Appeals in the Queensland Court of Appeal - how to respond to an appeal

Appeals in the Queensland Court of Appeal - how to respond to an appeal

The Court of Appeal is a division of the Queensland Supreme Court that only hears appeals. This factsheet is designed to give you information about responding to an appeal to the Court of Appeal in civil cases.

Rules referenced in this fact sheet are the Uniform Rules of Civil Procedure 1999.

Responding to an appeal

If you are the respondent and are served with a notice of appeal, you can:

(a) file a notice of cross appeal, if you also want to appeal (rule 755); or

(b) file a notice of contention, if you believe that the grounds of appeal contained in the Notice of Appeal have merit, but that there is another reason why the decision of the trial judge should be upheld (rule 757);

within fourteen days of the date you are served.

Your other options are either to "resist" the appeal, that is, argue that the original decision was correct, or you could choose not to participate in the appeal.

Deciding whether or not to respond

Your first step should be to read carefully through the reasons for the decision and the notice of appeal.

If the trial court did not give written reasons for its decision, you will need to obtain a transcript of the trial court's reasons for decision.

You will need to read through the reasons for the decision carefully, noting how the court came to its decision. In particular you should note:

  1. What findings of fact did the court make?
  2. What legal rules did the court apply?
  3. How did the court apply the legal rules to the facts?
  4. Were there any defects in the procedures that the court used?
  5. Did the court consider everything that it was required to consider, or not consider something that it was required to consider?

Answering these questions should help you to understand how the court below made its decision, and whether or not there were any errors by the court.

Appeal timetables

The Court of Appeal Registry takes a fairly active role in appeals. Once an appeal has been filed, both parties will receive an Appeal Timetable from the Registry.

This sets out the due date for the various steps that both parties will have to comply with.

The Court of Appeal expects the parties to comply with this timetable. If you are going to have difficulties in complying with this timetable, you should contact the Court of Appeal Registry to ask for an extension.

Twenty-eight days after an appeal is commenced, the appellant should serve an outline of argument and a draft appeal book index. The appeal book contains the material that the judges of the Court of Appeal hearing the case will have before them. The Court expects the parties to confer about what documents will be put in the appeal book.

If you are participating in the appeal, you have twenty-eight days to file any outline of argument in response. See our factsheet on drafting and outline of argument or submissions for more information about these documents. You should also file and serve a "List of Authorities." The List of Authorities lists all of the cases and legislation that you intend to rely on at the hearing.

Part A of the list includes those cases and legislation that you will definitely be referring to when your appeal is heard.

Part B of the list includes those cases and legislation that you may refer to in the hearing.

What is the effect of the appeal on the decision?

Bringing an appeal does not automatically prevent you from enforcing the judgment against the other party (rule 761).

In such a case, the other party needs to apply to the Court of Appeal to "stay" the enforcement of the decision against them.

Listing the appeal for hearing

Once the outlines of argument are filed, the Registry will contact the parties to set an appeal date.

Two clear court days before the appeal is heard, you should file 3 copies of the cases and legislation in Part A of your List of Authorities, except for those cases and legislation that the Appellant or Applicant has included in Part A of their List of Authorities. You do not have to give the Court copies of the cases and legislation in Part B of your List.


Appeals in the Queensland Court of Appeal - how to bring an appeal

Appeals in the Queensland Court of Appeal - how to bring an appeal

The Court of Appeal is a division of the Queensland Supreme Court that only hears appeals. This factsheet is designed to give you information about bringing an appeal to the Court of Appeal in civil cases.

Rules referenced in this fact sheet are the Uniform Rules of Civil Procedure 1999.

You are not happy with the decision in your case

Your right to appeal depends on what type of case your matter was.

You may not have an automatic right of appeal. An appeal is not an opportunity for the Court of Appeal to revisit a case in its entirety. You will be bound by the way that your case was run at trial, and in most cases by the evidence that was presented at trial. While you may not be satisfied with the decision in your case, there are no guarantees that an appeal will succeed. In some cases, an appeal may have no practical effect other than to increase the costs that you are ordered to pay.

