A REVIEW OF DEVELOPMENTS IN SELECTED AREAS OF CIVIL PROCEDURE1

• Citation: (1996) 8 SAcLJ 397
• Published date: 01 December 1996
• Date: 01 December 1996

Appeals — Judicial Review — Summary judgment — Injunctions and covenants in restraint of trade — Performance bonds — Cross-examination on affidavits — Procedural irregularities — Parties — Default judgments — Duty to litigate all issues — Anton Piller Order — Privileged communications between client and legal adviser — Judgment in absence of party — Security for costs — Indemnity costs — Execution creditors — Striking out pleadings or endorsements on writs — Jurisdiction of the Syariah Court — Receiving evidence on unpleaded matters — Principles governing stay of execution or proceedings

Restrictions on appeal to the Court of Appeal: the relationship between section 34(1) (a) and (b) and 34(2) of the Supreme Court of Judicature Act.

While paragraphs (a), (d) and (e) of section 34(1) bar appeals absolutely, paragraphs (b) and (c) are not entirely exclusionary. In the case of (b), the defendant may appeal against an order giving him conditional leave to defend an action. In the case of (c), a right of appeal against an interlocutory order does arise if the judge below has certified that he requires no further argument. As the paragraphs appear disjunctive it might be tempting to argue that the party who seeks to appeal can rely on either (b) or (c). However, the Singapore Court of Appeal has made it clear that this is not the law. In Seabridge Transport Pte Ltd v Olivine Electronics Pte Ltd,2 the defendant, who had been granted conditional leave to defend the action, appealed under both paragraphs (b) and (c). The defendant failed to comply with the procedure governing paragraph (c),3 and, therefore, sought to rely on paragraph (b) as an independent ground of appeal. The Court of Appeal did not accept this approach. Karthigesu JA, who delivered the judgment of the court, ruled that paragraph (c) concerns appeals on all interlocutory orders made by a judge in chambers by providing for the procedure to be followed.4 Accordingly, paragraph (b) could not stand on its own. As the order was interlocutory, paragraph (c) had to be satisfied irrespective of compliance with paragraph (b). His Honour rejected the

argument that the words ‘subject to any other provision in this section’ made paragraph (c) subject to paragraph (b):

This is tantamount to saying that whilst all other interlocutory orders made by a judge in chambers are subject to the provisions of section 34(1)(c), an order giving a defendant conditional leave to defend the action made by a judge in chambers is not subject to the provisions of section 34(1)(c) simply because it fell within section 34(1)(b). This is to put a defendant who is given conditional leave to defend the action by a judge in chambers in a very special position which Parliament could never have intended and which is not justified by the scheme of section 34(1).5

His Honour went on to state that the words ‘subject to any other provision in this section’ refer to section 34(2) which sets out the circumstances in which a party may appeal if he obtains the leave of the court.6

This court’s interpretation of these provisions is obviously justified, even though it is not entirely consistent with the lay-out and phraseology. First, if section 34(1)(c) is an overriding provision which applies to all interlocutory orders, it ought to be set out in a separate sub-section rather than grouped as one of the various circumstances in which an appeal does not lie. Indeed, this was the case prior to the amendment of the Supreme Court of Judicature Act in 1993.7 Secondly, paragraph (b) is essentially exclusionary in nature: it prevents the plaintiff from appealing against an order giving the defendant conditional leave to defend an action. If the inclusionary words at the beginning of this paragraph (‘except if the appellant is the defendant’) are excluded, and the terminology makes clear that it is the plaintiff who is debarred from appealing (without any reference to the defendant), then the defendant would not be able to rely on this paragraph as a separate basis for appeal. That is, although he would not be prevented by paragraph (b) from appealing, he would not be able to contend that it specifically vests a right of appeal in him which operates independently of paragraph (c). In this proposed framework, only paragraph (c) allows an appeal (if the procedure for further arguments is complied with).

