Smith v Pisani No. Sccrm-00-470

[2001] SASC 156

SMITH v PISANI (No. 2) 
[2001] SASC 156

Application for Leave to Appeal

1. Gray J.                  On 9 March 2001 I dismissed an appeal against a magistrate’s decision in an action for breach of contract.[1]

   [1] Smith v Pisani [2001] SASC 21

2. The applicant, Ms Smith, had claimed that she was entitled to terminate a contract as the finance condition had not been satisfied, the respondent had failed to mitigate her loss and the magistrate had erred in fixing the amount of costs.  The applicant now seeks leave to appeal.  I extend time to allow the application to be made.

3. A further appeal may not be brought unless leave to appeal is obtained from the judge or from the Full Court.[2]  The applicant sought to have her application for leave heard by another judge.  However Lander J referred the application for my consideration pursuant to R 94.01 (1)(b)(i) of the Supreme Court Rules.

   [2] Paragraph 3(a) of the proviso to s. 50(1) of the Supreme Court Act 1935 (SA)

4. R 94.01 (1)(b)(i) provides:

   “Where pursuant to Section 50(3) of the Supreme Court Act or otherwise application for leave to appeal to the Full Court may be made either to a Judge or to the Full Court, the application for such leave is to be made in the following manner:

   ...

   (b) where application is not made at  that time it shall be made either:

   (i)     by application, either ex parte or upon notice as the Judge may direct, to the Judge appealed from;”

5. In Stokolosa & Anor v Weeks Peacock Quality Homes Pty. Ltd[3] it was said:

   “The court’s practice has been to grant leave to appeal only if a question of general principle arises, and usually the court considers also whether there is reason to doubt the correctness of the decision under consideration.  However, in the end the court must act as the interests of justice may require.”

   [3] [2000] SASC 334

6. I do not consider that the applicant has made out a case for leave in accordance with these principles.  I refuse leave to appeal.

7. The order of the court is that the application for leave to appeal is refused.

   JUDGMENT CITATIONS AS THEY APPEAR IN THE JUDGMENT

   1      Smith v Pisani [2001] SASC 21

   2Paragraph 3(a) of the proviso to s. 50(1) of the Supreme Court Act 1935 (SA)

   3 [2000] SASC 334