Civil Trials Bench Book — Particular proceedings

An appeal lies from an associate judge of the Supreme Court to a judge of that court except where an appeal lies to the Court of Appeal: r 49.4.

Section 75A, Appeal, of the SCA applies: s 75A(1). The section includes the following provisions:

Part 49 of the UCPR, Reviews and Appeals within the court, applies insofar as it relates to appeals. The Part includes the following provisions:

It appears that the requirement for leave under r 49.12 is intended to restrict the reception of further evidence pursuant to s 75A(7) of the SCA.

The practice is for the appeal to be listed for directions before a registrar and not to be listed for hearing before a judge until the papers are in order and the appeal is ready to be heard.

Such appeals are constituted by the legislation relating to the court or tribunal from which the appeal lies.

Whether the appeal is as of right or only by leave depends on the legislation constituting the appeal. The nature of the appeal may be specified or may have to be inferred from the legislation: Builder Licensing Board v Sperway Construction (Sydney) Pty Ltd (1976) 135 CLR 616.

As to appeals from the Civil and Administrative Tribunal, see R Wright, “The NSW Civil and Administrative Tribunal”, Judicial Commission of NSW, Supreme Court of NSW Seminar, 16 March 2016, Sydney. Also at R Wright, "The work of the NSW Civil and Administrative Tribunal" (2014) 26 JOB 87.

Most appeals to the Supreme Court, other than to the Court of Appeal, are assigned to the Common Law Division: see r 45.8 and Sch 8.

In the case of appeals to the Supreme Court, s 75A of the SCA applies. (See [5-0200], above, for a summary of the section.) Section 75A is subject to any other Act: s 75A(4). The statutes constituting appeals often include provisions (relating, for example, to the nature of the appeal or time for appeal) which then take priority.

Part 50 of the UCPR, Appeals to the Court, applies to appeals to the Supreme Court (other than appeals to the Court of Appeal) and to appeals to the District Court: r 50.1. The Part operates subject to any provision in any Act to the contrary: see the note in the UCPR following r 50.1.

Part 50 includes provisions relating to the following matters:

As in the case of appeals from an associate judge to a judge of the Supreme Court, the practice in the Supreme Court is for the appeal to be listed for directions before a registrar and not to be listed for hearing before a judge until the papers are in order and the appeal is ready to be heard.

Special provisions relating to appeals from the Local Court are reviewed below.

As of right: An appeal lies to the Supreme Court against a judgment or order of the Local Court sitting in its General Division, but only on a question of law: LCA s 39(1).

An appeal lies to the District Court against a judgment or order of the Local Court sitting in its Small Claims Division but only on the ground of lack of jurisdiction or denial or denial of procedural fairness: LCA s 39(2).

By leave of the Supreme Court: An appeal lies to the Supreme Court against a judgment or order of the Local Court sitting in its General Division on a ground which involves a question of mixed law and fact (s 40(1)) or which is an interlocutory judgment or order, a consent judgment or order or an order for costs: s 40(2).

The Supreme Court may dispose an appeal under s 39(1) or s 40 by:

The general principles which govern an application for leave to appeal are set out in Namoi Sustainable Energy Pty Ltd v Buhren [2022] NSWSC 175 at [34]–[39] (which concerned an appeal from an interlocutory decision of a magistrate) and include:

The District Court has similar powers in respect of appeals under s 39(2): s 41(2).

Appeal from the Local Court in its special jurisdiction: Section 70(1) LCA confers a right of appeal in respect of any order made in its special jurisdiction. Any appeal to the District Court is to be made in accordance with Pt 3 of the Crimes (Appeal and Review) Act 2001 (CARA Act) “in the same way as such an … appeal may be made in relation to a conviction arising from a court attendance notice” dealt with under Pt 2 of Ch 4 of the Criminal Procedure Act 1986: Huang v Nazaran [2021] NSWCA 243 at [22]–[24]. Section 70 is not to be construed as restricting or qualifying the subject matter of such an appeal so that it is limited to a conviction (or sentence) appeal: Huang v Nazaran at [21]. The right to appeal from any order is “by way of rehearing” in accordance with ss 18 and 19 of the CARA Act, the District Court relevantly having power in determining the appeal to exercise “any function that the original Local Court could have exercised in the original Local Court proceedings” (s  28(2)): Huang at [23]; see also Lewis v Sergeant Riley (2017) 96 NSWLR 274 at [12].

In Huang, the applicants were found to have a right of appeal to the District Court from an order of a magistrate dismissing their application for a noise abatement order, an order awarding costs and an order revoking a noise abatement order pursuant to s 268 of the Protection of the Environment Operations Act 1997.

Federal proceedings are covered in Pt 3A of the Civil and Administrative Tribunal Act 2013. “Federal jurisdiction” (formerly referred to as “federal diversity jurisdiction”) is defined in s 34A as “jurisdiction of a kind referred to in section 75 or 76 of the Commonwealth Constitution”.

