Professional Documents
Culture Documents
- Appeal
- Levels of appeal
o First level of appeal – registrar of HC to judge in chambers
o Judge in chambers to CA
o Open court judgment of HC judge appealed to CA judge in CA
- Today stick to HC – not in sub court level
- Know SCJA – s34 being main section
- When appealing:
o Ask for stay
o Also ask for resetting on appeal
Summary
- distinction fr registrar to HC and appeal fr HC judge to CA when adducing fresh evid
o registrar’s assesmnet of damages sth like final judgmeent – 2/3 ladd principles apply
o apart fr tt, general prnicpile – easier to adduce fresh evid to HC than CA because for altter, )57 –
special circumstances must exist
- s34 – consent judgement/ unconditional leave to defend etc – cannot appeal
o qn of costs – need leave
o if mixed qn – not appeal on cost alone – hybrid
- ladd v marshal 3 principles
- adduction of fresh evid similar and overlaps on fresh pt – but Pang ah yew sets out principles to be
determined. Certain qualifications for evid and raising new pts – note differences
Interlocutory appeal
Sitting in chambers – not in open court/ no robe
- Order 56, rule 2 - deals with applying for further arguments on interlocutory orders. For appeals on
interlocutory matters, the party wishing to appeal must write in for further arguments.
SCJA
Matters that are non-appealable or appealable only with leave
34. —(1) No appeal shall be brought to the Court of Appeal in any of the following cases:
(c) subject to any other provision in this section, where a Judge makes an interlocutory order in chambers
unless the Judge has certified, on application within 7 days after the making of the order by any party for
further argument in court, that he requires no further argument;
• Within 7 days from the decision of the Judge, the applicant must make the application for further arguments
• The Registrar will inform the party making the application within 14 days of the receipt of the application
on whether the judge requires further arguments.
• If the Registrar does not informs the party within 14 days, the Judge shall be deemed to have certified that
he requires no further evidence.
Procedure for Making Application for Further Argument (not for exams!)
This procedure is provided under the Practice Direction issued by the Registrar:
(i) The party making the request for further arguments must be identified.
(ii) The name and identity of the Judge who made the decision
(iii) The date that the order was made
(iv) The provision of law under which the request for further arguments is being made
(v) The proposed arguments to be canvassed
(vi) A copy of the authorities to be relied upon.
56 r 1 (4) – appeals which do not operate as a stay of execution no matter how strong your case maybe or
you think you’ll succeed on appeal. Opponent if lost, will con you into agreeing a stay. You cannot because
1) no client’s instructions and 2) not granted as a matter of right. Filing an appeal does not operate as a stay.
o remember this principle.
o If want stay u need to apply for it indep in addition to ur appeal
o (short qn!!!)
Examined on what happens if you don’t comply with the time lines.
o Rule 1.3 - must be issued within 14 days after judgment or order appealed against – served
on all parties within 7 days
1. Lim Kok Koon v Tan Jin Hwee Eunice and Lim Choo Eng (a firm) [2004] 2 SLR 322
On 26 August 2003, the judge in chambers made an order striking out the action of the appellant, Lim Kok
Koon (“LKK”), against the respondents Tan Jin Hwee Eunice & Lim Choo Eng (“the firm”), and awarded
costs to the firm. The firm subsequently requested that the judge hear further arguments on costs. The judge
agreed and fixed the hearing for 16 September 2003. On 16 September 2003, both parties presented
arguments solely on costs. The judge subsequently varied her decision of 26 August 2003 on costs.
LKK appealed against the whole of her decision on 3 October 2003. The firm applied to strike out the
Notice of Appeal for being filed out of time. LKK contended that when the judge agreed to hear further
arguments, this suspended the entire decision until further arguments were heard and time only started
running from 16 September 2003. LKK further argued that it was administratively more convenient for the
whole judgment to have been suspended pending further arguments since he would otherwise have had to
file two Notices of Appeal.
Held, making no order on the motion and granting an extension of time for filing the Notice of Appeal:
o (1) Once the Registrar notified the parties that the judge would hear further arguments, all
decisions made to which that request related would be put on hold. The orders of court to
which a request for further arguments related depended on the facts of the case and the nature of
the orders.
o (2) By agreeing to hear further arguments as requested by the firm, the judge’s order on
costs was suspended. However, this did not mean that the judge’s decision on the merits was also
suspended.
o (3) Convenience could not be a sufficient reason to affect the rights of a successful party.
Further, if LKK had needed more time to consider appealing, it was open to him to ask the judge
for an extension of time for filing the Notice of Appeal at the hearing on 16 September 2003.
- Summary – whether or not time runs if only appealing aginast part of decision and if only appealing
agist certain parts of decision, then other aprts not appealed against, successful party can just cont to
execute or enforce judgement/ proceed to persecute
- When party wrote in for further argument, only decisions relating to that part of the request will be put on
hold.
- Notice of appeal against whole decision must be filed within 1 month from the date of judgment (this case
dealt with appeal before HC). Even if party written in for further arguments, time continues to run, do not
stop. Unless writing in for further arguments pertain to all arguments in the judgment.
- summary: notice of appeal filed out of time; notice has to be filed within 14 days of decision appealed
against; if open court judgement, the time is 1 mth, but same principles apply. Here dealing with fr registrar
to HC it is 14 days.
- In this case, CA held it is settled law that 4 factors will be considered when determining if extension of
time should be granted to a party to file notice of appeal out of time –
o 1) length of delay
o 2) reason for delay
o 3) chances of appeal succeeding if time for appealing were to be extended
tricky and diff to ascertain
appeal will be forum where u arg the merits of appeal but ot get extension of time
must fist persude court tt not doomed appeal. Tricky because approp forum is at
appeal stage not at this stage
but still need to persuade court that appeal has some merits and not domed to fail
case
might be tricky since one perception may differ fr another
o 4) degree of prejudice to the would-be respondent if the application for extension of time were
granted.
