Uniform Civil Procedure Rules 1999 (UCPR Qld) - Digest
back to table of provisionsChapter 18 – Appellate Proceedings
- Part 1 – Appeals to the Court of Appeal
- [744] Definition for pt 1
- [745] Application of pt 1
- [746] Starting appeal or making application for new trial
- [747] Content of notice of appeal
- [748] Time for appealing
- [749] Parties to appeal
- [750] Inclusion, removal or substitution of party
- [751] Amendment of notice of appeal
- [752] Service
- [753] Directions conference with registrar
- [754] Cross appeals
- [755] Notice of cross appeal
- [756] Effect of notice of cross appeal
- [757] Affirmation on other ground
- [758] Appeal book
- [759] Registry preparation of appeal book
- [760] Setting a date for appeal
- [761] Stay of decision under appeal
- [762] Dismissal by consent
- [763] Appeals from refusal of applications made in the absence of parties
- [764] Consent orders on appeal
- [765] Nature of appeal and application for new trial
- [766] General powers
- [767] Exercise of certain powers by judge of appeal
- [768] Matter happening in other court
- [769] Insufficient material
- [770] New trial
- [771] Assessment of costs of appeals
- [772] Security for costs of appeal
- [773] Way security for costs of appeal to be given
- [774] Effect of failure to give security for costs of appeal
- [775] Effect of failure to prosecute appeal
- [776] Appeals from outside Brisbane
- [777] Registrar may publish certain decision
- [778] Application in appeal or case stated
- [779] Procedure
- [780] Documents for application
- [781] Form and content of case stated
- [782] Application of pt 3
- [783] Procedure for appeals to District Court from Magistrates Court
- [784] Procedure for appeals to a court from other entities
- [785] Application of rules to appeals and cases stated under this part
- [786] Notice of appeal
- [787] Procedure for hearing appeal under r 786
- [788] Consent order
- [789] Registrar may give directions
- [790] Preparation for hearing
- [791] Rehearing after decision of judicial registrar or registrar
- [792] Leave to appeal
- Division 1 - Preliminary
- Division 2 - Procedural
- Division 3 - Powers
- Division 4 - Miscellaneous
- Division 1 – Applications to court of appeal
- Division 2--Cases stated
Division 1 - Preliminary
[744] Definition for pt 1 go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[745] Application of pt 1 go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
Division 2 - Procedural
[746] Starting appeal or making application for new trial go to top
Rules 746 and 748 apply by their terms to all appeals made to the Court of Appeal (including appeals from QCAT) and accordingly regulate the time for appealing: Legal Services Commissioner v Bradshaw [2009] QCA 126, [90] (Chesterman JA, Holmes JA agreeing).
[747] Content of notice of appeal go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[748] Time for appealing go to top
The discretion conferred by r 748 is unfettered, although it must be exercised judicially. Relevant considerations as to the exercise of the discretion include:
(a) the length of the delay;
(b) the adequacy of the explanation for the delay;
(c) the merits of the proposed appeal;
(d) whether a timely intimation of an intention to appeal was given;
(e) prejudice to the respondent;
(f) potential disruption to established practice; and
(g) general considerations of fairness:
Baguley v Lifestyle Homes Mackay Pty Ltd [2015] QCA 75, [14] (Gotterson JA, McMurdo P and Douglas J concurring), citing Beil v Mansell (No 1) [2006] 2 Qd R 199, [38]–[40]; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 348–9.
In circumstances where an applicant has made a deliberate decision not to file an appeal within time, an extension of time to allow an appeal will only be granted where it is demonstrably necessary to do so to prevent a substantial injustice: Spencer v Hutson [2007] QCA 178, [31] (Keane JA, Williams and Jerrard JJA agreeing), cited in Baguley v Lifestyle Homes Mackay Pty Ltd [2015] QCA 75, [16] (Gotterson JA, McMurdo P and Douglas J agreeing).
In determining an application for an extension of time within which to appeal a costs order (such an appeal requiring the leave of the primary judge), the court will usually have regard to, among other things, the applicant’s prospects for success, albeit in a general way. However, the court should not determine issues that properly attend the question whether leave to appeal should be granted. This is a question intended by the legislature to be decided by the primary judge: Morrison v Hudson [2006] 2 Qd R 465; [2006] QCA 170, [24]-[25] (Keane JA, Williams JA and White J agreeing).
