Division 5Division 5 Appeals and cross-appeals
Subdivision 1 Institution of appeals and cross-appeals
51.16 Time for filing and service of notice of appeal
(cf SCR Part 51, rules 5 and 6 (1) and (3))
(1) A notice of appeal must be filed and served on each necessary party:(a) if the notice of appeal is filed pursuant to leave to appeal—within 7 days after leave is given or such other time as the Court may fix, or(b) if a notice of intention to appeal has been filed and served under this Part and the notice of appeal is not filed pursuant to leave—as allowed under rule 51.9, or(c) if a notice of intention to appeal has not been filed and served under this Part and the notice of appeal is not filed pursuant to leave to appeal—within 28 days after the material date or such other time as the Court may fix.Note 1. Rule 51.20 requires any notice of appeal to specify a return day.Note 2. A person who files and serves a notice of appeal must also file or lodge a copy of the notice with the court below—see rule 51.42(2) The Court may extend time under subrule (1) (a) or (c) at any time.Note. Rule 51.9 provides for the extension of the time for the filing and service of a relevant originating process when a notice of intention to appeal has been filed and served under this Part.(3) A party applying for an extension under subrule (1) (a) or (c) must lodge and serve the draft notice of appeal with the application.
51.17 Filing and service of notice of cross-appeal
(cf SCR Part 51, rule 18)
(1) A respondent who wishes to seek the discharge or variation of the decision below (or part of the decision below) may file and serve a notice of cross-appeal.Note. A respondent to an appeal who is entitled to cross-appeal should file a notice of cross-appeal only if the respondent wishes to vary the decision below. If the respondent wishes to have the decision below affirmed on grounds other than those relied on by the court below, the respondent should file and serve a notice of contention as provided by rule 51.40 rather than a notice of cross-appeal. If the respondent objects to the competency of the appeal, the respondent should file and serve a notice of objection to the competency of the appeal as provided by rule 51.41.(2) A notice of cross-appeal must be filed and served on each necessary party:(a) if the notice of cross-appeal is filed pursuant to leave to cross-appeal—within 7 days after leave to cross-appeal is given or such other time as the Court may fix, or(b) in any other case—within:(i) 14 days after the filing of a summons seeking leave to appeal or a notice of appeal, whichever is the earlier, or(ii) such other time as the Court may fix.Note. A person who files and serves a notice of cross-appeal must also file or lodge a copy of the notice with the court below—see rule 51.42.(3) The Court may extend time under subrule (2) (a) or (b) (ii) at any time.Note. Rule 51.9 provides for the extension of the time for the filing and service of a relevant originating process when a notice of intention to appeal has been filed and served under this Part.(4) A party applying for an extension under subrule (2) must lodge and serve the draft notice of cross-appeal with the application.
Subdivision 2 Notices of appeal and cross-appeal
51.18 Contents of notice of appeal
(cf SCR Part 51, rule 11)
(1) A notice of appeal must state:(a) the statutory provision under which the appeal is brought, and(b) whether it is filed pursuant to leave, and the date leave was given, and(c) whether the appellant has filed and served a notice of intention to appeal, and the date it was served on the prospective respondent or on the last of the prospective respondents, and(d) whether the appeal is from the whole or part only, and what part, of the decision below, and(e) briefly, but specifically, the grounds relied on in support of the appeal, and(f) what judgment, order, verdict or determination the appellant seeks, and(g) that, before any attendance before the Court by or on behalf of the respondent, a notice of appearance must be filed if required.Note. Rule 51.5 (2) provides for circumstances in which a respondent need not file a notice of appearance.(2) Without limiting subrule (1), the appellant must also specify in the notice of appeal any material facts that the appellant contends that the court below should, or should not, have found.
51.19 How claims for reinstatement or restitution to be made in appeal or cross-appeal
An appellant or cross-appellant who seeks an order for reinstatement or restitution must include in the notice of appeal or notice of cross-appeal:(a) a claim for the order and the form of the order, and(b) where restitution is sought—any claim for interest that is at a rate other than the relevant rate set out in rule 36.7 (1).Note. As to the practice of the Court in awarding interest where money is ordered to be repaid by way of restitution on the setting aside of a judgment, see Heydon v NRMA Ltd (No 2) (2001) 53 NSWLR 600 at 609.
