Second Reading Speech by SMS for Law Assoc Prof Ho Peng Kee on the Supreme Court of Judicature (Amendment) Bill

18 OCT 2010

18 Oct 2010 Posted in Parliamentary speeches and responses

  1. Mr Speaker, Sir, I beg to move, “That the Bill be now read a Second time”.

Background

  1. The last major review of the Supreme Court of Judicature Act (“SCJA”) was in 1993. This Bill seeks to update the Act in light of developments since then. It also rationalises various court procedures and processes, primarily, as they apply to civil cases.
  1. These amendments, together with those in the Subordinate Courts (Amendment) Bill which I will move later, arose out of recommendations made in two Reports helmed by the Judiciary. The first is the Report on The Rationalisation of Legislation relating to Leave to Appeal by the Law Reform Committee of the Singapore Academy of Law, chaired by Justice Judith Prakash. The second, which is the later report and which refers to the first report, is the Report of the Committee to Review and Update the Supreme Court of Judicature Act and the Subordinate Courts Act, chaired by Justice of Appeal Chao Hick Tin. Prior to the writing of the second report, the committee had over a one month period, invited and received suggestions and views from members of the legal fraternity, including the civil practice committee of the lawsoc.
  1. This Bill contains 2 key changes. First, it streamlines appeals to the Court of Appeal arising from interlocutory applications. Second, it expands the types of hearings which a two-judge Court of Appeal can hear. The Bill also contains a number of technical amendments which improve and clarify the litigation process.
  1. Sir, I will now elaborate on these amendments.
  1. Streamlining of interlocutory appeals
  1. The streamlining of appeals to the Court of Appeal arising from interlocutory applications is found in Clause 9 of the Bill.
  1. Between the time when a party files a civil case in court and when the case is heard, lawyers may file what are known as “interlocutory applications” in court. These applications deal with procedural matters that prepare the case for the hearing; for example, requesting the court to order the other party to furnish information or documents that are relevant to the hearing. Currently, for a case heard in the High Court, these interlocutory applications are usually heard by a High Court Registrar. A party can appeal to the High Court against the Registrar’s decision. The High Court Judge would then rehear the application afresh as if it came before him for the first time. Orders made by the High Court, in most instances, can be further appealed to the Court of Appeal. Hence, interlocutory applications may go through three tiers of hearing, effectively becoming a two-tier appeal system. This is more than what the substantive action in the civil suit will enjoy, that is, only one tier of appeal as of right.
  1. Sir, given that interlocutory applications involve procedural points that usually do not affect the substantive rights of the parties and are not likely to involve novel points of law, it is an unproductive use of resources for all such applications to go up to the Court of Appeal, especially when the High Court already serves as one level of appeal against the Registrar who first hears the application.
  1. Clause 9 therefore amends section 34 to streamline and restrict appeals to the Court of Appeal on interlocutory matters. Interlocutory applications will now be categorised based on their importance to the substantive outcome of the case. With this calibrated approach, some interlocutory orders will not be allowed to go to the Court of Appeal, whilst others can only go to the Court of Appeal with the permission of the High Court. The decision of the High Court whether to grant permission is final. The right to appeal all the way to the Court of Appeal will, however, remain for interlocutory applications that could affect the final outcome of the case. The types of orders in the three categories are set out in the Fourth and Fifth Schedules to the Bill.
  1. Clause 4 contains similar restrictions for certain types of interlocutory orders made in connection with a case that is heard in the Subordinate Courts. These interlocutory orders originate from a Subordinate Courts Registrar and enjoy one level of appeal to a District Judge. The decision of the District Judge may be further appealed to the High Court. The amendments to section 21 sets out a narrow list of interlocutory orders, which may have little bearing on the outcome of the case from being appealed to the High Court. These are set out in the Third Schedule to the Bill.

