18 And 19 Apellate Procedure

Appellate Procedure -

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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 APPEAL FROM REGISTRAR TO HIGH COURT JUDGE IN CHAMBERS (ORDER 56)  

Interlocutory appeal Sitting in chambers – not in open court/ no robe

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Appeals from decisions of Registrar to Judge in Chambers (O. 56, r. 1) 1. —(1) An appeal shall lie to a Judge in Chambers from any judgment, order or decision of the Registrar. (2) The appeal shall be brought by serving on every other party to the proceedings in which the judgment, order or decision was given or made a notice in Form 113 to attend before the Judge on a day specified in the notice. – notice of appeal (no need to know how to draft) (3) Unless the Court otherwise orders, the notice must be issued within 14 days after the judgment, order or decision appealed against was given or made and served on all other parties within 7 days of it being issued. (4) Except so far as the Court may otherwise direct, an appeal under this Rule shall not operate as a stay of the proceedings in which the appeal is brought.

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Issue of notice of appeal: - form 113 (rule 1.2)

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Application for leave to appeal – rule 3

Leave to appeal against order or judgment of Judge (O. 56, r. 3) 3. —(1) A party applying for leave under section 34 of the Supreme Court of Judicature Act (Chapter 322) to appeal against an order made, or a judgment given, by a Judge must file his application — (a) to the Judge within 7 days of the order or judgment; and (b) in the event leave is refused by the Judge, to the Court of Appeal within 7 days of the refusal. (2) A party who has obtained leave to appeal under this Rule shall file and serve the notice of appeal within one month from the date on which such leave was given. 

Further arg on interlocutory orders – rule 2

Further arguments on interlocutory orders (O. 56, r. 2) 2. —(1) An application to a Judge for further argument in Court pursuant to section 34 (1) (c) of the Supreme Court of Judicature Act (Chapter 322) shall, subject to the provisions of that section, be made in accordance with practice directions for the time being issued by the Registrar. (2) Unless the Registrar informs the party making the application within 14 days of the receipt of the application that the Judge requires further arguments, the Judge shall be deemed to have certified that he requires no further arguments. (3) Upon hearing further arguments, the Judge may affirm, vary or set aside the interlocutory order previously made or may make such other order as he thinks fit. Any such hearing, if in Chambers, shall be deemed to be a hearing in Court for the purposes of section 34 (1) (c) of the Supreme Court of Judicature Act. -

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;

Time frame for applying for further arguments on interlocutory orders • • •

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.

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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!!!)

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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

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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.

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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.

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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

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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.

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AD v AE (2004) 2 SLR 505 Following the dissolution of their marriage, the appellant (“the husband”) and the respondent (“the wife”) agreed on all ancillary matters except for the custody of their son and two daughters. The district judge awarded custody of the daughters to the wife while custody of the son was awarded to the husband with access granted to the wife. On 11 June 2003, the wife issued a Notice of Appeal against the custody orders made, particularly in relation to the order granting custody of the son to the husband. Under O 55C r 1(4) of the Rules of Court (Cap 322, R 5, 1997 Rev Ed) (“ROC”), the Notice of Appeal had to be served on all other parties within seven days of it being issued. The notice was only served on the husband’s solicitors on 6 August 2003, 49 days out of time. On 29 August 2003, 23 days later, the wife applied for an extension of time to serve the Notice of Appeal. Following this application, she took another 12 days to serve the application on the husband’s solicitors. The judge hearing the wife’s application for an extension of time to serve the Notice of Appeal , viewed the lapse by the clerk of the wife’s solicitors in failing to serve the notice in time as a poor excuse. Nevertheless, he allowed the application for an extension of time because the issue in the substantive appeal concerned the welfare of a child, which was of paramount importance. The husband appealed against this decision. Held, allowing the appeal: (1) An application to extend time to serve a Notice of Appeal filed within time was not different in nature from that to extend time to file a Notice of Appeal out of time. An appeal would only come into being where the notice was both filed and served. Thus, both types of applications should be treated on the same basis. (2) It was settled law that in determining whether an extension of time should be granted to a party to either file or serve a Notice of Appeal out of time, four factors were to be considered, namely, the length of the delay, the reason for the delay, the chances of the appeal succeeding if the time for appealing was extended and the degree of prejudice to the would-be respondent if the application was granted. (3) The delay of 49 days was a very substantial delay. That the delay in serving the notice was due to inadvertence was hardly a sufficient reason. Otherwise, oversight simpliciter would be a good ground to obtain an extension of time. The merits of the case and the question of prejudice were also factors which did

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not lend much weight in favour of the wife. On weighing the four factors as a whole, there was hardly sufficient basis for the court to exercise its discretion to extend time. (4) The ROC did not differentiate, based on the nature of the proceedings, as to how the discretionary power to extend time was to be exercised. There was no reason why the ordinary principles, as to how the court should exercise its discretion to extend time, should not apply to a case just because the subject matter related to the custody of a child. (5) To exercise a right of appeal, the party appealing ought to have complied with the rules. In custody proceedings relating to children, it was no less important that the matter in dispute should be brought to an end as soon as possible. Uncertainty would not be in the interest of the child. A more liberal rule to extend time to enable a parent to file or serve a Notice of Appeal out of time against a custody order would not only undermine the timelines set by the ROC but would also be incompatible with the child’s welfare as it would be unsettling.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.

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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

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.

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(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.

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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.

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Leong Mei Chuan v Chan Teck Hock David [2001] 2 SLR 17 The appellant wife appealed against certain orders made by the district judge on matters ancillary to divorce proceedings. Before filing the appeal, she applied for leave to amend the notice of appeal and to raise arguments pertaining to matters which were not included in her original notice of appeal. Her application was dismissed and she appealed. Held, allowing the appeal: (1) The court should not apply the stringent standards required in an application for extension of time to file an appeal in all cases. No single universally applicable rule existed to govern an application for leave to amend a notice of appeal. (2) The wife did not have the luxury of time to file her notice of appeal which she filed in time. What was relevant was - (a) whether the opposing party was given reasonable notice of the amendment and afforded a sufficient opportunity to address the substance of it, and (b) whether the amendment sought was consistent with the pleadings or the points raised below. Unless this caused such grave prejudice or hardship to the opposing party which could not be addressed by costs, the amendment should be allowed. Confirm principal, application to amend will be allowed unless other party suffer grave prejudice that cannot be compensated by cost.

