Civil process and procedure

Question 1

*Notice to produce

Answer 1

1. FOR INSPECTION: UCPR PT 21, DIV 2
2. TO THE COURT PT 34

PN. FC.Gen Subpoeanas and notice to produce

Personal Injury Cases: Exceptional circumstances required for notice to produce.

For Inspection: reasonable opportunity (usually 14 days – initiating party nominates SC EQ 18)

21.11 Must be direct illusion to document or thing identified in originating process, pleading, affidavit or witness statement.

21.11 Document or thing identified that is relevant to a fact in issue.

Document to court > Issuer then seeks an order that the documents be available for inspection

Set aside notice to produce:
Same grounds as subpoeana - Patonga Beach Holdings

Question 2

*Set aside subpoenas

Answer 2

Set aside in whole or in part

GROUNDS: Common Law
Lack of legitimate purpose: Small
Abuse of process
Fishing: Small
Substitute for discovery:
* To comply have to go through a discovery like process – oppressive- have to make a judgment about what is relevant) court says you can’t make a stranger do this. (small)
* Irrelevant (Waind) – not the document itself but the scope.
Oppressive (Waind)

Potential Grounds:
Confidentiality: harm outweighs probative value (oppressive) court can restrict access.
Privilege (Basis to object UCPR 1.9)

Question 3

*Originating process NSW

Answer 3

1) 6.3 UCPR Statement of claim (factual dispute (i.e I’m entitled to x because x happened)

2) 6.4 Summons and Affidavit
a. No defendant
b. Application for injunction
c. Preliminary discovery UCPR Pt 5

6.5/6.6 If you make a mistake the court assumes you have used the correct one > irregularity that can be overcome.

Uniform Law: Schedule 2, s 2(1) - A law practice (including a barrister) must not act where there are no reasonable prospects of success.

Breach - unsatisfactory professional conduct or professional misconduct (Uniform Law Schedule 2, s 4(1)).

Barrister should be aware of case management obligations when initiating proceedings sc.eq.01

2. Without leave of the court, a party must not take any step in proceedings without having filed a statement of claim or summons or entering an appearance (UCPR r 6.1). (does not apply to circumstances including a plaintiff seeking urgent orders before commencing proceedings under UCPR r 25.2
3. Originating process must:

• contain certain information (UCPR r 4.2, 4.2A and Part 6 Division 4);
• include the court seal, case number/unique identifier, and listing date (if allocated) (UCPR r 6.2(3A));
• comply with format requirements (UCPR r 4.3 (paper and writing), 4.7 (numbers) and 4.7A (land descriptions));
• (if in the Supreme Court) specify the relevant court list (UCPR Part 45);
• if it is a claim for damages, be accompanied by a certificate that the claim has reasonable prospects of success ((Legal Profession Uniform Law Application Act, Schedule 2, s 4(2))); and
• be served on each defendant (UCPR r 6.2(3)) within the applicable timeframe (UCPR r 6.2(4)) and personally (UCPR r 10.20).

Question 4

*Originating process FC

Answer 4

1. A law practice (including a barrister) must not act in legal proceedings where there are no reasonable prospects of success (Legal Profession Uniform Law Application Act, Schedule 2, s 2(1)). Breach of this requirement can be unsatisfactory professional conduct or professional misconduct (Legal Profession Uniform Law Application Act, Schedule 2, s 4(1)).
2. Proceedings are commenced by Originating Application - Form 15 (FCR r 8.01) which must be served personally (FCR r 8.06).
3. In civil proceedings, the applicant must also file a genuine steps statement - Form 16, compliant with section 6 of the Civil Dispute Resolution Act (FCR r 8.02) and not exceed 2 pages (FCR r 8.02(3)).
4. The originating application must state relief claimed and (if applicable) the provision of an Act under which relief is claimed) (FCR r 8.03).
5. The originating application must be accompanied by (FCR r 8.05):

• if the applicant claims damages - a statement of claim; or
• otherwise (e.g. if the dispute concerns substantially questions of law) - a statement of claim or affidavit. If by affidavit, the affidavit must state the material facts necessary to give the respondent fair notice of the case to be made against the respondent at trial.

