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Court of Appeal - New Rules from 1 January 2008


Date:
12/31/2007


    COURT OF APPEAL

    NEW RULES AS FROM 1 JANUARY 2008




    On and from 1 January 2008 a new Part 51 of the Uniform Civil Procedure Rules 2005 will take effect and apply to all Court of Appeal proceedings.

    The Supreme Court Rules have been amended to provide that as of 1 January 2008 the existing Part 51 is repealed and thereafter will no longer be applicable. From 1 January 2008, the applicable Parts of the Uniform Civil Procedure Rules cover all provisions relating to practice and procedure in the Court of Appeal.


    On and from 1 January 2008 a new Part 51 of the Uniform Civil Procedure Rules 2005 will have effect, and will apply to all proceedings in the Court of Appeal.

    The effect of the change is that all provisions relating to practice and procedure in the Court of Appeal are to be covered by all applicable Parts of the Uniform Civil Procedure Rules.

    The consolidated Rules may be accessed on the website of the Parliamentary Counsel’s Office at www.legislation.nsw.gov.au under the section “Regulations etc in force".

    Although the new Rules largely encapsulate the previous requirements, there are several important changes which are highlighted below. Please click on each heading for more detail. –

    New Forms
    Change to Description of some Parties
    Time for filing Notice of Contention now 28 days
    Notice of Motion to be supported by Affidavit
    New Fees
    Practice Note


    New Forms

    Six new forms have been approved for use in the Court of Appeal, and may be found on the UCPR website at www.lawlink.nsw.gov.au/ucpr at forms 101-106.

    To enable a smooth transition to use of the new forms, appropriate documents prepared in accordance with the old approved forms will continue to be accepted until 30 April 2008.


    “Notice of Intention to Appeal” replaces the former “Holding Summons for Leave to Appeal” and “Notice of Appeal Without Appointment”

    A party who intends to file an appeal or a summons seeking leave to appeal may, within 28 days of the material date (usually the date of judgment in the court below), file a notice of intention to appeal (form 103). The filing of this notice will then enable the filing of a notice of appeal (form 105) or summons seeking leave to appeal (form 104) within 3 months of the material date.

    Holding summonses for leave to appeal and notices of appeal without appointment will no longer be accepted for filing after 1 January 2008.

    The filing of a notice of intention to appeal does not operate to commence proceedings (as did the holding summons and notice of appeal without appointment). Although a filing fee ($225 individual, $450 corporate) will be payable, no registration number will be allocated. A record of the filings will be maintained on a separate Court of Appeal registry database.

    It should also be noted that a notice of intention to appeal may not be filed where there are statutory limits for the bringing of an appeal (such as under the Government and Related Employees Appeal Tribunal Act 1980).

    Note also that, when a notice of intention to appeal is filed, the overall time for filing either a notice of appeal (form 105) or summons seeking leave to appeal (form 104) is extended to only 3 months from the material date (and not 3 months from the date of filing of the holding summons or notice of appeal without appointment under the old rules).


    Change to Description of some Parties
    A party commencing proceedings in the Court of Appeal by way of summons (whether a summons seeking leave to appeal or a summons seeking orders pursuant to s.69 of the Supreme Court Act 1970) will be referred to as an applicant (rather than a claimant as in the past), while the opposing party will be called a respondent (and not an opponent). Similarly, the moving party for orders by way of notice of motion will become an applicant and the opposing party a respondent.


    Time for filing Notice of Contention now 28 days
    A respondent who wishes to contend that the decision below should be affirmed on grounds other than those relied on by the court below, but does not seek to file a cross-appeal, will be required to file and serve a notice of contention (form 106) within 28 days after service of the notice of appeal. The old rules required a notice of contention to be filed within 14 days after service of the notice of appeal.


    Notice of Motion to be supported by Affidavit

    A new rule (51.61) requires an affidavit to be filed in support of, and in opposition to, a notice of motion. This rule overcomes the restriction which otherwise operates pursuant to rule 35.9 of the Uniform Civil Procedure Rules.


    New Fees

    The Civil Procedure Regulation 2005 was amended (see Government Gazette No 185 of 21 December 2007, pages 9832-4) as follows:

    Schedule 1 Court fees

    Omit items 5-9 from Part 1 (Supreme Court)

    Insert instead in Columns 1, 2 and 3, respectively:


    5Filing in the Court of Appeal a notice of intention to appeal

    $225
    $450
    6Filing in the Court of Appeal a summons seeking leave to appeal or a cross-summons seeking leave to cross-appeal in respect of a matter where a notice of intention to appeal has been filed

    $536
    $1,072
    7Filing in the Court of Appeal a notice of appeal:

    (a) in proceedings in which leave to appeal has been granted





    $1,600




    $3,200
    (b) in proceedings in which a notice of intention to appeal has been filed

    $2,136
    $4,272
    (c) in any other proceedings

    $2,361
    $4,722
    8Filing in the Court of Appeal any other originating process
    $761
    $1,522


    Practice Note

    It is expected that a practice note will issue in February 2008.




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