Ujm v Ujl
| Jurisdiction | Singapore |
| Judge | Andrew Phang Boon Leong JCA,Steven Chong JCA |
| Judgment Date | 15 December 2021 |
| Court | Court of Three Judges (Singapore) |
| Docket Number | Originating Summons No 21 of 2021 |
Andrew Phang Boon Leong JCA and Steven Chong JCA
Originating Summons No 21 of 2021
Court of Appeal
Civil Procedure — Appeals — Leave — Applicant seeking leave to appeal against decision of High Court (Appellate Division) — Whether leave to appeal ought to be granted — Section 47 Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed)
Held, dismissing the application in its entirety:
(1) The first issue was answered in the negative. OS 21 had been filed late and the Husband had provided no explanation whatsoever for it and had given no reasons to support Prayer 1 of OS 21 in either his written submissions or supplemental submissions for OS 21. OS 21 was dismissed on this basis alone: at [54] and [55].
(2) The court nonetheless proceeded to consider the applicable statutory provisions and principles which pertained to AD/CA Leave Applications as OS 21 was the first application of its kind to come before the court: at [56].
The applicable principles governing AD/CA Leave Applications
Three key points framing the overall context in which AD/CA Leave Applications were brought
(3) Three key points framed the overall context in which AD/CA Leave Applications were brought, and also informed the court's analysis on the statutory scheme governing such applications: at [60].
(a) First, AD/CA Leave Applications were brought in situations where the AD had already heard an appeal and delivered its decision. The parties would have already had an opportunity to litigate their disputes before an appellate court which usually sat as a coram of three judges. The parties were therefore seeking a “further appeal from the Appellate Division” by way of such an application: at [60(a)].
(b) Second, the AD was established for reasons that had both quantitative and qualitative roots – namely, to alleviate the growing caseload of the Court of Appeal whilst simultaneously permitting the Court of Appeal to focus its resources on matters which would benefit from its expertise as the apex court of the land: at [60(b)].
(c) Flowing from the above two points, the AD was “a court which in some respects is akin to an intermediate appellate court” (see Noor Azlin (transfer) at [2]). The key words in that sentence were “akin to”, and not “intermediate appellate court”. While the Court of Appeal remained the apex court of Singapore with the AD located just under it in the court hierarchy, the AD was not meant to be seen as a “further tier” of appeal that had to be crossed before a matter could reach the Court of Appeal. In the vast majority of cases, once an appeal had been heard by the AD, the AD would serve as the final appellate court: at [60(c)].
An overview of the statutory scheme governing AD/CA Leave Applications
(4) The purpose of the statutory scheme governing AD/CA Leave Applications within the SCJA and the Rules of Court (2014 Rev Ed) (“ROC”) was to provide a tightly confined and highly limited avenue for parties to appeal against certain decisions of the AD: at [61].
(5) Division 3 of the SCJA could be seen as the bedrock of the AD's existence as a court “akin to” an intermediate appellate court. Its provisions reflected a fine balance; they highlighted that the AD would be the final appellate court in the vast majority of cases, while simultaneously underscoring the Court of Appeal's status as the apex court of Singapore. This balance was achieved in six key ways: at [64].
(a) First, the AD's decision in respect of any case that fell within the Ninth Schedule to the SCJA was final, there being no further avenue of appeal that dissatisfied litigants could avail themselves of pursuant to s 46 of the SCJA: at [64(a)].
(b) Second, the Court of Appeal had the power to hear appeals against decisions of the AD in respect of cases that did not fall within the Ninth Schedule to the SCJA. Such appeals were termed “Eligible Appeals”: at [64(b)].
(c) Third, Eligible Appeals could not be brought automatically as of right. In all cases, parties had to first make an AD/CA Leave Application to the Court of Appeal to seek leave to bring an Eligible Appeal before the Court of Appeal under s 47(1) of the SCJA: at [64(c)].
(d) Fourth, the Court of Appeal could grant leave in respect of an Eligible Appeal “only if the appeal will raise a point of law of public importance” under s 47(2) of the SCJA. The provision therefore contained a threshold condition which, if not fulfilled, would automatically cut off any prospect of the grant of leave. This was referred to as the “Threshold Merits Requirement”: at [64(d)].
(e) Fifth, in deciding whether: (i) leave ought to be granted under s 47(1) of the SCJA; or (ii) the appeal fulfilled the Threshold Merits Requirement under s 47(2) of the SCJA, the Court of Appeal was to have regard to matters prescribed in the ROC pursuant to s 47(3) of the SCJA: at [64(e)].
