NSW Appeals Process

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Questions and Answers

What is an appeal?

A formal process by which a successful party attempts to reinforce a judgment or order of the court.

An informal discussion between judges to reconsider a judgment or order of the court.

A formal process by which an unsuccessful party attempts to have a judgment or order of the court set aside. (correct)

A process by which the general public can provide input on a judgment or order of the court.

What is the key appellate court in NSW?

The High Court of Australia

The Federal Court of Australia

The NSW Court of Appeal (correct)

The Supreme Court of NSW

What is the key piece of legislation regarding the appeals process in NSW?

The Supreme Court Act 1970 (NSW) (correct)

The High Court of Australia Act 1979

The Judiciary Act 1903 (Cth)

The Civil Procedure Act 2005 (NSW)

What binds other NSW courts with its decisions?

The NSW Court of Appeal Signup and view all the answers

What type of appeal lies from a decision of a Division of the Supreme Court?

Appeal as of right Signup and view all the answers

What is an example of an appeal only with leave?

A judgment or order on an application for summary judgment Signup and view all the answers

What does s 75A(5) of the Supreme Court Act 1970 (NSW) state?

An appeal is by way of a rehearing. Signup and view all the answers

What is the exception to the general rule that the court won't receive further evidence on appeal?

On special grounds. Signup and view all the answers

What are the four broad classes of judgment in New South Wales?

Those entitling to possession of land, delivery of goods, payment of money, and mandatory or injunctive orders Signup and view all the answers

When can a judgment or order be enforced under the Civil Procedure Act?

When it is recorded in the court's computerised court record system Signup and view all the answers

What is the purpose of an order for examination under s 108 CPA?

To ascertain the financial circumstances of the judgment debtor Signup and view all the answers

What are the three main instruments to enforce a judgment for the payment of money under s 106 CPA?

Writ for the levy of property, garnishee order, and charging order Signup and view all the answers

What can the Sheriff do with a writ for the levy of property under s 106(2) CPA?

Seize or sell goods which the judgment debtor possessed or is entitled to Signup and view all the answers

What regulates the priority in which goods are sold at auction?

r 39.6(2) Signup and view all the answers

How long is a judgment enforceable under s 17 of the Limitation Act 1969 (NSW)?

12 years Signup and view all the answers

What is the purpose of a charging order under s 106(1) CPA?

To realise and sell a judgment debtor's interest in land or securities Signup and view all the answers

What is the primary purpose of enforcement in a court judgment?

To compel compliance with a court order Signup and view all the answers

Who is the party that owes money pursuant to a court order?

Judgment debtor Signup and view all the answers

What is the purpose of Part 39 of the UCPR?

To specify the means of enforcement under the UCPR Signup and view all the answers

Why is it beneficial for judgment debtors to pay their debts in a timely fashion?

To avoid paying interest on the debt Signup and view all the answers

What is the purpose of a writ of execution?

To authorize the seizure and sale of a judgment debtor's assets Signup and view all the answers

What is the prescribed rate of interest on a judgment debt?

A rate specified by the Civil Procedure Act 2005 (NSW) Signup and view all the answers

What is the process for applying for a writ of execution?

By filing a notice of motion with a supporting affidavit Signup and view all the answers

What is the definition of a writ of execution according to s 102 of the CPA?

A writ of delivery, writ for the levy of property, or writ of possession Signup and view all the answers

Study Notes

Appeals Process

An appeal is a formal process where an unsuccessful party seeks to have a judgment or order of the court set aside.

NSW Court of Appeal

The NSW Court of Appeal is the key appellate court in NSW.
The Supreme Court Act 1970 (NSW) is the key legislation governing the appeals process.
The NSW Court of Appeal is bound by decisions of the High Court, and in turn, its decisions bind other NSW courts.

