OpenNet Pte Ltd v Info-communications Development Authority of Singapore

• Jurisdiction: Singapore
• Judgment Date: 14 March 2013
• Date: 14 March 2013
• Docket Number: Civil Appeal No 81 of 2012 (Summons No 3702 of 2012)
• Court: Court of Appeal (Singapore)

OpenNet Pte Ltd

Plaintiff

and

Info-communications Development Authority of Singapore

Defendant

[2013] SGCA 24

Chao Hick Tin JA

,

Andrew Phang Boon Leong JA

and

V K Rajah JA

Civil Appeal No 81 of 2012 (Summons No 3702 of 2012)

Court of Appeal

Civil Procedure—Appeals—Leave—Appellant appealing against judge's refusal to grant leave to commence judicial review under O 53 Rules of Court (Cap 322, R 5, 2006 Rev Ed)—Whether appellant was required to apply for leave to appeal from High Court in order to file notice of appeal against judge's refusal to grant leave to commence judicial review—Section 34 (2) (d) and Fifth Schedule para (e) (iv) Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed)

Statutory Interpretation—Construction of statute—Purposive approach—Whether appellant's application for judicial review fell within meaning of ‘interlocutory application’ in Fifth Schedule para (e) (iv) Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed)—Whether appellant was required to apply for leave to appeal from High Court in order to file notice of appeal against judge's refusal to grant leave to commence judicial review—Section 34 (2) (d)and Fifth Schedule para (e) (iv) Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed)

The appellant's application for leave to commence judicial review of a decision made by the respondent was refused by the High Court. The appellant filed a notice of appeal against the High Court's refusal to grant leave to commence judicial review. The respondent then applied to strike out the notice of appeal on the ground that the appellant had not obtained leave to appeal to the Court of Appeal, pursuant to s 34 (2) (d), read with para (e) of the Fifth Schedule, of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (‘the SCJA’), ie, the judge's refusal to grant leave to commence judicial review fell within the meaning of ‘an order at the hearing of any interlocutory application other than an application for any of the following matters’, which required leave to appeal to the Court of Appeal.

Held, dismissing the appeal:

(1) As a starting point, s 29 A of the SCJA provided that the Court of Appeal had jurisdiction over appeals from ‘any judgment or order of the High Court in any civil cause or matter’, subject to the provisions of the SCJA or ‘any other written law regulating the terms and conditions upon which such appeals may be brought’. Unless it was shown that the right of a party to appeal against a decision of the High Court was statutorily curtailed, that party would be entitled to appeal to the Court of Appeal: at [7] and [31] .

(2) The plain and ordinary meaning of ‘interlocutory application’ did not resolve the issue of whether the judge's refusal to grant leave to commence judicial review was ‘an order at the hearing of any interlocutory application’: at [14] .

(3) Taking a purposive interpretation in accordance with s 9 A (1) of the Interpretation Act (Cap 1, 2002 Rev Ed), an interpretation that would promote the purpose underlying the SCJA was preferred. The purpose underlying the SCJA regarding the right to appeal was that an appeal to the Court of Appeal would generally be as of right for orders made at interlocutory applications which had the effect of finally disposing of the substantive rights of the parties; while an appeal to the Court of Appeal would ordinarily be denied for orders made at interlocutory applications which did not finally dispose of the substantive rights of the parties, and which were deemed to involve established principles of law. The middle category which consisted of orders made at interlocutory applications which lay in the middle of these two extreme situations might be appealed to the Court of Appeal only with leave of court: at [18] .

(4) In the present case, in refusing to grant leave to commence judicial review, the judge had determined the substantive issue and the substantive rights of the parties had come to an absolute end. Therefore, the appellant's application for leave to commence judicial review did not come within the meaning of ‘interlocutory application’ under para (e)of the Fifth Schedule of the SCJA, and no leave of court was needed by the appellant in order to file an appeal against the judge's order: at [21] .

(5) The reference to ‘interlocutory order’ in O 53 r 8 was to link it with the then s 34 (1) (c) of the SCJA so that the dissatisfied party in an application for leave to commence judicial review had to first, within seven days, write to the judge to hear further arguments before an appeal might be filed. Since s 34 (1) (c) had been repealed, and there was no longer a reference to an ‘interlocutory order’ in the SCJA, the reference to ‘interlocutory order’ in O 53 r 8 was no longer meaningful and this rule should, perhaps, be reviewed: at [29] .

