X v K
| Jurisdiction | Singapore |
| Judge | Lim Hui Min |
| Judgment Date | 30 December 2003 |
| Neutral Citation | [2003] SGDC 320 |
| Court | District Court (Singapore) |
| Published date | 16 January 2004 |
| Year | 2003 |
| Plaintiff Counsel | Bernice Loo (Allen and Gledhill) |
| Defendant Counsel | Christopher Yap (Christopher Yap and Co) |
| Subject Matter | Family Law,Principles governing grant of application to cross-examine a party on his ancillary matters affidavits at the ancillary matters hearing |
| Citation | [2003] SGDC 320 |
Factual Matrix
1 The divorce petition in this case was filed on 21 November 2002. The decree nisi was granted on 28 February 2003. Pursuant to directions given by the court at various ancillary matters pre-trial conferences after 28 February 2003, the parties filed their affidavits of means and reply affidavits in respect of the ancillary matters. The Petitioner filed her affidavits on 29 May 2003 (“the Petitioner’s first affidavit”) and 30 July 2003 (“the Petitioner’s second affidavit”) respectively. The Respondent filed his affidavits on 3 July 2003 and 8 September 2003 respectively. The Respondent filed a further affidavit on 2 December 2003 pursuant to an order of court made on 10 November 2003, after the Petitioner took out an application for discovery and interrogatories.
2 A hearing date for the ancillary matters has been fixed for 8 January 2004. On 2 December 2003, the Respondent took out an application by way of Summons-in-Chambers No. 652256 of 2003 (“the SIC”) for leave to cross-examine the Petitioner on her first and second affidavits. The Petitioner objected to the application. Her position was that it was unnecessary for her to be cross-examined at the ancillary matters hearing, and that the court could make a decision in the ancillary matters by just reading the various affidavits filed by the parties. I dismissed the application for cross-examination, and give my reasons below.
The Relevant Rules
3 At this juncture, I note that as the divorce petition was filed before 14 April 2003, the applicable rules are the Women’s Charter (Matrimonial Proceedings) Rules (“the old Rules”), rather than the Women’s Charter (Matrimonial Proceedings) Rules 2003 (“the new Rules”). The relevant rule governing the manner in which evidence is given in an ancillary matters hearing is Rule 28 of the old Rules, which states:
(1) Subject to the provisions of the Act and this rule, the witnesses at the trial or hearing of any proceedings under Part X of the Act shall be examined viva voce and in open Court.
(2) Notwithstanding paragraph (1), a Judge may—
(a) subject to paragraph (3) order that any particular facts to be specified in the order may be proved by affidavit;
(b) order that the affidavit of any witness may be read at the trial or hearing on such conditions as the Judge may think reasonable;
(c) order that evidence of any particular facts to be specified in the order shall be given at the trial or hearing by statement on oath of information and belief or by production of documents or entries in books or by copies of documents or entries or otherwise as the Judge may direct; and
(d) order that not more than a specified number of expert witnesses may be called.
…
(3) Where it appears to the Judge that any party reasonably desires the production of a witness for cross-examination and that the witness can be produced, an order shall not be made authorising the evidence of the witness to be given by affidavit but the expenses of the witness at the trial shall be specifically reserved.
…
4 Rule 28(1) of the old Rules gives the impression that oral evidence will usually be given in an ancillary matters hearing, and that the parties giving the evidence will be cross-examined on the evidence which they have given.
