A guide to Court of Appeal civil proceedings

The Court of Appeal is the part of the Supreme Court you apply to if you want to appeal a civil decision made:

  • by a judge in the Trial Division of the Supreme Court of Victoria
  • by a judge in the County Court of Victoria
  • by an associate judge, if the matter was referred to them by a Trial Division Supreme Court judge
  • in a company’s application to set aside a statutory demand
  • by the president or a vice president of the Victorian Civil and Administrative Tribunal (VCAT)

This page deals with civil matters. If you want to appeal in relation to a criminal trial, conviction or sentence, see criminal appeals for information.

Guide – Court of Appeal civil proceedings

View the guide below, or download a printable version of this guide at the bottom of the page.

The information in the guide has been prepared for people representing themselves throughout the court process, however it applies equally to professionals. It includes what to do at each stage, what forms you need to complete, what documents you need to provide, court fees and costs that apply, and what it means to represent yourself in the Supreme Court of Victoria.

Types of appeals we hear

The Supreme Court of Victoria has two main parts: Trial Division and Court of Appeal .

Court of Appeal can hear appeals against decisions made:

  • by judges in the Trial Division of the Supreme Court of Victoria
  • by associate judges, if the matter was referred to them by a Trial Division Supreme Court judge
  • in a company’s application to set aside a statutory demand
  • by judges in the County Court of Victoria
  • by the president or a vice president of the Victorian Civil and Administrative Tribunal (VCAT).

Most cases need leave to appeal

In almost all cases, you need the Court’s permission to have your appeal heard. This is called leave to appeal.

The Court will only give permission if your case has a real chance of success. If you are not given leave to appeal your case will be dismissed (will not continue). Cases that discuss when leave to appeal will be granted include Kennedy v Shire of Campaspe [2015] VSCA 47 and Note Printing Australia Ltd v Leckenby (2015) 50 VR 44; [2015] VSCA 105.

You do not need permission if you are appealing a decision: 

  • to refuse a legal action that challenges the legality of someone being detained (in legal terms known as habeas corpus)
  • made under the Serious Offenders Act 2018.

Time limits

There is a time limit on appealing a decision in the Court of Appeal. 

Different time limits apply depending on the type of decision you are appealing. 

You must complete and file the documents needed to start your appeal within the time limit. In most cases, you have 42 days from the date of the decision. However, you have 28 days, from the date of the decision, to appeal against a decision about: 

  • an extension of time 
  • discovery , including preliminary discovery 
  • joinder, removal or substitution of a party  
  • amendment or strike out of pleadings 
  • summary dismissal  
  • summary judgment  
  • dismissing, or refusing to dismiss , a proceeding for want of prosecution 
  • security for costs  
  • the stay of part of a proceeding 
  • an injunction, freezing order or search order 
  • a stay of execution of a judgment 
  • recusal.

The 28-day time limit also applies to an appeal against a decision in an application under section 459G of the Corporations Act 2001. If the time limit has already passed, see Extension of time to appeal.’

If the time limit has already passed, see extension of time limit below.

Extension of time limit

If you are outside the appeal period you must apply for an extension of time. All applications for an extension of time must be made by filing:  

  • Form 64B
  • affidavit – including a timeline of the events that led up to you not filing your documents in time and any evidence that supports this, such as a medical certificate
  • written submissions, of no more than five pages, explaining in detail why you should get an extension based on the facts and evidence in your affidavit .

The Court of Appeal registrar usually decides extension requests, without a hearing , based on the documents you submit. The key issues that are relevant to your extension request are:

  • why you did not file your appeal documents in time
  • whether your proposed appeal has a real chance of success.

TIP: If the registrar does not give you an extension, you can ask for a judge to consider your request. The judge will make a decision based on the documents you submit. In some cases, your request may be decided at a hearing that you need to attend.

Consider the cost

Before you apply, consider if you have tried all ways to resolve the issue without involving the justice system. 

Legal proceedings in the Supreme Court can be very expensive.  

If you lose your case, you may need to pay some or all of the other party ’s costs . This includes what they spent on lawyers and any other expenses, such as the cost of expert reports. 

Be aware – these costs can be substantial. 

Consider paying for some legal advice even if it is only to help you with a particular part of the process. For example, it is highly recommended that a lawyer help you prepare your grounds of appeal and your written case. These are two key things you need to argue your case. See organisations that may be able to help you with free and low-cost legal help..   

You need to pay court fees at various stages, unless you have a fee waiver. These might include for:

  • starting an appeal or applying for leave to appeal
  • extension of time application
  • other applications (for example, a stay application)
  • mediation , per day or part day
  • setting down (confirming a date) for the hearing
  • hearing fees, per day or part day.