[749] Parties to appeal go to top
Rule 749(1) does not require that an appellant join as respondents persons who have no interest in upholding a challenged order: Creswick v Creswick; Tabtill Pty Ltd v Creswick [2011] QCA 66, [11] (Fraser JA).
[750] Inclusion, removal or substitution of party go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[751] Amendment of notice of appeal go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[752] Service go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[753] Directions conference with registrar go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[754] Cross appeals go to top
The expression “the decision appealed from” in r 754 refers to the subject matter of the appeal stated in the notice of appeal and therefore the phrase acts so as to limit the scope of a cross-appeal only to the matters raised in the notice of appeal under r 747(1)(a): Creswick v Creswick; Tabtill Pty Ltd v Creswick [2011] QCA 66, [11]-[12] (Fraser JA).
[755] Notice of cross appeal go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[756] Effect of notice of cross appeal go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[757] Affirmation on other ground go to top
An extension of time can be granted for a notice of contention filed outside the r 757(3)(a) timeframe where it is not opposed by the appellant: Jensen v Brisbane City Council [2006] 2 Qd R 20; [2005] QCA 469, [45] (McMurdo P, Keane JA and MacKenzie J).
[758] Appeal book go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[759] Registry preparation of appeal book go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[760] Setting a date for appeal go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
Division 3 - Powers
[761] Stay of decision under appeal go to top
To succeed on an application for a stay, an applicant must show good reason for the stay to be granted and that it is an appropriate case in which to grant a stay: Elphick v MMI General Insurance Ltd [2002] QCA 347, [8] (Jerrard JA), citing JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 2) [1983] 2 Qd R 255; Asia Pacific International Pty Ltd v Peel Valley Mushrooms Ltd [1999] 2 Qd R 458.
In the exercise of discretion as to whether to grant a stay, the Court should have regard to the following factors:
(a) whether there is a good arguable case;
(b) whether the applicant will be disadvantaged if a stay is not ordered; and
(c) whether there is some competing disadvantage to the respondent should the stay be granted which outweighs the disadvantage suffered by the applicant if the stay is not granted:
Elphick v MMI General Insurance Ltd [2002] QCA 347, [8] (Jerrard JA).
It will not be appropriate to grant a stay unless a sufficient basis is shown to outweigh the considerations that judgments of the Trial Division should not be treated as merely provisional, and that a successful party in litigation is entitled to the fruits of its judgment. Generally speaking, courts should not be disposed to delay the enforcement of court orders. The fundamental justification for staying judicial orders pending appeal is to ensure that the orders which might ultimately be made by the courts are fully effective: Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453; [2008] QCA 322, [12] (Keane JA, McMurdo P and White AJA agreeing).
In cases where the court is able to come to a preliminary assessment of the strength of the appellant’s case, the prospects of success on the appeal may weigh significantly in the balance of relevant considerations. If the prospects can be seen to be very poor, this will obviously favour a refusal of the stay: Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453; [2008] QCA 322, [13] (Keane JA, McMurdo P and White AJA agreeing).
Two principals are commonly resorted to on stay applications. The first is that where there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay. Secondly, although courts approaching applications for a stay will not generally speculate about the appellant’s prospects of success, given that argument concerning the substance of the appeal is typically and necessarily attenuated, this does not prevent them making some preliminary assessment about whether the appellant has an arguable case: Attorney-General (Qld) v Fardon [2011] QCA 111, [13]-[14] (Chesterman JA), citing Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685, 695.
The court or a judge of appeal has no power under r 761(2) to order the stay of enforcement of a decision that was not subject to an appeal, but was subject only to an application for leave to appeal which has not yet been granted: Stone v Copperform Pty Ltd [2002] 1 Qd R 106, 107 (McPherson JA), followed in Perovich v ASIC (2005) 56 ACSR 303; [2005] QCA 456, [4] (McPherson JA). However, the Court of Appeal has an inherent power to grant a stay in such a case, which is exercisable in exceptional circumstances: Upton v Westpac Banking Corporation [2016] QCA 5; Simonova v Department of Housing and Public Works [2018] QCA 60.
