Australia

Australia

Judgments of civil courts in Australia can be appealed to a superior court. Civil procedure legislation in each jurisdiction sets out the rules and procedure for appeals. Ordinarily, it will be necessary to seek leave from the superior court to appeal. The Court of Appeal in each state, and the Full Federal Court, are the ultimate courts of appeal for each of those jurisdictions. Cases that emanate from the Federal Circuit Court are appealable to the Federal Court and then the Full Federal Court, whereas matters emanating from a State Magistrates Court are appealable to the Supreme Court and the Court of Appeal. Decisions made by the District Court (County Court in certain states) are appealable to the Supreme Court and decisions of the Supreme Court can be appealed to the state’s Court of Appeal. The High Court of Australia hears appeals from courts of appeal (sometimes referred to as the full court) in all jurisdictions, and has limited original jurisdiction (which predominantly relates to constitutional matters). 

Parties generally, depending on the jurisdiction, have 28 days from the date of judgment or final order, to lodge an appeal in a civil matter to the relevant appeal court. Appeals will generally, because of the limitation of introducing new evidence in most civil appeals, be resolved more quickly than matters at first instance. Most appeals of civil matters will be heard and judgment given within six to eight months from commencement of the appeal. 

Last modified 19 Jul 2019

Austria

Austria

Unless a dispute is settled, proceedings usually end with a judgment (Urteil). Judgments are final decisions on the subject matter of the dispute and deal with material legal issues raised in the parties’ written statements and in the oral hearings. The written judgment will be distributed to the parties. Generally, parties will have four weeks after notification of the judgment to file an appeal against it. If the judgment is handed down in writing, the time limit for raising the appeal is four weeks calculated from the day following the handing down. If, however, the judgment is issued orally at the end of the hearing and in the presence of both parties, the party wishing to file an appeal must enter a notice of appeal either:

  • orally immediately after the judgment is pronounced; or
  • in writing within two weeks calculated from the day following service of the transcript of the minutes of the hearing.

Usually, judgments are handed down in writing. 

The jurisdiction of the appellate court depends on whether the appeal was made against a decision of a District Court or a Regional Court. First instance judgments given by the District Courts can be appealed to the Regional Courts, whereas first instance judgments given by the Regional Courts must be appealed to one of the four Higher Regional Courts.

The second instance court decides whether a second appeal to the Supreme Court is permitted. A second appeal to the Supreme Court usually requires there to be a legal question of considerable importance to ensure legal unity, security and development as well as an amount in dispute of more than EUR5,000. If the court declines the second appeal, there is still an opportunity to file an extraordinary second appeal to the Supreme Court. An extraordinary second appeal requires an amount in dispute of more than EUR30,000 or the dispute to be of a particular nature such as family law disputes or labor and social law disputes. Second appeals against judgments must be filed within four weeks from the date of the decision on the appeal. Appeals are typically resolved within four to six months after the appeal of the first instance judgment is filed. Supreme Court decisions might take up to one year. 

There are also ordinary appeals against resolutions of a court (Beschlüsse), which are not judgments. Resolutions typically concern the conduct of the proceeding and procedural issues. The appeal has to be brought against resolutions of the competent court of first or second instance within 14 days of the relevant resolution. Some appeals against special resolutions of the court can also be made within four weeks of the relevant special resolution.

Last modified 19 Jul 2019

Bahrain

Bahrain

In general, the judgments of lower courts can be appealed as of right to a superior court. The timeframe and grounds for such appeals are found in the Civil and Commercial Procedures Law. 

The general timeframe to file an appeal at each court level is 45 days from the date of the issued judgment that is being appealed, unless otherwise provided by law. Subject to a small number of exceptions, the timeframe for filing an appeal commences when the unsuccessful party has been notified of the judgment. 

If the competent court issues its judgment at a hearing where all parties were present, the timeframe for an appeal begins to run on the date of that hearing. 

A party loses its right to appeal if it fails to appeal a judgment within the permitted timeframe. Timeframes for appeal stages vary depending on the complexity of the case and whether the court has appointed an expert. There are no formal deadlines by which cases must proceed.

With the above in mind, cases before: 

  • the High Court will take approximately three to six months from commencement up to judgment;
  • the High Court of Appeal will take approximately two to four months from commencement up to judgment;
  • the Court of Cassation (in respect of civil matters) will take approximately 12 months from commencement up to judgment;
  • the Higher Shari’a Court will take approximately three to six months from commencement up to judgment;
  • the High Shari’a Court of Appeal will take approximately three to six months from commencement up to judgment; and
  • the Court of Cassation (in respect of Shari’a matters) will take approximately 18 months from commencement up to judgment.

The timeframes provided above assume that: 

  • the issues in dispute are limited to legal and factual issues;
  • the court has not appointed an expert; and
  • notification of the proceedings does not become protracted.

Last modified 19 Jul 2019

Belgium

Belgium

A judgment from a District Court can be appealed to the Court of Appeal within a month of its service on the appellant party. The Court of Appeal will review the facts of the case and the questions of law. A judgment from a Court of Appeal can be appealed to the Supreme Court but the Supreme Court will only review questions of law and cannot be regarded as a third instance. The timeframe for lodging an appeal to the Supreme Court is three months after the service of the relevant Court of Appeal judgment on the appellant party. 

If a party chooses to appeal a judgment it has to address the particular grievances it has with the first judgment. Only the parts of the first decision which are appealed shall be subject to a new decision. The defendant in an appeal might choose to appeal parts of a decision which aggrieved him or her, and can do so in written pleadings. 

Appeal proceedings can last a number of years depending on the court’s workload. By way of illustration, some appeal proceedings before the Brussels Court of Appeal have lasted more than five years. The Supreme Court usually takes around a year and a half to decide on a case.

Last modified 19 Jul 2019

Brazil

Brazil

In Brazil, parties may file an appeal against interlocutory decisions and final judgments. The term for the parties to file any appeal is 15 business days from the date the judgment is notified to the parties (with the exception of a motion for clarification, which must be made within 5 business days). After an appeal is filed, the opposing party has 15 business days to file a reply. Although it is very difficult to predict the duration of an appeal in Brazil, the average time for the Federal or State High Courts to render judgments varies from 12 to 30 months. 

Appeals before a State High Court are decided by a panel of three judges (in some cases it is possible for a single judge acting alone to decide the case). Each state has a High Court that will rule the appeals against decisions issued by the State Low Courts. Appeals filed against decisions issued by Federal Low Courts shall be decided by the Federal High Courts.

As noted in Overview of the court system, the Superior Court of Justice has jurisdiction to rule over appeals filed against decisions rendered either by a Federal or State High Court when:

  • such decisions contravene a treaty, convention or federal law; or
  • upon the analysis of a given treaty, convention or federal law, such decisions conflict with precedents from the Superior Court of Justice or the Supreme Court on the same matter.

The Supreme Court can rule over appeals against decisions rendered by a Federal or a State High Court or, even, decisions rendered by the Superior Court of Justice, when these decisions:

  • directly contravene the Brazilian Constitution;
  • declare a given treaty, convention or federal law as unconstitutional; and
  • relate to a law or ordinance deemed valid and issued by the relevant authority in one of the Brazilian states or cities. 

