SELECTED CASE LAW DEVELOPMENTS IN CIVIL PROCEDURE

• Author: JEFFREY PINSLER
• Citation: (1995) 7 SAcLJ 140
• Date: 01 December 1995
• Published date: 01 December 1995

FURTHER ARGUMENTS AND APPEALS TO THE COURT OF APPEAL

In Singapore Press Holdings Ltd v Brown Noel Trading Pte Ltd,1 the Singapore Court of Appeal made important observations concerning the process of further arguments and appeal pursuant to section 34(1)(c) of the Supreme Court of Judicature Act (SCJA) and Order 56, rule 2 (RSC).

Section 34(1) of the SCJA provides:

No appeal shall be brought to the Court of Appeal in any of the following cases…

1. (c) subject to any other provision in this section, where a judge makes an interlocutory order in chambers unless the judge has certified, on application within 7 days after the making of the order by any party for further argument in court, that he requires no further argument.

Order 56, rule 2(1)-(3)2 states:

1. (1) A party dissatisfied with any interlocutory order made by a judge in chambers may, within 7 days of making such order, apply to the judge for further arguments in court in accordance with practice directions for the time being issued by the Registrar.

2. (2) Unless the Registrar informs the party making the application within 14 days of the receipt of the application that the judge requires further arguments, the judge shall be deemed to have certified that he requires no further arguments.

3. (3) Upon hearing further arguments, the judge may affirm, vary or set aside the interlocutory order previously made or may make such other order as he thinks fit. Any such hearing, if in chambers, shall be deemed to be a hearing in court for the purposes of section 34(1)(c) of the Act.

First, the Court of Appeal considered the differences between section 34(1)(c) and its predecessor, section 34(2).3 Under the latter provision the aggrieved party could either apply for further arguments or seek leave to appeal from the Court of Appeal or the judge who heard the application.

Section 34(1)(c) does not offer this alternative of leave to appeal. The effect is that ‘…a party aggrieved by an interlocutory order made by a judge in chambers cannot proceed on appeal to this court without going through the procedure of applying for further argument in court.’4 As the Court pointed out, the hearing of further argument, if heard in chambers, is deemed to be a hearing in ‘court’ for the purpose of section 34(1)(c).5 Accordingly, the restriction imposed by the section on appeals from interlocutory orders made in chambers does not apply. In the previous case of Seow Teck Ming v Tan Ah Yeo,6 the Court of Appeal said in relation to this issue:

Where the judge has certified that he agrees to hear further argument, he hears it in court and not in chambers. The use of the expression ‘in court’ in contrast with the use of the expression ‘judge in chambers’ makes this clear. However, the judge may, with the consent of the parties, treat his chambers as open court for this purpose. It is for each judge to decide, subject to the consent of the parties.7

In Singapore Press Holdings Ltd v Brown Noel Trading Pte Ltd, the Court of Appeal also considered the procedure under Order 56, rule 2, and particularly how an application for further argument might eventually be the subject matter of an appeal before the Court of Appeal:

Order 56, rule 2(2)…provides that the registrar shall inform the party making the application for further argument, within 14 days of the making of the application, whether the judge requires further argument or not. By expressed implication…it follows that in the event the judge requires further argument the judge shall hear further argument in which case he ‘may affirm, vary or set aside the interlocutory order previously made or may make such other order as he thinks fit’, and the aggrieved party may then proceed with the appeal to this court. On the other hand, should the registrar inform the party making the application for further argument that the judge does not require further argument within the 14 days limited or no reply is given by the registrar to the party aggrieved making the application for further argument within the 14 days limited, in which case it shall be deemed that the judge does not require further argument, then by expressed implication, on the date the aggrieved party is informed by the registrar that the judge does not require further argument or on the expiry of

the 14 days limited, as the case may be, the aggrieved party may then proceed with the appeal to this court.8

The Court of Appeal also made it very clear that the process contemplated by section 34(1)(c) and Order 56, rule 2 is specifically intended for the situation in which the judge has not had sufficient time to hear and consider all the relevant arguments concerning the issues. Chan Sek Keong J’s interpretation of the purpose of section 34(1)(c) in JH Rayner (Mincing Lane) Ltd v Teck Hock & Co9 was adopted by the Court of Appeal in Singapore Press Holdings Ltd v Brown Noel Trading Pte Ltd:

