How to appeal a decision of the Magistrates Court to the Supreme Court
Last updated 15 June 2023
Last updated 15 June 2023
This resource is for people in Victoria who want to appeal a civil decision of the Magistrates’ Court of Victoria to the Trial Division of the Supreme Court of Victoria.
This resource covers:
What is an appeal?
Time limits and costs involved in an appeal
Steps involved in preparing an appeal
This resource is intended to assist people who are not represented by a lawyer.
Throughout the resource there are links to documents and helpful resources.
This resource contains general information only and is not intended to be legal advice.
Am appeal is a review of a decision made by a Magistrate in the Magistrates’ Court of Victoria, by a Judge in the Supreme Court. It is not a new trial or a re-hearing of your case.
Appeals are more limited than trials: the Judge hearing the appeal will only consider whether the Magistrate applied the law correctly. You cannot appeal for any other reason; for example, if you are unhappy with the decision.
Generally, the appeal Judge will not accept any new evidence or information that was not presented in the original case.
If you win your appeal, it does not mean that the result will be automatically reversed. For example, your case could be sent back to the Magistrates’ Court to be re-decided according to the correct application of the law. This means that there is a risk that when the Magistrate re-hears your matter, the ultimate result will still be the same.
You should familiarise yourself with section 109 of the Magistrates’ Court Act 1989 (Vic).
You must file your appeal within 30 days from the date of the Magistrates’ Court order.
If you want the Supreme Court to hear your appeal after this time, you need its permission. This is called “seeking leave to appeal out of time”.
The Supreme Court is strict about the time limit and will only grant your permission to appeal out of time if there are exceptional circumstances that have caused the delay and if it would not be unfair on the other party for the appeal to be heard.
When you appeal a decision, you should obtain a transcript of the hearing in the Magistrates’ Court. This will allow the judge to best understand what happened at the Magistrates’ Court.
Obtaining a transcript
To obtain a transcript, you first need the audio recording of your hearing. Audio recordings are only available for 12 months from the date of the hearing.
You will need to submit a request to the specific court where your case was heard. The request form can be found here and a list of all Magistrates’ Courts can be found here.
Audio recordings are for each hearing day, and there is a fee you will have to pay for the recording. Audio recordings are generally supplied within 14 days of the request.
Once you have the audio recording, you will need to arrange for a transcript to be made through a transcript service provider, for example VIQ solutions. You can find more information about the services offered by VIQ solutions: here.
If you lose an appeal in the Supreme Court, you will usually be ordered to pay the other side’s legal fees (also known as “costs”). Costs in the Supreme Court can be substantial, which means that you should seek legal advice before filing your appeal.
You will also need to pay the Court fees at different stages of the proceeding. The Fee Schedule can be found here.
You may be eligible for a concession or to have your fees waived. To apply for a Standard or Concession Fee, you will need to complete the Application for Standard or Concession Court Fees form.
There are several required steps to file an appeal in the Supreme Court. Before you take any of these steps, you should read and familiarise yourself with the Supreme Court Practice Note SC CL 9.
You should also be familiar with your obligations as a civil litigant, which are contained in sections 16-27 of the Civil Procedure Act 2009. These include your obligations to act honestly, to cooperate with the other parties, and to not mislead or deceive.
The process set out below is based on the Supreme Court (General Civil Procedure) Rules 2015 and Supreme Court (Miscellaneous Civil Proceedings) Rules 2018.
The documents you will need are:
Summons – Form 46A
Certificate Identifying Exhibit – Form 43A
Copy of Magistrates Court Order
If the Magistrate gave written reasons, any written reasons
For further information on what to include in these documents, see pages 9-12 of the Supreme Court’s guide to appeals.
The Notice of Appeal includes the following sections:
Leave to appeal: if you are starting your appeal more than 30 days after the date of the Magistrates’ Court orders, write “yes”.
Question of Law: here, you need to write each law (or legal principle) that you say the Magistrate applied incorrectly. You should write these as separate questions. For example: “Did the Magistrate make an error by finding there was misleading conduct under section 18 of the Australian Consumer Law?“
Grounds of Appeal: here, you should briefly provide your explanation of why the Magistrate applied the law incorrectly. Your grounds should correspond directly to your questions of law. For example: “The Magistrate should have found that there was no misleading conduct because there was no evidence to support that finding.” Keep your grounds short – you will have an opportunity to expand on them later.
Orders sought: here, you should write the orders that you want the Supreme Court to make in place of the Magistrates’ Court orders.
In your affidavit, describe the facts that you rely on to support your appeal. If you appealing more than 30 days after the Magistrates’ Court order, you need to also explain why your application is late. Attach any documents that support your late application, such as a medical certificate.
You should also attach to your affidavit:
a copy of the Magistrates’ Court order you are appealing
if the Magistrate delivered written reasons, any written reasons
the transcript
any other documents you want to rely on for your appeal
Attachments to affidavits are called ‘exhibits’. For each exhibit, prepare a Certificate Identifying Exhibit (Form 43A).
