What Is an Appeal

Lecture Hours 25 Appeals

APPEALS

1. Introduction What is an appeal:  procedure by which an unsuccessful party seeks to have a court’s decision set aside or varied.  “decision” means an order, judgment, verdict or an assessment of damages r. 744

Rationale:  correct errors of law or fact, to conduct a review removed from the drama of the trial, and to encourage better judicial performance at first instance.

Effectiveness? The question we need to ask ourselves when considering appeals is whether these objectives are achieved by our current appellate system given the difficulty in obtaining legal aid?

Queensland Court of Appeal  The Queensland Court of Appeal is composed of a President, four permanent judges of appeal, and trial division judges, who act on a rotational basis according to the court calendar.  Three judges constitute a Court of Appeal.  More than one Court of Appeal may sit at any time.

Supreme Court Act 1991 (Qld) ss 28, 30, 31.

President of the Court of Appeal  manages the workload of the court (Supreme Court Act 1991 (Qld) s 32) and  produces an annual report (Supreme Court Act 1991 (Qld) s 32A)

JURISDICTION: Supreme Court Act (Qld) 1991, s29  every jurisdiction or power of the Court at law or in equity or under any Act 1991, s69  An appeal lies to the Court of Appeal from any judgment or order of the trial division and from the District Court 1995, s251  The trial division may reserve or direct cases to be argued before the Court of Appeal 1995, s253  consent orders or orders as to costs can only be subject to an appeal by leave of the judge making the order

POWER OF THE JUDGE  the appellate court has power to set aside, vary, discharge, or substitute the judgment of the court below  See: Supreme Court Act 1991 (Qld) s 43 ÿ Powers of judge of appeal 43.(1) A judge of appeal may exercise the powers of the Court of Appeal— (a) to give a judgment by consent or make an order by consent; and (b) to dismiss an appeal or other proceeding for want of prosecution or for other cause specified in an Act or a rule of court about the practices and procedures of the Court of Appeal; and (c) to dismiss an appeal or other proceeding on the application of the appellant, applicant or plaintiff; and (d) to deal with matters incidental to the matters mentioned in paragraphs (a) to (c). (2) A judge of appeal may exercise the powers of the Court of Appeal— (a) to make an order or give a direction concerning the institution of an appeal or other proceeding in the Court of Appeal; or

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(b) to make an order or give a direction in an appeal or other proceeding, other than an order or direction involving the determination or decision of the appeal or other proceeding. (3) Subsection (2) does not limit the powers that a judge of appeal may exercise under subsection (1). (4) The Court of Appeal may discharge or vary— (a) a judgment given by a judge of appeal; or (b) an order made or direction given by a judge of appeal. (5) Subject to subsection (4), a judgment, order or direction given or made by a judge of appeal has effect as a judgment, order or direction of the Court of Appeal, whether or not the judgment, order or direction is within the powers of the judge of appeal under this section.

TYPES OF APPEAL

Appeal 1. Court confines it’s attention to the law and facts existing at the date of the judgment at first instance.

Rehearing 2. (more commone) determines the rights and obligations of the parties as at the date of the rehearing. It is a new determination of the rights and liabilities of the parties rather than a correction of past errors.

Which Type?  The statute giving the right to appeal governs

Single Court Supreme Court Judge: Rule 765 and Rule 745  appeal is by way of a rehearing  if it is an appeal from a decision, other than a final decision, or about the amount of damage awarded it is by way of an appeal  application for a new trial is by way of an appeal  unless the Court decides otherwise.

Stay of Execution  The Court of Appeal has power under r 761 to grant a stay of execution.  Engwirda v Engwirda & Ors No. 213 of 1999, No. 1860 of 1999, McMurdo P, 24.8.99 CA [99.353]

2. Parties to an appeal  Each party directly affected by the relief claimed or in maintaining the original judgment must be made a respondent to an appeal (r 749).  The Court of Appeal has powers to include, remove, or substitute parties (r 750).