51.20 Notice of appeal to specify return day
(cf SCR Part 51, rule 42 (1))
(1) A notice of appeal must state a return day.(2) The return day may be fixed by the Court or obtained from the registry.(3) If a return day is obtained from the registry and the notice of appeal is to be served outside New South Wales, the return day is to be not less than one month after the date of filing of the notice of appeal.Note. Rule 10.18 permits the service of documents (including originating process) to be effected in certain circumstances at the address for service provided for the court below.
51.21 Alteration of return day in notice of appeal
(cf SCR Part 5, rule 5A)
The Court may, by notice given to the parties by telephone or otherwise, vary the return day for a notice of appeal to a different day, and may authorise the parties’ solicitors to make corresponding alterations to the copies of the notices of appeal held by them.
51.22 Absence of restrictions on appeals as of right to be shown by affidavit
(cf SCR Part 51, rule 8)
(1) This rule applies if an appeal or cross-appeal as of right is restricted by any Act by reference to:(a) a specified amount or value, or(b) any other specified circumstance or matter (such as a restriction based on questions of law).(2) The appellant or cross-appellant must, on filing the notice of appeal or cross-appeal, file and serve on each necessary party an affidavit that:(a) identifies the nature of the restriction (including a reference to the provision of the Act that imposes the restriction), and(b) sets out the material facts on which the appellant or cross-appellant relies to show that the restriction does not apply.
51.23 Amendment of notice of appeal
(cf SCR Part 51, rule 17)
Part 19 (Amendment) applies to the amendment of a notice of appeal in the same way it applies to the amendment of a statement of claim.Note. For example, rule 19.1 provides that a plaintiff may, without leave, amend a statement of claim once within 28 days after the date on which it was filed, but, unless the court otherwise orders, may not amend it after a date has been fixed for trial.
Subdivision 3 Appeal Books and other supporting documentation
51.24 Registrar to collect certain papers when notice of appeal filed
(cf SCR Part 51, rules 30 and 30A)
(1) On the filing of a notice of appeal, the Registrar:(a) may obtain from the Reporting Services Branch the original of the transcript (if any) of the proceedings in the court below, and(b) must obtain from the proper officer of the court below:(i) the exhibits, and(ii) the list of exhibits and certificate under rule 51.43, and(iii) all other relevant documents before the court below, together with a list, certified by the proper officer of the court below, and(iv) the reasons for judgment (if any) or the summing up (if any) in the court below certified by or on behalf of the court below.(2) Unless the Appeal Book is prepared by the Registrar, the Registrar must allow the party required to prepare the Appeal Book to have custody of the documents necessary to prepare it.(3) The party having custody of documents pursuant to subrule (2) must return them intact to the Registrar on completion of the Red Book, at which time the Registrar must make them available to other interested parties for the purpose of preparing written submissions and chronologies.(4) Documents are to be made available to more than one party in accordance with an agreed schedule of access or as determined by the Registrar.(5) Subject to this rule, the Registrar must retain the documents obtained under subrule (1) until disposal of the appeal and then return them to the officers or persons from whom they were obtained.
51.25 Preparation of Appeal Book
(cf SCR Part 51, rule 31)
(1) Unless the Court directs otherwise, the Appeal Book must be prepared by the appellant in accordance with this rule.(2) It must be divided into sections in accordance with rule 51.26.(3) The pages in each section must be numbered consecutively and, if a section exceeds 300 pages, it must be bound in separate volumes of not more than 250 pages.(4) The contents must be printed, or otherwise reproduced, with a 5 millimetre margin on the right hand side of each page and evenly marked in the margin with the letters “A” to “Z”.(5) Each section must have a title page setting out the full and correct title of the proceedings, including the following:(a) title of the court below,(b) names of the solicitors for each party,(c) the address for service for each party,(d) the telephone, email address, facsimile and reference number of each party.(6) The index must follow, showing the page number where each document is reproduced and, in the case of exhibits, the page of the Black or Combined Book containing the transcript where the exhibit was marked.(7) If a section is bound in 2 or more volumes, each volume must contain an index of the entire section, unless otherwise directed by the Court.(8) This Subdivision prevails over rule 4.3 to the extent of any inconsistency.
