Appeals to the Court of Appeal

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Summary

Since the automatic right of appeal to the Victorian Court of Appeal was removed in November 2014, parties wishing to appeal must generally apply for leave to appeal. There is no entitlement to an oral hearing, though one may be requested.

Since the introduction of the new regime, the number of unmeritorious appeals being run by unsuccessful litigants at first instance has reduced. The appeals process in Victoria now has a built-in “filtration” mechanism through which only appeals with a ‘real prospect of success’ are allowed to proceed (section 14C of the Supreme Court Act 1986 (Vic).  

Here are some important things to consider if you intend to appeal.

‘Real prospect of success’ test

The Court of Appeal has held that it may only grant leave where the appeal has a ‘real prospect of success’, as opposed to a ‘fanciful’ chance of success: Kennedy v Shire of Campaspe [2015] VSCA 47.

The requirement for applications for leave to have a ‘real’ prospect of success pursuant to section 14C of the Supreme Court Act is consistent with section 63 of the Civil Procedure Act 2010 (Vic) which also uses the same language: “ no real prospect of success.” The Court explained in Kennedy that a real prospect of success is one that ‘is not fanciful’.

Tips for lodging a civil appeal

  1. Within 28 days of judgement, any application for leave to appeal must be prepared and filed with the Court of Appeal registry (064.05).
     
  2. Prepare a Form 64A notice of appeal (O64.02) and/or application for leave to appeal (O64.03).
     
  3. The contents of an application for leave to appeal / notice of appeal should include the list of requirements set out in O64.04 which includes, inter alia:
  • A statement whether or not leave is required, and whether an oral hearing is requested;
     
  • In the case of a notice of appeal, setting out the grounds of appeal specifically and concisely, and set out the reasons for why leave should be granted and the proposed grounds;
     
  • State whether the whole or part of the decision is being appealed;
     
  • State whether a stay is required; and
     
  • A number of other requirements specified under O64.04.
     

Grounds of appeal

Drafting of the grounds of appeal is the most important task. It requires early and careful consideration. The Court of Appeal requires the appellant to file a ‘written case’ of up to 10 pages containing submissions in support of the grounds of appeal, addressing the merits of the application. This is the primary tool to convince the judge ‘on the papers’. Therefore its vital that it be well-prepared, persuasive and concise.

Other documents required

The documents to be filed with an 'application package' at the Court of Appeal registry include:

  1. Application for leave to appeal (Form 64A); 
     
  2. Written case; 
     
  3. List of authorities; 
     
  4. A draft leave application book or appeal book index. This is a list of documents upon which the appellant proposes to rely if the application succeeds; and
     
  5. A draft summary for the Court of Appeal. The draft summary sets out a summary of the key issues and any background to the matter. Ideally it is agreed between the parties.  

Practice Note SC CA 3 for Civil Applications is an essential guide to the rules regarding filing and service, applications, cross-applications, notices of contention, written cases, amendments, authorities, summaries, other applications, authorities, hearings, costs, discontinuance and ceasing to act. 

Determination of applications for leave

Generally, a single judge will determine an application for leave ‘on the papers’ without an oral hearing. If it is found to be ‘totally without merit’ the application will be dismissed.

A dismissal ‘on the papers’ may be varied or set aside by further application, but only if the leave application was not ‘totally without merit’. Dismissals following oral hearings are final (O64.17).

Directions for an appeal

If the application for leave is allowed, the Court of Appeal registry will seal the application and return it to the appellant for service on the respondent. The respondent has 28 days to file any cross-appeal and submissions in support. Generally the registry will liaise with the parties regarding appeal preparation, such as appeal books, authorities, etc.

Conclusion

Intending appellants should seek swift advice on any grounds of appeal and begin to draw an application for leave or notice of appeal as soon as possible. Allowing sufficient time for proper analysis and preparation of appeal documents within the 28-day time limitation is crucial.