The Court of Appeal also has inherent power to stay the further progress of principal proceeding, whilst an appeal on an interlocutory matter is determined: Day v Humphrey [2017] QCA 104.
Rule 761(2) contemplates the making of an order for a stay. It is doubtful whether r 761(2) contemplates the variation of an order for a stay of judgment and the rule does not appear to be apposite where an applicant wishes to challenge the terms of an order for a stay: Thompson v Robinson [2005] QCA 253, [16] (Keane JA, de Jersey CJ and Williams JA agreeing).
[762] Dismissal by consent go to top
The court does not discourage the settling of appeals either before or after they have been heard. It may however refuse to accede to such a request where settlement appears to be made as a last minute attempt to suppress a likely judgment on a matter of importance because of some adverse effect which the publicity of that likely judgment may have on one of the parties: Voss v Suncorp-Metway Ltd (No 1) [2004] 1 Qd R 212, 212 (Davies JA).
[763] Appeals from refusal of applications made in the absence of parties go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[764] Consent orders on appeal go to top
It is plain from rr 762 and 764 that the Court of Appeal has a discretion whether or not to make an order proposed by the parties to be made by consent, although no doubt it would ordinarily do so: Voss v Suncorp-Metway Limited (No 1) [2004] 1 Qd R 212, 212-213 (Davies JA).
[765] Nature of appeal and application for new trial go to top
Final decision in the proceedings
The refusal of an extension of a limitation period is not regarded as a “final decision in the proceedings” for the purposes of r 765(2). An appeal to the Court of Appeal on such a question is, therefore, to be distinguished from that available under r 765(1). It is in the nature of an appeal stricto sensu: Kambarbakis v G & L Scaffold Contracting Pty Ltd [2008] QCA 262, [31] (Holmes JA) (cf [53], Muir JA).
[766] General powers go to top
Rule 766(1)(c) – Further evidence
Fresh evidence can be admitted if: (i) it could not have been obtained with reasonable diligence for the original hearing; (ii) it is such that, if given, it would probably have an important influence on the result of the case; and (iii) it is apparently credible: Jonathan v Mangera [2016] QCA 86, [12] (Morrison JA, Burns and Boddice JJ agreeing), citing Pickering v McArthur [2010] QCA 341, [22].
Rule 766(1)(d) - Order for costs
The regime governing offers to settle in Chapter 9 Part 5 does not apply to the Court of Appeal’s power to order costs under r 766(1)(d): Tector v FAI General Insurance Company Limited [2001] 2 Qd R 463, [3] (McMurdo P, Pincus JA and White J), following Tamwoy v Solomon [1996] 2 Qd R 93.
In a successful appeal, which resulted in a substantial rather than an nominal award of damages, the appellant should not be denied its full costs of the appeal because not every argument was accepted: Principal Properties Pty Ltd v Brisbane Broncos Leagues Club Limited (No 2) [2018] QCA 91 at [8].
Where an appeal succeeds on a question of law, for which there was no specific authority and where both sides of the debate were fairly arguable, it may be appropriate to grant a certificate under s 15(1) of the Appeal Costs Fund Act 1973 (Qld): Principal Properties Pty Ltd v Brisbane Broncos Leagues Club Limited (No 2) [2018] QCA 91 at [9]; Lauchlan v Hartley [1980] Qd R 149 at 151.
Other Powers
An appeal may be dismissed for want of standing on an application by the respondent: National Australia Bank Ltd v Palermo [2017] QCA 118.
An appeal may be dismissed as an abuse of process, or for failure to comply with the rules, on an application by the respondent: Young v Crime and Corruption Commission [2018] QCA 55; MNSBJ Pty Ltd v Downing [2017] QCA 14.
[767] Exercise of certain powers by judge of appeal go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[768] Matter happening in other court go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[769] Insufficient material go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[770] New trial go to top
An order wrongly made changing the mode of trial will not justify an order for a new trial in the absence of some demonstrated injustice following from the changed mode: Coronis v Jilt Pty Ltd [2012] QCA 66, [60] (Chesterman JA).
[771] Assessment of costs of appeals go to top
Rule 771 allows the Court of Appeal to award costs on an indemnity basis: Tector v FAI General Insurance Company Limited [2001] 2 Qd R 463, [4] (McMurdo P, Pincus JA and White J).