The duration of an appeal in the Brazilian High Courts (Federal or State) depends mainly on the complexity of the matter under dispute. The average duration of a High Court appeal is 36 months.

Last modified 19 Jul 2019

Canada

Canada

A judgment in a civil matter made by a provincial superior court can be appealed to an appellate court within the province. The highest appeal court in each province is known as the Court of Appeal. Judgments made by the Federal Court can be appealed to the Federal Court of Appeal which, likewise, is the highest appeal court in the Federal Court system. The Supreme Court of Canada hears appeals from provincial Courts of Appeal and the Federal Court of Appeal. An appeal to the Supreme Court of Canada typically requires leave by the Supreme Court of Canada itself. Where this is the case, leave is only granted where the appeal raises issues of public importance. As mentioned, there is no further appeal of a decision of the Supreme Court of Canada. 

An appeal of a judgment made by a provincial superior court or the Federal Court must typically be commenced within 30 days of the date of the judgment. Such appeals are normally heard within a year from the date of the judgment. The appeal court in question may issue a decision at the hearing of the appeal itself or may issue its decision some months later (although, generally, no more than 12 months later). 

Leave to appeal a decision to the Supreme Court of Canada must be commenced within 60 days of the appeal court decision that is being appealed. On average, the Supreme Court of Canada will decide a leave motion within six months, oral argument of the appeal on its merits will then occur within a further six months to a year, and a decision on the appeal will typically be delivered within an additional six months.

Last modified 19 Jul 2019

Chile

Chile

Appeals can be filed against certain decisions of an Ordinary Court and against the final judgment. Parties must file an appeal within 5 or 10 days – depending of the nature of the decision - from the date the judgment is served to the parties. The Appellate Court will analyze the appeal writ and will reject it if it does not contain the minimum requirements established by the law. If not rejected, the Appellate Court will judge and rule the case, or will establish a hearing where both parties may present their cases. 

Appeals are decided by a commission of three judges. 

Against Appellate Court decisions, the parties can file two remedies before the Supreme Court. These remedies will be granted if the party successfully demonstrates a wrong application of the law (casación en el fondo) or a procedural law infringement (casación en la forma). 

The timeframe of the Supreme Court to grant a ruling depends mainly on the complexity of the matter. The average duration of an appeal decision is one year. The Supreme Court remedies take the same amount of time.

Last modified 14 Jan 2020

China

China

Judgments and orders made by the courts below the Supreme People’s Court can be appealed once to the higher court, but, as noted above, judgments and orders of second instance courts are generally final and binding upon the parties. After a second instance judgment, the parties may only apply to the Supreme Court for a retrial in exceptional circumstances. The case will need to be of significant interest from a policy, legal and social justice perspective for the Supreme Court to grant a retrial request.

Parties can file an appeal against a first instance judgment for alleged fact-finding errors or errors in the application of the law or procedure within 15 days of notification of the judgment. The higher court will review both the facts and the application of the laws and, if necessary, will hold an oral hearing. Generally speaking, an appeal case is completed within three months of the court’s acceptance of the appeal. If an extension is needed, approval from the court’s president is required.

Last modified 19 Jul 2019

Finland

Finland

Judgments of the District Court may be appealed to a Court of Appeal based on merit. A party who wishes to appeal a judgment of a District Court must declare its intention to appeal the judgment within seven days of the judgment being handed down. The deadline for filing the actual appeal is 30 days from the date of the District Court judgment. Leave for continued consideration is required in all civil law cases and the party filing the appeal shall indicate the grounds for the appeal. The Court of Appeal will usually decide whether it grants leave for continued consideration within two to three months of the request for leave for continued consideration. Thereafter, provided that leave for continued consideration is granted, the Court of Appeal will usually resolve the appeal within approximately 12 months.

Leave to appeal must be requested from the Supreme Court in order to appeal a Court of Appeal judgment. Leave to appeal will only be granted on certain limited grounds which relate to the uniformity of legal practice and severe procedural errors that have occurred in previous phases. The appellant has 60 days from the date of the Court of Appeal judgment to: (i) apply for leave to appeal; and (ii) file the appeal. The Supreme Court will decide whether it grants leave to appeal within approximately six months of the request for leave to appeal. Thereafter, provided that the leave to appeal is granted, the Supreme Court will usually resolve the appeal in 14 months.

Last modified 19 Jul 2019

France

France

As a matter of principle, first instance decisions can usually be appealed. Appeals against decisions of a first instance court are lodged before the Court of Appeal with territorial jurisdiction. This said, the latest trend has been to designate courts of appeal to handle certain types of disputes (insolvency, antitrust, etc.). For certain type of cases (e.g. proceedings involving competition or stock-market authorities), all the appellate litigation is concentrated before the Paris Court of Appeal. Appeals have to be lodged within a month of the notification of the judgment, except if the appellant resides abroad (in which case the timeframe is extended for an additional two-month period). Appeals are typically resolved within 12 to 24 months after the notice of appeal is filed.

Appeals before the French Supreme Court are only intended to assess whether there has been a breach of legal principles or procedural rules. Such appeals have to be lodged within two months from the notification of the Court of Appeal’s decision, except if the claimant resides abroad (in which case the timeframe is extended to a four-month period). The French Supreme Court does not conduct a full factual assessment of the case. Appeals before the French Supreme Court are typically resolved within 12 to 24 months after the notice of appeal is filed.

Last modified 19 Jul 2019

Germany

Germany

Generally, a civil action begins at first instance either in the Local Court (if the amount in dispute is EUR5,000 or less) or the District Court (if the amount in dispute is more than EUR5,000). In principle, the parties can file a first appeal against a judgment to the next highest court (Berufung). On average, the appellate courts will decide upon the case 12 months after the date of the judgment of the first instance court.

Furthermore, after receiving an appeal judgment, under certain conditions the parties can file a second appeal (Revision) to the Federal Court of Justice. The second appeal must either be permitted by the Higher Regional Court or permitted by the Federal Court of Justice following a complaint against non-permission. Such permission requires that the dispute is of fundamental significance or that a decision of the Federal Court of Justice is required for the shaping of law through judicial decisions or the safeguarding of consistent case law.

Finally, the Federal Constitutional Court (Bundesverfassungsgericht) can hear complaints if constitutional rights have been violated and all ordinary legal remedies have been exhausted. Most of the constitutional complaints are resolved within 12 months of the appeal being filed.

Last modified 19 Jul 2019

Hong Kong, SAR

Hong Kong, SAR

The Court of Appeal hears appeals from both the District Court and the Court of First Instance.

For civil cases in the District Court, a party who is not satisfied with the decision of a judge can apply to that judge for leave (permission) to appeal. The time limit for seeking leave to appeal is 28 days from the date of a final judgment (or 14 days from an interlocutory order or decision). If the judge refuses to grant permission to appeal, the party may apply for permission to appeal from the Court of Appeal within 14 days from the date of the judge’s refusal.

For a case in the Court of First Instance, generally no leave is required for an appeal against a final judgment, but permission is still required for an appeal against an interlocutory order or decision of a judge of the Court of First Instance and the time limit for seeking leave is 14 days from the date of the interlocutory order or decision. Similar to an appeal from the District Court, if leave is refused by the Court of First Instance judge, the party may apply for permission to appeal from the Court of Appeal within 14 days from the date of the judge’s refusal. The time limit for filing a notice of appeal against a final judgment of the Court of First Instance where no leave is required is 28 days from the date of the judgment.

