614 Academy of Law Journal (2013) 25 SAcLJ

Case Note UNDERSTANDING THE RECENT AMENDMENTS TO THE APPEAL PROVISIONS IN THE SUPREME COURT OF JUDICATURE ACT Dorsey James Michael v World Sport Group Pte Ltd [2013] 3 SLR 354

In 2010, the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) was amended to streamline appeals to the Court of Appeal arising from interlocutory applications. Following these amendments, the general rule is that an appeal against an order made at the hearing of an interlocutory application can only be made with the leave of a judge. This note discusses Dorsey James Michael v World Sport Group Pte Ltd [2013] 3 SLR 354, which is the latest Court of Appeal decision to consider the new statutory provisions governing appeals from an order made in an interlocutory application.

LIM Sai Nei* LLB (Hons) (National University of Singapore); Advocate and Solicitor (Singapore); State Counsel, Attorney-General’s Chambers, Singapore.

I. Introduction

1 Prior to the amendments introduced by the Supreme Court of Judicature (Amendment) Act 2010 (“2010 amendments”),1 s 34(1)(c) of the Supreme Court of Judicature Act (“SCJA”)2 provided as follows: Matters that are non-appealable or appealable only with leave 34.—(1) No appeal shall be brought to the Court of Appeal in any of the following cases: … (c) subject to any other provision in this section, where a Judge makes an interlocutory order in chambers unless the Judge has certified, on application within 7 days after the

* The note is written in the author’s personal capacity and does not represent the views of the Attorney-General’s Chambers or the . The author wishes to thank the anonymous referee for the helpful comments and suggestions. All views and errors remain the author’s own. 1 Act 30 of 2010. 2 Cap 322, 2007 Rev Ed. © 2013 Contributor(s) and . No part of this article may be reproduced without the permission of the copyright holders. Recent Amendments to the Appeal Provisions (2013) 25 SAcLJ in the Supreme Court of Judicature Act 615

making of the order by any party for further argument in court, that he requires no further argument. [emphasis added]

2 Therefore, before the 2010 amendments, there was generally a right of appeal to the Court of Appeal against an interlocutory order made by a judge in chambers,3 subject to the requirement to apply for the judge’s certification that he requires no further argument within seven days after the making of the interlocutory order.

3 In 2010, the SCJA was amended “to streamline and restrict appeals to the Court of Appeal on interlocutory matters”.4 It was felt that it was an unproductive use of resources for all interlocutory applications (regardless of their effect on the substantive rights of the parties) to be brought before the Court of Appeal, especially where such interlocutory applications have already gone through two tiers of hearings (before a High Court registrar and a High Court judge).5 Thus, following the 2010 amendments, the default rule (encapsulated in the new s 34(2)(d) of the SCJA read with para (e) of the Fifth Sched to the SCJA) is that leave is required before an appeal can be brought against any order made on the hearing of any interlocutory application other than those for which a specific provision is made in the Fifth Sched itself or in the Fourth Sched.

4 The Court of Appeal has, in a number of recent decisions, had the opportunity to shed light on the interpretation of the new statutory scheme governing appeals from orders made at the hearing of interlocutory applications. This note seeks to summarise the invaluable guidance on the 2010 amendments which the Court of Appeal has painstakingly mapped out in one of these recent decisions, Dorsey James

3 There were limited exceptions, such as orders refusing to strike out an action, which were appealable to the Court of Appeal only with the leave of court. The requirement to obtain the judge’s certification of no further arguments does not mean that the litigants did not have an automatic right of appeal: see Aberdeen Asset Management Asia Ltd v Fraser & Neave Ltd [2001] 3 SLR(R) 355 at [23], per JA: However, in a case where s 34(1)(c) applies, the parties’ right of appeal is not taken away. All that the statutory provision superimposes is that the party intending to appeal should first write to the judge requesting for further arguments. The process is basically to give the judge another opportunity to review his decision and once the judge decides to affirm his decision, the requesting party would have his undoubted right of appeal. 4 Singapore Parliamentary Debates, Official Report (18 October 2010) vol 87 at col 1369 (Associate Professor , Senior Minister of State, Ministry of Law and Ministry of Home Affairs). 5 Singapore Parliamentary Debates, Official Report (18 October 2010) vol 87 at col 1369 (Associate Professor Ho Peng Kee, Senior Minister of State, Ministry of Law and Ministry of Home Affairs). © 2013 Contributor(s) and Singapore Academy of Law. No part of this article may be reproduced without the permission of the copyright holders.

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Michael v World Sport Group Pte Ltd (“Dorsey James Michael”)6 and also highlights some observations that can be drawn from the case.

