Civil Procedure
| Date | 01 December 2017 |
| Citation | (2017) 18 SAL Ann Rev 160 |
| Author | Cavinder BULL SC MA (Oxon), LLM (Harvard); Barrister (Gray's Inn); Attorney-at-law (New York State); Advocate and Solicitor (Singapore). CHIA Voon Jiet LLB (Hons) (National University of Singapore), LLM (Harvard); Advocate and Solicitor (Singapore). |
| Published date | 01 December 2017 |
| Publication year | 2017 |
8.1 When initiating an appeal under O 55 of the Rules of Court1 (“RoC”), an appellant is generally not allowed to file an affidavit in support of his originating summons except with leave of the court hearing the appeal. In Singapore Medical Council v Ang Peng Tiam,2 the appellant sought leave to file an affidavit to crystallise the issues and marshal the facts for the court hearing the appeal. The Court of Three Judges rejected the application, holding that the applicant's reasons for his affidavit overlapped with the function of written submissions. An affidavit that seeks to do the job of submissions is unnecessary and a waste of costs, effort and judicial resources.
8.2 The court also observed that for the majority of appeals under O 55 of the RoC, no affidavits would be necessary. However, in light of the wide scope of O 55, which includes appeals from full trials in a court of law to appeals from purely administrative decisions devoid of any trial-like adjudicatory process, the criteria for granting leave must be flexible. In this regard, leave to file an affidavit may be granted under O 55 r 6(2) where (a) the tribunal whose decision is on appeal fails to provide a complete record of proceedings, or where either party wishes to point out inaccuracies in the record of proceedings, or (b) a party has grounds to adduce further evidence.
8.3 In the recent case of Gulf Hibiscus Ltd v Rex International Holding Ltd3 (“Gulf Hibiscus”), the High Court affirmed that pleadings may be amended at the appeal stage, even if the applicant was given ample opportunity to make such amendments at an earlier stage of
8.4 The court held that amendments could be made even at the appeal stage, as long as no prejudice is caused. As the plaintiff's proposed amendments involved giving up part of its initial claim (the plaintiff had to abandon its claim for inducement), there was no such prejudice. Such an amendment would not amount to giving it a second bite of the cherry. On a practical point, as there had not been a trial or evidential hearing, any changes to the pleadings would not necessitate a repeat of testimony or questioning. The court also clarified that while the plaintiff's failure to take up the asst registrar's invitation might warrant adverse cost consequences, it would not preclude the plaintiff from amending its pleadings on appeal.
8.5 The court may also allow pleadings to be amended after judgment, to the extent that the amendments are non-substantive. In Thu Aung Zaw v Ku Swee Boon4 (“Thu Aung Zaw”), the plaintiff had mistakenly commenced an action, and obtained summary judgment, in the name of his sole proprietorship. Under O 77 r 9 of the RoC, a sole proprietor is only permitted to sue in his own name, not in the name of his proprietorship. Thus, the plaintiff applied under O 20 r 5 to amend the plaintiff's name in the summary judgment to his name. Though the High Court noted that the application would have been successful under O 20 r 11 (amendment of judgment), it found that the amendment could also be made under O 20 r 5. The court held that O 20 r 5 will be inapplicable if the court is considered functus officio after its delivery of judgment. However, as the doctrine of functus officio is only intended to ensure certainty, and is not to be invoked as a mechanical rule where minor oversights or inchoateness in expression remain to be fleshed out, the court cannot be considered functus officio vis-à-vis non-substantive amendments. As the plaintiff's proposed amendment was nonsubstantive, his application under O 20 r 5 was allowed.
8.6 The court also observed that it is no bar to an amendment application that the original plaintiff was not vested with a legal cause of action. Further, in response to the defendant's argument that the amendment would prejudice him, by causing him to suffer a judgment that would otherwise be a nullity, the court held that the prejudice which O 20 r 5(3) of the RoC protects against is limited to that suffered by a defendant whose preparation of his defence was prejudiced as a result of being misled as to the identity of his opponent. Thus, the defendant's argument did not amount to prejudice with which O 20 r 5(3) is concerned.
