Division 4.—Appeals from Courts of a State or Territory.
Mode of instituting appeals.
79.—(1.) An appeal to the Court under section 113 of the Act from a judgment, decree, order or sentence of a court referred to in that section shall be instituted by notice of appeal.
(2.) The appellant may, by the notice of appeal, appeal from the whole or any part of the decision, and the notice of appeal shall state whether the whole or part only of the decision is complained of, and, in the latter case, shall specify the part complained of.
(3.) The notice of appeal shall state shortly the grounds on which the appellant intends to rely.
(4.) The notice of appeal shall be filed with the Registrar within twenty-one days after the date on which the decision appealed from was pronounced.
Place for hearing appeals.
Unless otherwise directed by the Court or a Judge, an appeal shall be heard at the Capital City of the State, or the principal city or town of the Territory, from a court of which the appeal is brought.
To whom notice to be given.
81.—(1.) The notice of appeal shall be served upon all parties affected by the appeal.
(2.) It shall not be necessary to serve parties not so affected, but the Court may direct notice of the appeal to be served on a person not a party, and in the meantime may postpone or adjourn the hearing of the appeal upon such terms as are just, and may give such judgment and make such order as might have been given or made if the persons served with such notice had been originally parties.
(3.) A person on whom notice of an appeal is so directed to be served shall, for the purposes of this Division, be deemed to be a respondent.
(4.) Any notice of appeal may be amended at any time as the Court thinks fit.
(5.) The appellant shall, before setting down the appeal, file an affidavit of service in the Registry of the Court in the State or Territory of the Commonwealth in which the decision appealed from was given.
Title of appeals.
A notice of appeal and all subsequent proceedings on appeals shall be entitled “In the Commonwealth Industrial Court, on appeal from” (naming the court from which the appeal is brought) and shall also be entitled as between the party appellant and the party respondent.
Notice to Registrar.
The appellant shall, within seven days after filing with the Registrar the notice of appeal, file a copy of the notice of appeal in the court from which the appeal is brought.
Appealable nature of judgment to be shown by affidavit.
84.—(1.) The appellant shall file with the copy of the notice of appeal filed in the court from which the appeal is brought an affidavit setting out sufficient facts to show that the judgment or order is one from which an appeal lies to the Court, and shall file a copy of the affidavit with the copy of the notice of appeal in the Registry of the Court.
(2.) Where the evidence given in the court from which the appeal is brought is material for the purposes of the appeal and no depositions, written transcript or official notes of that evidence are available, the affidavit shall set forth an account of the evidence given in that court, and that affidavit may be answered on affidavit by any respondent.
(3.) Any such answering affidavit shall be filed with the Registrar within ten days after service of the notice of appeal on the respondent filing the affidavit or within ten days after service on him of notice of the setting down of the appeal, whichever is the later.
(4.) Where notice of appeal to the Court is given in any case in which an appeal cannot be brought to the Court, the Court or a Judge may set aside the notice.
When appeal deemed to be instituted.
Upon compliance by the appellant with regulations 79, 81, 82, 83 and 84 of these Regulations, the appeal shall be deemed to be instituted.
Security for costs may be ordered.
86.—(1.) The Court or a Judge may, on the application of a respondent, order the appellant to give security to its or his satisfaction for the costs of the appeal.
(2.) Where an order for security for costs has not been complied with, the Court may dismiss or refuse to hear the appeal.
Transmission of documents.
87.—(1.) The proper officer of the court from which the appeal is brought shall forthwith after the filing in that court of a copy of the notice of appeal transmit to the Registrar in charge of the Registry in the State or Territory of the Commonwealth in which the judgment or order was given a certified copy of all such documents as are required for the hearing of the appeal.
(2.) If the appeal is directed to be heard elsewhere than in that State or Territory, the Registrar shall transmit the copies to the Registrar in charge of the Registry situated in the place where the appeal is to be heard.
(3.) A statement of the reasons of the court for the decision shall, if available, be included in the documents transmitted in accordance with the preceding provisions of this regulation.
(4.) Upon application of the appellant and upon payment of the prescribed fee (if any), the proper officer of the court from which the appeal is brought shall supply to the appellant a list of the documents referred to in this regulation and a certified copy of any of those documents which are not in the possession of the appellant.
Setting down appeal for hearing.