Blenwel Agencies Pte Ltd v Tan Lee King [2008] 2 SLR (R) 529; [2008] 2 SLR 529 (folld)

Info-communications Development Authority of Singapore Act (Cap 137 A, 2000 Rev Ed)

Interpretation Act (Cap 1, 2002 Rev Ed) ss 9 A (1) , 9A (2) , 9A (3) (c)

Rules of Court (Cap 322, R 5, 1997 Rev Ed) O 53 r 7

Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 53 r 8 (consd) ;O 41 r 5, O 53, O 53 r 1

Supreme Court of Judicature (Amendment) Act 2010 (Act 30 of 2010)

Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) ss 34 (1) (c) , 34 (2) (d) , Fifth Schedule para (e) (iv) (consd) ;ss 29 A, 34 (1) (a) , 34 (2) , Fourth Schedule paras (a) , (b) , (g) , Fifth Schedule paras (e) , (e) (i)

Tan Chee Meng SC, Melvin Lum, Lionel Leo, Daniel Chan and Tricia How (WongPartnership) for the appellant

Cavinder Bull SC, Chia Voon Jiet and Lin Shumin (Drew & Napier) for the respondent.

Chao Hick Tin JA

(delivering the grounds of decision of the court):

1 This was an application by the Info-communications Development Authority of Singapore, the respondent (‘the Respondent’) in Civil Appeal No 81 of 2012/Q, to strike out the notice of appeal filed by the appellant (‘the Appellant’), OpenNet Pte Ltd, on the ground that the Appellant had not obtained leave to appeal to the Court of Appeal, pursuant to s 34 (2) (d), read with the Fifth Schedule, of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (‘the SCJA’). At the conclusion of the hearing we ruled that the Appellant did not require leave of court to file the appeal and accordingly dismissed the application to strike out the notice of appeal. We now give our reasons.

The background

2 The Appellant is a joint venture company incorporated in Singapore. The Respondent is a statutory board established pursuant to the Info-communications Development Authority of Singapore Act (Cap 137 A, 2000 Rev Ed).

3 By way of Originating Summons No 1099 of 2011/V, the Appellant filed an application under O 53 of the Rules of Court (Cap 322, 2006 Rev Ed) (‘ROC’) for leave from the High Court to commence judicial review of a decision made by the Respondent that both a business trust by the name of NetLink Trust and its trustee-manager CityNet Infrastructure Management Pte Ltd had fulfilled the requirements set out in a deed of undertaking furnished by Singapore Telecommunications Limited to the Respondent.

4 The Appellant's application for leave to commence judicial review was heard on 17 January 2012, 21 February 2012, 2 March 2012 and 19 April 2012. On 7 June 2012, the Appellant's leave application was dismissed. On 6 July 2012, the Appellant filed a notice of appeal against the High Court's refusal to grant leave to commence judicial review.

5 On 23 July 2012, the Respondent filed the present application for an order that the Appellant's notice of appeal be struck out on the ground that the Appellant had not obtained leave to appeal as required under s 34 (2) (d), read with the Fifth Schedule, of the SCJA.

Issue

6 The sole issue which we had to decide was whether the Appellant was required to apply for leave to appeal from the High Court in order to file the notice of appeal against the judge's (‘the Judge's’) refusal to grant leave to commence judicial review.

The legislative framework

7 Before examining the arguments made by the parties, it may be helpful to lay out the legislative framework for appeals on civil matters. As held by this court in Blenwel Agencies Pte Ltd v Tan Lee King [2008] 2 SLR (R) 529, ‘ [t] he Court of Appeal is a creature of statute and, hence, is only seised of the jurisdiction that has been conferred upon it by the relevant provisions in the legislation creating it’. Therefore, as a starting point, we refer to s 29 A of the SCJA, which provides that the Court of Appeal has jurisdiction over appeals from ‘any judgment or order of the High Court in any civil cause or matter’, subject to the provisions of the SCJA or ‘any other written law regulating the terms and conditions upon which such appeals may be brought’:

Jurisdiction of Court of Appeal

29 A.- (1)The civil jurisdiction of the Court of Appeal shall consist of appeals from any judgment or order of the High Court in any civil cause or matter whether made in the exercise of its original or of its appellate jurisdiction, subject...