UNDERSTANDING THE RECENT AMENDMENTS TO THE APPEAL PROVISIONS IN THE SUPREME COURT OF JUDICATURE ACT

Published date01 December 2013
Date01 December 2013

Case Note

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

In 2010, the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) was amended to streamline appeals to the Court of Appeal arising from interlocutory applications. Following these amendments, the general rule is that an appeal against an order made at the hearing of an interlocutory application can only be made with the leave of a judge. This note discusses Dorsey James Michael v World Sport Group Pte Ltd[2013] 3 SLR 354, which is the latest Court of Appeal decision to consider the new statutory provisions governing appeals from an order made in an interlocutory application.

I. Introduction

1 Prior to the amendments introduced by the Supreme Court of Judicature (Amendment) Act 2010 (“2010 amendments”),1 s 34(1)(c) of the Supreme Court of Judicature Act (“SCJA”)2 provided as follows:

Matters that are non-appealable or appealable only with leave

34.—(1) No appeal shall be brought to the Court of Appeal in any of the following cases:

(c) subject to any other provision in this section, where a Judge makes an interlocutory order in chambers unless the Judge has certified, on application within 7 days after the

making of the order by any party for further argument in court, that he requires no further argument.

[emphasis added]

2 Therefore, before the 2010 amendments, there was generally a right of appeal to the Court of Appeal against an interlocutory order made by a judge in chambers,3 subject to the requirement to apply for the judge's certification that he requires no further argument within seven days after the making of the interlocutory order.

3 In 2010, the SCJA was amended “to streamline and restrict appeals to the Court of Appeal on interlocutory matters”.4 It was felt that it was an unproductive use of resources for all interlocutory applications (regardless of their effect on the substantive rights of the parties) to be brought before the Court of Appeal, especially where such interlocutory applications have already gone through two tiers of hearings (before a High Court registrar and a High Court judge).5 Thus, following the 2010 amendments, the default rule (encapsulated in the new s 34(2)(d) of the SCJA read with para (e) of the Fifth Sched to the SCJA) is that leave is required before an appeal can be brought against any order made on the hearing of any interlocutory application other than those for which a specific provision is made in the Fifth Sched itself or in the Fourth Sched.

4 The Court of Appeal has, in a number of recent decisions, had the opportunity to shed light on the interpretation of the new statutory scheme governing appeals from orders made at the hearing of interlocutory applications. This note seeks to summarise the invaluable guidance on the 2010 amendments which the Court of Appeal has painstakingly mapped out in one of these recent decisions,

Dorsey James Michael v World Sport Group Pte Ltd (“Dorsey James Michael”)6 and also highlights some observations that can be drawn from the case.

5 Before turning to Dorsey James Michael, it is useful to set out the new ss 34(1)(a) and 34(1)(b) of the SCJA as well as the new Fourth and Fifth Scheds to the SCJA:

Matters that are non-appealable or appealable only with leave

34.—(1) No appeal shall be brought to the Court of Appeal in any of the following cases:

(a) where a Judge makes an order specified in the Fourth Schedule, except in such circumstances as may be specified in that Schedule;

(2) Except with the leave of a Judge, no appeal shall be brought to the Court of Appeal in any of the following cases:

(d) where a Judge makes an order specified in the Fifth Schedule, except in such circumstances as may be specified in that Schedule; or

FOURTH SCHEDULE

ORDERS MADE BY JUDGE THAT ARE NON-APPEALABLE

No appeal shall be brought to the Court of Appeal in any of the following cases:

(a) where a Judge makes an order giving unconditional leave to defend any proceedings;

(b) where a Judge makes an order giving leave to defend any proceedings on condition that the party defending those proceedings pays into court or gives security for the sum claimed, except if the appellant is that party;

(c) where a Judge makes an order setting aside unconditionally a default judgment, regardless of how the default judgment was obtained (including whether by reason of a breach of an order of court or otherwise);

(d) where a Judge makes an order setting aside a default judgement on condition that the party against whom the judgment has been entered pays into court or gives security for the sum claimed, regardless of how the default judgment was obtained (including whether by reason of a breach of an order of court or otherwise), except if the appellant is that party;

