Second Reading Speech by Senior Minister of State for Law, Mr Edwin Tong, on Supreme Court of Judicature (Amendment No.2) Bill

2 Oct 2018 Posted in Parliamentary speeches and responses

Mr Speaker,

1. I beg to move, ‘That the Bill be now read a Second time’.

1. Introduction

2. Mr Speaker, the Supreme Court of Judicature (Amendment No.2) Bill introduces amendments to achieve two desired outcomes:
   1. First, it streamlines court procedures to enhance efficiency, introduce flexibility in order to meet shifting trends and also accommodate the needs of individual cases; and
   2. Second, it empowers the courts to better manage vexatious or tardy conduct in proceedings.

3. In the main, the amendments will allow the courts to operate more effectively and efficiently, without compromising access to justice. This ensures that judicial resources are better allocated, and results in time and cost savings for litigants and lawyers alike.

4. I will now take the House through the key features of the Bill.

2. Tailor court procedures to reflect shifting trends and to accommodate the needs of individual cases

Enabling court hearings via electronic means

5. Technology has significantly changed the way we live and conduct our affairs. With the advancement of technology, we are able to accomplish tasks in a much faster and efficient manner. Similarly, if used meaningfully, technology has the ability to also make a positive impact on the way our courts function.

6. Clause 2 of the Bill therefore provides that the courts can conduct hearings via electronic means, such as live video link or live television link. Previously, apart from the provision of evidence by witnesses in civil proceedings, the law did not provide for the general conduct of hearings through electronic means. With this amendment, legal proceedings which do not require the physical presence of parties or their lawyers in court can be conducted quickly and more efficiently via electronic means. This enhances the court process, and saves time.

Court of Appeal can determine a broader range of matters based on written submissions

7. The Bill also grants the courts various powers so that they can swiftly dispose cases in the most appropriate manner. Let me touch on a few of these provisions.

8. First, clause 6 of the Bill expands the range of cases that can be decided based on written submissions. At present, the Court of Appeal may decide any application for leave to appeal based on written submissions. Under this provision, it is proposed that the Court of Appeal can determine (i) any application, and (ii) in circumstances where parties consent, appeals from the Singapore International Commercial Court, based on written submissions.

9. The amendment only empowers the Court of Appeal to decide any application to it without hearing oral arguments. So an application in contrast to a substantive appeal. The scope of this amendment does not extend to cover other substantive appeals, except for those which emanate from the SICC and even then in situations where the parties agree.

10. Where the Court of Appeal is of the view that even with this power oral arguments are necessary, it will continue to retain the power to, and will in fact hear such oral arguments before deciding the application or appeal.

Court of Appeal has the power to summarily dismiss certain matters

11. Second, clause 7 empowers the Court of Appeal on its own motion to summarily dismiss certain matters in two situations:
    1. First, where the Court lacks jurisdiction to hear and determine the appeal or application; or
    2. Second, where there is no merit in the appeal or application because the issue has been decided by the Court of Appeal in an earlier matter in which the appellant or applicant was involved.

12. This clause allows unmeritorious appeals or applications to be dismissed without expending unnecessary judicial time and resources. However, safeguards are put in place to ensure that the interests of the appellant or applicant are adequately protected.
    1. In this regard, before a court can summarily dismiss an appeal or application, it must give the appellant or applicant a reasonable opportunity to show cause as to why the appeal or application should not be dismissed and consider the representations of the appellant or applicant.

Admission of further evidence on appeal except where matters occurred subsequent to the date of decision

13. Next, we are also proposing amendments in relation to the admission of further evidence on appeal.

14. At present, further evidence can be admitted, on appeal, without leave of court (i) in relation to interlocutory applications; and (ii) where matters occurred subsequent to the date of earlier decision.

15. In line with efficient judicial administration, parties should be encouraged to present all relevant evidence at the first instance hearing so that the cases can be disposed fairly and efficiently and also comprehensively based on the available evidence. This is, of course, with the exception of matters or evidence which occurred after the date of decision as parties would obviously not have known about it.

16. Therefore in this vein:
    1. Clause 9 of the Bill proposes that leave of court would be required before an application can be made to admit further evidence on appeal, except for matters which occurred subsequent to the date of decision.
    2. This means that parties who seek to admit further evidence on interlocutory applications will now require leave of court in order to do so.
    3. This will ensure that only meritorious applications to adduce further evidence will be allowed to proceed.

Leave of court is required to make an application to discharge or vary directions or orders made under section 36

17. In the same vein, clause 8 introduces a new requirement for leave of court to make an application to discharge or vary incidental directions or orders made by the court under section 36 of the Act. This is in respect of directions or orders which are ancillary to the main appeal and are unlikely to touch on the substantive merits of the case. The requirement for leave of court ensures that court resources would be directed appropriately to deal only with meritorious applications to discharge or vary.

