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 appeal. 

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 appeals process.

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 of appeal;
  • 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.