Note fr prev lecture – same theme running through case law (tokai maru and
costello etc) – if prej extreme and cannot be compensated by costs; then extension of
time not allowed
3. Projector SA v Marubeni International Petroleum (S) Pte Ltd (No 2) (2005) 2 SLR 1
- Projector SA (“Projector”) had applied for the discharge of an injunction granted to Marubeni International
Petroleum (S) Pte Ltd (“Marubeni”) against Projector. Dissatisfied with the outcome of its application,
Projector appealed against certain parts of the judge’s orders. Subsequently, Projector applied to amend its
notice of appeal to include an appeal against a part of the orders imposed which was not included in its
original notice of appeal (“the condition”).
- This application was heard by a judge pursuant to s 36(1) of the Supreme Court of Judicature Act (Cap 32,
1999 Rev Ed) (“the Act”). As Projector displayed lack of candour in explaining why an appeal against the
condition had initially been left out in its notice of appeal, the application was dismissed with costs.
Projector then applied to set aside or discharge the order pursuant to s 36(3) of the Act.
- Held, allowing the application:
- (1) If the circumstances were such that the opposing party would not sustain grave prejudice or
hardship that could not be compensated by costs, then the court should generally be inclined to grant
the amendment of the notice of appeal unless the other circumstances of the case were exceptional. In
assessing whether grave prejudice or hardship would be inflicted, the court would consider factors like
whether notice of the amendment had been given to the opposing party, the time available for the
opposing party to deal with the amendment, and whether the argument introduced by the amendment
was brought up in the hearing below or was a new one. Since the rule admitted the possibility of
exceptional circumstances affecting the outcome of the application, the rule was not a rigid, mechanistic
one. The question of whether prejudice could be addressed by an order as to costs was the most
important factor in determining the issue.
- (2) Permitting Projector to amend its notice of appeal would not result in grave prejudice to Marubeni.
There was a month between the hearing of the present Notice of Motion and the hearing of the appeal
relating to the discharge of the injunction. If the amendment were to be allowed, Marubeni would have
reasonable notice of the amendment and would be afforded sufficient opportunity to address the
substance of the amendment. Furthermore, the amendment did not bring up a new point. By the
amendment, Projector sought to renew arguments that it had made all along.
- (3) Marubeni’s argument that, in reliance on the condition, it had taken steps to participate in related
proceedings in South Korea and would therefore be prejudiced if the amendment were allowed, was an issue
that could be adequately addressed by an order as to costs.
- (4) Projector’s lack of candour as to the reason for the initial failure to appeal against the condition
did not amount to an abuse of process and was not such an exceptional factor as should lead to the
application to amend being rejected. However, it was good practice for parties who sought the indulgence
of the court to assist them in remedying their defaults to make full disclosure of the circumstances that led to
the default. Otherwise, unnecessary and undesirable consequences could ensue.
- Summary – CA applied Costello and held that a court would generally be inclined to grant the amendment
of notice of appeal; court generally inclined to grant application to amend unless circumstances were such tt
opposing party wld sustain grave prejudice or hardship tt cannot be compensated by costs
- Amendment of notice of appeal, add new grounds or take out grounds CA held: generally application to
amend notice of appeal would be allowed unless opposing party sustains grave prejudice or hardship
that cannot be compensated by cost. This case approved Costello v Somerset County council (1993) 1
AC 952.
- If there is mere inconvenience, as opposed to grave prejudice or extreme hardship, then the amendment
of notice of appeal will be allowed
- Lack of candour – another phrase tt CA likes to throw at counsel
o There was lak of candour int his case in explaning why ntice of appeal had to be amended and
why lack of time
o 50 50 decision
o CA felt in this case – confined to facts – tt lack of candour was not fatal
o But of counsel was surreptious in behaviour, not forthcoming, possibility on verge of lack of
probity – court said that it has to be SO PREJUDICIAL as to disallow amendment.
- judge will rehear application as if hearing for first time (hearing de novo). Not fettered in his discretion to
accord whatever weight he deems fit in relation to the registrar’s decision appealed against. if he thinks the
registrar correct, can adopt wholesale. If not, can say Registrar’s decision was wrong.
- The High Court Judge in Chambers (appellate judge) is unfettered in his appellate discretion to accord
whatever weight, if any, he deems fit in relation to the Registrar’s decision that was subject to appeal.
Authority: Evans v. Bartlam [1937] AC 473
Krakauer v. Katz [1954] 1 WLR 278; William Heinemann v. Christie [1960] MLJ 99.
- States the general rule: No additional evidence should normally be adduced before an appellate judge but if
u wish to adduce such further and fresh evidence, you can do so with leave of court. Leave to adduce fresh
evid is generally granted.
- Further Evidence may also be adduced at the hearing before the High Court Judge in Chambers.
- BUT whether leave is granted will depend on the following factors:
o Does the fresh additional evid introd new issues?
o Does the appellate court take the view tt these matters shld or ought to have been raised at the
hearing below esp if ample oppty had been granted to the appellant in the first palce at the
hearing below.
- In other words:
o Must be able to explain by way of affidabit why evid not tendered
o What diff wld it make if evid were introduced
o Why was this not raised if ample oppty afforded earlier? lack of diligence on counsel or
parties’ part?
o Ie – must persuade the court
o Note tt this is NOT fr CA – only for fr registrar to court in chambers.