Deciding whether or not to appeal

Your first step should be to read carefully through the reasons for the decision.

If the trial court does not give written reasons for its decision, you will need to obtain a transcript of the trial court's reasons for decision.

You will need to read through the reasons for the decision carefully, noting how the court came to its decision. In particular you should note:

  1. What findings of fact did the court make?
  2. What legal rules did the court apply?
  3. How did the court apply the legal rules to the facts?
  4. Were there any defects in the procedures that the court used?
  5. Did the court consider everything that it was require to consider, or not consider something that it was required to consider?

Answering these questions should help you to understand how the court below made its decision, and whether or not there were any errors by the court.

For some appeals, you must show the Court of Appeal that the trial court made an error of law. Errors of fact are more difficult to bring an appeal on. The Court of Appeal:

  1. can draw inferences of fact from the evidence given to the trial court, provided that those inferences are consistent with any findings of fact by a jury (rule 766);
  2. can consider new evidence in some circumstances (rule 766);
  3. will defer to the trial judge's findings about the credibility of the parties and the witnesses, as they had the opportunity to observe the witnesses when giving evidence.

When is leave required?

Sometimes, you will have an automatic right to bring an appeal. Other times, you will need the leave (permission) of the Court of Appeal.

You will need the leave of the Court of Appeal to bring an appeal if:

(a) you have already brought an appeal to the District Court (section 118 District Court of Queensland Act 1967) or QCAT (section 150 Queensland Civil and Administrative Tribunal Act 2009) and you want to bring a further appeal; or

(b) your matter was in the District Court and the judgment was for $150,000 or less or the matter was not about property worth more than $150,000 (section 118 of the District Court of Queensland Act 1967); or

(c) you are appealing a consent order or a discretionary costs order of the Supreme Court (section 253 Supreme Court Act 1995).

The Court of Appeal's practice in these cases is to hear the argument for leave at the same time that the substantive issues in the appeal are argued.

Appeals from the District Court or QCAT

The Court of Appeal hears appeals from the District Court of Queensland, as well as appeals from decisions of a judicial member of the Queensland Civil and Administrative Tribunal.

Appeals from the Supreme Court

You have the right to appeal a decision of the Supreme Court of Queensland (s 29 of the Supreme Court of Queensland Act 1991 and s 254 Supreme Court Act 1995).

Appeal period

You have twenty-eight days from the date that judgment is given to commence an appeal (rule 748).

This time starts from when the judge pronounces his or her decision in the court, not from when the formal written order is made.

What forms do I need?

A form 64 notice of appeal sets out your grounds of appeal.

If you need leave to appeal, you need to file a form 69 application for leave to appeal and a supporting affidavit (form 46). The affidavit should contain as an exhibit (form 47) a copy of the decision appealed and your notice of appeal.

Once you have filed your notice of appeal, you must serve it on the other party (at their address for service in the earlier proceeding) as soon as practicable.

Forms can be accessed here.

Obtaining leave to appeal to the Court of Appeal

To obtain leave to the Court of Appeal, you must satisfy the Court of Appeal that:

  1. You have suffered a substantial injustice;
  2. There was a prima facie error of law in the judgment appealed; and
  3. That the intervention of the Court of Appeal is capable of curing the injustice to the Applicant (Tsigounis v Medical Board of Queensland [2006] QCA 295).

Grounds of appeal

Your Notice of Appeal sets out the grounds of appeal. The grounds set out the mistakes or errors that you believe that the Trial Judge made in determining your case.

It isn't enough that you disagree with the decision.

Sometimes, your right to bring an appeal will be limited to an appeal on a question of law. For example, an appeal from a decision by the Appeal Tribunal within QCAT, can only be on a question of law.

Examples of Grounds of Appeal include:

  1. That the learned trial judge erred in finding that (or failing to find that) …….
  2. That the learned trial judge erred by failing to have regard to …….
  3. That the learned trial judge erred by failing to find that the weight of the evidence before her or him was such as to justify an order in respect of the respondents.
  4. That the learned trial judge erred by preferring the evidence of the respondents when the evidence before the Magistrate established that …..

