons, you will need to supply a ‘White Folder’, a collection of documents relevant to your matter. 

  • the summons seeking leave to appeal;
  • a draft notice of appeal (this is the Form 105 with the word ‘DRAFT’ on it);
  • a summary of argument, no more than 10 pages, which outlines the reasons why leave should be granted;
  • the reasons from the Court or Tribunal that delivered the decision you wish to appeal; and
  • any other documents that are necessary for the court to decide whether to grant leave or not.

You will also need to pay filing fees to lodge your summons

3. Filing Written Submissions

You must provide an outline of the arguments you wish to make to the court. The written submissions cannot be longer than 20 pages unless the court has granted you leave. Furthermore, if you submit a leave application, your written submissions will be the Summary of Argument that you include in the White Folder. 

Typically, your barrister will draft written submissions. This is due to the often complex and technical nature of appeals.

Finally, you must file and serve written submissions six weeks after filing your appeal. The respondent’s submissions are due four weeks after yours.

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Additional Documents

Red Book

The Red Book contains the pleadings in the court below, as well as a copy of the decision you are appealing. You must file and serve the red book six weeks after filing your appeal.

Black Book

The Black Book contains the transcript and written submissions from the court/tribunal below. You must file and serve the Black Book 10 weeks before the appeal hearing.

Blue Book

The Blue Book contains any exhibits from the court below and any additional material relevant to the appeal. You must file and serve the Blue Book 10 weeks before the appeal hearing.

Orange Book

The Orange Book contains the written submissions for the appeal. You must include page references to the Red, Black and Blue books to assist the court in your written submissions. Further, you must file and serve the written submissions four weeks before the appeal hearing.

Chronology

You will need to provide a chronology of the principal events leading up to the litigation. The chronology should be objectively correct and include key events in the litigation, including the dates of the court hearing from the previous court. In addition, you should also refer to the Red, Blue and Black books in your chronology.

List of Authorities

Both parties must provide a list of authorities that will be relied upon in their arguments. The list should consist mainly of legislation and case law that will be referred to by parties. There are specific requirements on what to include in the list of authorities. 

You do not need a separate list of authorities for a leave-only hearing.

Key Takeaways

Appeal proceedings are highly complex and require a large amount of time, effort and resources. If you do wish to appeal a court or tribunal decision, you should seek legal advice immediately to help you achieve the best outcome. If you need help with appealing a decision, our experienced dispute resolution lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.

Frequently Asked Questions

What decisions can I have appealed in the NSW Court of Appeal?

The NSW Court of Appeal can hear decisions from a single judge in the NSW Supreme Court and all other NSW courts and tribunals.

How do I know if I have a right to appeal a decision?

Each matter and decision is governed by its own set of rules and legislation. Each legislation will have its own provisions about whether you can appeal a decision or not. It is recommended to seek legal advice as soon as possible if you wish to challenge a decision that has been made against you by a primary judge.

What are the first documents I will need to prepare for appeal?

You will need to start by filing a notice of appeal. Then, if your matter requires it, you will also need to file a summons seeking leave to appeal. 

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