Uniform Civil Procedure Rules 2005
Current version for 9 April 2020 to date (accessed 4 June 2020 at 06:23)
Part 50
Part 50 Appeals to the court
Division 1 Preliminary
50.1   Application
(cf SCR Part 51A, rule 1)
This Part applies to any appeal, other than—
(a)  an appeal to the Supreme Court that, under the Supreme Court Act 1970, is assigned to the Court of Appeal, or
(b)  an appeal to the Supreme Court under Part 5 of the Crimes (Appeal and Review) Act 2001, or
(c)  an appeal to the Supreme Court to which the provisions of Part 80A rule 32(1) of the Supreme Court Rules 1970 or rule 14.1 of the Supreme Court (Corporations) Rules 1999 apply.
Note.
 The provisions of this Part, like the other provisions of these rules, are subject to any Act that makes provision to the contrary.
50.2   Definitions
(cf SCR Part 51A, rule 2)
(1)  In this Part—
court below, in relation to an appeal, means the court in which, or the person or body by whom, the decision to which the appeal relates was made.
decision includes a judgment, order, opinion, direction or determination.
higher court, in relation to an appeal, means the court to which the appeal is made.
material date, in relation to an appeal, means—
(a)  if the appeal is from the decision of a court, the date on which the decision is pronounced or given, and
(b)  if the appeal is from any other person or body, the date on which notice of the decision was given, by or on behalf of the person or body who made the decision, to the person who wishes to appeal.
Note.
 See the definition of court in section 3(1) of the Civil Procedure Act 2005.
(2)  For the avoidance of doubt, it is declared that, for the purposes of this Part—
(a)  a Commissioner of the Land and Environment Court, when exercising the functions of that Court under the Land and Environment Court Act 1979, is taken to be the court below, and
(b)  the Land and Environment Court, when hearing an appeal under section 56A of the Land and Environment Court Act 1979 against a decision made by a Commissioner of that Court in the exercise of those functions, is taken to be the higher court.
Division 2 Appeals
50.3   Time for appeal
(cf SCR Part 51A, rule 3)
(1)  A summons commencing an appeal must be filed—
(a)  within 28 days after the material date, or
(b)  if the appeal relates to the decision of a judicial officer, within such further time as the judicial officer may allow so long as the application for such further time is filed within 28 days after the material date, or
(c)  within such further time as the higher court may allow.
(2)  An application for an extension of time under subrule (1)(c) must be included in the summons commencing the appeal.
Note.
 The provisions of this Part, like the other provisions of these rules, are subject to any Act that makes provision to the contrary. For example, section 24 of the Companion Animals Act 1998 provides that an appeal to the District Court against an order disqualifying a person from owning a dog may only be made within 28 days after the date on which the order is made.
50.4   Statement of ground
(1)  The summons commencing an appeal must be in the approved form and must contain a statement as to—
(a)  whether the appeal relates to the whole or part only, and what part, of the decision of the court below, and
(b)  what decision the plaintiff seeks in place of the decision of the court below.
(2)  The summons must also contain a statement setting out briefly but specifically the grounds relied on in support of the appeal including, in particular, any grounds on which it is contended that there is an error of law in the decision of the court below.
(3)  This rule does not apply to proceedings that are entered in the Commercial List in the Supreme Court.
50.5   Parties
(cf SCR Part 51A, rule 6)
(1)  Each person who is directly affected by the relief sought in the appeal or is interested in maintaining the decision under appeal must be joined as a defendant.
(2)  If the court below is a person or body that is not a court, the person or body must be joined as a defendant.
(2A)  Subrule (2) does not apply to the extent to which a provision of these rules, or of any other Act or law, provides to the contrary.
(3)  The court may order the addition or removal of any person as a party to an appeal.
(4)  A person must not be made a plaintiff in the appeal without his or her consent.
50.6   Filing with court below
(cf SCR Part 51A, rule 7)
If the court below is a court, the plaintiff must, on the date of instituting the appeal, file a copy of the summons commencing the appeal in the registry or office of that court.