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Diff bet adducing fresh evid before HC Judge and before CA Adducing Further Evidence at Appeal before High Court Judge in Chambers - when appealing, fresh evid may come to light – there is diff bet adducing fresh evid before HC judge in chambers as opposed to doing so before a CA to do so before CA wld present more diff obstacles for any party CA is highest body – they do not want to consider pts not argued earlier nor do they consider evid tt ought to have been in forum below

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When an appeal against a Registrar’s decision is made to a High Court Judge in Chambers, the judge treats the appeal as a re-hearing (ie: he treats it as a fresh hearing).

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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.

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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

Evans v. Bartlam [1937] AC 473 at 480 States general principle: - The judge in chambers treats the appeal by way of rehearing. The judge treats the matter afresh as though it came before him for the first time. The judge in his discretion is free to admit fresh evidence, and he frequently does so in the absence of special reasons. - The judge’s discretion is in no way fettered by the previous exercise of discretion by the Master, although no doubt he will give the weight it deserves to that decision. General principle: starting pt: In other words, judge has unbridled discretion to take in fresh evid if he wants to 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. Krakauer v. Katz [1954] 1 WLR 278 - In this case, an issue that arose was whether in an interlocutory matter, the Court of Appeal can or should admit further evidence. Denning LJ held that an appellant in an interlocutory matter has no right to adduce further evidence. It is a matter of discretion for the Court of Appeal to determine whether or not further evidence should be admitted. William Heinemann v. G. N. Christie [1960] MLJ 99 In this case, counsel for William Heinemann applied for leave to put in evidence a number of further affidavits. He contended that by reason of the ROC, such further evidence might be given without leave because it related to an interlocutory application. - Held: this was not a case of an interlocutory application but an appeal from an interlocutory order of the Court below. Hence, leave was necessary in order to put in the further affidavits as evidence. Such leave could not be granted in this case because the affidavits contained nothing which was not well-known to the appellant from the very beginning of the litigation. : - Both cases support bartlam.

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if additional evidence sought to be introduced does not raise any new issue or appellate court takes view that new matter ought to have been raised at hearing below, when ample opportunity had been given to appellant to raise such an issue, appellate court is unlikely to allow such evidence in.

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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.

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The general rule - An appellate court does not look at further evidence if such evidence was not adduced at first instance before the Registrar.

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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.

When will the court give leave to adduce fresh 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

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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

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Mulholland v Mitchell [1971] AC 666 - if matters or the evidence sought to be introduced after the 1st instance hearing is concluded, generally leave will be allowed – easier taks of persuading court and such matters could not be raised until after the conclusion of the first hearing rationale – they arose after first instance hearing and cld not have been adduced during that time Therefore, the High Court Judge in Chambers should be careful when allowing additional evidence to be adduced.

Mulholland v. Mitchell [1971] AC 666 - This decision deals with the situation when the evidence sought to be introduced concerns matters arising only after the hearing of first instance. - HL Held: That precise rules could not be formulated for the exercise by the Court of Appeal of its discretion to admit fresh evidence as to matters occurring after the date of trial, the question being largely one of discretion and degree. That the principle that that there should be finality in litigation should be borne in mind and evidence could not be admitted of every change which might have occurred since trial. -

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.

Compare: Adducing Evidence before the CA - there is a suggestion that it is easier to get fresh evidence in before a HC judge than in the CA Liam Soon Construction v. Guan Qian Realty [1999] 2 SLR 233 - clears the distinction drawn between fresh evidence by HC judge hearing an appeal and judge hearing an appeal in CA - CA held that there is distinction to HC judge and appeals to CA:

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CA in considering whether to alow fresh evid to bear in mind certain special factors which are set out in Ladd v Marshall CA refererd to O57r13(2) – further evid not to be admitted except on special grds - The same grds set out in ladd v marshall previously - Where the judge (HC Judge) is hearing an appeal from the Registrar, he hears it for the first time The presumption is to allow fresh evidence if it satisfies the earlier 3 principles in krakauer v katz - For the CA, the presumption is the other way. The CA does not have an unfettered discretion to allow fresh evidence unless there are special grounds (o57r13(2))

“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.

General powers of Court (O. 57, r. 13) 13(2) The Court of Appeal shall have power to receive further evidence on questions of fact, either by oral examination in Court, by affidavit, or by deposition taken before an examiner, but, in the case of an appeal from a judgment after trial or hearing of any cause or matter on the merits, no such further evidence (other than evidence as to matters which have occurred after the date of trial or hearing) shall be admitted except on special grounds. -

The Court of Appeal in Liam Soon also found authority in S Jayakumar v. Joshua Benjamin Jeyaretnam [1997] 2 SLR 172 –

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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

S Jayakumar v. Joshua Benjamin Jeyaretnam [1997] 2 SLR 172 GP Selvam held that an appeal against a decision of the Registrar is different from an appeal to the Court of Appeal. The former is in effect a fresh (de novo) hearing at which the matter is argued afresh. Therefore easier to admit evidence in HC hearing 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:

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(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. (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. (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. (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. (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

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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.

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HC judge hearing appeal from registrar, Ladd v Marshall will not apply for interlocutory appeal. Only for fresh evid going to CA.

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Note interloc appeals does not amt to final judgement or assesmsetn of damages by registrar.

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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.)

**Interlocutory matters so far do not deal with assessment of damages. Where they do – 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 pretrial 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.

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Cf Lassiter v To 2004 2 SLR 392 - Lai Siu Chiu said that there should be no difference between the principles governing adducing fresh evidence in the HC stage and in the CA stage - Principle for HC should apply to CA as well i.e. special grounds - But questionable whether previous authorities like Krakauer still apply - But rem this is still a HC decision not CA - CA has not overturned decision in Lian Soon yet

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Both cases held tt ladd prnicples applied eq and fully to registrar’s assesmsen tof damages appeal (at HC level) But CA in ang leng hock and lassiter qualified HC judgement – said tt recog diff bet registrar’s assessment of damages and interloc appeal which is akin to judgement in open court as compared to interloc appeal (means not full trial yet) – recog tt assessment of damages sth like final judgemnt but onerous and burdensome if HC judgment were to stand where Ladd v marshall applied fully and equally o HC said tt Ladd applies to all registrar’s assemetn of damages because like final judgement o CA said agree tt there is distinction and higher stds shld be expected but full and eq application wld be unfair Therefore eheld tt instead of applying ladd fully and equally, only apply two out of the three principles: o 1. Evid must be such tt if given, it wld have had an impt influence on the result of the case even if not decxsivie o 2. evid must be apparently credible – see below contd

Analysis  An appeal to the C/A also operates by way of a rehearing. Although it does not mean that witnesses are heard afresh, the court considers the whole of the evidence given below and the whole course of the trial. It is, as a rule, a rehearing on the documents of the evidence. The powers of the C/A are principally statutory, but supplemented where necessary by its inherent jurisdiction as a superior court of record. With regard to the adduction of fresh evidence before the C/A, Order 57, rule 13(2) specifically states that “in the case of an appeal from judgment after trial or hearing of any case or matter on the merits” further evidence is not to be admitted “except on special grounds”. 

