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14 SAcLJ
Inherent Jurisdiction Re-Visited
1
INHERENT JURISDICTION RE-VISITED:
AN EXPANDING DOCTRINE
INTRODUCTION
1
The inherent power of the court to exercise its procedural jurisdiction
to avoid injustice and ensure efficiency in litigation has long been recognised
as a fundamental element of the administration of justice.1 Yet, the courts,
conscious of their place in the Common Law system, their duty to apply
legislation2 as the primary source of law and the corresponding concern
that judicial initiatives should not compromise this obligation, have placed
limits on their capacity to generate a parallel and supplemental jurisprudence
to the rules of court.3 The recent judgment of the Court of Appeal in Wee
Soon Kim Anthony v Law Society of Singapore4 is significant in this
respect for it has opened the way for the application of a more broad-based
inherent power and a precise rationale for the doctrine. The judgment does
much to clarify the scope of judicial exercise of inherent power.
2
The approach of this article will be to consider the rulings of the
High Court and Court of Appeal in Wee Soon Kim against the background
of previous authorities, and to examine and assess the likely impact of that
case on the future of civil litigation.
FACTS OF WEE SOON KIM AND THE APPROACH OF THE HIGH
COURT
3
The appellant made a complaint to the Law Society concerning
certain advocates and solicitors. The Inquiry Committee recommended
that the complaint be dismissed and the Council of the Law Society
decided that there was no case for a formal investigation by a Disciplinary
Committee. The appellant applied to a judge for an order under s 96(1) of
the Legal Profession Act directing the Society to apply to the Chief Justice
1
2
3
4
For an historical account of the doctrine in the context of Singapore, see J. Pinsler, ‘The
inherent powers of the court’ [1997] SJLS 1, at 2-12. Regarding the English perspective,
see Halsbury’s Laws, 4th ed, vol 10, paras 845-847; Sir Jack Jacob, ‘The inherent
jurisdiction of the court’ (1970) Current Legal Problems 23 (reprinted in The Reform of
Civil Procedural Law, London: Sweet & Maxwell, (1982)).
Whether primary or subsidiary.
See ‘The inherent powers of the court’ [1997] SJLS 1, at 17-49.
The unreported judgment of the High Court is at O.S. No. 1573 of 2000, Registrar’s
Appeal No. 600011 of 2001; judgment dated 9th March 2001. The judgment of the
Court of Appeal in this case is reported at [2001] 4 SLR 25.
Singapore Academy of Law Journal
2
(2002)
for the appointment of a Disciplinary Committee to investigate the
complaint. This section is to the following effect:
(1)
Where a person has made a complaint to the Society and the
Council has determined — (a) that a formal investigation is
not necessary; or (b) that no sufficient cause for a formal
investigation exists but that the advocate and solicitor
concerned should be ordered to pay a penalty, that person, if
he is dissatisfied with the determination, may within 14 days
of being notified of the Council’s determination apply to a
Judge under this section.
(2)
Such an application shall be made by originating summons
and shall be accompanied by an affidavit or affidavits of the
facts constituting the basis of the complaint and by a copy of
the complaint originally made to the Society together with a
copy of the Council’s reasons in writing supplied to the
applicant under section 87(4).
(3)
The application accompanied by a copy of each of the
documents referred to in subsection (2) shall be served on the
Society.
(4)
At the hearing of the application, the Judge may make an
order — (a) affirming the determination of the Council; or
(b) directing the Society to apply to the Chief Justice for the
appointment of a Disciplinary Committee, and such order for
the payment of costs as may be just.
(5)
If the Judge makes an order directing the Society to apply to
the Chief Justice for the appointment of a Disciplinary
Committee, the applicant shall have the conduct of proceedings
before the Disciplinary Committee and any subsequent
proceedings before the court under section 98, and any
such proceedings shall be brought in the name of the
applicant.
