SUPREME COURT OF JUDICATURE (AMENDMENT) BILL

SUPREME COURT OF JUDICATURE (AMENDMENT) BILL: Order for Second Reading read.

3.38 pm

The Senior Minister of State for Law (Assoc. Prof. Ho Peng Kee): Mr Speaker,

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Sir, I beg to move, "That the Bill be now read a Second time."

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.

Sir, 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 a later Report and which referred to the first Report, is a 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. Sir, 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 Law Society of Singapore.

Sir, this Bill contains two 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.

Let me now elaborate on these amendments.

Streamlining of interlocutory appeals

The streamlining of appeals to the Court of Appeal arising from interlocutory

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applications is found in clause 9 of the Bill. 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 re-hear the application afresh. 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.

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.

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

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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.

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 amendment 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

Sir, 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.

Expanding powers of two-judge Court of Appeal for civil matters

Next, let me deal with the amendments that expand the types of applications that

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can be heard by a two-Judge Court of Appeal. 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.

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.

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.

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; or $250,000 for appeals to the Court of Appeal. Clauses 4(a) and 9(c) amend section 21 and section 34(2)(a) to clarify 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.

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Next, I will deal with the amendments to the supervisory and revisionary jurisdiction of the High Court.

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, 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.

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.

Next, clause 7 adds a new section 28(B) to make changes to an aspect of the litigation process commonly referred to by lawyers as "Further Arguments".

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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 time frame 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.

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.

Finally, I will deal with the amendments contained in cause 12 which repeals and re-enacts section 75 to bring 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 Subordinate Courts Act, such as the Military Court of Appeal and the Industrial Arbitration Court.

Mr Speaker: I propose to take the break now. I suspend the sitting and will take the Chair again at 4.10 pm.

Sitting accordingly suspended

at 3.50 pm until 4.10 pm.

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Sitting resumed at 4.10 pm

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[Mr Speaker in the Chair]:

SUPREME COURT OF JUDICATURE (AMENDMENT) BILL: Debate resumed.

Ms Sylvia Lim (Non-Constituency Member): Mr Speaker, Sir, the effect of this Bill is to restrict the right to bring appeals in civil cases to the High Court and the Court of Appeal. As this would have negative consequences on litigants as well as the legal system as a whole, I do not support the Bill.

First, Sir, let me deal with the issues concerning appeals from the Subordinate Courts to the High Court. Clause 4 of the Bill seeks to re-enact section 21 of the Act, which restricts appeals from the Subordinate Courts to the High Courts. The current position under section 21 is that where a Magistrate or a District Judge has made a decision in a case, where the amount involved is where $50,000 or less, the losing party is not able to appeal at all, unless he gets permission to appeal from the Courts. This applies not only to the interlocutory orders, but also to final judgment, where a first appeal against a Magistrates' Court's judgment in Open Court must go to the High Court. In other words, an aggrieved party is stuck with the final judgment of the Magistrate or District Judge and does not have an automatic right of even one appeal. Though the Courts can give permission to appeal, such leave is not given easily. Case law has established that the person seeking to appeal needs to satisfy a high burden to show that an error of law has been made, or that the question of law is to be decided for the first time or that is of general public importance to have a higher Court ruling. Many applications for leave to appeal to the High Court have been turned down.

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Sir, to have a system where parties cannot even appeal at least once against a final judgment, offends one's sense of justice. Judicial officers are human and fallible, and so are the parties and their counsels. Courts can make wrong decisions due to various factors, such as lack of time, urgency, or simply human failings. Just because the amount at stake is $50,000 or less does not make the case less important. Businesses could fold, individuals made bankrupt for much smaller sums. Sir, this controversy is not new and was hotly debated in 1998 when this amendment was first moved. Despite concerns raised by many MPs and objections from the Workers' Party at that time, it was passed. As clause 4 of this Bill seeks to re-enact section 21, to reconfirm this position, I am unable to support it.