- although appellate hearing is de novo, there’s rules of procedure that says you had your chance to raise
evidence earlier, then appellate court can reject any attempts to raise new evidence.
- Appellate court not bound, can if it feels for that new evidence be allowed.
- Diff if new evidence occurs after date of decision for which appeal is brought.
- The general rule - An appellate court does not look at further evidence if such evidence was not adduced at
first instance before the Registrar.
- However, if the court is of the view that such further evidence was not available to the parties at the trial of
first instance, and that there are good reasons why such evidence was not raised at that stage, the judge may
allow the evidence.
1) When the additional evidence sought to be introduced does not raise any new issues
- presumption is why are u adducing fresh evidence
- court will see if fresh evidence has any impact
- if no impact, chances that it will not be allowed
2) if evidence which ought to have been raised at 1st instance could have been raised but not raised
- there is no reasonable explanation given as to why this was not done
- leave to adduce such evidence will generally be denied
- Therefore, further evidence sought to be adduced during an appeal to a High Court Judge in Chambers
would usually be allowed only when there were good reasons to explain why such evidence were not
adduced at first instance. It is not very difficult to adduce additional evidence in an appeal before a High
Court Judge in Chamber.
“Special grounds”
- as in Ladd v Marshall
- o57r13(2) specifically provides that further evidence not to be admitted exception on special grounds
- CA held that appeal to judge in chamber is by rehearing and judge is free to admit fresh evidence and he
usually does so in absence of special reasons which prevent him from allowing such evidence in. CA does
not have unfettered discretion to receive further evidence on hearing an appeal. Will only allow such
evidence on “special grounds” – test laid down by Lord Denning in Ladd v Marshall – operative test for all
new evidence to be sought for CA. CA refer to O 57 r 13 (2) specifically provide that further evidence is not
be admitted except on special grounds. Statutory confirmation of Ladd v Marshall.
- The Court of Appeal in Liam Soon also found authority in S Jayakumar v. Joshua Benjamin
Jeyaretnam [1997] 2 SLR 172 –
• In this case, Selvam J held that an appeal to the High Court Judge in Chamber in different
from an appeal to the Court of Appeal. An appeal to the High Court Judge in Chamber is by
way of re-hearing; the judge is unfettered in his discretion by the ruling of the court below
- Order 57 - This rule only applies to fresh evid going to CA – no similar evid governing fresh evid
before HC judge in chambers hearing appeal fr below.
• For the latter, no equiv provision in the ROC
- But see:
Jurong Town Corporation v Wishing Star Limited [2004] 2 SLR 427
- The appellant (“JTC”) awarded the respondent (“WSL”), a construction company incorporated in Hong
Kong, a $54m contract in respect of a major construction project. JTC subsequently terminated the contract
alleging that WSL had made material misrepresentations in its tender submission. WSL commenced legal
proceedings against JTC for the wrongful termination of the contract. JTC claimed that it had lawfully
rescinded the contract and counterclaimed for damages suffered. After the trial dates had been set down,
JTC applied for security for costs. The assistant registrar dismissed JTC’s application and the High Court
judge affirmed her decision on appeal. The judge considered the following facts: there was no reason to
suppose that WSL, a reputable Hong Kong company, would not pay its costs if ordered to do so; there was
reciprocal enforcement of judgements between Singapore and Hong Kong; the application for security for
costs was made too late and the quantum demanded too large. JTC appealed and also sought to admit
transcripts of the cross-examination of WSL’s managing director.
- Held, dismissing the appeal and denying the motion:
o (1) Once the pre-condition under O 23 r 1(1)(a) of the Rules of Court (Cap 322, R 5) –
“ordinarily resident out of Singapore” – was satisfied, the court would consider all the
circumstances to determine whether it was just that security should be ordered. There was no
presumption in favour of, or against, a grant of security. The ultimate decision was within the
discretion of the court, after balancing the competing factors.
o (2) Two critical factors weighed heavily in favour of WSL. First, JTC only made its application
after various steps in the proceedings had already been taken, and substantial work had been done
by the solicitors. Second, JTC’s Counterclaim was based entirely on its defence to WSL’s claim.
Granting security could amount to indirectly aiding JTC in pursuing its Counterclaim.
o (3) Although WSL did not have meaningful assets in Singapore and Hong Kong, and there would
be difficulties in enforcing a judgment in China where most of WSL’s assets were, these
considerations had to be balanced against the above two factors. It would not be just in the
circumstances to order security.
o (4) The judge’s observation, that there were no grounds to believe that WSL would not pay the
costs should it lose the case, was a neutral point which was not a relevant factor in the balancing
exercise. If it could be shown by objective facts that WSL would not be likely to pay the costs, that
would be relevant, but there was nothing here to indicate whether WSL would or would not pay.
o (5) The strict principles in Ladd v Marshall did not apply in this interlocutory appeal.
However the court still had the discretion to disallow the admission of fresh evidence. In this
situation, examination of WSL’s managing director was not completed and it was premature for the
court to reach any conclusion on such partial evidence. In any event, the evidence would hardly be
of any significance.
- In the above case, SG CA expressly held that Ladd v Marshall principles governing the right to adduce fresh
evidence before the CA will not apply in an interlocatory appeal.
• Note no such distinxction drawn before
• BUT now says tt if interloc appeal, too burdensome to apply ladd v marshall because that case
states three funda principles to be amted before fresh evid is to be brought in.
• Held tt even in interloc appeals, fresh evid not just allowed nilly willy without test or controls.
Court will still guard against parties trying to retrieve lost grd.
• In other words such fresh evid by the backdoor will not be snuck in.