6. At a directions hearing (set out in the application), the court will review the decision to proceed on pleadings or affidavits and may give directions about the process used (FCR r 5.04).

Question 5

*Motions (NSW) / Interlocutory Applications (FC)

Answer 5

18.1 An interlocutory or other application is to be by motion unless the UCPRs provide otherwise

UCPR 18.2 (2) – File notice of motion served on each person affected.

18.3 – Sets out formalities of the motion (Important)

18.4 3 clear days required between serving and return date

18.5 Personal service required on non-party

overriding principle is - the Court must do whatever the interests of justice require in the particular circumstances of the case - Bajramovic

Note. Despite UCPR r 35.9 and Practice Note SC Gen 4 – Affidavits (affidavits not to be filed in proceedings without the court’s leave), an affidavit in support should be filed and served on the other party/parties before the interlocutory hearing.

Question 6

*When service not possible or not practical within the rules

Answer 6

UCPR 10.14 - orders for substituted service

Only given when reasonable attempts have been made

Applicant files a motion supported by an affidavit that states:

• Statement of knowledge of the person being served
• Any communications with the person since proceedings begun.
• Alternate method of service that will probably bring the attention of the document to the person being served. Porter v Freudenberg

Type of substituted service – short service (waives the 3 days)

Question 7

*Two defendants: one successful, one unsuccessful

Answer 7

Bullock and Sanderson Order

Sanderson: unsuccessful pays successful parties cost directly (plaintiff no involvment)

Bullock: Plaintiff pays successful parties cost but reimbursed those costs by the unsuccessful party (liable if the unsuccessful person can’t pay.

Consider: reasonably to join and what is just (Oshalck)

Question 8

*Security for Costs

Answer 8

UCPR: 42.21 / FCA: S 56 FCR PT 19

courts discretion - including as to the manner, time and terms

Application for the defendant against the plaintiff - proceedings be stayed until the security is given - Plaintiff fails to comply with a security for costs order, the court can dismiss the plaintiff’s proceedings (UCPR r 42.21(3)

a. Individuals: 42.21 UCPR sets out conditions
FC - Unlike NSW - impecuniosity is a relevant ground
b. Corporations 1335 Corporations Act: LOWER THRESHOLD - depfendant proves impecuinosity – onus of the plaintiff to show means.

2. How much:

Not a mathematical assessment – normally based off a percentage of the estimated costs

3. If security not paid the matter is stayed.

Courts must be slow to stifle proceedings because the plaintiff has no means but an otherwise meritorious case.

Corporations can’t argue stiflement if people behind the company have means.

NOTE: 1. application must be accompanied by an affidavit stating certain matters (FCR r 19.01(2) and 19.01(3)).

Unlike NSW, the applicant’s impecuniosity is a relevant ground (FCR r 19.01(3)(d)).

Question 9

*Summary Dismissal

Answer 9

USPR 13.4

Different to judgment: (application by plaintiff)
Dismissal: (application by defendant)

13.4 summary dismissal (brimson)
Vexatious or frivolous
No reasonable cause of action
Proceedings an abuse of court process

CPA S 91 – If dismissed (unless dismissed on merits) can recommence (unless limitation expired)

Question 10

*Summary Judgment

Answer 10

UCPR 13.1 / FCA S31A FCR 26.1

(if you accept everything the defence says will the plaintiff still win?)

FCA 31 A - No reasonable prospect of defence /

General Steel Industries: Untenable defence

IF:
1.There is evidence of the fact
2.Evidence of no defence
3.Defence only to the amount of damages.