Next, Sir, I will move to appeals to the Courts of Appeal. Clause 9 of the Bill further restrictions appeals to the Court of Appeal on interlocutory matters, meaning matters which the Court can settle before the final trial or hearing. There is a new Fourth Schedule which lists orders which cannot be appealed to the Court of Appeal at all, while the Fifth Schedule lists orders which can be appealed to the Court of Appeal only with leave or permission. It should be explained that interlocutory orders cover a wide range of steps taken at the pre-trial stages. While some steps may be relatively minor, others can have drastic consequences on the final outcome of the case. With this in mind, I shall explain further where the new Forth and Fifth Schedules are of grave concern to lawyers who gave me their views.

First, Sir, cases not appealable to the Court of Appeal at all. The Fourth Schedule sets out matters not appealable to the Court of Appeal at all. While some of these items under the Forth Schedule were in the existing section 34(1), there are several new matters now not to be appealable. Of particular concern are items (f) and (i). Item (f) deals with the

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Judge's order, giving or refusing further and better particulars of pleadings. Item (i) deals with the Judge's order, giving or refusing interrogatories. To simplify, these two items deal with requests to force a party to provide more details of their case, failing which the case may be stalled or even struck off. Past cases have shown that such applications may be taken out tactically as a fishing expedition or even to oppress the other party. Onerous lists of questions may have to be answered. If a wrong decision is made by a High Court Judge to order particulars or interrogatories, is it right to let the matter be?

Next, Sir, cases appealable to the Court of Appeal only with leave. Besides the Fourth Schedule of non-appealable matters, the Fifth Schedule will require most interlocutory appeals to the Court of Appeal to be made only with leave. Sir, first let me touch on the problems of getting leave of Court. The first change relates to getting leave itself.

By clause 9(b), leave to appeal to the Court of Appeal will now be obtainable only from the High Court. It will change the current position where if the High Court turns down an application for leave to appeal to the Court of Appeal, it is still possible to apply to the Court of Appeal for leave to appeal. Now, once the High Court Judge turns down an application for leave to appeal, that decision is final.

Based on the existing practice, this change would mean that a party unhappy with a High Court Judge's decision is channelled back to that same High Court Judge to ask for permission to appeal against his decision. This is tantamount to expecting the Judge to make an order, and yet give leave to appeal his own order. With due respect, the Judge making the order may not be the most neutral person to decide whether his own decision should be appealed against. The Bill severely compounds this problem by removing the Court of Appeal as a further forum to seek leave to appeal. The litigant

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will now be left at the mercy of the Judge who made the order he is unhappy about.

Sir, the removal of the Court of Appeal as a forum to seek leave from is also not consistent with the regime for leave of appeal to the High Court from the Subordinate Courts. There, the prospective appellant can seek leave from either the Subordinate Courts Judge or, failing that, the High Court.

Secondly, Sir, the principles for the grant of leave are very restrictive. One has to show that there is a general question of law to be decided for the first time that the Court of Appeal's decision on the question will be to the public's advantage, or convince the High Court Judge that he himself has made an error. This is a high burden.

If the Government insists on having a leave system, the difficulties can be somewhat mitigated if some alternatives are considered. First, the Judge hearing the application for leave to appeal should not be the one who gave the order in the first place. Secondly, the Judge hearing the application for leave should ideally be a Judge of Appeal that is from the Court of Appeal. Thirdly, there should be law reform on the principles of granting leave to make it less onerous to meet the threshold for getting leave.

Next, Sir, I will talk on the wider net of excluded appeals. The proposed Fifth Schedule lists cases appealable to the Court of Appeal only with leave. Of particular significance is the new item (e), which states that most interlocutory orders will now be appealable only with leave. This is a significant departure from the existing law, where an interlocutory order is generally appealable to the Court of Appeal.

Interlocutory applications are wide-ranging and some have drastic consequences. Take, for example, an order

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for an interlocutory injunction, which is basically an order to one party to do something or refrain from doing something until the trial. This could include a freezing of assets, a prohibition on share transfer or a hand-over of properties. Such orders remain in force till the trial, with possible irreversible consequences on the parties.