- HC judge hearing appeal from registrar, Ladd v Marshall will not apply for interlocutory appeal. Only
for fresh evid going to CA.
- Note interloc appeals does not amt to final judgement or assesmsetn of damages by registrar.
- CA held it always retain discretion in the matter and should resist attempts by a party to retrieve lost ground
by relying on evidence he should have put before the court below. (Yes, tlthough ridig principle of Ladd v
Marshall do not govern HC judge hearing from registrar, HC judge still retain judicial discretion – you can
bring any evidence in chambers but you don’t? HC judge will not freely allow fresh evidence since he ought
to do it in chambers.)
Ang Leng Hock v Leo Ee Ah [2004] 2 SLR 361 - Appeal from Registrar assessment of damages
The PF was injured in a collision between his motorcycle and a taxi driven by the DF. The action was started in
May 2000. Interlocutory judgment was entered for the PF for damages to be assessed with costs and interest
reserved to the registrar. Both parties, dissatisfied with the awards made by the assistant registrar, appealed. From
1994 until the accident, the PF was an independent contractor for Grand Court Vegetarian Restaurant (“Grand
Court”) providing services for outdoor catering functions. The PF asserted that he was unable to continue
providing such services after the accident. The only evidence in support of the amount he had earned from Grand
Court was a letter from Grand Court to the PF’s solicitors dated 22 June 1999 (“the letter”). The PF was also the
sole proprietor of a business called “68 Kopitiam”. He asserted that his intention had been to continue the
contract work for Grand Court and run his coffee shop at the same time. The PF also had a part-time job as a
deliveryman for which he was paid per assignment. He was not able to work whilst on medical leave. The
assistant registrar accepted the letter as an accurate record of what the PF had been paid by Grand Court. She also
found that the PF could have worked in the coffee shop to mitigate his loss of income. She assessed the amount
that he would have earned based on official statistics of what such a worker would have earned on average rather
than on evidence of the PF’s own earnings. The assistant registrar rejected his claim for loss of income from his
despatch job. She considered that he had not proved that he had suffered any loss of earnings from that job as a
result of the accident. For loss of future earnings, the assistant registrar used the same multiplic and for loss of
pre-trial earnings. She found that there would not be a change of the factors affecting the quantum of loss. She
did not award any damages for loss of earning capacity. There was medical evidence to support the PF’s claim of
arthritis and need for medical treatment for the rest of his life. A multiplier of 20 was used bearing in mind the
PF’s age and estimated life expectancy. Prior to the appeal, the DF sought leave to adduce further evidence at the
appeals. The main issue was what was the appropriate test to be applied when a party to an assessment of
damages that had taken place before the registrar wished to adduce further evidence at the hearing before
a judge in chambers.
Held, allowing the appeals in part:
(1) There was no reason not to apply the Ladd v Marshall test to the adduction of fresh evidence on
an appeal to the judge in chambers from an assessment of damages hearing before the registrar. The
assessment hearing had all the characteristics of a trial. Procedurally, there was no distinction between
that hearing and the hearing of a trial before a judge. It was for administrative convenience that
assessment hearings were heard by registrars instead of by judges. The selection of forum should not
confer an additional advantage on the party who seeks to adduce further evidence.
(2) The application did not pass the Ladd v Marshall test since the evidence sought to be adduced was
available before the assessment and could have been obtained then had due diligence been exercised.
Further, the second limb of the Ladd v Marshall test, ie that the new evidence was such that, if given, would
probably have an important influence on the result of the case, was not met either. Even if the court was wrong
and it did have the unfettered discretion to admit new evidence, the court declined to exercise this discretion in
favour of the DF.
(3) The PF’s appeal in respect of his earnings from his job as a deliveryman was allowed. The PF did
suffer loss of earnings in respect of this job whilst he was on medical leave after the accident. Also, it would be
fair to give him a further month’s compensation as some hesitation in returning to riding the motorcycle
immediately after the medical leave ended was understandable and acceptable.
(4) The evidence adduced by the PF to discharge the burden of proving the amount of loss suffered from
the outdoor catering business was not satisfactory. The letter from Grand Court could not be accepted at face
value as documentary proof of the amounts allegedly paid to the PF by Grand Court. The oral evidence of the PF
and his witness was also unreliable. The court was left with the documents showing what Grand Court had paid
for his services between May 2000 and August 2001. Based on those, the court reduced the multiplicand for pre-
trial loss of earnings. However, the PF could not be awarded that full amount because he had an income from his
coffee shop business during most of that period.
(5) On a balance of probabilities, the court found that the PF chose not to return to work for Grand Court
after the accident because he wanted to build up his coffee shop business. Hence, the PF was only entitled to
recover the loss of earnings from his job with Grand Court for the period between the accident and the time when
he started the coffee shop business.
(6) As there was no reliable evidence of the PF’s loss of earnings from his employment with Grand Court,
the appropriate award should be for loss of earning capacity rather than for loss of future earnings. On the basis
that his earning capacity would be reduced by $1,100 a month because he could no longer carry heavy loads, that
amount was taken to be the multiplicand for a loss of earning capacity award. The multiplier of six was too low.
In the circumstances of the case and in view of the changes in how older workers were viewed, a multiplier of
ten was found to be appropriate.
(7) An award for medical costs should be related to life expectancy rather than the retirement age.
However, the court found that the award of 20 as multiplier for costs of future medical expenses was too high
and reduced it to 15.
Order 57, rule 13(2) specifically applies only to further evidence sought to be adduced before the Court of
Appeal. There is no similar provision that applies to an appeal before a High Court Judge in Chambers.