3. Procedural Aspects

Notice of Appeal An appeal commences by filing a notice of appeal (r 746(1), form 64),

Content – approved form and state: (r 747) (a) whether the whole or part of the decision is appealed from; (b) the grounds of appeal; and (c) the decision sought.

If leave has been given to start an appeal, it must set out (r747): (a) the order giving leave (b) a concise statement of the reasons why leave was given (c) the specific question for which leave was given.

Note the requirements of r. 786: . state the name and last known address of each respondent . state whether the appellant will seek to put further evidence before the court . if further evidence is to be put before the court, briefly state the nature of any evidence the applicant will seek to put before the court and what is sought to be proved.

Timing:  Filing: within 28 days of the decision appealed from; r748  Service: as soon as practicable on all other parties; r748 and other parties the Court directs r. 752

If outside 28 Days:  If outside the 28 days it will not be heard unless an application is granted for extension of time.  The Court of Appeal may extend time.

Amendment of Notice The notice of appeal may be amended without leave within the 28 days or at another time with the leave of the Court of Appeal (r 751).

Date: The Registrar may set a date for a directions conference to settle the contents of the appeal book and set a hearing date ( rr 753, 760).

Written outline of argument Written outlines of argument are required in every appeal. The outline is 10 pages or less, filed in the Registry and served on all parties. The court may require the outline to be supplemented. Practice Direction No 26 of 1999, Nos 10, 11 of 2000.

Draft index – Appeal Record book Draft Index Practice Direction No 26 of 1999: An index may also be required for an application for leave to appeal Practice Direction No 5 of 2000.

Appeal Record book  This is the central document around which an appeal is argued.  The appellant arranges preparation of an appeal book either themselves or more commonly in association with the appeal records section (r 758).  An undertaking to pay costs is required if the latter approach is adopted (r 759).

Definition: “the compilation of materials from the primary court hearing, including:  transcripts of evidence,  exhibits,  transcripts of summing up or sentencing remarks,  together with material reports, records or other relevant materials”; Practice Direction No 26 of 1999 Item 11 of the practice direction has very specific details including a comprehensive index mentioned above.

Refer http://www.courts.qld.gov.au/publications/infosheets/ca.htm for further details and examples.

List of authorities Lists of authorities are filed by both parties (2 clear days before the hearing) in two parts:  Part A – list of authorities (cases and legislation) upon which reliance will be made.  Part B – list of other references the party may refer to.

Cross-appeals  A respondent may contend that the decision appealed from should be varied by way of a notice of cross-appeal which then is served on all parties affected (r 754).  Cross-appeals have similar requirements as a notice of appeal (r 755) (a) the part of the decision to which the cross appeal relates (b) the grounds of the cross appeal (c) the decision the respondent seeks

 The notice must be filed within 14 days after the day of service of the notice of appeal of the respondent, and as soon as practicable serve on other parties (r 755).

Notice of contention ie. The decision at first instance was correct but for the wrong reason.

 Must be in the required form: r 757, form 66  must be filed within 14 days after the day of service of the notice to appeal and be served as soon as practicable on all other parties. r 757 (3).

Consent orders The parties can agree that an appeal be dismissed by consent. A memorandum in form 68 is required to be filed to deal with issues such as costs, security for costs etc (r 762).

Listing the appeal The Registrar sets the hearing date, or assigns the case for hearing at a particular sittings (r 760). See Practice Direction No 26 of 1999.

4. Substantive basis upon which appeals are brought There are many basis for bringing an appeal, the main ones being: (a) error of law; (b) mis-exercise of discretion; or (c) the judges findings of fact were wrong  see case-book for more categories

?? – does this link to basis (b)?? The injustice flowing from the order appealed from is the relevant and necessary consideration: see Adam Brown Male Fashions Pty Ltd v Philip Morris Inc.

Error of Law It is necessary to show that the outcome at trial would have been different had the correct principles been applied; Norbis v Norbis.

The primary example is the wrongful admission or rejection of evidence.