5 Before turning to Dorsey James Michael, it is useful to set out the new ss 34(1)(a) and 34(1)(b) of the SCJA as well as the new Fourth and Fifth Scheds to the SCJA: Matters that are non-appealable or appealable only with leave 34.—(1) No appeal shall be brought to the Court of Appeal in any of the following cases: (a) where a Judge makes an order specified in the Fourth Schedule, except in such circumstances as may be specified in that Schedule; … (2) Except with the leave of a Judge, no appeal shall be brought to the Court of Appeal in any of the following cases: … (d) where a Judge makes an order specified in the Fifth Schedule, except in such circumstances as may be specified in that Schedule; or … FOURTH SCHEDULE ORDERS MADE BY JUDGE THAT ARE NON-APPEALABLE No appeal shall be brought to the Court of Appeal in any of the following cases: (a) where a Judge makes an order giving unconditional leave to defend any proceedings; (b) where a Judge makes an order giving leave to defend any proceedings on condition that the party defending those proceedings pays into court or gives security for the sum claimed, except if the appellant is that party; (c) where a Judge makes an order setting aside unconditionally a default judgment, regardless of how the default judgment was obtained (including whether by reason of a breach of an order of court or otherwise); (d) where a Judge makes an order setting aside a default judgement on condition that the party against whom the judgment has been entered pays into court or gives security for the sum claimed, regardless of how the default judgment was obtained (including whether by reason of a breach of an order of court or otherwise), except if the appellant is that party;

6 [2013] 3 SLR 354. © 2013 Contributor(s) and Singapore Academy of Law. No part of this article may be reproduced without the permission of the copyright holders. Recent Amendments to the Appeal Provisions (2013) 25 SAcLJ in the Supreme Court of Judicature Act 617

(e) where a Judge makes an order refusing to strike out— (i) an action order matter commenced by a writ of summons or by any other originating process; or (ii) a pleading or a party of a pleading; (f) where a Judge makes an order giving or refusing further and better particulars; (g) where a Judge makes an order giving leave to amend a pleading, except if— (i) the application for leave is made after the expiry of any relevant period of limitation current at the date of issue of the writ of summons; and (ii) the amendment is an amendment to correct the name of a party or to alter the capacity in which a party sues, or the effect of the amendment will be to add or substitute a new cause of action; (h) where a Judge makes an order refusing security for costs; (i) where a Judge makes an order giving or refusing interrogatories. FIFTH SCHEDULE ORDERS MADE BY JUDGE THAT ARE APPEALABLE ONLY WITH LEAVE Except with the leave of a Judge, no appeal shall be brought to the Court of Appeal in any of the following cases: (a) where a Judge makes an order refusing leave to amend a pleading except if— (i) the application for leave is made after the expiry of any relevant period of limitation current at the date of issue of the writ of summons; and (ii) the amendment is an amendment to correct the name of a party or to alter the capacity in which a party sues, or the effect of the amendment will be to add or substitute a new cause of action; (b) where a Judge makes an order giving security for costs; (c) where a Judge makes an order giving or refusing discovery or inspection of documents; (d) where a Judge makes an order refusing a stay of proceedings; (e) where a Judge makes an order at the hearing of any interlocutory application other than an application for any of the following matters: (i) for summary judgement; (ii) to set aside a default judgement; © 2013 Contributor(s) and Singapore Academy of Law. No part of this article may be reproduced without the permission of the copyright holders.

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(iii) to strike out an action or a matter commenced by a writ of summons or by any other originating process, a pleading or a party of a pleading; (iv) to dismiss an action or a matter commenced by a writ of summons or by any other originating process; (v) for further and better particulars; (vi) for leave to amend a pleading; (vii) for security for costs; (viii) for discovery or inspection of documents; (ix) for interrogatories to be varied or withdrawn, or for leave to serve interrogatories; (x) for a stay of proceedings. [emphasis added]

II. Brief Facts of Dorsey James Michael

6 The respondent in Dorsey James Michael, World Sport Group Pte Ltd (“the company”) and the Asian Football Confederation (“AFC”) had entered into a Master Rights Agreement (“MRA”) for the exploitation of commercial rights to AFC football competitions. An audit report (“the report”) had been prepared on the instructions of AFC to review the transactions, accounting practices and contracts negotiated during one Mohamed bin Hammam’s tenure as president of the AFC (the latter was banned by the International Federation of Association Football pending concerns regarding his management of AFC’s funds).

7 The appellant, Dorsey James Michael (“DJM”), was an academic who had published several posts and articles on the Internet concerning the ban against Mohamed bin Hammam. In one of these articles, he quoted from the report and it was alleged by the company that the quoted parts were defamatory of it.