18. In deciding whether to grant leave or not for a party to vary or discharge a direction or order under section 36, the Court of Appeal will consider if such directions and orders are in fact ancillary to the appeal, or whether they go to the merits of the appeal. Leave would be granted where it would be in the interest of justice to do so.

Minister will be allowed to specify certain matters in a Schedule

19. Next, the Bill also seeks to introduce flexibility and efficiency in the court processes to allow for cases to be heard expeditiously, and also have regard to the various shifting trends that may arise.

20. In this regard, clauses 4 and 5 of the Bill introduce amendments to allow for matters relating to
    1. the coram of the Court of Appeal, and
    2. as to which matters are non-appealable or only appealable with leave to the Court of Appeal,
    to be moved from the primary Act to the Fourth to Sixth Schedules.

21. As to the coram of the Court of Appeal, section 30(1) of the Act states that the civil jurisdiction of the Court of Appeal shall be exercised by 3 or any greater uneven number of Judges of Appeal. Section 30(2) sets out the types of matters which can be determined by a Court of Appeal consisting of 2 Judges of Appeal.

22. Clause 4 of the Bill will seek to introduce a new Sixth Schedule which would set out the number of judges that would be required to exercise the civil jurisdiction of the Court of Appeal for different matters, as specified in that Schedule. The members can be assured that when matters are moved into the Sixth schedule, they will continue to reflect the current position that is based on section 30.

23. As regards appeals on certain matters, the current s 34(1) and the Fourth Schedule set out the matters which are non-appealable to the Court of Appeal, while s 34(2) and the Fifth Schedule set out the matters which are appealable only with leave to the Court of Appeal.

24. By clause 5 of the Bill, matters which are non-appealable will now be set out in the Fourth Schedule, and matters which are appealable only with leave will be set out in the Fifth Schedule. Part of the amendments seek to consolidate all the items into one Schedule rather than have them appear in parts of the Bill and in the existing Schedule. The only exception to this would be s 34(2)(a), which sets out the jurisdictional monetary limit and threshold. This, because it deals with the question of jurisdictional monetary limit, will remain in the primary Act.

25. These amendments allow for a quicker revision of each of the above categories as amendments of the primary legislation would require more time to effect rather than the amendment of the Schedule itself. Placing these matters in the Schedules therefore allows more flexibility and speed as they can be amended by the Minister, in consultation with the Chief Justice. The Schedules can be revised swiftly to ensure an efficient allocation of judicial resources can be balanced against the volume of appeals, so that the Court of Appeal can handle deserving cases expeditiously.

Other technical amendments

26. Let me touch on two further amendments in relation to:
    1. the monetary threshold for appeals from the District and Magistrates’ Courts; and
    2. the Rules Committee being empowered to make rules relating to the manner in which evidence is to be adduced.

27. On the first point, clause 3 increases the monetary threshold to $60,000 for decisions of the District and Magistrates’ Courts which are appealable with leave to the High Court.

28. At present, as some members may know, decisions of the District and Magistrates’ Courts are appealable to the High Court with leave if the amount in dispute does not exceed $50,000. However, the jurisdiction of the Magistrates’ Court is set at $60,000, which means cases with claim values between $50,000 and $60,000 would be appealable to the High Court without leave. The proposed amendment seeks to ensure consistency and provides that there will be no automatic right of appeal for cases that fall between the $50,000 and $60,000 range.

29. As to the second point, clause 14 seeks to clarify that under section 80(2)(h), the Rules Committee is empowered to make rules relating to the manner in which factual, expert or opinion evidence is to be presented in court.

3. Empowers the courts to better manage vexatious or tardy conduct in proceedings

30. I will now turn to the next basket of amendments that deal with vexatious proceedings and tardy conduct in legal proceedings.

Measures for dealing with vexatious proceedings and vexatious litigants

31. Vexatious litigation is a drain on our court resources. They draw away precious court time from dealing with meritorious applications. The Court of Appeal has had the opportunity to define vexatious proceedings in recent case law, and these amendments do not seek to change that. Broadly, vexatious proceedings are those which are groundless and without merit. They may be initiated with the purpose of annoying or embarrassing the other party, and not for the purpose of having the court decide on the issues.

32. Apart from wasting judicial resources, vexatious conduct, especially when instituted habitually and persistently, causes distress and annoyance to other parties to the proceedings as they are subject to a litany of baseless lawsuits and applications.

