Resources: Common Procedural and Preliminary Issues

This page provides links to judgments addressing common procedural and preliminary issues arising in Court of Appeal proceedings. These resources are a starting point only, and do not provide a definitive list of issues or authorities.

UCPR rr 51.10 – 51.15; Supreme Court Act 1970 (NSW) s 101

General principles

Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170; (1981) HCA 39 (no rigid rules of practice or exhaustive criteria governing the grant of leave to appeal)

PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 (applicant seeking leave to appeal from an order that they pay security for costs)

Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 (where matter is set down for separate hearing of the leave application, it is the responsibility of counsel to ensure critical issues are properly raised in the summary of argument and relevant material is before the Court)

Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69 (applicant must demonstrate more than that the trial judge was arguably wrong)

Collier v Lancer (No 2) [2013] NSWCA 186 (leave sought to appeal summary dismissal of proceedings; not granted where no substantial issue of principle, applicant was seeking to re-litigate issues determined in other proceedings)

Jaycar v Pty Ltd v Lombardo [2011] NSWCA 284 (leave to appeal on liability refused where small sum involved, no question of principle, no issue of general public interest, dispute had already consumed significant time and cost)

La La Land Byron Bay Pty Limited v The Independent Liquor and Gaming Authority [2015] NSWCA 254 (reasons required on refusal of leave are conventionally short, directed to why, having regard to the principles, the case is not an appropriate matter for the grant of leave; not required to give reasons as would be appropriate for full appellate determination)

Lee v New South Wales Crime Commission [2012] NSWCA 262 (leave for appeal granted where it was clear that the trial judge was incorrect and the applicants had suffered injustice)

Appeals from an interlocutory judgment or order

Supreme Court Act 1970 (NSW) s 101(2)(e), s 101(2)(l)

Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (No 2) (1990) 21 NSWLR 200 (whether an order is characterised as “final” or “interlocutory” depends on the legal, not practical, effect of the order; an order is final where the legal effect of the order finally disposes of the rights of the parties)

Rushby v Roberts (1983) 1 NSWLR 350 (orders made “until further notice”)

Equuscorp Pty Ltd v Haxton [2012] HCA 7 (judgment determining liability and leaving damages unresolved)

AB v State of New South Wales [2014] NSWCA 243 (order for summary dismissal)

Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 (order for summary dismissal)

Leave where a small sum is in issue

Supreme Court Act 1970 (NSW) s 101(2)(r); UCPR r 51.22

Gibson v Drumm [2016] NSWCA 206 (leave may be refused where a small amount is in issue, having regard to the appropriate allocation of court resources, disproportionate costs to the parties, case management principles)

Kassem v Colonial Mutual General Insurance Co Ltd [2001] NSWCA 38 (need ordinarily to conserve court time in small claims to matters involving issues of principle, questions of general public importance, or a reasonably clear injustice)

Gillard v Hunter Wire Products Pty Ltd (t/as Hunter Screen Products) (No 2) [2001] NSWCA 450 (the realistic value of the matter in contest in the appeal must exceed $100,000 pursuant to Supreme Court Act 1970 (NSW) s 101(2)(r)(i), otherwise leave to appeal is required)

Pawlowska v Zajglic [2011] NSWCA 118 (not realistic that appellant would improve their entitlement by at least $100,000 therefore leave was required; notice of appeal filed purportedly as of right struck out as incompetent)

Boulos v Martin (No 3) [2012] NSWCA 162 (the fact that an appeal document is accepted for filing in the Registry does not substantiate the existence of an appeal as of right; onus on applicant under UCPR r 51.22 to file affidavit demonstrating that leave is not required, which was not done here)

Felons (Civil Proceedings) Act 1981 (NSW)

Application of PFC [2016] NSWCA 102 (leave to appeal required as applicant in custody for serious indictable offences; not granted where proposed appeal had no prospects of success)

UCPR rr 51.6-51.10

Rumble v Liverpool Plains Shire Council [2015] NSWCA 125 (notice of intention to appeal does not commence proceedings)

Amendments to Notices of Appeal

CPA s 64; UCPR rr 19, 51.23

AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 (general principles relating to leave to amend)

Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 (where amendment seeks to raise issue not advanced at trial)

Free Serbian Orthodox Church Diocese for Australia and New Zealand Property Trust v Bishop Irinej Dobrijevic [2017] NSWCA 28 (amendments in the course of an appeal; application to amend notice of appeal refused in circumstances where egregious unexplained delay in seeking leave to amend; sought to raise arguments not advanced at trial, unclear from proposed amendment which issues were truly in contest)

McCrohon v Harith [2010] NSWCA 67 (notices of cross-appeal; leave to amend required once appeal listed for hearing; leave refused as to grant leave would not facilitate the just, quick and cheap resolution of the real issues in the proceedings)