8 The company applied, by way of an originating summons, to obtain, inter alia, leave to serve pre-action interrogatories on DJM under O 26A r 1 of the Rules of Court.7 The company’s intention was to commence proceedings against DJM and any party whom the answers to the interrogatories show had provided a copy of the report to any third party in breach of confidentiality. The assistant registrar granted the company’s application. On DJM’s appeal, the High Court judge limited the scope of the interrogatories to be administered on DJM.

7 Cap 322, R 5, 2006 Rev Ed. © 2013 Contributor(s) and Singapore Academy of Law. No part of this article may be reproduced without the permission of the copyright holders. Recent Amendments to the Appeal Provisions (2013) 25 SAcLJ in the Supreme Court of Judicature Act 619

DJM then filed an appeal to the Court of Appeal. The company applied to strike out the notice of appeal on the ground that the order of the High Court judge giving pre-action interrogatories was not appealable to the Court of Appeal.

III. Decision in Dorsey James Michael

A. Paragraph (i) of the Fourth Schedule refers only to an order giving or refusing interrogatories that is made at the hearing of an interlocutory application for interrogatories

9 It was argued by DJM’s counsel that the effect of s 34(1)(a) of the SCJA read with para (i) of the Fourth Sched to the SCJA was that all orders for interrogatories are non-appealable to the Court of Appeal. This literal interpretation of para (i) of the Fourth Sched was rejected by the Court of Appeal. It was held that in light of s 9A of the Interpretation Act,8 para (i) of the Fourth Sched must be given a purposive interpretation, taking into account the statutory context in which it is found as well as the objects and purposes underlying the statutory context.

10 Turning to the objects and purposes underlying the enactment of the new s 34 of the SCJA and the Fourth and Fifth Scheds to the SCJA, the Court of Appeal noted from the speech of the Senior Minister of State for Law, Associate Professor Ho Peng Kee (“the Minister”) during the Second Reading of the Supreme Court of Judicature (Amendment) Bill (“the Bill”)9 that the 2010 amendments (in so far as they curtained the rights of appeal) were intended to be directed at orders made in the course of interlocutory applications only.10 The learned Chief Justice , delivering the judgment of the Court of Appeal, further put it succinctly:11 Moreover, the Fourth and Fifth Schedules to the SCJA ought to be understood contextually in light of paragraph (e) of the Fifth Schedule which establishes the default requirement that leave of the High Court judge is required before an appeal can be brought to the Court of Appeal from orders made at the hearing of interlocutory applications. Where an interlocutory application is made for interrogatories to be varied or withdrawn, or for leave to serve interrogatories, paragraph (e)(ix) of the Fifth Schedule to the SCJA provides that the default requirement of leave does not apply. In that case, the extent of

8 Cap 1, 2002 Rev Ed. 9 Singapore Parliamentary Debates, Official Report (18 October 2010) vol 87 at col 1367 (Associate Professor Ho Peng Kee, Senior Minister of State, Ministry of Law and Ministry of Home Affairs). 10 Dorsey James Michael v World Sport Group Pte Ltd [2013] 3 SLR 354 at [51]–[52]. 11 Dorsey James Michael v World Sport Group Pte Ltd [2013] 3 SLR 354 at [53]. © 2013 Contributor(s) and Singapore Academy of Law. No part of this article may be reproduced without the permission of the copyright holders.

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a party’s right of appeal to the Court of Appeal is instead determined by paragraph (i) of the Fourth Schedule which provides that an order giving or refusing interrogatories is non-appealable to the Court of Appeal. [emphasis in original]

11 The Court of Appeal concluded that reading para (i) of the Fourth Sched to the SCJA in light of para (e)(ix) of the Fifth Sched, the latter provision must be referring “to an order giving or refusing interrogatories that is made at the hearing of an interlocutory application for interrogatories” [emphasis in original].12

12 This note adds that the Court of Appeal’s interpretation of para (i) of the Fourth Sched is also supported by the following response of the Minister to Non-Constituency Member Ms ’s specific objection to para (i) of the Fourth Sched to the Bill during the Second Reading of the Bill:13 … the default position is that all interlocutory applications are appealable to the Court of Appeal with leave. It is those interlocutory applications which clearly do not affect the conduct of the trial that have been placed in the no-right-to-appeal category which is contained in the Fourth Schedule. Another example of such an application is interrogatories – I think Ms Lim mentions that – which is really in the nature of questions that should the interrogatories be denied at the interlocutory stage, they can still be put to the witness during examination at trial. So, here again, it does not affect the substantive outcome of the trial. There is no blockage as such as the process is there in our procedures for these questions to be answered at trial … So, in other words – I think one of the benefits that Ms Lim has mentioned is that interrogatories can help the parties to come to a settlement before going to trial – the process is still there. [emphasis added]

13 It is evident from the response of the Minister that the orders giving or refusing interrogatories which Parliament intended to prescribe as non-appealable are only those which are made at the interlocutory stage and which do not affect the substantive rights of the parties. Parliament could not have intended to include within the ambit of para (i) of the Fourth Sched to the SCJA an order refusing pre-action interrogatories as the applicant would not have the option of putting forth his questions at a subsequent trial. To read para (i) of the Fourth Sched as referring to all orders giving or refusing interrogatories would have been wholly contrary to Parliament’s intention.