If there is a question in the exams on why is it easier to admit evidence at an appeal before a High Court
Judge in Chambers than in at an appeal before the Court of Appeal, the answer is because there is no similar
provision to Order 57, rule 13(2) which is applicable to the former case.
Lassiter Ann Masters v To Keng Lam (alias Toh Jeanette) [2004] 2 SLR 392
- The appellant (“the plaintiff”) was the widow of Henry Adolphus Lassiter (“HAL”), a US citizen who died
in a motor accident here in 1994. The respondent (“the defendant”) was the driver of the vehicle that
collided with HAL. The plaintiff made a claim for dependency. The assessment hearing was conducted
before the assistant registrar (“the AR”) in two tranches.
- Companies belonging to HAL had come under Chapter 11 bankruptcy in the United States. This was not
made known to the defendant. Upon the defendant’s discovery of the Chapter 11 bankruptcy, the plaintiff
sought to have an additional affidavit affirmed by one Baker (“2S-AEIC”) introduced during the second
tranche of the hearing. The AR refused. At the conclusion of the assessment, the AR rejected the loss of
inheritance claim. Both parties appealed to the judge in chambers. The plaintiff filed a summons for further
directions to have 2S-AEIC, a further affidavit affirmed by Baker (“3S-AEIC”) as well as a further affidavit
affirmed by one Seaman (“4S-AEIC”), admitted into evidence for the purpose of the appeals. At the hearing,
the judge in chambers deferred the consideration of the two substantive appeals in order to deal with the
issues arising from the summons for further directions. She affirmed the AR’s order in relation to 2S-AEIC,
and refused to have 3S-AEIC and 4S-AEIC admitted into evidence. She also said that the plaintiff should
have appealed against the AR’s order on 2S-AEIC.
- Before the Court of Appeal, the plaintiff sought only to have 2S-AEIC and 3S-AEIC admitted into evidence.
In relation to 2S-AEIC, the issue was whether the judge in chambers exercised her discretion correctly in
affirming the AR’s decision. In relation to 3S-AEIC, the issue was whether the judge in chambers was
correct to refuse to admit fresh evidence, and whether the Ladd v Marshall conditions were applicable to
an appeal from an assessment award.
- Held, dismissing the appeal:
o (1) A registrar’s appeal ought not to be treated in the same way as an appeal from
the judge in chambers to the Court of Appeal. When a judge in chambers heard a
registrar’s appeal, he was exercising confirmatory and not appellate jurisdiction. There
were no express provisions, as there were for appeals to the Court of Appeal, that the
judge in chambers should not receive further evidence unless there were “special
grounds” for doing so. Therefore, not all the conditions in Ladd v Marshall would apply
in the present case.
o (2) However, reasonable conditions ought to be set for the exercise of the judge in
chambers’ discretion to admit fresh evidence. It would not be appropriate to impose the
first condition under the Ladd v Marshall test, but there still had to be sufficiently strong
reasons why the fresh evidence was not adduced before the Registrar. As to the second
and third conditions under the Ladd v Marshall test, these were eminently reasonable,
and remained relevant.
o (3) The AR was justified in refusing the admission of 2S-AEIC. This affidavit
contained matters that should already have been explained to the court in the light of inherent
contradictions in the various documents pertaining to HAL’s financial position. There was no
basis to overturn the judge in chambers’ exercise of discretion in affirming the AR’s decision.
o (4) The judge in chambers’ exercise of discretion could not be shown to be erroneous in
relation to 3S-AEIC since the reason given for its late introduction was hardly meritorious.
o (5) As the AR had refused to admit 2S-AEIC, this should have been stated in the
plaintiff’s Notice of Appeal against his decision as one of the grounds of appeal. As for 3S-
AEIC, the plaintiff ought to have proceeded by way of a summons in chambers pursuant to
O 32 r 1 of the Rules of Court (Cap 322, R 5). Nevertheless, these were procedural defects
which could be treated as irregularities under O 2 r 1.
o [Observation: In the circumstances of this case, it was quite clear that the plaintiff did not
proceed with the assessment of damages in all good faith. There were clear attempts at
suppressing the truth and in preventing the defendant from discovering the truth. Sufficient
opportunities were accorded to the plaintiff to substantiate her claims and yet she failed to do
so. Any party who came to court seeking to play a “cat-and-mouse” game could not expect
sympathy or indulgence.]
- HC held where assessment hearing had been conducted before registrar, all intent and purposes like a full
trial. All evidence which should be adduced must be adduced at the registrar’s stage. No fundamental
difference between assessments of damages before registrar cf hearing before a judge in open court.
- So HC in both cases, felt no sensible need drew distinction. HC concluded that Ladd v Marshall would also
apply where a party was seeking to introduce fresh evidence not previously adduced at the registrar’s stage.
Special reasons had to be complied with.
- CA of both cases: agreed with general thinking, drew a further distinction.
o CA held: Ladd v Marshall would apply to a party application to adduce fresh damages in an
appeal for assessment of damages but with one distinction. Only 2 out of 3 Ladd v Marshall
Principals would apply.
o The two principals are 1) party seek to introduce fresh evidence before judge in chambers,
show
i) evidence must be such that, if given, it would probably have had an important
influence or the result of the case, though it need not be decisive
ii) evidence must be apparently credible, though it need not be in
incontrovertible.
o CA say yes, if it’s an appeal for assessment of damages before registrar, Ladd v Marshall will
apply but only 2 out of 3. (EXAMS)
SUMMARY
- Registrar to judge – easy
- HC to CA – O57+ladd v marshall (not applicable to registrar to HC)
- But HC judge in lassiter said – final amt/quantum in registrar to HC = final judgement
o CA then qualified this.
o Note tt this only applies to damages!!!
