WHEN SHOULD APPEALS BE MADE TO THE COURT OF APPEAL
In Seow Fook Sen Aloysius v Rajah & Tann Singapore LLP [2022] SGCA 40, the Court of Appeal took the opportunity to provide guidance on when appeals should be made to the Court of Appeal after the establishment of the Appellate Division of the High Court.
Facts. Pursuant to the 2019 amendments, the Supreme Court of Judicature Act 1969 (2020 Rev Ed) (“the SCJA”) established the Appellate Division of the High Court and provided for the allocation of appeals between the Court of Appeal and the Appellate Division (at [1]).
The present application (“OS 5”) was brought by Mr Seow Fook Sen Aloysius (“Mr Seow”) for leave to appeal against the decision of a judge in the General Division in OS 1185 (at [2]).
It suffices to note that OS 1185 was an application by Mr Seow for an order for taxation of a bill of costs under s 120 of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“the LPA”), in relation to Hin Leong Trading Pte Ltd’s (“HLT”) engagement of Rajah & Tann Singapore LLP (“R&T”) for some corporate restructuring work, and that HLT has since been wound up (at [3] – [4]).
The Preliminary Issue: Appellate Division or Court of Appeal? A preliminary issue before considering the leave application proper was whether the application should be made to the Appellate Division of the High Court or to the Court of Appeal (as Mr Seow did).
This is because sections 29C(1) and (2) of the SCJA provide that an appeal against a decision of the General Division in the exercise of its original or appellate civil jurisdiction is to be made to the Appellate Division and not to the Court of Appeal, unless provided for by the Sixth Schedule to the SCJA or any other written law (at [5]).
Mr Seow made his application to the Court of Appeal relying on para 1(d) of the Sixth Schedule, which provides for appeals arising “… from a case relating to the insolvency, restructuring or dissolution of a corporation … (even if the appeal does not raise any issue relating to the law concerning the insolvency, restructuring or dissolution of a corporation …) …” (at [5] – [6]).
The Sixth Schedule to the SCJA. The Court of Appeal considered the proper scope of the Sixth Schedule to the SCJA and classified into three categories the appeals which are to be made to the Court of Appeal by default (at [7]).
We set out the Court of Appeal’s classification below in full as they are important:
“(a) First, where the appeal “arises from a case relating to” specified subject matter, such as constitutional or administrative law, contempt of court, the law of arbitration, insolvency or the law of patents. This is provided for in paras 1(a)‒(e) of the Sixth Schedule. Importantly, as the words in parentheses in paras 1(a)‒(e) make clear, even if the appeal itself does not raise issues relating to specified subject matter, so long as it “arises from a case relating to” that subject matter, it will nevertheless come within the Sixth Schedule.
(b) Second, where the appeal is against particular decisions of the General Division, such as a decision of the Singapore International Commercial Court (“SICC”) (see para 1(f)), a decision made under the Parliamentary Elections Act 1954 (see para 1(g)), a judgment or order made in an action brought under s 47(8) of the Presidential Elections Act 1991 (see para 1(h)), or a decision made under the Mediation Act 2017 or the Singapore Convention on Mediation Act 2020 (see paras 1(k) and (l)).
(c) Third, where the appeal is to be made to the Court of Appeal under written laws (see paras 1(i) and (j)).”
The Court of Appeal considered Noor Azlin bte Abdul Rahman and another v Changi General Hospital Pte Ltd [2021] 2 SLR 440 and the Parliamentary Debates (at [8]), before explaining (at [11]) that:
“… Parliament has recognised the subject matter specified in paras 1(a)‒(e) as that which will either involve issues of importance and so will require and benefit from consideration by the Court of Appeal, or which represent areas of law that concern questions of public interest or which serve other strategic purposes so that the appeal benefits from the guidance or the stature of the apex court … there must be something in the appeal which makes it necessary for the apex court of the land to hear it.”
(Emphasis by the Court of Appeal)
The Court of Appeal observed that “this finds expression in the specified subject matter identified in paras 1(a)‒(e): matters of constitutional and administrative law or the law of contempt necessarily raise questions of public interest, while arbitration and insolvency law are crucial to bolstering Singapore’s status as a dispute resolution or debt restructuring hub.” (at [15])
Paras 1(a) – (e). In this regard, the criteria “… relating to the second and third category of appeals are relatively more straightforward in that they involve a purely factual inquiry” (at [9]).
But for the first category, “there must be something more” (at [12]; emphasis by the Court of Appeal). This is because otherwise “a factual relationship between a case and any of the specified subject matters, however tangential, would suffice.” (at [10]; emphasis by the Court of Appeal).