Another example is item (c) – an order refusing to allow discovery and inspection of documents. These documents could be pivotal to a proper assessment of evidence before trial. For instance, the appearance of an incriminating letter could result in a quick settlement or discontinuance, leading to a more efficient use of both public and private resources.

Sir, feedback from lawyers I consulted is that the Fourth and Fifth Schedules should be reviewed. The Government should at least put the Bill before a Select Committee so that lawyers and the public can come and give evidence on their experiences and its implications. If the Government is willing to do this, an acceptable Bill may result.

Sir, next, I would like to touch on why the Court of Appeal is still vital for interlocutory appeals. First of all, the Court of Appeal is still the first layer of appeal for some interlocutory applications. There were interlocutory applications which are not heard by the Registrar in the first instance but by a High Court Judge. This can be based on the nature of the application. For example, for Mareva injunctions to freeze assets or for search orders, only a Judge can hear the application in the first instance. At other times, I am told that the court management system may require a particular case being managed by a particular Judge under "a docket system" – meaning that all applications in that case, however minor, will be handled by that Judge. In such instances, the Judge will now become the single judicial authority on the

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interlocutory applications. Such a single-tier system is clearly not sound.

Next, Sir, the Court of Appeal reverses or varies interlocutory orders of the High Court regularly. Sir, the records would show that time and again, the Court of Appeal has reversed, or varied, orders made by High Court Judges on interlocutory appeals. This would mean that in the view of the Court of Appeal, errors had been made by the High Court Judges.

The value of the Court of Appeal's input was endorsed by the Chief Justice in his foreword to the Supreme Court Annual Report 2009. There, the Chief Justice noted that the current practice of the Court of Appeal was that it was, and I quote, "prepared to hear any relevant argument, even novel and innovative ones, that counsel may choose to raise. Indeed, in appropriate cases, the Court of Appeal even proactively raises legal points which counsel may have missed". To shut out the CA's input will thus come at a cost to the quality of justice.

Sir, next, interlocutory decisions do affect the outcome in a majority of cases. Sir, it will be useful to know what percentage of cases filed in Court terminate without going to the final trial or hearing. It is likely that only a small proportion of cases go through the full course of trial.

Parties constantly assess their options along the way, based on costs as well as decisions or comments made by Judges on their interlocutory applications. The correctness of interlocutory decisions is therefore not a minor matter and affects the final outcome.

Next, loss of jurisprudence. One impact of removing the Court of Appeal from most interlocutory appeals is a consequence at the macro level to jeopardise the development of legal principles to guide lawyers and the public.

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Once appeals to the Court of Appeal are taken away or drastically reduced, the High Court Judges will have no need to write their grounds of decision. The Court of Appeal will have fewer opportunities to rule or clarify how legal principles or rules should be read and applied. Fewer Court of Appeal decisions mean fewer binding precedents to guide the lower courts and lawyers.

Sir, the loss of jurisprudence will be a cost to the Singapore legal system and could potentially lead to confusion and frustration in future cases. This cannot be good for uniformity and consistency.

Sir, in summary, I do not support clause 4 of the Bill which re-enacts section 21 to limit appeals from the Subordinate Courts where the amount involved is not more than $50,000. I also do not support the changes by clause 9 to cut off the Court of Appeal from the hierarchy of most interlocutory applications. I believe these provisions of the Bill will weaken the rigour of our justice process and are not good for the quality of justice.

Sir, finally, I would like to ask for clarification concerning clause 12 of the Bill. Under clause 12, the Chief Justice will be empowered to allow the Supreme Court Registrar, Deputy Registrar and Assistant Registrars to "carry on any business directly or indirectly". Would the Senior Minister of State clarify why there is a need for this provision and how the Courts will ensure that there is no conflict of interests when such cases are heard?

Mr Hri Kumar Nair: Mr Speaker, I just listened to the speech of the Non-Constituency Member and I would like to clarify a couple of things she said. First, she makes a point that she disagrees with items (f) and (i) of the Fourth Schedule – these are matters relating to no appeals on further and better particulars and for no appeals from an order giving or refusing interrogatories – and implying

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that this application is just heard once before the Judge and, therefore, by denying leave to appeal or denying appeal, no justice will be done. Is the Member not aware that such applications are typically heard by Registrar first before it goes to a Judge. So, there is one appeal.