[772] Security for costs of appeal go to top
The court has an unfettered discretion to order security: Actors Workshop Pty Ltd v Harrison [2014] QCA 92, [18] (Morrison JA), citing Mbuzi v Hall [2010] QSC 359.
The following matters are relevant to an application for security for costs pursuant to r 772:
(b) the prospects of success on the appeal;
(c) the financial position of the appellant. Where an appellant is without funds or assets, this factor provides a persuasive reason for ordering security for costs. This is because the court would be unable to satisfy any order for costs made against the appellant should the appeal be unsuccessful;
(d) the fact that an impecunious appellant, impecunious at trial, has already had a “day in court” and lost on the merits; this circumstances increases the likelihood of the exercise of discretion in favour of an order for security for costs;
(e) the fact that the appellant blames impecuniosity on the respondent; this has a diminished significance at appellant level, as compared with an application brought before trial;
(f) that it is inappropriate to order an impecunious appellant to provide a greater security than is absolutely necessary;
(g) that the giving of a personal undertaking by one who stands behind a company does not preclude an order for security for costs;
(h) whether there has been any delay in bringing the application:
Natcraft Pty Ltd v Det Norske Veritas [2002] QCA 241, [9] (Jerrard JA, Williams JA and Davies JA agreeing), (see also comments of Davies JA at [1]-[5]), cited with approval by Morrison JA in Actors Workshop Pty Ltd v Harrison [2014] QCA 92, [18]. See also Llewellyn v Bustfree Pty Ltd [2012] QCA 354, pp.3-4 (Muir JA).
An application for security for costs of an appeal should be made promptly. If an appellant has expended sums of money preparing the appeal for hearing and all the matters necessary to be performed have already been performed and the appeal is ready for hearing, it would be patently unjust to permit a respondent who stood by and allowed that work to be done to come to court and to ask for security after such expenses have been incurred: Natcraft Pty Ltd v Det Norske Veritas [2002] QCA 241, [15] (Jerrard JA, Williams JA and Davies JA agreeing), citing Smail v Burton [1975] VR 776, 777. Where the appeal has been set down for hearing, it is undesirable that the hearing be put at risk by making an order for security for costs which may require time for compliance extending beyond the hearing date: Woolworths Group Ltd v Day [2018] QCA 79 at [33]-[35].
It is no bar to the making of an order for security under r 772 that the respondent is a natural person: Actors Workshop Pty Ltd v Harrison [2014] QCA 92, [19] (Morrison JA), citing Ivory v Telstra Corp Ltd [2001] QCA 490.
The Court of Appeal has no power under r 772 to make an order for security for the costs of an application for leave to appeal, as distinct from the costs of an appeal as such: Bell v Bay-Jespersen [2004] 2 Qd R 235; [2004] QCA 68, [12] (McPherson JA, McMurdo P and White J agreeing), applying Stone v Copperform Pty Ltd [2002] 1 Qd R 106.
[773] Way security for costs of appeal to be given go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[774] Effect of failure to give security for costs of appeal go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[775] Effect of failure to prosecute appeal go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
Division 4 - Miscellaneous
[776] Appeals from outside Brisbane go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[777] Registrar may publish certain decision go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
Division 1 – Applications to court of appeal
[778] Application in appeal or case stated go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[779] Procedure go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[780] Documents for application go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
Division 2--Cases stated
[781] Form and content of case stated go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[782] Application of pt 3 go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[783] Procedure for appeals to District Court from Magistrates Court go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[784] Procedure for appeals to a court from other entities go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[785] Application of rules to appeals and cases stated under this part go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[786] Notice of appeal go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[787] Procedure for hearing appeal under r 786 go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[788] Consent order go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[789] Registrar may give directions go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[790] Preparation for hearing go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[791] Rehearing after decision of judicial registrar or registrar go to top
Where an application is ex parte, the other party may well be adversely affected by the application but it would not normally be described as being a party to it. Rule 791 thus appears to confer a right of appeal from a decision made on the hearing of an application to persons who were parties to that application: MQF v Corry [2000] QSC 416, [12] (Muir J).
[792] Leave to appeal go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.