Due to a number of factors, such as the availability of the parties and judges, it usually takes a minimum of six months before an appeal will be heard by the Court of Appeal. In terms of timeframe for resolving the appeal, there is no stipulated period and the timeframe for the Court of Appeal to issue a judgment varies depending on factors including the court’s workload and the complexity of the case. For illustration purposes, the Court of Appeal may issue a decision in less than six months or it may take over a year.

For civil appeals, leave to appeal from either the Court of Appeal or Court of Final Appeal is required. Permission to appeal will only be granted if the question or questions involved in the appeal is / are of great general or public importance, or, if taking into account all the relevant circumstances such as merits, the appeal ought otherwise to be submitted to the Court of Final Appeal. The time limit for seeking permission to appeal to the Court of Final Appeal is 28 days from the date of the Court of Appeal judgment. If the Court of Appeal refuses to grant leave, a further application for leave can be made to the Court of Final Appeal within 28 days from the date of the Court of Appeal’s refusal. The Court of Final Appeal will usually hand down its written judgments within approximately one year after leave has been granted. That said, much depends on how busy the Court of Final Appeal is and also on the complexity of the case.

Last modified 19 Jul 2019

Hungary

Hungary

Judgments of the first instance court become final and non-appealable if the parties do not appeal within the required timeframe. Generally such appeal must be brought within 15 days of the judgment being communicated to the parties.

Appeals are typically resolved within 6 to 18 months after the notice of appeal of the first instance judgment is filed.

Second instance judgments are not subject to appeal other than by extraordinary revision.

In addition to the traditional appeal, there are extraordinary remedies, such as motion for retrial and extraordinary revision by the Curia.

A motion for retrial may be filed with the first instance court against a final and binding judgment, where new facts or circumstances are discovered after the judgment. A party to the original proceedings may initiate a retrial only if the newly discovered facts or circumstances would have been to the party’s benefit had they been considered originally. Retrial may be requested within six months, from the day when the judgment became final, or from the day when the new circumstances become known to the party, whichever occurs later. In any event, retrial may not be requested once five years has passed since the judgment became final.

An extraordinary revision is a special appeal against a final and non-appealable second instance judgment, filed with the Curia. This review may be requested within 60 days of service of the second instance judgment. Though such appeals are described as extraordinary, it is not uncommon for parties to turn to the Curia. The Curia’s review has a narrower scope than an appeal, as the Curia will only consider legal issues and will not re-examine the underlying facts and circumstances of the case.

Certain types of cases are generally exempt from referral to the Curia, unless (exceptionally) the Curia deems that the importance of the legal question in issue makes such referral necessary. These cases include: claims below HUF5 million (approximately EUR15,000); decisions concerning child custody, or cases concerning joint ownership of condominiums.

Last modified 19 Jul 2019

Italy

Italy

An appeal must be filed within six months from the date on which the judgment is published (i.e. filed at the registrar's office of the rendering judge) or, if a certified copy of the judgment is served at the request of a party, within 30 days from the date of service. Where a judgment is appealed, the case will be revisited by the Court of Appeal. The parties are not allowed to introduce new claims and further evidence is either not admissible or is admissible only to a very limited extent.

The timeframe for the Court of Appeal to decide on an appeal varies depending on the district. Usually larger districts (such as Rome and Milan) take longer. On average, it takes the Court of Appeal no less than 36 months from the date of the first instance court judgment to give its decision.

A Court of Appeal decision can be challenged before the Supreme Court, but only on grounds of law (whether substantive or procedural). The timeframe for appealing a Court of Appeal decision is:

  • six months from the date on which the appellate judgment is published (i.e. filed at the registrar's office of the rendering judge); or
  • if a certified copy of the judgment is served at the request of a party, within 60 days from the date of service.

In principle, the Supreme Court does not review the decision on its factual grounds.

The timeframe for the Supreme Court (Court of Cassation) to decide on an appeal ranges between 36 and 48 months.

Last modified 19 Jul 2019

Ireland

Ireland

Judgments in civil cases can be appealed by a notice of appeal which must be lodged with the appellate court within 28 days (or 10 days if an expedited appeal) following perfection of the Court Order.

The appellant must serve the notice of appeal on the other party within 7 days of it being lodged and the respondent must lodge and serve a respondent’s notice within 21 days of the notice of appeal being served on them. The timeframe for the court to hear an appeal will depend on the court’s timetable, however it generally takes at least 6 months (and can be more than 12 months).

The Court of Appeal for civil matters was established in 2014 and acts as the appeal court from the High Court. However it is possible to “leapfrog” the Court of Appeal and appeal directly to the Supreme Court if the Supreme Court agrees that there are exceptional circumstances that warrant it and one or both of the following factors applies:

(i) a matter of general public importance; and/or

(ii) the interests of justice.

Last modified 27 May 2021

Japan

Japan

A party dissatisfied with a judgment at first instance may file an appeal by submitting a petition of appeal within two weeks of receipt of the judgment from the court of first instance. An appellant is required to file detailed grounds of the appeal within 50 days after filing a petition of appeal if such grounds are not provided in the petition. The respondent must file an answer by the date stipulated by the court, which is usually one to two weeks before the court hearing. Although there is no statutory limit on the number of court hearings that may be held on appeal, usually only one or two hearings are held. A party may be allowed to submit supplemental written submissions. It typically takes between 6 and 12 months from submitting the petition of appeal to a final decision, but the process may take longer than 12 months in complex cases.

A party dissatisfied with a judgment of a court of second instance may file an appeal to the Supreme Court, but only if: (i) it is alleged that the second instance judgment violates the Constitution; or (ii) even where no violation of the Constitution is alleged, the judgment involves material matters concerning the interpretation of laws and regulations. In these cases, a party may file a petition for leave to appeal to the Supreme Court within two weeks of the second instance judgment being handed down. This petition for leave to appeal invites the Supreme Court to exercise its discretion to accept the final appeal. In the event that the Supreme Court agrees to hear the appeal, it typically takes between four and six months for the final judgment to be given. It tends to take longer when the Supreme Court overturns decisions by the lower courts.

A judgment becomes final and binding once it cannot be further appealed. Parties may not dispute the contents of final and binding judgments unless certain exceptional circumstances exist.

Last modified 19 Jul 2019

Kuwait

Kuwait

The General Courts, the lowest tier of the structure, are trial courts divided into circuits with specialized subject matter jurisdiction. The Court of Appeal hears appeals from decisions of the General Courts (subject to meeting minimum value considerations). In most cases the scope of its review will be limited to the particular issues being appealed from the General Courts. However, the Court of Appeal is empowered to conduct a de novo trial, addressing again all the factual and legal issues. The Court of Cassation only determines points of law. It has final jurisdiction covering matters relating to the proper application, interpretation, and enforcement of law, and rectifies only legal procedural and legal substantive defects committed by the inferior courts. As such, it typically deals with questions of law, rather than considering the merits of a case.