Question 11

*Default judgment

Answer 11

Source of court’s power
UCPR 36. 1
SCA s 91 (Judgment)
DCA s 81 (Judgment final)
Rules
UCPR r 16 (Default judgment)

Default judgment is available in claims for non-discretionary relief (commenced by statement of claim, not by summons), e.g. money claims and claims to recover goods or property:

• a debt or liquidated demand with or without interest (in which case the default judgment is a final judgment);
• unliquidated damages (in which case the default judgment is an interlocutory judgment, with damages to be assessed by the court at a hearing at which the plaintiff and defendant may both attend);
• return of goods (in which case the default judgment is an interlocutory judgment); or
• recovery of land (not involving equitable relief) (in which case the default judgment is final as to possession, but interlocutory as to a money claim).

2. A ‘default’ may be if (UCPR r 16.2):

• the defendant fails to file a defence within the required time (within 28 days of being served with a statement of claim);
• the defendant fails to file an affidavit verifying the defence; or
• the court strikes out the defence.

Process

1. To obtain default judgment, the plaintiff must file a special form of notice of motion and (UCPR r 16.3(2)):

• an affidavit of service; and
• an affidavit in support of the application.

2. The affidavit in support must address certain matters, depending on whether the plaintiff’s claim is for:

• possession of land (UCPR r 16.4(3));
• detention of goods (UCPR r 16.5(2));
• debt or liquidated claim (UCPR r 16.6(2)); or
• unliquidated damages (UCPR r 16.7(2)).

3. The plaintiff’s application may be dealt with in the absence of the parties and need not be served on the defendant (UCPR r 16.3(1A)).
4. A default judgment is a final judgment but can be set aside upon the defendant filing a notice of motion (UCPR r 36.16(2)).

Question 12

*Setting aside default judgment

Answer 12

The court’s discretion to set aside default judgment is unfettered.

Usually -

UCPR 36.15 if obtained illegally, irregularly or against good faith

OR

UCPR 36.16 satisfy three factors:
1. Has an arguable case
2. Explanation for default
3. Any delay in bringing the application (to set aside the judgment)

Notice of motion to set aside within 14 days of judgment - court may set aside as if the judgment was never made.

Question 13

*Affidavits - FEDERAL COURT

Answer 13

FCR 29

FCR r 29.02 - requirements for form - and content FCR r 29.03.

Form 59 is the approved form of affidavit.

(FCR r 29.07) A party seeking to use an affidavit which has not been filed, or that has been filed but is irregular in form, must seek leave of the court

A party wishing to use an affidavit must serve it at least 3 days before the occasion for using it (FCR r 29.08).

A party wishing to cross examine the deponent of an affidavit must give notice to the other party. If the deponent fails to attend, the affidavit may not be used (FCR r 29.09).

Question 14

S

*Affidavits - SUPREME COURT

Answer 14

1. UCPR 35 / SC.GEN.04

2 Formal requirements:
* Numbering
* Jurat
* Witnessing / administering oath or affirmation
* Alterations

3. Form 40 is the approved form of affidavit.
4. Unless filed in accordance with the UCPRs, other court rules or an applicable practice note, an affidavit must not be filed except with leave of the court (UCPR r 35.9).
5. Notwithstanding irregularities in an affidavit, the court can grant leave for the affidavit to be used (UCPR r 35.1).
6. Where an affidavit is to be read in court, it must be filed and served on relevant parties within a reasonable time before the hearing, unless the court orders otherwise (UCPR r 10.2).
7. PN SC Gen 4 requires that ‘tender bundles’ (documents to be relied upon at hearing) be delivered to the presiding judicial officer no later than 48 hours before the hearing. This includes all affidavits to be relied upon , whether filed or not.
8. Parties wanting to cross examine a deponent of an affidavit to be read at hearing must serve a notice on the party (for whom the affidavit was made) within a reasonable time before the person is required to attend for cross examination. Unless the deponent is dead or the court orders otherwise, if the deponent then fails to attend court, the affidavit may not be used (UCPR r 35.2).

