OpenNet Pte Ltd v Info-Communications Development Authority of Singapore

Chao Hick Tin JA (delivering the grounds of decision of the court):

[1] This was an application by the Info-Communications Development Authority of Singapore, the respondent (the “Respondent”) in Civil Appeal No 81 of 2012/Q, to strike out the notice of appeal filed by the appellant (“the Appellant”), OpenNet Pte Ltd, on the ground that the Appellant had not obtained leave to appeal to the Court of Appeal, pursuant to s 34(2)(d), read with the Fifth Schedule, of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“the SCJA”). At the conclusion of the hearing we ruled that the Appellant did not require leave of court to file the appeal and accordingly dismissed the application to strike out the notice of appeal. We now give our reasons.

[2] The Appellant is a joint venture company incorporated in Singapore. The Respondent is a statutory board established pursuant to the Info-Communications Development Authority of Singapore Act (Cap 137A, 2000 Rev Ed).

[3] By way of Originating Summons No 1099 of 2011/V, the Appellant filed an application under O 53 of the Rules of Court (Cap 322, Rev Ed 2006) (“ROC”) for leave from the High Court to commence judicial review of a decision made by the Respondent that both a business trust by the name of NetLink Trust and its trustee-manager CityNet Infrastructure Management Pte Ltd had fulfilled the requirements set out in a deed of undertaking furnished by Singapore Telecommunications Limited to the Respondent.

[4] The Appellant’s application for leave to commence judicial review was heard on 17 January 2012, 21 February 2012, 2 March 2012 and 19 April 2012. On 7 June 2012, the Appellant’s leave application was dismissed. On 6 July 2012, the Appellant filed a notice of appeal against the High Court’s refusal to grant leave to commence judicial review.

[5] On 23 July 2012, the Respondent filed the present application for an order that the Appellant’s notice of appeal be struck out on the ground that the Appellant had not obtained leave to appeal as required under s 34(2)(d), read with the Fifth Schedule, of the SCJA.

[6] The sole issue which we had to decide was whether the Appellant was required to apply for leave to appeal from the High Court in order to file the notice of appeal against the Judge’s refusal to grant leave to commence judicial review.

[7] Before examining the arguments made by the parties, it may be helpful to lay out the legislative framework for appeals on civil matters. As held by this court in Blenwel Agencies Pte Ltd v Tan Lee King [2008] 2 SLR(R) 529 (“Blenwel”), “[t]he Court of Appeal is a creature of statute and, hence, is only seised of the jurisdiction that has been conferred upon it by the relevant provisions in the legislation creating it”. Therefore, as a starting point, we refer to s 29A of the SCJA, which provides that the Court of Appeal has jurisdiction over appeals from “any judgment or order of the High Court in any civil cause or matter”, subject to the provisions of the SCJA or “any other written law regulating the terms and conditions upon which such appeals may be brought”:

[8] Section 34(1) of the SCJA sets out the matters which are non-appealable, while s 34(2) sets out the matters which are appealable only with leave:

[9] In addition to listing the matters that are only appealable to the Court of Appeal with leave, s 34(2)(d) of the SCJA further refers to the Fifth Schedule of the SCJA, which lists the orders made by a Judge that are only appealable to the Court of Appeal with leave of a Judge:

[10] The Respondent made three arguments as to why the Appellant was required to apply for leave to appeal from the High Court in order to file an appeal against the Judge’s refusal to grant leave to commence judicial review. We shall examine each of these three arguments, starting with the second argument. We shall also examine one of the Appellant’s arguments.

[11] The Respondent’s second argument was that leave to appeal was required because the Appellant’s application for leave to commence judicial review was an “interlocutory application” within the meaning of paragraph (e) of the Fifth Schedule of the SCJA. Paragraph (e) of the Fifth Schedule of the SCJA is a catch-all provision which prescribes a blanket requirement of leave to appeal against orders made in all “interlocutory application[s]” which are not specifically exempted from the requirement for leave. The Respondent argued that the Appellant’s application for leave to commence judicial review was an “interlocutory application” because, being an application for leave, it was simply a preliminary step to the substantive application for judicial review. Moreover, an application for leave to commence judicial review is “interlocutory” because the application must be made by an ex parte originating summons, ie, where a respondent may not even be heard on the application.

[12] Furthermore, the Respondent argued that the Appellant itself had proceeded on the basis that its application for leave to commence judicial review was an interlocutory proceeding because all of its affidavits in support of the application for leave stated that they contained statements of information or belief. Order 41 r 5 of the ROC provides that “[a]n affidavit sworn for the purpose of being used in interlocutory proceedings may contain statements of information or belief with the sources and grounds thereof”. Therefore, the Appellant’s reliance on hearsay evidence is consistent with the Respondent’s contention that the Appellant’s application was an “interlocutory application”.