A party has 30 days from the date of the first decision of the General Courts to appeal to the Court of Appeal. The timeframe for the Court of Appeal to resolve appeals is usually anytime between six months to one year, depending upon the nature and complexity of the case. Judgments handed down by the Court of Appeal are final unless the case is taken to (and accepted by) the Court of Cassation. Again, a party has 30 days from the date of an appellate decision to appeal to the Court of Cassation. First, a council chamber will have to entertain the matter if it accepts that the case will be heard by the Court of Cassation. If rejected, the appeal is deemed declined. It will usually take two years for a judgment to be given following this appeal.

Last modified 19 Jul 2019

Mexico

Mexico

Except for low value claims (the relevant threshold changes annually), upon notification of a first instance judgment, a party may appeal it to the relevant second instance court within 9 to 12 working days. The appeal must be filed in writing before the court of first instance, which will later transfer the case to the superior court. The superior court will then render a decision confirming, revoking or modifying the first instance ruling. The appeal procedure comprises an evidentiary stage, a stage for written pleadings and a hearing. Afterwards, the parties are summoned by the court to listen to the ruling.

The evidentiary stage at second instance is only allowed:

  • when the parties did not produce any evidence in the first instance proceeding for reasons beyond their control;
  • when exceptional circumstances arose after the merits hearing;
  • when an applicable law or statute were not known by the parties.

In the event that these exceptional circumstances do not apply, the judge would assess the facts as they were presented at first instance.

The general timeline for the different stages of appeal is as follows: the appealing party initiates the appeal by filing a request containing the alleged offenses caused to such party by the first instance judgment (appeal request) before the judge of first instance within nine days after the judgment is issued. The judge will then review the appeal request and provide six days to the other party to respond (response to appeal). The judge of first instance will proceed to authorize or deny the appeal within five days and, if the appeal is authorized, will transfer the appeal file to the judge of second instance. The judge of second instance will review the file and summon the parties to the final hearing within 20 days of receipt of that file. The judge’s final decision will be rendered in the final hearing.

Evidence is only allowed in the second instance in specified circumstances. Where it is allowed, the parties will have ten days to reproduce all the evidence and the final hearing takes place ten days after this stage.

Judgments in respect of low value claims and judgments issued by the second instance court on civil and commercial matters cannot be appealed except through a constitutional remedy (amparo) filed before a federal collegiate court. This route of appeal is only available where a party argues its constitutional rights have been violated. The constitutional remedy is a unique feature of Mexican law and may act as a last recourse in court actions when a violation to a party’s constitutional rights occurs during the proceedings, or results from the decision itself. This latter type of amparo is known as amparo directo, and is filed before the court that issued the decision, and transferred to the Collegiate Circuit Courts.

Each of these appeal proceedings (amparo and amparo directo) last, on average, between four to six months. Having said that, in some instances, particularly where the cases are of extreme complexity or involve voluminous evidence, this time frame may be extended.

Last modified 19 Jul 2019

Netherlands

Netherlands

Most civil cases begin in the district courts. The domicile of the defendant usually determines the district court that will hear the claim. In general terms, appeals against judgments of the district courts can be heard at one of the four high courts of appeal. The relevant court of appeal re-examines the facts of the case and reaches its own conclusion. In most cases, it is possible to contest the court of appeal’s judgment by appealing to the Supreme Court. The Supreme Court only assesses whether there is a breach of legal principles or procedural rules, and does not conduct a full factual assessment of the case.

The usual timeframe for appeal is three months from the date of the district court judgment.

Last modified 19 Jul 2019

New Zealand

New Zealand

Judgments of the District Court can be appealed as of right to the High Court, and first instance judgments of the High Court can be appealed as of right to the Court of Appeal.  A judgment of the High Court on appeal from the District Court can only be appealed to the Court of Appeal with leave of either the High Court or the Court of Appeal.  

Leave may also be required to appeal an interlocutory decision. 

All appeals to the Supreme Court require an application for leave to appeal first. 

The various court rules proscribe the appeal period, which is generally 20 working days from the date of judgment. 

Appeals will generally, because of the limitation of introducing new evidence in most civil appeals, be resolved more quickly than matters at first instance.  The appeal court will not generally hear from any witnesses. 

Last modified 20 Dec 2019

Norway

Norway

Judgments of a District Court may be appealed to a Court of Appeal on questions of fact, law or procedure. Appeal proceedings are available as of right, except in cases of very low value, where permission to appeal is required. The Court of Appeal may also refuse permission to appeal if it considers that it is clear that the appeal will not be successful.

An appeal must be made within one calendar month from the date of the service of the District Court’s judgment. The respondent will then normally be given a three-week deadline to submit a reply.

The average processing time for civil cases in the Court of Appeal is six months. However, complex multi-party cases will usually have a significantly longer processing time.

An appeal from a judgment of the Court of Appeal to the Supreme Court is available only by leave of the Appeals Selection Committee. Such leave is given ordinarily only in cases of high precedential value, public importance or where there are other strong reasons that merit consideration of the case by the Supreme Court. The deadline for appeal is the same as for the Court of Appeal. There are no official statistics with regard to the processing time in the Supreme Court, but in our experience cases are usually heard within a period of six months.

Last modified 19 Jul 2019

Poland

Poland

A losing party may appeal against a judgment of the court of first instance to the court of second instance. The appellant must demand a written justification of the judgment and has two weeks from its delivery to file an appeal. It is necessary to file the appeal via the first instance court. The respondent has to file a response within two weeks of the delivery of the appeal. In the second instance, the court (comprising three judges) rules on the merits and reconsiders the whole case. New evidence may be admitted or rejected by the court if the party could have raised it in the first instance.

There is no specific time limit for the court of first instance to forward the case files to the court of second instance. The only instruction contained in the CPC is that the court of first instance must “promptly” forward the case files to the court of second instance. The duration of proceedings before the court of second instance varies, depending on the court’s workload. Second instance proceedings may last, on average, between six months and two years.

The Polish legal system also provides for an extraordinary review of judgments of second instance courts (i.e. a cassation appeal to the Supreme Court) which must be brought no later than two months after the delivery of the judgment along with a written justification by the second instance court. A cassation appeal will be accepted and processed if:

  • the case presents a significant legal issue or an issue that causes discrepancies between court judgments;
  • a cassation appeal is manifestly justified; or
  • the earlier court proceedings were invalid.

The cassation proceedings may take between 9 and 12 months before the Supreme Court decides on the merits of the case. However, the timing and duration of the proceedings depend on the court’s workload and the complexity of the examined case. According to the CPC, the Supreme Court is not limited by any deadline in deciding the case.

In cases before the Supreme Court, only an attorney who is admitted to the Polish bar (an advocate or an attorney-at-law) is permitted to write the appeal and represent a party during the hearings.

Last modified 19 Jul 2019

Qatar

Qatar

There are two levels of appeal in Qatari court proceedings: first to the Court of Appeal and secondly to the Court of Cassation. Judgments of the Court of Appeal are capable of enforcement by the judgment creditor notwithstanding any further appeal by the judgment debtor. Enforcement action is dealt with by the separate Court of Execution. While the right of appeal to the Court of Appeal is automatic and thus the majority of cases are appealed, the right of appeal to the Court of Cassation is limited to circumstances where there has been an error of law or a procedural irregularity.

Any party seeking to appeal a judgment of the Qatari civil court should ensure that it does so within the applicable time limit: i.e. 30 days for an appeal to the Court of Appeal and 60 days for an appeal to the Court of Cassation. On average, it is common for the Court of Appeal and Court of Cassation to take one year to issue judgment in relation to an appeal, but this can vary depending on the caseload of the court at the time.

