Civil Procedure

Citation(2001) 2 SAL Ann Rev 64
Published date01 December 2001
Date01 December 2001
Appeals
Whether leave to appeal is necessary

6.1 In Pandian Marimuthu v Guan Leong Construction Pte Ltd[2001] 3 SLR 400, the learned Justice G P Selvam held that an appeal from the decision to grant security for costs of $5,000 could proceed as of right even though s 21(1) of the Supreme Court of Judicature Act (Cap 322, 1999 Ed) provides that leave of court is required where appeals related to any cause or matter where the amount in dispute or the value of the subject matter did not exceed $50,000. This was because the relevant amount was the amount in dispute in “the cause or matter”. Thus, the amount of security granted below (and presumably the amount of security sought) was irrelevant. Since the damages sought exceeded $50,000, Selvam J held that the appeal from the decision to grant security for costs was as of right and did not require leave of court.

6.2 Two decisions of the High Court dealt with the issue of whether leave of court is necessary for appeals from the decisions of district judges on issues of maintenance under the Women”s Charter (Cap 353, 1997 Ed).

6.3 In Zaleha bte Rahman v Chaytor[2001] 1 SLR 459, a complainant applied for maintenance for herself and her four-year-old daughter pursuant to ss 69(1) and 69(2) of the Women”s Charter. Being dissatisfied with the amount of maintenance granted, she filed a notice of appeal against the decision of the district judge. The district judge held that leave of court was required for such an appeal and refused to grant leave to appeal. The complainant appealed from this decision to the High Court.

6.4 G P Selvam J held that leave was not required for an appeal to the High Court in respect of a maintenance order made under s 69 of the Women”s Charter as s 77 of the Women”s Charter conferred “unrestricted appellate power to the High Court.” Section 77(1) states:

“Subject to the provisions of this Part and Part VII, an appeal shall lie from any order or the refusal of any order by a District Court or a Magistrate”s Court under this Part and Part VII to the High Court exercising appellate civil jurisdiction under the provisions of the Supreme Court of Judicature Act (Cap 322).”

6.5 This appellate jurisdiction is unaffected by s 21(1) of the Supreme Court of Judicature Act. While s 21(1) provides that appeals relating to disputes the value of which do not exceed $50,000 require leave of court, this is “subject to the provisions of … any … written law”. These words in s 21(1) make it plain that appeals under s 77 of the Women”s Charter are excluded from the leave requirements of s 21(1).

6.6 Thus, Selvam J decided that an appeal from a maintenance order made pursuant to s 69 of the Women”s Charter was an appeal as of right to the High Court.

6.7 Within two months of that decision, the High Court heard Eng Poh Su v Yap Ah Ho[2001] 2 SLR 367 where the issue was whether leave of court was required under s 21 of the Supreme Court of Judicature Act to appeal from a decision of the subordinate courts in respect of matrimonial matters under Part X of the Women”s Charter.

6.8 In this case, the respondent to a divorce petition applied for maintenance under ss 113 and 127 of the Women”s Charter. The petitioner appealed against the decision of the district judge but was advised that leave of court was necessary for such an appeal. On the hearing of an Originating Summons brought by the petitioner to determine whether leave was necessary for an appeal, the High Court held that leave was not required.

6.9 Tay Yong Kwang JC noted that s 137 of the Women”s Charter had been intended to cover appeals to the Court of Appeal but now applied to appeals to the High Court pursuant to the Supreme Court of Judicature (Transfer of Matrimonial Divorce and Guardianship of Infants Proceedings to District Court) Order (Cap 322, O 1, 1997 Ed).

6.10 Tay JC referred to the decision in Zaleha bte Rahman v Chaytor and adopted the same reasoning as employed by Selvam J in that case. Tay JC held that s 137 of the Women”s Charter gave the High Court unrestricted power to hear appeals and that this was not fettered in any way by s 21(1) of the Supreme Court of Judicature Act.

6.11 Tay JC also stated that while Zaleha bte Rahman v Chaytor dealt with a different appellate provision, it would be anomalous if maintenance orders under one part of the Women”s Charter were appealable as of right while maintenance orders made under another part of the Charter were not. It is respectfully submitted that the rationale employed by Tay JC in

reading ss 137 and 77 of the Women”s Charter consistently should provide guidance in interpreting the other provisions governing appeals to the High Court in the Women”s Charter.