(e) where a Judge makes an order refusing to strike out—

(i) an action order matter commenced by a writ of summons or by any other originating process; or

(ii) a pleading or a party of a pleading;

(f) where a Judge makes an order giving or refusing further and better particulars;

(g) where a Judge makes an order giving leave to amend a pleading, except if—

(i) the application for leave is made after the expiry of any relevant period of limitation current at the date of issue of the writ of summons; and

(ii) the amendment is an amendment to correct the name of a party or to alter the capacity in which a party sues, or the effect of the amendment will be to add or substitute a new cause of action;

(h) where a Judge makes an order refusing security for costs;

(i) where a Judge makes an order giving or refusing interrogatories.

FIFTH SCHEDULE ORDERS MADE BY JUDGE THAT ARE APPEALABLE ONLY WITH LEAVE

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

(a) where a Judge makes an order refusing leave to amend a pleading except if—

(i) the application for leave is made after the expiry of any relevant period of limitation current at the date of issue of the writ of summons; and

(ii) the amendment is an amendment to correct the name of a party or to alter the capacity in which a party sues, or the effect of the amendment will be to add or substitute a new cause of action;

(b) where a Judge makes an order giving security for costs;

(c) where a Judge makes an order giving or refusing discovery or inspection of documents;

(d) where a Judge makes an order refusing a stay of proceedings;

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

(i) for summary judgement;

(ii) to set aside a default judgement;

(iii) to strike out an action or a matter commenced by a writ of summons or by any other originating process, a pleading or a party of a pleading;

(iv) to dismiss an action or a matter commenced by a writ of summons or by any other originating process;

leave to serve interrogatories;

(x) for a stay of proceedings.

[emphasis added]

II. Brief Facts of Dorsey James Michael

6 The respondent in Dorsey James Michael, World Sport Group Pte Ltd (“the company”) and the Asian Football Confederation (“AFC”) had entered into a Master Rights Agreement (“MRA”) for the exploitation of commercial rights to AFC football competitions. An audit report (“the report”) had been prepared on the instructions of AFC to review the transactions, accounting practices and contracts negotiated during one Mohamed bin Hammam's tenure as president of the AFC (the latter was banned by the International Federation of Association Football pending concerns regarding his management of AFC's funds).

7 The appellant, Dorsey James Michael (“DJM”), was an academic who had published several posts and articles on the Internet concerning the ban against Mohamed bin Hammam. In one of these articles, he quoted from the report and it was alleged by the company that the quoted parts were defamatory of it.

8 The company applied, by way of an originating summons, to obtain, inter alia, leave to serve pre-action interrogatories on DJM under O 26A r 1 of the Rules of Court.7 The company's intention was to commence proceedings against DJM and any party whom the answers to the interrogatories show had provided a copy of the report to any third party in breach of confidentiality. The assistant registrar granted the company's application. On DJM's appeal, the High Court judge limited the scope of the interrogatories to be administered on DJM.

DJM then filed an appeal to the Court of Appeal. The company applied to strike out the notice of appeal on the ground that the order of the High Court judge giving pre-action interrogatories was not appealable to the Court of Appeal.
Decision in Dorsey James Michael

Paragraph (i) of the Fourth Schedule refers only to an order giving or refusing interrogatories that is made at the hearing of an interlocutory application for interrogatories

9 It was argued by DJM's counsel that the effect of s 34(1)(a) of the SCJA read with para (i) of the Fourth Sched to the SCJA was that all orders for interrogatories are non-appealable to the Court of Appeal. This literal interpretation of para (i) of the Fourth Sched was rejected by the Court of Appeal. It was held that in light of s 9A of the Interpretation Act,8 para (i) of the Fourth Sched must be given a purposive interpretation, taking into account the statutory context in which it is found as well as the objects and purposes underlying the statutory context.

10 Turning to the objects and purposes underlying the enactment of the new s 34 of the SCJA and the Fourth and Fifth Scheds to the SCJA, the Court of Appeal noted from the speech of the Senior Minister of State for Law, Associate Professor Ho Peng Kee (“the Minister”) during the Second Reading of the Supreme Court of Judicature (Amendment) Bill (“the Bill”)9 that the 2010...

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