Dal Piva v Maynard No. Scciv-00-655

[2001] SASC 39

DAL PIVA v MAYNARD
[2001] SASC 39

Full Court:  Doyle CJ, Duggan and Williams JJ
(Leave to Appeal in Private)

1................ DOYLE CJ, DUGGAN AND WILLIAMS JJ.             This is an application for leave to appeal against the decision of Gray J given on 2 November 2000.

1. Gray J upheld an appeal to this Court against the inadequacy of a sentence imposed by the Magistrates Court.  He set aside the sentence and substituted a new sentence.

2. The Court is unanimously of the opinion that an arguable case has been made out, and that the case is an appropriate one for a grant for leave to appeal.

3. Gray J refused leave to appeal.  The application to the Full Court pursuant to Rule 94.02, for leave to appeal, should have been made by Friday, 29 January 2001.  The application was not made until Wednesday, 31 January 2001.  The affidavit filed by the applicant’s solicitors, in support of the application for leave to appeal, did not provide a satisfactory explanation for the delay.  The Court called for a further affidavit.  That affidavit provides an explanation for the delay, although it is an explanation which indicates some inefficiency on the part of the solicitors for the applicant.  There is no reason to think that the delay is the fault of the applicant himself.  It should also be said that the further affidavit highlights the unsatisfactory and inadequate nature of the first affidavit filed in support of the application for an extension of time.  That affidavit implies that the delay was attributable to a delay within the Court, whereas the further affidavit makes it plain that the delay was attributable to the conduct of the solicitors.

4. Nevertheless, in view of the relatively short delay, and because the applicant is not at fault, the Court is prepared to extend the time for the making of the application.

5. Accordingly, the order of the Court is that time for the making of the application be extended to 31 January 2001, and that the applicant be granted leave to appeal against the decision of Gray J.

6. I direct that the applicant and the respondent be provided with a copy of these reasons.