12 Dorsey James Michael v World Sport Group Pte Ltd [2013] 3 SLR 354 at [54]. 13 Singapore Parliamentary Debates, Official Report (18 October 2010) vol 87 at cols 1386–1387 (Associate Professor Ho Peng Kee, Senior Minister of State, Ministry of Law and Ministry of Home Affairs). © 2013 Contributor(s) and Singapore Academy of Law. No part of this article may be reproduced without the permission of the copyright holders. Recent Amendments to the Appeal Provisions (2013) 25 SAcLJ in the Supreme Court of Judicature Act 621

B. An application to administer pre-action interrogatories is not an “interlocutory application”

14 Given that para (i) of the Fourth Sched to the SCJA would apply on the facts of Dorsey James Michael only if the High Court judge’s order granting pre-action interrogatories to be served on DJM was made in the context of an interlocutory application, the critical issue was thus whether an application to administer pre-action interrogatories under O 26A r 1 of the Rules of Court14 is an “interlocutory application” within the meaning of the SCJA. Notwithstanding that the company conceded that an application to administer pre-action interrogatories is not an “interlocutory application”, the Court of Appeal seized the opportunity to clarify the meaning of “interlocutory application”.

15 As there is no definition of “interlocutory application” in the SCJA, the Court of Appeal in Dorsey James Michael examined the ordinary meaning of the term:15 According to Jowitt’s Dictionary of English Law (Sweet & Maxwell, 3rd Ed, 2010), an application is interlocutory if ‘it is peripheral to the main hearing determining the outcome of the case’. Similarly, the Oxford Dictionary of Law (Oxford University Press, 7th Ed, 2009) defines the term ‘interlocutory’ as ‘[d]uring the course of proceedings … occurring between the initiation of the action and the final determination’.

16 The Court of Appeal was of the view that these definitions were consistent with the meaning attributed to the term by the Minister during the Second Reading of the Bill. The Minister had then said:16 Between the time when a party files a civil case in court and when the case is heard, lawyers may file what are known as ‘interlocutory applications’ in court. These applications deal with procedural matters that prepare the case for hearing; for example, requesting the court to order the other party to furnish information or documents that are relevant to the hearing. [emphasis added]

17 Applying these definitions, the Court of Appeal held that an application to administer pre-action interrogatories is not an “interlocutory application”. Such an application is not made between the time a party files a civil case in court and when that case is heard. An application for pre-action interrogatories is made by way of an originating summons and the only relief sought in the originating

14 Cap 322, R 5, 2006 Rev Ed. 15 Dorsey James Michael v World Sport Group Pte Ltd [2013] 3 SLR 354 at [58]. 16 Singapore Parliamentary Debates, Official Report (18 October 2010) vol 87 at col 1369 (Associate Professor Ho Peng Kee, Senior Minister of State, Ministry of Law and Ministry of Home Affairs). © 2013 Contributor(s) and Singapore Academy of Law. No part of this article may be reproduced without the permission of the copyright holders.

622 Singapore Academy of Law Journal (2013) 25 SAcLJ summons is to obtain discovery of information through the administration of interrogatories on the defendant to the originating summons. Once the application for such relief is determined, the matter ends and there is nothing further in the originating summons for the court to deal with. Even if the party who had applied for the pre-action interrogatories subsequently commences proceedings pursuant to the information he had obtained (he may not even do so in the first place), these proceedings would be distinct and separate from his application to administer pre-action interrogatories.17

18 In coming to its conclusion that a party has a right of appeal against an order granting or refusing pre-action interrogatories, the Court of Appeal also considered the matter from a policy perspective and observed that the case of Norwich Pharmacal Co v Customs and Excise Commissioners18 and the facts of Dorsey James Michael illustrate how “pre-action interrogatories may have a significant, if not draconian, impact upon persons who are in truth innocent bystanders to the substantive suit”.19

19 The Court of Appeal’s concerted effort to explain the meaning of the term “interlocutory application” in the SCJA is much welcomed in view of the recent litigation that has arisen over the meaning of the term. The decision in Dorsey James Michael now makes it crystal clear that the term “interlocutory application” is not to be interpreted to include a pre-action application. The Court of Appeal has in fact laid the first seeds for this interpretation in the case of OpenNet Pte Ltd v Info-Communications Development Authority of Singapore (“OpenNet”)20 in the context of judicial review proceedings.

