Civil Procedure

Citation(2014) 15 SAL Ann Rev 133
Date01 December 2014
Publication Date01 December 2014
AuthorCavinder BULL SC MA (Oxford), LLM (Harvard); Barrister (Gray's Inn), Attorney-at-law (New York State), Advocate and Solicitor (Singapore). Jeffrey PINSLER SC LLB (Liverpool), LLM (Cambridge), LLD (Liverpool); Barrister (Middle Temple), Advocate and Solicitor (Singapore); Professor, Faculty of Law, National University of Singapore.
Adduction of affidavit of evidence-in-chief in the absence of the deponent

8.1 The court will not permit an affidavit of evidence-in-chief (AEIC) to be adduced in the absence of the deponent if this would not be in the interests of justice. In Wan Lai Ting v Kea Kah Kim[2014] 4 SLR 795, the High Court declined to admit two AEICs (sought to be adduced by the plaintiff) pursuant to O 38 r 2 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) because they raised issues which were highly contentious: at [22]. It would not have been fair to deprive the other party of the opportunity for cross-examination in such circumstances. Furthermore, the reliability of the AEICs had been put into doubt by evidence of the deponent's admitted cognitive impairment. The court also dismissed the plaintiff's argument that the affidavits ought to be admissible pursuant to s 32(1)(j) of the Evidence Act (Cap 97, 1997 Rev Ed). The court pointed out that the conditions for admissibility under that section had not been complied with. Furthermore, even if that section had been satisfied, the court would have exercised its discretion to exclude the affidavits pursuant to s 32(3) on the basis that their prejudicial effect outweighed their probative value.

Admissions

8.2 In Mycitydeal Ltd v Villas International Property Pte Ltd[2014] 4 SLR 1077 (mycitydeal) at [69], it was restated that for the purposes of invoking O 27 r 3 of the Rules of Court, the admission sought to be relied on must be a clear admission of all the facts necessary to establish the cause of action and not merely evidence of some of the facts [emphasis in original]: see also Hasrat Usaha Sdn Bhd v Pati Sdn Bhd[2011] 3 MLJ 343 at [37], cited in mycitydeal at [69]. A party needs to be careful before relying on an admission under O 27 r 3 because if a statement of fact is not regarded by the court as an admission and is not pleaded, evidence of that fact would not normally be accepted by the court. For example, where the plaintiff fails to plead a fact based on information, it would not be entitled to rely on that information at trial if it would take the opposing party by surprise: mycitydeal at [73][74], where the High Court applied O 8 r 8(1)(b).

Appeals
Extension of time

8.3 In Au Wai Pang v Attorney-General[2014] 3 SLR 357 (au wai pang), the Court of Appeal dealt with the issue of whether the duty judge had the power to sit as the Court of Appeal and grant an extension of time. In this case, the appellant had been refused leave by the High Court to commence contempt proceedings for an article published by the respondent. Dissatisfied, the appellant invoked O 57 r 16(3) of the Rules of Court and re-applied for a similar purpose (this time, to the Court of Appeal) for leave to commence contempt proceedings against the respondent (the CA application). The CA application was rejected due to an error in the title and was subsequently refiled out of time. The appellant then appeared before the duty judge, who granted an extension of time to file the application. The respondent objected to this on the basis that the duty judge had no power to grant an extension of time.

8.4 The appellant's case was that the duty judge had such a power under s 36(1) of the Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) (SCJA) which allows a judge, in any proceedings pending before the Court of Appeal, to make any direction incidental to an appeal, any interim order to prevent prejudice to the parties or any order furnishing security of costs. The issue turned on the meaning of pending and whether this provision furnished the duty judge with such a power when proceedings had not commenced. The Court of Appeal held that the test for whether proceedings are pending is whether the court concerned has the power to make an order on the matters in issue therein. Since the originating summons had not been filed in time, proceedings had not commenced and there were no proceedings pending before the Court of Appeal. Consequently, the court did not have the power to grant the extension pursuant to s 36(1) of the SCJA. Adopting a purposive approach, the Court of Appeal observed that the purpose of s 36(1) was to allow a single judge to make interim orders to prevent prejudice or preserve the status quo in order to achieve administrative efficiency. Interim orders therefore cannot be dispositive of the substantive appeal. Accordingly, denying an extension of time to file an originating summons would be dispositive of the appeal; therefore, the appellant could not avail itself of the provision to seek an extension of time.

