INHERENT JURISDICTION RE-VISITED: AN EXPANDING DOCTRINE

• Published date: 01 December 2002
• Date: 01 December 2002
• Author: JEFFREY PINSLER

INTRODUCTION

1 The inherent power of the court to exercise its procedural jurisdiction to avoid injustice and ensure efficiency in litigation has long been recognised as a fundamental element of the administration of justice.1 Yet, the courts, conscious of their place in the Common Law system, their duty to apply legislation2 as the primary source of law and the corresponding concern that judicial initiatives should not compromise this obligation, have placed limits on their capacity to generate a parallel and supplemental jurisprudence to the rules of court.3 The recent judgment of the Court of Appeal in Wee Soon Kim Anthony v Law Society of Singapore4 is significant in this respect for it has opened the way for the application of a more broad-based inherent power and a precise rationale for the doctrine. The judgment does much to clarify the scope of judicial exercise of inherent power.

2 The approach of this article will be to consider the rulings of the High Court and Court of Appeal in Wee Soon Kim against the background of previous authorities, and to examine and assess the likely impact of that case on the future of civil litigation.

FACTS OF WEE SOON KIM AND THE APPROACH OF THE HIGH COURT

3 The appellant made a complaint to the Law Society concerning certain advocates and solicitors. The Inquiry Committee recommended that the complaint be dismissed and the Council of the Law Society decided that there was no case for a formal investigation by a Disciplinary Committee. The appellant applied to a judge for an order under s 96(1) of the Legal Profession Act directing the Society to apply to the Chief Justice

for the appointment of a Disciplinary Committee to investigate the complaint. This section is to the following effect:

1. (1) Where a person has made a complaint to the Society and the Council has determined — (a) that a formal investigation is not necessary; or (b) that no sufficient cause for a formal investigation exists but that the advocate and solicitor concerned should be ordered to pay a penalty, that person, if he is dissatisfied with the determination, may within 14 days of being notified of the Council’s determination apply to a Judge under this section.

2. (2) Such an application shall be made by originating summons and shall be accompanied by an affidavit or affidavits of the facts constituting the basis of the complaint and by a copy of the complaint originally made to the Society together with a copy of the Council’s reasons in writing supplied to the applicant under section 87(4).

3. (3) The application accompanied by a copy of each of the documents referred to in subsection (2) shall be served on the Society.

4. (4) At the hearing of the application, the Judge may make an order — (a) affirming the determination of the Council; or (b) directing the Society to apply to the Chief Justice for the appointment of a Disciplinary Committee, and such order for the payment of costs as may be just.

5. (5) If the Judge makes an order directing the Society to apply to the Chief Justice for the appointment of a Disciplinary Committee, the applicant shall have the conduct of proceedings before the Disciplinary Committee and any subsequent proceedings before the court under section 98, and any such proceedings shall be brought in the name of the applicant.

4 The solicitors against whom the complaint was made sought to intervene in the s 96 proceedings. They contended that they should be allowed to do so pursuant to O 15, r 6(2)(b) of the Rules of Court on the basis that they had a real and substantial interest in the outcome of the application. Their application to intervene was granted by the Assistant Registrar. The appellant appealed to the High Court. The High Court dismissed the appeal. It decided that apart from the issue of whether O 15, r 6(2)(b) was applicable in the circumstances of the case, the court could exercise its inherent power to allow joinder as it would be in the interest of justice to do so. The court ruled that although the solicitors were not party to the application pursuant to s 96, they were ‘the true substantive parties’

in that they had ‘at least as great an interest as the complainant’5 in respect of a s 96 application:

‘Although the application to have a Disciplinary Committee appointed is but the first step for a complainant to pursue his complaint after an unfavourable report by the Inquiry Committee ie. unfavourable to the complainant in that he prefers a different outcome, it is nevertheless a step which is of great significance to the solicitor concerned. If a Disciplinary Committee is appointed, the solicitor is put to the inconvenience, expense and anxiety of proceedings before the Disciplinary Committee and the risk of an adverse outcome against him. These are not factors which can be adequately compensated by any order that the Disciplinary Committee can make. Accordingly, if the matter can be nipped in the bud in that the court is not persuaded to appoint a Disciplinary Committee, the solicitor concerned avoids the inconvenience, expense, anxiety and risk I have mentioned.’6

