Leave applications do not go before a bench of three. They are dealt with by one Judge, which is why they can be listed and decided far more quickly than an appeal.
The Rule
Where an appeal from a judgment lies to the Court only with leave, an application for leave to appeal may be heard and determined by a Judge.
— Supreme Court Rules 2012, O 7 r 3
Section 10(1): any power of the Supreme Court (a) to give leave to appeal; (b) to extend the time within which notice of appeal or of an application for leave 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.
This is not a lesser power. A grant of leave by a single Judge is a grant by the Supreme Court, and the appeal proceeds on it.
The constitutional basis is section 162(2) of the Constitution, which permits the jurisdiction to be exercised by a single Judge in cases provided for by an Act or by the Rules of Court — an exception to the at least three Judges rule in section 161(2).
How it reaches a Judge
Order 7 Rule 2: the Registrar shall take all steps necessary to have an application under Rule 1 heard by a Judge as soon as is practicable after its filing.
Rule 1 is the application to extend time, made in Form 4. The urgency is obvious — the application must itself be filed within the 40 days, and it is pointless if it is not heard promptly.
Order 13 of the Rules — the Listings Rules — governs how matters come before the Court and a Judge. Where a matter is not moving, the Court or a Judge may at any time make such orders as appear just for the expediting of the appeal (Order 7 Rule 47).
See the Listings Rules.
Section 10(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.
The Court is not reviewing the Judge for error. It determines the application itself. So the applicant is not confined to showing the Judge went wrong — the question is simply whether leave should be granted.
The subsection covers the section 10(1) matters only: leave, extension of time, and bail. For orders made under section 5 — directions, interim orders, security for costs — the route is different: subsection (3) allows the Supreme Court to discharge or vary them.
Who decides an objection
(1) An objection of which notice has been given shall be determined by —
(a) in the case of an objection to a matter that is within the jurisdiction of a Judge, the Court or any Judge; and
(b) in any other case, the Court.
(2) An objection to competency shall be heard and determined before the substantive matter is set down for hearing, unless a Judge decides in a special case that it is in the interests of justice to set down the matters together.
Because a leave application is within a Judge’s jurisdiction, an objection to the competency of a leave application may be determined by the Court or any Judge. An objection to the competency of an appeal — which only the full Court can hear — goes to the Court.
Can the trial judge hear it?
(1) A Judge shall not sit as a member of the Supreme Court if he has previously adjudicated (whether on appeal or otherwise) on the merits of the case.
(2) A Judge is not precluded where he has given an interlocutory judgment only, or any other judgment not going to the merits.
The judge who tried the action and gave judgment cannot sit on the leave application arising from it — they have adjudicated on the merits.
The judge who made only an interlocutory ruling is not disqualified by section 2. In practice the Court will ordinarily avoid it, but the statutory bar does not apply.
See who the judges are.
Then the clock restarts
When leave has been granted, a notice of appeal shall be filed within 21 days immediately after the date on which leave is granted, or within such further time as the Court or a Judge may allow on application filed and served within that 21 days.
And Order 7 Rule 9(a) requires the notice to state that leave has been granted and annex the appropriate order. Obtain the sealed order promptly. See applying for leave.
Sources
- Constitution — ss 161, 162
- Supreme Court Act (Chapter 37) — ss 2, 5, 10
- Supreme Court Rules 2012 — O 7 rr 1–6, 9, 15–19, 47; O 13
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.