Au Wai Pang v Attorney-General and another matter
Jurisdiction | Singapore |
Judge | Chao Hick Tin JA |
Judgment Date | 30 April 2014 |
Neutral Citation | [2014] SGCA 23 |
Court | Court of Appeal (Singapore) |
Docket Number | Originating Summonses Nos 59 of 2014 and 1175 of 2013 |
Published date | 25 June 2014 |
Year | 2014 |
Hearing Date | 28 February 2014 |
Plaintiff Counsel | Peter Low and Choo Zheng Xi (Peter Low LLC) |
Defendant Counsel | Tai Wei Shyong, Francis Ng, Elaine Liew and Teo Lu Jia (Attorney-General's Chambers) |
Citation | [2014] SGCA 23 |
Originating Summons No 1175 of 2013 (“OS 1175/2013”) is an
In an earlier application to the High Court (Originating Summons No 1098 of 2013, hereinafter “OS 1098/2013”), the AGC sought leave to apply for an order of committal against Alex Au for contempt of court in respect of two articles published on his blog:
On 25 November 2013 at around 10.30pm, Alex Au received word through the media that the AGC intended to apply to the High Court judge (“the Judge”) on the morning of 26 November 2013 for leave to initiate committal proceedings against him. The following morning, counsel for Alex Au sought leave to convert OS 1098/2013 into an
O 57 r 16(3) of the ROC stipulates that, in the event of a refusal of an
After correcting this error, the AGC re-filed the application on 9 December 2013 under a different case number, namely, OS 1175/2013. On 12 December 2013, the AGC appeared before the Duty Registrar to fix two summonses before the Duty Judge. The first summons was for the hearing of OS 1175/2013 to be expedited; the second summons was for the AGC to be granted an extension of time until 9 December 2013 to file OS 1175/2013. We note from the minutes of the proceedings that counsel for the AGC informed the Duty Registrar that s 36(1) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“the SCJA”) empowered a single judge to hear an application for extension of time to file an originating summons before the Court of Appeal. The AGC also invoked O 57 r 16(3) of the ROC and relied on observations made in the Court of Appeal decision of
Counsel for the AGC appeared before the Duty Judge on 13 December 2013, whereupon he granted orders in terms for both the application to expedite and the application for extension of time. Unfortunately, the available minutes make no reference to the submissions made to him or his reasons for allowing the applications.
OS 59/2014 was filed by Alex Au on 17 January 2014.
This court heard OS 1175/2013 and OS 59/2014 on 28 February 2014. We were however concerned with two issues, which we drew to counsel’s attention in the course of the hearing:
Section 36(1) of the SCJA (“s 36(1)”) is the governing provision on this particular issue. It reads:
In
any proceeding pending before the Court of Appeal, any direction incidental thereto not involving the decision of theappeal ,any interim order to prevent prejudice to the claims of parties pending the appeal , and any order for security for costs and for the dismissalof an appeal for default in furnishing security so ordered, may at any time be made by a Judge. [emphasis added in italics and bold italics]
The definition of the word “pending” has been considered by numerous Singaporean and Malaysian cases, all of which speak with one voice. In the Federation of Malaya Court of Appeal decision of
A legal proceeding is “pending” as soon as commenced ... and until it is concluded, i.e. so long as the Court having original cognizance of it can make an order on the matters in issue, or to be dealt with, therein. [emphasis added]
The Singapore High Court decision of
More specifically, no orders can be made if proceedings have not been already validly commenced. This proposition emerges from the English Court of Appeal decision of
We have held in several cases that, till an appeal is brought, there is nothing pending in the Court of Appeal.
Until an appeal is brought there is nothing “pending” before the C. A. A single judge has no jurisdiction hereunder until an appeal has been presented. The proper course seems to be in the first place to serve a notice of appeal, which will be for a day in vacation, or so soon thereafter, &c. and then to write to a member of the C. A. asking if and when it will be convenient to him to hear an application under the section. [case references omitted and emphasis added]
We agree with the settled approach adopted in the authorities enumerated above. 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. An application for an extension of time
Plainly, until and unless proceedings have been validly commenced, proceedings cannot be said to be “pending” before this court. An application for an extension of time to file OS 1175/2013 must be predicated on the admission that OS 1175/2013 has
Further, the word “proceeding” in s 36(1) is also qualified by the clauses following it. The word “appeal” is mentioned another three times in s 36(1) itself; a single judge has the power to make orders
In this regard, the instant facts are eminently distinguishable from those in the
In the course of argument the AGC, without reference to any authority, urged this court to adopt a purposive approach as mandated by s 9A of the Interpretation Act (Cap 1, 2002 Rev Ed). Unfortunately,...
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