- Interloc distinction – governed by diff rules fr registrar to HC and fr HC to CA
APPEALS FROM JUDGE
i) final judgement
a. s29 SCJA
d. haron v central securities 1982 – whether decision finaly disposes of rights of parties
e. setali devpt v lim yan keng 1984 – s34.2 SCJA
- Facts:
- In this case the appellants had filed notice of appeal against a mandatory
injunction granted by the learned Judicial Commissioner, Muar. The respondents
applied for an order that the appeal be dismissed on the grounds that the appellants
had failed to comply with provisions of s 68(2) of the Courts of Judicature Act,
1964 and r 56 of the Rules of the Federal Court, 1980. It was alleged (1) that the
application for leave to appeal had not been served on the respondent or his
solicitors and (2) that the notice of appeal was filed out of time.
- Held: (1) as the case had been ordered to be heard in open court and the order
expressly stated that it was an order made in open court no leave for appeal was
required under s 68(2) of the Courts of Judicature Act, 1964;
- (2).since the order appealed against was made on 28 February 1982 the period of
one month under r 56 of the Rules of the Federal Court, 1980 runs from 1 March
1982 (the day when the order was made being excluded under s 54(1)(a) of the
Interpretation Act, 1967). The "month" means the calendar month ending on the
same date as it commenced on the previous month and therefore since the order
was made on 28 February 1982 the notice of appeal in this case filed on 29 March
1982 was well within time.
- – Only 2 judges are required to sit on the Court of Appeal. If the decision is tied at 1:1, then the decision of
the lower court shall prevail.
- Appeals on Matters which have gone for a full trial – 3 judges are required to sit on the Court of Appeal.
Section 29A SCJA – deals with the jurisdiction of the Court of Appeal.
1. Matters which CANNOT be brought before the Court of Appeal (exam – case study section)
Section 34(1) SCJA – lists the types of cases where no appeal to the Court of Appeal is allowed:
- usu such leave given by judge hearing appeal in chambers and judge then seeks appeal in CA
- cannot even apply for leave.
- [Note: In both these cases, the parties must go to trial; appeal is not allowed since no substantive rights of
the parties have been disposed of by the court, and therefore no prejudice caused to either party. It is not all
Order 14 applications where an appeal to the Court of Appeal is not allowed – but only when unconditional
leave to defend has been given]
(iii) s34(1)(c)
- judgement here is consent judgement. Ie terms of order or judgment sent to opposing party and consent to the
order as follows. If so, cannot go up to CA.
(v) S34(1)(e)
(2) Except with the leave of the Court of Appeal or a Judge, no appeal shall be brought to the Court of Appeal
in any of the following cases:
(a) where the amount or value of the subject-matter at the trial is $250,000 or such other amount as may be
specified by an order made under subsection (3) or less;
(b) where the only issue in the appeal relates to costs or fees for hearing dates;
(c) where a Judge in chambers makes a decision in a summary way on an interpleader summons where the facts
are not in dispute;
(d) an order refusing to strike out an action or a pleading or a part of a pleading; or
(e) where the High Court makes an order in the exercise of its appellate jurisdiction with respect to any
proceedings under the Adoption of Children Act (Cap. 4) or under Part VII, VIII or IX of the Women’s Charter
(Cap. 353).
(2A) Subsection (2) (a) shall not apply to any case heard and determined by the High Court in the exercise of its
original jurisdiction under section 17A of this Act or under section 59 or Part X of the Women’s Charter.
(3) The President may, after consulting the Chief Justice, by order published in the Gazette vary the amount
mentioned in subsection (2) (a).
Halisen Shipping Co Ltd v Pan-United Shipyard Pte Ltd [2004] 1 SLR 148
- CA considers relevant question in dispute was. Held subject matter was not claim for $170, 000 but question
of whether warrant of arrest should be set aside and whether there should be an order for assessment of
damages. Therefore, okay to bring up to Court of Appeal, no leave was required. (new issue was arrest, not
amount of claim).
- Pan-United Shipyard (“PUS”) contracted with Castle Shipping Company (“Castle”) to repair and supply
equipment to the Dilmun Fulmar. Castle failed to pay part of the bill, and PUS arrested the vessel. A
settlement agreement was subsequently reached where Castle agreed to pay PUS $310,000 in full and final
settlement of the debt in three instalments. The vessel was released after the first instalment was paid. The
vessel was then sold to Halisen Shipping Co Ltd (“Halisen”). Castle did not make the remaining instalment
payments under the settlement agreement. PUS commenced an in rem action for this sum and had the vessel
arrested. Halisen applied as an intervener to set aside the warrant of arrest and sought damages for the
wrongful arrest. The assistant registrar set aside the warrant of arrest, but did not award damages. On appeal,
the judge affirmed the assistant registrar’s decision, and ordered that Halisen was entitled to damages which
should be assessed. PUS appealed against the judge’s decision. Halisen applied to have the appeal struck out
on the ground that PUS failed to apply for leave as required by s 34(2)(a) of the Supreme Court of
Judicature Act (Cap 322).
- Held, dismissing the motion:
o The subject-matter before the court was whether the warrant of arrest should be set aside, and
whether there should be an order for assessment of damages. Neither of these bore any specific
value. The claim of PUS in the main action could in no way limit the damages Therefore, the
matter did not fall within s 34(2) and no leave was required.
