Restoration remedy under appellate procedure rule barred reference challenge to dismissal for default.

The Tribunal held that a reference application challenging dismissal of an appeal for default could not be entertained where the appellate procedure rule authorising such dismissal had not been struck down. It noted that the same rule provided a specific remedy: the appellant could seek setting aside of the dismissal and restoration of the appeal on showing sufficient cause for non-appearance. Because that restoration mechanism was available, the proposed question was not accepted for reference and the proper course was to apply for restoration under the rule. The reference application was dismissed.

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Issues: Whether the reference application could be entertained on the question that dismissal of the appeal for default was not authorised by the appellate procedure rules and whether the applicant should instead seek restoration of the appeal.

Analysis: The Tribunal noted that the procedural rule relied upon for dismissal of an appeal for default had not been struck down as invalid. It also noted that the same rule contained a specific mechanism enabling an appellant, after dismissal for default, to apply for setting aside the dismissal and restoration of the appeal on showing sufficient cause for non-appearance. In these circumstances, the proposed question was not accepted for reference, as the appropriate course remained an application for restoration under the rule.

Conclusion: The reference application was not entertained and was dismissed.

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