Interpretation of a statutory provision: 1. the learned trial judge was wrong in law in holding that section [8] of the [Judicature] Act means [insert details];

K - No concluded agreement 2. the learned trial judge was wrong in law in holding that the plaintiff and the defendant had reached a concluded agreement;

K - No repudiation of agreement 3. the learned trial judge was wrong in law in holding that the defendant’s conduct in [insert details] amounted to a repudiation of the agreement;

K - No Frustration 4. the learned trial judge was wrong in law in holding that by reason [insert details] the contract had been discharged by frustration;

K - Consideration 5. the learned trial judge was wrong in law in holding that there was no consideration for the contract, in that [insert details] amounted to good consideration;

Guarantee discharged 6. the learned trial judge was wrong in law in finding that the guarantee was discharged by [insert details];

Evidence 7. the learned trial judge erred in law in admitting (or failing to admit) evidence of [insert details]; Interpretation of a lease 8. the learned trial judge was wrong in law in holding that clause [8] of the lease entitled the lessor to [insert details];

No Fiduciary Relationship 9. the learned trial judge was wrong in law in holding that there was a fiduciary relationship between the plaintiff and the defendant;

No Estoppel 10. the learned trial judge was wrong in law in holding that the defendant was estopped from denying there was a contract between the plaintiff and the defendant.

Judge wrongly exercised discretion Treated Cautiously:  Appeals based on practice and procedure usually argue that there has been a mis-exercise of discretion. Such appeals are considered more cautiously than substantive appeals.

Presumption:  There is a strong presumption that the discretions are properly exercised.

House v R . H, who was bankrupt admitted to having pawned property he had obtained on credit . H was sentenced to 3 months imprisonment with hard labour . Appealed against sentence saying that it was excessive

Held: appeal dismissed on ground that trial judge properly exercised their discretion

Australian Coal and Shale Employee’s Federation v Commonwealth . plaintiff applied for a review of the taxation of a bill of costs brought under an order the Court . a decision should be affirmed unless the Court of Appeal is satisfied that it is clearly wrong . it will be sufficient where there has been an error which consists of acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts

Held: the taxation officer had to exercise their discretion and this shouldn’t be interfered with

Adam Brown Male Fashions Pty Ltd v Philip Morris Inc . app. and resp. marketed their respective products using a ‘red rooftop’ design . rep. sough an injunction and damages under TPA for passing off . Brown have an undertaking and later sought to vary the undertaking . Federal Court permitted the variation . Philip Morris appeal and was granted the appeal . Appeal to HC, which was overturned

Held: was practice and procedure being dispute and they weren’t prepared to interfere with the exercise of the discretion of the judged.

Example: The learned trial judge erred in granting leave in that his Honour  had regard to irrelevant matters, namely [insert details]  gave no consideration to material factors, namely, (insert details)  gave undue weight to (insert details)].

Judge’s findings of fact were wrong

Da Costa v Cockburn Salvage and Trading Pty Ltd . DC employed C as a labourer for a building demolition . DC injured when unfastened roofing gave way . DC sued his employer . Trial Judge found both equally negligent . Pl. appealed and Def. cross appealed . Appeal dismissed, cross-appeal allowed . Appealed again to the HC where the verdict and judgement of the trial judge was restored

Windeyer J: I would treat the decision of the trial judge as the equivalent in all respects of the verdict of a jury, unless from his reasons it appeared that he had in some way misdirected himself.

Edwards v Noble . E’s car collided with N’s motor cycle which was stationary on the road . Trial judge did not find E negligent . FC of SC of SA set aside the judgement and found 1/3 liable . HC allowed the appeal and held that the trial judge conclusion was one open to him on the facts and shouldn’t have been set aside.

Examples:

Negligence 1. the learned trial judge erred in fact in finding that the defendant had been negligent;

Contributory Negligence 2. the learned trial judge erred in fact in finding that the plaintiff had been guilty of contributory negligence;

Evidence 3. the learned trial judge erred in fact in finding [insert details] in that the evidence of [name] was inconsistent with undisputed facts, [or, the evidence of (name) was glaringly improbable];

Inferences of Fact 4. the learned trial judge erred in fact in finding [insert details] in that [insert details] could not reasonable be inferred from the undisputed facts [or, the facts found by his Honour]. Conrad v The Chermside Hospitals Board [1982] Qd R 242 [17.7.11].

