Civil Procedure

AuthorCavinder 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).
Publication year2021
Date01 December 2021
I. Leave to appeal from the Appellate Division of the High Court

8.1 In UJM v UJL,1 the Court of Appeal considered for the first time an application for leave to appeal from a decision of the Appellate Division of the High Court. The decision concerned the division of matrimonial assets and costs.2 The leave application was filed out of time.3

8.2 The Court of Appeal dismissed the application on the ground that leave should not be granted for the application to be filed out of time. The applicant had given no explanation for the delay and had failed to address the general requirements for the grant of an extension of time, which are listed in Bin Hee Heng v Ho Siew Lan.4

8.3 Because the application was the first of its kind to come before the Court of Appeal, the Court of Appeal nevertheless considered the principles governing such applications.5 The Court of Appeal emphasised that, in most cases, the Appellate Division serves as the final appellate court, and that leave to bring a further appeal to the Court of Appeal will be granted only in exceptional cases.6 The purpose of the scheme under the Supreme Court of Judicature Act 19697 (“SCJA”) is to provide a highly limited avenue for parties to appeal against certain decisions of the Appellate Division.8 Whereas the common law as set out in Lee Kuan Yew v Tang Liang Hong9 governs applications for leave to appeal against decisions of the General Division of the High Court, the statutory

scheme governs applications for leave to appeal against decisions of the Appellate Division.10

8.4 The Court of Appeal summarised the statutory scheme as follows. The applicant must first ascertain whether the further appeal falls within any of the prescribed categories of cases in the Ninth Schedule to the SCJA. If it does, no appeal may be brought to the Court of Appeal, as provided by s 46 of the SCJA.11 If it does not, the applicant must seek leave in order to bring an appeal before the Court of Appeal, as provided by s 47(1) of the SCJA.12

8.5 In the leave application, the applicant must satisfy two requirements:

(a) First, under s 47(2) of the SCJA, the appeal must raise a point of law of public importance. This is a threshold requirement.13

(b) Second, it must be appropriate for the Court of Appeal to hear a further appeal from the Appellate Division, taking into account all relevant matters, including at least one of the two considerations stipulated in O 57 r 2A(3) of the Rules of Court14 (“the Stipulated Considerations”).15 This requirement of appropriateness gives the Court of Appeal the discretion to determine whether the appeal ought to be heard.16

8.6 If both requirements are satisfied, the Court of Appeal may but will not necessarily grant leave.17

8.7 On the threshold requirement, the Court of Appeal interpreted the phrase “an appeal will raise a point of law of public importance” with reference to its previous decision in Noor Azlin bte Abdul Rahman v Changi General Hospital Pte Ltd,18 which had interpreted the same phrase in O 56A r 12(3)(b) of the Rules of Court.19 Order 56A r 12(3)(b) applies to an application to transfer an appeal that is pending before the Appellate Division to the Court of Appeal. It provides that, when determining

whether it is more appropriate for the Court of Appeal to hear the appeal, the Court of Appeal may have regard to whether the appeal will raise a point of law of public importance. The Court of Appeal compared three aspects of the phrase in the context of transfer applications and in the context of applications for leave to appeal.

8.8 First, in both transfer applications and applications for leave to appeal, the point of law must arise directly for the Court of Appeal's determination and must have a substantial bearing on the outcome of the appeal.20 In applications for leave to appeal, the point of law must also have been raised before the Appellate Division.21

8.9 Second, in both applications, a point of law is distinguished from a mere question of fact.22

8.10 Third, in transfer applications, a point of law is of public importance if it will have weighty ramifications that go beyond the parties such that it would be more appropriate for the Court of Appeal than the Appellate Division to deal with the appeal. Examples include new questions of law of general application and conflicting decisions of the Court of Appeal or the Appellate Division which must be resolved to bring certainty to significant areas of law. In ascertaining whether a point of law of public importance arises, relevant matters include the stipulated considerations.23 The same principles apply to applications for leave to appeal, save that it must be appropriate for the Court of Appeal to hear a further appeal from the Appellate Division and that the stipulated considerations are not considered at this stage of the analysis.24