[The section] contemplates a situation where a party who is adversely affected by an interlocutory order may wish to appeal against that order but before so doing would like the judge to reconsider the order in the light of such further arguments as he may be able to put forward. If a judge agrees to hear further arguments, it must mean that he is prepared to change his mind if on hearing further arguments he comes to the conclusion that the original decision is wrong wholly or in some respects. In other words, until he has heard such arguments, his decision must remain tentative.10

The Court of Appeal added that if the judge agrees to hear further argument he must be ‘prepared to change his mind’ on the order that he has made, or ‘at least to alter his thinking on some of the issues he has to decide in coming to his conclusion which might have some bearing on the order he made’.11

WHETHER A JUDGE WHO DECIDES TO HEAR FURTHER ARGUMENT HAS THE JURISDICTION TO DO SO AFTER THE INTERLOCUTORY ORDER HAS BEEN ENTERED AND PERFECTED

Singapore Press Holdings Ltd v Brown Noel Trading Pte Ltd 12 also raised the important question of whether a judge who decides to hear further argument has the jurisdiction to do so after the interlocutory order has been entered and perfected pursuant to Order 42, rule 8 (RSC).

Rule 8(1) states:

Where the party in whose favour a judgment or order is given or made is represented by a solicitor, a copy of the draft shall be submitted for approval to the solicitor (if any) of the other party who shall within two days of the receipt thereof, or within such further

time as may in any case be allowed by the registrar, return such copy with his signed consent or any required amendments thereto.

Rule 8(2) provides:

When the solicitor omits to return the copy of the draft within the time prescribed, he shall be deemed to have consented to the terms thereof.

The first defendant, against whom an ex parte injunction had been granted, applied for its dissolution and other related orders. The application was dismissed on the 28th May, 1993. On the 4th June the first defendant applied under Order 56, rule 2 for further arguments. On the same day (4th June), a draft of the order of the 28th May (dismissing the first defendant’s application) was submitted to the first defendants’ solicitors for approval. As the draft order was not returned by the solicitors they were deemed to have consented to its terms. The order was then drawn up and entered by the registrar. However, on 9th June, 1993, the first defendants were informed that the judge would hear further arguments. The application came before the judge on the 8th July, who ruled that as the order had been drawn up and perfected he no longer had jurisdiction to alter it. The learned judge indicated that the first defendant could have applied for an extension of time under rule 8(1) (ie, beyond the two days prescribed by the rule) in which to approve and return the draft. The learned judge referred to section 34(1)(c) of the SCJA:13

I do not think that section 34(1)(c) alters the position. It does not confer any jurisdiction or power on a judge who has made an interlocutory order in chambers to rehear the application or to hear further argument on it or to affirm, vary or set aside the order he has made or to make some other order once the order he has made has been drawn up and entered.14

This proposition reflects the common law rule concerning judgments and orders which have been entered and perfected. However, the Court of Appeal made it clear that in relation to the hearing of further arguments pursuant to Order 56, rule 2, the common law rule has no application. In the view of the Court of Appeal, rule 2(3):15

permits the judge hearing ‘further argument’ to make more firm what might have been tentative… or to vary, or set aside the interlocutory order in chambers previously made by him irrespective of whether the interlocutory order has been perfected. It does not vest in him an appellate jurisdiction.16

Returning to Order 42, rule 8, the Court of Appeal declared that it could not be allowed to compromise the statutory process established by section 34(1)(c) of the SCJA, and given effect by Order 56, rule 2:

In our judgment Order 42, rule 8 is no more than a rule that provides for good ‘housekeeping’. The intent and purpose of this rule is to facilitate the drawing up of orders and judgments once a judge or court has given a decision and not permit the party against whom the decision goes to frustrate or delay the consequences of the decision. In our judgment it cannot override and frustrate the procedure designed by Parliament for the manner in which appeals against interlocutory orders made by a judge in chambers are to be brought. As we have observed earlier, the foundation of Order 56, rule 2 is the statutory provision of section 34(1)(c) of the re-enacted SCJA. However, this does not mean that in every case of an interlocutory order made by a judge in...