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.

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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

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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 3SAEIC, 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

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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

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ii) evidence must be apparently credible, though it need not be in incontrovertible. 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!!!

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Interloc distinction – governed by diff rules fr registrar to HC and fr HC to CA

APPEALS FROM JUDGE i)

final judgement a. s29 SCJA

Constitution of Court of Appeal 29. —(1) The Court of Appeal shall consist of — (a) the Chief Justice; and (b) the Judges of Appeal. (2) The Chief Justice may appoint one or more of the Judges of Appeal as vice-presidents of the Court of Appeal. (3) A Judge of the High Court may, on the request of the Chief Justice, sit as a judge of the Court of Appeal, in which case he shall have all the jurisdiction, powers and privileges of a judge of the Court of Appeal. (4) The Chief Justice shall be the President of the Court of Appeal and, in his absence for any cause, the presidency shall be determined in accordance with the order of precedence prescribed in section 4. Jurisdiction of Court of Appeal 29A. —(1) The civil jurisdiction of the Court of Appeal shall consist of appeals from any judgment or order of the High Court in any civil cause or matter whether made in the exercise of its original or of its appellate jurisdiction, subject nevertheless to the provisions of this Act or any other written law regulating the terms and conditions upon which such appeals may be brought. (2) The criminal jurisdiction of the Court of Appeal shall consist of appeals against any decision made by the High Court in the exercise of its original criminal jurisdiction, subject nevertheless to the provisions of this Act or any other written law regulating the terms and conditions upon which such appeals may be brought. (3) For the purposes of and incidental to — (a) the hearing and determination of any appeal to the Court of Appeal; and (b) the amendment, execution and enforcement of any judgment or order made on such an appeal, the Court of Appeal shall have all the authority and jurisdiction of the court or tribunal from which the appeal was brought. (4) The Court of Appeal shall, for the purposes of and subject to the provisions of this Act, have full power to determine any question necessary to be determined for the purpose of doing justice in any case before the Court. b.

s34.1 SCJA; order 56 rule 2

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: (a) where a Judge makes an order giving unconditional leave to defend an action or an order setting aside unconditionally a default judgment; (b) except if the appellant is the defendant, where a Judge makes an order giving leave to defend on condition that the defendant pays into court or gives security for the sum claimed or an order setting aside a default judgment on condition as aforesaid; (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; (d) where the judgment or order is made by consent of the parties; or (e) where, by any written law for the time being in force, the judgment or order of the High Court is expressly declared to be final. Further arguments on interlocutory orders (O. 56, r. 2) 2. —(1) An application to a Judge for further argument in Court pursuant to section 34 (1) (c) of the Supreme Court of Judicature Act (Chapter 322) shall, subject to the provisions of that section, be made in accordance with practice directions for the time being issued by the Registrar. (2) Unless the Registrar informs the party making the application within 14 days of the receipt of the application that the Judge requires further arguments, the Judge shall be deemed to have certified that he requires no further arguments. (3) Upon hearing further arguments, the Judge may affirm, vary or set aside the interlocutory order previously made or may make such other order as he thinks fit. Any such hearing, if in Chambers, shall be deemed to be a hearing in Court for the purposes of section 34 (1) (c) of the Supreme Court of Judicature Act.

ii)

interlocutory judgement a. s29 SCJA b. s34.1 SCJA c. s34.2 SCJA – further arg or leave

Matters that are non-appealable or appealable only with leave 34(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). d.

e.

haron v central securities 1982 – whether decision finaly disposes of rights of parties 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.

iii)

unconditional leave to defend a. s34.1 SCJA

iv)

conditional leave – see interloc judgemnet

THE COURT OF APPEAL (ORDER 57) Section 29 SCJA – deals with the composition of the Court of Appeal. Section 29, SCJA: Constitution of Court of Appeal (1)The Court of Appeal shall consist of – (a) the Chief Justice; and (b) the Judges of Appeal. Technically can have 5. never even numbers.

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But interloc appeals to CA 2 judges are enough. If draw, outcome is tt judgement below is not disturbed. Must be two nil result before appeal succeeds. Note – chief justice never left standing alone with two judges of appeal turning their back on him. (in sg at least). So he wont be faced with sitn of being the dissenting judge. In any case even so the appeal is allowed This is the highest court on the land. There is NO avenue of appeal to the PC. No further appeal.

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– 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.

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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. Section 29A, SCJA: Jurisdiction of Court of Appeal (1) The civil jurisdiction of the Court of Appeal shall consist of appeals from any judgment or order of the High Court in any civil cause or matter whether made in the exercise of its original or of its appellate jurisdiction, subject nevertheless to the provisions of this Act or any other written law regulating the terms and conditions upon which such appeals may be brought. What types of appeals - Only live issues. Otherwise CA will impose cost order on you for wasting time if merely moot/ intellectual. - Appeals on Interlocutory Matters order 56r2 – must apply for further arg and if judge who has heard it does not think will succeed – then only can go to CA. read tog with s34.1.c of SCJA Further arguments on interlocutory orders (O. 56, r. 2) 2. —(1) An application to a Judge for further argument in Court pursuant to section 34 (1) (c) of the Supreme Court of Judicature Act (Chapter 322) shall, subject to the provisions of that section, be made in accordance with practice directions for the time being issued by the Registrar. (2) Unless the Registrar informs the party making the application within 14 days of the receipt of the application that the Judge requires further arguments, the Judge shall be deemed to have certified that he requires no further arguments. (3) Upon hearing further arguments, the Judge may affirm, vary or set aside the interlocutory order previously made or may make such other order as he thinks fit. Any such hearing, if in Chambers, shall be deemed to be a hearing in Court for the purposes of section 34 (1) (c) of the Supreme Court of Judicature Act. 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; 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: (i)