Get to know Court procedures

Read the following documents carefully. They provide important information and guidance:

If you contact the Court, quote the proceeding number for your case. You are given this number when your documents are accepted by the Court in Stage 1. It looks something like this S EAPCI 2019 0321.  

Get to know your obligations

As a party in a civil proceeding, you need to understand what is known as overarching obligations , which are in sections 16-26 of the Civil Procedure Act 2010.

Do your legal research

Make sure you understand the law that applies to your case by doing some legal research. Read about cases similar to yours. Note any cases where the law you are relying on has been applied in a way you think proves your arguments. You may want to refer to these cases in your submissions and/or your list of authorities . The Court may ask you to prepare these in Stage 1.

You can find cases from all courts and VCAT on the AustLII website

Know how to file documents

You file documents with the Court using the online system RedCrest. You need an email address to create a RedCrest account. If you do not have an email address and cannot get one, contact the Self-Represented Litigants Coordinator to discuss your situation. 

You are notified in RedCrest when any documents you file are ready for you to serve with the Court's seal (official stamp) on them. The notification has a link to where you can download and print copies.

Know how to communicate with the Court

The Court prefers you to communicate by emailing pbnertvfgel@fhcpbheg.ivp.tbi.nhua.vog.civ.truocpus@yrtsigeraoc . If you cannot email, send a letter to the registry postal address.

Get to know legal terms 

Check the glossary for common legal words and terms. 

Know how to stop your appeal

You can stop your appeal at any time by filing a Notice of Discontinuance form and serving it on the other parties.

Be aware: If you do this, you will need to pay the other parties’ costs unless:

  • each party agrees you do not have to pay their costs, or
  • the Court of Appeal orders that you do not have to pay the other parties’ costs.

To start an appeal , or apply for leave to appeal , you file:

File all of these documents at the same time and pay the commencement fee (or apply for a fee waiver).

Not all cases get a hearing , so these documents could be your only chance to explain your arguments to the Court.

If you are applying for leave to appeal, these documents help the judge decide if your case has a real chance of success.

Form 64A: Application for leave to appeal / notice of appeal

This form contains a number of key sections, including the reasons why you believe the Court should grant you leave to appeal, if you are seeking leave to appeal.

Clearly state your grounds of appeal – the legal errors you believe the judge made when making their decision.

If you are appealing a VCAT decision, you need to state each law or legal principle the judge had to apply and you believe they got wrong. These are your questions of law.

The grounds of appeal and questions of law must be numbered consecutively (one after the other) in this form. 

You are only identifying which laws and legal principles you believe the judge got wrong, not explaining how you believe these laws or principles were wrongly applied and how that led to a wrong decision. You will give those details in your written case.

TIP: A question of law is usually framed as a question and asks what was legally required to be done or considered in your case. For example, if you are appealing a VCAT decision, was VCAT required to consider depreciation when deciding on a landlord’s claim for compensation? Is VCAT allowed to consider unsworn evidence ?

Written case

The written case must give the Court enough information to quickly understand what case you are making. It must:

  • contain your arguments for each ground of appeal and question of law in Form 64A (explain how you believe the judge wrongly applied the law or legal principles in your case, and how you believe that led the judge to make a wrong decision)
  • be no more than 10 pages, unless the registrar gives permission for it to be longer
  • follow the Registrar ’s Note on the preparation of a written case.

List of authorities

This is a list of the cases, legislation and secondary sources you will use to support your case. It has three parts:

Part A – Cases and legislation you intend to read from if the case goes to hearing
Part B – Cases and legislation you intend to refer to, but do not intend to read from if the case goes to hearing
Part C – Other sources that support your case, such as textbooks and journal articles.

Draft application book index

An application book is a folder of the documents that will be considered by the Court of Appeal judges. The draft application book index is a list of all the documents you think should be in the application book. This includes the documents the judge took into consideration when making the decision you are appealing, which you think are relevant to your appeal.

Read and follow the Registrar’s Note on the preparation of application books

TIP: The draft application book index and draft summary are called ‘draft’ for a reason. You need to get the respondent ’s input to these drafts and submit a final index and summary in Stage 2 of the appeal process.

Draft summary

The draft summary is a short account of the facts, history and issues of the case up until it was filed in the Court of Appeal. It must be no longer than 10 pages. Divide the draft summary into two parts:

Part A – summary of facts

Describe the background facts to the case, in the order they happened.