20 In OpenNet, OpenNet Pte Ltd had filed an application under O 53 r 1 of the Rules of Court21 for leave to commence judicial review of a decision made by the Info-Communications Development Authority of Singapore (“IDA”) that both a business trust by the name of NetLink Trust and its trustee-manager had fulfilled the requirements set out in a deed of undertaking furnished by Singapore Telecommunications Ltd to the IDA. After the High Court dismissed OpenNet’s application for leave, OpenNet filed a notice of appeal against the High Court’s decision. IDA then applied to strike out OpenNet’s notice of appeal on the ground that OpenNet had not obtained leave to appeal as required under s 34(2)(d) of the SCJA read with para (e) of the Fifth Sched to the SCJA.

17 Dorsey James Michael v World Sport Group Pte Ltd [2013] 3 SLR 354 at [60], [67] and [72]. 18 [1974] AC 133. 19 Dorsey James Michael v World Sport Group Pte Ltd [2013] 3 SLR 354 at [71]. 20 [2013] 2 SLR 880. 21 Cap 322, R 5, 2006 Rev Ed. © 2013 Contributor(s) and Singapore Academy of Law. No part of this article may be reproduced without the permission of the copyright holders. Recent Amendments to the Appeal Provisions (2013) 25 SAcLJ in the Supreme Court of Judicature Act 623

21 In dismissing IDA’s contention that an application for leave to commence judicial review under O 53 r 1 of the Rules of Court is an “interlocutory application”, the Court of Appeal examined the ordinary meaning of the term and said:22 On these definitions, it is doubtful if the plain and ordinary meaning of ‘interlocutory application’ could encompass a pre-action application such as the present application for leave to commence judicial review, where there is no ‘main hearing determining the outcome of the case’ to being with. [emphasis added]

22 More pertinently, the Court of Appeal further held that a purposive reading of the SCJA also shows that “interlocutory application” does not include an application for leave to commence judicial review:23 As the Minister explained, the amendments brought about by Act 30 of 2010 introduced a new category-approach regime based on the type of interlocutory application and the eventual order made thereon. The question as to which of the three categories an order made in an interlocutory application would fall within is critical. As for the present application which the Appellant had initiated by way of an originating summons (‘OS’), the very relief sought in the OS was to obtain leave to commence proceedings for judicial review. This was all that was sought in the OS, which had been refused. In refusing leave to commence judicial review, the substantive issue in the OS had been decided upon by the Judge. There was nothing more to proceed on. The substantive rights of the parties had come to an absolute end unless there could be an appeal. Therefore, the application made by the Appellant in the OS did not come within the meaning of ‘interlocutory application’ under paragraph (e) of the Fifth Schedule of the SCJA. As the Minister had explained in Parliament, the Fourth and Fifth Schedules of SCJA were concerned with interlocutory applications. Accordingly, no leave of Court was needed by the Appellant in order to file an appeal against the decision of the Judge in refusing to grant leave to enable the Appellant to commence judicial review. [emphasis added]

23 Indeed, this note suggests that it is obvious from the specific interlocutory applications set out in para (e) of the Fifth Sched to the SCJA that they are of a nature different in kind from a pre-action application. The nature of the interlocutory applications expressly covered in the Fifth Sched is such that they relate to applications made after commencement of proceedings and is incidental to the principal object of the proceedings.

22 OpenNet Pte Ltd v Info-Communications Development Authority of Singapore [2013] 2 SLR 880 at [14]. 23 OpenNet Pte Ltd v Info-Communications Development Authority of Singapore [2013] 2 SLR 880 at [21]. © 2013 Contributor(s) and Singapore Academy of Law. No part of this article may be reproduced without the permission of the copyright holders.

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24 Moreover, in the case of an application for leave to commence judicial review proceedings under O 53 r 1 of the Rules of Court,24 it is relevant to bear in mind that such an application is heard at first instance by the High Court judge (and not the High Court Registrar). To read an application for leave under O 53 r 1 as falling within para (e) of the Fifth Sched would have the drastic effect of depriving parties of their substantive right to a first tier of appeal against the High Court’s decision granting or refusing leave (which the parties undoubtedly had prior to the 2010 amendments to the SCJA).25 In amending the SCJA in 2010, Parliament did not intend to go against the principle that there should be one tier of appeal as of right26 and create a species of rights that is wholly immune from a first right of appeal. The principle that there should be one tier of appeal as of right has been recognised by the Court of Appeal on several occasions, for example, in Teo Eng Chuan v Nirumalan VK Pillay27 and Virtual Map (Singapore) Pte Ltd v Singapore Land Authority.28

25 Clearly, the Court of Appeal’s view that a pre-action application is not an “interlocutory application” is well supported by principle and authority, and entirely consonant with Parliament’s intentions.

