Re Joseph David QC

Judgment Date12 December 2011
Date12 December 2011
Docket NumberOriginating Summons No 853 of 2011
CourtHigh Court (Singapore)
Re Joseph David QC

V K Rajah JA

Originating Summons No 853 of 2011

High Court

Legal Profession—Admission—Ad hoc admission of Queen's Counsel—Queen's Counsel applying to appear on matters immediately arising from and inextricably linked to prior arbitration proceedings in which Queen's Counsel was lead counsel—Whether case contained issues of fact and/or law of sufficient difficulty and complexity—Whether circumstances of case warranted court's exercise of discretion in favour of admission—Section 15 Legal Profession Act (Cap 161, 2009 Rev Ed)

This application was made pursuant to s 15 of the Legal Profession Act (Cap 161, 2009 Rev Ed) (‘the LPA’) for Mr David Joseph QC (‘the Applicant’) to be admitted as an advocate and solicitor of Singapore for the purpose of representing the plaintiffs in matters arising from Originating Summonses Nos 807 and 913 of 2010. The second defendant in these originating summonses was the respondent in this application (‘the Respondent’).

These originating summonses involved eight plaintiffs and three defendants who had participated in arbitration proceedings conducted under the auspices of the Singapore International Arbitration Centre. The dispute concerned a failed joint venture relating to the supply of satellite-delivered direct-to-home pay television services in Indonesia. The arbitral tribunal unanimously granted five awards in favour of the plaintiffs.

Leave to enforce the awards as judgments of the High Court of Singapore was subsequently sought and obtained by the plaintiffs, pursuant to s 19 of the International Arbitration Act (Cap 143 A, 2002 Rev Ed). The order granting leave (‘the Enforcement Orders’) provided that in the event that service of the Enforcement Orders was effected on the defendants outside the jurisdiction of Singapore, the defendants were allowed to apply to set aside the Enforcement Orders within 21 days after such service. The Enforcement Orders were served on the defendants in Indonesia, and the plaintiffs entered judgments in terms of the awards on 24 March 2011 (‘the 24 March 2011 Judgments’) when the defendants did not apply to challenge the Enforcement Orders within the stipulated timeframe of 21 days.

Subsequently, the Respondent filed Summonses (‘SUMs’) Nos 1911 and 1912 of 2011 to set aside the 24 March 2011 Judgments on the basis that the service of the Enforcement Orders was not valid. The Respondent also sought leave to apply to set aside the Enforcement Orders within 21 days of the plaintiffs' service of the Enforcement Orders on the Respondent. The assistant registrar (‘the AR’) hearing these summonses decided that: (a) service of the Enforcement Orders was not valid; (b) the Respondent was deemed to have been served with the Enforcement Orders on 22 August 2011; and (c) the Respondent would be granted leave to set aside the Enforcement Orders by 12 September 2011.

On 5 September 2011, the plaintiffs filed Registrar's Appeals (‘RAs’) 278 and 279 of 2011 (‘RAs 278/279’) against the AR's orders. On 12 September 2011, in compliance with the AR's order, the Respondent filed SUMs Nos 4064 and 4065 of 2011 (‘SUMs 4064/4065’) to set aside the Enforcement Orders. RAs 278/279 and SUMs 4064/4065 had been fixed for hearing together before the same High Court judge, on account of various common issues of law.

The Respondent vigorously objected to the Applicant's admission on the ground that the proceedings were not of sufficient difficulty and complexity to warrant admission of a Queen's Counsel. However, the Attorney-General and the Law Society of Singapore were of the view that the legal issues were of sufficient difficulty and complexity to warrant the exercise of judicial discretion in favour of the Applicant's admission.

Held, allowing the application:

(1) In determining an application under s 15 (1) of the LPA, the courts had usually applied a three-stage test: first, whether the case contained issues of fact or law of sufficient difficulty and complexity to justify the admission of a Queen's Counsel (‘the first stage’); second, whether the circumstances of the case warranted the court's exercise of discretion in favour of the applicant (‘the second stage’); and third, whether the applicant was a suitable candidate for admission (‘the third stage’): at [15].

