The ‘Nasco Gem’

• Judgment Date: 07 January 2014
• Date: 07 January 2014
• Docket Number: Originating Summons No 617 of 2013
• Court: Court of Appeal (Singapore)

The ‘Nasco Gem’

[2014] SGCA 1

Chao Hick Tin JA

and

Andrew Phang Boon Leong JA

Originating Summons No 617 of 2013

Court of Appeal

Civil Procedure—Appeals—Appeal against order of High Court judge dismissing application to set aside warrant of arrest and service of admiralty writ in admiralty action—Whether order dismissing application appealable without leave to Court of Appeal—Whether order dismissing application an order made at hearing of interlocutory application—Section 34 (2) (d) Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed)

This was an application for extension of time to file a notice of appeal against the order made by the High Court judge (‘the Judge’) dismissing the application of the applicant (‘the Applicant’) to, inter alia,set aside the warrant of arrest and service of admiralty writ in an admiralty in rem action (‘ADM 249/2012’). The main question for determination was whether leave to appeal was required in respect of the Judge's order in the light of s 34 (2) (d) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (‘the SCJA’) read with para (e) of the Fifth Schedule to the SCJA.

The respondent (‘the Respondent’) had arrested the Applicant's ship (‘the Vessel’) pursuant to an order obtained in ADM 249/2012. The substantive claim of the Respondent against the Appellant in ADM 249/2012 was as holder of certain bills of lading (‘B/Ls’) and for the alleged misdelivery of the goods under the B/Ls. Subsequently, the Applicant applied (vide‘the Setting Aside Application’) to, inter alia, set aside the warrant of arrest and service of the admiralty writ on the grounds that there was non-disclosure of material facts and that the arrest was an abuse of process, and also sought damages for wrongful arrest. The Judge dismissed the Setting Aside Application.

The Applicant applied (vide‘the Leave Application’) for leave to appeal to the Court of Appeal against the Judge's dismissal of the Setting Aside Application. Subsequently, the Applicant came to a view that by virtue of the recent Court of Appeal decisions in Open Net Pte Ltd v Info-Communications Development Authority of Singapore[2013] 2 SLR 880 (‘Opennet’) and Dorsey James Michael v World Sport Group Pte Ltd[2013] 3 SLR 354 (‘Dorsey’) clarifying the 2010 amendments to the SCJA, an appeal to the Court of Appeal lay as of right against the Judge's dismissal of the Setting Aside Application. As a result, the Applicant withdrew the Leave Application. Because by then it was out of time for the Applicant to file any notice of appeal, it thereafter filed the present application for an extension of time to file a notice of appeal.

Held, dismissing the application:

(1) The following propositions may be made as regards the question whether an order made by a High Court judge was appealable as of right, non-appealable or appealable only with leave of court:

1. (a) There shall be no right of appeal in respect of an order made by a High Court judge which fell within the Fourth Schedule, s 34 (1) (d) or s 34 (1) (e) of the SCJA.

2. (b) Where an application would in the normal sense be regarded as ‘interlocutory’ (that is, where the application was peripheral to the main hearing determining the outcome of the case, or occurs during the course of proceedings between the initiation of the action and the final determination), one would have to apply the tests in Open Net and Dorsey to determine if the order made in that application was ‘interlocutory’ in nature within the meaning of the SCJA (ie, whether it effectively disposed of a party's substantive claim to relief).

3. (c) If so, then pursuant to ss 34 (1) (a) and 34 (2) (d) of the SCJA, read with the Fourth and Fifth Schedules to the SCJA respectively, such orders were either appealable only with leave of court or were non-appealable.

   1. (i) The orders that were non-appealable were stated in the Fourth Schedule to the SCJA.

   2. (ii) The orders that were appealable only with leave of court were stated in the Fifth Schedule to the SCJA.

   3. (iii) Where no explicit reference was made to the order in question in the Fourth and Fifth Schedules to the SCJA, then the catch-all provision in para (e) of the Fifth Schedule to the SCJA applied such that leave to appeal was required.

4. (d) If not, then the order made by the High Court in that application was appealable as of right pursuant to s 29 A (1) of the SCJA: at [11] and [14] .

(2) The fact situations in Dorsey and Open Net differed from the present case as Dorsey and Open Net involved pre-action proceedings being taken out by the applicant solely in order to obtain specific reliefs. The applications made in Open Net and Dorsey were not interlocutory applications and were thus not caught by para (e) of the Fifth Schedule to the SCJA. In contrast, in the present matter, the order in question related to a warrant of arrest of a vessel obtained by the Respondent after the issuance of an originating process, namely ADM 249/2012: at [15] .