C. The word “order” in paragraph (e) of the Fifth Schedule to the Singapore Court of Judicature Act means “interlocutory order”

26 A further issue raised in Dorsey James Michael was whether the word “order” in para (e) of the Fifth Sched to the SCJA meant an “interlocutory order” (and not all orders, whether interlocutory or final) made at the hearing of an interlocutory application. Again, it was unnecessary for the Court of Appeal to deal with this issue as the High Court’s order granting pre-action interrogatories to be served on DJM could not in any event be “an order [made] at the hearing of an interlocutory application” [emphasis added] within the meaning of para (e) of the Fifth Sched. The Court of Appeal nevertheless saw it fit to

24 Cap 322, R 5, 2006 Rev Ed. 25 OpenNet Pte Ltd v Info-Communications Development Authority of Singapore [2013] 2 SLR 880 at [27]. Prior to the 2010 amendments, the effect of the then s 34(1)(c) of the SCJA read with O 53 r 8 of the Rules of Court was that a party dissatisfied with the judge’s decision made at the hearing of a leave application under O 53 r 1 of the Rules of Court could appeal to the Court of Appeal subject only to the requirement to apply for the judge’s certification that he requires no further arguments within seven days after the decision. 26 OpenNet Pte Ltd v Info-Communications Development Authority of Singapore [2013] 2 SLR 880 at [29]. 27 [2003] 4 SLR(R) 442. 28 [2009] 2 SLR(R) 558. © 2013 Contributor(s) and Singapore Academy of Law. No part of this article may be reproduced without the permission of the copyright holders. Recent Amendments to the Appeal Provisions (2013) 25 SAcLJ in the Supreme Court of Judicature Act 625

provide guidance on the issue for the avoidance of doubt in future cases.29

27 Having observed that the Minister had said during the Second Reading of the Bill that “[t]he right of appeal all the way to the Court of Appeal will … remain for interlocutory applications that could affect the final outcome of the case”,30 the Court of Appeal opined:31 The very purpose of the 2010 amendments was to restrict appeals to the Court of Appeal from interlocutory orders. Moreover, it is evident that Parliament had intended that an appeal to the Court of Appeal ought to remain as of right where a final order which disposes of the substantive rights of the parties is made by a High Court judge, even if this was done at the hearing of an interlocutory application. In this regard, it is also pertinent that each of the orders expressly stipulated by the Fourth and Fifth Schedules to the SCJA as being non-appealable or appealable only with leave are interlocutory as opposed to final in nature. [emphasis in original]

28 That Parliament did not intend to impose the blanket requirement for leave stipulated in para (e) of the Fifth Sched to the SCJA on final orders made at the hearing of an interlocutory application is reflected in that paragraph itself. For example, para (e)(iii) excludes an order made at the hearing of an application for striking out from the blanket requirement for leave. However, where an order refusing to strike out is made, s 34(1)(a) and para (e) of the Fourth Sched to the SCJA provide that no appeal to the Court of Appeal is allowed. The net result of these provisions is that where an order is made striking out an action, which has the effect of finally disposing the substantive rights of the parties, there is a right of appeal to the Court of Appeal. On the other hand, if an order is made refusing to strike out an action, and thus the substantive rights of the parties are not finally disposed of, no appeal may be made against that order.32 This was in fact pointed out by the Minister during the Second Reading of the Bill.33

29 Consequently, the Court of Appeal in Dorsey James Michael was plainly right when it held that “the reference to ‘order’ in para (e) of the

29 Dorsey James Michael v World Sport Group Pte Ltd [2013] 3 SLR 354 at [76]–[77]. 30 Singapore Parliamentary Debates, Official Report (18 October 2010) vol 87 at col 1370 (Associate Professor Ho Peng Kee, Senior Minister of State, Ministry of Law and Ministry of Home Affairs). 31 Dorsey James Michael v World Sport Group Pte Ltd [2013] 3 SLR 354 at [84]. 32 See also the Court of Appeal’s observation of para (e)(i) of the Fifth Sched to the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) in OpenNet Pte Ltd v Info-Communications Development Authority of Singapore [2013] 2 SLR 880 at [19]. 33 Singapore Parliamentary Debates, Official Report (18 October 2010) vol 87 at cols 1385–1386 (Associate Professor Ho Peng Kee, Senior Minister of State, Ministry of Law and Ministry of Home Affairs). © 2013 Contributor(s) and Singapore Academy of Law. No part of this article may be reproduced without the permission of the copyright holders.