(cf SCR Part 51, rules 32 and 32A)
(1) Subject to subrule (2), the Appeal Book must be divided into the following 4 sections:(a) the formal section in a red cover (the Red Book),(b) the transcript section in a black or grey cover (the Black Book),(c) the document section in a blue cover (the Blue Book),(d) the submissions and chronology section in an orange cover (the Orange Book).(2) If the total number of pages in the Black and Blue Books would not exceed 300, they may be combined in one book with a black or grey cover (the Combined Book).
(cf SCR Part 51, rule 33)
(1) The Red Book must contain:(a) an index, and(b) the process and pleadings of every party as last amended and any relevant earlier versions, and(c) a sealed or certified copy of the judgment or order, and(d) the reasons for judgment or summing up below, and(e) the notice of appeal and any notice of cross-appeal and, if available, the notice of contention, and(f) the transcript of the application for leave to appeal or to cross-appeal, if applicable, and(g) any affidavit filed pursuant to rule 51.22, and(h) any notice of appearance under rule 6.11 (1).(2) The pages of the Red Book must be one-sided (that is, with writing on one side of the page).
(cf SCR Part 51, rule 34)
(1) Subject to subrules (2) and (3), the Black Book must contain:(a) an index, and(b) the evidence of each witness, and(c) cross-examination, and(d) re-examination, and(e) written submissions, and(f) addresses (if available), and(g) the transcript of the hearing including, where the trial is with a jury, the return of the jury’s verdict, and(h) any written questions submitted to the jury.(2) The transcript, written submissions and addresses are to be included in the Black Book only to the extent that they are necessary for the hearing and determination of the proceedings.(3) If there is no such transcript:(a) a Black Book does not have to be prepared, and(b) a statement to the effect that a Black Book has not been prepared because there is no transcript is to be included in the Orange Book.(4) The pages of the Black Book must be two-sided (that is, with writing on both sides of the page).
(cf SCR Part 51, rule 35)
(1) Subject to subrule (5), the Blue Book must contain:(a) an index, and(b) all documents before the court below (other than those in the Red and Black Books) relevant and necessary for the hearing and determination of the proceedings.(2) An index of the Blue Book must:(a) in the case of affidavits or statements:(i) include reference to each annexure including the first page at which it appears in the book, and(ii) indicate which parts of affidavits, statements and annexures were rejected, not read, or admitted for a limited purpose, and(b) in the case of exhibits:(i) give the date of each exhibit and indicate whether it is reproduced in the Appeal Book and the page on which it is located, and(ii) refer to the exhibits in the order they have been lettered or numbered as exhibits, and(iii) refer to the pages of the Black Book where the exhibits were marked, and(iv) where an exhibit consists of a bundle of documents—list each document that forms part of the exhibit and the page on which it is located.(3) If the text of affidavits or statements is reproduced, pages or annexures not admitted in evidence must be excluded or marked to indicate their evidentiary status (as rejected, not read, or admitted for a limited purpose) unless they are relevant to a ground of appeal, cross-appeal or contention.(4) The following provisions apply to exhibits:(a) exhibits must be arranged, not in the order in which they have been lettered or numbered as exhibits, but in chronological order according to their dates or, in the case of manifestly or admittedly misdated documents, their known date,(b) if a document is undated, it must be placed in the sequence contended for by the appellant, but the appellant must inform the respondent of the proposed position and the respondent may require that a “date or order disputed” be inserted in the index against the document,(c) if the exhibits include correspondence that should be read consecutively and not interspersed among other documents, the correspondence must be arranged in chronological order and given a position together, at a convenient place, in relation to the other exhibits,(d) if the exhibits include medical reports:(i) where provided by only one doctor—they must be arranged in chronological order and given a position together, at a convenient place, in relation to the other exhibits, and(ii) where provided by more than one doctor—they must be grouped together by doctor in alphabetical order by surname at a convenient place in relation to the other exhibits and chronologically for each doctor,(e) any photographs and plans must be included unless irrelevant to the grounds of appeal, cross-appeal or contention, and if necessary reduced in size,(f) interrogatories, answers and affidavits of documents must only be included to the extent they were put in evidence.(5) If there are no such documents, a Blue Book does not have to be prepared.(6) The pages of the Blue Book must be two-sided (that is, with writing on both sides of the page).
