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Contents (1970 - 01)
Supreme Court Rules 1970
Current version for 6 January 2017 to date (accessed 22 October 2017 at 04:27)
Part 51B
Part 51B Appeals to the Court under Part 5 of the Crimes (Appeal and Review) Act 2001
1   Application
This Part applies to an appeal to the Court under Part 5 of the Crimes (Appeal and Review) Act 2001.
2   Assignment of business
Proceedings to which this Division applies shall be commenced in the Common Law Division.
3   Definitions
In this Part, unless the context or subject matter otherwise indicates or requires:
decision includes a conviction, order or sentence, judgment, opinion, direction or determination.
informant includes a complainant, the Director of Public Prosecutions and any other person responsible for the conduct of a prosecution.
material date in relation to an appeal means:
(a)  where the appeal is from the decision of a court, the date on which the decision is pronounced or given, and
(b)  where the appeal is from any other person, the date on which notice of the decision was given to the person who wishes to appeal by or on behalf of the person who made the decision.
tribunal below means, in relation to an appeal to the Court, the court or the person whose decision is under appeal.
4   (Repealed)
5   Leave to appeal or cross-appeal
(1)  An application for leave to appeal and, subject to subrule (2), to cross-appeal must be made by summons under Part 5 rule 3.
(2)  A party served with a summons for leave to appeal who wishes to apply for leave to cross-appeal may do so by motion on the hearing of the summons, supported by an affidavit stating the matters set out in subrule (7), without filing or serving a summons or notice of the motion.
(3)  Subject to subrules (3A), (5) and (5A), the summons for leave to appeal shall be filed within 28 days after the material date.
(3A)  If an application is made to a Local Court under Part 2 of the subject Act, the time for filing a summons for leave to appeal does not start to run until the application under Part 2 is finally disposed of.
(4)  A summons for leave to cross-appeal shall be filed within 28 days after service of the summons instituting the appeal, or the summons for leave to appeal, or within such further time as the Court may fix.
(5)  The Court may, at any time, extend the time fixed by subrule (3) or (4).
(5A)  Where the decision appealed from is that of a magistrate, the tribunal below may, within the time fixed by subrule (3) for filing a summons for leave to appeal (as extended by subrule (3A)) or on application filed within that time, extend the time fixed by subrule (3).
(6)  The summons for leave to appeal or to cross-appeal shall include a claim for the decision which the party instituting the appeal seeks in place of the decision of the tribunal below.
(7)  The applicant shall file and serve with or subscribe to the summons a brief but specific statement of:
(a)  the grounds relied upon in support of the appeal and, in particular, the grounds upon which it is contended that there is any error of law,
(b)  as to whether the appeal is from the whole or part only and what part of the decision in the tribunal below,
(c)  the nature of the case,
(d)  the questions involved, and
(e)  the reasons why leave should be given.
(8)  The applicant for leave to appeal shall, unless the Court otherwise directs, not later than 3 days before the date fixed for the hearing of the application for leave to appeal, file an affidavit exhibiting:
(a)  a copy of the transcript of the proceedings in the tribunal below, unless a transcript cannot be obtained in respect of proceedings of that type, and
(b)  a copy of the reasons for decision in the tribunal below, unless the tribunal below has not given, and does not intend to give, written reasons.
(9)  Where an application for leave to appeal or to cross-appeal has been granted:
(a)  the summons for leave to appeal shall be deemed a summons instituting an appeal in respect of the grounds upon which the Court has granted such leave, and
(b)  the summons, or the affidavit under subrule (2), for leave shall be deemed a notice of cross-appeal instituting a cross-appeal in respect of the grounds upon which the Court has granted such leave.
(10)  A party applying to the Court for an extension of time under subrule (3) or (4) shall:
(a)  include that application in the summons for leave to appeal or cross-appeal, or
(b)  lodge with his or her notice of motion or summons a draft, completed as far as possible, of the summons under subrule (1) and the statement under subrule (7), to be filed if an extended time is fixed.
6   Time for appeal
(1)  Subject to subrules (1A) and (2) and any provisions made by or under any Act, an appeal must be instituted within 28 days after the material date.
(1A)  If an application is made to a Local Court under Part 2 of the subject Act, the time for instituting an appeal does not start to run until the application under Part 2 is finally disposed of.
(2)  Time fixed by subrule (1) may be extended:
(a)  by the Court at any time, or
(b)  where the decision appealed from is that of a magistrate—by the tribunal below, but only within the time fixed by subrule (1) for instituting an appeal (as extended by subrule (1A)) or on application filed within that time.
(3)  A party applying to the Court for an extension of time under subrule (2) (a) shall:
(a)  include that application in the summons instituting the appeal, or
(b)  lodge with his or her notice of motion or summons a draft, completed as far as possible, of the summons under rule 7 and the statement under rule 8, to be filed if an extended time is fixed.
