Appealing a Commissioner's decision - How to start an appeal

1. Find the right form

The appeal is to be commenced by a summons (Form 84 (version 6 (DOC, 90.0 KB))).

2. Include the right information

The summons commencing the appeal is to contain a statement:

• whether the appeal relates to the whole or part only, and what part, of the decision of the commissioner
• what decision the applicant seeks in place of the decision of the commissioner
• setting out briefly but specifically the grounds relied on in support of the appeal including, in particular, any grounds on which the applicant contends that there is an error of law in the decision of the commissioner ( Pt 50 r 50.4 of the Uniform Civil Procedure Rules).  

If the appeal is to be made after the 28 -day period for appeal, the applicant is to include an application for an extension of time in the summons commencing the appeal. 

3. Join the parties

The summons is to join as respondents to the appeal each person who is directly affected by the relief sought in the appeal or who is interested in maintaining the decision of the commissioner under appeal ( Pt 50 r 50.5 of the Uniform Civil Procedure Rules).   The commissioner whose decision is under appeal is not to be joined as a respondent.

4. Check the fee

There is a court filing fee that has to be paid to the Court to commence the appeal. The amount of the filing fee depends on whether the person appealing is a natural person or a corporation. The range of filing fees is specified in the Schedule of Court fees.

5. File the appeal

The applicant commences the appeal by filing the required number of copies of the summons and paying the filing fee, at the Court’s registry on Level 4, 225 Macquarie Street, Sydney or by posting the required number of copies of the summons and payment of the filing fee to the Court at GPO Box 3565, Sydney, NSW, 2001.  The required number of copies is three copies of the summons if there if one respondent and an additional copy of the summons for each additional respondent.

In addition, all Local Courts throughout New South Wales act as agents for the Land and Environment Court.  The summons can be filed and the filing fee paid at any Local Court registry.  The Local Court registry staff will give a receipt for the payment of the filing fee and will forward the papers to the Land and Environment Court for processing.

The Court will process the summons at the Court’s registry. The summons will be recorded in the Court’s record system and stamped as having been filed with the Court.   The date, time and place of the first directions hearing before the Court will be set and written by the Court staff on each copy of the summons.The first directions hearing will usually be 5 weeks after the date of filing of the summons.

The Court registry will keep one copy of the summons for the Court file and return the other copies of the summons to the applicant. One of the returned copies is for the applicant to keep and the other copies are to be served on each respondent to the proceedings. 

6. Serve the summons

A stamped copy of the summons needs to be served on each respondent to the proceedings, within 7 days of filing. The Court has prepared a guide for the service of documents for self-represented litigants (PDF, 83.9 KB). The guide explains what is meant by service of documents and how this is to be undertaken.

7. Respondent files notice of appearance

After the applicant serves the summons, each respondent needs to acknowledge service and register its desire to take part in the proceedings.  This is known as filing a notice of appearance. (DOC, 50.0 KB) Each respondent needs to complete and file with the Court, and serve on the applicant, a notice of appearance.

8. Filing a cross-appeal

If a respondent to an appeal wishes to appeal from the whole or part of a decision of a commissioner, the respondent is to file a cross-summons. The respondent is to file the cross-summons within 28 days after the service of the summons commencing the appeal on the respondent or such further time as the Court may allow.   An application for an extension of time to cross-appeal is to form part of the cross-summons (see Pt 50 r 50.10 of the Uniform Civil Procedure Rules).  The cross-summons is the same as the summons commencing the appeal ( Form 84 (version 3)  (DOC, 74.5 KB)).  The cross-summons commencing the cross-appeal is to be filed with the Court’s registry.

9. Filing a notice of contention

If the respondent wishes to contend that the decision of the commissioner should be affirmed on grounds other than those relied on by the commissioner below, but does not seek a discharge or variation of any part of that decision, the respondent is to file a notice of contention ( Form 83 (version 1) (DOC, 43.5 KB) ).  The notice of contention is to be filed within 14 days after service of the summons commencing the appeal or such further time as the Court may allow ( Pt 50 r 50.11 of the Uniform Civil Procedure Rules).   The notice of contention is to be filed with the Court registry.