Outline of argument

Twenty-eight days after a Notice of Appeal is filed, an appellant must file and serve an outline of argument. See our separate factsheet on outlines of arguments for information on drafting this document.

List of authorities

When you file and serve your Outline of Argument, you must also file and servce a List of Authorities. This document lists all of the cases and legislation that you intend to rely on at the hearing.

Part A of the list includes those cases and legislation that you will definitely be referring to in the hearing. Part B of the list includes those cases and legislation that you may refer to in the hearing.

New evidence

The Court of Appeal conducts appeals by way of rehearing. This generally means that the Court of Appeal considers the evidence that was before the trial court.

The Court of Appeal can admit new evidence in an appeal (rule 766 UCPR). To exercise this discretion the Court needs to be satisfied of the following issues:

  1. That with reasonable diligence the new evidence could not have been obtained for the initial hearing; and
  2. That the evidence if allowed would probably have had an important impact on the outcome of the case; and
  3. That the evidence is credible. Horne v Commissioner of Main Roads: [1991] 2 Qd.R 38

Practice Direction 3 of 2013 allows an Appellant to bring an application to the Court of Appeal where it will consider the admission of this new evidence. This will be considered at the same time as the substantive appeal.

Appeal record book

The Court of Appeal requires an appellant to prepare and file an appeal book (rule 758). These can be quite expensive to prepare as the Court of Appeal will only accept certain types of binding.

You can apply to the court for the Court of Appeal Registry to prepare the appeal book on the grounds of hardship (rule 759).

The Registry has to consider whether it is in the interests of justice to grant the order after considering whether or not the appellant is receiving an income tested pension (and the amount of any such pension), how much the appellant pays for rent, and whether or not a spouse or close relative of the appellant might be willing to provide financial assistance to the appellant (rule 759(3)).

The record book contains the material that the Court of Appeal will consider.

The Court of Appeal has prepared some good examples of these in their factsheets which are located here.

The book must be bound in volumes of no more than 250 pages, and bound using velobinding.

When the appellant prepares an outline of argument, they must also send a draft index to the appeal book. The parties must then agree on (or settle) the appeal book index. Once this is done, and the final versions of the outlines of argument are prepared, the book must be formally put together.

If I am out of time - can I appeal?

If you are outside of the 28 day time period you need to apply for an extension of time.

The Court of Appeal will then consider whether or not you have a reasonable explanation for the delay as well as the prospects of the appeal, in deciding whether or not to grant you the extension.

What is the effect of the appeal on the decision against me?

Bringing an appeal does not automatically prevent the other party from enforcing the judgment against you (rule 761).

In such a case, you may need to bring an application to the Court of Appeal to "stay" the enforcement of the decision against you.

You should consider if a stay is needed. If you were the plaintiff and your case was dismissed, and you were ordered to pay costs, until the other party attempts to enforce their costs, there is not really anything for you to apply for a stay of.

On the other hand, if you were the defendant, and you have been ordered to pay the plaintiff a sum of money, or to deliver up possession of your property, in such a case seeking a stay would be very important.

However, you can only seek a stay if you have an appeal on foot. If you are applying for leave to appeal, then you cannot seek a stay from the Court of Appeal (Woolworths Ltd v Maryborough City Council & Rokay Pty Ltd [2005] QCA 62).

Appeal timetables

The Court of Appeal Registry takes a fairly active role in appeals. Once an appeal has been filed, both parties will receive an Appeal Timetable from the Registry.

This sets out the due date for the various steps that both parties will have to comply with.

The Court of Appeal expects the parties to comply with this timetable. If you are going to have difficulties in complying with this timetable, you should contact the Court of Appeal Registry to ask for an extension.

Listing the appeal for hearing

Once the outlines of argument are filed, the Registry will contact the parties to set an appeal date.

List of authorities

Two clear court days before the appeal is heard, you must file 3 copies of the cases and legislation that you have referred to in Part A of your List of Authorities. You do not need to file copies of the authorities that you refer to in Part B of your List.


Appeals in the District Court of Queensland

Appeals in the District Court of Queensland

The District Court of Queensland can hear appeals in some matters that were dealt with in the Magistrates Court.