8.7 An application for an extension of time to apply for leave to seek a quashing order under O 53 r 1(6) of the RoC requires the delay to be accounted for to the satisfaction of the court. A recent example of an inadequate account may be found in Nalpon Zero Geraldo Mario v Law Society of Singapore.5 In that case, the applicant sought to quash a Review Committee report dismissing his complaints against the then-President of The Law Society of Singapore. However, he missed the deadline to apply for leave to quash the report. In explaining his delay, the applicant claimed that he had failed to note that the three months' timeline had started to run from the date he received the report, because he had sent a letter to the Ministry of Law after the report was issued and only received a reply close to three weeks later. The High Court held that it was unable to see how his letter to the Ministry and its subsequent reply could cause him to fail to note the three months' timeline. This finding was buttressed by the fact that the applicant had admitted to making a similar application before. The court found that the applicant's delay was not explained to the satisfaction of the court and accordingly dismissed his application for an extension of time.
8.8 In an application for an extension of time to file a notice of appeal, a court will generally consider, inter alia, the length of the delay and the reasons for the delay. Two recent decisions have clarified the court's approach in calculating the length of delay and in evaluating an applicant's reasons for the delay.
8.9 In respect of the length of delay, the recent decision of TDL v TDK6 clarified that this period should be calculated from the last day for filing the notice of appeal to the date on which the present extension of time application is filed. This was a point of controversy in TDL v TDK as the applicant in that case had filed two separate applications for an extension of time. The appellant filed his first application for an extension of time on 8 August 2016, ten days after the deadline to file his notice of appeal. This application was struck out on 31 August 2016, as the appellant had failed to comply with an Unless Order. The appellant took out a second application for an extension of time on 2 November 2016, about three months from the original deadline to file his notice of appeal. The applicant argued that his delay was limited to the ten days between the original deadline and his first extension of time application. The High Court disagreed. Given that the applicant had waited almost two months to file a new application, rather than comply with the Unless Order in order to restore his first application, the second application could not be taken as a mere extension of the first. Accordingly, the length of delay was held to be a very substantial three months from the original deadline.
8.10 In respect of the applicant's reasons for the delay, the court has shown itself willing to accept some degree of failure in case management on the part of the applicant or his solicitors, as long as there is nothing to suggest deliberately dilatory conduct. In UHA v UHB,7 the applicant was eight days late in filing her notice of appeal. By way of background, before filing the notice of appeal, the applicant had submitted a request for further arguments which was rejected three days prior to the deadline for her to file the notice of appeal. In explaining the delay, the applicant's solicitors claimed that (a) they thought that time ran from the date that the request for further arguments was rejected; and (b) the three days between the rejection and the actual deadline to file the notice of appeal were insufficient for the solicitors to confirm the applicant's instructions. The High Court held that the correct deadline should have been apparent to the applicant's solicitors. On that basis, the court also found that there were grounds for the respondent to submit that the applicant should have made preparations to file her notice of appeal even while her request for further arguments was pending. Nevertheless, the court allowed the extension of time. Given the short delay of eight days, there was nothing to suggest that the applicant had deliberately dragged her feet in giving instructions or transferring the security for costs moneys after her request for further arguments was rejected.
8.11 A respondent wishing to vary or affirm the ultimate decision of the court below may do so under O 57 r 9A(5) of the RoC, and need not file a notice of appeal. Previously, under the narrow interpretation of O 57 r 9A(5) established by the Court of Appeal in Lim Eng Hock Peter v Lin Jian Wei8 (“Lin Jian Wei”), a respondent could not rely on O 57 r 9A(5) to affirm the ultimate outcome of his case on grounds other than those relied on by the judge below. Instead, he would have to file a cross-appeal. The rationale of the court in Lin Jian Wei was that the outcome of a case is not a...
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