Conflict of Laws
| Publication year | 2019 |
| Published date | 01 December 2019 |
| Date | 01 December 2019 |
| Author | Joel LEE Tye Beng LLB (Hons) (Wellington), LLM (Harvard), DCH (AIH); Barrister and Solicitor (New Zealand); Advocate and Solicitor (Singapore); Professor, Faculty of Law, National University of Singapore. LEOW Wei Xiang Joel1 Dip (Law and Management) (Temasek Polytechnic); LLB (Hons) (National University of Singapore); Associate, Dentons Rodyk & Davidson LLP. |
11.1 For 2019, there are 11 cases that will be examined in this review. As in previous years, it is useful to note that conflict of laws cases sometimes relate to other areas of law. In these situations, this review will only examine those parts of the case that are relevant to the field of conflict of laws. Further, as 2019 appears to have been a bumper year, in the interests of space, the authors have chosen to focus on the significant Court of Appeal cases and have provided briefer mentions and highlights of the High Court cases in this chapter.
11.2 It is trite that before a court can hear a matter, it must be seized of jurisdiction. Jurisdiction can be in personam or in rem. In personam jurisdiction can be established via presence, submission and the court's long-arm discretionary jurisdiction under O 11 r 1 of the Rules of Court2 (“ROC”). Implicit in all of these is that service of papers on the defendant is required.
11.3 On discretionary jurisdiction, there are three requirements before leave to serve out of jurisdiction is granted. First, the plaintiff's claim must come within one of the heads of claim in O 11 r 1 of ROC. Second, the plaintiff's claim must have a sufficient degree of merit. Third,
11.4 On the third requirement, that of forum conveniens, it is useful to point out that apart from being considered as part of the discretionary jurisdiction analysis (where the existence of jurisdiction is being challenged), a defendant can also apply to the court to stay proceedings on the basis of forum non conveniens, essentially asking the court to not exercise its jurisdiction because there is a more appropriate forum elsewhere.
11.5 In an O 11 application, common heads of jurisdiction used are rr 1(d) (contract) and 1(f) (tort). Li Shengwu v Attorney-General4 discussed some of the less commonly invoked jurisdictional limbs under O 11 of the ROC. The facts can be stated briefly. In July 2017, Li Shengwu published a post on his Facebook page, the material parts of which stated that “the Singapore government is very litigious and has a pliant court system. This constrains what the international media can usually report”.5 The Attorney-General (“AG”) wrote to Shengwu informing him that the post was made in contempt of court and requested him to rectify this issue.6 These requests were not complied with and the AG commenced proceedings for leave to apply for an order of committal,7 and leave was granted by the High Court.8
11.6 In September 2017, the AG applied for and obtained leave to serve out of jurisdiction the committal papers on Shengwu. The papers were duly served on at Shengwu's address in Cambridge, Massachusetts, US.9 Shengwu's application to set aside service of the committal papers was dismissed as was his application for leave to appeal against the dismissal. Shengwu then sought and obtained leave from the Court of Appeal to
11.7 The decision went to great lengths examining (a) whether the AG is entitled to raise a new point on appeal;11 and (b) the basis for the High Court to exercise jurisdiction over a foreign contemnor at the time of the commencement of proceedings,12 which are not relevant to the field of conflict of laws. For the purposes of this review, it is sufficient to note that the High Court and Court of Appeal have inherent jurisdiction to hear contempt cases by virtue of their very existence as the institutions in which the judicial power of the State is vested, and charged with safeguarding and superintending the proper administration of justice.13 Personal jurisdiction is established over the foreign contemnor and service is made in accordance with s 16 of the Supreme Court of Judicature Act14 (“SCJA”) read with O 11 of the ROC. This requirement applies to both civil and criminal contempt.15 The Court of Appeal then proceeded to consider the four different O 11 limbs relied upon by the AG on appeal.