Question 15

*Mediation and Arbitration

Answer 15

Court may refer without consent
FC arbitration requires consent

Mediation –
Obligation to participate in good faith
Without prejudice privilege
Statutory form of obligation but not subject to 131 Evidence Act and the exceptions.

Question 16

*101(2)(r) Supreme court rules

Answer 16

Leave for appeal:

• clerical mistake, accidental slip or omission
• parties involved have given their consent to the judgment or order
• solely regarding costs, and these costs are within the discretion of the court.
• interlocutory judgment
• interpleader issue decided in a summary way pursuant to the rules,
• summary judgment
• winding up of a corporation

Cheng:

s 101(2)(r) Supreme Court Act - prevents small claims making it to the court of appeal

MONETARY THRESHOLD Proportionality principle > value of matter and cost of proceedings

Cheng appeal denied: Court failed to “identify any principle, question of public importance, or clear injustice beyond something merely arguable.”

Question 17

*Online court processes

Answer 17

SC EQ 14

initiated only by a Judicial Officer or on behalf of a Judicial Officer.

legal practitioner who is a registered user may request

Discretion of a Judicial Office - any or all directions hearings for any case will be conducted via online court.

What may be dealt with in online court

s71 CPA At the discretion of a Judicial Officer, online court may be used for any hearing permitted under s 71

Conduct:

not to be used for communications solely between the representatives of parties.

Language same as in an ordinary courtroom.

Undertakings in online court are binding, contempt rules apply.

Documents cannot be filed in the Court using the online court. must use the Court’s eFiling system. except in urgent matters.

Question 18

*Role of Legal Practioners in Case Management

Answer 18

Advise clients on sections 56 to 61 CPA
Review the case promptly for mediation, reference, use of experts, or concurrent evidence.
Agreement and assistance trial preparation timetable,
Seeking to amend timetables - provide an explanation and propose Consent Orders.
Full trial details required when setting a hearing date.
Direction at Annexure B for maintaining trial estimate accuracy.
Mediation or ADR methods encouraged before setting a hearing date.
Cooperation between parties’ Practitioners in preparing the Court Book for efficiency.

Question 19

*Mareva / Freezing

Answer 19

SC.GEN.14 / FC FREEZING ORDERS
UCPR Part 25 Div 2
FCR Divisions 7.01 and 7.4

1. Purpose: Prevent frustration or abuse of the process of the Court, not to provide security in respect of a judgment or order.
2. Respondent or third party in control of assets (may extend to assets anywhere in the world)
3. Note: value of assets should not exceed claim and exclude dealings with assets needed for legitimate purposes
4. The Court may make ancillary orders - disclosure of assets
5. Commonly granted Ex Parte - duty to make full and frank disclosure of all material facts to the Court
6. UCPR Part 25 Principles:
   * 25.8 Undertakings - including undertaking as to damages (may be required to provide security)
   * A Legal right to protect
   * Strong Prima Facie Case
   * Balance of convenience (samsung electronics v Apple)
   - Risk of Harm
   - Damages Adequate Remedy
   - Order changes the status quo?
7. Applicant to submit affidavit including

(a) information about the judgment that has been obtained, or, if no judgment has been obtained, the following information about the cause of action:
(i) the basis of the claim for substantive relief;
(ii) the amount of the claim; and
(iii) if the application is made without notice to the respondent, the applicant’s knowledge of any possible defence;

(b) the nature and value of the respondent’s assets

(c) the matters referred to in UCPR rule 25.14; and

(d) the identity of any person, other than the respondent, who, the applicant believes, may be affected by the order.

Order to be served should be endorsed with a notice which meets the requirements of UCPR rule 40.7.

Question 20

*Anton Pillar

Answer 20

SC.GEN.13 PN FC SEARCH ORDERS

UCPR 25.19 FCR 7.5

object rules and practice note: - strike a fair balance between the legitimate objects of these drastic orders and the reasonable protection of respondents and third parties.