So, what is that “something more”? This is set out at [13] as being something that is “… legally relevant to and/or has some bearing on the reliefs or orders which were sought at first instance.” We set out the paragraph in full below:
“13 With these considerations in mind, we consider that “a case relating to” a specified subject matter in paras 1(a)-(e) is one where the latter is legally relevant to and/or has some bearing on the reliefs or orders which were sought at first instance. In hearing an appeal from a decision by the court of first instance to either grant or deny the reliefs or orders sought (as the case may be), an appellate court will very likely have to consider issues relating to the specified subject matter which, by their nature, are deemed by Parliament to be of importance and so will require and benefit from consideration by the apex court of the land (see [11] above). That in turn renders it necessary for the appeal to be heard by the Court of Appeal. Put simply, at the very least, some reasonable relationship must be established between the specified subject matter and the “case” from which the appeal arises, whether with regard to the legal issues therein or the application of the law to its facts, in the court below, so that either or both of which may arise for consideration in the appeal. For example, in the context of para 1(d), with which we are presently concerned, the “case” from which the appeal arises must concern a fact situation which involved the rules and principles relating to the law of insolvency, so that in the appeal, the Court of Appeal is also either called upon to decide a principle or rule relating to the law of insolvency (thereafter applying it to the facts concerned), or at the very least, apply an established principle or rule relating to the law of insolvency to the facts.”
(emphasis by the Court of Appeal)
The Court of Appeal then gave the example of an appeal involving the question of whether a winding-up order should be set aside on grounds of non-disclosure of material facts or abuse of process at [14], and stated that as such an appeal would involve the appellate court applying principles or rules of winding-up to the facts in question, “… issues of importance will nonetheless arise in the appeal, and it is not any less necessary for such an appeal to be heard by the apex court of the land.”
Words in parentheses at Para 1(a) – (e) of the Sixth Schedule. As for the words in parentheses for paras 1(a)‒(e) of the Sixth Schedule, the Court of Appeal held at [15] – [16] that:
They make clear that the satisfaction of the criteria in paras 1(a)‒(e) of the Sixth Schedule should not be contingent on the identity of the issues raised in the appeal; and
They do not broaden the scope of paras 1(a)‒(e) – if, in the court of first instance, the fact situation in the case does not involve any application of the rules and principles relating to the specified subject matter at all, then the criteria necessarily cannot be satisfied.
Decision. On the facts, the Court held that it was not shown that “the insolvency, restructuring or dissolution of HLT (being the “corporation” for the purposes of para 1(d)) is relevant to or has some bearing on the reliefs or orders which were sought in OS 1185.” (at [17])
This is because whether an order for taxation under s 120 of the LPA was to be granted turned solely on matters which exist as between Mr Seow and R&T, and not on HLT’s insolvency nor the principles and rules of the law of insolvency. Therefore, the “case” and Mr Seow’s intended appeal did not come within para 1(d) of the Sixth Schedule.
Accordingly, Mr Seow’s intended appeal, as well as OS 5 (being the application for leave to appeal), ought to have been made to the Appellate Division, which has exclusive jurisdiction over that appeal (at [18]).
The Court of Appeal therefore dismissed OS 5 on the basis that the court has no jurisdiction to consider Mr Seow’s leave application (at [19]).
Significance. The Court of Appeal’s guidance is important in understanding the allocation of appeals under the SCJA. As stated by the Court of Appeal, this judgment provides guidance for counsel on how to navigate the new statutory scheme introduced by the Supreme Court of Judicature (Amendment) Act 2019 (Act 40 of 2019) which established the Appellate Division of the High Court and the statutory scheme in the Supreme Court of Judicature Act 1969 (2020 Rev Ed) on the allocation of appeals between the Court of Appeal and the Appellate Division of the High Court.
This was why although OS 5 was dismissed, the Court of Appeal “accept[ed] that it is understandable that Mr Seow filed OS 5 in the Court of Appeal, and for R&T not to have opposed the application on jurisdictional grounds” and made no orders as to costs “[g]iven the relative infancy of the statutory scheme for the allocation of appeals under the SCJA and the consequential relative absence of guidance from the courts…” (at [19]).
Nevertheless, the Court of Appeal cautioned that moving forward, if an application made to the Court of Appeal is “unambiguously and unarguably failing to come within any of the categories in the Sixth Schedule, the application will be visited with adverse cost consequences unless the applicant is otherwise justified in doing so.” (at [20])
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