Judge’s view taken of conflicting testimony The appeal court has not seen the witnesses and will not interfere unless the trial judgment is clearly wrong on grounds which do not depend merely on credibility, e.g. glaring improbability, inconsistency with established facts.

Da Costa v Cockburn Salvage & Trading Pty Ltd :

per Barwick CJ . the trial judge is always the best person to determine issues of fact.

. appellate courts are not there to overturn findings of fact, except in extreme cases and great respect should be given to trial judge’s findings. per Windeyer J . the decision of the trial judge as equivalent in all respects to the finding of a jury unless it appeared he had misdirected himself.

Paterson v Paterson . a wife was accused of adultery . the husband seized an unopened letter from his wife’s lover . issues were whether the trial judge was correct in allowing cross-examination of the respondent upon the contents of the letter she had not seen and the consequences upon the judgment if that cross- examination ought not have been allowed.

HELD: . disallowed the cross-exam but thought it held no consequences for the trial judge’s judgement and the appeal was dismissed . the learned judge’s estimate of the respondent and co-respodent was of first importance . his assessment, not only of the general credibility of the witnesses but of the reliability of their detailed observation could hardly but be decisive. . These are matters in which his opinion could not be reserved by a court of appeal notwithstanding its undoubted jurisdiction to re-examine the whole case.

INFERENCES FROM UNCONTROVERTED FACTS

Brunskill v Sovereign Marine: The appeal court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge.

Brunskill v Sovereign Marine . B insured his truck with SM . truck was damaged in a collision . policy contained an endorsement which rendered it inoperative at the time the damage occurred . B’s insurance broker gave evidence that the endorsement was deleted prior to the collision by agreement with an agent of SM . B succeeded at trial but that decision was overturned by the CA . HC allowed the appeal from the CA as the trial judge’s decision resulted from his view of conflicting testimony . the decision was consistent with established fact and was not glaringly improbable nor clearly wrong on grounds not dependant merely on credibility . the trial judge’s decision has not been shown to have effected by error and should not have been disturbed.

Warren v Coombes : in deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.

Warren v Coombes . W, a 13 year old boy, was injured when his bike was hit by a car driven by C . W sought damages in the SC of NSW for C’s alleged negligent driving . Trial judge did not find C negligent, a conclusion which was upheld by the Court of Appeal . HC allowed the appeal and held that the decision of the trial judge could not stand . Several inferences could be drawn from the facts to find that C had been negligent

Gibbs, Jacobs and Murphy JJ disagreed with Windeyer J’s view in Edwards v Noble that the trial judge’s decision should be treated with the equivalence of a jury.

If the judges of the Court of Appeal hold the decision of the trial judge to be wrong, they should correct it.

In deciding what is the proper inference to be drawn the appellant court will give respect and weight to the conclusion of the trial judge, but one having reached its own conclusion will not shrink from giving effect to it.

Further evidence

FRESH EVIDENCE  Appellate courts have power to admit further evidence in appeals by way of rehearing in the form of oral evidence or affidavit.  This sparingly used discretion is usually limited to questions of fact.

Affidavit Material:  must establish the credibility of the evidence,  its decisive nature  how the evidence could not have been obtained with reasonable diligence for use at first instance.