[13] We could not accept the Respondent’s second argument for these reasons. First, even if the Appellant had thought that the application for leave to commence judicial review was an interlocutory proceeding, and hence its affidavits contain hearsay evidence permitted under O 41 r 5, such a belief or understanding on the part of the Appellant carries little weight and can hardly be determinative. If the Appellant’s understanding was wrong, it remained wrong. It cannot be thereby rendered right. There is no question of estoppel arising. We accept that the Appellant’s subjective belief as to whether “interlocutory application” in paragraph (e) of the Fifth Schedule of the SCJA includes an application for leave to commence judicial review is only germane in so far as it is a view which this court should consider in ascertaining the correct meaning of the expression “interlocutory application” in the context of the SCJA.

[14] Second, the Respondent’s contention that an application for leave to commence judicial review is “interlocutory” because the application is simply a preliminary step to the substantive application for judicial review, and must be made by ex parte originating summons, does not really assist the Respondent. The expression “interlocutory application” is not defined in the SCJA. According to Jowitt’s Dictionary of English Law, “[a] proceeding or application is interlocutory when it is peripheral to the main hearing determining the outcome of the case, whether before or after judgment” (see Jowitt's Dictionary of English law (Daniel Greenberg gen ed) (Sweet & Maxwell, 2010) at p 1215). Another dictionary defines “interlocutory applications” to mean “in the meantime; is a request made to the court, or to a Judge for its interference in a matter arising in the progress of a cause or proceeding” (Anandan Krishnan, Words, Phrases & Maxims Legally & Judicially Defined (LexisNexis, 2008) at para I0990). These definitions do not resolve the issue. On these definitions, it is doubtful if the plain and ordinary meaning of “interlocutory application” could encompass a pre-action application such as the present application for leave to commence judicial review, where there is no “main hearing determining the outcome of the case” to begin with. More importantly, a purposive reading of the SCJA as elaborated below reveals that “interlocutory application” in the context of paragraph (e) of the Fifth Schedule of the SCJA does not include an application under O 53 r 1 for leave to commence judicial review. For the purpose of the discussion below, we shall use the general expression of “interlocutory application” to mean any application that is made before the substantive trial.

[15] Third, this court should give the expression “interlocutory application” in paragraph (e) of the Fifth Schedule of the SCJA an interpretation that would promote the purpose underlying the SCJA. Section 9A(1) of the Interpretation Act (Cap 1, 2002 Rev Ed) provides that:

[16] According to s 9A(2) (read with s 9A(3)(c)) of the Interpretation Act, consideration may be given to a piece of material which is “capable of assisting in the ascertainment of the meaning of the provision”, including “the speech made in Parliament by a Minister on the occasion of the moving by that Minister of a motion that the Bill containing the provision be read a second time in Parliament”. At the Second Reading of the Supreme Court of Judicature (Amendment) Bill 2010 (Singapore Parliamentary Debates, Official Report (18 October 2010) vol 87 cols 1367­­–1395), which eventually brought into being s 34(2)(d) and the Fifth Schedule of the SCJA through the enactment of the Supreme Court of Judicature (Amendment) Act (No 30 of 2010) (“Act 30 of 2010”), the Senior Minister of State for Law, Associate Professor Ho Peng Kee (“the Minister”), stated:

[17] This part of the Minister’s statement underscored the fact that normally, “interlocutory applications” relate to procedural matters with the view to preparing the case for trial. However, it does not follow that an “interlocutory application” in the context of the SCJA will always be for that purpose, viz, preparing the case for trial. This is because an application for summary judgment, or for the striking out of an action, is no less an “interlocutory application”, as can be seen from paragraph (e) of the Fifth Schedule, even though such applications do not “prepare the case for the hearing”. Later in the same speech, the Minister further explained thus:

[18] The rationale behind the calibrated approach mentioned by the Minister is really to ensure that in general, a decision of a High Court judge in an interlocutory application is not unnecessarily taken all the way to the Court of Appeal, leading to a waste of judicial time. In short, the purpose underlying the SCJA regarding the right to appeal is that an appeal to the Court of Appeal will generally be as of right for orders made at interlocutory applications which have the effect of finally disposing of the substantive rights of the parties; while an appeal to the Court of Appeal will ordinarily be denied for orders made at interlocutory applications which do not finally dispose of the substantive rights of the parties, and which are deemed to involve established principles of law. The middle category which consists of orders made at interlocutory applications which lie in the middle of these two extreme situations may be appealed to the Court of Appeal only with leave of court. (see Teo Guan Siew, “Recent Amendments to the Supreme Court of Judicature Act and the Subordinate Courts Act”, Singapore Law Gazette (January 2011)) at 16-21).