S34(1)(a) 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: (a) where a Judge makes an order giving unconditional leave to defend an action or an order setting aside unconditionally a default judgment; -

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] (ii) s34(1)(b) SCJA – deals with security for cost (Note: the defendant in an Order 14 application can always appeal if he is dissatisfied with the conditions imposed) 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: (b) except if the appellant is the defendant, where a Judge makes an order giving leave to defend on condition that the defendant pays into court or gives security for the sum claimed or an order setting aside a default judgment on condition as aforesaid; (iii)

s34(1)(c)

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; (iv)

S34(1)(d) – don’t be too quick to agree

- 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. 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: (d) where the judgment or order is made by consent of the parties (v)

S34(1)(e)

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: (e) where, by any written law for the time being in force, the judgment or order of the High Court is expressly declared to be final. 2. When appeal can be brought to the CA only with leave - Hailsen (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

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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’

Essar Steel Ltd v Bayerische Landesbank and Others [2004] 3 SLR 25 - The PF, Essar Steel Limited (“Essar”), was a company in India. Essar borrowed US$40m from a consortium of nine banks including the five DF banks under a syndicated loan agreement (“the agreement”). The DF banks transferred their portions of the loan to the Argo Fund (“the Fund”). Essar sought a declaration that the transfers were void and of no legal effect, on the grounds that the Fund was not a bank or financial institution to which the loans could be transferred under the terms of the agreement. The payment to the Fund would render Essar liable to criminal penalties under the laws of India. In response, the first, second and third DFs filed a counterclaim. They claimed that if the transfers were void, they remained parties to the agreement and were entitled to the rights and benefits thereof, including the right of repayment. Essar sought to strike out the counterclaim on the basis that the first, second and third DFs, having executed the transfers, could not rely on the agreement to make a counterclaim. Essar’s application to strike out the DFs’ counterclaim was dismissed by the assistant registrar. The assistant registrar took into account cll 18.1 and 25.3 of the agreement which provided for the payment of indemnity costs to the DFs where legal fees were incurred to enforce the repayment of the loan. The assistant registrar awarded costs to the first, second and third DFs on an indemnity basis fixed at $10,000. Essar appealed to the High Court against the order on costs, contending that the first, second and third DFs were not entitled to indemnity costs as they had admitted that they were no longer parties to the agreement and should not be entitled to the benefit of any part of the agreement. Essar further applied for leave to appeal to the Court of Appeal, under s 34(2) of the Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) (“the SCJA”), in the event the judge was to dismiss the appeal. Held, dismissing the appeal and declining to grant the application for leave to appeal to the Court of Appeal: o (1) The costs awarded to the DFs were related to the counterclaim to enforce the repayment of the loan. As the assistant registrar declined to strike out the counterclaim filed by the first, second and third DFs, it could not be said that the assistant registrar acted without basis in awarding indemnity costs under cll 18.1 and 25.3 of the agreement. The uncertainty and delay which would have resulted if the assistant registrar had deferred making the order for indemnity costs until after the court determined that the DFs were entitled to invoke the agreement militated against the making of such an order.

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(2) A judge in chambers generally would not allow an appeal from a registrar’s costs order unless it was unreasonable or the Registrar had erred in law. (3) In determining whether to grant leave to appeal to the Court of Appeal under s 34(2) of the SCJA, the court would consider whether the decision to be appealed against touched on a general principle decided for the first time or whether the decision touched on a question of importance on which a decision by the Court of Appeal would be to the public advantage. In addition, the court would consider whether there were any prima facie errors of law or any errors of fact which were clearly beyond reasonable argument and which had contributed or led to a judgment. The court would also take into account the value of the proposed appeal and the costs and time burdens the appeal would place on the parties and the Court of Appeal.

Riduan vin yusoff v khan thian huat 2005 2 SLR 188 Appeallant’s njtice of appeal based on 2 issues, damages and cost - Resp arg that if appeal on damages failed, (trying to strike out notice of appeal on appal on damages) then only left with issue of costs – then automatically if have not applied for leave of court means tt entire appeal disposed of Ingenuous Held tt this was disingenuous – not intellectually honest o Not morally or intellectually honest arg o Appeal was based on both damages and costs o Cannot sep appeal into one of damages disjunctively fr costs o Just because appeal on damages disposed with does not mean tt appea of costs falls on side because did not apply under s34.2.b JUDGEMENT: o (7) The respondents had made a fallacious argument that if the appeal on damages was struck out, the remaining appeal on costs should be automatically struck out because the appellant had not sought leave to appeal. Leave to appeal was not required precisely because the notice of appeal had not been based solely on the ground of costs. Even though the respondents had alleged that there was no evidence to support the appellant’s allegations on costs, this alleged lack of evidence was an issue for consideration during the actual appeal, and not at the hearing of an application to strike out the notice of appeal: at [43]. o (8) However questionable the merits of the appeal, the court’s task at this stage was not to hear the actual merits of the appeal, or to undertake a detailed examination of the substantive issues raised. Granting such an application would create an undesirable precedent and encourage advocates and solicitors to engage in tactical manoeuvres designed to wear down the opposition before the hearing of the actual appeal. The present application was therefore a wholly unnecessary step in the proceedings, one that the respondents ought to have known would have had little or no chance of success. Such unmeritorious applications meant to wear out the appellant did little to further the interests of justice, and only served to waste the time and resources of the courts; they were not to be condoned: at [45] to [47]. -

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.

The "Melati" (No 2)[2004] 2 SLR 555 Melati – question of whether leave was required. CA held: Fundamental question related to true nature of order made by judge, merely exercising discretion to grant extension of time for respondent to file SOC out of time. Not a refusal to strike out SOC. S34 (2) (d) enacted to deal with O 18 r 19 type of application. S34 (2) (d) not applicable to extension of time. Therefore interlocutory matters, write in for further evidence to comply with s34 (1) (c) of SCJA. - The Melati suffered a casualty in the course of its voyage. On 5 March 2002, the cargo owners took out a writ in rem against the shipowners. The in rem writ was served on 12 March 2002. Appearance was entered on 20 March 2002, but the cargo owners did not take any steps in the proceedings until 18 March 2003 when they filed and served a Statement of Claim out of time. The appellant objected to the service of the Statement of Claim in breach of O 18 r 1 of the Rules of Court (Cap 322 R 5, 1997 Rev Ed) (“the ROC”) and on

