Land and Environment Court > Types of cases > Appeals against Land and Environment Court decisions

Appealing a Commissioner's decision    

 

Classes 1, 2, 3 and 8 proceedings – appeals against decisions of Commissioners

Appeal on a question of law  

A party to proceedings in Classes 1, 2, 3or 8 of the Court’s jurisdiction may appeal against an order or decision of a Commissioner of the Court on a question of law ( s 56A(1) of the Land and Environment Court Act 1979).

Appeal to the Court 

The appeal is made to the Land and Environment Court and is heard and determined by a Judge.

Who can make the appeal?

Only a person who is a party to the proceedings may appeal.

When must the appeal be made?

The appeal is to be commenced within 60 days after the date on which the decision or order was given or such further time as the Court allows ( rule 7.1 of the Land and Environment Court Rules 2007).

How to start the appeal

STEP

DESCRIPTION

FIND THE RIGHT FORM

The appeal is to be commenced by a summons ( Form 84 (version 4)).

 

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 60 -day period for appeal, the applicant is to include an application for an extension of time in the summons commencing the appeal. 

 

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.

 

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.

 

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.  

 

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.  The guide explains what is meant by service of documents and how this is to be undertaken.

 

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. Each respondent needs to complete and file with the Court, and serve on the applicant, a notice of appearance.

 

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) ).  The cross-summons commencing the cross-appeal is to be filed with the Court’s registry.

 

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) ).  The notice of contention is to state briefly but specifically the ground relied on in support of the contention.  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.

 

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Practice and procedure in Court legislation

The practice and procedure for appeals against decisions of commissioners is stated in Pt 50 of the Uniform Civil Procedure Rules and s 56A of the Land and Environment Court Act.

At the first directions hearing

Venue, date and time

The first directions hearing will usually be held 5 weeks after the date the summons commencing the appeal was filed.  It will be conducted before the registrar of the Court, in a court in the Court’s building at 225 Macquarie Street, Sydney.  The location of the Court and the precise time of the day when the directions hearing will occur will be shown on the Court Lists posted on a notice board in the foyer of the building and on the Court’s website under Court Lists in the afternoon of the day before the directions hearing.  The Sydney Morning Herald may also (but does not always) publish the Court Lists on the morning of the date set for the directions hearing.

Directions for preparation of appeal papers 

At the first directions hearing, the registrar will usually make the following directions.

  • The registrar will usually direct that the applicant prepare, file with the Court and serve on each respondent, by a specified time before the date fixed for the hearing, an affidavit to be relied on at the appeal that annexes or exhibits:
    • a copy of the reasons for the decision of the commissioner
    • a copy of the transcript of the proceedings before the commissioner (if the transcript is relevant to the question of law raised by the grounds of appeal)
    • a copy of any exhibit, affidavit or other document from the proceedings before the commissioner that the applicant wishes to be considered at the hearing of the appeal or proposed appeal (see Pt 50 r 50.14 (1) of the Uniform Civil Procedure Rules).
  • The registrar will usually direct that the respondent prepare, file with the Court and serve on the applicant, by a specified time before the date fixed for the hearing, an affidavit to be relied on at the appeal or cross-appeal that annexes or exhibits a copy of any exhibit, affidavit or other document from the proceedings that the respondent wishes to be considered at the hearing of the appeal or cross-appeal in addition to any exhibit, affidavit or other document to be relied on by the applicant (see Pt 50 r 50.14 (2) of the Uniform Civil Procedure Rules).
  • The registrar will usually direct the applicant and respondent file with the Court and serve on each other a written outline of submissions by specified times before the date fixed for the hearing.

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Making and recording directions

The registrar will make directions, including fixing the appeal for a final hearing and making directions for the filing and serving of the appeal papers and written submissions.  These directions will be stated orally.  The parties should record the directions made, including importantly the date, time and venue of the final hearing.  A written copy of the directions made is not usually sent to the parties.

The final hearing

The final hearing of the appeal will take place usually in a court in the Court’s building at 225 Macquarie Street, Sydney or, for country matters in a Court in regional New South Wales.  The Court’s direction fixing the final hearing will state the venue.  The venue will also be stated on the Court Lists posted on the notice board in the foyer of the Court’s building and on the Court’s website on the afternoon of the day before the final hearing is to occur.  The Sydney Morning Herald may also (but does not always) publish the Court Lists on the morning of the date set for the final hearing.

The usual commencing time is 10.00 am.  A Judge will conduct the final hearing. 

The appeal and cross-appeal are limited to questions of law ( s 56A(1) of the Land and Environment Court Act).

Resolving disputes

Appeals against decisions of commissioners are resolved by hearing.

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Outcomes and orders

Giving judgment

At the conclusion of the hearing or at a later date, the judge hearing the proceedings will give judgment.  The judgment will state the decision and orders and give reasons for making the decision. 

Further information is available on:

Orders

The Court may dismiss the appeal or cross-appeal or uphold the appeal or cross-appeal.  If the Court upholds the appeal or cross-appeal, the Court may:

  • remit the matter to the commissioner for determination by the commissioner in accordance with the decision of the Court; or
  • make such other order in relation to the appeal or cross-appeal as seems fit ( s 56A(2) of the Land and Environment Court Act).

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Appeals against the Court’s decision

A party to an appeal or cross-appeal under s 56A of the Land and Environment Court Act may only appeal against the Court’s decision on such an appeal or cross-appeal to the NSW Court of Appeal with leave of that Court ( s 57(1) and s 57(4) of the Land and Environment Court Act).

Helpful materials

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