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FEATURE |
Recent Amendments to the Supreme Court of Judicature Act and the Subordinate Courts Act
Important amendments have recently been made to the Supreme Court of Judicature Act (Cap 322)(“SCJA”) and the Subordinate Courts Act (Cap 321)(“SCA”). These amendments, which arise largely out of the work of two Committees,1 are the culmination of a major review of the two Acts since 1993. A substantial part of the reform concerns appeals in civil cases, such as the streamlining of interlocutory appeals (including the removal of the mandatory requirement of further arguments), changes to the leave to appeal provisions, and an expansion in the civil jurisdiction of the two-Judge Court of Appeal. In relation specifically to the SCA, the jurisdiction and powers of the District Court and Magistrate’s Court have been rationalised.
Previously, a party dissatisfied with a decision of the High Court registrar made on an interlocutory application was generally able to appeal to the High Court Judge in Chambers and further to the Court of Appeal (“CA”), as of right.2 There were limited exceptions, such as orders granting unconditional leave to defend, which were non-appealable to the CA, and orders refusing to strike out an action, which were appealable to the CA only with leave of Court.
Interlocutory applications typically concern trite principles of law, and do not dispose of the substantive rights of the parties. It can be argued that the CA should not spend too much of its time and resources hearing appeals from interlocutory decisions at the expense of other substantive appeals. It is also incongruent that an interlocutory issue can go through more levels of appeal than a final decision made after a High Court trial. On the other hand, there remains a need for the development of jurisprudence by the highest Court, on critical areas of civil procedure law that may arise in interlocutory applications.
To address these concerns, the amendments introduce a calibrated approach, under which different types of orders made on interlocutory applications are specifically identified and categorised according to whether the orders are appealable as of right, appealable only with leave of Court, or non-appealable to the CA. The guiding considerations are the importance of the particular order made in the application, and whether it may effectively terminate the proceedings or have severely prejudicial consequences for a party.
Where the order made disposes of with finality, the substantive rights of the parties, an appeal to the CA will remain as of right. This category includes orders for summary judgment, orders refusing to set aside default judgments, and orders striking out the action or defence or dismissing the action. An order staying proceedings on grounds of forum non conveniens or in favour of arbitration will also fall within this category, because even though strictly speaking, the Court proceedings in Singapore are only suspended, the practical effect is that these proceedings come to an end. Where an amendment of pleadings is sought after the relevant period of limitation has already expired, and the amendment is to add a new cause of action,3 the order made on such an application can be appealed against to the CA as of right. The rationale is that the outcome of such amendment applications may have implications on the substantive rights of the parties, as issues of limitation are involved.
The list of orders for which an appeal to the CA is prohibited can be found under the new Fourth Schedule of the SCJA. At the outset, it is worth remembering that even for the applications listed under the Fourth Schedule, parties will generally still be entitled to one level of appeal to the High Court Judge in Chambers, as such applications are typically heard at first instance by registrars.
Orders refusing to strike out an action or pleading, which were previously appealable to the CA with leave of Court, are now non-appealable to the CA. This can be justified on the basis that the effect of such an order is the same as orders granting leave to defend or refusing to set aside default judgments, for which appeals to the CA have always been barred.4 Two types of applications have been singled out for which no appeal can lie to the CA, regardless of the outcome of the application. These are applications for further and better particulars (“FBPs”), and applications for interrogatories. The legal principles in these areas of civil procedure are well established and uncontroversial. In relation to FBPs, what amounts to necessary particulars in each individual case would seem largely a matter of degree, and depends on the Court’s application of straightforward legal principles to the facts of each case. As regards interrogatories, these are in the nature of questions that can still be put to the witnesses during trial, such that a failure to obtain interrogatories may not cause severe prejudice.
Where an amendment application is allowed, the party resisting the application will no longer be able to appeal to the CA. It is possible to view amendment applications as the reverse of a striking out application. In particular, allowing an amendment has similar effect to a refusal to strike out part of the pleadings. If so, there is much to be said for treating the two types of orders the same way and prohibiting an appeal to the CA. Moreover, an amendment of pleadings does not generally lead to significant prejudice to the other party that cannot be compensated by costs.
