Cheetham v Baker No. Scgrg-99-1245

[2000] SASC 148

CHEETHAM v BAKER
[2000] SASC 148

Full Court:  Doyle CJ, Duggan and Lander JJ
Leave to appeal in private

1. DOYLE CJ:       The applicant has applied by application dated 28 April 2000 for leave to appeal to the Full Court against a decision made by Williams J on 24 March 2000.  By that decision Williams J refused leave to appeal from a decision by a Master of this Court.  The decision of the Master was to refuse to waive court fees for the filing of an application for leave to appeal against a decision of a Judge of the District Court. 

2. The application for leave to appeal has been considered by the Full Court in private pursuant to r 94.03 of the Supreme Court Rules.  The application was considered by the Full Court comprising me, Duggan and Lander JJ.  We have considered the written material submitted by Mr Cheetham. 

3. The application for leave to appeal has not been made within the required time.  The documents lodged do not comply with the requirements of r 94.  Were it necessary we would have been prepared to extend the time for the making of the application and to dispense with the requirements of r 94.

4. It is unnecessary to make an order to that effect, because we are unanimously of the opinion that in any event leave to appeal should be refused on the grounds that the proposed appeal has no reasonable prospect of success.

5. No point of principle is raised by the substance of the application.  At the end of the day Mr Cheetham simply seeks to re-argue the question of whether the obligation to pay the filing fee should be waived.  Nor is there any reason to doubt the correctness of the decision made by the Master. 

6. It is appropriate to add that for present purposes we have assumed that the Court has power to waive the fee and that there is a right of appeal subject to leave if necessary, from such a decision.  We make it clear that we have assumed those points in the applicant's favour, without deciding them.  There is a real issue as to whether there is a power to waive the fee, and as to whether there is a right of appeal against a decision on the question of waiver.  The present case is not, however, an appropriate vehicle for deciding that issue of principle because the appeal is doomed to fail in any event. 

7. For those reasons the order of the Court is that the Court refuses to extend the time within which an application for leave to appeal may be made, and orders that the application for an extension of time be dismissed.