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Fifth Sched to the SCJA should be read in the light of its purpose and context, to mean ‘interlocutory order’” only.

30 In a nutshell, the Court of Appeal decided in Dorsey James Michael that an order would fall within para (e) of the Fifth Sched to the SCJA and hence appealable only with leave of the High Court judge if: (a) the order is made at the hearing of an interlocutory application; and (b) the order made at the hearing of the interlocutory application is an interlocutory order (as opposed to a final order).

31 It may be gleaned from the Court of Appeal’s decision in Dorsey James Michael that notwithstanding that the 2010 amendments replaced the term “interlocutory order” (in the previous s 34(1)(c) of the SCJA) with the term “interlocutory application” (in para (e) of the Fifth Sched to the SCJA), it is still germane to consider whether an order is an “interlocutory order” (as part of the exercise to determine whether an order is appealable only with leave). The previous cases34 dealing with the perennial issue of whether an order is in fact interlocutory or final therefore remain highly relevant.

D. Legislative amendments to allow Court of Appeal to hear applications for leave to appeal to the Court of Appeal?

32 Interestingly, another astute observation which the Court of Appeal made in Dorsey James Michael was that the new s 34(2B) of the SCJA provides that the order of the High Court judge giving or refusing leave to appeal under s 34(2) is final while O 57 r 16(3) of the Rules of Court35 still provides that a party making an ex parte application can renew his application before the Court of Appeal within seven days of hearing.

33 In this regard, this note highlights that the House of Lords acknowledged in Regina (Burkett) v Hammersmith and Fulham London Borough Council36 that the right to proceed to the Court of Appeal

34 See, for example, Wellmix Organics (International) Pte Ltd v Lau Yu Man [2006] 2 SLR(R) 525. 35 Cap 322, R 5, 2006 Rev Ed. 36 [2002] 1 WLR 1593 at [12]. Prior to the House of Lords decision, however, there were previous English cases in which the judges described applications under O 59 r 14(3) of the English Rules of the Supreme Court (which is in pari materia with Singapore’s O 57 r 16(3)) as the exercise of an original jurisdiction (see, for example, Sir John Donaldson MR’s judgments in Dhillon v Secretary of State for the Home Department (1987) 86 Cr App R 14 at 16–17 and R v Secretary of State for the Home Department, ex p Turkoglu [1988] QB 398 at 400). © 2013 Contributor(s) and Singapore Academy of Law. No part of this article may be reproduced without the permission of the copyright holders. Recent Amendments to the Appeal Provisions (2013) 25 SAcLJ in the Supreme Court of Judicature Act 627

under a provision equivalent to Singapore’s O 57 r 16(3) is a true appeal with a procedure adapted to its ex parte nature. Moreover, as the Court of Appeal rightly pointed out in Dorsey James Michael, ex parte applications are almost always interlocutory in nature.37

34 It therefore does appear that the new s 34(2B) of the SCJA, read with O 57 r 16(3) of the Rules of Court,38 has produced the anomalous result that a party who makes an ex parte interlocutory application has the right to renew his application before the Court of Appeal, but a party who is dissatisfied with an interlocutory order made at the hearing of an inter partes interlocutory application has no right to bring the matter before the Court of Appeal.

35 Quite apart from the anomaly, the Court of Appeal also identified another reason for “legislative intervention”:39 Should leave be refused by the High Court judge [under section 34(2B) of the SCJA], that would be the end of the matter as the aggrieved party would then have no avenue to obtain leave from the Court of Appeal … Where a party is refused leave to appeal by the High Court judge who heard the application, we see no reason why he should not be allowed to renew his application for leave before the Court of Appeal on such terms and in such manner as that court may decide.

36 During the Second Reading of the Bill, Ms Sylvia Lim had in fact voiced the same concerns that the High Court judge should not be the final gatekeeper for all applications for leave to appeal to the Court of Appeal. In response, the Minister had said, inter alia, that:40 (a) putting things in perspective, the requirement to apply for leave to appeal usually applies only to the second tier of appeals (that is, the Court of Appeal) as the majority of interlocutory applications are fixed before the assistant registrar and would enjoy one tier of appeal to the High Court judge. Thus the impact of the amendment “may not be such a big one”; (b) the High Court judge who gave the original order is most familiar with the case and in the best position to decide whether the case merits further consideration by the Court of Appeal. It is not ideal for another High Court judge or a single Judge of Appeal to decide whether to grant leave to appeal (as suggested

37 Dorsey James Michael v World Sport Group Pte Ltd [2013] 3 SLR 354 at [97]. 38 Cap 322, R 5, 2006 Rev Ed. 39 Dorsey James Michael v World Sport Group Pte Ltd [2013] 3 SLR 354 at [97]. 40 Singapore Parliamentary Debates, Official Report (18 October 2010) vol 87 at cols 1389–1391 and 1394 (Associate Professor Ho Peng Kee, Senior Minister of State, Ministry of Law and Ministry of Home Affairs). © 2013 Contributor(s) and Singapore Academy of Law. No part of this article may be reproduced without the permission of the copyright holders.