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the ground that the action was deemed discontinued under O 21 r 2(6). The respondent applied to court seeking the court’s leave to extend time for filing of the Statement of Claim; a declaration that the Statement of Claim filed and served on 18 March 2003 be deemed regular and in accordance with the ROC; and in the alternative, they sought to reinstate the action. The assistant registrar dismissed the application and ordered the Statement of Claim filed be “struck out”. The respondent appealed to the judge in chambers who allowed the appeal. She extended the time for filing of the Statement of Claim and retrospectively validated the service of the Statement of Claim effected on 18 March 2003. The appellant requested for a certification that the judge required no further arguments and the judge duly so certified. A Notice of Appeal was filed. Eight days after the appellant’s case was filed, the respondent alleged, for the first time, that the appellant had failed to obtain leave of court under s 34(2)(d) of the Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) (“the Act”). Pursuant to this, two motions were brought before the Court of Appeal. The first motion was brought by the respondent seeking to strike out the appeal. The second motion was an application by the appellant seeking leave of the court, in the event that the court should hold that leave was required for the filing of the appeal. Held, dismissing the first motion (second motion consequently withdrawn): (1) The fundamental question related to the true nature of the orders made by the judge. The judge, in exercising her discretion to extend time to enable the cargo-owners to file their Statement of Claim out of time and to allow the Statement of Claim already filed on 18 March 2003 to stand, had not refused to strike out a Statement of Claim. The orders made by the assistant registrar should have had no bearing at all, they having been set aside by the judge in exercise of her confirmatory jurisdiction. The nature or effect of the orders made by the judge should be apparent from the orders themselves. But, if the orders were at all unclear, reference should then be made to the prayers in the application concerned. (2) It was true that s 34(2)(d) of the Act did not elaborate on what would constitute or amount to a refusal to strike out a Statement of Claim, but that was addressed in O 18 r 19(1) of the ROC. Here, the judge was not dealing with any arguments that the Statement of Claim should be struck out. Hence, the orders of the judge were not orders refusing to strike out a Statement of Claim. They were really interlocutory orders which would come under s 34(1)(c) of the Act.

Procedure for appeal Notice of appeal (O. 57, r. 3) 3. —(1) An appeal to the Court of Appeal shall be by way of rehearing and must be brought by notice of appeal in Form 119. (2) Notice of appeal may be given either in respect of the whole or in respect of any specified part of the judgment or order of the Court below; and every such notice must state whether the whole or part only, and what part, of the judgment or order is complained of, contain an address for service, and be signed by the appellant or his solicitor. For the avoidance of doubt, any party who desires to contend that the decision of the Court below should be varied in any event must file and serve a notice of appeal. (3) The appellant must at the time of filing the notice of appeal provide security for the respondent’s costs of the appeal in the sum of $10,000 or such other sum as may be fixed from time to time by the Chief Justice by — (a) depositing the sum in the Registry or with the Accountant-General and obtaining a certificate in Form 115; or (b) procuring an undertaking in Form 116 from his solicitor and filing a certificate in Form 117. (4) The Court of Appeal may at any time, in any case where it thinks fit, order further security for costs to be given. (5) The Registrar must assign a number to the notice of appeal and enter the appeal on the list of appeals, stating therein the title of the cause or matter, the name of the appellant and his solicitor, if any, and the date of such entry. (6) The notice of appeal must be served on all parties to the proceedings in the Court below who are directly affected by the appeal or their solicitors respectively at the time of filing the notice of appeal; and, subject to Rule 10, it shall not be necessary to serve the notice on parties not so affected. Time for appealing (O. 57, r. 4) 4. Subject to this Rule, every notice of appeal must be filed and served under Rule 3 (6) within one month — (a) in the case of an appeal from an order in Chambers, from the date when the order was pronounced or when the appellant first had notice thereof; (b) in the case of an appeal against the refusal of an application, from the date of the refusal; and (c) in all other cases, from the date on which the judgment or order appealed against was pronounced.

Record of proceedings (O. 57, r. 5) 5. —(1) When a notice of appeal has been filed, the Judge who gave the judgment or made the order must, unless the judgment was written, certify in writing the grounds of the judgment or order: Provided that if no certified ground of the judgment or order has been given by the Judge within a period of 6 months from the date of the notice of appeal, the appellant shall nonetheless proceed with the appeal and apply in writing to the Registrar for a copy of the record of proceedings as hereafter provided. (2) As soon as possible after notice of appeal has been filed, the Registrar shall cause to be served on the appellant or his solicitor at his address for service specified in the notice of appeal a notice that a copy of the record of proceedings is available and thereupon the appellant or his solicitor shall pay the prescribed fee. (3) The record of proceedings shall consist of a certified copy of the judgment or grounds of judgment or order (if any), and a copy of the certified transcript of the official record of hearing taken at the hearing of the cause or matter. [Rules 6, 7, 8 deleted by S 194/94] contents of appellant’s and respondent’s case 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 Record of Appeal and Appellant’s Case (O. 57, r. 9) 9. —(1) Within 2 months after service of the notice referred to in Rule 5 (2), the appellant must file — (a) one copy of the record of appeal; (b) subject to Rule 9A, the Appellant’s Case referred to in that Rule; and (c) a core bundle of documents (referred to in this Order as the core bundle), and serve a copy each thereof on every respondent to the appeal or his solicitor except that if the appeal is to be heard by a Court of Appeal consisting of 2 Judges of Appeal, these documents shall be filed and served within one month after service of the notice referred to in Rule 5 (2). (2) The record of appeal shall consist of a copy each of — (a) the notice of appeal; (b) the certificate of payment of security for costs; (c) the record of proceedings referred to in Rule 5 (3); (ca) the affidavits of evidence in chief; (d) the documents in the nature of pleadings; (e) other documents, so far as are relevant to the matter decided and the nature of the appeal; and (f) the judgment or order appealed from. (2A) The core bundle shall contain — (a) a copy of the grounds of the judgment or order referred to in Rule 5 (1); (b) [Deleted by S 612/2001]; (c) other documents, including notes of evidence, pleadings and affidavits, or portions thereof, that are relevant to any question in the appeal or will be referred to in the Appellant’s Case, the Respondent’s Case or the joint Case or at the appeal; (d) the judgment or order appealed from; and (e) an index of the documents included therein, which shall cross-refer each document to its location in the record of appeal or joint record of appeal, as the case may be. (3) A draft index of the documents to be included in the record of appeal shall be sent by the appellant’s solicitor to the solicitors for the respondents who or (if more than one) any of whom may within 3 days object to the inclusion or exclusion of any document. Where in the course of preparation of the record one party objects to the inclusion of a document on the ground that it is unnecessary or irrelevant and the other party nevertheless insists on its being included, the record, as finally printed or typed shall, with a view to the subsequent adjustment of the costs of and incidental to such document, indicate, in the index of papers, or otherwise, the fact that, and the party by whom, the inclusion of the document was objected to. (4) Where an appellant omits to comply with paragraph (1), the appeal shall be deemed to have been withdrawn, but nothing in this Rule shall be deemed to limit or restrict the powers of extending time conferred upon the Court of Appeal.

