1️⃣ If a Notice of Intention to Appeal is to be filed with the Court of Appeal, it must be done so within 28 days after the material date: Uniform Civil Procedure Rules 2005 (NSW) r 51.8 (‘UCPR’); Supreme Court Act 1970 (NSW) s48(1)(a)(iv).
2️⃣ The material date in this case is the date of judgment, or determination of the decision being appealed.
3️⃣ The effect of filing a Notice of Intention to Appeal is to start the clock of 3 months within which a Notice of Appeal is to be filed: UCPR rr 51.6, 51.9(1)(a).
4️⃣ The reason for such an effect is that if a Notice of Intention to Appeal is not filed, the Notice of Appeal itself must be filed within 28 days of the material date: UCPR r 51.16(1)(c).
5️⃣ Failure to lodge a Notice of Intention to Appeal within the 28-day limitation requires two main steps to be taken:
➲ The Notice of Appeal to be submitted; and
➲ An extension of time to be sought within that notice.
6️⃣ For the request for an extension of time, details regarding the following matters must be proffered:
➲ Explanation for the delay;
➲ No prejudice was suffered by the respondent due to the delay;
➲ The application has a real prospect of success;
➲ That the relief sought is within the Court’s jurisdiction;
➲ A compartmentalised outline of the issues/grounds of appeal to be raised.
7️⃣ Failure to satisfy the criteria set out in paragraph 6️⃣ above, which involves explaining away the delay and filing an arguable case, will result in a refusal by the Court to grant an extension of time, and accordingly, an unsuccessful appeal: Fisher v Roads and Maritime Services  NSWCA 295, -, , -.
8️⃣ At the same time or before filing of the Notice of Appeal, a Summons Seeking Leave to Appeal, if leave to appeal is required (Legal advice is strongly recommended on this point) must be filed and served on each necessary party: UCPR rr 51.9, 51.10.
9️⃣ A copy of the Notice of Intention to Appeal +/or Notice of Appeal + Summons Seeking Leave to Appeal (if applicable) must also be filed in the Court registry of the Court below or or a copy lodged with the officer of the Court below: UCPR r 51.42.
🔟 If a Summons Seeking Leave to Appeal needs to be filed, it can include the request for an extension of time (if applicable): UCPR r 51.10(3).
The filing and service of a Notice of Intention to Appeal is not an originating process and does not operate to commence proceedings in the Court of Appeal: UCPR r 51.9 (3).
The above overview of the NSW Court of Appeal procedure was prepared by Shakvaan Wijetunga | Virtual Intern, Blue Ocean Law Group℠.
This FAQ is intended for general interest + information only.
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