Striking Out Notices of Appeal

UCPR rr 14.28; 51.41

Nobarani v Mariconte [2016] NSWCA 214 (where notice of appeal is deficient, the Court may dismiss the appeal or take a lesser course and strike out the notice of appeal)

Pawlowska v Zajglic [2011] NSWCA 118 (notice of appeal struck out on the basis of incompetency; effect of strike out on cost orders)

Kingsman v Health Administration Corporation [2000] NSWCA 163 (inherent power to strike out notice of appeal as an abuse of process)

UCPR r 51.44

Pending appeal to the Court of Appeal

Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 (court has original jurisdiction to determine stay of execution on judgment pending appeal; not necessary to demonstrate special or exceptional circumstances)

Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383 (general principles relevant to exercise of discretion; appellant must show that appeal raises serious issues to be determined, and real risk of prejudice or damage if a stay is not damaged, which will not be redressed by a successful appeal; if these pre-conditions satisfied then Court will consider balance of convenience)

Port Macquarie-Hastings Council v Diveva Pty Limited t/as Mid Coast Road Services [2017] NSWCA 4 (general principles relevant to exercise of discretion; stay granted in circumstances where some risk judgment sum may not be able to be repaid; contested evidence at trial as to financial position of respondent)

TCN Channel 9 Pty Ltd v Antoniadis (No 2) (1999) 48 NSWLR 381; [1999] NSWCA 104 (court regularly stays execution on judgments pending appeal where risk plaintiff will be unable to repay the money without difficulty or delay if appeal were to succeed)

Woolworths Ltd v Strong (No 2) (2011) 80 NSWLR 445; [2011] NSWCA 72 (restitution orders sought against plaintiff for judgment debts already paid, after successful appeal by defendant; where trial judge had not followed usual practice of staying execution of judgment pending appeal where risk plaintiff would be unable to repay)

Pending appeal to the High Court

Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681; [1986] HCA 84 (intermediate appellate court may deal with application for stay pending application for special leave to appeal to the High Court)

Rinehart v Welker (2012) 83 NSWLR 347; [2012] NSWCA 1 (“extraordinary” nature of stay power, to be exercised in exceptional circumstances; courts should not approach exercise of power as an interim decision to facilitate special leave applications; stay applicant’s prospects of success are a material, often determinative factor)

UCPR rr 42.21; 51.50

Wollongong City Council v Legal Business Centre Pty Ltd [2012] NSWCA 245 (general security for costs orders: factors governing the exercise of discretion)

Ballard v Brookfield Australia Investments Ltd [2012] NSWCA 434 (“special circumstances” required before order for security for costs of an appeal made under r 51.50; factors relevant to exercise of discretion; security granted on a staged basis in circumstances where appellant seeking to raise almost all the same factual and legal issues as were raised at trial)

Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247 (no basis for interfering with registrar’s order requiring appellant to provide security for costs on appeal)

Charara v Integrex Pty Ltd [2010] NSWCA 342 (general security for costs provision under r 42.21 and the court’s inherent jurisdiction apply to applications for security in leave to appeal proceedings)

Supreme Court Act 1970 (NSW) s 46

Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 (power to strike out an incompetent appeal)

AB v State of New South Wales [2014] NSWCA 243 (power to dismiss an incompetent appeal)

Kelly v Mosman Municipal Council [2010] NSWCA 370 (extension of time to seek leave to appeal)

Shafron v Australian Securities and Investment Commission [2012] NSWCA 255 (consent orders)

Cai v Zheng (No 2) [2009] NSWCA 317 (restitution orders)

Supreme Court Act 1970 (NSW) s 121(3); UCPR r 49.19

Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 (general principles)

– the fact that a registrar is exercising the powers of a judge of appeal does not make them a judge of appeal for the purposes of the Supreme Court Act 1970 (NSW) s 46(4))

– review does not require demonstration of error and is not restricted to reconsideration of material before the primary decision maker

– court is more likely to intervene in relation to a decision which finally determines a party’s rights, or where fresh evidence, changed circumstances, or error in decision under review is demonstrated

DJ Singh v DH Singh and Others [2017] NSWCA 234 (general principles; not in the interests of justice to set aside or vary order made by the registrar not to refer applicant’s notice of motion to a judge on that day)

Supreme Court Act 1970 (NSW) s 46(4)

Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 (general principles; suppression order set aside; where decision to make order was not discretionary)

– application for review is not an appeal

– “heavy burden” must be satisfied to set aside the order of a single Judge under s 46(4)

– must demonstrate judge erred in principle or decision plainly wrong

Collier v Lancer [2013] NSWCA 185 (review application dismissed as no error in principle demonstrated)

Zepinic v Chateau Constructions (Aust) Ltd (2014) 85 NSWLR 289; [2014] NSWCA 27 (person not affected by judgment or order cannot apply for review)

Fokas v Mansfield (No 3) [2017] NSWCA 315 (single judge had jurisdiction to make order dismissing applicant’s amended notice of appeal and notice of motion: review application dismissed)