(4A) Where an appeal is deemed to have been withdrawn pursuant to paragraph (4) and all the parties to the appeal consent to the payment of any sum lodged in Court as security for the costs of the appeal to the appellant, the appellant shall file the document signifying such consent signed by the parties or by their solicitor, and in such event any sum lodged in Court as security for the costs of the appeal shall be paid out to the appellant. (5) In the event of a cross-appeal, a joint record of appeal may be filed if all the parties to the appeal and the cross-appeal consent. (6) Written notice of intention to file such a joint record must be given to the Registrar within the time specified in paragraph (1). (7) Subject to paragraph (5), any party to the appeal or the cross-appeal may apply to the Registrar for directions as to the filing of the record of appeal. Preparation of Cases (O. 57, r. 9A) 9A. —(1) The appellant must file his Case (referred to in this Order as the Appellant’s Case) within the time specified in Rule 9. (2) The respondent must file his Case (referred to in this Order as the Respondent’s Case) — (a) within one month after service on him of the record of appeal, the Appellant’s Case and the core bundle; or (b) in the event a joint record of appeal is filed, within one month after service on him of the Appellant’s Case and the core bundle. (2A) If the respondent intends to refer to any document in the Respondent’s Case or at the appeal, and such document is not included in the core bundle, the respondent shall file, at the same time as his case, a supplemental core bundle which shall contain — (a) such additional documents as are not included in the core bundle; and (b) an index of the documents included in the supplemental core bundle, which shall cross-refer each document to its location in the record of appeal or joint record of appeal, as the case may be. (3) The form of the Case shall comply with the following requirements: (a) it shall consist of paragraphs numbered consecutively; (b) it shall state, as concisely as possible — (i) the circumstances out of which the appeal arises; (ii) the issues arising in the appeal; (iii) the contentions to be urged by the party filing it and the authorities in support thereof; and (iv) the reasons for or against the appeal, as the case may be; (c) it shall be in the same size and style as the record of appeal and the core bundles with alphabetical lettering in the left hand margin at every fifth line, the first letter “A” being placed against the first line in each page, and with references in the right hand margin to the relevant pages of the record of appeal, the core bundle and any supplemental core bundle; and (d) care shall be taken to avoid, as far as possible, the recital of long extracts from the record of appeal or the core bundle. (4) If a party — (a) is abandoning any point taken in the Court below; or (b) intends to apply in the course of the hearing for leave to introduce a new point not taken in the Court below, this should be stated clearly in the Case, and if the new point referred to in sub-paragraph (b) involves the introduction of fresh evidence, this should also be stated clearly in the Case and an application for leave must be made under Rule 16 to adduce the fresh evidence. (5) A respondent who, not having appealed from the decision of the Court below, desires to contend on the appeal that the decision of that Court should be varied in the event of an appeal being allowed in whole or in part, or that the decision of that Court should be affirmed on grounds other than those relied upon by that Court, must state so in his Case, specifying the grounds of that contention. (6) Except with the leave of the Court of Appeal, a respondent shall not be entitled on the hearing of the appeal — (a) to contend that the decision of the Court below should be varied upon grounds not specified in his Case; (b) to apply for any relief not so specified; or (c) to support the decision of the Court below upon any grounds not relied upon by that Court or specified in his Case. (7) A Case may be amended at any time with the leave of the Court of Appeal. (8) Except to such extent as may be necessary to the development of the argument, a Case need not set out or summarise the judgment of the Court below, nor set out statutory provisions, nor contain an account of the proceedings below or of the facts of the case.

(9) Every Case must conclude with a numbered summary of the reasons upon which the argument is founded, and must bear the name and signature of the solicitor who has prepared the Case or who will appear before the Court of Appeal. (10) The solicitor of any party, in drafting a Case, should assume that it will be read in conjunction with the documents included in the core bundle and any supplemental core bundle. (11) All the appellants may join in one Appellants’ Case, and all the respondents may similarly join in one Respondents’ Case. (12) A party whose interest in the appeal is passive (such as a stake-holder, a trustee or an executor) is not required to file a separate Case but should ensure that his position is explained in one of the Cases filed. (13) The filing of a joint Case on behalf of both appellant and respondent may be permitted in special circumstances. (14) [Deleted by S 612/98] (15) No Case need be filed in any interlocutory matter or application to be heard by the Court of Appeal but Cases must be filed in any appeal arising from any interlocutory order. (16) A party to an appeal shall file together with his Case a bundle of authorities relied on by the Court below as well as other authorities to be relied on at the hearing of the appeal and serve such bundle of authorities on the other party. (17) A respondent who fails to file his Case within the time specified in paragraph (2) may be heard only with the leave of the Court of Appeal and on such terms and conditions as the Court of Appeal may impose. (18) Where 2 or more appeals arise from the same judgment or order below, an appellant or respondent to one or more of the appeals may apply to a Judge of Appeal or, if one is not available, to a Judge (including the Judge hearing the proceedings in the Court below), for leave to file a single Case, record of appeal or core bundle covering all such appeals. -

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.

Order 57, rule 11 – Withdrawal of Appeal (not for exams) Withdrawal of appeal (O. 57, r. 11) 11. —(1) An appellant may at any time before his appeal is called on for hearing, file and serve on the parties to the appeal a notice to the effect that he does not intend further to prosecute the appeal. (2) If all parties to the appeal consent to the intended withdrawal of the appeal, the appellant must file the document signifying such consent signed by the parties or by their solicitor, and the appeal shall thereupon be deemed to have been withdrawn and shall be struck out of the list of appeals by the Registrar; in such event any sum lodged in Court as security for the costs of the appeal shall be paid out to the appellant. (3) If all the parties do not consent to the intended withdrawal of the appeal, the appeal shall remain on the list, and shall come on for the hearing of any issue as to costs or otherwise remaining outstanding between the parties, and for the making of an order as to the disposal of any sum lodged in Court as security for the costs of the appeal. [Rule 12 deleted by S 194/94] Order 57, rule 3(1) - Appeal by way of Rehearing (EXAM) Leave to appeal against order or judgment of Judge (O. 56, r. 3) 3. —(1) A party applying for leave under section 34 of the Supreme Court of Judicature Act (Chapter 322) to appeal against an order made, or a judgment given, by a Judge must file his application — (a) to the Judge within 7 days of the order or judgment; and (b) in the event leave is refused by the Judge, to the Court of Appeal within 7 days of the refusal. (2) A party who has obtained leave to appeal under this Rule shall file and serve the notice of appeal within one month from the date on which such leave was given.