The second clarification is this: she says or she implies that where a Mareva order is made by a Judge, the right of appeal is now being circumscribed or taken away. Could she clarify which part of the Bill that particular provision appears because I do not appear to see it?

Ms Sylvia Lim: Sir, thank you. I like to thank the Member for his queries. Sir, first, regarding his point about items (f) and (i): yes, it is true that those items are actually heard by the Registrar in the first instance. But I think he did not listen carefully to my entire speech which talks about the value of the Court of Appeal in interlocutory applications generally and there were a few points made by me. One is in relation to the fact that the Court of Appeal, on the record, will be seen to have regularly reversed or varied High Court orders, meaning that wrong orders have been given. Whether it is originating from the Registrar or a High Court Judge, the Court of Appeal records will show that.

Secondly was the question of jurisprudence and guidance to the lower courts, among other points.

In relation to his question on the Mareva injunction, if he looks at the Fifth Schedule of the Bill, he will realise that there is a catch-all provision in item (e), that from now on or when the Bill is passed and effective, any interlocutory order made by a High Court Judge is only going to be appealable with leave. So, therefore, Mareva injunctions do come under the category of interlocutory orders.

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I think the Senior Minister of State will confirm that.

Assoc. Prof. Ho Peng Kee: First, I want to thank both Mr Hri Kumar and Ms Sylvia Lim for speaking up, and for the clarification that Mr Hri Kumar has made. I will respond to Ms Lim's point about the injunction later.

Before I go into the specific points, I think I should make a general point – a reiteration of what I have said earlier on – which is that despite Ms Lim's criticism of some aspects of these amendments. I think the point to note is that these amendments were initiated by the Courts and put together by two Committees over a period of time, on which also sat very senior members of the Bar who are in practice. So, in fact, there were two Committees and it is the combined effect of these Committees that have resulted in these amendments. And, indeed, like I have said earlier on, the Law Society also put in its input with respect to amendments to the Supreme Court of Judicature Act.

Ms Lim does not agree with clause 4 of the Bill, which essentially retains the current section 21. Basically, she disagrees with the rule which requires a person wishing to appeal a Subordinate Court's decision on a matter below $50,000 to obtain the leave of the Subordinate Court or the High Court before doing so. Sir, it is not the clause 4 itself that she is objecting to because clause 4 really clarifies that interests and costs should be excluded when computing the amount in dispute or value of such matter for the purposes of the monetary limit. Rather, she is objecting to a long-standing and essential feature of our legal system. And, as she has said, actually this point is not new. I think she is reiterating it because that is the position that the Workers' Party has taken. And we have debated this point before, which is that the principle that leave to appeal is

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required coupled with the monetary threshold has always been there in our statute books since as long ago as 1955.

In 1998, this monetary threshold was set or raised to $50,000 because of a need to discourage non-serious appeals to the High Court. So, this is the thing to note. Senior Minister Jayakumar actually took pains to explain then that the requirement for leave to appeal is essentially a screening mechanism to sift out non-serious and unmeritorious appeals. Now, appeals can still be brought to the High Court with leave of Court in cases falling below this current limit of $50,000. Above that, for the Magistrates Court $50,000 to $60,000, the case can be appealed as of right to the High Court. So, we are talking really about smaller claims of $50,000. It is not that there is no appeal process but there is a need to get the leave of Court.

Now, it is worth noting that application for leave of Court is not limited to the Subordinate Courts. If the Subordinate Courts, in the first instance, refuse to grant leave, the litigant is entitled to further seek leave from the High Court. In fact, there are two bites of the cherry to secure this leave.

Now, in fact, one of the Committees that proposed these amendments saw it fit to recommend that the threshold be raised to $60,000 from its current $50,000. But this would mean that it would be congruent with the monetary jurisdiction of the Subordinate Courts, which will mean that all matters originating from the Subordinate Courts would not have been appealable as a matter of right to the High Court. Well, we did not take up this amendment, thus, preserving the limit at $50,000.