50.7   Stay
(cf SCR Part 51A, rule 8)
An appeal to the court—
(a)  does not operate as a stay of proceedings under the decision of the court below, and
(b)  does not invalidate any intermediate act or proceedings,
except so far as the court (or, subject to any direction of the court, the court below) may direct.
50.8   Security for costs
(cf SCR Part 51A, rule 9)
(1)  In special circumstances, the court may 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 is to be required.
(2A)  If an appellant or cross-appellant fails to comply with an order under this rule, the court may order that the appellant’s appeal or cross-appellant’s cross-appeal be dismissed.
(3)  Subrules (1), (2) and (2A) do not affect the powers of the court under rule 42.21 (which relates to security for costs).
50.9   Date of hearing of appeal
(cf SCR Part 14, rule 3, Part 51A, rule 10)
(1)  Unless the court orders otherwise, an appeal must not be heard before 21 days after service of the summons commencing the appeal.
(2)  This rule does not apply to proceedings that are entered in the Commercial List in the Supreme Court.
Division 3 Cross-appeals
50.10   Cross-appeal
(cf SCR Part 14, rule 3, Part 51A, rule 12)
(1)  If a defendant to an appeal wishes to appeal from the whole or part of a decision, that defendant must file a cross-summons.
(2)  The defendant must file the cross-summons—
(a)  within 28 days after service of the summons commencing the appeal on the defendant, or
(b)  if the appeal relates to the decision of a judicial officer, within such further time as the judicial officer may allow so long as the application for such further time is filed within 28 days after service of the summons commencing the appeal on the defendant, or
(c)  within such further time as the higher court may allow.
(3)  An application for an extension of time under subrule (2)(c) must form part of the cross-summons.
(4)  Subject to subrules (1), (2) and (3), Division 2 applies to the cross-appeal and cross-summons.
(5)  This rule does not apply to proceedings that are entered in the Commercial List in the Supreme Court.
50.11   Notice of contention
(cf SCR Part 14, rule 3, Part 51A, rule 13)
(1)  This rule applies if the defendant wishes to contend that the decision of the court 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 that decision.
(2)  In the circumstances referred to in subrule (1), the defendant need not file a cross-summons but must instead file notice of that contention, stating, briefly but specifically, the grounds relied on in support of the contention.
(3)  The notice referred to in subrule (2) must be filed and served—
(a)  within 14 days after service of the summons commencing the appeal on the defendant, or
(b)  within such further time as the higher court may allow.
(4)  This rule does not apply to proceedings that are entered in the Commercial List in the Supreme Court.
Division 4 Applications for leave to appeal and cross-appeal
50.12   Leave to appeal
(cf SCR Part 51A, rule 2A)
(1)  A summons seeking leave to appeal must be filed—
(a)  within 28 days after the material date, or
(b)  if the appeal relates to the decision of a judicial officer, within such further time as the judicial officer may allow so long as the application for such further time is filed within 28 days after the material date, or
(c)  within such further time as the higher court may allow.
(2)  An application for an extension of time under subrule (1)(c) must form part of the summons seeking leave to appeal.
(3)  The summons must be in the approved form and must contain a statement as to—
(a)  whether the appeal relates to the whole or part only, and what part, of the decision of the court below, and
(b)  what decision the plaintiff seeks in place of the decision of the court below.
(4)  The summons must also contain a statement of—
(a)  the nature of the case, and
(b)  the reasons why leave should be given, and
(c)  if applicable, the reasons why time to apply for leave should be extended,
setting out briefly but specifically the grounds relied on in support of the appeal including, in particular, any grounds on which it is contended that there is an error of law in the decision of the court below.
(5)  This rule does not apply to an appeal under section 39 of the Victims Support and Rehabilitation Act 1996.
Note.
 See instead rule 50.23.
50.13   Leave to cross-appeal
(cf SCR Part 51A, rule 2A)
(1)  A cross-summons seeking leave to cross-appeal must be filed—
(a)  within 14 days after service of the summons commencing the appeal or the summons seeking leave to appeal, or
(b)  within such further time as the higher court may allow.
(2)  An application for an extension of time under subrule (1)(b) must form part of the summons commencing the appeal.