If successful, fresh evidence in this context will be dealt with by way of a new trial; Orr v Holmes

Orr v Holmes . O claimed a share in a lottery prize, the ticket in which he alleged was purchased jointly with the defendant . Def. produced highly probable but inconclusive evidence and incomplete evidence that the ticket could not have been brought jointly . Pl. succeeded before a jury . Publicity gave rise to further evidence for the defendant which gave rise to practical certainty that that the ticket could not have been brought jointly . FC of SC of Qld ordered a new trial

HELD: . Pl. appealed to the HC which allowed the appeal on the ground that the evidence was: (1) available at trial had the defendant exercised reasonable diligence and (2) went to the credibility of the pl. and did not give rise to a different complexion on the case, nor a reversal . Dixon J: the new evidence must be so persuasive of the existence of the fact it tends to prove that a finding to the contrary, if it had been given, would, upon the materials before the court, appear to have been improbable if not unreasonable.

NEW POINTS AND OBJECTIONS ARISING BEFORE JUDGMENT

. raising a new point in the appeal case is generally not allowed . A point cannot be raised for the first time on appeal when it could possibly have been met by the other party calling evidence at trial . may be allowed where those points involved pure questions of law, or of construction of the terms of the document . making concessions at trial may result in estoppel precluding the party from trying to take a contrary position in the appeal.

NEW POINT ARISING AFTER JUDGMENT - APPEALS BY WAY OF REHEARING

Special grounds for the receipt of further evidence include:  evidence which could not have been obtained with reasonable diligence for use at the trial;  evidence such that if given, would probably influence the result of the case, although need not be decisive; and  evidence which is apparently credible although need not be incontrovertible.

Clarke v Japan Machines Pty Ltd . JM supplied machinery to C

. Citicorp acquired title to the machinery and leased it to C . C’s coy also supplied a mortgage over certain property . C defaulted in lease repayments . Citicorp required JM to repurchase the equipment at a fixed price pursuant to an agreement . Citicorp then gave notice of exercise of power of sale of C’s mortgaged property . C sought an interlocutory injunction restraining JM and Citicorp from exercising the power of sale and was successful . On appeal appellants tried to introduced fresh evidence that prior to the grant of the injunction C had transferred the business to a trustee coy of which C was director, shareholder and primary beneficiary

Issue: could further evidence be received?

Held: special grounds for the recept of further evidence include: (1) if the evidence could not have been obtained with reasonable diligence for use at the trial (2) evidence such that if given, would probably influence the result of the case, although need not be decisive (3) evidence which is apparently credible although need not be incontrovertible.

Held: evidence could not have been obtained by the appellants at the time of hearing. It would have a sufficient influence on the result of the case, and it would have been credible. Therefore could be received.

Excessive or insufficient assessment of damages The appellate court deals with this in the same way as a mis-exercise of discretion.

Gamser v The Nominal Defendant . G was injured when struck by a negligently driven uninsured motor vehicle . Trial judge awarded $150,000 general damages, $10,000 agreed special damages . There was no allocation to the main heads of damages . C of A reduced damages to $125,000 . Appellant then suffered a seizure which diminished his further earning capacity . Appellant having already appealed to the HC, sought to add a new ground of appeal relating to the fact of the seizure . HC proceedings were adjourned pending relief from the C of A . Appellant appealed the refusal of the C of A to grant new relief . Appeals all heard together . Appeal concerning the C of A’s reduction of damages was allowed

Aickin J: the proper approach to this case is to look at the total sum awarded as general damages and at all the circumstances, the pain and suffering, past, present and future, the physical disabilities, the medical and psychological problems which are inevitable for the future, the effect on earning capacity and the kinds of additional costs which the appellant will necessarily incur, and to ask oneself whether the sum of $150,000 is “out of all reason” or “wholly disproportionate to the circumstances”

I do not think that the figure is wholly disproportionate and I don’t think that any basis has been shown for that conclusion Held: appeal allowed, order of C of A set aside, and the order of the trial judge restored

Non grounds

A ground that the learned trial judge misdirected themselves or the jury in law and/or fact is an insufficient ground of appeal: Cataldo v Clark

A ground to the effect that the decision is against the weight of evidence is insufficient: Murfett v Smith

As to an intervening superior court decision changing the law pending hearing of an appeal as a ground see

Eggins v Brooms Head Bowling and Recreational Club Ltd . an unsuccessful party to an action sought to have an unfavourable verdict set aside on the basis that prior to the appeal a superior court held that the previously accepted state of the law was invalid . Samuels JA: Piening v Wanless held, “A verdict given after a trial cannot be set aside and a new trial ordered merely because a decision binding upon the trial judge and upon which counsel presumably relied in determining the conduct of the case has been subsequently overruled”.