If you are appealing more than 30 days after the Magistrates’ Court order, write in your summons that you are “seeking leave to appeal out of time”.
To file documents with the Supreme Court, you need to use the Court’s electronic filing system, RedCrest.
The Court has a Redcrest E-filing Hub which contains helpful guides on how to use RedCrest.
Once you have filed your Notice of Appeal, you have 7 days to file the rest of your documents – see Steps 3 and 4.
Timing of Supreme Court Hearings
The Supreme Court is very busy and it may take some time to hear your appeal, often up to 12 months.
You can apply for an expedited hearing, but the Court will only grant you such an order if it is satisfied that the matter is urgent. If you wish to apply for an expedited hearing, you must do this when you file your appeal.
To file the rest of your documents, you need a date for your directions hearing.
A “directions hearing” is an administrative hearing where the parties will discuss the timeline of the appeal and the Supreme Court will make orders about that timeline.
To get a date for your directions hearing you need to:
As noted above, there is a filing fee associated with the Summons – refer to the Fee Schedule. If you intend on claiming financial hardship you will need to file a Fee Waiver Application.
Get Help
Justice Connect operates a service which assists people representing themselves in the Supreme Court of Victoria. If you would like to apply for assistance from the Service, please lodge an enquiry at https://help.justiceconnect.org.au/vicsrs/.
Once you have a date for your directions hearing, you need to file the rest of your documents.
Within 7 days of filing your Notice of Appeal, you must file the following documents:
Once your documents have been accepted by the Supreme Court in RedCrest, you will be notified and each document will be stamped with the Supreme Court seal. This is called the “sealed version”.
Download the sealed versions of your documents from RedCrest so that you can serve them on the other party or parties.
“Serving a document” means formally delivering the document to the other party (or parties if there are more than one).
You need to serve sealed copies of your documents on the other party or parties as soon as possible after you are notified in RedCrest that your documents have been accepted. At the very least, this must be done 14 days before the directions hearing.
If you are serving an individual, you need to leave the documents with them in person.
If you are serving a company, you need to post the documents to its registered office. To find a company’s registered office, search its ABN, ACN or name here.
There are rules about which documents need to be served in person. See Order 6 of the Supreme Court (General Civil Procedure) Rules 2015 for more details.
Once you have served your documents on the other party or parties, they may respond by filing their own documents, such as a Notice of Appearance and an affidavit opposing your application. The other party must serve any documents that they file with the Supreme Court on you.
As noted above, the purpose of a directions hearing is to set a timetable for the appeal. It is not where you make your arguments to the Supreme Court.
You are expected to attend the hearing, either in person or via video link. The Supreme Court will send you an email in the lead-up to the directions hearing with information on the time and place of the hearing.
At the hearing, orders will be made about what documents need to be filed and when, and what other actions you need to take. You will usually get a date for the final hearing as well.
Once the timetable has been set for your case, you will need to prepare for your appeal hearing. You will know what (and when) you need to prepare from the orders made at the directions hearing. You may, for example, need to prepare:
List of authorities: all of the cases, legislation and other sources that you want to rely on in your case.
Written submissions: these are the arguments you want the Judge to consider. The submissions should relate directly to the grounds of appeal set out in your Notice of Appeal and include your explanation of why you believe the Magistrate made any legal errors.
Reply to the other party’s written submissions: if the other party files and serves written submissions, you will usually be allowed to file and serve short written submissions in reply.
Court Book: this is an agreed folder of all the documents you and the other party or parties want to rely on during the hearing.
Once all of the documents have been prepared, you will need to attend your hearing. The Supreme Court will send you an email in the lead-up to the hearing with the information on the time and place for the eharing.
At the hearing, you and the other party or parties will make oral submissions. If there are only two parties:
you will make your submissions
the other side will make their submissions, and
then, you can make some short submissions in reply
Usually the Judge will not make a decision on the day – they will “reserve” their decision and, when they are ready, will let you know when and where they are going to “hand down” or deliver their judgement.
Magistrates’ Court makes orders
Within 30 days, you must file your Notice of Appeal (you can file this later than 30 days, but the Court may not give your permission to appeal).
Get a date for your directions hearing.
Within 7 days of filing your Notice of Appeal, file the rest of your documents.
Once you have obtained sealed copies of your documents, serve them on the other party or parties.
Attend your directions hearing, where timetabling orders will be made.
Follow the written orders made at the directions hearing, which will say what you need to prepare next and when.
Attend the appeal hearing (this could be 6-9 months after the directions hearing).
The Judge will usually made their decision after, not during, the appeal hearing. The timing of this will depend on the Judge’s schedule and there could be some delay.
If you have questions about this process and you do not have a lawyer, you can contact the Supreme Court’s Self-Represented Litigant Coordinator (see here). They cannot give you legal advice.
The Supreme Court’s Guide to Representing Yourself when Appealing a Magistrates’ Court Decision is also helpful.
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This resource was last updated on 15 June 2023. This is legal information only and does not constitute legal advice. You should always contact a lawyer for advice specific to your situation. Please view our disclaimer for more information.