(3)  The cross-summons must contain a statement as to—
(a)  whether the cross-appeal relates to the whole or part only, and what part, of the decision of the court below, and
(b)  what decision the defendant seeks in place of the decision of the court below.
(4)  The cross-summons must also contain a statement of—
(a)  the nature of the case, and
(b)  the reasons why leave should be given, and
(c)  if applicable, the reasons why time to apply for leave should be extended,
setting out briefly but specifically the grounds relied on in support of the cross-appeal including, in particular, any grounds on which it is contended that there is an error of law in the decision of the court below.
Division 5 General
50.14   Reasons for decision, transcript and other parts of the record of the court below
(1)  Unless the court otherwise orders, the plaintiff must prepare, file and serve on each defendant, not later than 3 days before the date fixed for the hearing of the summons, an affidavit to be relied on at the appeal or application for leave to appeal that annexes or exhibits—
(a)  a copy of the reasons for the decision of the court below, unless the court below has not given, and does not intend to give, written reasons, and
(b)  a copy of the transcript of the proceedings in the court below, unless a transcript cannot be obtained in respect of proceedings of that type, and
(c)  a copy of any exhibit, affidavit or other document from the proceedings in the court below that the plaintiff wishes to be considered at the hearing of the appeal or proposed appeal.
(2)  The defendant may prepare an affidavit to be relied on at the appeal, cross-appeal or application for leave to appeal or cross-appeal any exhibit, affidavit or other document from the proceedings in the court below that the defendant wishes to be considered at the hearing of the appeal, cross-appeal or application for leave to appeal or cross-appeal in addition to any exhibit, affidavit or other document referred to in subrule (1)(c).
(3)  The higher court may make further directions for the filing and service of an affidavit under subrule (1) or (2) and for the lodging and service of any exhibits to such an affidavit.
50.15   Directions for service
(cf SCR Part 51A, rule 6A)
(1)  If the court makes an order granting an extension of time for applying for leave to appeal or cross-appeal, the court—
(a)  may hear the application for leave on the documents already filed without requiring a summons for the application, or
(b)  may give directions for the filing of such additional documents, and for the service of such documents (including documents already filed), as it thinks fit.
(2)  If the court makes an order granting leave to appeal or cross-appeal, the court—
(a)  may hear the appeal or cross-appeal on the documents already filed without requiring a summons or cross-summons for the appeal or cross-appeal, or
(b)  may give directions for the filing of such additional documents, and for the service of such documents (including documents already filed), as it thinks fit.
50.16   Conduct of appeal
(1)  If the decision under appeal has been given after a hearing, the appeal is to be by way of rehearing.
(2)  The higher court has the powers and duties of the court, body or other person from whom the appeal is brought, including powers and duties concerning—
(a)  amendment, and
(b)  the drawing of inferences and the making of findings of fact, and
(c)  the assessment of damages and other money sums.
(3)  The higher court may receive further evidence.
(4)  Despite subrule (3), where the appeal is from a judgment after a trial or hearing on the merits, the higher court may not receive further evidence except on special grounds.
(5)  Subrule (4) does not apply to evidence concerning matters occurring after the trial or hearing.
(6)  The higher court may make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made.
50.16A   Objections to competency of appeal
(1)  A defendant who objects to the competency of an appeal must, by notice of motion filed and served on all other parties to the appeal within 14 days after service on the defendant of the notice of appeal, apply to the court for an order dismissing the appeal as incompetent.
(2)  If the defendant fails to comply with subrule (1) and the appeal is nevertheless dismissed as incompetent—
(a)  the defendant is not entitled to costs of the appeal unless the court otherwise orders, and
(b)  the court may order the defendant to pay the plaintiff any costs of the appeal proving useless or unnecessary.
Division 6 Appeals to District Court under section 91 of Children and Young Persons (Care and Protection) Act 1998
50.17   Definitions
(cf DCR Part 6, rule 35)
In this Division—
appeal means appeal to the District Court under section 91 of the Children and Young Persons (Care and Protection) Act 1998.
child, Children’s Court, Department and Director-General have the same meanings as they have in the Children and Young Persons (Care and Protection) Act 1998.