33. At present, section 74 of the Supreme Court of Judicature Act (“the Act”) provides the only recourse against such vexatious litigants. If a party has habitually and persistently and without any reasonable grounds instituted vexatious legal proceedings in any court, it is the Attorney-General who has to make an application to the High Court to restrain such conduct.

34. Upon a successful application, the High Court may order that:
    1. no legal proceedings shall be instituted by that party without the leave of court, and / or
    2. any legal proceedings instituted by that party in any court before the making of the order shall not be continued by him without leave.

35. This current approach is limited in two ways:
    1. First, the court and the affected party have no power on their own to apply under section 74 regardless of the degree of vexatious conduct, the impact it may have had on the affected party as the application must be made by the AG; and
    2. Second, section 74 carries with it severe consequences and may not be proportionate to or properly calibrated to meet, the mischief in question for all cases.

36. To address these limitations, clause 10 of the Bill introduces a new power to allow the courts to make three different types of civil restraint orders to address varying degrees of vexatious conduct. The three different types of orders are:
    1. Limited civil restraint order: This order may be made against a party who has made 2 or more applications that are totally without merit. The party will be restrained from making further applications in the particular proceedings in which the order is made, without leave of court.
    2. Extended civil restraint order: This order may be made against a party who has persistently commenced actions or made applications that are totally without merit. The party will be restrained from commencing any action or making any application concerning any matter involving, relating to, touching upon or leading to the proceedings in which the order is made, without leave of court for a period not exceeding 2 years.
    3. General civil restraint orders: This order may be made against a party who has persisted in commencing action or making applications that are totally without merit, and in circumstances where an extended civil restraint order would not be sufficient or appropriate. The party will be restrained from commencing any action or making any application in any court specified in the order, without leave of court for a period not exceeding 2 years.

37. This gradated approach gives more nuance in managing vexatious litigants, taking into account the specific facts of each case.

38. The court will also be empowered to stay the vexatious proceedings and order that no further documents be filed by a party if the filing of documents would be vexatious or otherwise for an improper purpose.

39. Under the proposed amendments, the High Court or Court of Appeal may make these orders (i) on its own motion, which it presently cannot do; (ii) on an application by a party, again, which it presently cannot do; or (iii) on an application by the Attorney-General, which is the current position under section 74. Before an order is made against a party, that party will be given an opportunity to be heard by the court.

40. In relation to proceedings before a lower court, a party or the Attorney-General may make an application to the High Court for one of the abovementioned orders. To the extent that this may appear in the District Courts or Magistrates’ Courts, an application is made to the High Court. This power ensures that the High Court can also make the necessary orders to address vexatious proceedings occurring before a lower court. It is more appropriate for the High Court to make such orders, instead of the lower court, because the impact of such orders are potentially far-reaching and restrains a party’s ability to conduct legal proceedings.

41. The party against whom an order is made may bring an appeal to the Court of Appeal with the leave of the High Court or the Court of Appeal. Similarly, clause 11 amends the existing section 74 such that a person against whom an order is made under that section may appeal against the order with the leave of the High Court or the Court of Appeal.

42. These new powers were drawn from best practices in the United Kingdom and Canada. In moving from a single touch point for vexatious proceedings under section 74 to a gradated approach, courts are now better equipped to manage varying degrees of vexatious conduct. This accords with notions of fairness and proportionality as litigants are restrained to different extents based on the severity of their vexatious conduct, instead of a “one size fits all” approach that is currently the regime in section 74.

Imposition of late filing fees for non-compliance with the Rules of Court, court orders or directions and practice directions

43. Finally, I would like to touch on the imposition of late-filing fees for non-compliance with the Rules of Court. In addition to new powers to manage vexatious proceedings, clause 16 of the Bill also ensures the efficient disposal of cases by allowing the courts to impose late filing fees for non-compliance with the Rules of Court, court orders or directions and practice directions. Currently, there are no automatic sanctions against the late filing of documents and this tends to delay legal proceedings.

44. These late filing fees seek to encourage parties and their lawyers to comply with the Rules of Court, court orders and practice directions in relation to the filing of documents so that legal proceedings can be conducted and completed in a timely manner.

4. Conclusion

45. Sir, in summary, these amendments are part of our continuing efforts to improve civil procedure in court proceedings in Singapore. This is an ongoing and worthy endeavour, for it has often been said, and in my view correctly, that procedure is the handmaid of justice. By enhancing our court processes, and strengthening court procedures, while at the same time ensuring that the interests of litigants are safeguarded, these amendments will enable the courts to continue to fulfil their mission of providing a just, efficient and effective avenue for all its users.

46. Mr Speaker, I beg to move.

Last updated on 02 Oct 2018