Part B – summary of proceedings and issues

In this part:

  • briefly describe what the case is about (for example, a claim about an injury or money owed)
  • name the parties and state whether they were a plaintiff , defendant , applicant or respondent in the court or VCAT proceeding that you are appealing
  • briefly describe the steps taken in the court or VCAT, in the order they happened
  • briefly state the major issues dealt with at the original hearing, and the outcome
  • briefly state the issues that you will raise in the Court of Appeal
  • note any relevant interlocutory orders – orders made after the case started and before it was finalised, such as a stay (temporary stop) of the decision being appealed.

TIP: When preparing your draft summary, read and follow section 12 of Practice Note SC CA 3 Civil Appeals (First Revision). The practice note includes sample summaries in Annexure A, to help show what level of detail is required.

Other applications to the Court of Appeal

For other applications, for example, an application to stay the decision you want to appeal, ask the other parties if they agree to what you are seeking, before you apply.

If they agree, you may not need to file the documents below. Email the Court to find out next steps.

If they do not agree, you must file:

  • Form 64B – Application other than for leave to appeal
  • affidavit – including any evidence that supports your application
  • written submissions (up to five pages) explaining in detail why you are making the application, referring to the evidence in your affidavit
  • list of authorities (relevant to this application)
  • draft application book index (relevant to this application).

These do not need to be filed at the same time as the documents you filed to start the appeal process. However, you should file them as soon as possible.

Stage 1 checklist  

File with the Court:

  • Form 64A
  • Written case
  • List of authorities
  • Draft application book index
  • Draft summary
  • Copy of the authenticated order
  • Copy of the written reasons

Pay the court fee or apply for a fee waiver.

Who to serve 

You serve your documents on the respondent , or on each respondent if there is more than one.

What documents to serve

After you file your documents via RedCrest, staff will check them and advise if you need to make any changes. 

You are notified by email through RedCrest when the documents have been accepted and are ready for you to serve with the Court's seal (official stamp) on them. The notification has a link to where you can download and save or print copies to serve on the respondent. 

When to serve documents

When registry send you the documents, they will tell you how many days you have to serve them on the respondent. Usually you need to serve documents within five days of receiving them. Sometimes registry will tell you to serve the documents sooner, usually in urgent cases. 

How to serve documents

Documents can be served in the following ways:

If the party is represented by a lawyer, usually this means you can serve documents by email, mail or personally to the lawyer’s address.

If the party is not represented by a lawyer, usually this means you can serve the documents by email, mail or in person to the address for service used in the documents for the court or VCAT proceeding.

Confirming you have served documents

Within seven days of service, or sooner if the registry tells you to, you must tell the Court who you served, their address (including email address) and when you served the documents.

You give that information by filing:

  • Form 64C – List of persons served.

Stage 2 checklist 

  • Serve your documents on the respondent
  • Confirm you have served documents by filing Form 64C within seven days of service

Response to appeal / application for leave to appeal

The respondent has 28 days to respond to your documents. The Court can set a shorter or longer period and will advise you if this happens. 

If the respondent opposes your appeal or application for leave to appeal, they must file a:

  • written case
  • list of authorities
  • a copy of your draft application book index, showing any proposed changes.

The respondent must also tell you, but not the Court, of any changes they propose to your draft summary. They usually do this in writing. Registry will advise the respondent if they also need to tell the Court.

If the respondent does not oppose your appeal / application for leave to appeal, they must file with the Court and serve on you:

  • Form 64E – Notice of intention not to respond or contest.

If this happens, you do not automatically succeed. The Court of Appeal still needs to consider your appeal or application for leave to appeal.

Respondent ’s response to other applications

For any other applications you have served on a respondent (for example, an application to ‘stay’ the decision you want to appeal), the respondent has 14 days to respond. The Court can set a shorter or longer period.

If the respondent opposes your application, they must file:

  • Form 64D
  • an affidavit
  • written submissions – no more than five pages
  • list of authorities
  • a copy of your draft application book index, showing any proposed changes.

If the respondent does not oppose, they file:

  • Form 64E - Notice of intention not to respond or contest.

If this happens, you will not automatically get the orders you seek. The Court of Appeal still needs to consider whether to make those orders.

Response to extension of time application

After you have served your documents on a respondent they have 14 days to respond to your extension of time application (the Court can set a shorter or longer period). If the respondent opposes your application, they must file:

  • Form 64D – Notice of opposition to application other than for leave to appeal
  • an affidavit
  • written submissions – no more than five pages.

If the respondent does not oppose, they must file:

  • Form 64E – Notice of intention not to respond or contest.

If this happens, you do not automatically get an extension of time. The Court of Appeal still needs to consider whether to give you one.