Prospective claimants should be conscious that the broad rights of appeal available in the Qatari courts can add considerably to the cost and delay in litigating in the country. This is similar to other legal systems in the Middle East.

Last modified 19 Jul 2019

Romania

Romania

There are two types of challenges that can be brought against a court decision: ordinary and extraordinary.

As a rule, the interested party can appeal against the first court’s decision within 30 days of the communication of the first court’s decision. The appeal will be judged by the superior court. In particular:

  • judgments of a Court first instance can be appealed to the Tribunal with territorial jurisdiction;
  • judgments of the Tribunals can be appealed to the Court of Appeal with territorial jurisdiction;
  • judgments of the Court of Appeal can be appealed to the High Court of Justice.

Provided certain admissibility conditions are fulfilled, the parties may also seek the following extraordinary appeals:

  • a second appeal (recourse), which can only be sought in those matters where the law expressly allows it (for example in respect of high value claims) and only where it is alleged that there has been a breach of legal principles or procedural rules;
  • a revision of the decision, which can only be permitted when it is expressly provided by the law (for example, when the material object of the judgment no longer exists or the judge, witness or expert of the case have been criminally convicted for criminal acts in relation to that specific case); or
  • an annulment of the decision, which can only be sought in cases of certain serious procedural breaches.

The second appeal will be determined by a higher court than the court that rendered the original decision. The revision and the annulment of the decision are determined by the court that issued the decision that the appellant party is seeking to have reviewed or annulled. These extraordinary remedies may be exercised cumulatively (i.e. they are not exclusive of each other).

Typically, the period from filing an appeal until the appeal is determined is around six to nine months.

Last modified 19 Jul 2019

Russia

Russia

As commercial disputes are predominantly heard by state commercial courts, this summary outlines the general procedure of appeal in state commercial courts.

Generally, a judgment of the state commercial court may be challenged as follows:

  • an appeal in the state commercial court of appeal: the parties have one month to appeal a judgment in the court of appeal. The decision will not enter into force until the expiry of such period or until the court of appeal issues its decision. Proceedings in the court of appeal usually range from two to three months;
  • a cassation appeal in the state commercial court of a district: once the resolution of the court of appeal is issued, the parties have two months to challenge it at the court of cassation. Usually, proceedings in a court of cassation can take between two to three months;
  • a review by the Supreme Court: the Russian Supreme Court is the court of extraordinary instance which deals with major misapplications of substantial and procedural laws by lower courts. Leave is required from a judge of the Supreme Court for a case to be considered, either by:
    • the Economic Collegium of the Supreme Court: second cassation appeal, which may be submitted within two months from the date of the judgment of the state commercial  court of a district. The second cassation appeal is aimed to review the substantial violations of law that have affected the outcome of a case;
    • the Presidium of the Supreme Court: supervisory review petition, which may be submitted within three months from the date of judgment of the Supreme Court judge.

Since the Presidium of the Supreme Court is the last appellate instance, it only considers appeals based on extraordinary grounds.

Last modified 19 Jul 2019

Saudi Arabia

Saudi Arabia

There are First Instance Courts in almost all the provinces and cities in Saudi Arabia in order to facilitate the conduct of proceedings for individuals. Courts of Appeal are located in all the 13 provinces in Saudi Arabia. The Supreme Court is based in Riyadh.

A judgment of the First Instance Court can be appealed within 30 days from the date the written judgment is issued (which is usually different from the date of the final hearing at which the parties are informed of the judgment). If none of the parties appeal, the judgment becomes final after 30 days. All judgments accepted by both parties become final immediately.

In practice, the appeal court may take up to three months to review the case and make a decision.

Last modified 19 Jul 2019

Spain

Spain

The parties have the right to file an appeal against the judgments entered at first instance within 20 working days of the notification of the first instance judgment. The competent court to hear the appeal is the corresponding Provincial Court (Audiencia Provincial). The court will be formed of a panel of three judges and will have the opportunity to review everything done in the lower court. The timeframe in which appeals are resolved by the Provincial Court varies, ranging from 6 to 18 months.

The judgment issued by the Provincial Court may also be subject to an extraordinary appeal. Appeals may be made for breaches of procedure (recurso extraordinario por infracción procesal) or incorrect interpretation or application of the law or when a judgment has been obtained in a proceeding that has not complied with the required formalities (appeal in cassation / recurso de casación). These extraordinary appeals must be filed before the Provincial Court which issued the relevant judgment within 20 working days of notification of the judgment to the relevant party. Such appeals will be heard by the High Court of Justice of the relevant region, when the applicable law is the regional civil law, and the First Chamber of the Supreme Court (Sala Primera del Tribunal Supremo), when the applicable law is national civil law. 

The appeal in cassation is limited to cases where: (i) the amount claimed exceeds EUR600,000; (ii) the decision is contrary to the settled case law of the Supreme Court; or (iii) the judgment of the Provincial Court is issued to provide civil judicial protection of fundamental rights.

The timeframe in which the Supreme Court resolves extraordinary appeals ranges between 18 and 24 months.

Last modified 19 Jul 2019

Sweden

Sweden

If a party wishes to appeal a judgment of a District Court, the party is required to seek leave to appeal from the Court of Appeal. The timeframe to request such leave is three weeks from the date of the District Court’s judgment. After that timeframe, only extraordinary grounds for appeal are allowed. There are three such extraordinary grounds under Swedish law, namely if:

  • a new trial is possible due to new evidence becoming available which could not have been brought in the first trial;
  • the party for some extraordinary reason was unable to file an appeal within the stipulated time; and
  • if the appellant alleges a serious procedural error.

The three grounds may all lead to an overruling of a judgment that has entered into legal force. It is, however, very rarely seen in Swedish civil law cases. The timeframe in which the Court of Appeal usually resolves appeals of District Court judgments is usually about 12 months.

The Supreme Court generally only deals with legal precedents (i.e. when it is deemed important to establish a precedent for the lower courts), and it is necessary to obtain leave to appeal in the Supreme Court. Leave to appeal must be sought within four weeks of the date of the Court of Appeal’s judgment. The Supreme Court usually decides on leave to appeal within 3 to 4 months and resolves the appeal within 6 to 24 months of granting leave to appeal.

Last modified 19 Jul 2019

Thailand

Thailand

The Court of First Instance is an umbrella term for the trial courts that conduct the original trials and render the first decision. A party may appeal a Court of First Instance judgment to the Court of Appeal within one month of the judgment being issued.

To appeal to the Court of Appeal, an applicant must satisfy the following conditions:

  • the claim must have a value of THB50,000 or more (unless the Court of First Instance has indicated that there should be a right of appeal regardless); and
  • no new evidence or arguments can be submitted at the appeal stage, unless the matter concerns public order.

A judgment of the Court of Appeal is usually final but permission to appeal to the Supreme Court can be obtained. An application for such permission should be made within one month of the decision being handed down by the Court of Appeal.

The Supreme Court may accept an appeal if they are satisfied that the appeal raises a significant question for the court to consider, including if:

  • the question is one involving public interest or public order; or
  • the question should be answered in order to improve the interpretation of the law.