Ex Parte? BR 27 and 28

Charecteristics:
secrecy,
mandatory form
virtually immediate execution

requirements set out in r 25.20:

strong prima facie case on an accrued cause of action
potential or actual loss or damage to the applicant will be serious
sufficient evidence that

(i) the respondent possesses important evidentiary material; and

(ii) there is a real possibility that the respondent might destroy such material or cause it to be unavailable

the court will balance in the exercise of discretion:
1. strength of the case,
2. the seriousness of the damage,
3. the gravity of the risk of destruction,
4. the potential injury to the defendant.
**Brags Electrics Ltd v Gregory **

Note safeguards if order approved:
r 25.23 mandatoryindependent solicitor(s) to supervise
Other safeguards set out in form SC.GEN.13

Question 21

*Bail Process

Answer 21

SC.CL.11

Process:

S 71 requires a bail application to be dealt with “as soon as reasonably practicable”.

s 75 - process for fresh hearing
Any bail application heard by the court is to be dealt with as a new hearing.

Rules of evidence do not apply

Accused - if represented

Complete and lodge supreme court bail application - including confirmation that the Bail application is ready to be heard

Include propsed address and sureties

Legal representative must complete the form

Serve on prosecutor on the day lodged

Accused - not represented

Applicant to complete part 1 and part 3 of Supreme Court Bail Application

Confirm
they do not wish to obtain legal representation
or
they have:
have exhausted all avenues for representation and been denied
and exhausted all avenues of appeal against any such decision.

Crown -

Complete appropriate section of supreme court bail application
Serve on last know address

Question 22

*Injunction

Answer 22

1. Ex Parte? BR 27 and 28
2. UCPR Part 25 Principles:
   25.8 Undertakings
   A Legal right to protect
   Strong Prima Facie Case
   Balance of convenience (samsung electronics v Apple)
   - Risk of Harm
   - Damages Adequate Remedy
   - Order changes the status quo?
3. Challenges (apply facts)
4. Note: Is order mandatory or prohibitive in maintaining the status quo?

Question 23

*Ex Parte

Answer 23

SC.GEN.14

BR 27 AND 28

Advantages:
* Quick action
* Suprise element
* Preservation of status quo
* Emergency Situations

Disadvantages
* Fairness concerns
* Risk of abuse
* Limited information
* Possibility of setting aside

In Parte: Full hearing - fairness in due process but risk of irreperable harm.

Question 24

*strike out pleadings

Answer 24

MATTER OF FORM RATHER THAN MERITS

Pleadings don’t meet putpose set out in Banque

Embarassing pleading - particulars vague or imprecise - other party cannot have sufficient knowledge of the case that needs to be met. (Clarke)

14.28 UCPR

whole or part of a pleading

Usually order - pleading or particular parts thereof be struck out, not entire proceeding.

Will be unsuccessful if defect can be cured.

Question 25

*Joinders

Answer 25

UCPR under r 14.26 / 14.27

Issue: both parties have presented their arguments, and there’s no further need for discussion or negotiation on those specific points.

Parties: joining a party to proceedings

Joinder of issue may be express or implied.

Express operates as a denial to every allegation not expressly admitted.

Implied joinder occurs when there is no reply or answer to a subsequent pleading, and it also operates as a denial.

If the responding party doesn’t explicitly admit to the damage undertsood they are disputing or challenging those claims

No joinder of issue is allowed on a statement of claim.

Question 26

*Return brief without sufficient notice

Answer 26

53.5 DCA / 7.29 UCPR

Non payment not grounds

Leave is required

Court will give leave if reason provided are ethical reasons without explanation

Question 27

*Subpoena FC

Answer 27

FCR 24

PN. FC.Gen Subpoeanas and notice to produce

• 24.01 Court leave required before a party issues a subpoena: without notice to the other party
• 24.13 Prescribed form of subpoenas
• 24.16 Subpoenas must be served personally
• 24.20 Registrar may permit parties to inspect documents or things produced .
• An implied undertaking prevents subpoenaed material from being used for a collateral or ulterior purpose.