7   Institution of appeal
Subject to rule 5, an appeal to the Court is to be instituted by filing a summons under Part 5 rule 3 that claims the decision that the party instituting the appeal seeks in place of the decision of the tribunal below.
8   Statement of ground
The plaintiff shall file and serve with or subscribe to the summons instituting the appeal a brief but specific statement:
(a)  of the grounds relied upon in support of the appeal and, in particular, the grounds upon which it is contended that there is any error of law, and
(b)  as to whether the appeal is from the whole or part only and what part of the decision in the tribunal below.
9   Transcript and reasons for decision
The plaintiff shall, unless the Court otherwise directs, not later than 3 days before the date fixed for the hearing of the summons, file an affidavit exhibiting:
(a)  a copy of the transcript of the proceedings in the tribunal below, unless a transcript cannot be obtained in respect of proceedings of that type, and
(b)  a copy of the reasons for decision in the tribunal below, unless the tribunal below has not given, and does not intend to give, written reasons.
10   Parties
(1)  Any informant and each person who is directly affected by the relief sought in the appeal or is interested in maintaining the decision under appeal shall be joined as a defendant to the appeal.
(2)  Subject to subrule (3), the tribunal below shall be joined as a defendant.
(3)  Subrule (2) shall not apply where the tribunal below is a court.
(4)  The Court may order the addition or removal of any person as a party to an appeal.
(5)  A person shall not be made a plaintiff without his consent.
11   Service
(1)  Subject to subrule (2), the plaintiff shall, on the day of filing a summons instituting an appeal or for leave to appeal, or as soon as practicable thereafter, subject to Part 9 rule 8, serve the summons on the defendant personally.
(2)  When the summons contains an application for extension of time, service shall be effected on the day when the application is granted, or as soon as practicable thereafter.
12   Directions for service
Where the Court makes an order granting:
(a)  leave to appeal or to cross-appeal, or
(b)  an extension of time for:
(i)  appealing or cross-appealing, or
(ii)  applying for leave to appeal or to cross-appeal,
the Court may, at the same time or afterwards, give directions for service other than personal service of any summons or notice of cross-appeal by which, pursuant to the order, proceedings are commenced for an appeal or for leave to appeal or to cross-appeal, and of any other document in the proceedings so commenced.
13   Filing with tribunal below
(1)  Where the tribunal below is a court, the plaintiff shall, on the date of instituting the appeal, file a copy of the summons instituting the appeal in the registry or office of that court.
(2)  For the purposes of subrule (1), the date of instituting the appeal shall:
(a)  if the summons instituting the appeal contains an application for extension of time—the day the application is granted, or
(b)  if a summons for leave is deemed by rule 5 (9) to be the summons instituting the appeal—the day when the summons is so deemed.
(3)  If compliance with subrule (1) is not in accordance with the practice or organisation of that court, the plaintiff shall lodge a copy of the summons with an officer of that court concerned with its records or process.
14   Security for costs
(1)  The Court may, in special circumstances, order that such security as the Court thinks fit be given of the costs of an appeal to the Court.
(2)  Subject to subrule (1), no security for the costs of an appeal to the Court shall be required.
(3)  Subrules (1) and (2) do not affect the powers of the Court under Part 53, Division 1 (which relates to security for costs).
15   Date of hearing of appeal
Unless the Court otherwise orders, the appeal shall not be heard before 21 days after service of the summons by which the appeal is instituted.
16   Amendment
(1)  The summons by which the appeal is instituted and any statement under rule 8 may be amended by the plaintiff without leave by filing a supplementary notice not less than 7 days before the day appointed for hearing.
(2)  The plaintiff must, on the day of filing the supplementary notice, serve it on the other parties and must file or lodge a copy of it in accordance with rule 13 as if it were a summons.
(3)  Subrule (1) does not affect the powers of the Court under Part 20 (which relates to amendment).
17   Cross-appeal
(1)  Where a defendant wishes to appeal from the whole or part of a decision, the defendant shall file a notice of cross-appeal.
(2)  The defendant must file the notice of cross-appeal within the later of:
(a)  28 days after service of the summons instituting the appeal on the defendant, and
(b)  14 days after leave to appeal or to cross-appeal is given.
(3)  Subject to subrules (1), (2) and (4), the provisions of this Part relating to an appeal and a summons apply to the cross-appeal and a notice of cross-appeal.
(4)  Part 6 and rule 6 (which relates to time for appeal) do not apply to a cross-appeal or notice of cross-appeal.
18   Notice of contention
Where a defendant wishes to contend that the decision of the tribunal below should be affirmed on grounds other than those relied upon by the tribunal below but does not seek a discharge or variation of any part of the decision of the tribunal below, the defendant need not file a notice of cross-appeal but, within the time limited by rule 17 (2), the defendant must:
(a)  file notice of that contention stating, briefly but specifically, the grounds relied upon in support of the contention, and
(b)  serve the notice of contention on each other party to the appeal.