(cf SCR Part 51, rule 35A)
(1) The Orange Book must contain:(a) the consolidated index or, if applicable, an index of its contents, and(b) the appellant’s submissions and chronology in their final form with references that comply with rule 51.36 (1) (b), and(c) the submissions and chronologies served on the appellant by other parties in their final form, and(d) any amended notice of appeal, notice of cross-appeal or notice of contention, in their final form, and(e) any statement required by rule 51.28 (3) (b).(2) The pages of the Orange Book must be one-sided (that is, with writing on one side of the page).
51.31 Disputes as to contents of Appeal Book
(cf SCR Part 51, rule 36)
(1) A party who:(a) objects to the inclusion of material in the Appeal Book on the ground that it is unnecessary or irrelevant, or(b) asserts that further material should be included,must, within 7 days of service of the relevant part of the Appeal Book on the party, serve a written notice containing the party’s objection or assertion on any other interested party.(2) The party preparing the Appeal Books may, with the consent of all other parties (other than a submitting party) add pages to, or delete pages from, the Appeal Book:(a) at any time at least 14 days before the hearing of the appeal, or(b) after that time, with the leave of the Court.(3) If an Appeal Book is amended in accordance with subrule (2), the index to the relevant section and the consolidated index are to be amended accordingly.(4) A party who asserts that additional material should be included in the Appeal Book must, unless all other parties who have not submitted have agreed to the inclusion, lodge 4 copies of the additional material and serve 3 copies at least 7 days before the hearing on each other interested party.(5) The additional material referred to in subrule (4) must be indexed and, if it consists of more than 30 pages, bound as a supplementary Black Book or Blue Book (as the case requires).
51.32 Filing, lodgment and service of sections of Appeal Book
(cf SCR Part 51, rules 37 and 37AA)
(1) The appellant must:(a) within 6 weeks of filing the notice of appeal:(i) file a copy of the Red Book, and(ii) serve 3 copies on each other interested party, and(b) not less than 4 weeks before the date fixed for hearing of the appeal, lodge a further 3 copies of the Red Book with the Registrar.(2) The appellant must, not less than 10 weeks before the date fixed for the hearing of the appeal, serve on each interested party 3 copies of each of the Blue and Black Books or, where relevant, the Combined Book.(3) The appellant must, not less than 4 weeks before the date fixed for the hearing of the appeal:(a) file 4 copies of:(i) each of the Black and Blue Books or, if relevant, the Combined Book, and(ii) the Orange Book, and(b) serve on each interested party 3 copies of the Orange Book.
51.33 Overriding obligation to file Orange Book
(cf SCR Part 51, rule 37A)
(1) The appellant must ensure that the Orange Book is filed in accordance with rule 51.32 (3) and, where necessary, must arrange to have the timetable prescribed by this Part varied by consent, or by direction of the Court, in order to achieve this overriding obligation.(2) All other parties must cooperate with the appellant to enable the appellant to comply with subrule (1).(3) If any default by another party prevents, or is likely to prevent, compliance with subrule (1), the appellant must apply promptly for a directions hearing.
Subdivision 4 Written submissions and chronologies
51.34 Filing written submissions and chronologies
(cf SCR Part 51, rules 44 and 44A)
(1) In any proceedings in which a notice of appeal is filed:(a) each interested party must, unless otherwise directed, file written submissions in accordance with rule 51.36, and(b) the appellant must file a chronology in accordance with rule 51.35.(2) A respondent may file an alternative or supplementary chronology.(3) A party may file one set of amended submissions:(a) if the amendment is of a minor or formal nature or inserts Appeal Book references—without leave, or(b) otherwise—by leave of the Court or with the consent of all other interested parties.
(cf SCR Part 51, rule 45)
The appellant’s chronology must comprise a list of the principal events leading up to the litigation and, where appropriate, events during the litigation, numbered consecutively with the date, a short description of each event, and references to the Appeal Book.