Another general point would be on the issue of number of appeals or tiers of appeal. Again, this is an old issue that has been debated quite a few times in this

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House before. I think I just want to make the general point. This point has been made many times in this House before, that is, it is not necessarily true that having more tiers of appeal will lead to better administration of justice or to justice being better served.

What matters most is the quality of the judges handling the cases both at first instance and on appeal. On this, the quality of our judges at both Supreme Court and Subordinate Court levels has improved over the years. Indeed, lawyers who are arguing appeals also play a role by presenting full and developed arguments to help the judges come to a considered decision. We must also bear in mind that having more tiers of appeal will lead to greater uncertainty and anxiety for the parties, and definitely more costs for the parties.

Ms Lim then raises a variety of objections with clause 9 which amends section 34 of the Act. First, she says the amendment restricts appeals to the Court of Appeal. She also argues that the Fourth and Fifth Schedules deserve greater scrutiny, saying that some interlocutary orders have drastic consequences and are worthy of appeal.

Let me address her objections, first by pointing out that the right of appeal for substantive matters heard at first instance by the High Court remains unchanged. There is a right of appeal to the Court of Appeal. What we are really talking about today are appeals relating to interlocutory applications, and these are applications which usually involve routine and uncontroversial points of law. As explained in my speech earlier on, as things currently stand, these interlocutory applications currently enjoy up to two tiers of appeal. So, first if it is the High Court, the registrar hears it; then there is a right of appeal to the High Court and then a further right of appeal to the Court of Appeal. Now, this is one more than the substantive suit which logically should not be the case. This is not just because the

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great majority of interlocutory applications involve procedural points that do not affect the substantive rights of the parties but also because it may sometimes be possible for parties to still re-visit these interlocutory issues when the action reaches actual trial.

Now, as Ms Lim herself points out, there are certain interlocutory applications which may potentially affect the substantive outcome of the trial. But this is precisely why the present amendments categorise interlocutory applications into three groups which are carefully differentiated based on their importance to the substantive outcome of the case. Those that are non-appealable and they are really based on the existing section 34 – slightly expanded but still there is a precedent for that – and those which will be appealable as of right and, like I said, these are the interlocutory applications that will substantially affect the outcome of the case. So that remains, appeals to the Court of Appeal from the High Court as a matter of right, and the middle category, which is the norm, is appealable to the Court of Appeal, but with the leave of the High Court. I think we have to see this matrix in context and we are dealing with interlocutory applications which usually do not involve novel points of law or important points of law.

Let me illustrate with an example, in the case where a party applies to strike out his opponent's claim and fails. If he is dissatisfied with the Registrar's decision, he can appeal to High Court Judge who hears the application afresh as if it came before him for the first time. So, a lot of pain is taken by the High Court Judge to hear this appeal as though it was de novo , or hearing for the first time. But if the High Court Judge refuses to strike out the claim, this decision will no longer be appealable as of right to the Court of Appeal. This is because the effect of such

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a decision is that the claim will proceed to trial as it ordinarily would. The substantive rights of the parties are not affected because the case will go on to trial. On the other hand, if the judge agrees to strike out the claim, then the applicant can file a further appeal to the Court of Appeal as of right. This is because the decision means that the case can no longer proceed to trial and it would clearly put an end to the party's substantive rights.

Now, Sir, I take some pains to cite this example to show that much thought has gone into categorising the types of interlocutory applications that are non-appealable, appealable with leave, and appealable as of right. In any case, the categorisation is not cast in stone but can be amended if the need arises in the future.

Now, it should be pointed out that the default position is that all interlocutory applications are appealable to the Court of Appeal with leave. It is those interlocutory applications which clearly do not affect the conduct of the trial that have been placed in the no-right-to-appeal category which is contained in the Fourth Schedule.