Types of Appeals

There are two main types of appeals:
- Appeals as of right (s 101(1) of the Supreme Court Act 1970 (NSW))
  - Examples: appeals from decisions of a Division of the Supreme Court
- Appeals only with leave (s 101(2) of the Supreme Court Act 1970 (NSW))
  - Examples:
    - Interlocutory judgments and orders
    - Judgments or orders on applications for summary
    - Judgments that a company be wound up
    - Judgments restraining or refusing to restrain winding up proceedings regarding companies
    - Judgments or orders in proceedings of the Court regarding taxation or assessment of costs
    - Final judgments involving less than $100,000

Nature of an Appeal

s 75A of the Supreme Court Act 1970 (NSW) outlines the nature of an appeal
s 75A(5): an appeal is by way of a rehearing
s 75A(6): the appellate court has all the powers and duties of the original court
s 75A(7): the court may receive further evidence
s 75A(8): the court won't receive further evidence except on special grounds (except for trials or hearings on the merits)

Enforcement of Judgments

Enforcement is the process of compelling compliance with a court's determination or order.
A judgment creditor pursues enforcement against a judgment debtor.
A judgment debtor owes money pursuant to a court order, while a judgment creditor is owed money pursuant to a court order.

Means of Enforcement under the UCPR

Part 39 of the UCPR deals with enforcement.
Division 1: enforcement of writs of execution generally.
Division 2: enforcement of writs against land.
Division 3: enforcement of writs against goods, etc.
Division 4: garnishee orders.
Division 5: charging orders.
Division 6: general.

Importance of Timely Payment

Judgment debtors may be tempted to delay payment, allowing inflation to reduce the value of the debt.
Section 101 of the Civil Procedure Act 2005 (NSW): judgment debts incur interest until paid.
Interest is payable at the prescribed rate.
No interest is payable if the full amount is paid within 28 days of the judgment.

Writs of Execution

A writ of execution is a court order authorizing the Sheriff to seize and sell the judgment debtor's assets.
Modern writs are descendants of the ancient writ of fieri facia (or fi fa).
Section 102 of the CPA defines a writ of execution as:
- A writ of delivery (section 105).
- A writ for the levy of property (section 106(1)(a)).
- A writ of possession (section 104).

Applying for a Writ of Execution

Section 103 of the CPA: application is governed by the UCPR.
UCPR rules 39.1, 39.2, and 39.3: application made by notice of motion and supporting affidavit.

Classes of Judgments

There are four broad classes of judgments:
- Those entitling the successful party to possession of land (section 104 CPA).
- Those requiring the delivery of goods (section 105 CPA).
- Those requiring the payment of money (section 106 CPA).
- Those involving mandatory or injunctive orders.

Enforceability of Judgments

Section 133 CPA: a judgment or order cannot be enforced until it has been entered in accordance with the uniform rules.
Rule 36.11(2): a judgment or order is taken to be entered when it is recorded in the court's computerized court record system.
Section 17 of the Limitation Act 1969 (NSW): a judgment is enforceable for 12 years from when it is entered in the Court records.

Orders for Examination

Orders for examination may be necessary to ascertain the judgment debtor's financial circumstances.
Section 108 CPA: the court can order the judgment debtor to attend court to be orally examined and/or to produce documents as to their financial circumstances.
Relevant UCPR rules: rules 38.1 and 38.2.

Judgment for Payment of Money

Section 106(1) CPA: a judgment for the payment of money can be enforced through three main instruments:
- A writ for the levy of property.
- A garnishee order.
- A charging order (in the case of a judgment of the Supreme Court or the District Court).

Writ for the Levy of Property

Section 106(2) CPA: a writ for the levy of property is sufficient authority for the Sheriff to seize or sell goods, money, and other assets of the judgment debtor.
Section 106(3) CPA: limits on what can be taken by the Sheriff.
Rule 39.6(2): regulates the priority in which goods are sold at auction.

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Description

Learn about the appeals process in New South Wales, including the key appellate court, legislation, and types of appeals. Understand the hierarchy of court decisions and their binding effects.