APPROACH OF THE COURT OF APPEAL

5 The Court of Appeal considered whether the solicitors could be joined pursuant to O 15, r 6(2)(b) or the court’s exercise of its inherent power. With regard to O 15, r 6(2)(b)(i),7 the court stated that they were not persons who ‘ought to be joined as parties’ and that their presence before the court was not ‘necessary to ensure that all matters in the course may be effectually and completely determined’:

‘At the hearing, the Law Society would have to defend its decision, in the light of the report of the IC [Inquiry Committee], why a formal investigation by a DC [Disciplinary Committee] is not necessary. The hearing of the application could quite properly proceed without the presence of the two solicitors, even though they are the subject of the complaint. Having an interest in the outcome of the application in the originating summons, which the two solicitors no doubt have, does not mean that the persons should be joined as, or it is necessary to make him, a party to the application.

An adverse decision by a judge in such an originating summons application does not mean that the solicitor’s rights are affected — no definitive decision has been taken. All it means is that the solicitor must explain himself formally (with the support of witnesses, if any) before the DC.’8

6 The Court of Appeal also concluded that the solicitors could not have been joined pursuant to O 15, r 6(2)(b)(ii).9 The court ruled that this limb was inapplicable as the only issue was ‘whether a prima facie case has been shown for the complaint to proceed forth to the DC’.10 At this stage, there could not be said to be a separate issue between the solicitors and the Law Society or the appellant.11 Moreover, the court pointed out that the difficulties sought to be addressed by the two limbs of O 15, r 6(2)(b)12 were non-existent.13

7 Regarding the court’s inherent jurisdiction to order joinder, the Court of Appeal referred to O 92, r 4 which states:

‘For the removal of doubt it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court.’

8 The Court of Appeal considered the scope of this provision and compared it to the common law position. It cited the case of The Mardina Merchant14 in which the English High Court exercised its inherent jurisdiction to permit the intervention of the Port Authority in an admiralty proceeding because the continued presence of an arrested vessel was causing the Port Authority ‘serious hardship, difficulty or danger’. Brandon J resorted to the inherent jurisdiction of the court because the particular

admiralty rule15 which allowed joinder only applied to a person who had an interest in the property under arrest or its proceeds of sale:

‘The view which I take, however, is that the rule is not exhaustive of the powers of the court to do justice in particular cases. I am of the opinion that there must be an inherent jurisdiction in the court to allow a party to intervene if the effect of an arrest is to cause that party serious hardship or difficulty or danger. One can visualise cases where the presence of a ship in a particular place might cause not merely financial loss or commercial difficulty but even danger to persons or property. In all such cases it seems to me that the court must have power to allow the party who is affected by the working of the system of law used in Admiralty actions in rem, to apply to the court for some mitigation of the hardship or the difficulty or the danger.’

9 The Mardina Merchant was followed in The Nagasaki Spirit,16 a case involving very similar circumstances. There, the High Court ruled that a person or entity may be allowed to intervene in admiralty proceedings involving the arrest of a ship even if that person or entity did not have an interest in that property as required by the admiralty rule.17 The intervener, who owned the shipyard at which the arrested vessel was berthed, claimed that it was suffering hardship as a result of the congestion caused by the ship’s presence. The court agreed with the principle espoused by Brandon J in The Mardina Merchant.

10 The Court of Appeal in Wee Soon Kim endorsed Brandon J’s observations18 and expressed the view that the scope of O 92, r 4 is more narrow in scope:

‘Our O 92 r 4 talks of preventing “injustice” or “abuse of process”. We have serious doubts that “preventing injustice” or “preventing abuse of process” arose in that case. What occurred was that because of the arrest of the vessel, serious practical problems were encountered by the Port Authority. Yet, Brandon J did not feel constrained to grant the application.’19

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