Stage 3 checklist  

  • For an appeal / application for leave to appeal, the respondent has 28 days to respond to your documents. They must tell you of any changes to your draft summary.
  • For any other application you have served, the respondent has 14 days to respond to your documents.

After the respondent ’s documents have been filed, the Court will tell the parties what needs to be done to get the case ready for the judges. This includes who prepares documents and when they need to file them with the Court. The main things that happen to get the case ready are:

Finalise the summary

The Court expects parties to work together to try to agree on the wording of the summary. If they cannot agree, the Court may decide that there will be no summary.

Prepare application book

The Court will consider all parties’ comments on the draft application book index, then decide what documents need to be included and how they need to be arranged. The book must:

When the application book is filed, the applicant must also:

  • file a setting down form (this will be provided by the registry )
  • pay a setting down fee.

Prepare a combined folder of authorities

The combined folder of authorities has copies of each party 's list of authorities and all of the cases and legislation that the parties will read from at the hearing . It combines Part A of each party’s list of authorities.

See the Guide on the preparation of a combined folder of authorities.

Prepare a list of transcript references

This is a document which contains, for each ground of appeal , a list of relevant page and line numbers taken from the transcript of the hearing in the court or tribunal you are appealing from. They are the particular parts of the transcript that each party wants to bring to the attention of the judges. All parties must agree that the list of transcript references contains all of the references they want included. Once agreed, it must be signed by each party (or their lawyer), then filed with the Court.

NOTE: You may need to attend a directions hearing to discuss the things the Court needs you to prepare for the judges. The Court will advise you if a directions hearing is needed. Otherwise, the Court will give all parties their instructions by email.

Stage 4 checklist  

  • Follow the Court’s instructions for getting the case ready for the judges
  • Attend the directions hearing, if one is needed
  • Unless you have a fee waiver, pay the setting down fee when you file the application book and a setting down form, and pay the daily hearing fee at least five days before your hearing
  • Prepare for your hearing and know what to expect by watching the Court’s videos 

Decisions are made with or without a hearing

The Court will decide if a hearing is needed to make a decision. Not all appeals will have a hearing.

If a hearing is listed (given a hearing date), the registry will notify you of the date, time and location.

The applicant and respondent are expected to attend the hearing. If you cannot attend for any substantial reason, such as a medical emergency, contact the Court of Appeal Registry immediately.

If a hearing is not listed, this means the judge has enough information to make a decision without a hearing.

Finding out the decision

The Court will notify you of the decision in writing.

NOTE: The Court will decide whether applications should be heard separately or together, and in what order.

For example an:

  • extension of time application is usually considered on its own and before anything else
  • application to stay the decision you want to appeal is usually considered on its own and before your application for leave to appeal or appeal
  • application for leave to appeal is often considered at the same time as your appeal.

If your appeal is dismissed

If your appeal or application for leave to appeal is dismissed, your options vary depending on the situation. Below are the most common options.

Options if your appeal is dismissed
What was dismissed? Who made the decision? Where to appeal
Appeal Judge(s) High Court of Australia
Application for leave to appeal Judge(s) following a hearing High Court of Australia
  Judge(s) without a hearing AND they said the application is totally without merit High Court of Australia
  Judge(s) without a hearing AND they did not say the application is totally without merit Apply within 10 days to the Court of Appeal for a hearing to set aside (cancel) or vary the decision to dismiss . If the Court does not grant you leave to appeal after the hearing, you can appeal to the High Court of Australia.
Extension of time application Judge(s) High Court of Australia
  Registrar Apply to the Court of Appeal. If an extension is not granted, you can appeal to the High Court of Australia.

Stage 5 checklist 

  • Attend the hearing, if the Court decides a hearing is necessary
  • The Court notifies you of the decision in writing
  • Know your appeal options if your appeal is dismissed 

The Court will automatically regard standard authorities on statutory interpretation and the construction of commercial contracts as being relied upon by all parties. The following authorities should not be reproduced in the combined folder of authorities that is prepared in Stage 4 above:

Statutory interpretation

Byrne v Australian Airlines Ltd (1995) 185 CLR 410

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Thiess v Collector of Customs (2014) 250 CLR 664

Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503

Bare v Independent Broad-Based Anti-Corruption Commission (2015) 326 ALR 198

Construction of commercial contracts

BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266

Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337

Burger King Corporation v Hungry Jack's Pty Ltd (2001) 69 NSWLR 558

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27

Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640

Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104

If you are a self-represented litigant and require further guidance contact the Self-Represented Litigant Coordinator.

Author
Supreme Court of Victoria
Publisher
Supreme Court of Victoria
Date of publication