4
The solicitors against whom the complaint was made sought to
intervene in the s 96 proceedings. They contended that they should be
allowed to do so pursuant to O 15, r 6(2)(b) of the Rules of Court on the
basis that they had a real and substantial interest in the outcome of the
application. Their application to intervene was granted by the Assistant
Registrar. The appellant appealed to the High Court. The High Court
dismissed the appeal. It decided that apart from the issue of whether O 15,
r 6(2)(b) was applicable in the circumstances of the case, the court could
exercise its inherent power to allow joinder as it would be in the interest of
justice to do so. The court ruled that although the solicitors were not party
to the application pursuant to s 96, they were ‘the true substantive parties’
14 SAcLJ
Inherent Jurisdiction Re-Visited
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in that they had ‘at least as great an interest as the complainant’5 in respect
of a s 96 application:
‘Although the application to have a Disciplinary Committee
appointed is but the first step for a complainant to pursue his
complaint after an unfavourable report by the Inquiry Committee ie.
unfavourable to the complainant in that he prefers a different outcome,
it is nevertheless a step which is of great significance to the solicitor
concerned. If a Disciplinary Committee is appointed, the solicitor
is put to the inconvenience, expense and anxiety of proceedings
before the Disciplinary Committee and the risk of an adverse outcome
against him. These are not factors which can be adequately
compensated by any order that the Disciplinary Committee can
make. Accordingly, if the matter can be nipped in the bud in that the
court is not persuaded to appoint a Disciplinary Committee, the
solicitor concerned avoids the inconvenience, expense, anxiety and
risk I have mentioned.’6
APPROACH OF THE COURT OF APPEAL
5
The Court of Appeal considered whether the solicitors could be
joined pursuant to O 15, r 6(2)(b) or the court’s exercise of its inherent
power. With regard to O 15, r 6(2)(b)(i),7 the court stated that they were
not persons who ‘ought to be joined as parties’ and that their presence
before the court was not ‘necessary to ensure that all matters in the course
may be effectually and completely determined’:
‘At the hearing, the Law Society would have to defend its decision,
in the light of the report of the IC [Inquiry Committee], why a
formal investigation by a DC [Disciplinary Committee] is not
necessary. The hearing of the application could quite properly
proceed without the presence of the two solicitors, even though they
are the subject of the complaint. Having an interest in the outcome
of the application in the originating summons, which the two
solicitors no doubt have, does not mean that the persons should be
joined as, or it is necessary to make him, a party to the application.
5
6
7
O.S. No. 1573 of 2000, Registrar’s Appeal No. 600011 of 2001 at para 17.
Ibid, at para 18.
Pursuant to this provision, the court may order the joinder of ‘any person who ought to
have been joined as a party or whose presence before the Court is necessary to ensure
that all matters in the cause or matter may be effectually and completely determined
and adjudicated upon; ...’
4
Singapore Academy of Law Journal
(2002)
An adverse decision by a judge in such an originating summons
application does not mean that the solicitor’s rights are affected – no
definitive decision has been taken. All it means is that the solicitor
must explain himself formally (with the support of witnesses, if
any) before the DC.’8
6
The Court of Appeal also concluded that the solicitors could not
have been joined pursuant to O 15, r 6(2)(b)(ii).9 The court ruled that this
limb was inapplicable as the only issue was ‘whether a prima facie case has
been shown for the complaint to proceed forth to the DC’.1 0 At this stage,
there could not be said to be a separate issue between the solicitors and the
Law Society or the appellant.11 Moreover, the court pointed out that the
difficulties sought to be addressed by the two limbs of O 15, r 6(2)(b)12
were non-existent.13
7
Regarding the court’s inherent jurisdiction to order joinder, the
Court of Appeal referred to O 92, r 4 which states:
‘For the removal of doubt it is hereby declared that nothing in these
Rules shall be deemed to limit or affect the inherent powers of the
Court to make any order as may be necessary to prevent injustice or
to prevent an abuse of the process of the Court.’