The Civil Procedure Code does not prescribe a specific timeframe for the Court of Appeal or Supreme Court to render decisions. In practice, the appellate courts would take at least six months from the submission of all pleadings to consider an appeal. It is not uncommon for the Supreme Court to take more than two years to consider an appeal.

Consumer protection legislation, however, provides that the Court of Appeal should render its decision in consumer cases within a year from the submission of all pleadings.

Last modified 19 Jul 2019

UK - England & Wales UK - England & Wales

UK - England & Wales

Judgments of civil courts can be appealed. However, appeals are usually limited to questions of law and not issues of fact. A party wishing to appeal will need the permission of either the court which has given judgment, or the appropriate appellate court before its appeal can proceed. Permission for an appeal will only be given where the court considers that the appeal has a real prospect of success, or there is some other compelling reason for the appeal to be heard. Decisions of the High Court may be appealed to the Court of Appeal. Decisions of the Court of Appeal may be appealed to the UK Supreme Court where they concern an arguable point of law of general public importance.

There are prescribed time limits for filing a notice of appeal and these vary depending upon the type of appeal that is being brought. In the majority of cases, the time limit is 21 days to appeal against a county court or High Court decision. However, there are a number of exceptions, for example, 28 days if it is an appeal against an Upper Tribunal decision or 14 days if it is an appeal against a Competition Appeal Tribunal decision. 

The timeframe for an appeal to be resolved depends on the complexity of the case, and the court’s workload. In the Court of Appeal: (i) a relatively urgent appeal may take around six months; (ii) an appeal on a non-urgent complex commercial matter may take between 12 to 18 months, from the moment when permission to appeal was granted. Appeals to the Supreme Court similarly may take around 12 to 18 months. 

Last modified 19 Jul 2019

UK - Scotland

UK - Scotland

Judgments of civil courts in Scotland can be appealed to a superior court. Appeals from the Sheriff Court are to the Sheriff Appeal Court. Appeals from the Outer House are to the Inner House and from the Inner House there is the right to request that the Inner House allow the appellant to make a further appeal to the UK Supreme Court in London. In the event such a request is refused, a party can ask the Supreme Court directly for permission to appeal. Such permission will normally only be given if the appeal raises a point of general public importance.

The time period in which an appeal can be made in the Sheriff Court is 28 days, although in cases where leave is required, permission to appeal must be obtained within seven days. Appeals from the Sheriff Appeal Court to the Inner House of the Court of Session can only be made with the permission of either court. Appeals from the Outer House to the Inner House in respect of a final decision must be made within 21 days and appeals from the Inner House to the UK Supreme Court require an application for leave to be made within 28 days of the decision being appealed against being made. Generally, the UK Supreme Court will hear an appeal within 12-15 months of permission being granted, and the judgment follows usually within 12 weeks of the hearing.

Last modified 19 Jul 2019

United Arab Emirates

United Arab Emirates

The DIFC and ADGM each have a two-tier court system: the Court of First Instance and the Court of Appeal. The respective court rules of the DIFC and ADGM have broadly similar procedures for the appeal of judgments of the lower court. In each case, before the judgments of the Court of First Instance can be appealed to the Court of Appeal, permission to appeal is required.

Obtaining permission to appeal differs slightly between the DIFC and ADGM courts:

  • under the DIFC court rules, where permission to appeal is initially refused on the papers, a party may seek to renew the application at an oral hearing; and
  • under the ADGM court rules, all applications for permission to appeal are considered without a hearing.

In DIFC court proceedings, an application for permission to appeal may be made to:

  • the Court of First Instance at the hearing where the judgment was made; or
  • that court or the Court of Appeal in a subsequent appeal notice.

If permission is sought by way of an appeal notice, that appeal notice must be filed either within the period directed by the lower court or, if no such direction was provided, within 21 days after the date of the decision of the lower court that the appellant wishes to appeal. If the lower court refuses permission, a further application for permission can be made to the Court of Appeal within 21 days of the lower court’s refusal.

In ADGM court proceedings, and similar to DIFC court proceedings, permission must be obtained from a decision of a judge in the Court of First Instance in order to appeal to the Court of Appeal. In order to obtain such permission, an application may be made to the Court of First Instance within 14 days of the date when the decision to be appealed was made. Should the Court of First Instance refuse an application for permission to appeal, a further application for permission to appeal may be made to the Court of Appeal within 28 days from the date of the refusal. All applications for permission to appeal are considered by a panel of three judges without a hearing. The panel may grant or refuse permission to advance all or any of the grounds of appeal or invite the parties to file written submissions within 14 days in relation to the grant of permission. Permission to appeal may only be granted where the panel considers that the appeal would have a real prospect of success or there is some other compelling reason why the appeal should be heard.

Last modified 19 Jul 2019

United States

United States

In the federal system, the 13 Courts of Appeal hear appeals from the decisions of the federal District Courts, and the Supreme Court hears appeals from the decisions of the Courts of Appeal. Most states follow a similar structure for their appeals courts. Some smaller jurisdictions do not have an intermediate appellate court, with all appeals being taken directly to the state Supreme Court.

In all state and federal trial courts, final judgments can be appealed once as a matter of right. Rules of appellate procedure in each jurisdiction set out the requirements and timing for appeals. Appeals must typically be commenced within 30 days following entry of the underlying judgment. Appeals are typically resolved within six to nine months after this notice is filed.

A further discretionary appeal to the applicable supreme court may be allowed with that court’s permission. The US Supreme Court hears appeals from federal Courts of Appeal and state courts on questions of federal law, and has limited original jurisdiction to hear suits between states or foreign ambassadors or similar officials. State supreme courts hear appeals from intermediate appellate courts in their respective states. Appeals to a federal or state supreme court are typically resolved in 6 to 12 months.

Typically, appeals may only be taken from final judgments. However, in the federal system, an immediate right of appeal may be taken from orders granting or denying injunctions, establishing receiverships, or adjudicating rights and liabilities in admiralty proceedings. A party may also be able to petition an intermediate appellate court to hear an appeal of an interlocutory order if the order poses a particularly significant and unsettled legal question, though, in practice, such appeals are only rarely allowed. Appeals are typically resolved in six to nine months.

Notable State Variations

  • California. There is no right of immediate interlocutory appeal; however, a party may petition an appellate court for a writ of mandamus to permit an appeal on a particularly significant issue. This procedure is often used to challenge an order denying a petition to quash a complaint for lack of personal jurisdiction over the defendant.
  • Illinois. Certain contempt orders are immediately appealable if they impose a monetary fine or other penalty.
  • New York. New York is significantly more generous in its allowance of interlocutory appeals than other states or the federal system. With few exceptions, interlocutory appeals may be taken from any order that involves some part of the merits of a case or affects a litigant’s substantial rights. Ex parte orders are not eligible for interlocutory appeal.
  • Texas. Orders granting or denying class certification or denying summary judgment based on a finding of immunity are immediately appealable as of right.

Last modified 19 Jul 2019

Australia’s courts operate under the common law legal system. Australia has a federal system of government, with legislative power divided between the federal branch of government and six state and two territory governments (for ease, we refer collectively to the states and territories as the state or states). Australia’s courts are similarly divided into eight separate state jurisdictions and a federal jurisdiction, which each operate on a parallel but independent hierarchy of courts. State and federal courts broadly have jurisdiction over the application of legislation enacted by the state and federal parliaments respectively. The High Court of Australia is the ultimate court of appeal in Australia for all court systems. There are also tribunals created by specific legislation under state and federal jurisdictions.