(2) The first stage of ‘sufficient difficulty and complexity’ wasconjunctive and not disjunctive, and was not limited to questions of law. The absence of direct local precedents was insufficient, in and of itself, to warrant the admission of a Queen's Counsel. The second stage involved the court balancing the long-term need to foster a strong and independent local Bar against the individual justice of each case which might demand the assistance of a Queen's Counsel. The first and second stages of the test were neither clearly demarcated nor ordered lexically, and were dependent, in part, upon the competence and maturity of the local Bar: at [16] to [20].

(3) With regard to the third stage, admission was a privilege which required that the applicant display two essential qualities, viz, (a)his conduct had to satisfy that ‘he will be responsible, honourable, courteous and respectful of our Judiciary’; and (b)he had to be at ‘the forefront of his area of specialisation so that he can adequately assist our courts in our deliberations and the administration of justice’: at [21].

(4) SUMs 4064/4065 raised three sufficiently complex and difficult issues of fact and law related to the setting aside of the Enforcement Orders: at [26] and [27].

(5) The first issue was whether a party is entitled to resist enforcement of the awards in the country in which the awards were made when it did not take any steps to set aside the same within the statutorily prescribed period. The adjudication of this issue would require consideration of the very recent UK Supreme Court decision inDallah Real Estate and Tourism Holding Co v Ministry of Religious Affairs of the Government of Pakistan [2011]AC 763 (‘Dallah’), which had been the subject of intense academic debate and which had yet to be fully considered in Singapore courts. Furthermore, the present case was different from the matrix that informed the decision in Dallah, raising thorny issues that remained unaddressed by courts in other jurisdictions and which could have important implications for the international arbitral and commercial communities: at [29], [31] and [32].

(6) The second issue was that of whether a party had a right to revive its challenge based on the alleged lack of an arbitration agreement. The complexity associated with the joinder of parties to an arbitration lay in determining whether the joinder mechanism could be reconciled with the fundamental arbitration concepts of party consent, autonomy and confidentiality. This issue had been and remained a hotly-contested matter, and all parties agreed that there were no judicial authorities directly on point: at [34] and [37].

(7) The third issue was whether the enforcement of an award in Singapore was affected by a ruling made in another country over the enforcement of the same award. This issue had to be examined by reference to the principles relating to the enforcement of international arbitration awards generally, and then specifically in the situation where a court of another jurisdiction had determined that the award in question was unenforceable in that jurisdiction. In the present case, the fact that the courts in Indonesia decided not to grant exequatur despite Indonesia being a party to the New York Convention might have increased the complexity of the issue of law. Thefacts involved in this issue were also intricately laced. Issues pertaining to the enforcement of the Preliminary Award in Indonesia featured in the course of the Arbitration, and the Applicant - who had overall carriage of the matters in relation to the Indonesian legal proceedings - was able to and did present arguments to the Tribunal on the interplay between the Arbitration and the Indonesian legal proceedings. The fact that Indonesia was a civil law jurisdiction further shaded the complexity of the facts that had to be managed and elucidated upon by the Applicant: at [38] to [40].

(8) The issues relating to arbitration law in the present application were undeniably of no small significance to the development of the international arbitration law jurisprudence in Singapore. The determination of these issues would involve the consideration of difficult aspects of arbitration law, and would undoubtedly require careful and detailed argument and, thereafter, considered judicial determination: at [43].

(9) There were at least four reasons which suggest that the Court of Appeal in Re Platts-Mills Mark Fortescue QC [2006] 1 SLR (R)510 (‘Fortescue QC’) probably did not intend to lay down an iron rule of law dictating that the admission of Queen's Counsel would only be permissible where absolutely no local counsel was able and willing to take up the case. First, it seemed odd that if the Court of Appeal intended to depart from an earlier stance consistently taken by the High Court, no reference was made to this. Second, on the facts of Fortescue QC, the Court of Appeal had felt that the intellectual property issues that arose were not of sufficient difficulty and complexity, and that local counsel was ‘well able’ to address those issue. Third, unlike in the present case, the Law Society had objected to the admission of the applicant inFortescue QC. Fourth, Parliamentary intention in enacting stringent Queen's Counsel admissibility provisions in the LPA was to prevent abuse by parties seeking to admit Queen's Counsel for uncomplicated cases as well as to give the Bar time to acquire specialised expertise in advocacy. The intention was notto exclude the services of Queen's Counsel altogether, or to restrict the admission of Queen's Counsel to the most complex...

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