[20] Another example would be an application to amend a pleading. Paragraph (g) of the Fourth Schedule provides that no appeal shall be brought to the Court of Appeal where a Judge makes an order giving leave to amend a pleading in general, since the order does not finally dispose of the substantive rights of the parties. On the other hand, where a Judge makes an order refusing leave to amend a pleading, the consequence of that order would be that material facts and causes of action or defences that are sought to be raised would not be adjudicated upon, and this may have serious consequences on the substantive rights of the party which sought to make that amendment. Because of that, paragraph (a) of the Fifth Schedule only allows an appeal against such refusal to the Court of Appeal provided that leave of court is obtained.

[21] As the Minister explained, the amendments brought about by Act 30 of 2010 introduced a new category-approach regime based on the type of interlocutory application and the eventual order made thereon. The question as to which of the three categories an order made in an interlocutory application would fall within is critical. As for the present application which the Appellant had initiated by way of an originating summons (“OS”), the very relief sought in the OS was to obtain leave to commence proceedings for judicial review. This was all that was sought in the OS, which had been refused. In refusing leave to commence judicial review, the substantive issue in the OS had been decided upon by the Judge. There was nothing more to proceed on. The substantive rights of the parties had come to an absolute end unless there could be an appeal. Therefore, the application made by the Appellant in the OS did not come within the meaning of “interlocutory application” under paragraph (e) of the Fifth Schedule of the SCJA. As the Minister had explained in Parliament, the Fourth and Fifth Schedules of SCJA were concerned with interlocutory applications. Accordingly, no leave of court was needed by the Appellant in order to file an appeal against the decision of the Judge in refusing to grant leave to enable the Appellant to commence judicial review.

[22] The Respondent’s first argument was that leave to appeal was required pursuant to O 53 r 8 of the ROC (“O 53 r 8”) which reads as follows:

[23] According to the Respondent, O 53 r 8 requires that an appeal against a Judge’s order in an application for leave to commence judicial review has to be made in the same manner as an appeal against an interlocutory order of a Judge made in other proceedings. The manner in which an appeal against an interlocutory order is to be made is specified by s 34(2)(d), read with paragraph (e) of the Fifth Schedule, of the SCJA, which provide a blanket requirement of leave for all “order[s] at the hearing of any interlocutory application” which are not specifically exempted from the requirement for leave. Therefore, the Appellant here was required to apply for leave from the High Court to appeal against the Judge’s refusal to grant leave to commence judicial review.

[24] Furthermore, the Respondent argued that if “interlocutory application” under paragraph (e) of the Fifth Schedule of the SCJA does not include an application for leave to commence judicial review by way of an OS, O 53 r 8 would be rendered nugatory and otiose. The fact that O 53 r 8 was retained and renumbered after the amendments to s 34 of the SCJA were enacted shows that the requirement for leave to appeal was applicable to the orders made under O 53. If this were not the case, there would have been no reason to retain O 53 r 8.

[25] We will begin our analysis by first comparing the present O 53 r 8, which came into being in 2002, with its predecessor provision, ie, the previous O 53 r 7 of the Rules of Court (Cap 322, R 5, 1997 Rev Ed) (“the previous O 53 r 7”). The previous O 53 r 7 provided that if leave to commence judicial review had been refused by the High Court Judge, the dissatisfied applicant could make a second application for leave to the Court of Appeal, instead of filing an appeal against the refusal of the judge:

[26] Before the present O 53 r 8 was introduced in 2002, the then s 34(1)(c) of the SCJA provided that no appeal shall be brought to the Court of Appeal “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”. The effect of the previous O 53 r 7, read with the then s 34(1)(c) of the SCJA, was that a party who was dissatisfied with the judge’s refusal to grant leave to commence judicial review did not have to fulfil the requirement under the then s 34(1)(c) by writing in to the judge to request for further arguments so as to be able to appeal against that order. Instead, the dissatisfied applicant could make a second application for leave to the Court of Appeal, without filing an appeal against the judge’s refusal to grant leave to commence judicial review.

[27] The previous O 53 r 7 was amended in 2002 to what we see is now O53 r 8. How was O 53 r 8 (which was numbered as O 53 r 7 in 2002) to be read with the then s 34(1)(c)? It seems clear to us that it meant that the recourse available to a dissatisfied party in an application for leave to commence judicial review was that of an appeal to the Court of Appeal, and the dissatisfied applicant could no longer make a second application to the Court of Appeal for leave to commence judicial review. Further, by providing that the appeal shall be made as in the case of an “interlocutory order”, the effect of O 35 r 8 was that the requirement for further arguments in the then s 34(1)(c) of the SCJA applied. In other words, the dissatisfied party must first, within seven days, write to the judge to hear further arguments; and only if the judge should refuse to hear further arguments that he could appeal to the Court of Appeal. If the judge should agree to hear further arguments, and if on such further hearing he should decide to stick by his earlier decision, the dissatisfied applicant would be entitled to appeal as of right to the Court of Appeal.