(3) An application for a warrant of arrest, whether allowed or denied, did not determine the substantive rights of the parties or the relief claimed in the originating process. The outcome of the application for a warrant of arrest merely determined whether the arresting party would be entitled to arrest the ship and obtain security for its claim. It was clearly an interlocutory application in the admiralty suit, and an order made on that application prima facie fell within the scope of para (e) of the Fifth Schedule as an ‘order at the hearing of any interlocutory application’. To determine whether an order made at an interlocutory application was final, the matter had to be viewed in the context of the cause in the pending action. It was the cause of the pending proceedings in which the application was being brought which was significant, not the specific purpose of the application:at [16] .

(4) The fact that admiralty actions were not specifically referred to in either the amended legislation, the Report of the Law Reform Committee to Review and Update the Supreme Court of Judicature Act and the Subordinate Courts Act(31 July 2009) or the Singapore Parliamentary Debates on the proposed amendments does not mean that they do not come within the scope of the legislative intent of the 2010 Amendments: at [17] .

(5) The Judge's refusal to strike out the action in ADM 249/2012 did not amount to an endorsement that the admiralty jurisdiction of the court had been correctly invoked against the Vessel. The Applicant was not thereafter precluded from raising the point (of jurisdiction) again. The court does not strike out an action except in clear and obvious cases: at [21] .

(6) While the Judge's decision had determined the Respondent's substantive right to pre-judgment security to the claim (and the Applicant's corresponding liability to furnish such security), there was no basis to conclude that the Judge's order was a final as opposed to interlocutory order. There was no reason to treat the issue of the validity of the warrant of arrest entitling the Respondent to pre-judgment security as a separate or ‘carve-out’ issue in the proceedings. The Setting Aside Application was an application made during the course of proceedings between the initiation of the action and the final determination. The order made during the hearing of the Setting Aside Application could not be said to have the effect of finally disposing of the substantive rights of the parties in the admiralty action or to have the potential to affect the final outcome of the proceedings: at [25] .

(7) The Setting Aside Application had not determined the Applicant's substantive right to claim for damages for wrongful arrest. A claim for damages for wrongful arrest only arose as a consequence of an order setting aside the warrant of arrest, and was not an application that could have stood by itself. It was therefore not a ‘substantive right’ of the Applicant that had been determined in the proceedings, but merely a possible consequence of wrongful arrest: at [26] and [27] .

(8) The order made by the Judge dismissing the Setting Aside Application was therefore an interlocutory order requiring leave to appeal to the Court of Appeal. In these premises, the second issue, viz,whether extension of time to file a notice of appeal should be granted, would not arise: at [28] .

Bozson v Altrincham Urban District Council [1903] 1 KB 547 (refd)

Dorsey James Michael v World Sport Group Pte Ltd [2013] 3 SLR 354 (folld)

Fierbinti, The [1994] 3 SLR (R) 574; [1994] 3 SLR 864 (refd)

Gabriel Peter & Partners v Wee Chong Jin [1997] 3 SLR (R) 649; [1998] 1 SLR 374 (refd)

Maldives Airports Co Ltd v GMR Malé International Airport Pte Ltd [2013] 2 SLR 449 (refd)

Open Net Pte Ltd v Info-Communications Development Authority of Singapore [2013] 2 SLR 880 (folld)

Wellmix Organics (International) Pte Ltd v Lau Yu Man [2006] 2 SLR (R) 525; [2006] 2 SLR 525 (refd)

International Arbitration Act (Cap 143 A, 2002 Rev Ed) s 12

Interpretation Act (Cap 1, 2002 Rev Ed) s 9 A (1)

Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 70 r 4 (1)

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

Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) s 34 (1) (c)

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

Toh Kian Sing SC, Nathanael Lin and Justin Gan (Rajah & Tann LLP) for theapplicant

Prem Gurbani and Tan Hui Tsing (Gurbani & Co) for the respondent.

Judgment reserved.

Chao Hick Tin JA

(delivering the judgment of the court):

1 This is an application for extension of time to file a notice of appeal against the order made by the High Court judge (‘the Judge’) in Summons No 3640 of 2012 (‘SUM 3640/2012’) dismissing the applicant's application to, inter alia...