51.36 Content of written submissions
(cf SCR Part 51, rules 46 and 46A)
(1) Written submissions filed in an appeal must:(a) be divided into paragraphs numbered consecutively, and(b) so far as practicable, refer to matter in the Appeal Book by section name, volume number (if any), page number and letter, and not extract that matter, and(c) so far as practicable, not extract matter in a judicial authority, and(d) be signed by the barrister or solicitor who prepares it or, where the party is not represented by a barrister or solicitor, by the party, and(e) have the following typed or printed in a neat and legible manner under the signature referred to in paragraph (d):(i) the name of the signatory,(ii) a telephone number at which the signatory can be contacted,(iii) if available, the signatory’s facsimile number,(iv) if available, the signatory’s email address, and(f) not exceed 20 pages (not counting the pages of any statement included in the submissions for the purposes of subrule (2)).(2) Submissions raising substantial challenges to findings of fact must include a statement in narrative form (not exceeding 20 pages) setting out:(a) the findings challenged, and(b) the findings contended for and the reasons why the Court should substitute those findings, and(c) supporting references to the transcript and other evidence.(3) If damages for death or bodily injury are in issue:(a) the appellant’s written submissions must state:(i) the manner in which the damages were assessed, or in the case of trial by jury, may be supposed to have been assessed, and(ii) the heads of damages that are in issue in the appeal, and(iii) briefly but specifically, the basis of the challenge, and(iv) where applicable—the alternative assessment contended for, and(b) the respondent’s written submissions must state:(i) the extent to which the assessment will be challenged or supported by cross-appeal or contention, and(ii) any alternative assessment sought, and briefly but specifically, the basis for it.(4) The written submissions must address:(a) any claim for an order for reinstatement or restitution and the form of the order sought, and(b) where restitution is sought with interest that is at a rate other than the relevant rate set out in rule 36.7 (1)—the rate of interest that should be applied.
51.37 Time for filing of written submissions and chronologies
(cf SCR Part 51, rules 47 and 47A)
(1) Written submissions must be filed:(a) by the appellant—within 6 weeks of the notice of appeal being filed, and(b) by the respondent—within 10 weeks of the notice of appeal being filed.(2) Chronologies and amended written submissions must be filed:(a) by the appellant—not less than 10 weeks before the hearing date, and(b) by the respondent—not less than 8 weeks before the hearing date.(3) Compliance with subrule (1) or (2) does not dispense with compliance with rule 51.30 (b) or (c).Note. See also rule 51.33, which contains an overriding obligation to ensure that the Orange Book is filed on time.
51.38 Service of written submissions and chronologies
(cf SCR Part 51, rule 48)
A party who files a chronology or written submissions must, on the day of filing, serve 3 copies on every other interested party.
Subdivision 5 Use of material from leave applications
51.39 Court may order use of White Folder instead of preparation of Appeal Book and submissions
The Court may:(a) order that a White Folder be treated as an Appeal Book or written submissions (or both), and(b) make such other ancillary orders as the Court thinks fit.
Subdivision 6 Notices of contention and objections to competency
(cf SCR Part 51, rule 21)
(1) A respondent who wishes to contend that the decision below should be affirmed on grounds other than those relied on by the court below, but does not seek a discharge or variation of any part of the orders of the court below:(a) need not file a notice of cross-appeal, and(b) must, within 28 days after service on the respondent of the notice of appeal, file and serve on each interested party notice of that contention stating briefly, but specifically, the grounds relied on.(2) A respondent who files a notice of contention in proceedings is taken to have entered an appearance in the proceedings.
51.41 Objections to competency of appeal
(cf SCR Part 51, rule 25)
(1) A respondent who objects to the competency of an appeal must, by notice of motion filed and served on all other parties to the appeal within 28 days after service on the respondent of the notice of appeal, apply to the Court for an order dismissing the appeal as incompetent.(2) If the respondent fails to comply with subrule (1) and the appeal is nevertheless dismissed as incompetent:(a) the respondent is not entitled to costs of the appeal unless the Court otherwise orders, and(b) the Court may order the respondent to pay the appellant any costs of the appeal proving useless or unnecessary.