Another example of such an application is interrogatories – I think Ms Lim mentions that – which is really in the nature of questions that should the interrogatories be denied at the interlocutory stage, they can still be put to the witness during examination at trial. So, here again, it does not affect the substantive outcome of the trial. There is no blockage as such as the process is there in our procedures for these questions to be answered at trial. As Mr Hri Kumar has mentioned, it should be noted that in the great majority of these interlocutory applications, parties already enjoy one tier of appeal as of right to High Court Judge. So, in other words – I think one of the benefits that Ms Lim has

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mentioned is that interlocutories can help the parties to come to a settlement before going to trail – the process is still there. That is the point we have to note. The process of interlocutory application at the High Court commencing with the Registrar is still there; and if the parties are not happy with the decision of the Registrar, they still have an appeal as of right to the High Court. They would then be able to convince the High Court why they should succeed.

I think Ms Lim also makes a point about the role of the Court of Appeal in having a say. Again, I must go back to the basic matrix. It is not as though there are no interlocutory applications that are going to the Court of Appeal. In fact, there are some that will go there as a matter of course, as of right. These include, for example, an order made to stay proceedings; where amendment of pleadings is sought to add course of action after limitation period and of nature in Order 20, Rule 5, Sub-Rule 3, Sub-Rule 4 and Sub-Rule 5; orders striking of action, claim or defence, it is appealable as of right; orders granting summary judgment; orders refusing to set aside default judgment; and orders dismissing an action. So, in other words, you have a wide range of interlocutory applications where the Court of Appeal can still play a role. Moreover in the middle category, interlocutories can still go to the Court of Appeal provided leave is granted.

It is a relatively narrow band of interlocutories that are non-appealable – based on existing section 34(1) – I think Ms Lim also mentions that. It is not an entirely new approach because under the current section 34(1) and (2), there are already some interlocutories that do not go to the Court of Appeal and others that can only go with leave.

She is correct in that a small number of applications – she mentions injunctions – which are determined in the first

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instance by a High Court Judge, not the Registrar. However, in such a situation, a differentiated approach should still apply since the basis for deciding whether the application is appealable or not and need for leave to do so depends on the nature of the application, not the forum before which it was first heard. Hence, even the nature of the injunction sought is differentiated. If the application for injunction is for final relief sought and part of an Order 14, which has serious consequences, it is appealable as of right to the Court of Appeal. Indeed under the existing section 34, no distinction is made between an interlocutory application that is first heard by a Registrar and one that is first heard by the High Court Judge. We will not adopt a differentiated approach with regard to this but look at the nature of the application itself. In fact, the Committee considered this point carefully and decided to retain this approach.

Sir, in summary on this point, I would say that this tiered approach which is carefully put together – considering where each interlocutory application should go to in terms of the box – strikes the desired balance between maximising the use of the Court of Appeal's limited resources so that it can focus on substantive cases that help shape legal jurisprudence and, at the same time, allowing it to continue to shape our jurisprudence in the area of interlocutory applications. This is because it will still hear some applications as a matter of course, as of right, and others with a leave of the High Court. So that is one balancing point. It also ensures that critical issues raised at an interlocutory stage will continue to receive the attention of a highest Appellate Court. It is for this reason that many other jurisdictions – the United Kingdom, Australia and Canada – have similar restrictions on appeals from interlocutory orders.

The next concern that Ms Lim raises is the fact that now the High Court Judge

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becomes the final gatekeeper for all leave applications. First of all, I think it is important to put this amendment in its proper perspective and to bear in mind that the requirement to apply for leave to appeal usually applies only to the second tier of appeals, that is, the Court of Appeal. As I mentioned earlier, the majority of interlocutory applications are fixed before an Assistant Registrar and, as Mr Hri Kumar has reminded us, would enjoy one tier of appeal to the High Court Judge. Similarly, in a substantive case, cases which are commenced in the High Court can be appealed to the Court of Appeal as of right. Those that require leave to appeal to the Court of Appeal are those which commenced in the Subordinate Courts and, for these cases, they would already have enjoyed a one-tier of appeal to the High Court either as of right, if the amount is more than $50,000; or with leave of, first, the court hearing a case, say, of $40,000, whether it is Magistrates' or District Court; and if leave is turned down, a second bite of the cherry – asking the High Court for leave. I would suggest that – even though Ms Lim does speak strongly about it – the impact of the amendment may not be such a big one.

