Civil Procedure
| Citation | (2006) 7 SAL Ann Rev 113 |
| Published date | 01 December 2006 |
| Date | 01 December 2006 |
7.1 In Compact Metal Industries Ltd v PPG Industries (Singapore) Ltd[2006] SGHC 242 at [3]—[6], Sundaresh Menon JC commended the following observations (Singapore Court Practice 2006 (Jeffrey Pinsler gen ed) (LexisNexis, 2006) at para 38/2/7) ‘to all whose responsibility it is to prepare affidavits of evidence-in-chief for use in our courts’:
The rules of evidence are specifically preserved for the affidavit procedure (O 38 r 2(5)). The advocate should be satisfied that he has obtained all the necessary information from the witness concerning the case before he commences drafting. This information would usually be recorded in a statement signed by the witness. The statement may then be reviewed prior to drafting the affidavit to determine what evidence is relevant to the issues in the case. The advocate should only include relevant evidence, that is, evidence which concerns facts in issue and relevant facts (as provided for in ss 5—57 of the Evidence Act). All other information must be excluded from the affidavit as being outside the scope of the court”s concern. Any part of the affidavit which is irrelevant may be struck out (O 41 r 6). It is important that all the evidence sought to be relied upon is included in the affidavit, as a witness may not be examined in chief on evidence which could have been included in the affidavit but which was omitted, unless the court otherwise orders (O 38 r 2(3)). At the same time, the deponent must understand that he is not obliged to disclose certain facts. These include privileged communications between his advocate and himself (ss 128 and 131 of the Evidence Act) and between his wife and himself (s 124 of the Evidence Act). The advocate must also be aware of the exclusionary rules and their exceptions which govern the admissibility of hearsay, opinion, character evidence and evidence of previous judgments and orders (ss 14—57 of the Evidence Act). In particular, there is the general rule applicable to affidavits used in non-interlocutory proceedings that the deponent is only entitled to refer to facts of which he has personal knowledge (O 41 r 5). It may be tempting for the deponent, particularly if he is a party, to state his
conclusions on his evidence and to include arguments which express his point of view. Both courses would be improper. As a general rule, it is for the court to judge the effect of the evidence, not the witness himself, unless he is an expert who offers an opinion on his findings (s 47 of the Evidence Act). The deponent should not make assumptions as to what evidence will be given by the opposing witnesses and challenge it. As the purpose of the new process is to substitute the examination-in-chief of the witness, the affidavit should only contain matters which would ordinarily be raised at this stage. Consequently, it would not be appropriate to raise arguments on the facts and the law as these are matters which are traditionally left to the closing speech (see, for example, Alex Laurie Factors v Morgan The Times (18 August 1999), in which it was said that a witness statement is not intended to present a party”s legal arguments). As in the case of the ordinary examination of witnesses, the affidavit must be free of insulting remarks, offensive language and other scandalous or oppressive matter. If the affidavit fails to abide by this rule, the offending part or parts will be automatically struck out by the court (O 41 r 6).
7.2 For the reported cases in 2006 which dealt with appeals, a number of them dealt with the requirement of leave to appeal to the Court of Appeal. Two cases dealt with the admission of fresh evidence on appeal under the rule in Ladd v Marshall[1954] 1 WLR 1489, one dealt with a notice of appeal and one considered the principles for allowing new arguments on appeal.
7.3 In IW v IX[2006] 1 SLR 135, the issue was whether leave to appeal against a High Court decision which reversed the District Court”s decision on a custody matter should be granted. The courts followed the guidelines laid down in Lee Kuan Yew v Tang Liang Hong[1997] 3 SLR 489 whereby leave may be granted only where: (a) there was a prima facie case of error; (b) the matter involved a question of general principles decided for the first time; and (c) the matter involved a question of importance upon which further argument and the decision of a higher tribunal would be to the public advantage.
7.4 The Court of Appeal rejected the more liberal approach in Smith v Cosworth[1997] 4 All ER 84, of ‘realistic prospect of success’. The court considered this to be too low a threshold being merely an ‘arguable case’ test which would not be difficult to satisfy.
7.5 The test in Smith v Cosworth was referred to by G P Selvam J in the case of Pandian Marimuthu v Guan Leong Construction Pte Ltd[2001] 3 SLR 400. However, the Court of Appeal in IW v IX noted that the judge had stated the test in a somewhat different form, namely, ‘whether the appeal is likely to succeed and whether, if leave is not granted, there is a likelihood of substantial injustice’. This was more akin to the test of a prima facie case of error. Later High Court cases had consistently applied the guidelines laid down in Lee Kuan Yew v Tang Liang Hong.