Some important points about appeals:

  • Your right to appeal depends on what type of case your matter was.
  • You may not have an automatic right of appeal.
  • An appeal is not an opportunity for the District Court to revisit a case in its entirety.
  • You will be bound by the way that your case was run at trial, and in most cases by the evidence that was presented at trial.
  • While you may not be satisfied with the decision in your case, there are no guarantees that an appeal will succeed.
  • In some cases, an appeal may have no practical effect other than to increase the costs that you are ordered to pay.

Rules referenced in this factsheet are the Uniform Civil Procedure Rules 1999 (Qld)

Deciding whether or not to appeal

Your first step should be to read carefully through the reasons for the decision.

If the Court does not give written reasons for its decision, you will need to obtain a transcript of the Court's reasons for decision.

You will need to read through the reasons for the decision carefully, noting how the Court came to its decision. In particular you should note:

  1. What findings of fact did the court make?
  2. What legal rules did the court apply?
  3. How did the court apply the legal rules to the facts?
  4. Were there any defects in the procedures that the court used?
  5. Did the court consider everything that it was require to consider, or omit to consider anything that it was required to consider?

Answering these questions should help you to understand how the court below made its decision, and whether or not there were any errors by the court.

Appeals under the Justices Act 1886

For certain quasi-criminal matters that are dealt with by the Magistrates Court under the Justices Act 1886 (Qld) (e.g. Peace and Good Behaviour Orders, Traffic Offences) your right to appeal is governed by section 222 of the Justices Act 1886 (Qld).

Under this section a person aggrieved by a decision of the Magistrates Court made after the filing of a complaint has one month from the date of the decision of the Magistrate.

To commence such an appeal you need a form 27 (Justices Act) which you can find here.

Civil appeals to the District Court

For other civil appeals to the District Court, the appeal must be commenced within 28 days of the decision you are appealing (section 45 Magistrates Courts Act 1921 (Qld) and rule 748).

If your Magistrates Court dispute was for an amount over $25,000 or more, you can appeal a final decision to the District Court (section 45 of the Magistrates Court Act 1921 (Qld)).

If the amount in dispute is less than $25,000, you will need leave to appeal.

To appeal to the District Court you will need to file a Form 96 Notice of appeal. If you need leave, you use the Form 97 Notice of appeal subject to leave.

The District Court procedure for appeals

Once your appeal has been lodged, the appeal is governed by Practice Direction 5/2001 of the District Court. A copy of that Practice Direction is located here.

Once an appeal has been filed, it should be served on the other party, using their address for service in the Magistrate's Court proceedings.

You should also file a copy in the registry of the Magistrates Court that you are appealing from (rule 783).

The respondent to an appeal has two options. Either they can participate in the appeal by filing a notice of address for service, or not participate in the appeal. If the respondent elects not to participate in the appeal, then you will still have to argue your appeal to the District Court (rule 786).

If the Magistrate did not give written reasons (and this is common in the Magistrates Court) you will need to get a transcript of the reasons for the decision.

The Practice Direction requires the appellant to file an outline of argument within 28 days of commencing your appeal.

The Respondent then has 28 days to file their outline of argument.

Once the Respondent's outline of argument is filed, the parties have fourteen days to complete a certificate of readiness (form 98). This form contains the parties' estimate of the time that the hearing will take and it sets out the issues that are going to be discussed before the Court (rule 790).

If the parties cannot agree, you should both file Certificates of Readiness in the Registry, and the matter will be placed on the callover list for a hearing (rule 790).

If the parties do agree, the matter will be put on the list of matters that are ready for hearing and a date will be allocated (rule 790).

Dismissing appeals

You may be able to reach an agreement with the other party to resolve a District Court appeal. Rule 788 allows the parties to an appeal to seek a consent order that deals with an appeal.


Amending court documents - Queensland Courts

Amending court documents - Queensland Courts

Sometimes in civil proceedings, you may want to amend one of your court documents. This factsheet tells you how to amend your court documents.

Similarly, the other party might amend one of their court documents, for example their statement of claim. This factsheet tells you how to respond.

