Civil Procedure

Date01 December 2003
AuthorJEFFREY PINSLER LLB (Liverpool), LLM (Cambridge), LLD (Liverpool), Barrister (Middle Temple), Advocate and Solicitor (Singapore), Professor, Faculty of Law, National University of Singapore CAVINDER BULL BA (Hons)(Oxford), LLM (Harvard), Barrister (Gray’s Inn), Attorney-at-Law (New York State), Advocate and Solicitor (Singapore)
Published date01 December 2003

6.1 In Ricky Charles s/o Gabriel Thanabalan v Chua Boon Yeow[2003] 1 SLR 511, the Court of Appeal emphasised the separate and distinct nature of the respective jurisdictions of the High Court and the District Court.

6.2 In that case, a plaintiff had obtained, by consent, interlocutory judgment from the District Court on his claim for personal injuries. Being of the view that damages would exceed the $250,000 limit in the District Court, the plaintiff applied to transfer the proceedings to the High Court for damages to be assessed. The High Court rejected the application and the plaintiff appealed.

6.3 The Court of Appeal affirmed the High Court”s view that the broad power to transfer proceedings in cl 10 of the First Schedule of the Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) (‘SCJA’) was subject to s 38 of the Subordinate Courts Act (Cap 321, 1999 Rev Ed) (‘SCA’). Section 38 stated that a case should only be transferred if it was ‘one which should be tried in the High Court’.

6.4 The Court of Appeal held that the fact that damages would likely exceed the jurisdictional limit of the District Court would normally be sufficient reason for a transfer, but in this case, because interlocutory judgment had been entered, a transfer should not be ordered. The Court of Appeal did not accept that the matter turned on whether an interlocutory judgment brought the action to an end. Instead, the court moved on a broader premise that to allow a transfer after interlocutory judgment had been entered would be to ‘truncate a single proceeding and blur the distinction between the two jurisdictions’. The upshot of this case is that a transfer of proceedings is rarely to be granted after interlocutory judgment has been entered.

6.5 In Tan Kok Ing v Tan Swee Meng[2003] 1 SLR 657, the plaintiff sought to transfer proceedings from the Magistrate”s Court to the District Court on the basis that damages might exceed the Magistrate”s Court limit. The transfer was refused and on appeal to the High Court, that decision was affirmed.

6.6 The High Court held that there was no inherent jurisdiction in the Magistrate”s Court to transfer an action commenced in the Magistrate”s Court to the District Court. Section 53 of the SCA required an applicant to show that ‘some important question of law or fact is likely to arise’. While O 89 r 4 of the Rules of Court (Cap 322, R 5, 1997 Rev Ed) did not have any such requirement, this was subsidiary legislation which cannot override s 53.

6.7 The High Court rejected the argument that the mere fact that the claim may exceed the jurisdiction of the Magistrate”s Court showed that an important question of law or fact was likely to arise. An issue was only ‘important’ for the purposes of s 53 if it affected more than the immediate interests of the parties and was applicable to others as well.

6.8 In coming to this conclusion, the High Court preferred the first instance decision of Gordon Clark J in Patterson v Ellis[1957] 1 WLR 857 over the contrary decision of the English Court of Appeal in the same case. The English Court of Appeal”s view was that a point of law might be important even if it did not affect any outside interests. However, even if the reasoning of the English Court of Appeal were to be applied to the facts of Tan Kok Ing, it is clear that the possibility that the amount in issue might be beyond the jurisdiction of the Magistrate”s Court is not an important question of law or fact.

6.9 Woo Bih Li JC (as he then was) also referred to his decision in Chiltern Park Development Pte Ltd v Ong Pang Wee[2002] 4 SLR 79. This decision was discussed at (2002) 3 SAL Ann Rev 71 at para 6.93. The decision of the Court of Appeal from that case was decided this year.

6.10 In Ong Pang Wee v Chiltern Park Development Pte Ltd[2003] 2 SLR 267, the Court of Appeal upheld the decision of the learned judicial commissioner. The Court of Appeal held that the High Court did not have the power to transfer a case from the Magistrate”s Court to the High Court.

6.11 The SCJA had to be read together with the SCA because s 18(3) of the SCJA provided that the powers of the High Court, including those for transfers, had to be exercised in accordance with written law. Thus, the Court of Appeal concluded that Parliament intended the High Court to have regard to the SCA in such a situation.