Whether leave to appeal should be granted

6.12 In Pandian Marimuthu v Guan Leong Construction Pte Ltd (supra), Selvam J held that the “guiding principle for granting leave is whether the appeal is likely to succeed and whether, if leave is not granted, there is a likelihood of substantial injustice. The learned judge cited Smith v Cosworth Casting Processes Ltd[1997] 4 All ER 840 at 840 where the English Court of Appeal stated that “[t]he Court will only refuse leave if satisfied that the applicant has no realistic prospect of succeeding on the appeal”.

6.13 A more stringent and perhaps more authoritative test was applied by Tan Lee Meng J in Lam Seng Hang Co Pte Ltd v The Insurance Corporation of Singapore Pte Ltd[2001] 2 SLR 179. There, Tan J cited Lai Kew Chai J”s decision in Anthony s/o Savarimiuthu v Soh Chuan Tin[1989] SLR 607 and Yong Pung How CJ”s judgment in Lee Kuan Yew v Tang Liang Hong[1997] 3 SLR 489, the latter case referring to the former and stating (at 496):

“[F]rom the cases, it is apparent that there are at least three limbs which can be relied upon when leave to appeal is sought: (1) prima facie case of error; (2) question of general principle decided for the first time; and (3) question of importance upon which further argument and a decision of a higher tribunal would be to the public advantage.”

6.14 Tan J held that this test was not satisfied in this case. The main argument of the would-be appellants was that one of the findings of fact made by the trial judge was wrong. The learned judge saw no merit in permitting an appeal for the sake of determining whether or not the trial judge was right in coming to a conclusion of fact after hearing witnesses.

6.15 In Goh Kim Heong v AT & J Co Pte Ltd[2001] 4 SLR 262, Kan Ting Chiu J applied the same test as Tan J in deciding whether to grant leave to appeal. Here, leave to appeal to the Court of Appeal was necessary pursuant to s 34(2)(a) of the Supreme Court of Judicature Act because the value of the subject-matter at the trial was less than $250,000.

6.16 Kan J cited Anthony s/o Savarimiuthu v Soh Chuan Tin and Lee Kuan Yew v Tang Liang Hong, including the portion of Yong CJ”s judgment in the latter case cited above. Kan J also cited Abdul Rahman bin Shariff v Abdul Salim bin Syed[1999] 4 SLR 716 where Tay Yong Kwang JC said that a prima facie case of error could not possibly refer to an attempt to show an erroneous conclusion on the facts of the case. Otherwise, facts would have to be examined in detail in each case and the court might as well hear the appeal proper.

6.17 Kan J went further and suggested that in addition to the factors listed in Lee Kuan Yew v Tang Liang Hong, the value of the proposed appeal and the burdens of costs and time the appeal would place on the parties and the appellate court should also be taken into account.

6.18 In this case, Kan J held that leave would not be granted as the dispute arose from the peculiar facts of the case, did not involve any important question and was a dispute over merely $47,484.88.

Notice of appeal

6.19 Thomson Plaza Pte Ltd v The Liquidators of Yaohan Department Store Pte Ltd [2001] 3 SLR 248, was an appeal from a liquidator”s adjudication of a proof of debt. G P Selvam J dismissed the appeal. The applicant requested that further arguments be heard. The learned judge agreed but affirmed his decision. The applicant then filed a notice of appeal.

6.20 The liquidators applied to strike out the notice of appeal on the grounds that it had been filed out of time. The issue before the Court of Appeal was whether the time for filing the notice of appeal ran from the date of the original decision of the High Court (in which case the notice was filed out of time) or from the date when the further arguments were heard and rejected (in which case the notice would be within time).

6.21 The Court of Appeal held that further arguments could be heard in respect of both interlocutory and final orders, the latter only if the order had not yet been perfected. However, once the court agreed to hear further arguments, the issues previously decided by the court became “open”. At that stage there was nothing to appeal from and the time for filing a notice of appeal could not run. In the circumstances, once the court had agreed to hear further arguments, the time for the filing of a notice of appeal would run from the determination of those further arguments and not from the original decision.

6.22 This case should be contrasted with Aberdeen Asset Management Asia Ltd v Fraser & Neave Ltd[2001] 4 SLR 441 where the Court of Appeal dealt with the slightly different question of when time for the filing of a notice of appeal would run when no further arguments were heard.

6.23 In Aberdeen Asset Management Asia Ltd v Fraser & Neave Ltd, the respondents had started an action for defamation against the appellants. The respondents filed an application under Ord 14 r 12 of the Rules of Court (Cap 322, R 5, 1997 Ed) for a determination of the natural and ordinary meaning of certain statements. The appellants appealed from the decision of the assistant registrar. On 21 March 2001, Tan Lee Meng J amended the meaning of the words found by the...

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