THE RIGHT TO APPEAL AGAINST A DECISION MADE ON AN INTERLOCUTORY APPLICATION
| Published date | 01 December 2013 |
| Author | Eunice CHUA Hui Han LLB (Hons) (National University of Singapore); LLM (Harvard); Assistant Registrar, Supreme Court of Singapore. CHEN Siyuan LLB (Hons) (National University of Singapore); LLM (Harvard); Assistant Professor, Singapore Management University. |
| Date | 01 December 2013 |
The Immediate Aftermath of the 2010 Amendments
One of the main reasons for amending the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) in 2010 was to introduce a calibrated approach towards interlocutory appeals to the Court of Appeal. The amended s 34 and the newly introduced Fourth and Fifth Scheds were interpreted for the first time in two recent Court of Appeal decisions, providing much needed guidance on the general approach towards statutory interpretation, as well as specific direction in terms of interpreting the term “order” in para (i) of the Fourth Sched and para (e) of the Fifth Sched, and the term “interlocutory application” in para (e) of the Fifth Sched. However, some important questions remain to be answered, such as those relating to the meaning of the purposive approach, the framework to determine what are “interlocutory orders” and “interlocutory applications”, the relationship between the relevant provisions in the Rules of Court (Cap 322, R 5, 2006 Rev Ed) relating to leave to appeal and the primary legislation, as well as the extent of possible future legislative change.
1 Singapore's Supreme Court of Judicature Act (“SCJA”)1 was amended in 20102 vide the Supreme Court of Judicature (Amendment) Act 2010 (“2010 SCJA amendments”). One key provision that saw change was s 34, which bears the ostensibly straightforward heading “Matters that are non-appealable or appealable only with leave”.
2 This change came about as one of the perennial conundrums in civil litigation is the extent to which appeals should be permitted to be brought to the appellate courts;3 indeed, the primary purpose of amending s 34 was to introduce a calibrated approach towards interlocutory appeals to the Court of Appeal (the apex court in Singapore) in order to strike a better balance between utilising the Court of Appeal's resources to hear appeals from interlocutory applications concerning trite principles of law and allowing the Court of Appeal to continue developing the jurisprudence on critical areas of civil procedure law that may arise in interlocutory applications.4
3 The amended s 34 was interpreted for the first time in two recent decisions by the Court of Appeal.5 released just a couple of weeks apart: OpenNet Pte Ltd v Info-Communications Development Authority of Singapore (“OpenNet”)6 and Dorsey James Michael v World Sport Group Pte Ltd (“Dorsey James Michael”).7
4 This piece analyses the reasoning in both decisions and also raises certain questions that hopefully can be resolved in due course. Before that is done, however, it is necessary to understand how and why the provisions relating to appeal in the SCJA had changed.
A. Before the 2010 amendments
5 For the larger part of our history, appeals to the Court of Appeal in Singapore were subject to the principle that an appeal did not lie in respect of an interlocutory order in chambers unless the judge had certified after an application for further argument in court that he required no further argument.8
6 In this regard, the Court of Appeal in Singapore Press Holdings Ltd v Brown Noel Trading Pte Ltd9 had explained that this requirement for certification contemplated situations in which appeals from interlocutory orders “may have arisen from full arguments not being presented to the judge in chambers due to the shortness of time available for the hearing of such applications or due to the judge in chambers having to decide on an issue without the time available to him for mature consideration”.10
7 Previous versions of the SCJA also contained provisions governing matters that were appealable as of right, non-appealable or appealable only with leave. Over the years, the categories of cases where an automatic right of appeal lay to the Court of Appeal were narrowed, and those disqualifying an appeal to the Court of Appeal or requiring leave increased.
8 In introducing some of these earlier legislative amendments, Parliament had stated that their purpose was to check, screen or sieve out the number of unmeritorious, unimportant or non-serious appeals, especially on interlocutory matters.11
9 Before the 2010 SCJA amendments, the right of appeal to the Court of Appeal in respect of interlocutory orders was found in s 34(1)(c) of the then-existing SCJA.12 That provision stated that no appeal shall be brought to the Court of Appeal “where a judge makes an interlocutory order in chambers unless the Judge has certified, on application within seven days after the making of the order by any party for further argument in court, that he requires no further argument”.