Another instance where no appeal can lie to the CA is when the Court refuses to make an order for security for costs. The outcome of a security for costs application does not have a direct bearing on the substantive dispute. Yet, appeals in respect of security for costs often cause significant delays to the progress of the case, because proceedings are typically stayed pending the provision of security. Such considerations militate against a right to appeal to the CA in respect of security for costs applications. However, it should be appreciated that where security is ordered and the plaintiff is unable to furnish it, this could potentially bring an end to his claim. The more significant impact justifies a different treatment, and therefore, an order granting security for costs is still appealable to the CA, but only with the leave of the Court.
The new Fifth Schedule to the SCJA covers applications that are appealable to the CA with the leave of Court. In addition to orders granting security for costs, discovery orders, orders refusing to allow an amendment of pleadings, and orders refusing to stay proceedings are specifically identified. In respect of discovery orders, there is a need to retain an avenue of appeal to the CA in appropriate cases, because not only do discovery orders have the potential of materially impacting the conduct of litigation, especially in commercial and contractual disputes: discovery applications also frequently raise important questions of law, such as on the law of privilege or confidentiality, which deserve the CA’s attention. Further, pre-action and non-party discovery are areas of the law in a relatively early stage of development, and would benefit from further exposition by the CA. With regard to the Court’s dismissal of an amendment application, the effect is that material facts and allegations, or causes of action or defences that are sought to be raised would not fall to be considered or adjudicated upon at all. The consequences are serious enough to justify recourse to the CA, provided that leave of the Court is obtained.
In relation to all other interlocutory applications which are not specifically identified under the two Schedules, and which do not fall into the category of applications that are appealable as of right, as described above, there is a general blanket requirement of leave of Court in order to appeal to the CA. This is reflected under para (e) in the Fifth Schedule. This represents a fundamental shift from the previous default rule, under which all orders made in interlocutory applications were appealable as of right to the CA unless otherwise provided for.
For interlocutory appeals from the Subordinate Courts to the High Court, there are now restrictions imposed as well, namely in relation to orders granting leave to defend and orders setting aside default judgments. These orders, which are non-appealable to the High Court, are listed under the new Third Schedule.
The Third, Fourth and Fifth Schedules can be amended by the Minister, in consultation with the Chief Justice, should the need arise in future to fine-tune the different categories of applications.
It used to be that if a party wishes to appeal to the CA against an interlocutory order, it was mandatory for him to write in for further arguments to the judge who heard the application, within seven days of the date of the order.5 This could be a draconian requirement, as the failure to ask for further arguments within the very short time frame would effectively bar any appeal to the CA. Moreover, there was a perception that fulfilling the requirement typically involved a mere rehashing of arguments before the same judge, and often did not serve any useful purpose. Indeed, in Downeredi Works Pte Ltd v Holcim (Singapore) Pte Ltd,6 Woo Bih Li J referred to the fact that the provision had caused many litigants to stumble resulting in time-consuming and costly applications for extension of time, with the difficulties being compounded by the fact that it was not always easy to determine with certainty whether the order made is interlocutory in nature.
In light of such concerns, a new s 28B has been introduced in the SCJA so that the making of further arguments is now voluntary. In other words, it is no longer a pre-requisite in order to be able to appeal to the CA in respect of an interlocutory order. The parties may write in for such arguments if they want to, or the judge can request for the same. Section 28B provides that the parties, or the judge, must request for further arguments before the extraction of the order, or 14 days after the date the order is made, whichever is earlier.
Prior to the amendments, where leave to appeal was required under s 34(2) of the SCJA, if the High Court judge refused to grant leave, the party who intended to appeal could seek the same from the CA. This will no longer be the case. The decision of the High Court judge on whether leave to appeal should be granted will now be final. 7 This applies to all the limbs of s 34(2), including the instances where leave to appeal to the CA is required for orders made on interlocutory applications.