Now, on the threshold for granting leave to appeal: I think Ms Lim also made that point. The legal principles which govern an application for leave are tried and established. Similar principles exist in other Commonwealth jurisdictions such as the UK. It is not true that they are too restrictive. On the contrary, these leave principles developed by the Courts act as suitable filtering mechanism for interlocutory appeals. For example, should a discovery application concerns novel points of law that warrants being determined by the Court of Appeal, a party who applies these principles can expect that his application for leave will succeed. I do not think there is a need for

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law reform in this area as Ms Lim suggests but leave it like in other jurisdictions for case law to continue to evolve.

Next, Ms Lim argues that requiring a litigant to apply for leave to appeal to the Court of Appeal from the same High Court Judge who made the Order from which the party's wish to appeal is bad, especially when the High Court Judge's decision will now be final.

Sir, first of all, I should say that the amendments do not introduce a new practice because this practice already exists – getting leave from the High Court Judge who hears the case. Indeed, I understand, this is also the practice in other countries, such as the UK. I think the key point really is that we must expect our High Court Judges who are men and women of experience and integrity to grant leave when it is justified. And, in fact, the High Court Judge who gave the original order and who is the one most familiar with the case is best placed to make this call as to whether the facts of legal issues raised merit further consideration by the Court of Appeal. Her suggestion as to whether a Judge of Appeal, as a single judge, should hear the case just to see whether leave should be granted – as I have said, we have four Judges of Appeal in the Court of Appeal, which is really shaping our jurisprudence in substantive areas. I am not sure we want a single Judge of Appeal to sit there and examine the entire proceedings and all the issues of law just to see whether leave should be granted. I think the issue also arises with respect to another High Court Judge because that other High Court Judge will still have to go through the entire proceedings and see whether leave should be granted. Essentially, the point to note is we must trust our High Court Judges that they are not personal about it; that he makes a professional decision based on established principles

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whether or not leave should be granted for an appeal to be made against his own decision.

We must remember that contentious applications for leave and strenuous multiple appeals can be costly as some of the lawyers amongst us will know and mitigate against acccess to justice for those who cannot afford high litigation costs.

So, unless the matter at hand is substantive, we should not weigh litigation in favour of those who have more resources to drag issues out. In any case, let me assure Ms Lim that statistics bear out the fact that our High Court Judges do give leave to appeal against their own decisions, if warranted.

Finally, Sir, Ms Lim queries why an Assistant Registrar may now seek the approval of the Chief Justice to hold an office of emolument or to run a business. Let me assure Ms Lim that, first of all, as a matter of policy, there is absolutely no intention for judicial officers who hold full-time appointments, as Magistrates or District Judges or as a Registrar, Deputy Registrar or Assistant Registrar in the High Court, to hold any other concurrent jobs or to carry on business. As I explained in my speech, section 75 of the Supreme Court of Judicature Act and section 64 of the Subordinate Courts Act are really mirror provisions. An amendment to the SCJA is for the purpose of maintaining a consistent approach across both Acts in relation to judicial officers. Both section 64 of the Subordinate Courts Act and its mirror provision in section 75 of the SCJA have always been intended to apply to full-time officers. The amendments to section 64 aim to clarify the ad hoc judges scheme in place in the Subordinate Courts. Under the scheme, academics or legal practitioners who are appointed as ad hoc judges to hear a specific case or for a term of a few months to hear assigned ad hoc cases are not required to give up their present jobs. That is why we have made

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these amendments to put it beyond any doubt that they can continue to hold an office of emolument in their legal practice, for example, or to do business.

Assoc. Prof. Ho Peng Kee: 4.47 pm

Tapping talent outside the Courts judiciously, this scheme has added value to the administration of justice in Singapore. Indeed, other countries and the UK have similar schemes. Now, whilst the Supreme Court presently does not have a similar ad hoc judges scheme in place – it is the Assistant Registrars who are full-time Legal Service Officers who hear interlocutory applications in the Supreme Court – the amendment to section 75 gives flexibility to the Supreme Court to appoint ad hoc Assistant Registrars to hear such interlocutory applications, as have been done in the Subordinate Courts where ad hoc Deputy Registrars have been appointed to hear assigned ad hoc cases, should the Chief Justice consider such a scheme desirable in the future.