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by Ms Sylvia Lim) because he would then have to examine the entire proceedings just to see whether leave should be granted; (c) the High Court judges must be trusted that they will make a professional decision based on established principles41 whether or not leave should be granted for an appeal to be made against their own decisions. Statistics show that the High Court judges do grant leave to appeal against their own decisions, if warranted; and (d) contentious applications for leave and strenuous multiple appeals can be costly and should not weigh litigation in favour of those who have more resources to drag issues out.

37 However, during the Second Reading of the Bill, the Minister did conclude that:42 … in any case, like I have said, it is not cast in stone so that in the future, should Ms Lim be right, and some of these interlocutories should not be where they are, amendments can be made. I think we should let this scheme have an opportunity to run its course before we criticise it … [emphasis added]

38 In the wake of the Court of Appeal’s comments on the new s 34(2B) of the SCJA, it may be appropriate to revisit the issue of whether a party denied leave to appeal by the High Court should be given an opportunity to renew his application for leave before the Court of Appeal. This note proposes that any future review of s 34(2B) should be undertaken with a view to the following: (a) not all interlocutory applications are heard at first instance by the assistant registrar. Where the interlocutory application is heard at first instance by the High Court judge, the effect of s 34(2B) of the SCJA is that a party dissatisfied with the High Court judge’s order and who is denied leave to appeal to the Court of Appeal may not have any avenue of appeal; (b) justice must not only be done but must also be seen to be done. Although the High Court judges will no doubt decide whether to grant leave to appeal against their orders based on established principles, an aggrieved party may nonetheless feel

41 Generally, leave to appeal will be granted where there is a prima facie case of error, a question of general principle decided for the first time or a question of importance upon which further argument and decision of a higher tribunal would be to the public advantage: see v [1997] 2 SLR(R) 862. 42 Singapore Parliamentary Debates, Official Report (18 October 2010) vol 87 at col 1394 (Associate Professor Ho Peng Kee, Senior Minister of State, Ministry of Law and Ministry of Home Affairs). © 2013 Contributor(s) and Singapore Academy of Law. No part of this article may be reproduced without the permission of the copyright holders. Recent Amendments to the Appeal Provisions (2013) 25 SAcLJ in the Supreme Court of Judicature Act 629

that he is “left at the mercy of the very Judge who made the order he is unhappy about”;43 (c) while allowing a dissatisfied party to renew his application for leave to appeal before the Court of Appeal (particularly in relation to interlocutory matters) may not be the most productive use of resources, the former Chief Justice could not have put it more aptly when he said:44 “[e]fficiency is vital in court administration but it should not be pursued to the point when it starts to yield diminishing returns in the dispensation of justice”; and (d) s 34(2B) of the SCJA does not only apply to applications for leave to appeal to the Court of Appeal on interlocutory matters. Section 34(2B) provides that an order of a High Court judge giving or refusing leave under sub-s (2) shall be final and sub-s (2) of s 34 covers more than just interlocutory matters (for example, it provides that leave to appeal is required where the only issue in the appeal relates to costs or fees for hearing dates). Thus, caution must be exercised to ensure that any amendment to s 34(2B) is not made on the assumption that it applies only to interlocutory matters.

IV. Conclusion

39 As the SCJA provisions introduced by the 2010 amendments are still in their infancy, the fact that their interpretation has given rise to litigation is not something which is unexpected. Fortunately, the Court of Appeal has, in a series of recent decisions such as Dorsey James Michael and OpenNet, shed significant light on the interpretation of the new SCJA provisions and, most notably, explained the meaning of “interlocutory application”. Having said that, after the new SCJA provisions have had an opportunity to run their course, the relevant authorities and committees may wish to re-examine some of these provisions and consider how they may be fine-tuned.

43 See Ms Sylvia Lim’s speech during the Second Reading of the Bill: Singapore Parliamentary Debates, Official Report (18 October 2010) vol 87 at cols 1376–1377 (Sylvia Lim, Non-Constituency Member). 44 See the Response by the Honourable Chief Justice Chan Sek Keong at the Welcome Reference for the Chief Justice on 22 April 2006. © 2013 Contributor(s) and Singapore Academy of Law. No part of this article may be reproduced without the permission of the copyright holders.