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Appeals and rehearings

If you do not agree with a final order or were not in court when a final order was made, you may be able to appeal or apply for a rehearing.

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Appeals

Final orders made in the Magistrates’ Court can be appealed to the Supreme Court on a question of law. See the Supreme Court of Victoria’s website for more information. 

An application for review of a ’s decision can be made under the Magistrates’ Court (Judicial Registrars) Rules 2015.

An must be filed with the application within 14 days of the judicial ’s decision. You should seek legal advice before applying for a review.

Application for rehearing

An application to the Magistrates’ Court must be made before a civil matter can be reheard. An application can be made if you:

Court can be a complex and costly process. You should seek legal advice before applying for a rehearing. The steps below provide general information about the rehearing process. It does not cover all scenarios nor constitute legal advice.

STEP 1: Complete the forms

Fill in an application for rehearing - Form 46B and affidavit in support of application

The affidavit must be sworn and signed in the presence of an authorised person before it is filed with the Magistrates’ Court. See the witnessing documents page for more information.

It is a criminal offence to provide false or incorrect information in an affidavit. You should seek legal advice if you have any questions about the process. 

STEP 2: File the forms and pay the court fee

File the original and two copies of the completed application for rehearing and affidavit in support of application with the Magistrates’ Court where the complaint was made. The original forms remain with the court, one copy is for your records and the other copy is to be served on the . The forms can be filed in person or by post.

A filing fee is also payable upon lodgement.

If the application is accepted, the court will issue copies of the forms with a hearing date and location.

All enforcement action will be put on hold until the application for rehearing is heard.

STEP 3: court documents

There are legal rules about the way in which you must give documents to the plaintiff. This is called service. Information about service can be found on the service of documents page.

You must serve a copy of the application for rehearing and affidavit in support of application on the plaintiff at least 14 days before the hearing.

The person who served the documents must complete an affidavit of service - Form 6A. This provides information to the court about how and when the documents were served.

The affidavit must be witnessed and sworn or affirmed in the presence of an authorised person. You may also need to file the affidavit to prove service. See the witnessing documents page for more information.

If documents are not served correctly, it may cause delays.

STEP 4 – Go to court

It is important to go to court on the hearing date. If you don’t, the application may be dismissed - struck out and a cost order could be made.

You should plan to be at court all day. See the party in a civil matter page for more information.

At the application hearing, the will consider the application and decide whether to grant your matter and allow the case to be reheard.

What happens next?

If the application is successful, the final order will be set aside. However, this is not the end of the matter. A new court date will be set to rehear the matter from the start. A notice of defence may also need to be filed. See the defending a civil matter page for more information.

If the application is not successful, the final order will remain and enforcement may proceed. You may also have to pay the legal costs of the plaintiff for returning to court. 

Checklist

  1. Try and resolve your dispute with the other party or seek legal advice.
  2. Complete an:
  3. File with the Magistrates’ Court the original and two copies of the completed:
    • application for rehearing - Form 46B
    • affidavit in support of application (rehearing) form.

    A filing fee is payable upon the lodgement of the forms.

  4. Serve the plaintiff with a copy of the:
    • application for rehearing - Form 46B
    • affidavit in support of application (rehearing) form.
  5. Complete an affidavit of service, sign in the presence of an authorised person and file with the Magistrates’ Court.
  6. Go to court on the hearing date and inform the registry when you have arrived.
Last updated on 13 Dec 2018
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