McHugh JA: also refused the plaintiff’s application for leave to amend the pleadings . If a party believes that the current state of the law is erroneous, he must object to its application to his case or be bound by it . If he fails to raise the point at the trial, he cannot be allowed to raise it on appeal because of the accident that he had lodged an appeal and that, before the hearing of the appeal, a superior court has decided that the law is different from what it was conceived to be at the date of the trial

Applications to the Court of Appeal Applications may be made for many reasons. Common examples include: · Application for stay of execution; · Leave to appeal pursuant to the District Courts Act 1967 (Qld) s 118; · Application for an extension of time in which to file or serve a notice of appeal; · Application for dismissal for want of prosecution; and · Application for security for costs.

Initiating an application  An applicant files form 69 supported by an affidavit. – c/f Form 64 (Notice of Appeal!!)  Affidavit exhibits the judgment of the court below and the notice of appeal.  Application lists the affidavits to be relied on and the relief sought.  R 779 : all rules in ch 2 pt 4 apply (ie. starting proceedings).  R 780 : 3 copies are to be served. Service is required as soon as practicable after filing.

Other types of appeal Case stated (rr 778 – 781) A means by which stated questions may be decided by the Court of Appeal basaed on facts found by the trial judge.

Criminal Appeals and applications The names of jurors are to be excluded from records prepared for criminal appeals – Practice Direction No 29 of 1999. Why do you think this is the case? The simple answer is to protect jurors’ identities.

Appeal against conviction See http://www.courts.qld.gov.au/publications/infosheets/ca.htm

Appeal against sentence See http://www.courts.qld.gov.au/publications/infosheets/ca.htm

District Court Appeals See http://www.courts.qld.gov.au/publications/infosheets/ca.htm

Examples:

Application to Court of Appeal IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND C.A. NUMBER: NUMBER: Plaintiff: JOYCE JOAN SMITH (Applicant) Defendant: RONALD JIM MCDONALD (Respondent)

APPLICATION TO COURT OF APPEAL

TAKE NOTICE that Joyce Joan Smith is applying to the Court of Appeal for the following orders:

 That the Applicant (Defendant) be granted leave pursuant to section 118 District Courts Act 1967 to appeal to the Court of Appeal, the orders made by His Honour Judge [Bloggs] sitting [in Chambers] in the District Court on the [sixth] day of [August 1997] on the grounds [that the judge erred in law in ordering that the [defendant pay to the plaintiff the sum of $#].  That the proceedings including any execution upon judgment be stayed pending hearing of the Appeal of the orders made by Bloggs DCJ on 6 August 1997.  That time for the filing of the Notice of Appeal be enlarged to the day after the hearing of this Application.  That costs of and incidental to this Application be costs in the cause of the appeal.  Such further or other order or direction as may be deemed meet.

This application will be heard by the Court of Appeal at Brisbane on: (date of hearing) at: (time) Filing date: (date)

Registrar: (registrar to sign and seal)

If you wish to oppose this application or to argue that any different order should be made, you must appear before the Court in person or by your lawyer and you shall be heard. If you do not appear at the hearing the orders sought may be made without further notice to you. On the hearing of the application, the applicant intends to rely on the following affidavits: Affidavit of Paul John Homer sworn 6 August 1997

PARTICULARS OF THE APPLICANT Name: Residential or business address: Applicant’s solicitor’s name: and firm name: Solicitor’s business address: Address for service: DX (if any): Telephone: Fax: E-mail address (if any); [If the applicant has no solicitor: applicant’s address for service: applicant’s telephone number or contact number: applicant’s fax number (if any): applicant’s e-mail address (if any):] Signed: (party or solicitor) Description: (of signatory) Date: This application is to be served on: (include name of party and legal representatives (if any), and contact details of party and legal representatives)

