The Defendant, Smith-Johnson, applied to the Court of Appeal for an extension of time to Appeal a Summary Judgment granted against her. Justice Martin had dismissed that Application on the basis that the Appeal would have had no reasonable chance of success. Smith-Johnson then sought leave to appeal Justice Martin’s decision to a panel of the Court of Appeal.

Justice Martin considered Rule 14.5, which deals with permission to appeal a single Court of Appeal Justice’s Decision, and stated that the Applicant must establish that there is “(a) a question of general importance; (b) a possible error of law; (c) an unreasonable exercise of discretion; or (d) a misapprehension of important facts”.

In this case, Smith-Johnson argued that Justice Martin had dismissed her Appeal by considering the merits of it, therefore bringing that Decision within Rule 14.38(2), which Appeal must be heard by a panel of the Court of Appeal. Smith-Johnson further argued that a single Justice is limited to hearing matters incidental to an Appeal under Rule 14.37(1), and an Application to extend time to appeal is not “incidental” within the meaning of that Rule. The Court rejected Smith-Johnson’s arguments and stated that a single Justice has the power to deal with an Application for the extension of time to file an Appeal under Rule 14.37. The Court may consider the merits of the Appeal as part of the test in that Application, and doing so is not the same as deciding or dismissing the Appeal itself. Justice Martin held that Smith-Johnson failed to provide further information that would “call into question” the Court’s prior Decision. The Application was dismissed.