Appealing a judge's decision

Appeals in proceedings in Classes 1, 2, 3 and 8 (in which the decision-maker was a Judge)

A party to proceedings in Classes 1, 2, 3 or 8 of the Court’s jurisdiction may appeal against an order or decision of a Judge of the Court on a question of law to the NSW Court of Appeal ( s 57(1) of the Land and Environment Court Act).  If the order or decision of the Judge is an interlocutory order or decision, the party needs the leave of the Court of Appeal ( s 57(4) of the Land and Environment Court Act).

A party may file a notice of intention to appeal or a notice of appeal. The form for a notice of intention to appeal is a notice of intention to appeal ( Form 103 (version 2)). The form for appeal is a notice of appeal ( Form 105 (version 3)). The form for seeking leave to appeal is a summons seeking leave to appeal ( Form 104 (version 3) ).

The notice of intention to appeal is to be filed in the Registry of the Court of Appeal within 28 days after the date on which the Court gave judgment ( Pt 51 r 51.8 of the Uniform Civil Procedure Rules). If a notice of intention to appeal has been filed, the notice of appeal or summons seeking leave to appeal is to be filed in the registry of the Court of Appeal within 3 months after the date on which the Court gave judgment but if a notice of intention to appeal was not filed, the notice of appeal or summons seeking leave to appeal is to be filed within 28 days after the date on which the Court gave judgment ( Pt 51 r 51.9, Pt 51 r 51.10 and Pt 51 r 51.16 of the Uniform Civil Procedure Rules).

Appeals in proceedings in Class 4

A party to proceedings in Class 4 of the Court’s jurisdiction may appeal against an order or decision of a Judge of the Court to the Court of Appeal ( s 58(1) of the Land and Environment Court Act).  A party needs the leave of the Court of Appeal to appeal against an interlocutory order or decision ( s 58(3) of the Land and Environment Court Act).

A party may file a notice of intention to appeal or a notice of appeal.  The form for a notice of intention to appeal is a notice of intention to appeal (Form 103 (version 2)). The form for appeal is a notice of appeal (Form 105 (version 3)). The form for seeking leave to appeal is a summons seeking leave to appeal (Form 104 (version 3)).

The notice of intention to appeal is to be filed in the registry of the Court of Appeal within 28 days after the date on which the Court gave judgment ( Pt 51 r 51.8 of the Uniform Civil Procedure Rules). If a notice of intention to appeal has been filed, the notice of appeal or summons seeking leave to appeal is to be filed in the registry of the Court of Appeal within 3 months after the date on which the Court gave judgment but if a notice of intention to appeal was not filed, the notice of appeal or summons seeking leave to appeal is to be filed within 28 days after the date on which the Court gave judgment ( Pt 51 r 51.9, Pt 51 r 51.10 and Pt 51 r 51.16 of the Uniform Civil Procedure Rules).

There is a filing fee to file the relevant appeal process in the Court of Appeal, see Current Fee Schedule on the website of the Supreme Court of NSW.

Appeals in proceedings in Class 5

A party in criminal proceedings in Class 5 of the Court’s jurisdiction who is convicted of an offence, against whom an order to pay any costs is made or whose application for an order for costs is dismissed, or in whose favour an order for costs is made, may appeal to the Court of Criminal Appeal against the conviction (including any sentence imposed) or order ( s 5AB of the Criminal Appeal Act 1912).  An appeal against an order for costs in favour of the person may only be made with the leave of the Court of Criminal Appeal ( s 5AA(1A) of Criminal Appeal Act).

In addition, any time before the completion of Class 5 criminal proceedings in the Court, the judge hearing the proceedings may or if requested by the Crown must, submit any question of law arising at or in reference to the proceedings to the Court of Criminal Appeal for determination ( s 5AE of the Criminal Appeal Act).

The method and time for making an appeal is stated in s 10 of the Criminal Appeal Act. A person who intends to appeal is to send to the registrar of the Court of Criminal Appeal a notice of intention to appeal ( Form IVA (DOC , 38.5 KB) made under cl 2 of the Criminal Appeal Rules). A person who seeks to appeal is to send to the registrar of the Court of Criminal Appeal a notice of appeal ( Form IV made under cl 2 of the Criminal Appeal Rules) (see cl 23 and cl 23A of the Criminal Appeal Rules).

Appeals in proceedings in Classes 6 and 7

Appeals against a decision or order of the Court in proceedings in Classes 6 and 7 of the Court’s jurisdiction are to be made by requesting the Judge hearing and determining the proceedings to submit a question of law to the NSW Court of Criminal Appeal for determination ( s 5BA(1) of the Criminal Appeal Act).

The applicant in the Class 6 or 7 proceedings may request the Court to submit a question of law to the Court of Criminal Appeal for determination even though the proceedings during which the question arose have been disposed of. The question of law is to be submitted no later than 28 days after the end of the Class 6 or 7 proceedings, or within such longer time as the Court of Criminal Appeal may allow ( s 5BA(1) of the Criminal Appeal Act).