8
The Court of Appeal considered the scope of this provision and
compared it to the common law position. It cited the case of The Mardina
Merchant 1 4 in which the English High Court exercised its inherent
jurisdiction to permit the intervention of the Port Authority in an admiralty
proceeding because the continued presence of an arrested vessel was
causing the Port Authority ‘serious hardship, difficulty or danger’. Brandon
J resorted to the inherent jurisdiction of the court because the particular
8
9
10
11
12
13
14
[2001] 4 SLR 25, at para 17.
Pursuant to this provision, the court may order the joinder of ‘any person between
whom and any party to the cause or matter there may exist a question or issue arising
out of or relating to or connected with any relief or remedy claimed in the cause or
matter which in the opinion of the Court it would be just and convenient to determine as
between him and that party as well as between the parties to the cause or matter.’
[2001] 4 SLR 25, at para 18.
Ibid.
‘... (a) to prevent multiplicity of actions and to enable the Court to determine disputes
between all parties to them in one action, and (b) to prevent the same or substantially
the same questions or issues being tried twice with possibly different results.’ (quoting
para 15/6/7 of the Supreme Court Practice 1999).
[2001] 4 SLR 25, at para 19.
[1974] 3 Al1 ER 749.
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admiralty rule1 5 which allowed joinder only applied to a person who had an
interest in the property under arrest or its proceeds of sale:
‘The view which I take, however, is that the rule is not exhaustive
of the powers of the court to do justice in particular cases. I am of
the opinion that there must be an inherent jurisdiction in the court to
allow a party to intervene if the effect of an arrest is to cause that
party serious hardship or difficulty or danger. One can visualise
cases where the presence of a ship in a particular place might cause
not merely financial loss or commercial difficulty but even danger
to persons or property. In all such cases it seems to me that the court
must have power to allow the party who is affected by the working
of the system of law used in Admiralty actions in rem, to apply to
the court for some mitigation of the hardship or the difficulty or the
danger.’
9
The Mardina Merchant was followed in The Nagasaki Spirit,16 a
case involving very similar circumstances. There, the High Court ruled
that a person or entity may be allowed to intervene in admiralty proceedings
involving the arrest of a ship even if that person or entity did not have an
interest in that property as required by the admiralty rule.1 7 The intervener,
who owned the shipyard at which the arrested vessel was berthed, claimed
that it was suffering hardship as a result of the congestion caused by the
ship’s presence. The court agreed with the principle espoused by Brandon
J in The Mardina Merchant.
10
The Court of Appeal in Wee Soon Kim endorsed Brandon J’s
observations1 8 and expressed the view that the scope of O 92, r 4 is more
narrow in scope:
‘Our O 92 r 4 talks of preventing “injustice” or “abuse of process”.
We have serious doubts that “preventing injustice” or “preventing
abuse of process” arose in that case. What occurred was that
because of the arrest of the vessel, serious practical problems were
encountered by the Port Authority. Yet, Brandon J did not feel
constrained to grant the application.’1 9
...
15
16
17
18
19
O 75, r 17 of the former English RSC provided: ‘where property against which an
action in rem is brought is under arrest or money representing the proceeds of sale of
that property is in court, a person who has an interest in that property or money but who
is not a defendant in the action may, with the leave of the Court, intervene in the action.’
[1994] 2 SLR 621.
Ie, O 70, r 16, which corresponded exactly to the rule considered by Brandon J in The
Mardina Merchant.
See main text after note 15.
[2001] 4 SLR 25, at para 24.
6
Singapore Academy of Law Journal
(2002)
It would appear that in England there was and is no equivalent rule
to our O 92 r 4. Brandon J went on general principles. He certainly
did not seek to lay down any general criteria as to how the inherent
jurisdiction should be applied. We agree with the judge below that
Brandon J’s pronouncement was just an instance of the application
of the inherent jurisdiction.20
It seems to us clear that by its very nature, how an inherent
jurisdiction, whether as set out in O 92 r 4 or under common law,
should be exercised should not be circumscribed by rigid criteria or
tests. In each instance the court must exercise it judiciously.21
... Without intending to be exhaustive, we think an essential
touchstone is really that of “need”.’