8.5 In BLQ v BLR[2014] 1 SLR 1453, the Court of Appeal dealt with the issue of whether applications under Pt X of the Women's Charter (Cap 353, 2009 Rev Ed) fell under s 34 of the SCJA on leave to appeal. Pursuant to a matrimonial dispute in which ancillary orders for division of assets were made by the District Court, the husband appealed to the High Court. This appeal was dismissed by the High Court, and the husband then sought to appeal against this dismissal. As the High Court had been exercising its appellate jurisdiction, para 6(2) of the Supreme Court of Judicature (Transfer of Matrimonial, Divorce and Guardianship of Infants Proceedings to District Court) Order 2007 (S 672/2007) mandated that leave had to be obtained to appeal to the Court of Appeal but did not stipulate any time frame. However, O 56 r 3(1) of the Rules of Court imposed a time limit of seven days to seek leave to appeal. The husband applied for an extension of time under s 34 of the SCJA.

8.6 The Court of Appeal held that s 34 of the SCJA did not apply to Pt X of the Women's Charter. However, the law had to be interpreted harmoniously and cases pertaining to Pt X of the Women's Charter should be treated the same as all other civil cases. The prescribed time limit of seven days in O 56 r 3(1) should likewise apply. In considering whether the extension of time should be granted, the court applied the four factors highlighted in Sun Jin Engineering Pte Ltd v Hwang Jae Woo[2011] 2 SLR 196, namely: (a) the length of the delay; (b) the reasons for the delay; (c) the chances of a successful appeal if the time were extended; and (d) the degree of prejudice to the would-be respondent if the extension of time were granted. This case turned on factor (c), which was the possibility of a successful appeal. The court referred to Lee Kuan Yew v Tang Liang Hong[1997] 2 SLR(R) 862 which laid out three considerations in considering the chances of an appeal: (a) whether there was a prima facie case of error; (b) whether there was a question of general principle decided for the first time; or (c) whether there was a question of importance upon which further argument and a decision of a higher tribunal would be to the public advantage.

8.7 The husband submitted that there was a prima facie case of error as the judge had erroneously drawn adverse inferences from unaccounted withdrawals that the husband had made from family assets. The High Court reiterated that the error in question had to be one of law, a requirement which was not satisfied by the husband's contention that the wrong conclusion had been reached. On the facts, there was no prima facie case of error in law as the court found that the District Judge was correct in drawing an adverse inference. Accordingly, leave to appeal was refused. (Note: this decision is currently on appeal.)

8.8 The four considerations for the court to grant an extension of time were likewise applied in Falmac Ltd v Cheng Ji Lai Charlie[2014] 4 SLR 202 (falmac). In falmac, the plaintiff filed a notice of appeal almost five months after the High Court judgment was issued and applied for an extension of time to file the notice of appeal. The plaintiff relied on two favourable judgments issued in Tianjin five months after the High Court judgment. The court opined that an assessment of the four considerations required an integrated and holistic approach which took into account the finality of judgments.

8.9 The Court of Appeal found that the first three factors were not satisfied. First, the length of the delay of close to five months was not considered ordinary. Secondly, the plaintiff had made a conscious decision to commence parallel proceedings in Tianjin to hedge its bets by garnering as many procedural advantages as possible. Whilst it relied on a favourable Tianjin judgment to bolster its appeal should the High Court decide against it, as it turned out, procedural timelines were not in its favour as the favourable judgment was issued much earlier than the High Court judgment. The Court of Appeal held that the plaintiff took no immediate steps to file a notice of appeal or extend the timeline for appeal either because it was unaccountably tardy or because it had engaged in a hedging exercise: at [30]. The plaintiff's disregard for procedural rules suggested that it considered those rules subordinate to the foreign proceedings. The plaintiff therefore could not expect an extension of time to appeal. Thirdly, it was evident that an appeal was futile as the defendant was not a party to the foreign proceedings and therefore no issue estoppel could arise from the foreign proceedings. Further, under the Ladd v Marshall principles, no new evidence could be submitted on appeal as it was evident that the plaintiff was in possession of all the relevant evidence before the conclusion of the High Court trial. However, as regards the last factor to be taken into account when deciding whether to grant an extension of time, the court found that no material prejudice would be caused to the defendant by granting an extension that could not be compensated for by an appropriate costs order.

8.10 Reviewing the factors in a holistic manner, the court dismissed the application to extend time to file an appeal notice.

Whether leave should be granted

8.11 The SCJA was amended in 2010...

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