- If only issue relates to cost of fees or hearing dates then you need leave – Essar Steel
- leave to appeal might be granted if application shows
1. prima facie errors of law or any errors of fact that had a bearing on decision on the trial court below
2. decision to be appealed against touched on a general principle decided for the first time (never before
litigated or dealt with by any court)
3. decision touched on a question of importance where further arg and on which a decision by the Court of
Appeal would be ‘of public importance’
- Judge in chamber make decision in a summary way or interpleader summons where facts not in dispute.
Order to be made to refuse striking out action of pleading – need leave.
To be set out:
Circumstances/ auth/ contentions/ reasons for or against the appeal
Note: Oral arguments before the Court of Appeal only provide the forum for clarifying the Appellant’s case
Not a given tt auth relevant therefore will win, stl need to win
For resp case, mirror – converse of appellant’s case – why judgement below shld stand
- Must present subsmission – skeletal if nec but to highlity impt factors, why case shld succeed, why impt. Do
not repeat ad nausem the case!
- Case already decided on the material. What is the hearing before CA is an oppty to persuade the CA on
certain grds tt are shady – why though auth slanted against u, there shld be departure fr principles – skill in
litigation.
- To persuade court why case is diff and why u shld win
- Limited time to CA –make it count.
- May face cost consequences.
- O 57 r 13 deals specifically with adduction of new evidence before CA. O 56 does not deal with this issue.
Order 57, rule 13 provides the general principle derived from the decision in Ladd v. Marshall 1954 3 ALL
ER 745. CA has power to receive further evidence but only on special grounds
- when fresh evidence can be adduced before CA. CA has power to receive further evidence but no such
further evidence shall be admitted except on special grounds.
- In Ladd v Marshall, special grounds where evidence could not have been obtained with reasonable
diligence for sue at the trial – first limb that was not applicable in an appeal before a judge from a
registrar for assessment of damages. Ladd v Marshall has three limbs
1. evidence could not have been obtained with reasonable diligence. (the limb removed fr the earlier
sitn)
2. evidence must be such that it had important influence on the result of the case.
3. evidence must be such as to be presumably believed (credible) though not incontrovertible.
o Exam – you got new evidence, discus these three principles.
- points to be raised for the first time (arguing for new ground never raised before) – party should raise at trial
all matters which have relevance and can have a bearing on outcome of trial. CA will generally refrain from
allowing a new point of appeal particularly if the circumstances are such that the CA is not in an as
advantageous position as the court below to adjudicate the issue.
(i) first, it must be shown that the evidence could not have been obtained with reasonable diligence
for use at the trial;
(ii) second, the evidence must be such that, if given, it would probably have an important
influence on the result of the case, although it need not be decisive;
(iii) third, the evidence must be such as is presumably to be believed, or in other words, it must be
apparently credible, although it need not be incontrovertible.
Also look at: Langdale v. Damby [1982] 3 All ER 129 on the application of the principle in Ladd v. Marshall to
summary judgments.
New Points that are raised for the first time at the Court of Appeal (for exam)
Not the same as further evidence adduced, don’t confuse the two
Consistent with the principle of finality of litigation – parties should raise all matters which are relevant at
the trial of first instance. This is rule is consistent with the principle of Ladd v. Marshall.
General Principle: CA will not generally allow new points to be raised.
The onus is on the parties to raise all points at first instance. This is because the Court of Appeal is not in the
same advantageous position as the Court below to review the evidence that is given by the witnesses. The
evidence before the court at first instance is fresh and contemporaneous.
Huang Han Chao v Leong Fook Meng & Anor [1991] 3 MLJ 337
- This appeal concerned a dispute over the ownership of a piece of property (the Bukit Tunggal property). The
appellant and second respondent were partners of two partnership firms. The Bukit Tunggal property was
conveyed to the first respondent, who was the wife of the second respondent, in October 1967. When the
second respondent moved permanently to Singapore from Kuala Lumpur, he arranged for the Singapore
office of one of his firms to rent the property from his wife for use as his residence and office for three
years.
- The partnership was later dissolved. In 1979, the appellant started this action by a writ of summons in which
he claimed a declaration that the respondents held half of the beneficial interest in the property on trust for
him and other consequential relief. The writ was later amended to a claim for a declaration that the property
was entirely held on trust for him by the respondents. In his statement of claim, the appellant alleged that the
Bukit Tunggal property was purchased for him by the second respondent on his instructions.
- At the trial, the appellant maintained that the property was purchased on his instructions and with funds
from his credit balance in the partnership account and there was no tenancy agreement. At the very end of
the trial, however, as a fall back position, the appellant claimed that the property was partnership property.
The claim was dismissed, and the appellant filed a petition of appeal which stated various grounds of appeal.
All these grounds were abandoned on appeal and counsel elected to rely only on one ground, ie that the
appellant was entitled to at least a half share of the property as he was a partner and the property was
purchased mainly out of funds belonging to the partnership firm. The issue was whether the appellant was
procedurally barred from raising that ground on appeal.
- Held , dismissing the appeal:
- (1).The Rules of the Supreme Court 1970, under O 18 r 15(1), required that a plaintiff specified at least one
of the reliefs he wished to claim. A plaintiff could not ask for a claim that was inconsistent with the specific
relief he sought in his pleadings. Here the appellant had specified in his amended writ, original and amended
statement of claim that he claimed a declaration that the entire property was held on trust for him. It was
therefore plainly inconsistent for the appellant in this appeal to seek a declaration that the property was
partnership property when his pleadings expressly asserted that the entire property was purchased on his
instructions and with his funds and that it was accordingly his beneficially.
- (2).The standard prayer for `further or other relief` must be read with and limited by the facts alleged and the
terms of the prayer for specific relief. It cannot be used to introduce relief inconsistent with that which was
expressly asked for.