The Justice Legislation Amendment Act 2018 (commenced 1 December 2018) amended Pt 3A of the Civil and Administrative Tribunal Act 2013 to enable persons to commence proceedings in the District or Local Court for the determination of original applications and external appeals that the NSW Civil and Administrative Tribunal (the Tribunal) cannot determine because they involve the exercise of federal jurisdiction.

These amendments were made in response to a series of cases concerned with whether the Tribunal could exercise federal jurisdiction. In Burns v Corbett (2018) 265 CLR 304, the High Court held that the Tribunal could not exercise jurisdiction of the kind referred to in ss 75 or 76 of the Constitution (Cth). A State law purporting to confer such jurisdiction is inconsistent with Ch III and therefore invalid. The High Court affirmed, for different reasons, the NSW Court of Appeal’s decision that the Tribunal had no jurisdiction to determine matters between residents of different States: Burns v Corbett (2017) 96 NSWLR 247. It was common ground between the parties that the Tribunal was not a court of the State, so the High Court was not required to decide this issue.

Following these decisions, an Appeal Panel of the Tribunal determined that, in making orders under the Residential Tenancies Act 2010 (NSW) commenced between residents of different States, the Tribunal was exercising federal jurisdiction. Further, the Tribunal determined that the Tribunal was a court of the State within the meaning of s 39(2) of the Judiciary Act 1903 and s  77(ii) of the Constitution: Johnson v Dibbin; Gatsby v Gatsby [2018] NSWCATAP 45. The Court of Appeal, in a 5-judge decision, held that the Tribunal was not a court of the State for this purpose: Attorney General for NSW v Gatsby [2018] NSWCA 254.

A person with standing to make an original application or external appeal may, with the leave of an authorised court (the District Court or the Local Court), make the application or appeal to the court instead of the Tribunal: s 34B(1).

Leave may be granted only if the court is satisfied that the application or appeal was first made with the Tribunal (s 34B(2)(a)), that the Tribunal does not have jurisdiction to determine the matter because its determination involves the exercise of federal jurisdiction (s 34B(2)(b)), that the Tribunal would otherwise have jurisdiction to determine the matter (s 34B(2)(c)), and that substituted proceedings would be within the jurisdictional limit of the court: s 34B(2)(d).

The court may remit on application or appeal to the Tribunal if it is satisfied that the Tribunal has jurisdiction to determine it: s 34B(5).

The District Court may grant leave and then transfer proceedings to the Local Court in accordance with the provisions of Pt 9 Div 2 CPA.

For s 75(iv) of the Constitution to apply, the parties must have been residents of different States at the time of bringing the application: Dahms v Brandsch (1911) 13 CLR 336.

A company is not a resident for the purposes of s 75(iv): Australasian Temperance and General Mutual Life Assurance Society Ltd v Howe (1922) 31 CLR 290; Cox v Journeaux (1934) 52 CLR 282.

The District Court or Local Court has, and may exercise, all of the jurisdiction and functions in relation to the substituted proceedings that the Tribunal would have had if it could exercise federal jurisdiction: s 34C(3).

Section 34C(4) makes a number of modifications as to functions of procedural matters in relation to the conduct of the proceedings.

Part 49 of the UCPR, Reviews and Appeals within the Court, includes provisions relating to the review of a registrar’s directions, orders and acts.

These provisions do not apply to the judicial registrar of the District Court: r 49.14. Otherwise, they apply to registrars of the Supreme Court, District Court and Local Court.

A judge or magistrate of the Supreme Court, District Court or Local Court may, on application, review the direction, order or act of a registrar of the respective court, and may make such order by way of confirmation, variation, discharge or otherwise as is thought fit: r 49.19(1). However, decisions of the registrar of the court under cl 11(1) of the Civil Procedure Regulation 2017 are not reviewable by a court under Div 4, Pt 49 of the Rules: (r 49.19(2)).

Section 75A of the SCA, Appeal, does not apply to a review.

Prior to the amendment of r 49 on 7 September 2007, a line of authority had developed to the effect that a review was akin to an appeal of the kind provided for in the rules. Following the amendment it is clear that a review is not such an appeal: Tomko v Palasty (No 2) (2007) 71 NSWLR 61 (CA); Liverpool City Council v Estephen [2008] NSWCA 245 at [17].

In Tomko v Palasty (No 2), above, at [52] Basten JA set out the correct approach to a review under r 49 as follows:

It should be noted that, whilst Hodgson and Ipp JJA agreed with this approach and that on such a review the court must exercise its own discretion, Ipp JA agreed with qualifications expressed by Hodgson JA at [7]–[9] which can be summarised as follows:

Following the amendment referred to above, Pt 49 now includes the following provisions:

The amendment of r 49 repealed r 49.17 which provided that the institution of a review had no effect on the direction etc under review.

A judge or magistrate of the Supreme Court, District Court or Local Court, of his or her own motion or on application, may, by order, direct a registrar or other officer of the respective court to do or refrain from doing any act in any proceedings relating to the duties of his or her office: r 49.15.

The rule does not apply to the judicial registrar of the District Court: r 49.14.

Legislation

Rules

Further references