If you are considering representing yourself because you are unhappy with a decision made by a court or tribunal, we can help you with general guidance around the process of appealing.
Appealing a decision of a court or tribunal can be very costly and time consuming. Usually, the party who loses will be made to pay the other side's legal costs.
The first thing to consider is how likely you are to succeed if you begin an appeal. Do you have a clear understanding of where you feel the decision-maker went wrong from a legal perspective? This is very important as it will form the grounds of your appeal. It is also important to understand the rules and legislation that guide the appeal process.
Which decisions can be appealed?
The Supreme Court Trial Division can hear appeals of decisions made by members of the Victorian Civil and Administrative Tribunal (VCAT), civil decisions of the Magistrates' Court, some decisions of the Children's Court of Victoria and some matters from the Coroners Court of Victoria.
The Court of Appeal, a division of the Supreme Court, can hear appeals of decisions made by judges sitting at VCAT, civil and criminal decisions of the County Court, and decisions of judges sitting in the Supreme Court.
The Supreme Court also supervises the operation of other courts and tribunals in Victoria, through a process called 'judicial review'. In a judicial review appeal the Court considers whether the person deciding the case followed the applicable law ' not whether the decision that was made was right or wrong. If the Court decides the decision-maker did not follow the law, the matter is usually sent back to the original court or tribunal to be decided again.
Appealing a VCAT decision
Two types of decisions made by VCAT can be appealed to the Supreme Court:
- decisions (also known as 'orders') made by a member or the Deputy President of VCAT. These are appealed to the Supreme Court's Trial Division.
- decisions made by the President or Vice President of VCAT (who are both judges). These are appealed to the Supreme Court's Court of Appeal.
There are several steps involved in appealing a decision and the steps differ depending on who the original decision was made by.
Before you can appeal a decision made by VCAT you must seek 'leave' (that is, permission) from either the Trial Division or Court of Appeal to hear your appeal.
After a decision is made at VCAT, you have 28 days within which to appeal it. The 28 days start on the date the decision is made, unless the decision-maker did not provide written reasons at the time of making the order. If the 28 days have already passed, you will need to seek leave from the Court to extend the time before you can proceed any further
1. Appealing a VCAT decision to the Trial Division
To start an appeal against an order made by a member of VCAT, you must file an Originating Motion Form 5C.
Within seven days of filing the originating motion form, you must file a Summons Form 45A. The summons form must request 'leave' (permission) to appeal, and an extension of time to do so if necessary.
An affidavit in support of the application must be submitted with the summons. You can read further information on what makes a document an 'affidavit' below.
2. Appealing a VCAT decision to the Court of Appeal
To start an appeal against a decision made by the President or Vice President of VCAT, please refer to the Court of Appeal - Self-represented Litigants Self-help Information pack (link below).
Appealing a Magistrates' Court decision
Appeals from the Magistrates' Court are governed by section 109 of the Magistrates' Court Act 1989.
Only final orders made in civil matters in the Magistrates' Court can be appealed to the Supreme Court.
An 'interlocutory' (non-final) order cannot be appealed, although 'judicial review' may be available.
When can I appeal?
You have 30 days to appeal from an eligible decision made in the Magistrates' Court. The 30 days are measured from the date of the decision.
If the 30 day time limit has already passed before you begin your appeal, you will need 'leave' (permission) from the Court that will be hearing your appeal before you can proceed any further.
To commence an appeal against a decision of the Magistrates' Court, you must file a notice of appeal. The notice must be served on the Registrar of the Magistrates' Court and all parties who were affected by the order against which you are appealing, as soon as possible.
Within seven days of filing the notice you will need to file an 'affidavit'. You can read further information on what makes a document an 'affidavit' below.
More information about appealing a civil decision from the Magistrates' Court, and the relevant rules and forms that apply, can be obtained in the following information packs:
Appealing an associate judge's decision
Appeals from a decision of an associate justice are usually heard by a judge in the Trial Division of the Supreme Court, but in some circumstances they will be heard by the Court of Appeal.
When can I appeal?
You have 14 days from the date the order is made, within which to appeal the decision of an associate judge of the Supreme Court
To appeal a decision of an associate judge of the Supreme Court you must serve a notice of appeal on all parties. You must file the notice of appeal with the Supreme Court, within seven days of serving it on all parties. A list of the names of all the people who have been served the notice should accompany the notice, as well as information about how and when it was done. This must be signed by you or a legal practitioner.
The Supreme Court then sets a date for hearing the appeal. Once the date is decided, you have seven days within which to serve a new copy of the notice of appeal, including the hearing date, on all of the parties.
Within seven days of filing the notice, you must also file an 'appeal book' with the Court. Appeal books and how they are to be prepared and presented is outlined in Practice Note SC GEN 8 Appeals from Associate Judges.
More information about appealing a decision of an associate judge of the Supreme Court, and the relevant rules and forms that apply, can be obtained in the following information packs:
In a judicial review, the Supreme Court doesn't consider whether the decision made was right or wrong, but rather whether the person deciding the case obeyed the law. If the Court rules that the decision-maker did not follow the law, the matter is usually sent back to the original court or tribunal to be decided again.
Judicial review is an important safeguard in the administration of justice, ensuring our courts are correctly and fairly following the law. It is also a complicated and specialised area of law. People considering a judicial review application in the Supreme Court should seek professional advice.
An application for a judicial review of a decision of a lower court, tribunal or authority must be filed at the Supreme Court within 60 days of the date of the order or decision being made. To do so, the applicant must file an Originating Motion in Form 5G and Affidavit in Support.
More information about judicial review, including the rules and forms that apply, can be obtained in the following information packs
Appealing a civil decision to the Court of Appeal
The Court of Appeal may hear an appeal against civil judgments made by the Supreme and County Court. The Court may also hear appeals against civil judgments made by the President or Vice President of the Victorian Civil and Administrative Tribunal (VCAT) (External link) ,
New civil appeal rules commenced in November 2014. Nearly all matters now require leave to appeal, whether from a final or interlocutory order. Among the very few cases that have a direct right of appeal are:
- Appeals against a refusal to grant habeas corpus; and
- Appeals under the Serious Sex Offenders (Detention and Supervision) Act 2009
Time requirements for leave to appeal
All applications for leave to appeal must be filed within 28 days of the date of judgment.
For more information about civil appeals to the Court of Appeal, refer to the Court of Appeal Self-represented Litigants information pack.
Appealing a criminal decision to the Court of Appeal
If you have been found guilty of an offence before a jury in the County Court or Supreme Court, you may appeal the conviction and/or the sentence in the Court of Appeal. There is no right to appeal if the matter has already been appealed from the Magistrates' Court to the County Court, unless the County Court imposed a custodial (jail) sentence where the Magistrates' Court had not.
With the exception of appeals filed by the Director of Public Prosecutions, criminal matters are initially referred to as 'applications' that require 'leave to appeal' (permission) before the actual appeal will be heard. Applications are usually heard by a single judge of appeal. If leave is granted, your matter will go to a full appeal hearing and be heard by two or three judges of appeal.
For further information about criminal appeals to the Court of Appeal, including the documents you will need to file with the Court, see Practice Note SC CA 1 Criminal Appeals.
When can I appeal?
There is 28 days from the date of the sentence within which you can seek leave from the Court to appeal. Outside of this timeframe, you will need to include an 'Application for Extension of Time to File Notice to Appeal ' Form 6-2H', which will be considered by the Judicial Registrar before your appeal can proceed. See section 8 of Practice Note SC CA 1 Criminal Appeals.