Appeals except to the Court of Appeal, applications, reviews and mandatory orders

Appeals from judges of the Supreme Court and the District Court and from certain decisions of the Civil and Administrative Tribunal lie to the Court of Appeal and are not covered by this review.

[5-0200] Appeal from an associate judge of the Supreme Court to a judge of that court

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:

  • Where the decision under appeal follows a hearing, the appeal is by way of rehearing: s 75A(5). That is a rehearing on the record, as delineated in Warren v Coombes (1979) 142 CLR 531 at 553. See also Do Carmo v Ford Excavations Pty Ltd [1981] 1 NSWLR 409 at 420 per Cross J and Morrison v Judd (unrep, 10/10/95, NSWCA). For a fuller discussion of the nature of such an appeal, see Ritchie’s [SCA s 75A.10]–[SCA s 75A.40] and Thomson Reuters [SCA 75A.60]

  • The court has the powers and duties of the court, body or person from whom the appeal is brought: s 75A(6)

  • The court may receive further evidence (s 75A(7)), but only on special grounds if the appeal is from a judgment following a trial or hearing on the merits unless the evidence concerns matters occurring after the trial or hearing: s 75A(8) and (9). For a fuller discussion, see Ritchie’s [SCA s 75A.45]–[SCA s 75A.52]. Also see Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64 and Levy v Bablis [2013] NSWCA 28,

  • The court may make any finding, give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires: s 75A(10).

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

  • an appeal is instituted by notice of motion: r 49.8(1)

  • time for appeal: r 49.8(2)–(5)

  • contents of notice of motion: r 49.9

  • institution of an appeal has no effect on the judgment, order or decision under appeal unless otherwise directed: r 49.10

  • cross appeal: r 49.11

  • no further evidence on appeal unless by leave, and the form of any such further evidence: r 49.12,

  • notice of contention: r 49.13.

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.

[5-0210] Sample orders

[5-0220] Appeals to the Supreme Court and to the District Court

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:

  • time for appeal: r 50.3

  • the required content of the summons initiating the appeal and of the separate statement of grounds of appeal: r 50.4 and Form 74

  • parties: r 50.5

  • the appeal does not operate as a stay: r 50.7

  • security for costs: r 50.8

  • cross-appeals: r 50.10

  • notice of contention: r 50.11

  • procedure concerning leave to appeal (r 50.12), and cross-appeal: r 50.13

  • preparation, filing and service of the reasons for decision of the court below, transcript, exhibits etc: r 50.14

  • if the decision under appeal has been given after a hearing, the appeal is by way of rehearing: r 50.16. See [5-0200], above, in relation to SCA s 75A(5),

  • obligation on a defendant who objects to the competency of an appeal to apply for an order dismissing the appeal as incompetent: r 50.16A.

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.

[5-0230] Sample orders

[5-0240] Appeal from the Local Court to the Supreme Court

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: 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:

  • varying the terms of the judgment or order

  • setting aside the judgment or order

  • setting aside the judgment or order and remitting the matter to the Local Court for determination in accordance with the Supreme Court directions,

  • dismissing the appeal: s 41(1).

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

[5-0250] Sample orders

[5-0255] Applications and appeals to the District Court and Local Court in federal proceedings

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) 92 ALJR 423, 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.

[5-0260] Review of directions etc of registrars

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:

(2) 

a review, unlike an appeal, does not require demonstration of error, nor is it restricted to a reconsideration of the material before the primary decision-maker;

(3) 

authorities with respect to the conduct of appeals against the exercise of discretionary powers, such as House v The King, do not in terms apply to a review;

(4) 

nevertheless, similar policy considerations may arise in relation to a review, including:

(a) 

a court may be less inclined to intervene in relation to a decision concerned with the management of an on-going proceeding, as opposed to one which terminates the proceeding or prevents its commencement;

(b) 

different factors may need to be addressed in relation to breach of time limits in relation to the commencement of proceedings, as compared with breach of time limits for steps to be taken in the course of proceedings properly commenced, and

(c) 

a court may be more inclined to intervene on a review based on fresh evidence, changed circumstances or where error is demonstrated in the decision under review.

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:

  • A court’s discretion extends to a discretion as to whether, and if so how, to intervene.

  • There is an onus on a person seeking to have a court set aside or vary a registrar’s decision to make a case that the court, in the interests of justice, should exercise its discretion to do so.

  • In the case of a decision on practice or procedure, this will normally require at least demonstration of an error of law, or a House v The King (1936) 55 CLR 499 error, or a material change of circumstance or evidence satisfying the strict requirements of fresh evidence. Even then, the court may not think the interest of justice requires intervention. A court may be more willing to intervene in a decision which finally determines a party’s rights or has a decisive impact upon them.

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

  • a review is instituted by notice of motion: r 49.20(1)

  • time for review: r 49.20(2)–(5),

  • exceptions to the foregoing subrules: r 49.20(6).

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.

[5-0270] Sample orders

[5-0280] Mandatory order to a registrar or other officer

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.

[5-0290] Sample orders

Legislation

  • Supreme Court Act 1970, s 75A, Sch 8

  • Local Court Act 2007, ss 39, 40, 41

Rules

  • UCPR r 45.8, Pt 49, Pt 50

Further references

  • Ritchie’s [SCA s 75A.10]–[SCA s 75A.40], [SCA s 75A.45]–[SCA s 75A.52]

  • Thomson Reuters [SCA 75A.60]

  • R Wright, “The NSW Civil and Administrative Tribunal”, Judicial Commission of NSW, Supreme Court of NSW Seminar, 16 March 2016, Sydney

  • R Wright, "The work of the NSW Civil and Administrative Tribunal" (2014) 26 JOB 87