(f) Finally, even if the Eligible Appeal fulfilled the Threshold Merits Requirement under s 47(2) of the SCJA, the Court of Appeal had the discretion to decline to grant leave as stipulated under s 47(4) of the SCJA. In particular, s 47(4)(a) of the SCJA stated that “the Court of Appeal is not required to grant leave under subsection (1) even if the appeal will raise a point of law of public importance”: at [64(f)].
(6) The matters “prescribed by the Rules of Court” in s 47(3) of the SCJA referred to those contained in O 57 r 2A(3) of the ROC. This rule further restricted the cases in which the Court of Appeal would grant leave in AD/CA Leave Applications under s 47 of the SCJA: at [65] and [66].
(a) In addition to the Threshold Merits Requirement under s 47(2) of the SCJA, the Court of Appeal would also consider the further question of “whether it is appropriate for [the Court of Appeal] to hear a further appeal from the Appellate Division” pursuant to O 57 r 2A(3) of the ROC when deciding whether to grant leave under s 47(1) of the SCJA. This was referred to as the “Discretionary Appropriateness Requirement”: at [66(a)].
(b) In considering the Discretionary Appropriateness Requirement, the Court of Appeal would take into account all relevant matters, including either one or both of the two stipulated matters under O 57 r 2A(3)(a) or O 57 r 2A(3)(b) of the ROC (collectively the “Stipulated Considerations”): at [66(b)].
Two perceived ambiguities in relation to the statutory scheme governing AD/CA Leave Applications
(7) The first ambiguity was whether the Stipulated Considerations ought to be considered under the Threshold Merits Requirement or the Discretionary Appropriateness Requirement (collectively referred to as the “Requirements”): at [68].
(8) The Stipulated Considerations ought to be considered under the Discretionary Appropriateness Requirement in relation to AD/CA Leave Applications. This was for three reasons: at [71] to [79].
(a) First, a consideration of the AD/CA Leave Provisions as a whole revealed that the Stipulated Considerations featured only under the Discretionary Appropriateness Requirement: at [72] and [73].
(b) Second, this interpretation was aligned with Parliament's intention as to the manner in which the Court of Appeal's inquiry would proceed in AD/CA Leave Applications. Excerpts from the parliamentary debates in relation to the amendments to the SCJA in 2019 showed that a clear distinction was to be drawn between the two Requirements. The former was a rigid threshold condition that had to be fulfilled in order for the Court of Appeal to grant leave. The latter was a requirement that accorded the Court of Appeal a degree of flexibility in the exercise of its discretion. In line with this spirit of flexibility, the Court of Appeal was empowered to take into account “all relevant matters”, including either or both of the Stipulated Considerations under O 57 r 2A(3) of the ROC. Further, it was clear from the excerpts that the legislative drafters had contemplated the Stipulated Considerations as falling only under the latter: at [74] and [75].
(c) Third, it was logical for the Stipulated Considerations to be considered only under the Discretionary Appropriateness Requirement in the context of the AD/CA Leave Application. Both Stipulated Considerations would be fulfilled only in respect of points of law. This, in itself, was already a sub-requirement that had to be fulfilled under the Threshold Merits Requirement. It would be strange if the same sub-requirement of “point of law” would need to be considered twice under the threshold stage of the Court of Appeal's inquiry in AD/CA Leave Applications, and again under the discretionary stage. There would be a curious duplication of effort if the Stipulated Considerations were relevant to both Requirements since if the Stipulated Considerations were satisfied under the Discretionary Appropriateness Requirement, there would be no reason why they would not also satisfy the Threshold Merits Requirement: at [76].
(9) The second ambiguity was whether the fulfilment of both Requirements would guarantee the grant of leave under s 47(1) of the SCJA: at [80].
(10) The court held that the fulfilment of both Requirements only went towards increasing the applicant's prospects of obtaining leave and not towards guaranteeing it. Order 57 r 2A(3) of the ROC merely stated that the Court of Appeal “is to have regard” to the Discretionary Appropriateness Requirement. This meant that the fulfilment of the Discretionary Appropriateness Requirement was but one of the considerations that the Court of Appeal could have regard to when deciding whether to grant leave. There was no mention of this requirement being determinative and furthermore “appropriateness” was not a monolithic concept. It was a matter of degree to be determined according to the unique facts and circumstances of the case. This view was supported by both the plain reading of the AD/CA Leave Provisions, as well as the purpose and object of O 57 r 2A(3) of the ROC and the Discretionary...
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