While the requirement of leave to appeal serves as an important filtering mechanism, the applicable principles are uncontroversial and well established. The High Court judge is clearly in a position to determine whether leave should be granted in each case. With a likely increase in the number of leave to appeal applications in light of the amendments relating to interlocutory appeals, the CA’s limited resources should not be stretched disproportionately to deal with such applications, at the expense of the timely resolution of substantive appeals. It is also important to bear in mind that in addition to interlocutory appeals, the other common situation where leave to appeal is required will be in relation to appeals from the Subordinate Courts where the amount in dispute is below $250,000. For such cases, there would already be one tier of appeal to the High Court as of right, and the requirement of leave only applies to the second tier of appeal to the CA.
Another key area of change concerns the description of the monetary thresholds for triggering the requirement of leave to appeal. There used to be some discrepancy in the phrasing found under s 34(2)(a) and s 21(1) of the SCJA, which provided for the monetary thresholds of $250,000 and $50,000, in relation to appeals to the CA and appeals from the Subordinate Courts to the High Court, respectively. Since the purpose behind the two subsections is the same (viz as a screening mechanism for appeals), there is little reason why the monetary thresholds under the two provisions should be described differently. The amendments standardise the wording under both provisions to refer to the amount in dispute or the value of the subject matter at the hearing or trial below. The amendments also clarify that interests and costs are excluded in the computation of the threshold amount.8 A further welcome development is that where a case must be brought in the High Court even though the claim is below $250,000, for instance because there is written law which provides that the High Court has exclusive original jurisdiction over such a claim, the requirement of leave to appeal to the CA will no longer apply.9
The civil jurisdiction of the two-judge CA under s 30(2) of the SCJA has been expanded beyond hearing appeals against interlocutory orders to also include appeals against orders made in assessment of damages or taking of accounts. 10 In such cases, the question of liability would already have been resolved and what remains is quantification, the process of which does not generally involve novel or complex issues of law but rather the application of established legal principles to a given set of facts. It should also be noted that such hearings are almost always conducted at first instance by registrars, such that when the matter reaches the CA, it would already have been through two tiers of appeal. Allowing a two-judge CA to hear such appeals constitutes an effective utilisation of the scarce judicial resources of our highest Court.
In addition, the two-judge CA is now also empowered to hear applications for extension of time to file the Notice of Appeal. 11 Such applications can be said to be incidental in nature, but s 36(1) of the SCJA, which confers jurisdiction on a single judge sitting as the CA to hear applications for incidental directions cannot apply. This is because s 36(1) envisages a situation when there are already “proceedings pending before the Court of Appeal”, and this cannot be so prior to the filing of the Notice of Appeal. As a result, these applications had been heard by a three-judge coram, even though the question is the relatively straightforward one of whether an extension of time should be granted. The amendment addresses this and ensures a more efficient use of the CA’s time and resources.
The most significant aspect of the amendments to the SCA is the rationalisation of the civil jurisdiction of the District Court and the Magistrate’s Court, which will now be comprehensive, covering all types of actions and remedies. This change does away with the somewhat technical and historical restrictions on the jurisdiction of the Subordinate Courts. There is no reason why the jurisdiction of the Subordinate Courts should be limited by the nature of the claim, and in particular the jurisdiction should not be confined to only claims in contract and in tort. Such constraints often created practical difficulties for parties making claims within the District Court or Magistrate’s Court monetary limit, as they were unable to rely in the alternative on other common law or equitable actions and would have to pursue separate proceedings in the High Court.
With the amendments, the civil jurisdiction of the Subordinate Courts would be defined purely based on the respective monetary jurisdictional limits of the District Court and the Magistrate’s Court. This creates a coherent three-tier civil justice system. The only exception is that the Magistrate’s Court cannot hear purely non-monetary claims, as such claims are more likely to be complex.
The wide-ranging amendments are to be welcomed as providing a timely update of two critical pieces of legislation on the jurisdiction and powers of the Courts. The table below summarises the major areas of change highlighted above.
