A single Judge decides most preliminary matters, and a refusal can end an appeal before it starts. The Act and the Rules provide that a refusal by one Judge is not the end; the route depends on what was refused.
Leave, time and bail: section 10(2)
(1) Any power of the Supreme Court (a) to give leave to appeal; or (b) to extend the time within which notice of appeal or of an application for leave to appeal may be given; or (c) to admit an appellant to bail, may be exercised by a Judge in the same manner as it may be exercised by the Court. (2) Where a Judge refuses an application in relation to a matter specified in Subsection (1), the appellant may apply to the Supreme Court to have the matter determined by that Court.
Where a Judge refuses an order sought on an application pursuant to section 10(1) of the Act, that application shall not stand dismissed, but shall remain on foot, and the same application may be moved before the Court pursuant to section 10(2) of the Act, provided that a written request in that behalf is served on the Registrar within 14 days of the order refusing relief.
Three features. It is a fresh determination, not an appeal: the Court decides whether leave, time or bail should be granted, not whether the Judge erred. It is the same application, so no new Form 7 or Form 4 is filed; the original is relisted. And the trigger is a letter to the Registrar within 14 days. Miss the 14 days and the application stands dismissed by the Judge’s order. See what happens if leave is refused.
Other orders: Order 11 Rule 25
25. A party dissatisfied with a direction or order given by a Judge under these rules or section 5 of the Act, may, upon notice to the other parties, filed and served within 21 days of the making of such direction or order, apply to the Court which may make such order as appears just. 26. Proceedings under Rule 25 shall be instituted as if it was an appeal under Order 10 and the rules under that Order apply with all necessary modifications.
A direction or order made under Subsection (1) may be discharged or varied by the Supreme Court.
This covers stays and interim orders, security for costs, dismissal for failure to give security, directions at a directions hearing, and any other order a single Judge makes under the Rules. Rule 26 borrows the Order 10 procedure: a notice of motion in Form 15 annexing the documents before the Judge and a certified copy of the order, filed and served within the 21 days. See the Order 10 procedure.
Which route
| What the Judge did | Route | Time | Nature |
|---|---|---|---|
| Refused leave to appeal | Act s 10(2); O 11 r 27 | Written request to Registrar within 14 days | Fresh determination of the same application |
| Refused extension of time | Act s 10(2); O 11 r 27 | 14 days | Fresh determination |
| Refused bail | Act s 10(2); O 11 r 27 | 14 days | Fresh determination |
| Granted leave, time or bail | No route for the respondent under s 10(2); objection to competency of the appeal if leave was wrongly granted | O 7 r 15: 14 days from service of the notice of appeal | — |
| Granted or refused a stay or interim order | Act s 5(3); O 11 rr 25–26 | 21 days | Discharge or variation |
| Ordered security for costs, or dismissed for default in security | Act s 5(3); O 11 rr 25–26 | 21 days | Discharge or variation |
| Gave directions at a directions hearing | O 11 rr 25–26 | 21 days | Such order as appears just |
| Refused leave for a slip rule application | O 11 r 32(3): leave from that Judge or the Court | Within the 21 days after judgment | — |
Why it is not an appeal
Constitution section 155(2) makes the Supreme Court the final court of appeal, and a single Judge exercising the Court’s jurisdiction under section 162(2) is the Supreme Court. Section 10(2) and section 5(3) are therefore framed as the Court determining the matter itself or varying its own order, not as an appeal from the Judge. The practical difference is that the applicant may rely on the same material, or on further material, and argue the merits afresh, and the Court owes the single Judge’s reasons no particular deference. Equally, the Court will not entertain a Rule 25 application as a way of relitigating the appeal itself; the order challenged must be one made under the Rules or section 5.
In practice
Under section 10(2), write to the Registrar within 14 days, identify the application and the date of refusal, and request that it be listed before the Court under section 10(2) and Order 11 Rule 27. The Registrar lists it for the next sittings, and the parties file submissions. Under Rule 25, file the Form 15 notice of motion within 21 days with the annexures Order 10 Rule 3 requires, serve it, and it is listed with a book prepared under Order 13 Rule 7(3). Time runs from the making of the order, not from its entry or service, so the diary entry is made on the day. Neither route stays the Judge’s order; a stay of an adverse order pending the Court’s determination must be sought separately. See when a single Judge can decide.
Sources
- Supreme Court Act (Chapter 37) — ss 5, 10
- Supreme Court Rules 2012 — O 7 r 15; O 10; O 11 rr 25–27, 32; Form 15
- Constitution — ss 155(2), 162(2)
Before relying on anything here, read the current text of the Supreme Court Rules 2012 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.