QU v QV

[1] This was an appeal against the decision of the High Court judge (“the Judge”) in QU v QV [2007] 4 SLR 588 (“the GD”) affirming a committal order made by the District Court (“the Committal Order”) in QV v QU [2006] SGDC 290.

[2] This appeal raised a very simple but important issue, namely, whether a person could be committed for contempt of court for not obeying an order of court which did not specify a time for compliance with its terms. At the conclusion of the hearing, we allowed the appeal and ordered the Committal Order to be set aside on the ground that it was predicated upon the breach of a court order which did not specify a time for compliance. We now give the full reasons for our decision.

[3] Sometime in early 2004, the respondent in this appeal commenced divorce proceedings against his wife, the appellant. A decree nisi was granted in July 2004. On 24 January 2005, the respondent obtained an ancillary order of court (“the Ancillary Order”) which provided, inter alia, as follows:

[4] The appellant came to know about the Ancillary Order in August 2005 and applied to set it aside. Prior to that, in June 2005, the respondent had applied, via Originating Summons Family No 98 of 2005 (“OSF 98/05”), for an order that the appellant return the child to his lawful custody, care and control pursuant to the Ancillary Order. At the hearing of OSF 98/05 on 22 August 2005, District Judge Shobha Nair adjourned the application pending the outcome of the appellant’s application to set aside the Ancillary Order (“the setting-aside application”), and also ordered that the status quo be preserved in the interim, subject to the appellant giving the respondent daily access to the child.

[5] Sometime in March 2006, District Judge Nair clarified that her earlier order of 22 August 2005 was to continue only until the outcome of the setting-aside application and not until the next hearing of OSF 98/05. On 7 March 2006, the setting-aside application was dismissed by District Judge Carol Ling. The appellant appealed against District Judge Ling’s decision to the High Court, which dismissed her appeal on 26 April 2006.

[6] Even after the High Court had dismissed her appeal, the appellant did not comply with the Ancillary Order. On 28 April 2006, the respondent applied for leave to commit the appellant for breach of the Ancillary Order. Leave was granted. Prior to the hearing of the committal application, the appellant handed the child’s passport to her solicitors on 5 May 2006 to hold as stakeholders. She also handed custody of the child to the respondent on 10 May 2006, but continued to retain the child’s birth certificate.

[8] The appellant appealed to the High Court. The Judge dismissed her appeal for the reasons set out below (see the GD at [23]–[24]):

[9] The appellant’s main argument was that O 45 r 5(1) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) clearly stated that committal proceedings for disobeying a judgment or order could only be commenced, with the leave of the court, where the judgment or order had specified a time within which it had to be complied with. Absent such a stipulation, no leave could be given, and the party wishing to enforce the judgment or order must apply to court to amend the judgment or order to specify the time frame for compliance.

[10] In his reply, counsel for the respondent supported the reasoning of the Judge in holding the appellant to be in contempt of court by reason of O 42 r 6 of the Rules of Court and also s 52 of the Interpretation Act (Cap 1, 2002 Rev Ed).

[11] At the conclusion of the hearing, we allowed the appeal and set aside the Committal Order as it was clear to us that the lower courts had misconstrued the scope of both O 42 r 6 of the Rules of Court and s 52 of the Interpretation Act, and had also failed to give effect to the clear words of O 45 r 5(1).

[12] In our view, O 42 r 6 of the Rules of Court has to be read with O 45 r 6 to determine its scope. Order 42 r 6 provides as follows:

[13] Order 42 r 6 of the Rules of Court corresponds with O 42 r 2 of the former Rules of the Supreme Court 1965 (SI 1965 No 1776) (UK) (“the RSC”), the scope of which was described in Nigel Lowe & Brenda Sufrin, The Law of Contempt (Butterworths, 3rd Ed, 1996) at pp 604–605 as follows:

[14] A similar approach was taken in Kumari v Jalal [1997] 1 WLR 97, where the Court of Appeal in England said (at 101):

[15] Singapore Civil Procedure 2007 (G P Selvam ed) (Sweet & Maxwell Asia, 2007) contains a passage to the same effect. At para 45/5/1, it is noted:

[16] Section 52 of the Interpretation Act provides that “[w]here no time is prescribed or allowed within which anything shall be done, that thing shall be done with all convenient speed and as often as the prescribed occasion arises”. In our view, s 52 is not intended to apply to a judgment or order, the breach of which will expose the party in default to committal proceedings; otherwise, O 45 rr 5(1)(a), 5(2) and 6(2) of the Rules of Court would be rendered redundant.

[17] Order 45 rr 5(1) and 5(2) provide as follows:

[18] Order 45 r 6 provides as follows:

[19] There appears to be no local judicial decision on the question whether a party can be punished for contempt of court for disobeying a court order directing him to do a positive act (such as the acts to be done by the appellant under the Ancillary Order in the present appeal) where that court order does not specify a time for doing the act in question. However, in our view, the answer seems obvious as a matter of law and justice in the context of the power to punish a person for contempt of court by imprisonment or imposition of a penalty. It is contrary to all notions of justice that a person could or should be punished for omitting to do an act stipulated in a court order when he does not know or is not certain when such omission constitutes a breach of the court order. In the present case, it is true that the appellant had plenty of time to deliver the child’s birth certificate to the respondent, but, in our view, the meaning of O 45 r 5(1)(a) should not be determined on the facts of a specific case. That rule is explicit in its prescription that a court order requiring a person to do an act must specify a time frame for doing that act before the party subject to the court order can be committed for breaching it.

[20] We are aware that in Allport Alfred James v Wong Soon Lan [1992] 2 SLR 385, the Court of Appeal held that O 45 r 7(4) of the Rules of the Supreme Court 1970 (the equivalent of the present O 45 r 7(4) of the Rules of Court) need not be complied with before a person subject to a court order to abstain from doing an act could be committed for breach of such an order. That case concerned the failure to include a penal notice in an interim injunction restraining the wife in a divorce petition from disposing of the net proceeds of sale of the matrimonial property. The Court of Appeal held that a party breaching such an order could still be committed for contempt so long as he or she had notice of the order.

[21] But, in our view, there is a great difference between being required to abstain from doing an act altogether and being required to do an act within a specified time. In the former scenario, time is not critical because the failure to abstain from doing the act at any time is a breach of the order. In the latter scenario, however, the party has not been told by when he must do the act. Imputing a reasonable time to the doing of the act does not help because whether or not there is a breach depends on what the court considers to be reasonable. In short, to commit a person to gaol or to a fine for breaching an order of court that lacks certainty is contrary to our established notions of justice. In Allport Alfred James v Wong Soon Lan [1988] SLR 987, Chao Hick Tin JC said at 989, [8] that the court’s power to punish a person for civil contempt was quasi-criminal in nature, and where any procedural step for the exercise of that jurisdiction was prescribed, that rule should be scrupulously observed and strictly complied with. We agree with him.