Amending a court document

Under the Uniform Civil Procedure Rules 1999 (UCPR) the court can allow an amendment of a claim, a pleading, an application or any other document.

There are six limits on the ability of a party to amend a document:

  1. To amend an "originating process" you need the leave of the court (rule 377(1)). If the amendments are technical or if you haven't yet served the plaintiff then a Registrar can give that leave. An originating process is a Claim, Originating Application or a Notice of Appeal.
  2. If you are amending a document so that you are adding a new party, changing the capacity in which a party is suing, or claiming a new cause of action, and the limitation date for your cause of action has expired, you will need to seek the leave of the court to make the amendment (rule 376).
  3. Once a request for trial date has been filed, you need the leave of the court to amend any court documents (rules 380 and 470(a)). The courts can be quite strict on allowing amendments to documents during the course of a trial so it is best to bring any applications well in advance of the court hearing.
  4. While you can amend, the other party can ask that you pay their costs of responding to the amendment (rule 386).
  5. If you are amending your defence, and if your defence made any deemed admissions, then the plaintiff might object to you amending your defence to effectually withdraw your deemed admissions, unless you first seek the leave of the court to withdraw an admission (rule 166(1)).
    • In that case, we recommend that you write to the plaintiff's lawyers, provide them with a copy of your amended defence, and ask them if they agree to those amendments without the need (and cost) of applying to the court for leave to amend or withdraw those admissions.
    • If they don't agree, then you can bring an application to the court using a form 9 application and a form 46 affidavit. You should exhibit your letter to the plaintiff to your affidavit.
  6. You should always bear in mind rule 5 of the UCPR. This rule requires a party to court proceedings to proceed quickly and efficiently to resolve their dispute. While on one reading of rule 378, a party can amend a document as many times as they like before a request for trial date is filed, this has got to be considered in light of the overall purpose and philosophy of the UCPR.
    • In any event, repeated amendments of documents, while sometimes necessary, become very difficult to read and are confusing for not only the other party, but also for the judge hearing your case.

How to amend

To amend court documents you need a copy of the original document to work from.

You can not just add and remove material from the documents. Additions and deletions need to be clearly shown and distinguishable (rule 382).

You should underline new material.

You should rule a line through material that you are no longer relying on.

E.g. The Defendant was the registered owner of the property at 100 Green Street, Brisbane in the State of Queensland, being described as Lot 1 on Survey Plan 12 345 12 346 Parish of Brisbane County of Stanley in the State of Queensland.

If you are amending a document that has already been amended, then on the front page of the document that you have amended you should:

  1. amend the title of the document; and
  2. write down the left hand side of the page, "Amended pursuant to the order of [INSERT NAME OF JUDGE] dated [INSERT DATE OF ORDER]" if a judge made an order for the amendment, otherwise "Amended pursuant to rule 378 of the Uniform Civil Procedure Rules 1999." In both cases, you also need to sign and date this notation (rule 382).

To see an example, click here for the sample amendment.

Amending out of time

The court has a general discretion to allow amendments that have been made after the limitation date that applies has expired. You can find more information by reading LawRight's factsheet Limitation periods.

The court's approach has been to allow these amendments where the new cause of action arises out of "substantially the same facts" that have previously been pleaded. This means that if the amendments change the cause of action you are relying on, but you are still using the same facts that you pleaded in your initial statement of claim, then the court is more likely to allow an amendment even if it is out of time: Draney v Barry [202] 1 QdR 145.

Responding to an amendment

If you receive an amended document from the other party, you should consider if you need to respond to it.

For example, if you receive an Amended Statement of Claim that amends the amounts of damages that the plaintiff is claiming, but your existing defence responds to the allegations that have been made, then you may not need to amend (rule 385(3)).

On the other hand if the Amended Statement of Claim raises new allegations that are not responded to by your Defence, then you can respond by amending your Defence.

Under rule 385(2) of the UCPR a response to an amended pleading is due eight days after the amended pleading was served on you. This is the case even where an Amended Statement of Claim is served, and means that you can have very little time in which to respond to an amended pleading.

You can also respond to an amended pleading, by applying to disallow the amendments (rule 379).