From 10 November this year, any party wishing to bring a
civil appeal in the Supreme Court of Victoria will first need to
obtain leave to appeal. Leave will only be granted if the Court of
Appeal – constituted by one or more judges – is
satisfied that there is a real prospect of success on the
The empowering legislation, Courts Legislation
(Miscellaneous Amendments) Act 2014 (Vic) (the
Act), was assented to on 9 September 2014, with the aim of
streamlining the civil appeals and applications regime in the
Victorian Court of Appeal. On 14 October 2014, Chief Justice
Marilyn Warren, in her capacity as Lieutenant-Governor of Victoria,
fixed 10 November 2014 as the commencement date for the provisions
that provide for the changes to the Victorian Court of Appeal
In addition to the requirement for leave, other important
changes introduced by the Act include:
appeals and applications for leave to appeal will be commenced
by filing rather than service;
at the application for leave stage, parties will be required to
file detailed submissions in respect of the merits of the grounds
there will be standardised time frames for initiating
applications for leave and for respondents to file a response (and
any cross-applications and/or notices of contention);
applications for special leave may be determined on the papers
(without an oral hearing) by a single judge – there is no
longer an entitlement to an oral hearing;
if an application for special leave is dismissed on the papers,
an applicant may apply to two or more judges to set aside or vary
that dismissal unless the single judge determined the
application was "totally without merit"; and
if leave to appeal is granted, the substantive appeal may
either be heard at the same time as the application for leave; or
may be listed for a later date.
All of these changes are directed at improving the timeliness of
hearing civil appeals and applications, with the aim of making the
appeals process more efficient. The changes are presumably also
directed at the early identification and exclusion of appeals
deemed to have low prospects of success. The way in which the Court
of Appeal applies the "real prospect of success"
threshold test remains to be seen.
WHAT THIS MEANS FOR YOU
The Act does not operate retrospectively. Appeals and
applications commenced before the commencement date will be
conducted under the existing civil appeals regime (the Act also
includes provisions to deal with a transition period).
Once the new regime commences next month, there will no longer
be a right of appeal in the Victorian Court of Appeal. This is a
significant change, which has the potential to bring benefits to
both litigants and the appeals process generally. It is possible
that the changes will have the effect of providing a greater sense
of finality to trial judgments, whereby parties treat trial
proceedings as the "real thing" as opposed to a practice
run before appealing. These changes may also reduce the number of
appeals before the Court that do not have strong prospects of
success. This may have a flow on effect of making the court process
less costly and more efficient.
Of course, by eliminating the right of appeal in the Victorian
Court of Appeal, parties may consider commencing proceedings in
alternate jurisdictions/courts, such as the Federal Court of
Australia (assuming the dispute has subject matter jurisdiction);
or by way of commercial arbitration.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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