8.11 On the facts, the Court of Appeal observed that the applicant's appeal did not satisfy the threshold requirement. Although the dispute generated interesting legal questions, these questions had not been raised before the Appellate Division. So the appeal would not raise these points of law.25 Further, the questions that the applicant claimed would raise points of law were questions of fact.26

8.12 As for the second requirement in an application for leave to appeal, the first stipulated consideration is whether a decision of the Court of Appeal is “required” to resolve the point of law. The first stipulated consideration will be fulfilled only in exceptional cases. Examples of scenarios that may fulfil it include the following:27

(a) where there are conflicting decisions of the Court of Appeal on the point of law;

(b) where there are conflicting decisions of the Appellate Division on the point of law;

(c) where the Bench of the Appellate Division which heard the appeal was split on the result of the case, and the divergence is on a point of law which has a substantial bearing on the outcome of the case and which directly contributed to the split; and

(d) where the Bench of the Appellate Division is unanimous in their decision but expresses serious reservation or strong disagreement with legal principles set out in a Court of Appeal precedent.

8.13 The second Stipulated Consideration is whether the interests of the administration of justice, either generally or in the particular case, require the consideration by the Court of Appeal of the point of law.28 Examples of cases that may fulfil the second Stipulated Consideration include those that concern the functioning of crucial aspects of Singapore's legal system or that will remedy serious injustice.29

8.14 The Court of Appeal also noted that the Appellate Division has the power to overrule decisions of the General Division and of other lower courts and to depart from Appellate Division precedents. Unlike the Court of Appeal, it does not have the power to overturn or overrule other decisions of the Appellate Division or to depart from decisions of the Court of Appeal.30

II. Principles on who must be served with a notice of appeal

8.15 In Golden Hill Capital Pte Ltd v Yihua Lifestyle Technology Co, Ltd,31 the respondents were the shareholders of a company under judicial management. The respondents brought a summons against the judicial

managers seeking a declaration that the sale of an asset to the first applicant was null and void. The applicants were allowed to participate in the proceedings as non-parties.32 The High Court dismissed the respondents' application and awarded costs in favour of the judicial managers and the applicants. The respondents filed an appeal but did not serve the notice of appeal on the applicants.33

8.16 The applicants then brought an application before the Court of Appeal seeking to strike out the notice of appeal on the basis that it was not served on them. They also sought, among other things in the alternative, to be served the appeal papers and to participate in the appeal.34 The application raised two issues:35

(a) Does O 57 r 3(6) of the Rules of Court require an appellant to serve the notice of appeal on a non-party who participated in the proceedings below?

(b) If not, can the Court of Appeal exercise its discretion under O 57 rr 10(1)–10(2) of the Rules of Court to direct that the notice of appeal and other appeal papers be served on that non-party, so that it may participate in the appeal?

8.17 On the first issue, the question was whether the applicants constituted “parties to the proceedings in the Court below who [were] directly affected by the appeal” within the meaning of O 57 r 3(6).36 After surveying UK and Malaysian authorities,37 the Court of Appeal set out the two conjunctive requirements in O 57 r 3(6).

8.18 First, O 57 r 3(6) limits the necessity for service of the notice of appeal to persons who were parties to the proceedings below.38 “Nonparties” encompasses all persons who were not named as parties to the

proceedings below, even if they were permitted to participate in those proceedings.39

8.19 Second, O 57 r 3(6) limits the necessity for service of the notice of appeal to parties whose rights are “directly affected by the appeal”. A party is directly affected by the appeal only if his status and legal rights would be affected by the substantive decision in the appeal without the intervention of any intermediate agency such as a right of indemnity.40

8.20 On the facts, the Court of Appeal held that the second requirement might be satisfied as the applicants might well be directly affected by the appeal. The outcome of the appeal would affect their legal rights to the costs that had been awarded in their favour below, and the relief sought in the appeal would directly affect their legal ownership of the asset in question.41 But the first requirement was not satisfied. Because the applicants had been allowed to participate in the proceedings below as a matter...

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