Most of what happens in a Supreme Court appeal before the hearing is dealt with by one Judge sitting alone. Knowing which matters those are saves listing a procedural application before a full bench that will not hear it.
Where the power comes from
The jurisdiction of the Supreme Court may be exercised by a single Judge in such cases as are provided for by an Act of the Parliament or by the Rules of Court.
The default under section 161(2) is at least three Judges. A single Judge may act only where an Act or the Rules say so. If neither does, the matter belongs before the Court.
The three core powers
Any power of the Supreme Court under this or any other Act —
(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.
The Judge is not exercising a lesser power. A grant of leave by a single Judge is a grant of leave by the Supreme Court, and the appeal proceeds on it.
What differs is the consequence of a refusal, which section 10(2) addresses.
While an appeal is pending
Where an appeal is pending, the following may be made by a Judge:
(a) a direction not involving the decision on the appeal;
(b) an interim order to prevent prejudice to the claims of the parties;
(c) an order in civil proceedings for security for costs;
(d) an order dismissing a civil appeal for default in furnishing security;
(e) an order admitting an appellant to bail.
(2) Such a direction or order is deemed to be a direction or order of the Supreme Court.
(3) It may be discharged or varied by the Supreme Court.
The appeal must be pending. Section 5 operates only once an appeal is on foot. Before that, the relevant power is section 10.
Paragraphs (c) and (d) exclude criminal proceedings. Security for costs, and dismissal for failure to give it, are civil matters only.
And note subsection (1)(a): a direction not involving the decision on the appeal. A single Judge cannot make an order that effectively determines the outcome.
What the Rules add
Order 7 Rule 3 — where an appeal lies only with leave, an application for leave to appeal may be heard and determined by a Judge.
Order 7 Rule 1 — an application for a further period in which to lodge a notice of appeal or an application for leave is made in Form 4, filed and served within 40 days of the judgment.
Order 7 Rule 2 — the Registrar shall take all steps necessary to have such an application heard by a Judge as soon as is practicable after filing.
Order 11 Rule 9 — where the manner or form of a procedure is not prescribed, a person may apply to a Judge for directions.
Where the Rules simply do not say how to do something, the answer is not to invent a procedure. It is to apply to a Judge for directions.
That single rule resolves a great many procedural impasses, and it is under-used. See what to do when the Rules do not cover your situation.
Taking a refusal to the full Court
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.
The Court is not reviewing the Judge for error. It determines the matter itself. So the applicant is not confined to showing that the Judge went wrong — the question is whether leave, or an extension, or bail, should be granted.
Note the limits. Section 10(2) applies to the section 10(1) matters: leave, extension of time, and bail. For orders made under section 5, the route is different — subsection (3) allows the Supreme Court to discharge or vary them.
Who decides what
| Matter | Single Judge? | Source |
|---|---|---|
| Leave to appeal | Yes | s 10(1)(a); O 7 r 3 |
| Extension of time to appeal | Yes | s 10(1)(b); O 7 rr 1–2 |
| Bail pending appeal | Yes | ss 5(1)(e), 10(1)(c) |
| Security for costs (civil) | Yes | s 5(1)(c) |
| Interim order to prevent prejudice | Yes | s 5(1)(b) |
| Directions not deciding the appeal | Yes | s 5(1)(a); O 11 r 9 |
| Objection to competency | Depends — a Judge where the matter is within a Judge’s jurisdiction, otherwise the Court | O 7 r 17(1) |
| The appeal itself | No | Constitution s 161(2) |
Sources
- Constitution — ss 161, 162
- Supreme Court Act (Chapter 37) — ss 5, 10
- Supreme Court Rules 2012 — O 7 rr 1–3, 17; O 11 r 9
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.