88.—(1.) The appeal shall be set down by the appellant for hearing at a sitting of the Court appointed for hearing appeals at the place at which it is to be heard.
(2.) Unless the Court or a Judge otherwise directs, the appeal shall be set down for the first such sitting appointed to be held after the expiration of one month from the institution of the appeal, unless the respondent consents to its being heard at an earlier sitting.
(3.) If the appellant does not set down the appeal for hearing at that sitting, or does not, at least three weeks before the day appointed for holding the sitting, give notice to the respondent that he has done so (unless the respondent consents to take shorter notice), the respondent, or a respondent, if more than one, may apply to the Court, at any place at which it may be sitting, by motion upon notice for an order dismissing the appeal for want of prosecution.
(4.) If, in a case to which the last preceding sub-regulation applies, the respondent or a respondent does not, within six months after the filing of the notice of appeal, apply for an order referred to in that sub-regulation, the Court shall, on the application of the Registrar, dismiss the appeal for want of prosecution.
Written argument on appeals.
89.—(1.) Notwithstanding anything contained in this Division, the Court or a Judge may, with the consent of the parties, permit the legal argument in connexion with an appeal to be presented in whole or in part in writing, and, where the argument is to be presented wholly in writing, it shall not be necessary for the appeal to be set down for hearing or for the parties to appear on the hearing of the appeal either personally or by counsel.
(2.) The Court or a Judge may give any consequential directions with respect to the procedure in an appeal to which this regulation applies.
Cross appeals.
90.—(1.) It shall not be necessary for a respondent to give notice of motion by way of cross appeal, but if a respondent intends upon the bearing of an appeal to contend that the decision appealed from should be varied, he shall, not less than twenty-one days before the day for which the appeal is set down for hearing, give notice of his intention to such of the parties as may be affected by the contention.
(2.) The omission to give such a notice shall not diminish the powers of the Court when hearing the appeal, but may, in the discretion of the Court, be ground for an adjournment of the appeal or for a special order as to costs.
(3.) A copy of the notice shall be filed in the Registry.
Transcript to be lodged.
91.—(1.) Five days at least before the day upon which the appeal is set down for hearing, the appellant shall, unless otherwise ordered—
(a) lodge in the Registry situated in the place where the appeal is to be heard four copies of a transcript setting out the notice of appeal, the affidavit of the appellant, the documents referred to in regulation 87 of these Regulations and any affidavit or notice filed or given by a respondent; and
(b) serve two copies of that transcript upon each respondent or upon his solicitor.
(2.) Persons suing or defending jointly shall be deemed a single party for the purpose of this regulation.
Powers of Court.
92.—(1.) An interlocutory judgment or order from which there has been no appeal does not operate to prevent the Court, upon hearing an appeal, from giving such decision upon the appeal as is just.
(2.) The Court may have regard to the evidence given in the Court from which the appeal is brought and has full discretionary power to receive further evidence upon questions of fact, which evidence may be taken either by oral examination in Court, by affidavit, or by deposition taken before an examiner or commissioner.
(3.) The Court, upon the hearing of an appeal, has power to draw inferences of fact, and to give any judgment and make any order which ought to have been given or made in the first instance, and to make such further or other order as the case requires.
(4.) The powers specified by the last preceding sub-regulation may be exercised by the Court notwithstanding that the notice of appeal asks that part only of the decision may be reversed or varied, and may be exercised in favour of all or any of the respondents or parties, including respondents or parties who have not appealed from or complained of the decision.
Stay of proceedings.
93.—(1.) When an appeal has been duly instituted, the execution of the judgment or order appealed from shall be stayed until the determination of the appeal or the dismissal of the appeal for want of prosecution.
(2.) The Court or a Judge may nevertheless give leave to prosecute the judgment or order upon the party desiring to prosecute it giving security to its or his satisfaction to abide the decision of the Court on the hearing of the appeal.
Expediting appeals.
Notwithstanding anything contained in these Regulations, the Court or a Judge may expedite the hearing of any appeal of which notice has been filed in the Court, whether the appeal has been duly instituted or not.
Dismissal for want of prosecution on applicant’s application.
95. An order dismissing an appeal with costs for want of prosecution may be drawn up and signed by the Registrar on the application of the appellant without other warrant than this regulation, but if notice of cross appeal or notice of intention to move to vary the decision appealed from has been given, the order shall not be drawn up without the consent of the party giving that notice.