Decision of High Court Judge in leave application is final

  1. As I had said earlier, under this new regime, all applications to appeal to the Court of Appeal on interlocutory matters will need leave of a High Court Judge whose decision is final. This will also apply to the substantive action in a civil suit that is commenced in the Subordinate Courts. These cases generally enjoy one tier of appeal to the High Court as of right. A claimant who wishes to bring the case further to the Court of Appeal will need the permission of the High Court. Under Clause 9(e), the decision of the High Court judge whether to grant permission to appeal to the Court of Appeal is final, and the claimant will not be able to make a further leave application to the Court of Appeal.
  1. Expanding powers of two-judge Court of Appeal for civil matters
  1. Sir, next, let me deal with the amendments that expand the types of applications that can be heard by a two-Judge Court of Appeal.
  1. Applications filed before the Court of Appeal are generally fixed for hearing before the full Court of Appeal, comprising three Judges. Certain applications of an incidental nature (such as appeals from interlocutory orders) may, however, be heard before a two-Judge Court of Appeal.
  1. To make better use of limited judicial resources, Clause 8 amends section 30 to expand the types of applications that can be heard before a two-judge Court of Appeal to include other non-substantive matters which must presently be heard by a three-judge Court of Appeal. These include applications to vary incidental directions made for the conduct of a case and hearing an appeal against orders for the assessment of damages.
  1. Other Amendments to the SCJA
  1. Sir, other amendments in the Bill seek to update the Act in light of current case law and to lend further clarity to the litigation process.
  1. Appeals to High Court for cases originating from District or Magistrates’ Court and Appeals to the Court of Appeal
  1. Currently, a party does not require leave of court to file an appeal to the High Court or the Court of Appeal, as the case may be, if the “amount in dispute or value of the subject-matter” exceeds $50,000 for appeals to the High Court from the Subordinate Courts; or $250,000 for appeals to the Court of Appeal from the High Court. Clauses 4(a) and 9(c) amend section 21 and section 34(2)(a) toclarify that the computation of this monetary threshold does not include interest or costs ordered by the court. The amendment also puts it beyond doubt that the respective monetary thresholds of the High Court and Court of Appeal is computed by reference to the original amount claimed in the lower court and not the judgment sum awarded by the court, or the amount in dispute on appeal. This is consistent with recent Court of Appeal decisions [1].
  1. Supervisory and revisionary jurisdiction of High Court
  1. Next, I will deal with the amendments to the supervisory and revisionary jurisdiction of the High Court.
  1. Litigants whose cases before the Subordinate Courts have already been heard and determined on appeal by the High Court have on occasion tried to re-open their cases by asking the High Court to exercise its supervisory or revisionary jurisdiction. The High Court has ruled that 2, as each High Court has coordinate jurisdiction, one High Court cannot exercise revisionary or supervisory jurisdiction over another High Court. Accordingly, whilst the High Court has revisionary powers over all Subordinate Courts, such powers do not apply to a decision of the Subordinate Courts which had already been upheld on appeal to the High Court.
  1. To reflect this position, Clause 6 amends section 27 to clarify that the High Court, when deciding whether to exercise its supervisory or revisionary jurisdiction in relation to any matter from a Subordinate Court which has already been heard on appeal by the High Court, should consider whether that matter was, or could reasonably have been, raised in that earlier appeal. This approach addresses the High Court’s concerns that litigants may be seeking to use the revisionary or supervisory jurisdiction of the High Court to have a “second bite of the cherry”. At the same time, it ensures that the Court has sufficient flexibility to exercise jurisdiction over a case, which has been disposed off at an earlier appeal, if, for example, the circumstances are such that the specific matter was not or could not reasonably have been raised at the earlier appeal.
  1. “Further Arguments”
  1. Next, Clause 7 adds a new section 28B to make changes to an aspect of the litigation process commonly referred to by lawyers as “Further Arguments”. Currently, a litigant must first apply to the High Court to make “Further Arguments” before he can file an appeal to the Court of Appeal. Failure to do so within the stipulated timeframe could prevent the litigant from subsequently filing an appeal to the Court of Appeal. This amendment removes this technical requirement by making the need to file such “Further Arguments” voluntary.
  1. Vexatious litigants
  1. Next, Clause 11 amends section 74(2) to clarify that the power of the High Court to restrain litigants from instituting vexatious proceedings applies to both civil and criminal proceedings originating at both the High Court and Subordinate Courts. This amendment codifies existing case law. 3
  1. Approval for Registrar and other judicial officers to hold other offices of emolument
  1. And finally, Sir, let me deal with the amendments contained in Clause 12 which repeals and re-enacts section 75 to bring it in line with its mirror provision in the Subordinate Courts Act which will be similarly amended by the Subordinate Courts (Amendment) Bill which I will deal with later. These amendments enable the Chief Justice to give approval to the Registrar, Deputy Registrar and Assistant Registrar, who are currently disqualified from doing so, to hold any other office of emolument. The section also makes clear that they may be appointed to sit on judicial tribunals established outside of the Supreme Court of Judicature Act and the Subordinate Courts Act such as the Military Court of Appeal and the Industrial Arbitration Court.
  1. Mr Speaker, Sir, I beg to move.

[1]Blenwel Agencies v Tan Lee King [2008] and SBS Transit v Koh Swee Ann [2004]

[2]Bright Impex v PP [1998] and Tee Kok Boon v PP [2006]

[3]AG v Tee Kok Boon [2008]

Last updated on 25 Nov 2012