Telecom Credit Inc v Midas United Group Ltd

• Jurisdiction: Singapore
• Judge: Judith Prakash JA
• Judgment Date: 26 October 2018
• Neutral Citation: [2018] SGCA 73
• Plaintiff Counsel: Moiz Haider Sithawalla and Lau Yu Don (Tan Rajah & Cheah)
• Docket Number: Civil Appeal No 138 of 2017
• Date: 26 October 2018
• Hearing Date: 05 July 2018
• Subject Matter: Appeals,Leave,Civil Procedure
• Published date: 02 November 2018
• Defendant Counsel: The respondent unrepresented and absent.
• Court: Court of Appeal (Singapore)
• Citation: [2018] SGCA 73
• Year: 2018

Judith Prakash JA (delivering the judgment of the court): Introduction

This appeal arises from a decision by a High Court Judge to order a trial to determine a garnishee’s liability to pay a debt claimed to be due to the judgment debtor. The appellant is a judgment creditor who obtained a provisional garnishee order against the respondent, who was then required to show cause why the order should not be made absolute. Affirming the assistant registrar’s decision, the Judge was persuaded by the equivocal state of the evidence at the show cause hearing not to make the order absolute and instead to order a trial to determine whether the respondent owed a debt to the judgment debtor: see Telecom Credit Inc v Star Commerce Pte Ltd (Midas United Group Pte Ltd, garnishee) [2017] SGHC 300. The appellant now appeals against that decision.

Before the appeal came on for hearing, the respondent who was then represented filed a Respondent’s Case in which it raised the preliminary objection that this court has no jurisdiction to hear the appeal because the appellant needed, but failed to obtain, leave to appeal. Although the respondent failed to appear at the appeal hearing to pursue the points made in its Case, we considered that the issue of jurisdiction required further examination. We therefore heard full submissions on the same from the appellant in addition to submissions on the substantive merits of the appeal.

The appellant would require leave to appeal if the Judge’s order is an “order at the hearing of any interlocutory application” under para (e) of the Fifth Schedule of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“the Act”). Although garnishee proceedings are common, there appears to be no direct authority on this issue of whether the order falls within para (e). Therefore, to explain our views, we will first consider the general role of para (e) in the leave to appeal regime. Next, we will examine how the authorities have interpreted the words “order” and “interlocutory application” in para (e), with a focus on the latter expression, which is crucial to this appeal, as will be seen. Finally, we will examine the nature of garnishee proceedings, and consider whether an order by a High Court Judge that a garnishee’s liability be determined at trial is caught by para (e). In short, our view is that it is. The appeal must therefore be dismissed, the appellant having failed to obtain leave to appeal.

Role of para (e) in the leave to appeal regime

Under the Act, appeals to the Court of Appeal are restricted, basically, according to the type of matter from which the order sought to be appealed against arises. The Act does this by specifying expressly where leave to appeal is required and where decisions are non-appealable: see s 34, the Fourth Schedule and the Fifth Schedule. However, due to the limitations of language and the variety of orders that can be made in differing types of matters, not everything can be spelt out in advance. Therefore, some general provision is required to deal with situations that have not been mentioned explicitly.

Para (e) of the Fifth Schedule of the Act is such a general provision. It is the provision that this case is concerned with because the scope of the right to appeal against orders made by a High Court Judge in garnishee proceedings is not expressly delineated in the Act. Para (e) reads:

Except with the leave of the High Court or the Court of Appeal, no appeal shall be brought to the Court of Appeal in any of the following cases:

…

(e) where a Judge makes an order at the hearing of any interlocutory application other than an application for any of the following matters:

…

To understand how para (e) is intended to operate, it is useful first to consider the Act’s basic approach to leave to appeal. In essence, the general philosophy that is reflected in these provisions is that a party’s ability to appeal an interlocutory matter ought to depend on the importance of that matter to the substantive outcome of the case. Hence, matters that are non-appealable include decisions to grant unconditional leave to defend or to set aside unconditionally a default judgment, which send the matter back along the ordinary route to trial, where the parties’ substantive rights will be decided after undertaking the forensic process: see paras (a) and (c) of the Fourth Schedule. Matters that are appealable with leave concern matters which, although they do not directly determine the substantive outcome of the case, may nevertheless have some material impact on it, for example, an order granting or refusing discovery or inspection of documents, or an order granting or refusing a stay of proceedings: see paras (c) and (d) of the Fifth Schedule.