The Practice in Relation to Giving Evidence and Cross-Examination for the Ancillary Matters
5 In practice, however, the vast majority of ancillary matters in the Family Court have been heard with all the evidence being set out in the form of affidavits (in accordance with Rule 28(2) of the old Rules). At the decree nisi hearing, the judge, after granting the decree nisi, would almost invariably order that all outstanding ancillary matters be adjourned to chambers. Affidavits of assets and means should have been filed by parties in accordance with Rule 40 (Evidence on application for maintenance) and 41 (Evidence on application for division of assets or avoidance of disposition order) of the old Rules, i.e. within 14 days after the expiration of the time limited for appearance, in the case of the respondent; and, in the case of the petitioner, within 14 days of receiving the respondent’s affidavit of means. (I note that in practice, however, most parties only filed their affidavits of means and assets after the decree nisi had been granted.) Directions would be given at an ancillary pre-trial conference for reply affidavits to be filed (or for the affidavits of assets and means to be filed, if the said affidavits had not yet been filed). There would often be one, two, three or even more “rounds” of such reply affidavits, in this regard. Applications for discovery and interrogatories might be taken out, in the meantime. When no further “rounds” of reply affidavits are requested by the parties, and/or if the court is of the view that the affidavits which have been filed are sufficient for the purposes of the ancillary matters hearing, a hearing date would be fixed. Parties and their witnesses would usually not attend the ancillary matters hearing. It has always been extremely rare for parties to be cross-examined on their affidavits in an ancillary matters hearing. The practice, as I have set out above, remains unchanged under the new Rules regime.
The New Rules
6 This year, Rule 28(1), (2) and (3) of the old Rules were deleted and replaced by Rule 26(1) and (2) of the new Rules. Rule 26(1) and (2) state:
(1) Subject to paragraph (2), unless the court otherwise directs, Order 38 of the Rules of Court (Cap. 322, R 5) in relation to an action commenced by writ shall apply, with the necessary modifications, to the trial or hearing of a petition.
(2) Unless the court otherwise directs, Order 38 of the Rules of Court in relation to a cause or matter begun by originating summons shall apply, with the necessary modifications, to the hearing of an application under rule 4 and an application for ancillary relief in a petition. (emphasis added)
The relevant rule in Order 38 of the Rules of Court is rule 2(2) (Evidence by affidavit), which states:
(1) In any cause or matter begun by originating summons, originating motion or petition, and on any application made by summons or motion, evidence shall be given by affidavit unless in the case of any such cause, matter or application any provision of these Rules otherwise provides or the Court otherwise directs, but the Court may, on the application of any party, order the attendance for cross-examination of the person making any such affidavit, and where, after such an order has been made, the person in question does not attend, his affidavit shall not be used as evidence without the leave of the Court.
Similar Practice and Similar Principles under the Old and New Rules Regimes
7 Although the wording of Rule 28(1) and (2) of the old Rules and Rule 26(1) and (2) of the new Rules appear to be very different, I am of the view that Rule 26 of the new Rules was drafted in order to reflect the prevailing practice and the state of law at the time that the old Rules were in effect, in relation to, inter alia, the manner in which evidence is given (i.e by affidavit), and in relation to the issue of whether parties can be cross-examined on their affidavits. And indeed, as stated in the previous paragraph, the practice in both these matters under the old Rules regime and the new Rules regime, remains the same. I am therefore of the view that the principles applicable in deciding whether to allow an application to cross-examine a party on his affidavits would be the same, whether the applicable rules are the old Rules or the new Rules.
Preliminary Principles Regarding When to Allow Cross-Examination
8 Some assistance in ascertaining the applicable principles governing the issue of whether to allow an application to cross-examine a party on his ancillary matters affidavits may be obtained from an examination of the cases under Order 38 Rule 2(2). These cases involve applications to cross-examine parties on their affidavits in civil cases. There are hardly any family cases dealing with this issue—possibly because it is so rare for an application to cross-examine a party on his ancillary matters affidavit to be made, and to succeed.
9 As a general rule, the party who seeks to cross-examine the deponent must (i.e. has the burden to) satisfy the court that cross-examination is appropriate. (See Singapore Court Practice 2003, Pinsler, at paragraph 38/2/14) In this regard, he must, firstly, demonstrate to the court that his application for cross-examination is for a legitimate purpose. The purpose of cross-examination is to test the veracity of the witness. Cross-examination will not be allowed for other purposes. (See Tang Choon Keng Realty v. Tang Wee Cheng
Ancillary Matters Cases—a Special Category with more Restrictive Principles
10 In most ancillary matters cases, however, (and this is the case in these present proceedings) there would usually be many factual disputes between the parties. It would be an unusual...
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