Question 28

*Subpoena (NSW)

Answer 28

UCPR r 33
Practice Notes: SC Gen 18 / SC Gen 19 / DIS.CIV.08

• Must be personally served
• Must include proposed access order
• 7.3 UCPR - Leave required for unrepresented parties.
• Inspection as per proposed access order - failure to do so may result in loss of privilege.

Note:
(1) An implied undertaking prevents subpoenaed material from being used for a collateral or ulterior purpose.
(2) Amendments to subpoena forms require the producing person’s declaration

Question 29

*Expert Evidence

Answer 29

SC.EQ.05
SC.GEN.10 - CIV personal injury or disability claims
SC.GEN.11 - joint conferences
LC.CIV.1 PART E
FC.GEN.EXPERT EVIDENCE

UCPR pt. 31
PART 23 FCR

Guided by principles of case management.

Role of experts:

maintain independence
express disagreements if necessary

1.Except in proceedings for professional negligence, expert evidence may not be adduced at trial unless directions have been sought and the evidence complies with those directions

2. The court may give directions at any time about the use of expert evidence
3. Unless the court orders otherwise, expert evidence must be by tendered report
4. In professional negligence claims expert reports must be filed and served with the statement of claim
5. The court can order the parties to engage a joint expert
6. The court can appoint an expert
7. Expert witnesses must disclose contingency or deferred fees
8. Expert witnesses must agree to be bound by the code of conduct
9. Expert reports must contain certain minimum information (UCPR r 31.27).
10. Expert reports and hospital reports must be served no later than 28 days before a hearing
11. A party must give notice (requiring than an expert be available for cross examination)

Note: Separate rules for service and notice of cross examination apply to District Court and Local Court matters (UCPR r 31.30).

Question 30

Appeals FC

Answer 30

Appeals to the Federal Court from other jurisdictions.

1. (FCA s 24) A party may appeal to the Federal Court’s appellate jurisdiction from certain other jurisdictions.

Review of Federal Court registrar decision

2. Upon application by a party, or of its own motion, the Federal Court may review the exercise of a power by the Registrar, and may make such orders as the court thinks fit (FCA ss 35A(5) and 35A(6)).
3. The review is a rehearing de novo, i.e. the application is renewed as an original application to the judge. The parties may present new evidence at the review.

Appeals against single Federal Court judge decision to Full Federal Court

4. Exercising its appellate jurisdiction, the court can hear appeals against a single Federal Court judge exercising the original jurisdiction (FCA s24(1)(a)). Appeals against single Federal Court judicial decisions (in the original jurisdiction) are heard by the Full Court (s 25(1)).
5. To appeal to the Full Court, the appellant files a notice of appeal - Form 122 (FCR r 36.01).
6. The appellant must also file appeal books in accordance with the requirements in FCR Part 36.5.
7. Each party must file an outline of submissions, chronology, list of authorities and list of legislation (FCR r 36.55).
8. An appeal to the Full Court is a rehearing rather than a strict appeal (FCA s 27).

Question 31

Appeals AGAINST LOCAL COURT

Answer 31

1. A party may appeal:

(a) to the District Court, as of right, a Small Claims Division judgment or order to the District Court, but only on a ground of lack of jurisdiction or denial of procedural fairness (LCA s 39(2));

(b) to the Supreme Court:

• as of right, a Local Court judgment or order to the Supreme Court, but only on a question of law (LCA s 39(1)); and
• with leave of the Supreme Court:
• a judgment or order involving a mix of law and fact (LCA s 40(1));
• an interlocutory judgment or order;
• a consent judgment or order; or
• a costs order.

2. The District Court and Supreme Court can determine an appeal from the Local Court by:

• varying the terms of the judgment or order;
• setting aside the judgment or order;
• setting aside the judgment or order and remitting the matter to the Local Court with directions; or
• dismissing the appeal.

