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(2013) 25 Saclj 614-629 614 Singapore 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 Government of Singapore. 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 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 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 Chao Hick Tin 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 Ho Peng Kee, 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. 616 Singapore Academy of Law Journal (2013) 25 SAcLJ 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.
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