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 serve 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 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?

Generally, when someone has obtained a judgment of a court, they are entitled to enforce it. 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.

It will be up to the court to decide whether a stay should be granted. If you apply for a stay, you do not need to show special or exceptional circumstances but you must be able to demonstrate that there is a sufficient reason to justify the stay of the enforcement of the decision (Contempree v BS Investments Pty Ltd & Anor [2021] QCA 243). The rules do not list the circumstances when the court should exercise the discretion to stay the enforcement of a decision. The court will consider a range of different factors when making this decision, including any delay by the parties and the impact that granting the stay or refusing the stay would have on either party.

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.