[28] Now, the amendment to the SCJA in 2011 (brought about by Act 30 of 2010) has repealed s 34(1)(c). It is pertinent to note that during the second reading of the Bill which led to the enactment of Act 30 of 2010, the Minister stated that the requirement for further arguments in the then s 34(1)(c) of the SCJA was merely a “technical requirement” which was removed:

[29] With the repeal of the then s 34(1)(c) in the light of the above statement of the Minister, the question which now arises for consideration is how should O 53 r 8 be construed? As explained earlier at [27], the reference to “interlocutory order” in O 53 r 8 was to link it with the then s 34(1)(c) of the SCJA so that the dissatisfied party in an application for leave to commence judicial review must first, within seven days, write to the judge to hear further arguments before an appeal may be filed. Now that s 34(1)(c) has been repealed, there is no longer a reference to an “interlocutory order” in the SCJA. Therefore, it seems that the reference to “interlocutory order” in O 53 r 8 is no longer meaningful, but a relic of the past. Perhaps the Rules Committee may wish to have another look at O 53 r 8 to see how it could be better synchronised with the scheme under the present s 34, and Fourth and Fifth Schedules of SCJA. If we bear in mind the rationale for the three category appeal approach, then for the reasons which we have alluded to earlier at [18] to [21], the Appellant here should be entitled to lodge an appeal as of right. The refusal by the Judge to grant leave to the Appellant to commence judicial review had brought the proceedings to an abrupt and absolute end. A historical informed view of O 53 r 8, including the reference to “interlocutory order” therein, does not undermine the strong parliamentary intention that an appeal to the Court of Appeal will remain as of right for orders made at interlocutory applications which will finally dispose of the substantive rights of the parties.

[30] The Respondent’s third argument is that there are compelling reasons why leave is required in order to appeal against a refusal by a judge to grant leave to commence judicial review. An application for leave to commence judicial review is refused because the applicant has failed to pass the low threshold of showing an “arguable or prima facie case of reasonable suspicion”, or that there are serious flaws with the application. If the applicant could not even satisfy such a low threshold, then such an application should not be allowed to invoke the Court of Appeal’s jurisdiction as of right. Otherwise, that would defeat the key purpose of the application for leave to commence judicial review, which is to prevent a wasteful use of judicial time.

[31] While we see the drift of this argument, the fact remains that the decision of the Judge to refuse leave would bring to an end the Appellant’s attempt to challenge the decision of the Respondent. Unless it is shown that the right of a party to appeal against a decision of the High Court is statutorily curtailed, that party would be entitled to appeal to the Court of Appeal.

[32] As we have stated at [21] above, the Appellant’s application for leave to commence judicial review under O 53 is not an “interlocutory application” under paragraph (e) of the Fifth Schedule of the SCJA, and the Appellant did not have to seek leave to appeal from the High Court Judge before appealing to the Court of Appeal. The policy reason cited by the Respondent is only relevant in so far as it could assist in arriving at a purposive interpretation of the relevant provisions. In view of the clear purpose underlying the relevant provisions in the SCJA, this policy reason advanced by the respondent carries little weight.

[33] There remains just one of the Appellant’s arguments which we would like to touch on briefly, even though it would not affect the decision which we had made in this case. The argument is that no leave of court is required to appeal against the Judge’s order refusing leave to commence judicial proceedings because the order in question falls within the exception in paragraph (e)(iv) of the Fifth Schedule of the SCJA. According to the Appellant, paragraph (e)(iv) stipulates that leave is not required where the order made was to dismiss an action or a matter commenced by writ of summons or by any other originating process.

[34] Paragraph e)(iv) of the Fifth Schedule of the SCJA provides as follows:

[35] On the face of it, we can see the sense of the argument here – that since the Judge dismissed the appellant’s application for leave to commence judicial review, and the application for leave to commence judicial review was initiated by an originating summons, the present case should fall within the exception in paragraph (e)(iv), and no leave of court is required.

[36] However, we agree with the Respondent’s contention that this argument is flawed. Paragraph (e)(iv) only applies where a judge makes an order pursuant to an application to dismiss an action or a matter commenced by writ of summons or by any other originating process. There are two essential prerequisites. First, there must be an application by the opposing party. Second, that application must be to ask the court to dismiss the action or matter claimed in the writ of summons or any other originating process. The present case satisfied none of these two prerequisites. Accordingly, we could not accept the argument that paragraph (e)(iv) applied here.