Order 57, rule 13 - General Powers of the Court of Appeal to receive Further Evidence on Questions of Fact (EXAM) - O 57 r 13 deals specifically with adduction of new evidence before CA. O 56 does not deal with this issue.

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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

General powers of Court (O. 57, r. 13) 13. —(1) In relation to an appeal the Court of Appeal shall have all the powers and duties as to amendment and otherwise of the High Court. (2) The Court of Appeal shall have power to receive further evidence on questions of fact, either by oral examination in Court, by affidavit, or by deposition taken before an examiner, but, in the case of an appeal from a judgment after trial or hearing of any cause or matter on the merits, no such further evidence (other than evidence as to matters which have occurred after the date of trial or hearing) shall be admitted except on special grounds. (3) The Court of Appeal shall have power to draw inferences of fact and to give any judgment and make any order which ought to have been given or made, and to make such further or other order as the case may require. (4) The powers of the Court of Appeal under paragraphs (1), (2) and (3) may be exercised notwithstanding that — (a) no notice of appeal has been given in respect of any particular part of the decision of the Court below or by any particular party to the proceedings in that Court; or (b) any ground for allowing the appeal or for affirming or varying the decision of that Court is not specified in any of the Cases filed pursuant to Rule 9A or 10, and the Court of Appeal may make any order, on such terms as the Court thinks just, to ensure the determination on the merits of the real question in controversy between the parties. (5) The powers of the Court of Appeal in respect of an appeal shall not be restricted by reason of any interlocutory order from which there has been no appeal. -

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.

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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.

PRINCIPLE OF FINALITY OF LITIGATION  New pts raised for first time before the CA – not evid but PTS – whether proced or substantive -

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.

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Case which CA relies on is AG v Pang Ah Yew 1934 MLJ 184. endorsed dicta of Lord Harshall: a new point raised for the first time not taken at trial must be most jealously scrutinized. Under such cirucmstances, CA ought only to decide in favour of appellant if CA is satisfied beyond doubt 1. 1) it has before it all the facts bearing upon the new contention as completely as would have been the case if the controversy had arisen at trial below ie all relevant material facts before it and if issue arisen in court below then same – no diff.

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2) that no satisfactory explanation could have been offered by those whose conduct is impugned if an opportunity had been afforded them when in the witness box. Ie he cannot exculpate conduct at trial below – if no right below then no right at CA - (1st – Y seek to introduce new point, must convince judge that all facts are already before him. 2nd – impugned by new point calls for witness below, those witness can’t be called now? CA say no.)

Ladd v. Marshall [1954] 3 All ER 745 (read Denning LJ’s decision) The classic statement of what amounts to “special grounds” within the meaning of Order 57, rule 13(2) comes from the judgment of Denning LJ in Ladd v Marshall: In this case, the plaintiff appealed and sought applied for leave to adduce further evidence from the defendant’s former wife. - Held: For the court to allow further evidence to be adduced in support of an appeal against a decision of fact, the evidence must be such as is presumably to be believed. As the evidence sought to be adduced was not of such a description, it would not be admitted. - Denning LJ that in order to justify the reception of fresh evidence, 3 conditions must be fulfilled: (very important!)

(i) (ii) (iii)

first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; 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; 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. Langdale v. Damby [1982] 3 All ER 129 In this case, the House of Lords held that Order 59, rule 10(2) of the English rules of court, which excluded the admission of further evidence on appeal to the Court of Appeal except on special grounds, was applicable to appeals against summary judgments given for plaintiffs under Order 14, House of Lords held that such a construction was in accordance with the principle that a successful litigant was not lightly to be deprived of his judgment. Where a plaintiff applied for summary judgment, there was no injustice in requiring the defendant to use such reasonable diligence as was reasonable in the circumstances to put before the judge hearing the application, all the evidence he relied on in defence, whereas it would be a great injustice to the plaintiff to allow the defendant to introduce for the first time on appeal evidence which had been readily available at the hearing of the application but was not produced. HL held that since the evidence to support the assertion that the first plaintiff had failed to explain the effect of the option deed to the defendant was extremely tenuous, it followed that there were no special grounds for admitting it. 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

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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.

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See: AG v. Pang Ah Yew [1934] MLJ 184 In this case, the C/A reviewed the authorities in which the courts have commented on the impropriety of raising, on appeal, questions that have not been raised at the hearing. (see below cited cases)

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next issue: CA will not allow new point to be raised if it is totally inconsistent with and contradictory ot the case argued in the court below Huang Han Chao. The original petition of appeal did not contain the new ground relied upon on appeal; it was added only on amendment. Held: The Court of Appeal said that the discretionary power of the C/A under the SCJA and the ROC to rehear a case and hear a point not taken at trial should not be exercised in an appellant’s favour where the appeal is based on a case which is totally inconsistent with and contradictory to the case argued in the court below.

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

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Muniandy – held decision or question of law not put at tiral below, CA will not interfere with the judgment below.

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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.

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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.

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Tasmania [1890] 15 App Cas At the Court of Appeal, a point was raised for the first time. 3 hurdles that must be satisfied:  CA must be satisfied that it has before it all the facts bearing upon it for the new contention as completely as possible, as if this new point was raised at trial below  no satisfactory explanation can be offered by those whose conduct is impugned by this new point, if such an opportunity had been afforded to such person in the witness box. CA must be satisfied that if this same point has been put to the witness at the first instance, it would not invite further explanation or further clarification. as u can see v diff to bring in a new point

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iii. if it is totally inconsistent and contradictory to the case argued below, then the new point will not be allowewd.

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.  

