Administrative and Constitutional Law

Citation(2002) 3 SAL Ann Rev 1
Publication Date01 December 2002
Date01 December 2002
AuthorV S WINSLOW MA, LLB (Cantab), Barrister (Middle Temple), Advocate & Solicitor (Singapore) Associate Professorial Fellow, Faculty of Law, National University of Singapore
Introduction

1.1 The year 2002 was a rather strange year. There were no cases dealing with any specific constitutional issues. Therefore all the cases discussed here are necessarily administrative law cases. As with last year”s annual review, I have omitted discussion of cases more appropriately considered under some other heading, such as Legal Profession, or Arbitration, especially if specific statutes are considered pertinent to those subjects. One case reported in 2002 is not considered here as the unreported judgment was discussed in the annual review for 2001. This is the case of Chin Hong Oon Ronny v Tanah Merah Country Club[2002] 3 SLR 226, discussed earlier in (2001) 2 SAL Ann Rev 1 at paras 1.3—1.5.

ADMINISTRATIVE LAW
Judicial review
Order 53 proceedings

1.2 The primary mode of an application for judicial review is by way of an application in the High Court under O 53 of the Rules of Court (Cap 322, R 5, 1997 Ed) for the “public law” remedies of mandamus, prohibition and certiorari. Having obtained leave for such an order by ex parte originating summons supported by the applicant”s statement and affidavit, an order is sought by motion in court. Order 53 is much misunderstood, often because it is believed to allow an “application for judicial review” as is the case for the UK”s O 53 which has been reformed for such purpose, whilst our O 53 has not. This has resulted in a multitude of “misconceived” actions, such as one seeking both certiorari and a declaration under O 53 proceedings, which is not possible in Singapore. There are other difficulties. Some such difficulties are manifest in a few decisions in 2002.

1.3 One such decision was Tan Hock Chuan v Tan Tiong Hwa[2002] 3 SLR 145, which came for consideration before Yong Pung How CJ. The point arising there can be considered very briefly. The case concerned orders pursuant to an application for a personal protection order under the

Women”s Charter (Cap 353, 1997 Ed). A petition for criminal revision had been made under s 23 of the Supreme Court of Judicature Act (Cap 322, 1999 Ed) and s 266 of the Criminal Procedure Code (Cap 68, 1985 Ed). The question for the court was whether the petitioner was entitled to criminal revision. It was decided that there was no such entitlement, as the proceedings were not criminal in nature but civil. Thus, the proper mode for invoking the revisionary jurisdiction of the High Court in civil matters (as in this case) was by way of judicial review under O 53 of the Rules of Court. This case is instructive as to the different procedural approaches to civil and criminal revision attempted under the Supreme Court of Judicature Act.

1.4 Another decision may also be briefly considered. In Progress Software Corp (S) Pte Ltd v Central Provident Fund Board[2002] 4 SLR 367, Choo Han Teck JC (as he then was) had to entertain an application by way of an originating summons where the plaintiff sought a determination that the variable component of the remuneration it had paid to its employees ought to be classified as “ordinary wages” and not as “additional wages” as defined in the Central Provident Fund Act (Cap 36, 2001 Ed), which would have required additional contributions by the plaintiff for its employees. The Board determined that additional contributions were due, and payment of these was made under protest. The plaintiff prayed for a declaration that it, together with its employees, was entitled to a refund of the payment made. The Board applied to strike out the originating summons on the ground that it ought to have been made as O 53 proceedings. The application was dismissed by the deputy registrar and on appeal, by a judge in chambers. The Board declined to appeal further and maintained its stand on O 53 as a preliminary objection at the hearing of the originating summons. Choo JC dismissed the application. He thought that there were “some merits” in the submission that the application should have been brought as O 53 proceedings. However, as the Board had not exhausted its avenue of appeal to the Court of Appeal, the issue having been ventilated before another High Court judge, the matter must be considered res judicata.

1.5 Choo JC considered the plaintiff”s contention that the originating summons procedure was an acceptable mode of proceedings, citing Chin Hong Oon Ronny v Tanah Merah Country...

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