Children’s Registrar has the same meaning as it has in the Children’s Court Act 1987.
50.18   Defendants in appeal
(cf DCR Part 6, rule 37)
(1)  The defendants in an appeal against a decision in respect of the care of a child are as follows—
(a)  if the Director-General is not the plaintiff, the Director-General,
(b)  if the child is of or above the age of 10 years and is not the plaintiff, the child,
(c)  any person (not being the plaintiff or an officer of the Department) who is responsible for the child and can reasonably be located,
(d)  any person (not being the plaintiff or an officer of the Department) to whom leave was granted under section 98(3) of the Children and Young Persons (Care and Protection) Act 1998 in respect of the proceedings leading to the decision,
(e)  any person whom the District Court orders be joined as a defendant in the appeal.
(2)  An order may be made as referred to in subrule (1)(e) only if the District Court considers that the person’s joinder as a defendant is necessary to the determination of the appeal.
50.19   Children’s Court record
(cf DCR Part 6, rule 41)
As soon as practicable after the filing in the Children’s Court of a copy of the summons commencing an appeal against a decision of that Court under rule 50.6, a Children’s Registrar must forward the record of the proceedings leading to the decision to the registrar of the District Court at the proclaimed place (within the meaning of the District Court Act 1973) where the listing of the appeal for directions is to occur.
50.20   Notice of fresh evidence
(cf DCR Part 6, rule 43)
If a party to an appeal against a decision intends to adduce on the appeal fresh evidence, or evidence in addition to or in substitution for the evidence on which the decision was made, the party must, as soon as practicable after becoming aware of the fresh, additional, or substituted evidence, serve on every other party notice of the nature and extent of that evidence.
Division 7 Appeals to District Court under section 39 of Victims Support and Rehabilitation Act 1996
50.21   Definitions
(cf DCR Part 6, rule 60A)
In this Division—
appeal means appeal under section 39 of the Victims Support and Rehabilitation Act 1996.
application for leave means application for the leave of the District Court under section 39(1) of the Victims Support and Rehabilitation Act 1996 to institute an appeal.
Tribunal means the Victims Compensation Tribunal constituted under section 59 of the Victims Support and Rehabilitation Act 1996.
50.22   Venue
(cf DCR Part 6, rule 60B)
Subject to any order of the Court for a change of venue, an application for leave and an appeal may each be heard and determined at any proclaimed place (within the meaning of the District Court Act 1973).
50.23   Application for leave
(cf DCR Part 6, rule 60C)
(1)  An application for leave must be made by summons.
(2)  An application for leave must be filed within—
(a)  the period specified in section 39(2)(a) of the Victims Support and Rehabilitation Act 1996, or
(b)  such further time as the Court may allow under section 39(2)(b) of that Act.
(3)  An application to allow further time to appeal under section 39(2)(b) of the Victims Support and Rehabilitation Act 1996 must be made by summons.
(4)  An application for leave must include or be accompanied by a statement identifying the determination sought to be appealed against, a statement of the question of law on which it is sought to appeal and the grounds of the proposed appeal.
(5)  The defendant in an application for leave or an application to allow further time to appeal is the Victims Compensation Fund Corporation constituted under section 66 of the Victims Support and Rehabilitation Act 1996.
50.24   Tribunal record
(cf DCR Part 6, rule 60D)
The Registrar of the Tribunal must, as soon as practicable after delivery of a copy of a summons commencing an appeal under rule 50.6, forward to the registrar of the District Court at the proclaimed place (within the meaning of the District Court Act 1973) at which the appeal is to be heard the record of the proceedings in the Tribunal leading to the determination sought to be appealed against.
50.25   Appeal
(cf DCR Part 6, rule 60E)
If the Court grants leave to institute an appeal, it may give directions as to the extent to which matters before it, and decisions made by it, on the application for leave are admissible or binding on the hearing of the appeal, and may—
(a)  proceed immediately to hear and determine the appeal, or
(b)  give such directions as to filing and service of documents, conferences, fixing of a hearing date, and any other matter as appear requisite for the hearing and determination of the appeal.