Note: It is very difficult to raise a new point at the Court of Appeal. (Note: The rest of the topics below will not be tested in the exams)

rule 14 – court can send trial back to judge below Powers of Court as to new trial (O. 57, r. 14) 14. —(1) On the hearing of any appeal the Court of Appeal may, if it thinks fit, make any such order as could be made in pursuance of an application for a new trial or to set aside any finding or judgment of the Court below. (2) The Court of Appeal shall not be bound to order a new trial on the ground of misdirection, or of the improper admission or rejection of evidence, unless in the opinion of the Court of Appeal some substantial wrong has been thereby occasioned. (3) A new trial may be ordered on any question without interfering with the finding or decision on any other question; and if it appears to the Court of Appeal that any such wrong as is mentioned in paragraph (2) affects part only of the matter in controversy, or one or some only of the parties, the Court may order a new trial as to that part only, or as to that party or those parties only, and give final judgment as to the remainder. (4) In any appeal on the ground that damages awarded are excessive or inadequate, the Court of Appeal may, in lieu of ordering a new trial — (a) substitute for the sum awarded such sum as appears to the Court to be proper; or (b) reduce or increase the sum awarded by such amount as appears to the Court to be proper in respect of any distinct head of damages erroneously included in or excluded from the sum so awarded, but except as aforesaid the Court of Appeal shall not have power to reduce or increase the damages. (5) A new trial shall not be ordered by reason of the ruling of any Judge that a document is sufficiently stamped or does not require to be stamped. -

generally CA reluctant to do this will say tt will not interfere because no benfit of examining witnesses etc but if finding fact evidently wrong and no evid – but on very rare and exceptional circusmtnaces Jones v national coal board – in this case, judge took over everything – cross examine, reexamine, see like no counsel! CA sent the case back. o Not applicable in sg though. Judge can do it if he wants Bugger singh 1967 1 MLJ – parties failed to turn up, judge stil held trial, party through no fault of his own absent. Got another chance.

Order 57, rule 16 - Applications to Court of Appeal Applications to Court of Appeal (O. 57, r. 16) 16. —(1) Every application to the Court of Appeal shall be made either by originating summons or, in an appeal before the Court of Appeal, by summons. (2) Any application to the Court of Appeal for leave to appeal (other than an application made after the expiration of the time for appealing) must, if the appellant is acting in person, be made ex parte in the first instance; but unless the application is then dismissed or it appears to that Court that undue hardship would be caused by an adjournment, the Court shall adjourn the application and give directions for the service of the application on the party or parties affected. (3) Where an ex parte application has been refused by the Court below, an application for a similar purpose may be made to the Court of Appeal ex parte within 7 days after the date of the refusal. (4) Whenever under these Rules an application may be made either to the Court below or to the Court of Appeal, it shall not be made in the first instance to the Court of Appeal, except where there are special circumstances which make it impossible or impracticable to apply to the Court below.

Order 57, rule 18 – Appellant or Respondent not Appearing Appellant or respondent not appearing (O. 57, r. 18) 18. —(1) If on any day fixed for the hearing of an appeal, the appellant does not appear in person or by an advocate, the appeal may be dismissed. (2) If the appellant appears, and any respondent fails to appear, either in person or by an advocate, the appeal shall proceed in the absence of such respondent, unless the Court for any sufficient reason sees fit to adjourn the hearing thereof. (3) Where any appeal is dismissed or allowed under paragraph (1) or (2), the party who was absent may apply to the Court of Appeal for the rehearing of the appeal and where it is proved that there was sufficient reason for the absence of such party, the Court of Appeal may order that the appeal be restored for hearing upon such terms as to costs or otherwise as it thinks fit. (4) [Deleted by S 194/94] Order 57, rule 20 - Expedited Appeals and Applications to CA Expedited appeals and applications (O. 57, r. 20) 20. —(1) Where an appeal or application is one of urgency, any party may apply to a Judge of Appeal or, if one is not available, to a Judge (including the Judge hearing the proceedings in the Court below), for such directions as may be appropriate with a view to expediting the appeal or application for hearing before the Court of Appeal. (2) Such an application shall be made by summons supported by affidavit or may, with the leave of the Judge of Appeal or the Judge, as the case may be, be made orally. (3) Such an application may be made at any stage of the proceedings. (4) The Judge of Appeal or the Judge, as the case may be, may deal with such an application in such manner as he considers fit in the interests of justice, including — (a) making directions without the need to inform or to hear any party; and (b) dispensing with compliance with any of these Rules (including this Rule) or any Practice Direction, or directing that such Rule or Practice Direction be modified in its application to the proceedings. (5) Any party seeking a revocation or variation of any directions made under this Rule, or seeking further directions, may apply in the manner hereinbefore provided. An appeal does not operate as a stay of execution o57 r 15 (impt!!) EXAM! Mirrors order 56 Stay of execution, etc. (O. 57, r. 15) 15. —(1) Except so far as the Court below or the Court of Appeal may otherwise direct — (a) an appeal shall not operate as a stay of execution or of proceedings under the decision of the Court below; (b) no intermediate act or proceeding shall be invalidated by an appeal. (2) On an appeal from the High Court, interest for such time as execution has been delayed by the appeal shall be allowed unless the Court otherwise orders. -

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.

Lee Sian Hee v. Oh Keng Soon [1992] 1 SLR 77 The respondent entered final judgment. The applicant made an application for a stay of execution until the appeal was heard. The learned judge dismissed the application. The applicant appealed. Held: dismissing the application. The judgment in the Malaysian case of Hong Leong Finance Bhd [1987] should be confined to the facts of the case and to the circumstances of Malaysia. An appeal does not operate as a stay of execution. (in tt case looked at merits of case to grant stay)  In this case, CJ Yong said that: “while the court has power to grant a stay, and this is entirely in the discretion of the court, the discretion must be exercised in accordance with well established principles:  Firstly, as a general proposition, the court does not deprive a successful litigant of the fruits of his litigation, and lock up funds to which prima facie he is entitled, pending an appeal.

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However, when a party is exercising his undoubted right of appeal, the court ought to see that the appeal, if successful, is not nugatory. Thus, a stay will be granted if it can be shown by affidavit that, if the damages and costs are paid, there is no reasonable probability of getting them back, if the appeal succeeds.”

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Note: A stay of execution is rarely granted.

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. -

Also look at Section 41 SCJA: An appeal shall not operate as a stay of execution or of proceedings under the decision appealed from unless the court below or the Court of Appeal so orders and no intermediate act or proceeding shall be invalidated except so far as the Court of Appeal may direct.

APPEALS FROM SUBORDINATE COURTS TO THE HIGH COURT (not for exam) See: Order 55C and Order 55D