Admiralty, Shipping and Aviation Law

Citation(2014) 15 SAL Ann Rev 25
Date01 December 2014
Published date01 December 2014

2.1 2014 Saw One Admiralty Decision Handed Down By The Court Of Appeal, And Two By The High Court. The Court Of Appeal's Decision Clarifies The Availability Of The Defendant's Right To Appeal A High Court Judge's Decision To Refuse To Set Aside An Arrest And/or Allow A Claim For Damages For Wrongful Arrest, While One Of The High Court Decisions Is Of Particular Importance With Respect To The Availability Of A Direct Sale In An Application For Judicial Sale Pendente Lite.

The Nasco Gem [2014] 2 Slr 63 (the Nasco Gem)

2.2 The Court of Appeal's decision of The Nasco Gem arose out of an application for an extension of time to file a notice of appeal against a High Court judge's refusal to set aside the writ and warrant of arrest, as well as to award damages for wrongful arrest. Before considering the merits of the application for an extension of time, the Court of Appeal first considered whether or not an order refusing to set aside a warrant of arrest and service of an admiralty writ, and refusal to award damages for wrongful arrest, amounts to an order at the hearing of any interlocutory application requiring leave to appeal under s 34(2)(d) read with para (e) of the Fifth Sched to the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (the Act). If so, leave would be required to appeal against the decision of the High Court dismissing the application to set aside a warrant of arrest and service of an admiralty writ, as well as damages arising from wrongful arrest of a vessel.

Revisiting three previous decisions: OpenNet, Dorsey and Maldives Airport

2.3 Section 34(d) has come before the Court of Appeal on more than one occasion since its introduction in 2010. Not surprisingly, therefore, in coming to its decision, the Court of Appeal first reviewed its earlier decisions in OpenNet Pte Ltd v Info-Communications Development Authority of Singapore[2013] 2 SLR 880 (opennet), and Dorsey James Michael v World Sport Group Pte Ltd[2013] 3 SLR 354 (dorsey). In opennet, the question of whether or not leave to appeal to the Court of Appeal was considered in the context of the High Court's refusal to grant leave to commence judicial review, where the leave application had been made by way of an originating summons: The Nasco Gem at [9]. In opennet, the Court of Appeal had declined to strike out the notice of appeal on the basis that the very relief which had been sought by the originating summons was leave to commence proceedings for judicial review. Once that application had been determined, the substantive issue in the originating process had been absolutely determined by the first instance judge, such that there was nothing more to proceed on: see opennet at [21]. Taking a purposive interpretation of the provisions in the Act governing the right to appeal to the Court of Appeal, the court held that an appeal to the Court of Appeal would generally be as of right if the effect of the order was to finally dispose of the parties' substantive rights: The Nasco Gem at [9(c)]. For those reasons, the Court of Appeal in opennet held that an application for leave to commence judicial review, made by way of an originating summons, is not an interlocutory application for the purposes of [the Act]: The Nasco Gem at [9].

2.4 The question of whether or not an application was interlocutory in nature next arose for consideration in dorsey. That case involved an appeal against an order of the High Court giving leave to serve pre-action interrogatories, where leave had been sought by way of an originating summons: The Nasco Gem at [10]. In dorsey, the respondent applied to strike out the notice of appeal on the basis that an order giving or refusing interrogatories was non-appealable under s 34(1)(a) read with para (i) of the Fourth Sched to the Act.

2.5 The Court of Appeal dismissed the respondent's application to strike out the notice of appeal in dorsey on the basis that an application for leave to serve pre-action interrogatories commenced by way of an originating summons was not an interlocutory application since it was not an application made in a pending action between the time when the action was filed in court and when the action was finally disposed of: The Nasco Gem at [10(e)]. The test of whether an order was an interlocutory order, which the Court of Appeal adopted in dorsey and opennet, as restated in The Nasco Gem, was whether or not it effectively disposed of a party's substantive claim to relief such that once the application had been determined, the entire subject matter of the proceedings would be spent: The Nasco Gem at [11][12]. If not, the relevant order would be an interlocutory order. This was consistent with the test adopted by the Court of Appeal in Maldives Airports Co Ltd v GMR Mal International Airport Pte Ltd[2013] 2 SLR 449, and Wellmix Organics (International) Pte Ltd v Lau Yu Man[2006] 2 SLR(R)

525. The focus of the enquiry is the cause of the pending proceedings in which the application is brought, and not the specific purpose of the application: The Nasco Gem at [16].

Leave to appeal against refusal to set aside warrant of arrest

2.6 Applying the above-mentioned test, the Court of Appeal held that an application for a warrant of arrest does not determine the parties' substantive rights or the relief claimed in the originating process, that is, the admiralty writ of summons: The Nasco Gem at [16]. Accordingly, leave is still required to appeal against an order refusing to set aside a warrant of arrest: The Nasco Gem at [16].

2.7 In coming to the above decision, the Court of Appeal held that the invocation of the court's admiralty jurisdiction may, notwithstanding the initial refusal to set aside the warrant of arrest and/or service of the writ of arrest, be revisited again at trial: The Nasco Gem at [19] and [21]. However, the Court of Appeal did not go further to elaborate on the modality and potential grounds of any such challenge at the trial of the action, including any possible defence of issue estoppel arising out of the initial refusal to set aside the arrest.

2.8 In response to the applicant's argument that the issue of arrest, including the right to pre-judgment security, would never feature again in the proceedings, such that the High Court's decision on a setting aside application would, in effect, be final (as opposed to interlocutory), the Court of Appeal also held there was no reason to find that the validity of the warrant of arrest entitling a plaintiff to pre-judgment security should be treated as a separate or carve-out issue in the proceedings: The Nasco Gem at [25]. Furthermore, the application to set aside service of the writ of summons and warrant of arrest had been made during the course of proceedings, and did not have the effect of either finally disposing of the parties' substantive rights in the admiralty action, or affecting the final outcome of the proceedings: The Nasco Gem at [25].

2.9 As a final point, the Court of Appeal also did not consider a claim for damages for wrongful arrest to be a substantive right determined in the proceedings. In this regard, the Court of Appeal recognised that a claim for damages for wrongful arrest only arises as a consequence of an order setting aside the warrant of arrest: The Nasco Gem at [27]; Treasure Valley Group Ltd v Saputra Teddy[2006] 1 SLR(R) 358 at [32]. In the premises, the Court of Appeal dismissed the application: The Nasco Gem at [28].

2.10 The upshot of the Court of Appeal's judgment is that an application to set aside a warrant of arrest and service of an admiralty writ of summons will be treated as an interlocutory application, and any order made thereon an interlocutory order which requires leave to appeal under s 34(2)(d) of the Act: The Nasco Gem at [25].

The STX Mumbai [2014] 3 SLR 1116 (The STX Mumbai)

2.11 The STX Mumbai...

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