This general philosophy was summed up by the Minister introducing the bill containing the 2010 amendments to the Act in the following way (Singapore Parliamentary Debates, Official Report (18 October 2010) vol 87 at cols 1369–1370 (Associate Professor Ho Peng Kee, Senior Minister of State for Law)):

Interlocutory applications will now be categorised based on their importance to the substantive outcome of the case. With this calibrated approach, some interlocutory orders will not be allowed to go to the Court of Appeal, whilst orders can only go to the Court of Appeal with the permission of the High Court. The decision of the High Court whether to grant permission is final. The right to appeal all the way to the Court of Appeal will … remain for interlocutory applications that could affect the final outcome of the case. [emphasis added]

The cases have recognised that para (e) of the Fifth Schedule of the Act should operate in a way that is consistent with this general philosophy which places the focus on whether the application in question is one that has an effect on the final outcome of the case. However, the way in which the cases have interpreted the words “order” and “interlocutory application” in para (e) appears to have given rise to some uncertainty. To take this case as an example, it is not immediately clear, on the face of para (e) and on the definitions adopted in the cases, whether garnishee show cause proceedings are a type of “interlocutory application”. We shall therefore discuss these cases and clarify the approach to be taken.

Authorities on para (e) OpenNet, Dorsey and The Nasco Gem

In OpenNet Pte Ltd v Info-communications Development Authority of Singapore [2013] 2 SLR 880 (“OpenNet”), the Court of Appeal had to consider whether an order refusing leave for judicial review was an order made at the hearing of an “interlocutory application” within the meaning of para (e) of the Fifth Schedule. The court noted that the Act provided no definition of that expression. The court also noted that its plain and ordinary meaning, based on definitions contained in various legal dictionaries, appeared to exclude an application for leave to commence judicial review from the “interlocutory” category because there was “no main hearing determining the outcome of the case” (at [14]).

The definition of “interlocutory application” which the court then adopted was “any application that is made before the substantive trial”. But it adopted this definition only “[f]or the purpose of the discussion below” (at [14]). In that discussion, the court held that the appellant’s application did not fit this definition because the appellant had initiated the application by originating summons, and the very relief sought in the originating summons was leave to commence proceedings for judicial review (at [21]). Once leave had been refused, the substantive issue in the summons was determined, and there was “nothing more to proceed on” (at [21]). The application was therefore not interlocutory in nature, and the appellant did not require leave to appeal.

Next, in Dorsey James Michael v World Sport Group Pte Ltd [2013] 3 SLR 354 (“Dorsey”), the Court of Appeal was faced with the question whether an order granting leave to serve pre-action interrogatories was an “order giving or refusing interrogatories” under para (i) of the Fourth Schedule, and therefore non-appealable. The court first explained the thinking behind the 2010 amendments to the Act in order to establish the legislative purpose against which the court would interpret para (i). In this regard, the court noted that one of the problems with the previous regime was that there was uncertainty as to the meaning of “interlocutory order” (at [27]). The amendments were passed partly to ensure that the extent of a party’s right of appeal on interlocutory matters would be “no longer wholly dependent on the dichotomy between a final order and an interlocutory order” and that instead, the new Fourth and Fifth Schedules applied a “calibrated approach” under which orders made at the hearing of interlocutory applications were categorised based on their importance to the outcome (at [48]).

The court then agreed (at [51]–[52]) with the view expressed in OpenNet (at [21]) that the Fourth and the Fifth Schedule, in so far as they curtailed the right of appeal, were applicable only to orders made at the hearing of “interlocutory applications”. The court in Dorsey therefore considered that whether an order granting leave to serve pre-action interrogatories fell under para (i) of the Fourth Schedule had to depend on whether it was, more generally, an order made at the hearing of an interlocutory application, which is essentially the test in para (e) of the Fifth Schedule (at [52]).

The court decided that it was not. The court noted that the Oxford Dictionary of Law (Oxford University Press, 7th Ed, 2009) specified that what is “interlocutory” should occur “between the initiation of the action and the final determination” (at [58]). Approving this definition, the court held that the application was not interlocutory in nature because it was not...