- (3).The appellant may have amended his pleadings at the trial to claim the property as partnership property
but he did not do so and it was too late for him to do so at the hearing of the appeal. The trial was
conducted below wholly with the aim of proving the allegations in his amended statement of claim and
it was only at the end of the hearing that his counsel sought the declaration that the property was
partnership property.
- (4).The original petition of appeal did not contain the new ground relied on on appeal; it was added only on
amendment. The only reason given to the judge hearing the motion for leave to amend was that the appellant
had instructed new solicitors. The grant of leave to amend the petition could not therefore be taken in
support for any argument for leave to amend before this court.
- (5).The discretionary power of the Court of Appeal under s 37(1) of the Supreme Court of Judicature
Act (Cap 322) and O 57 r 3(1) of the Rules of the Supreme Court 1970, to rehear a case and hear a
point not taken at trial should not be exercised in an appellant`s favour where the appeal was based
on a case which was totally inconsistent with and contradictory to the case argued in the court below.
- Summary: - no new pts will be raised or allowed if totally inconsistent with and contraicoty to case argued
below.
Muniandy & Anor v Muhammad Abdul Kader & Ors [1989] 2 MLJ 416
- Muniandy – held decision or question of law not put at tiral below, CA will not interfere with the judgment
below.
- the appellants referred the C/A to 2 authorities which would persuade the court to allow a new point to be
raised and argued in the appeal although the matter was not pleaded or raised in arguments in the courts
below. Held: The authorities do not support the appellant’ application to allow a new point to be raised and
argued on the appeal even though the point was not pleaded or raised in arguments in the courts below. The
present case does not come under any of the established exceptions. The court held that this was not an
appropriate case where the appellants should be allowed to argue a new line of defence without hearing
fresh evidence.
- In this case the respondents had obtained an order for vacant possession of land against the appellants. There
was an unnumbered plank house erected on the land by the second appellant`s late husband. The issues
before the learned magistrate who heard the case was whether the house was built before or after 31 January
1948 and whether the appellants had paid ground rent to the respondents or any of their predecessors in title.
The learned magistrate found that the house was subject to the rent control legislation as it was built before
31 January 1948 but she found no evidence that any ground rent had been paid either to the respondents or
to any of their predecessors. She therefore entered judgment for the respondents. An appeal to the High
Court was dismissed and the appellants appealed to the Supreme Court. At the hearing of theappeal before
the Supreme Court, counsel for the appellants conceded that the findings of fact made by both the courts
below must be accepted. He applied to introduce and argue a fresh point not pleaded or argued in the courts
below that as owners of the plank house,the appellants had an equitable interest in the land and as such were
not trespassers, but have a tenancy coupled with an equity.
- Held, dismissing the appeal:
- (1).The protection claimed by the appellants under the rent control legislation by reason of the fact they
were ground tenants was clearly untenable in law. As there was no dispute on the ownership of the house,
the issue was not at all relevant and ought to have been immediately rejected by the learned magistrate and
the learned judge.
- (2).The onus was on the appellants to prove that they had paid the ground rents and the learned magistrate
was justified in holding that the appellants had not discharged this burden.
- (3).The authorities do not support the appellant`s application to allow the new point to be raised and
argued on the appeal even though the point was not pleaded or raised in arguments in the courts
below. The present case does not come under any of the established exceptions. The new point to be
raised is not one of jurisdiction or illegality. It is also not a mere omission which could be categorized
as falling within the realm of technicality. The so-called omission is in fact a new line of defence
altogether.
- (4).This was not an appropriate case where the court should allow the appellants to argue a new line
of defence without hearing fresh evidence. Without adducing fresh evidence it is not possible for instance
to conclude under what circumstances the second appellant`s husband and she herself were required or
allowed by the then predecessor in title to build the plank house and how much money had been expended in
the construction of the plank house and whether any improvements had been made for the purpose of
determining whether the payment of reasonable compensation would be sufficient to satisfy the equity.
- (5).If the appellants` application were allowed, not only a whole range of entirely new issues would have to
be determined but it would also be inconsistent with the appellant`s defence under the rent control
legislation. The application to argue the new defence of equitable estoppel was therefore refused.
Analysis
This means that the raising of a new point should not, in any way, change the testimony that was given by
the witness at the trial. The new point is raised on the basis that no further evidence needs to be admitted.
This is because the witness is not available at the Court of Appeal and does not have the benefit of giving
testimony in relation to the new point that has been raised.
Mirrors order 56
- An appeal does not operate as a stay of execution. The successful party is not denied the fruits of his
successful litigation. There are only a few instances when a stay of execution is allowed.
Principles -
- Litigant who has won wants fruits of judgement.
- Opposing party wants to appeal.
- What does litigant do? Must go and get fruits. In absence of stay order, YOU are ENTITLED to get the
fruits of judgement.
- Not deprived unless special circumstances – two such:
o If successful appeal wld be rendered nugatory, in the event, a stay is not ?? ordered.
Ie succeed in appeal but in meantime wanted stay but judge said no stay, successful
litigant has taken the assets and gone into foreign juris
In such circumstances, can get stay
So in circumstances whre can show tt jdstce of case dd tt stay shld be granted, then it will
be
Otherwise genral principle applies
o If damages and cost had been paid to successful aprty at first instance and he has squandered the
costs and damages and there are third paties who are going to seize on them and evne if win
appeal, when turn ard, successful party says tt all damages and costs have been paid out – in such
sitn, appeal will be rendered nugatory ie hollow victory.
- Open court or order 14 judgment is the SAME. C.f. hong leong finance.
APPEALS FROM SUBORDINATE COURTS TO THE HIGH COURT (not for exam)