7.6 It was held that to adopt a more liberal approach in granting leave to appeal would subvert the legislative intent behind s 28A of the Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) (‘SCJA’). Section 28A was enacted to ensure that there should only be one tier of appeal as a matter of right with regard to matrimonial cases heard in the District Court.
7.7 The test of a prima face case of error was adopted by Woo Bih Li J in the case of Candid Water Cooler Pte Ltd v United Overseas Bank Ltd[2006] 3 SLR 216. He agreed with Justice Kan Ting Chiu”s decision in Essar Steel Ltd v Bayerische Landesbank[2004] 3 SLR 25 that the ground in respect of a prima facie case of error need not be confined to one of law. It was held that the principles for granting leave to appeal to the Court of Appeal under s 34(2) of the SCJA were the same regardless of which sub-clause was relied on.
7.8 IW v IX was distinguished in another reported case in 2006 —Ong Boon Huat Samuel v Chan Mei Lan Kristine[2006] 4 SLR 148— on the basis that the parties in IW v IX had accepted that leave to appeal must first be obtained and the issue of whether the appellant should have applied for leave to appeal to the Court of Appeal against a High Court decision was not canvassed before the courts in IW v IX. The distinction is really that in IW v IX, the issue was whether leave to appeal should be granted while in Ong Boon Huat Samuel v Chan Mei Lan Kristine the issue was whether leave to appeal was necessary in the first place.
7.9 The courts in Ong Boon Huat Samuel v Chan Mei Lan Kristine considered whether leave to appeal to the Court of Appeal is required in the context of paras 2 and 10(2) of the Supreme Court of Judicature (Transfer of Matrimonial Divorce and Guardianship of Infants Proceedings to District Court) Order 2003 (Cap 322, S 557/2003) (‘the 2003 Transfer Order’) and paras 1(2) and 6(2) of the Supreme Court of Judicature (Transfer of Matrimonial, Divorce and Guardianship of Infants Proceedings to District
Court) (Amendment) Order 2004 (Cap 322, S 63/2004) (‘the 2004 Transfer Order’).
7.10 It was held that if a divorce petition is filed before 15 December 2003, no leave to appeal to the Court of Appeal is required pursuant to para 10(2) of the 2003 Transfer Order. However, if the divorce petition is filed on or after 15 December 2003, the date of the appellate decision of the High Court becomes relevant under paras 1(2) and 6(2) of the 2004 Transfer Order. If the High Court”s appellate decision was made before 1 November 2004, no leave to appeal to the Court of Appeal is required. Only where the divorce petition is filed on or after 15 December 2003 and the appellate decision of the High Court is made on or after 1 November 2004 is leave to appeal to the Court of Appeal required.
7.11 In Ang Swee Koon v Pang Tim Fook Paul[2006] 2 SLR 733, it was held that the courts when considering leave to appeal under s 21(1) of the SCJA should look at the amount in dispute in the appeal rather than the amount at trial.
7.12 The rule in Ladd v Marshall on the admission of further evidence on appeal was discussed in two reported cases in 2006. In Cheng-Wong Mei Ling Theresa v Oei Hong Leong[2006] 2 SLR 637, the Court of Appeal held that the exceptional circumstances of the case justified a relaxation of the rule in Ladd v Marshall.
7.13 Ladd v Marshall lays down three conditions that must be fulfilled before further evidence can be admitted on appeal: (a) it must be shown that the evidence could not have been obtained with reasonable diligence for use at trial; (b) the evidence must be such that, if given, it would probably have had an important influence on the result of the case, though it need not be decisive; and (c) the evidence must be apparently credible, though it need not be incontrovertible.
7.14 The plaintiff in Cheng-Wong Mei Ling Theresa v Oei Hong Leong had difficulty satisfying the first condition with respect to admitting certain development approvals on appeal. It could not be shown that the development approvals could not have been obtained with reasonable diligence. However, the issue of development approval was not raised by counsel or the trial judge at the hearing but appeared for the first time in the grounds of decision. The Court of Appeal held that this was a factor which
made the case exceptional and warranted not applying the strict rule in Ladd v Marshall too rigidly. Had the point been brought up during the hearing, the plaintiff would have been afforded the opportunity to address it and could easily have brought in new evidence to deal with the point. The...
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