11 The Court of Appeal concluded that there was no ‘need’ for the
court to exercise its inherent jurisdiction in the circumstances of the case as
a comprehensive process for disciplinary proceedings is provided by the
Legal Profession Act:22
‘As this Court noted in Wee Soon Kim Anthony v Law Society of
Singapore [2001] 2 SLR 145, Part VII of the Act sets out an
elaborate scheme on how a complaint against a solicitor should be
dealt with, with emphasis on objectivity and transparency and the
need for maintaining the highest standards of professionalism and
integrity. This can be seen from the fact that the Act allows the
complainant, should the conclusion of the IC or the DC be in favour
of the solicitor concerned, to apply to the High Court for a review of
the decision. There is no corresponding facility accorded to the
solicitor should the decision of the IC or DC be against him. But of
course, if the IC should decide that the complaint warrants a formal
investigation by the DC, the solicitor would have the opportunity to
respond before the DC. Similarly, if the DC should find that cause
of sufficient gravity for disciplinary action exists under s 83, the
solicitors would have the opportunity to challenge that finding
before the court of three judges.
20
21
22
Ibid, at para 26.
Ibid, at para 27. The Court of Appeal referred to Sir Jack Jacob’s observation (in ‘The
inherent jurisdiction of the court’ (1970) CLP 23, at 51), that the court may invoke its
inherent jurisdiction ‘when it is just and equitable to do so and in particular to ensure
the observance of the due process of law, to prevent improper vexation or oppression
and to do justice between the parties’.
[2001] 4 SLR 25, at paras 28-29.
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It cannot be disputed that the solicitor complained against has an
interest in the outcome of an application made by a complainant
under s 96. It is also understandable why the solicitor may wish to
intervene in that proceeding even though it is quite unnecessary for
him to do so. But it is altogether another thing to say that there is
a necessity for him to do so, a need of such a gravity that the court
should invoke its inherent jurisdiction. The intervention in such a
situation by the solicitor may or may not be of assistance to the
court. After all, the report of the IC, with all the necessary annexes,
would be before the court when it considers the application. Besides
counsel for the complainant/applicant making submission, counsel
for the Law Society would also be heard in response, the latter no
doubt seeking to support the recommendation of the IC and the
decision of the Council. Even if the solicitors should be allowed to
intervene, what their counsel would seek to do would really be no
more than what the Law Society’s counsel would be doing. Thus,
we hold that the circumstances do not warrant the court invoking its
inherent jurisdiction.’
12
The court added that inherent jurisdiction should not be exercised
merely on the basis that it would not result in prejudice to the complainant.
Although the issue of prejudice may be relevant consideration in determining
whether the inherent jurisdiction should be exercised in the circumstances
of the case,‘... that is not to say that once no prejudice is shown, the court
should invoke that jurisdiction.’2 3 The court then indicated the standard for
the exercise of the jurisdiction:‘There must nevertheless be reasonably
strong or compelling reasons showing why that jurisdiction should be
invoked.’24
NO RELIEF IN WEE SOON KIM
13
The Court of Appeal in Wee Soon Kim quite rightly pointed out that
O 15, r 6(2)(b)(i) and (ii) did not apply in the circumstances of the case.
The former paragraph did not apply because the solicitors were not persons
who ‘ought to be joined’ as parties, and their presence before the court was
not ‘necessary to ensure that all matters in the cause or matter may be
effectually and completely determined and adjudicated upon’. The latter
paragraph did not operate because of the absence of a separate issue arising
23
24
Ibid, at para 30.
Ibid.
8
Singapore Academy of Law Journal
(2002)
out of or relating to or connected with any relief or remedy which would
be just and convenient to determine.2 5 The court concluded that the
problems which rule 6(2)(b) is intended to resolve did not arise in the
circumstances of the case.26 The Court of Appeal disagreed with the High
Court’s decision to exercise its inherent powers in the circumstances of the
case.
