Tmy v Tmz

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ,Tay Yong Kwang JA,Steven Chong JA
• Judgment Date: 25 September 2017
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeal No 6 of 2017 (Summons No 14 of 2017)
• Date: 25 September 2017

TMY

and

TMZ

[2017] SGCA 57

Sundaresh Menon CJ, Tay Yong Kwang JA and Steven Chong JA

Civil Appeal No 6 of 2017 (Summons No 14 of 2017)

Court of Appeal

Civil Procedure — Appeals — Leave — Appeal against decision of Family Division of High Court exercising its appellate jurisdiction — Whether leave of court required — Section 34(5) Supreme Court of Judicature Act (Cap 322, 2005 Rev Ed) — Section 137 Women's Charter (Cap 353, 2009 Rev Ed)

The parties were involved in matrimonial proceedings before the Family Court. After the Family Court rendered its decision on the ancillary matters, the husband filed an appeal to the Family Division of the High Court. After the High Court judge delivered her decision, the husband filed a further appeal against the decision of the High Court judge to the Court of Appeal without obtaining leave to appeal.

The wife took out an application to strike out the husband's notice of appeal on the basis that the husband had not obtained the requisite leave to appeal to the Court of Appeal. The husband contended that no leave to appeal was required.

Held, allowing the application and striking out the notice of appeal:

(1) The effect of s 29A(1) of the Supreme Court of Judicature Act (Cap 322, 2005 Rev Ed) was that any judgment or order of the High Court was ordinarily appealable as of right. This, however, was subject to any contrary provisions in the Supreme Court of Judicature Act “or” any other written law. The use of the word “or” before the words “any other written law” in s 29A(1) of the Supreme Court of Judicature Act meant that the civil jurisdiction of the Court of Appeal might be qualified so long as there was either a provision in the Supreme Court of Judicature Act itself or in any relevant written law which qualified it: at [16].

(2) The view that s 29A(1) of the Supreme Court of Judicature Act was qualified by only s 137 of the Women's Charter and not by s 34(5) of the Supreme Court of Judicature Act was clearly mistaken as it ignored the words “subject nevertheless to the provisions of this Act” and focused solely on the words “or any other written law” in s 29A(1) of the Supreme Court of Judicature Act: at [28].

(3) The legislative history of s 34(5) of the Supreme Court of Judicature Act shows that Parliament's intention was clearly to allow only one tier of appeal as a matter of right for family cases. Further appeals to the Court of Appeal were possible only with leave of the Family Division of the High Court or the Court of Appeal: at [18] and [25].

Blenwel Agencies Pte Ltd v Tan Lee King [2008] 2 SLR(R) 529; [2008] 2 SLR 529 (refd)

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

Eng Poh Su v Yap Ah Ho [2001] 1 SLR(R) 546; [2001] 2 SLR 367 (distd)

IW v IX [2006] 1 SLR(R) 135; [2006] 1 SLR 135 (refd)

Sivakolunthu Kumarasamy v Shanmugam Nagaiah [1987] SLR(R) 702; [1987] SLR 182 (refd)

Zaleha bte A Rahman v Chaytor Alan James [2000] 3 SLR(R) 612; [2001] 1 SLR 459 (refd)

Family Justice Act 2014 (Act 27 of 2014) ss 23(1)(a), 74(q)

Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) ss 21, 28A, 28A(2)(b)

Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) ss 29A(1), 34(5) (consd); s 29A

Supreme Court of Judicature (Amendment) Act 2004 (Act 36 of 2004)

Supreme Court of Judicature (Transfer of Matrimonial, Divorce and Guardianship of Infants Proceedings to District Court) Order 2005 (S 855/2005) para 6

Women's Charter (Cap 353, 2009 Rev Ed) s 137 (consd)

Leong Choi Fun (Tan Kim Seng & Partners) for the applicant;

Respondent in person.

25 September 2017

Judgment reserved.

Tay Yong Kwang JA (delivering the judgment of the court):

1 The parties before us are involved in matrimonial proceedings in the Family Court. After the Family Court decided the ancillary matters in the divorce, the husband (“the Husband”) appealed to the Family Division of the High Court in District Court Appeal No 14 of 2016 (“DCA 14”). Judicial Commissioner Foo Tuat Yien (“the JC”) heard DCA 14 in the High Court and made various orders. The Husband appealed to the Court of Appeal in Civil Appeal No 6 of 2017 (“CA 6”) against the JC's decision. The wife (“the Wife”) then took out an application in CA Summons No 14 of 2017 (“SUM 14”) to strike out CA 6 on the basis that the Husband had not obtained the requisite leave to appeal to the Court of Appeal. SUM 14 is the application that is now before this court.

2 At the hearing before us, the Husband argued that there is a conflict between s 34(5) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“SCJA”) and s 137 of the Women's Charter (Cap 353, 2009 Rev Ed) (“WC”) concerning the right of appeal to the Court of Appeal from appellate decisions of the Family Division of the High Court. In particular, the question is whether leave to appeal is required to appeal against such appellate decisions.

The facts leading to SUM 14

3 To provide some context, we set out a brief procedural history of this case leading up to the application before us. The parties married in December 1989 in China. They do not have any children. In July 2009, they separated. In July 2013, the Wife commenced divorce proceedings on the ground of four years' separation. On 7 January 2015, the Wife was granted interim judgment by the Family Court. On 19 January 2016, the Family Court gave its decision on the ancillary matters which comprised various orders relating to the parties' assets in China and in Singapore.

4 On 27 January 2016, the Husband appealed in DCA 14 to the Family Division of the High Court against the decision on the ancillary matters. On 6 January 2017, the JC gave her decision in DCA 14, varying the orders made by the Family Court. After delivering her decision in DCA 14, in reply to the Husband's query, the JC informed the Husband that if he wished to appeal to the Court of Appeal against her decision, he would have to file an application for leave to appeal. This conversation was recorded in her notes of the hearing as follows:

Note: In response to [the Husband's] query, court informs [the Husband] that if he wishes to appeal, he should file an application for leave to appeal.

5 However, the Husband, who holds degrees in engineering and in law and who practised law in Hong Kong, did not apply for leave to appeal. Instead, on 10 January 2017, he filed CA 6 appealing against the following parts of the JC's decision in DCA 14:

• (a) The orders regarding division of the flat at [address redacted].

• (b) The order that the Wife shall retain the assets in her sole name.

• (c) The costs order.

6 On 12 January 2017, the Supreme Court Registry e-mailed the...