3. The court has a general discretion to stay proceedings at any time, including enforcement (LCA s 64).

Question 32

Appeal against district court

Answer 32

Appeals against District Court

A party may appeal a judge’s or judicial registrar’s judgment or order to the Supreme Court (DCA s 127(1)). 5.

An appeal generally lies as of right (DCA s 127(3)).

Leave of the Supreme Court is required for appeals against (DCA s 127(2)):
· interlocutory judgments or orders;
· costs orders;
· final judgments or
orders involving matters under $100,000; · summary judgment;
and · consent orders.

Appeals against jury verdicts lie as of right, and can be an application for (DCA s 127A):
· setting aside the verdict or judgment;
· a new trial; or
· altering a verdict by increasing or reducing a debt, damages or other money.

Question 33

Stay of proceedings

Answer 33

Stay of proceedings

If the court orders a stay of proceedings during an appeal period, the stay shall continue until the appeal is disposed of or the court or Supreme Court orders otherwise, subject to the appellant (DCA s 128(2)):

• appealing; and
• giving security to the registrar’s satisfaction for a judgment debt (if any) including costs assessed by the registrar.

An appeal otherwise does not stay proceedings (DCA s 128(3)). However, the court has a general discretion to stay proceedings at any time (DCA s 156).

The court has discretion to order a re-trial (DCA s 126):

(a) after judgment:
* if the parties consent;
* upon application by a party on the day of a jury verdict; or
* upon application by a party within 21 days; or

(b) before judgment and verdict, with sufficient cause.

Question 34

Supreme Court Appeal

Answer 34

Supreme Court appeal procedure:

Appeals to the Supreme Court (including applications for leave to appeal) are by summons (UCPR Part 50) which must be filed in the appeal court and in the court below (UCPR r 50.6).

Appeals against Supreme Court

There is a general right of appeal to the Court of Appeal against judgments or orders of the Supreme Court (SCA s 101(1)).

Leave of the Court of Appeal is required for certain judgments or orders, including (SCA s 101(2)):

• interlocutory judgments or orders;
• costs orders;
• final judgments or orders involving matters under $100,000;
• summary judgment; and
• consent orders.

Appeals against jury verdicts are to the Court of Appeal (no leave required) (SCA s 102).

Question 35

Court of Appeal - Procedure

Answer 35

• The appellant party must file and serve a notice of intention to appeal within 28 days of the judgment (UCPR r 51.8) and a notice of appeal within 3 months of the judgment (UCPR r 51.9).

The notice of appeal must identify the particular errors of law or fact, any material findings which the court below should or shouldn’t have made, and any material facts that the court below should or shouldn’t have found (PN SC CA 1 Court of Appeal).

If leave is required, the appellant must file and serve a summons seeking leave to appeal (UCPR r 51.10) and a White Folder containing prescribed supporting material including a draft notice of appeal (UCPR r 51.12).

The respondent opposing an application for leave to appeal must file a response within 28 days after the White Folder (UCPR r 51.13).

• In all Court of Appeal matters:
• the appellant must file and serve appeal books (Red Book, Black Book, Blue Book and Orange Book) containing the required materials (UCPR r 51.27 - 51.30) within specified timeframes (UCPR r 51.32);
• the appellant must file and serve a chronology (UCPR r 51.34(1)(b)), 51.35, 51.37 and 51.38); and
• both parties must file and serve written submissions (UCPR r 51.34(1)(a)), 51.36, 51.37 and 51.38).

Appeals to the Court of Appeal do not lie against judgments and orders of an associate judge, registrar or other officer (SCA s 104). These are dealt with under the rules under which:

Registrar decisions or orders can be reviewed (not an appeal) by a single judge of the Supreme Court (UCPR r 49.19) by notice of motion (UCPR r 49.20). As this is a review and not an appeal, there is no need to demonstrate error, the review is a hearing de novo, and new material can be introduced.

Associate judge decisions can be appealed as of right to a single judge of the Supreme Court (UCPR r 49.4) by notice of motion (UCPR r 49.8(1)). Th