New South Wales Consolidated Regulations

SUPREME COURT RULES 1970 - SECT 51B.5

51B.5 Leave to appeal or cross-appeal

(1) An application for leave to appeal and, subject to subrule (2), to cross-appeal must be made by summons under Part 5 rule 3.

(2) A party served with a summons for leave to appeal who wishes to apply for leave to cross-appeal may do so by motion on the hearing of the summons, supported by an affidavit stating the matters set out in subrule (7), without filing or serving a summons or notice of the motion.

(3) Subject to subrules (3A), (5) and (5A), the summons for leave to appeal shall be filed within 28 days after the material date.

(3A) If an application is made to a Local Court under Part 2 of the subject Act, the time for filing a summons for leave to appeal does not start to run until the application under Part 2 is finally disposed of.

(4) A summons for leave to cross-appeal shall be filed within 28 days after service of the summons instituting the appeal, or the summons for leave to appeal, or within such further time as the Court may fix.

(5) The Court may, at any time, extend the time fixed by subrule (3) or (4).

(5A) Where the decision appealed from is that of a magistrate, the tribunal below may, within the time fixed by subrule (3) for filing a summons for leave to appeal (as extended by subrule (3A)) or on application filed within that time, extend the time fixed by subrule (3).

(6) The summons for leave to appeal or to cross-appeal shall include a claim for the decision which the party instituting the appeal seeks in place of the decision of the tribunal below.

(7) The applicant shall file and serve with or subscribe to the summons a brief but specific statement of:

(a) the grounds relied upon in support of the appeal and, in particular, the grounds upon which it is contended that there is any error of law,

(b) as to whether the appeal is from the whole or part only and what part of the decision in the tribunal below,

(c) the nature of the case,

(d) the questions involved, and

(e) the reasons why leave should be given.

(8) The applicant for leave to appeal shall, unless the Court otherwise directs, not later than 3 days before the date fixed for the hearing of the application for leave to appeal, file an affidavit exhibiting:

(a) a copy of the transcript of the proceedings in the tribunal below, unless a transcript cannot be obtained in respect of proceedings of that type, and

(b) a copy of the reasons for decision in the tribunal below, unless the tribunal below has not given, and does not intend to give, written reasons.

(9) Where an application for leave to appeal or to cross-appeal has been granted:

(a) the summons for leave to appeal shall be deemed a summons instituting an appeal in respect of the grounds upon which the Court has granted such leave, and

(b) the summons, or the affidavit under subrule (2), for leave shall be deemed a notice of cross-appeal instituting a cross-appeal in respect of the grounds upon which the Court has granted such leave.

(10) A party applying to the Court for an extension of time under subrule (3) or (4) shall:

(a) include that application in the summons for leave to appeal or cross-appeal, or

(b) lodge with his or her notice of motion or summons a draft, completed as far as possible, of the summons under subrule (1) and the statement under subrule (7), to be filed if an extended time is fixed.