Mr Deputy Speaker, Sir, I think I have answered all the points.

Ms Sylvia Lim: Thank you, Sir. A few clarifications for the Senior Minister of State. First, in his reply speech, Senior Minister of State mentioned that there were only a few categories of applications where the High Court Judge sits at the first instance hearing. But would he also confirm that besides those kinds of applications, there are also those other cases where the case is being managed by a particular Judge and, therefore, any kind of application, including the applications that Mr Hri Kumar mentioned earlier, interlocutories or further and better particulars, would still go before that particular Judge because it has been decided so by the case management system? So, we are actually talking about

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quite a number of interlocutory applications heard by a Judge at the first instance and not Registrar.

The second point is, he mentioned that the statistics would show that High Court Judges have given leave to appeal against their own decisions. Would he also confirm that the statistics show refusal of leave as well by the High Court Judges to appeal against their own decisions?

The third point is, while Senior Minister of State appears to suggest that the interlocutory applications caught by the amendments are relatively minor, does he not agree that applications such as Mareva injunctions and search orders, are actually very, very consequential and, in fact, have been described by Judges in case law as nuclear weapons which can be used in litigation early? So, why is it that the Bill does not provide appeals as of right for these sorts of applications which are heard by a Judge anyway in the first instance?

The next clarification is: he mentioned that we do not really want to have too many appeals to the Court of Appeal because there are only four Judges of Appeal there and so on. But from my understanding of the procedures, there are already some, in the sense, disincentives to appeal by way of requiring security for costs of appeal. I think in order to appeal, you have to put down $15,000 to mount an interlocutory appeal. And the statistics show that the number of appeals before the Court of Appeal in 2009 was about maybe 200. Would the Senior Minister of State please comment on these points?

Assoc. Prof. Ho Peng Kee: First of all, Ms Lim is right in that the possibility is there that if an application is made very close to the trial, it is a Judge who hears

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the interlocutory application in the first instance. So that it is a possibility but, like I have said, not all cases happen this way. In fact, most of the interlocutory applications would be heard at an earlier stage and by the High Court Registrar.

The second point is: yes, there are instances where the High Court Judges have granted leave of appeal; there are also instances where they have turned down such applications. But the point to note is that in making the decision, it is made according to established principles and these principles are all there to be applied. So, we have to trust our High Court Judges to properly apply these principles.

Well, of course, we can argue till the cows come home which category an application should fall into but, like I have said, these proposals have been put together by a Committee headed by, for the first Report, a Judge of Appeal, Justice Chao Hick Tin, and the second Report – it was a smaller Committee that reported to the Singapore Academy of Law's Law Reform Committee headed by Justice Judith Prakash, and in each Committee there were senior practitioners. I would expect them to have very carefully looked at which interlocutories should go into which box and, in any case, like I have said, it is not cast in stone so that in the future, should Ms Lim be right, and some of these interlocutories should not be where they are, amendments can be made. I think we should let this scheme have an opportunity to run its course before we criticise it because it has been very carefully put together by people who are out there in practice.

Question put, and agreed to.

Bill accordingly read a Second time.

Ms Sylvia Lim: Sir, I would like my dissenting vote recorded.

[ Hon. Member Mr Low Thia Khiang stood up to indicate his dissent. ]

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Mr Deputy Speaker: So be it.

Bill committed to a Committee of the whole House.

The House immediately resolved itself into a Committee on the Bill. – [Assoc. Prof. Ho Peng Kee].

Bill considered in Committee; reported without amendment; read a Third time and passed.

Ms Sylvia Lim: Sir, I would like my dissenting vote recorded.

[ Hon. Member Mr Low Thia Khiang raised his hand to indicate dissent. ]

Mr Deputy Speaker: So be it.