SMITH v PISANI (No. 2)
[2001] SASC 156Application for Leave to Appeal
Gray J. On 9 March 2001 I dismissed an appeal against a magistrate’s decision in an action for breach of contract.[1]
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.
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)
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;”
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
I do not consider that the applicant has made out a case for leave in accordance with these principles. I refuse leave to appeal.
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)
- AGLC
- Smith v Pisani No. Sccrm-00-470 [2001] SASC 156
- Case
- [2001] SASC 156
- Decision Date
CaseChat Overview and Summary
The legal issues before the court centred on the interpretation of s. 50(1) of the Supreme Court Act 1935 (SA), specifically the proviso in paragraph 3(a), and whether the lower court had correctly applied these provisions in its decision. Additionally, the court needed to consider whether the circumstances of the case warranted granting leave to appeal, as the statutory provision under which the appeal was sought imposed certain conditions and restrictions.
In delivering the judgment, the court carefully examined the statutory provisions and the reasoning employed by the lower court. The court found that the lower court had correctly interpreted and applied the relevant sections of the Supreme Court Act. The court held that the lower court's decision was in accordance with the law, and there were no grounds to grant leave to appeal under the specific conditions outlined in the statute. Consequently, the application for leave to appeal was dismissed.
The final orders of the court were that the application for leave to appeal was refused. The court did not find any merit in the applicant's arguments, and thus did not grant the requested leave to appeal the lower court's decision.
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