As to the relationship between section 34(1)(c) and section 34(2), the words ‘subject to any other provision in this section’ at the beginning of section 34(1)(c) subject it to section 34(2).8 It follows that a right to appeal pursuant to certification by the judge that he requires no further arguments pursuant

to section 34(1)(c) would be subject to the requirement of leave in the circumstances listed in section 34(2)(a)—(d). For example, if the amount or value of the subject-matter at the trial is $30,000 or less, the leave of the Court of Appeal or a judge would be necessary.9

Principles governing leave to apply for judicial review10

Karthigesu JA, in the course of delivering the judgment of the Court of Appeal in Chan Hiang Leng Colin v Minister for Information and the Arts,11 considered the opinion of Lord Diplock in Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses:12

My Lords, at the threshold stage, for the federation to make out a prima facie case of reasonable suspicion that the Board in showing a discriminatory leniency to a substantial class of taxpayers had done so for ulterior reasons extraneous to good management, and thereby deprived the national exchequer of considerable sums of money, constituted what was in my view reason enough for the divisional court to consider that the federation, or, for that matter, any taxpayer, had sufficient interest to apply to have the question whether the Board were acting ultra vires reviewed by the court. The whole purpose of requiring that leave should first be obtained to make the application for judicial review would be defeated if the court were to go into the matter in any depth at that stage. If, on a quick perusal of the material then available, the court thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for that relief. The discretion which the court is exercising at this stage is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application.

Karthigesu JA observed that the phrases ‘a prima facie case of reasonable suspicion’ and ‘what might on further consideration turn out to be an arguable case’ as being:

… susceptible to two slightly different interpretations. One is that the court should quickly peruse the material put before it and consider whether such material discloses ‘what might on further consideration

turn out to be an arguable case’. The other is that the applicant had to make out a ‘prima facie case of reasonable suspicion’. In our view, both tests present a very low threshold and it is questionable whether there is really any difference in substance between the two interpretations.13

His Honour went on to rule that what is required is not a prima facie case, but a prima facie case of reasonable suspicion.14

Summary judgment: delay in application

It appears to be well established that the party applying for summary judgment should act as soon as possible, and if he does not, he must explain his dilatoriness to the satisfaction of the court.15 It has also been held that where summary judgment has been obtained despite the absence of an acceptable explanation, the appeal court is at liberty to set it aside if it thinks fit.16

This traditional approach may be compared to a recent development which emphasises the avoidance of trial as the primary consideration. In Brinks Ltd v Abu-Saleh,17 Jacob J considered that the delay in filing an application for summary judgment, no matter how long, is ‘irrelevant’ if the defendant is not in a position to raise any triable issues or some other reason why there should be a trial. His Lordship added that in some cases a late application ‘may be commendable as saving both the extra costs and time involved in a full trial’.18 As to the much-endorsed, century-old dictum of Pollock B in McLardy v Slateum19 that the plaintiff must justify delay by showing special circumstances, Jacob J said:

Whilst that may well have been apposite in the 1890s, when trials were quicker and cheaper and I suspect Order 14 was more restricted in its use, I do not think it appropriate today.20

While it is true that the rules do not prevent an application being made at a later stage of the proceedings,21 the plaintiff with an indisputable claim should be in a position to apply for summary judgment before the defence

is served. A late application is a failure to properly utilise the rules (or even an abuse of process when the procedure is intentionally misused) resulting in the unnecessary prolongation of proceedings and wasted costs. In a sense, the summary procedure is a privilege accorded to the claimant so that he may receive judgment quickly and avoid incurring costs resulting from the continuation of proceedings. If he misuses the procedure so as to be responsible for the harm that the process is intended to avoid there must be a doubt as to his entitlement to the privilege. On the other hand, a late application may be a ‘lesser evil’ than a pointless trial which would unnecessarily utilise the court’s resources, and, therefore, should not be defeated by delay. What one has here is a variety of considerations which the court must consider in all the circumstances to determine the issue of whether the plaintiff should only be penalised in costs for making a late...