11.8 The first limb considered was O 11 r 1(t), which permits service out of jurisdiction if the claim is “for an order of committal under Order 52”. Importantly, this jurisdictional limb only came into effect from 1 October 2017, after Shengwu allegedly committed contempt on 15 July 2017.16
11.9 The Court of Appeal rejected the AG's argument that O 11 r 1(t) had retrospective effect. It applied the principles governing retrospective application of legislation, which consist of broadly two steps.17 Step one involved a single overarching inquiry into parliamentary intent and if ambiguity persisted, then the inquiry would shift to step two which took into account various assumptions like, inter alia, “simple fairness”. On the facts, the Court of Appeal opined that on step one, it was already unlikely that retrospective effect was intended. However, it proceeded to the second step on the assumption that there was an ambiguity and concluded that the high degree of unfairness that could be caused if O 11 r 1(t) was to apply retrospectively was great; therefore, the limb should only be applied prospectively.18
11.10 The Court of Appeal's reasoning on the latter fairness point is particularly noteworthy. As it noted, proper service in accordance with any limb under O 11 r 1 is necessary to establish jurisdiction over the foreign contemnor. If limb (t) was not in force at the time Shengwu allegedly committed contempt, the court would not have jurisdiction over him by virtue of service pursuant to that limb. Therefore, to hold limb (t) to apply retrospectively would be to open Shengwu to a liability for which he was not previously liable. This, in the Court of Appeal's view, constituted unfairness, particularly in light of the penal consequences that could follow upon a finding of contempt.19 The Court of Appeal's reasoning must be correct. The authors would only go on to add a subsidiary point — given that effect of service in compliance with O 11 is considered to be an “exorbitant jurisdiction” (as the foundation for a court is primarily territorial),20 the court should be even more cautious and slower in reading retrospective effect into any O 11 limb.
11.11 Turning to O 11 r 1(p), service out is permissible if the claim is founded on a “cause of action” arising in Singapore. The Court of Appeal interestingly cited its earlier decision of Multistar Holdings Ltd v Geocon Piling & Engineering Pte Ltd21 (interpreting O 20 r 5 on amendment of pleading to introduce new “cause of action”) as authority for interpreting “cause of action” under limb (p) to mean “the essential factual material that supports a claim”.22
11.12 The Court of Appeal rejected the AG's reliance on O 11 r 1(p), as the limb concerns a claim brought in civil proceedings. A committal proceeding, however, is quasi-criminal in nature. Further, committal proceedings apply the criminal standard of proof beyond a reasonable doubt, and the court in punishing contempt is empowered to impose penal orders (as opposed to civil reliefs or remedies) such as ordering the contemnor's imprisonment or fine. Therefore, the court held that O 11 r 1(p) is clearly inapplicable in the present context.23
11.13 Next, the Court of Appeal considered and rejected the AG's argument that O 11 r 1(s) was applicable in the present case. Order 11 r 1(s) allows for service out if the claim concerns the construction, effect, or enforcement of any written law. As O 8 r 2(13) of the Australian Federal Court Rules 1979 is in pari materia with O 11 r 1(s), the court
11.14 After considering various Australian decisions, the Court of Appeal held that a claim which “concern the enforcement of any written law” refers to only two situations: (a) where the legislation in question specifically prescribes that a particular claim or application may be made thereunder (that is, it gives the party a right to pursue a particular claim or application); or (b) the claim is brought on the basis of a contravention of particular provisions in that legislation (that is, it prescribes a certain consequence upon the Act itself being contravened).25
11.15 Importantly, the Court of Appeal made the point that the specific sub-limb “enforcement of any written law” under O 11 r 1(s) contemplates provisions conferring rights on a private litigant, who can rightly claim to enforce, as opposed to provisions conferring power on the court, like (the former) s 7 of the SCJA. Accordingly, committal proceedings pursuant to s 7 of the SCJA cannot be a claim to enforce a “written law” contemplated by limb (s).26
11.16 The court also opined that the AG's seeking for punishment for contempt could not be equated with “enforcement of any written law”. Punishment under civil contempt is to regulate the court's own processes to ensure compliance with its orders and directions, and not with any particular “written law”. Further, the purpose of punishing for contempt is to protect the proper administration of justice and to vindicate the courts' authority — these interests underlie the entire system of the administration of justice and are not particular to, nor expressed in, any written law at the time the alleged contempt was committed.27
11.17 The last limb considered by the Court of Appeal was O 11 r 1(n), which permits service out if the claim is:
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