6.12 Taking a literal reading of s 52(2) of the SCA, it could not be interpreted as conferring the necessary jurisdiction to transfer a case from the Magistrate”s Court to the High Court. The SCA did not confer this power of transfer. Order 89 rr 1 and 2 of the Rules of Court had to be read with the SCA and thus applied only to transfers from the District Court to the High Court.

6.13 Ong Pang Wee was followed by the High Court in Rightrac Trading v Ong Soon Heng[2003] 4 SLR 505. There the High Court said that a transfer from the Magistrate”s Court to the District Court on the grounds that the quantum involved exceeded the Magistrate”s Court limit should be granted as of right with the appropriate costs orders. Section 53 of the SCA would only apply when the amount was below the current jurisdiction of the District Court.

6.14 In Chinese Chamber Realty Pte Ltd v Samsung Corp[2003] 3 SLR 656, the High Court held that it had inherent powers to make such orders as might be necessary to prevent injustice. However, this power should be exercised cautiously especially when a matter of procedure was clearly covered by the Rules of Court.

6.15 In that case, leave had been granted by the assistant registrar for an application for summary judgment to be served before any defence had been filed, contrary to O 14 r 1. The High Court held that the assistant registrar was not justified in overriding the clear words in the Rules of Court.

6.16 On appeal (Samsung Corp v Chinese Chamber Realty Pte Ltd[2004] 1 SLR 382), the Court of Appeal agreed with the High Court on this point. The court stated that one essential touchstone for invoking the inherent jurisdiction of the court was that of ‘need’. In other circumstances, the compelling reason may well be ‘the justice of the case’ or the ‘prevention of abuse’. Nothing so compelling arose in this case.

Service out of jurisdiction

6.17 In Elan Impex (Singapore) Pte Ltd v Daewoo Corp[2003] 2 SLR 128, the plaintiffs applied for service of the writ out of jurisdiction on the defendants. The plaintiffs obtained leave to serve the first defendant out of jurisdiction under O 11 r 1(a) on the grounds that relief was sought against a person who is domiciled, or ordinarily resident, or carrying on business, or who has property, in Singapore. The High Court struck out this claim on the grounds that there was no evidence that the first defendant was in breach of the agreement in question.

6.18 Service out of jurisdiction was effected on the second, third and fourth defendants on the basis of O 11 r 1(c). This rule permits service when ‘the claim is brought against a person duly served in or out of Singapore and a person out of Singapore is a necessary or proper party thereto’. The High Court set aside service on the second, third and fourth defendants because of two reasons. Firstly, the action against the first defendant had been struck out. Since service on the second, third and fourth defendants was founded on proper service on the first defendant, the termination of the case against the first defendant must necessarily adversely affect service on the second, third and fourth defendants.

6.19 Secondly, under O 11 r 1(c), the first defendant had to be properly served before the application for leave to serve on the other proper parties was made. That was not the case here. Not only had the first defendant not been served when the application for leave was made, the first defendant had not even been served when the application to set aside service came before the High Court. In the circumstances, the court set aside service on the second, third and fourth defendants.

6.20 In Econ Corp International Ltd v Ballast-Nedam International BV[2003] 2 SLR 15, the High Court reiterated the test laid down by the Court of Appeal in Bradley Lomas Electrolok Ltd v Colt Ventilation East Asia Pacific Pte Ltd[2000] 1 SLR 673 that service out of jurisdiction should only be granted if jurisdiction under O 11 r 1 had been established on the basis of a good and arguable case. A mere statement by a deponent to that effect was insufficient but the court was not required to try the action on its merits. When jurisdiction was shown to exist, the court would determine whether it should exercise its discretion to grant leave and for this purpose, the plaintiff needed only to show merits on the claim up to the level of a serious issue to be tried.

6.21 In this case, the plaintiffs had commenced an action by way of originating summons to decide whether the defendants were entitled to call on and receive moneys under a performance bond and two advance payment guarantees. Since the plaintiffs had made out a good arguable case as to why it would be unconscionable for the defendants to receive moneys under the bond and advance payments guarantees, leave was granted for the plaintiffs to serve the originating summons on the defendants out of jurisdiction.

Summary judgment

6.22 In Chinese Chamber Realty Pte Ltd v Samsung Corp (para 6.14 supra) (which involved an appeal against the Registrar”s decision), the High Court addressed the procedure where the plaintiff seeks summary judgment and the defendant seeks to stay the proceedings (as when there is an agreement to

refer the dispute to arbitration). The new requirement in O 14 r 1 of the Rules of Court, that the application may only be filed and served after the defence, raises the issue of whether the defendant, in filing and serving the defence, waives his right to seek a stay by having taken a step in the proceedings. The court...

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