Time limits most commonly missed in relation to appeals, a claim example and lessons learned.
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Appeals limitations
| Action | Time limit | Legislation | Extension availability |
|---|---|---|---|
|
Action
Leave to appeal or application for appeal to the Supreme Court of Victoria, Court of Appeal |
Time limit
28 days after the decision to which the appeal relates |
Legislation
r.64.05(1)(a) Supreme Court (General Civil Procedure) Rules 2015 (Vic) |
Extension availability
The Court of Appeal or Judicial Registrar can extend time – r.64.08 Supreme Court (General Civil Procedure) Rules 2015 (Vic) |
|
Action
Appeals from decision of Supreme Court associate judge |
Time limit
14 days after the day the judgment/order was made |
Legislation
r.77.06.2(1)(a) Supreme Court (General Civil Procedure) Rules 2015 (Vic) |
Extension availability
A judge of the court or an associate justice may extend time – r.77.06.2(6) Supreme Court (General Civil Procedure) Rules 2015 (Vic) |
|
Action
Appeal from a final order in the Magistrates Court |
Time limit
30 days after the day on which the order was made |
Legislation
s.109(2)(a) Magistrates Court Act 1989 (Vic) |
Extension availability
An appeal instituted after 30 days is deemed to be an application for leave to appeal – s.109(4) Magistrates Court Act 1989 (Vic) |
|
Action
Appeal from an order of VCAT |
Time limit
28 days after the day of the order |
Legislation
s.148(2))(a) Victorian Civil and Administrative Tribunal Act 1998 (Vic) |
Extension availability
The court can extend time – r.148(5) Victorian Civil and Administrative Tribunal Act 1998 (Vic) |
|
Action
Appeal to the Federal Court |
Time limit
21 days after the date of judgment or order (unless a different date is fixed by the court appealed from) |
Legislation
r.36.03 Federal Court Rules 2011 |
Extension availability
The court can extend time by application – r.36.05 Federal Court Rules 2011 |
|
Action
Appeal to the High Court |
Time limit
28 days after the judgment below was pronounced |
Legislation
r.41.02.1 High Court Rules 2004 |
Extension availability
A person can seek an order that compliance with the time limit be dispensed with and file and serve an affidavit explaining the failure to comply with rule 41.02.1 – r.41.02.2 High Court Rules 2004 |
|
Action
Application to Appeal Costs Board |
Time limit
12 months from the final determination |
Legislation
s.35D Appeal Costs Act 1998 (Vic) |
Extension availability
The Appeal Cost Board can determine an application for payment as if the indemnity certificate had not expired if it considers that it is in the interest of justice to do so – s.35E(2) Appeal Costs Act 1998 (Vic) |
|
Action
Validity of writ or originating process for service |
Time limit
12 months from the day it is filed |
Legislation
r.5.12(1) Supreme Court (General Civil Procedure) Rules 2015 (Vic) r.5.12(1) County Court Civil Procedure Rules 2008 (Vic) |
Extension availability
The court may extend the period of validity for no more than one year from the day of the order before or after expiry. r.5.12(2)-(3) Supreme Court (General Civil Procedure) Rules 2015 (Vic) r.5.12(2)-(3) County Court Civil Procedure Rules 2008 (Vic) |
Claim example
A practitioner acted for a plaintiff in a Magistrates Court claim, which was dismissed.
The client instructed the practitioner to appeal and the practitioner liaised with Counsel about the prospects of success and the time for filing the appeal. Counsel wrote to the practitioner advising there was a 30 day period under section 109(2)(a) of the Magistrates Court Act 1989 (Vic).
In a telephone conversation with Counsel one week later, a lawyer employed by the practitioner was told the limitation period expired between 25 December and 1 January and there would be a period in which ‘time would stop running’. Counsel advised the lawyer to check the statutory provision or confirm the expiry date with the court registry.
The lawyer then called the Court of Appeal registry and was told by a clerk that time would not run between 24 December and a certain date in January. This advice was incorrect as the Supreme Court Rules did not affect the operation of section 109 of the Magistrates Court Act.
As a consequence the client, in order to obtain leave to appeal, would have needed to show the failure to institute an appeal within time was due to exceptional circumstances. However, the authorities indicated the practitioner’s error regarding the applicable time limit for filing the appeal would not be regarded as exceptional circumstances.
The client then changed lawyers and decided not to proceed with the leave application. However the client sued the practitioner claiming damages for lost opportunity to appeal and legal costs incurred by the client.
Lessons
- Do not rely on information provided by the court registry
- Always double-check the relevant legislation to ascertain the applicable time limit.