10 This meant that where a judge-made order in chambers was concerned, it was crucial, in determining the extent of one's right to appeal, whether that order could be classified as “final” or “interlocutory”; where an order was “interlocutory”, it would only be appealable to the Court of Appeal if the no-further-arguments-required certification was obtained.
11 However, once the requisite certification was obtained, the default position for orders made in interlocutory applications was that they were appealable as of right to the Court of Appeal unless otherwise provided for13
12 In the larger scheme of the SCJA, pursuant to s 29A(1), “final” orders of a judge in chambers were appealable as of right, along with all other orders that were not subject to exceptions in the SCJA requiring leave to appeal or providing that there was no right to appeal.
13 The categories of cases which were non-appealable (excluding “interlocutory” orders made by a judge in chambers where the appellant failed to obtain the no-further-arguments-required certification) were as follows:
(a) Where a judge made an order giving unconditional leave to defend an action or an order setting aside unconditionally a default judgment.14
(b) Where the appellant was the plaintiff and a judge made an order giving leave to defend on condition that the defendant paid into court or gives security for the sum claimed or an order setting aside a default judgment on condition as aforesaid.15
(c) Where the judgment or order was made by consent of the parties.16
(d) Where written law declared the judgment or order to be final.17
14 The categories of cases where leave to appeal was required were as follows:
(a) Where the amount or value of the subject-matter at the trial in dispute was less than $250,000.18
(b) Where the only issue in the appeal related to costs or fees for hearing dates.19
(c) Where a judge in chambers made a decision in a summary way on an interpleader summons where the facts were not in dispute.20
(d) An order was made refusing to strike out an action or a pleading or part of a pleading.21
15 As summarised in Dorsey James Michael, there were essentially three problems with this scheme.
16 First, there was considerable uncertainty as to the meaning of “interlocutory order”.22
17 Second, although the no-further-arguments certification had a rational basis, in practice, a majority of further arguments did not raise fresh arguments and the failure to obtain the certification in time had potentially draconian effects on a party's right to appeal.23
18 Third, there was an upward trend in appeals to the Court of Appeal in respect of interlocutory orders, leading to a strain on the Court of Appeal to hear other appeals against judgments and final orders, delays in case management, and the unsatisfactory position that there were effectively two levels of appeal for interlocutory orders but only one for judgments or final orders.24
B. After the 2010 amendments
19 Accordingly, after careful consideration by two Committees led by the Judiciary — the Law Reform Committee of the Singapore Academy of Law chaired by Judith Prakash J, and the Committee to Review and Update the SCJA and the Subordinate Courts Act chaired by Chao Hick Tin JA — recommendations were made which led to the 2010 SCJA amendments.25
20 These recommendations were aimed, inter alia, at “streamlining of appeals to the Court of Appeal arising from interlocutory applications”26 to strike a better balance between “maximising the use of the Court of Appeal's limited resources so that it can focus on substantive cases that help shape legal jurisprudence and, at the same time, allowing it to continue to shape [Singapore] jurisprudence in the area of interlocutory applications”.27
21 The 2010 SCJA amendments essentially embodied a new three-pronged calibrated approach towards appeals to the Court of Appeal.28
22 Under this approach, to determine whether an order made on an interlocutory application was appealable to the Court of Appeal, one would have to determine which of the following three categories the order fell within: (a) non-appealable matters; (b) matters appealable only with leave of court; or (c) matters appealable as of right to the Court of Appeal.29
23 Non-appealable matters are listed in s 34(1) of the SCJA and comprise the following:
(a) Where a judge makes an order specified in the Fourth Sched, except in such circumstances as may be specified in that Sched.30
(b) Where the judgment or order is made by consent of the parties.31
(c) Where written law declares the judgment or order to be final.32
24 The main difference with the previous version of the SCJA was that the reference to specific types of orders (relating to unconditional or conditional leave to defend an action and setting aside unconditionally a default judgment or on certain conditions being imposed) and the broad category of “interlocutory” orders made by a judge in chambers where the appellant failed to obtain the no-furtherarguments-required certification had been deleted and replaced with a list of orders specified in the Fourth Sched.
25 However, the Fourth Sched itself contains certain exceptions. It states that no appeal shall be brought to the Court of Appeal in the...
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