Last updated: 31 August 2018.
This guidelines and information pack has been created to assist self-represented litigants who want to appeal a judgment or order against them, or who have a current proceeding in the Victorian Court of Appeal but no longer have representation.
There is no requirement that you be legally qualified in order to represent yourself, but research generally shows you are less likely to obtain a successful outcome without representation. A company is required to be legally represented.
If you represent yourself, the Court will be mindful of the fact that you are not legally qualified and will do what it can to assist you, but neither the Court nor the Registry act for you, and they cannot give legal advice. You are responsible for putting your case forward and must follow all of the rules of the Court.
Please consider the following:
- You have 28 days from the date of the decision to file an appeal with the Court of Appeal. If you are outside of this timeframe, you will need to make an extension of time application together with your application for leave to appeal.
- Most appeals to the Court of Appeal require leave (permission) to appeal.
- To get leave to appeal, you must have grounds of appeal that have a real prospect of success, and your grounds of appeal cannot be fanciful.
- Commencing an appeal can be complicated. You must be able to clearly identify where the judge has made a mistake in the application of the law, as well as be able to file a concisely written legal argument supporting your grounds of appeal.
- We recommend you obtain the typed transcript of the hearing that you wish to appeal, as well as the written reasons for judgment (if any) and the official court or tribunal order before deciding whether to appeal.
- Sometimes the Court can decide your application without an oral hearing based solely on your written legal argument. It is recommended to seek legal assistance to write your submissions to the Court.
- Court fees for commencing an appeal are expensive - the fee must be paid before an appeal can be filed.
- If you lose the appeal, you may need to pay the legal costs of the other party. This may be a considerable amount at the Court of Appeal stage.
- We advise everyone to seek out all options for free legal assistance. A good place to start is to call the free Legal Aid Telephone Helpline on 1300 792 387 and talk to a lawyer about your options of appeal and obtain any referrals to legal services they may recommend. You can also search legal centres and firms in your area of residence for free legal advice.
- If you need to temporarily stop the order that you wish to appeal whilst your application is being decided, you may make an application to the court you are appealing from to stay the order until filing an appeal. Again, we recommend that you seek legal advice as to whether you need a stay.
- If you cannot get legal help and wish to continue representing yourself, you should research the area of law that your matter relates to.
- You must understand the relevant legislation, rules, practice notes and Registrar's notes which govern the practice in the Court of Appeal. You should become familiar with the Supreme Court (General Civil Procedure) Rules 2015 and specifically Order 64 of those Rules which relate to the Court of Appeal, as well as Practice Note SC CA 3, the Registrar's Note on the Preparation of a Written Case, and the Registrar's Note on the Preparation of Leave Application Books and Appeal Books.
Leave to Appeal Application Process
If you are thinking about appealing, you should obtain a copy of the order, written reasons for judgment made by the Judge, the transcript of the hearing, the court file index, the court book (if any) and copies of any documents on the court file that the Judge took into consideration in hearing your matter.
To apply for leave to appeal, you must file all of the following documents together as an 'application package' at the Court of Appeal Registry:
- Application for leave to appeal (Form 64A);
- Written case and List of authorities;
- Draft index to application book;
- Draft summary; and
- Copy of the order and reasons for Judgment
Once you have all of these documents completed, email them together to the Court of Appeal Registry at email@example.com . If you do not have internet access you may file in hard copy at the Registry.
Once your application package is lodged, it will be reviewed by a Registry Lawyer before being accepted for filing. This process may take up to 24 hours. You must not serve your documents until directed to do so.
It is essential that you provide the Court with an email address when filing an appeal.
A fee is payable when the documents are accepted for filing by the Registry. Please see fee page for current fee. Any fees can be paid at our front counter via cash, bank cheque, money order, EFTPOS, or credit card. Bank cheques and money orders can also be sent via mail, and credit card payments can be made over the telephone. If payment of the fee will cause you financial hardship, you may apply for a Fee Waiver. You can do this by completing the Fee waiver form and including it in your package of documents to be filed with the Court.
Application for Leave to Appeal - Form 64A
Form 64A is the form to use to file an application for leave appeal. It must be filed within 28 days from the date of the order or judgment of the court or tribunal below that you want the Court of Appeal to review.
The leave to appeal application contains your grounds of appeal, your reasons why the Court should grant you leave to appeal, and what orders you are seeking. Your grounds of appeal are the legal errors you say the judge has made in coming to the decision.
To get leave to appeal you must have grounds of appeal that have a real prospect of success, and are not fanciful or weak. You must be able to clearly show where the Judge has made a mistake in the law.
Extension of Time
If you file your application for leave to appeal after 28 days have passed from the date of the decision, you will also need to file an application for an extension of time with your leave to appeal package. Form 64B is the form you use for an extension of time application. Your extension of time application should be filed with an affidavit and submissions (of no more than 5 pages) stating the reasons why the application is filed late.
For a trial period of 12 months from 1 May 2017, the Court will automatically grant all applications, other than those concerning interlocutory decisions, for an extension of no more than 14 days to the time to file an application for leave to appeal or notice of appeal. Applications seeking an extension of 14 days or less will not require a supporting affidavit or submissions. Please see the Court of Appeal Notice to Profession ' Applications for Extension of Time Under Rule 64.08 on the Supreme Court website.
Written Case & List of Authorities
The written case is your legal argument which must not exceed 10 pages in total unless the Judicial Registrar has granted permission to do so. It must be set out in accordance with the Registrar's Note on the Preparation of a Written Case, and thus be concise and address each ground of appeal specified in Form 64A.
The written case must be accompanied by a separate document called a list of authorities. This is essentially a list of legislation, case law and other legal sources which support your legal argument.
The list of authorities is separated into three parts:
- Part A: authorities and legislation from which you intend to read;
- Part B: authorities and legislation to which you intend to refer, but from which you do not intend to read; and
- Part C: secondary sources such as textbooks and journal articles which may be of substantial help to support your case.
Draft Leave Application Book Index
You will need to include in the draft index a list of all documents the Judge took into consideration at the hearing which you think are relevant to your grounds of appeal. The Court will ask the respondents for their input on the index before the Registrar finalises it and orders the leave application book to be prepared and filed.
The Registrar's Note on the Preparation of Leave Application Books and Appeal Books gives details on how to prepare your index.
The draft summary is a short account of the background facts, proceedings and issues of the case up until it is filed in the Court of Appeal. The purpose is to help the Court understand what the case is about and what has happened in the court or tribunal below. Please note that the summary is to be written in a unbiased manner. The Court expects the parties to cooperate to produce an agreed summary.
The summary of facts component (Part A in the draft summary) must:
- describe, in chronological order, the facts that form the background to the case and are relevant to the issues for determination;
- briefly describe the nature of the case; and
- identify the parties involved.
The summary of proceedings and issues component (Part B in the draft summary) must:
- briefly state the major issues dealt with, including how they were decided in the court or tribunal below; and
- briefly state the issues to be raised on the application for leave to appeal.
Section 12 of Practice Note SC CA3 explains what the summary must contain and how it is to be presented to the Court.
For more information relating to the appeal process in the Court of Appeal, download a Word or PDF version of the Court of Appeal Self-Help pack below.