In each state or territory of Australia, specific legislation imposes a time period before the end of which proceedings must be commenced for a claim or dispute. 

The specific legislation is: 

  • Limitation Act 1985 (ACT)
  • Limitation Act 1981 (NT)
  • Limitation Act 1969 (NSW)
  • Limitation of Actions Act 1974 (QLD)
  • Limitation of Actions Act 1936 (SA)
  • Limitation Act 1974 (TAS)
  • Limitation of Actions Act 1958 (VIC)
  • Limitation Act 2005 (WA) 

These time periods vary from state to state and depend upon the type of claim. A failure to issue proceedings before the relevant time period expires is likely to result in that claim becoming time barred. 

In most Australian states, actions in simple contract or tort must be brought within six years of either the date of breach (contract) or the date on which loss was incurred (tort). 

The limitation period may be extended in some circumstances, for example where someone with legal incapacity (such as a minor or a person of unsound mind) has entered into a contract. Some jurisdictions also permit for the limitation period to be extended at the court’s discretion.

The process of litigation is broadly similar across Australian courts. Proceedings are initiated by a claim or application, which must be filed in the relevant court and served on all parties to the proceeding. Parties will then exchange pleadings (such as statements of claim, defenses, counterclaims, and replies) which define the parameters of the dispute between the parties and the specific issues which are to be proved by each party. Timeframes for the progression of litigation are found in the civil procedure rules applicable in each jurisdiction. Generally, a defense must be filed within 28 days of service of a statement of claim. 

For proceedings in the Federal Court, parties are required to file a genuine steps statement, which outlines the steps taken to make a sincere and genuine attempt to resolve the dispute prior to commencing litigation. Superior courts in the states may also require a party to litigation to provide details of attempts made to resolve a dispute before proceedings were commenced.  

Once the exchange of pleadings is complete, parties will generally undertake the discovery (also known as the disclosure) process, and then go on to prepare their evidence for a final hearing of the dispute. It is common, particularly in complex litigation, for the parties to be obliged to attend court at regular intervals for directions hearings, in which orders are given to manage the conduct and timeframes of the case up until its final hearing. 

Timeframes for each stage of proceedings vary greatly with the complexity and case management style of an individual matter and the specific jurisdiction in which the case is commenced. Each superior court in the states has in place specific practice notes or directions for the conduct of commercial disputes with the aim of ensuring that those commercial disputes are resolved in the most cost-effective and time-efficient manner possible. Generally, across all jurisdictions, parties will have 28 days from receipt of a claim to put on a defense. As noted above, the timetable from that point of time will depend on the nature of the dispute.  

A straightforward commercial contract dispute will normally, court resources permitting, be resolved within 12 months. 

Most state and federal courts require a corporate entity to be represented by a lawyer (which could include a lawyer employed by a company). Some jurisdictions dealing with small claims / employment issues may allow a company to appear by its director. Individuals may appear on their own behalf in most jurisdictions without a lawyer.

In Australia, the discovery process is designed to allow parties to civil litigation to obtain from an opponent all documents relevant to the issues in dispute. Australian courts strictly prohibit “fishing expeditions” through discovery. Discovery is usually undertaken after the close of pleadings (although in some courts in some states this may not be permitted until after evidence is complete) when the points of dispute between the parties have crystallized. Discovery may however be ordered, in limited circumstances, prior to the commencement of proceedings where an applicant is able to satisfy the court that he or she needs to obtain discovery in order to find out whether or not a cause of action exists against a potential defendant.  

The practice of disclosure varies between those jurisdictions which mandate a general right of discovery and those in which the right is more limited. In the Northern Territory and the states of South Australia and Queensland, parties have a mandatory duty of disclosure which is discharged by the exchange of lists or copies of discoverable documents. In Tasmania, Victoria and Western Australia, a party may, by written notice to another party, require that party to make general discovery. In the Federal Court of Australia and New South Wales, the right to discovery is limited and requires an order of the court and will usually be limited to specific categories.  

There have been recent attempts by some of the states’ superior courts to more tightly control the disclosure process. For example, the preparation of disclosure plans (which identify the categories of documents to be disclosed and how they will be disclosed), and the courts ordering that discovery being provided after the exchange of written evidence with a view to limiting the number of documents to be exchanged. 

In the Federal Court and most state courts, discovery can be ordered to be made by non-parties to the dispute where the court is satisfied as to the likelihood of the non-party having relevant documents. Courts in Australia will also generally permit the issuing of subpoenas to produce documents to non-parties to litigation and this process will be more straightforward than seeking non-party disclosure orders. 

Default judgment can be applied for in proceedings in any court where a defendant does not:

  • file a defense within the specified timeframe after a statement of claim has been served; or
  • fails to make an appearance at a hearing.

Once a default judgment is ordered against a defendant, a defendant can, in limited circumstances, seek to challenge the granting of judgment by default. The defendant will need to file an application or motion to set aside the default judgment within a specified period of time and show cause for why (usually lack of notice of the claim or that notice was given of intent to defend but that notice was not brought to the attention of the court which granted the default judgment) the judgment should be set aside.

Judgments of civil courts in Australia can be appealed to a superior court. Civil procedure legislation in each jurisdiction sets out the rules and procedure for appeals. Ordinarily, it will be necessary to seek leave from the superior court to appeal. The Court of Appeal in each state, and the Full Federal Court, are the ultimate courts of appeal for each of those jurisdictions. Cases that emanate from the Federal Circuit Court are appealable to the Federal Court and then the Full Federal Court, whereas matters emanating from a State Magistrates Court are appealable to the Supreme Court and the Court of Appeal. Decisions made by the District Court (County Court in certain states) are appealable to the Supreme Court and decisions of the Supreme Court can be appealed to the state’s Court of Appeal. The High Court of Australia hears appeals from courts of appeal (sometimes referred to as the full court) in all jurisdictions, and has limited original jurisdiction (which predominantly relates to constitutional matters). 

Parties generally, depending on the jurisdiction, have 28 days from the date of judgment or final order, to lodge an appeal in a civil matter to the relevant appeal court. Appeals will generally, because of the limitation of introducing new evidence in most civil appeals, be resolved more quickly than matters at first instance. Most appeals of civil matters will be heard and judgment given within six to eight months from commencement of the appeal. 

All superior Australian courts have a wide power and discretion to grant both interlocutory orders and interlocutory injunctions. An interlocutory application, generally speaking, is an application which seeks any order other than a final judgment. 

As in other jurisdictions, interlocutory injunctions are a species of interlocutory orders. Where those orders are sought on an urgent and temporary basis until a more extended form of relief is sought, they are often referred to as interim orders. 

Interlocutory orders (including interlocutory injunctions) can require a party to undertake or refrain from a particular act, and can be granted before proceedings have commenced, once they are on foot and after judgment has been entered. Applications for these types of orders may be made by self-represented litigants or through legal representation. 

The categories of non-urgent interlocutory orders that an applicant may seek are many and varied and include, by way of example, applications for security for costs, discovery (including preliminary discovery before proceedings have been commenced), the filing of expert evidence or orders for particulars, The evidence required to obtain non-urgent interlocutory orders will turn on the type of orders sought, although at the very least substantive interlocutory applications usually require a sworn affidavit to be filed. 