Teo Guan Siew
Secretary to the Committee to Review and Update the SCJA and SCA
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Previous Position |
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All orders made on interlocutory applications appealable as of right to the CA, except for: |
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Non-appealable: (s 34(1)(a) & (b)) Unconditional leave to defend, or setting aside unconditionally a default judgment. Conditional leave to defend, or conditional setting aside of default judgment (unless D is appealing). |
Appealable with leave: (s 34(2))(d) Order refusing to strike out action or pleading. |
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New Position |
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Non-appealable: S 34(1)(a), (b) FBPs; Interrogatories; Where security for costs refused; Where amendment allowed; and Refusing to strike out action. |
Appealable as of right Summary judgment; Refusal to set aside default judgment; Striking out action/defence; Dismissal of action; Stay of proceedings; Amendment after limitation and of nature under O 20 r 5(3), (4) & (5). |
Appealable with leave Discovery; Where security for costs granted; Where amendment refused; and Refusal to stay proceedings. |
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All other interlocutory applications appealable with leave to the CA
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Decision of High Court Judge on Leave to Appeal is Final
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Previous Position |
New Position |
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Two attempts at obtaining leave to appeal to CA: If HC judge refuses leave, can go further to CA to try and obtain leave. |
Only one attempt at obtaining leave to appeal from High Court judge, whose decision is final: For interlocutory appeals that require leave; and Other limbs of s 34(2) – eg, where amount claim < $250,000 (ie, Subordinate Courts case). |
Expansion of two-judge CA’s Jurisdiction
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Previous Position |
New Position |
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Two-judge CA can hear appeals against: (s 30(2)) Interlocutory orders; Any other order except a judgment obtained after a trial of writ action or after a hearing of matter commenced by any other originating process. |
Additional matters that a two-judge CA can hear: Appeals against Assessment of Damages / Taking of Accounts; Applications to extend time for filing Notice of Appeal; and Applications to vary/discharge orders made by single judge CA under s 36(1). |
Further Arguments
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Previous Position |
New Position |
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For appeals against interlocutory orders, further arguments are mandatory under s 34(1)(c): Must be made within seven days from date of order, failing which no appeal can be brought to the CA. |
Further arguments are voluntary: If party wants to make further arguments, must be made before the extraction of the order, or within 14 days of the order, whichever is earlier. Not compulsory before appeal can be filed to CA. |
Rationalisation of Subordinate Courts Jurisdiction
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Previous Position |
New Position |
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District Court and Magistrate’s Court can hear common law actions in contract and tort only: Also, Magistrate’s Court has no power to grant injunctions (interim or final). |
District Court and Magistrate’s Court can hear all types of action at common law and equity, and can grant any remedy (including final injunctions), subject only to their respective monetary jurisdictional limits: Only qualification – Magistrate’s Court has no jurisdiction over solely non-monetary claims. |
Notes
1. The Report of the Committee to “Review and Update the SCJA and SCA” (chaired by Chao Hick Tin JA), and the Report of the Singapore Academy of Law (SAL) Law Reform Committee (chaired by Judith Prakash J) on The Rationalisation of Legislation Relating to Leave to Appeal. [Return]
2. This was provided the party complied with the requirement, under the then s 34(1)(c) of the SCJA, of making further arguments to the High Court Judge. [Return]
3. Under O 20 r 5(5) of the Rules of Court. Similarly, if the amendment sought is of the nature under O 20 r 5(3) or (4) and the relevant limitation period has expired, the order made is appealable as of right to the CA. [Return]
4. Under the then s 34(1)(a) and (b) of the SCJA. [Return]
5. Under the then s 34(1)(c) of the SCJA. [Return]
6. [2009] 1 SLR(R) 1070. [Return]
7. Section 34(2B) of the SCJA. [Return]
8. This reflects the position in case law: see Abdul Rahman bin Sharif v Abdul Salim bin Syed [1999] 4 SLR 716. [Return]
9. Section 34(2A) of the SCJA. [Return]