Form 46 – Affidavit

Affidavit IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND REGISTRY: NUMBER:

Plaintiff: JOYCE JOAN SMITH (Applicant) Defendant: RONALD JIM MCDONALD (Respondent)

John Robert Jones of 123 Smith Way, Brisbane, in the State of Queensland, Solicitor, states on oath [or: solemnly and sincerely affirms and declares]: 1. I am etc 2. Exhibit A to this affidavit is etc 3. 4. Sworn [or Affirmed] by John Robert Jones on 23 May 1999 at Brisbane in the presence of:

(Signed by deponent) (Signed by person taking affidavit) (Statement of capacity to take affidavit eg Barrister) Deponent

who certifies that the affidavit was read in the presence of the deponent who seemed to understand it, and signified that that person made the affidavit.

[who certifies that the affidavit was read in the presence of the deponent who seemed to understand it, and signified that that person made the affidavit, but was physically incapable of signing it]

Application to Court of Appeal IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND C.A. NUMBER: NUMBER: Plaintiff: JOYCE JOAN SMITH(Applicant) Defendant: RONALD JIM MCDONALD(Respondent)

APPLICATION TO COURT OF APPEAL

TAKE NOTICE that Joyce Joan Smith is applying to the Court of Appeal for the following orders:

 That the Applicant (Defendant) be granted leave pursuant to section 118 District Courts Act 1967 to appeal to the Court of Appeal, the orders made by His Honour Judge [Bloggs] sitting [in Chambers] in the District Court on the [sixth] day of [August 1997] on the grounds [that the judge erred in law in ordering that the [defendant pay to the plaintiff the sum of $#].  That the proceedings including any execution upon judgment be stayed pending hearing of the Appeal of the orders made by Bloggs DCJ on 6 August 1997.  That time for the filing of the Notice of Appeal be enlarged to the day after the hearing of this Application.  That costs of and incidental to this Application be costs in the cause of the appeal.  Such further or other order or direction as may be deemed meet.

This application will be heard by the Court of Appeal at Brisbane on: (date of hearing) at: (time) Filing date: (date)

Registrar: (registrar to sign and seal) If you wish to oppose this application or to argue that any different order should be made, you must appear before the Court in person or by your lawyer and you shall be heard. If you do not appear at the hearing the orders sought may be made without further notice to you. On the hearing of the application, the applicant intends to rely on the following affidavits: Affidavit of Paul John Homer sworn 6 August 1997

PARTICULARS OF THE APPLICANT Name: Residential or business address: Applicant’s solicitor’s name: and firm name: Solicitor’s business address: Address for service: DX (if any): Telephone: Fax: E-mail address (if any); [If the applicant has no solicitor: applicant’s address for service: applicant’s telephone number or contact number: applicant’s fax number (if any): applicant’s e-mail address (if any):] Signed: (party or solicitor) Description: (of signatory) Date: This application is to be served on: (include name of party and legal representatives (if any), and contact details of party and legal representatives)

Form 46 – Affidavit

Affidavit IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND REGISTRY: NUMBER:

Plaintiff: JOYCE JOAN SMITH(Applicant) Defendant: RONALD JIM MCDONALD(Respondent)

John Robert Jones of 123 Smith Way, Brisbane, in the State of Queensland, Solicitor, states on oath [or: solemnly and sincerely affirms and declares]: 1. I am etc 2. Exhibit A to this affidavit is etc 3. 4. Sworn [or Affirmed] by John Robert Jones on 23 May 1999 at Brisbane in the presence of:

(Signed by deponent) (Signed by person taking affidavit) (Statement of capacity to take affidavit eg Barrister) Deponent who certifies that the affidavit was read in the presence of the deponent who seemed to understand it, and signified that that person made the affidavit.

[who certifies that the affidavit was read in the presence of the deponent who seemed to understand it, and signified that that person made the affidavit, but was physically incapable of signing it]

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