The kinds of relief that can be sought by way of an urgent interlocutory injunction are equally varied. This is because the orders have the purpose of preserving the status quo until the rights of the parties can be determined finally, and the types of matters that can be heard by the court are vast. Common urgent interlocutory injunctions include applications for the preservation of property, the freezing of assets and applications to search premises to preserve evidence.

An applicant for an interlocutory injunction (either urgent or not) must prove that: 

  • there is a serious question of law to be tried;
  • the balance of convenience favors the granting of the injunction; and
  • an award of damages (at the conclusion of the proceeding) would not be an adequate remedy. 

It is possible for urgent interlocutory injunction applications to be heard by the court ex parte, without the opposing party’s involvement. Any orders given ex parte will generally operate only for a limited period of time until the matter can be brought to a hearing. The duration of any ex parte order will ordinarily be limited to a period terminating on the return date of the summons, which should be as early as practicable (usually not more than a day or two) after the order was made, when the respondent will have the opportunity to be heard. For this reason appeals of ex parte interlocutory injunctions are not usually made to a superior court. The applicant will then bear the onus of satisfying the court that the order should be continued or renewed. A party seeking an interlocutory injunction will ordinarily be obliged to give an undertaking to pay any damages by the defendant suffered as a result of the injunction in the event that the claim for final relief at trial fails. 

The decision to grant an interlocutory injunction can be appealed on an urgent basis to a relevant appeal court. The appeal court will usually list the matter before a single judge to assess the urgency (often the same or the day following the day on which the appeal is lodged) and set a timetable based on the information provided at that first listing. 

Australian state and federal courts can grant interim freezing orders, which restrain a defendant from disposing of property prior to judgment. These orders are a species of interlocutory orders. Such applications may be filed at the Supreme Court or Federal Court. A freezing order is normally obtained ex parte without notice to the respondent, before service of the originating process, because notice or service may prompt the feared dissipation or dealing with assets. A freezing order or an ancillary order may be limited to assets in Australia or in a defined part of Australia, or may extend to assets anywhere in the world, and may cover all assets without limitation, assets of a particular class, or specific assets. It would therefore be possible for a freezing order to encompass bank accounts as well as assets such as real property, art, securities or motor vehicles. Such orders would, however, normally allow for access to funds for reasonable expenses, living costs and payments in the ordinary course of a defendant or third party’s business. A court may also order a freezing order against a third party, where it can be established that there is a risk that a judgment or prospective judgment may be unsatisfied as a result of a third party’s power, possession or influence over the assets in question. The power to issue a freezing order is a function of courts’ authority to prevent an abuse of the court process by the frustration of court-ordered remedies. A freezing order will be made only to preserve the status quo for the purpose of resolving a substantive cause of action brought by the plaintiff, and not as a stand-alone remedy.

The criteria for the issue of a freezing order is similar to the ordinary principles for the grant of interim relief, as discussed above, although the potentially serious impact on a defendant’s property rights raises the threshold for the granting of a freezing order. This may be overcome by an undertaking as to damages given by the applicant of the freezing order, where the applicant undertakes to submit to such order (if any) as the court may consider to be just for the payment of compensation (to be assessed by the court or as it may direct) to any person affected by the operation of the order. The High Court of Australia described freezing orders as 'a drastic remedy which should not be granted lightly.' Broadly and generally, an applicant must show that: 

  • the applicant has a good arguable case (in the substantive cause of action);
  • the refusal of a freezing order will give rise to a real risk that any judgment pronounced in the action will remain unsatisfied, or that the recovery of any judgment will be prejudiced by reason of the removal by the defendant of assets from the jurisdiction, or their dissipation within it; and
  • the balance of convenience favors the making of the order.

Australian courts have wide discretion to award costs orders against either party to cover the opposing party’s costs of litigation. The general rule is that costs follow the event. This means that the unsuccessful party will be liable to pay the litigation costs of the successful party. The aim of this rule is to achieve a just outcome by shifting the costs burden on to the party which is found to have either unjustifiably brought another party before the court or given another party cause to have recourse to the court to obtain their rights. 

Where each litigant has enjoyed some success in the proceedings, courts may modify the general rule to make costs orders that reflect the litigants’ relative success and failure. Courts may depart from the general rule by requiring a successful party to bear their own costs where there is good cause to do so. Such an outcome may be justified where, for example, a successful plaintiff is awarded only nominal damages, or a party succeeds only due to late and substantial amendments to their case. 

Of particular strategic importance is the rule that generally a court will not award costs to a successful party which has obtained relief no more favorable than had already been offered by his or her opponent in settlement discussions. This rule is designed to encourage the early resolution of litigated disputes. 

Costs orders are subject to a costs assessment process administered by the courts. It is unusual that a party will be able to recover all of its actual legal costs through this process. On a standard assessment, parties may recover approximately 60% to 75% of their actual costs. A higher rate of assessment, on an indemnity basis, may be employed where a party has engaged in unreasonable conduct in the proceeding. 

All courts in Australia will charge fees for commencing civil proceedings (often referred to as a filing fee). Some jurisdictions, particularly superior courts, will also charge additional fees including but not limited to daily hearing fees (calculated by reference to the length of the trial), filing fees for notices of motions/applications and the issuing of subpoenas to third parties. These fees are set by the courts and are published on their websites. They are usually reviewed on a yearly basis. By way of example, the current (2019) rate for commencing proceedings in the Federal Court of Australia is AUD4,045 for corporations and the hearing fee for a five-day trial is AUD19,730 for corporations.

In all Australian jurisdictions, a representative proceeding, or class action (as it is more commonly known in Australia) may be commenced by or against any one person as a representative of numerous persons (the minimum number required is generally seven people) who have the same interest in the proceeding and the claims brought give rise to a substantial common issue of law or fact. It is possible to commence a class action against multiple defendants and there is no requirement for every group member to have a claim against every defendant.  

An overarching consideration of the courts in hearing a representative proceeding is whether it involves less delay, expense, and prejudice to the parties than alternative forms of trial. If not, the court may discontinue the proceedings. 

The Federal, New South Wales, Victorian and, most recently, Queensland jurisdictions contain further statutory provisions in relation to representative proceedings, which are arguably more liberal and plaintiff-friendly than other jurisdictions. These jurisdictions allow representative proceedings to be brought where seven or more people have claims which arise out of the same or related circumstances and give rise to a substantial common issue of fact or law. Over 90% of all class actions filed in Australia from 1992-2009 were filed in the Federal Court of Australia. 

When a representative proceeding is commenced, all potential plaintiffs who fall within a class become members of the class, whether they are aware of the claim or not. Members can then opt out of the proceedings before a date set by the court. All class members who do not opt out will be bound by the judgment of the court or by any approved settlement. 

It is important to note that, although some states have yet to formally abolish the law of champerty and maintenance, outside of the US, Australia has one of the most developed class action industries, with a variety of large, class action plaintiff law firms and with many litigation funders having been active in the jurisdiction for over 20 years. This active funding industry has seen a continued increase in the number of class actions being commenced in Australia. 

Cameron Maclean

Cameron Maclean

Partner
DLA Piper Australia
[email protected]
T +61 8 6467 6013
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