DISTINCTIONS BETWEEN THE MARDINA MERCHANT AND
WEE SOON KIM
14
Both The Mardina Merchant and The Nagasaki Spirit are clearly
distinguishable from Wee Soon Kim. In The Mardina Merchant and The
Nagasaki Spirit, both interveners had potential claims against one or more
of the parties. Furthermore, those interveners were suffering continuing
damage and hardship for which one or more of the parties was responsible.
More importantly, the interveners in The Mardina Merchant and The
Nagasaki Spirit would not have had any relief or remedy had they not be
joined in the action.2 7 Joinder was crucial to the interest of justice in these
cases. The same could not be said for Wee Soon Kim. The solicitors did
not apply to be joined because they had potential claims; they merely
wanted to be present at the hearing. Their application for joinder did not
arise from a state of continuing damage and hardship caused by facts
external to the proceedings. They merely claimed that it would be unjust
to exclude them from the initial phase of the proceedings. The Court of
Appeal quite rightly disagreed with this argument by ruling that their
involvement at this stage was unnecessary and not unjust. Indeed, as will
25
26
27
Ibid, at para 18. The court stated with regard to r 6(2)(b)(ii) (which is set out in note 9)
that ‘the court has the power, under that limb, to add a person as a party where a question
or issue arising out of or relating to or connected with any relief or remedy claimed in
the action may exist between him and a party to the action which the court thinks it
would be just and convenient to determine between him and that party as well as between
the parties to the action. This limb, in our view, is also inapplicable. In the originating
summons application of Mr Wee there is only one issue, whether a prima facie case has
been shown for the complaint to proceed forth to the DC. There is really no different
issue existing between the two solicitors and either the Law Society or Mr Wee.’
It stated (ibid, at para 19): ‘... the objects of para (2)(b) as to joinder of parties are
broadly the same as the objects of the rules relating to third party proceedings, namely
(a) to prevent multiplicity of actions and to enable the Court to determine disputes
between all parties to them in one action, and (b) to prevent the same or substantially
the same questions or issues being tried twice with possibly different results.’
A point emphasised by Brandon J in The Mardina Merchant. Also see Gula Perak Bhd
v Varghese Mathai [1988] 3 MLJ 358, in which VC George J regarded the absence of
this condition as fatal to the application of The Mardina Merchant to the case before
him.
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Inherent Jurisdiction Re-Visited
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be seen, the inherent power of the court is not to be exercised where there
is a statutory procedural construct which is designed to govern the
circumstances of the case.28
COMMON LAW AND ORDER 92, RULE 4
15
In Wee Soon Kim, the Court of Appeal indicated that there might be
a distinction between O 92, r 4 and the common law as applied in The
Mardina Merchant:
‘Indeed The Mardina Merchant is interesting. Our O 92 r 4 talks of
preventing “injustice” or “abuse of process”. We have serious
doubts that “preventing injustice” or “preventing abuse of process”
arose in that case. What occurred was that because of the arrest of
the vessel, serious practical problems were encountered by the Port
Authority. Yet, Brandon J did not feel constrained to grant the
application.’
According to the Court of Appeal, a strict application of O 92, r 4 (that is,
apart from the common law) would not enable a Singapore court to
exercise its inherent jurisdiction if the same circumstances arose in
Singapore.2 9 However, the Court of Appeal endorsed Brandon J’s decision
on the basis that the exercise of inherent jurisdiction should ‘not be
circumscribed by rigid criteria or tests’3 0 and that ‘in each instance the
court must exercise it judiciously’.3 1 It considered that ‘an essential
touchstone is really that of ‘need,’ and need had been established in The
Mardina Merchant.
16
As the judgment of the Court of Appeal is very likely to be relied on
by parties for the purpose of invoking the court’s inherent jurisdiction on
the basis of ‘need’, it is necessary to set the parameters of this principle. A
vital question is whether the court will respond to this need when the rules
28
29
30
31
Discussed at the end of this article, under ‘Do the courts have an inherent power to
modify procedure prescribed by primary (as opposed to subsidiary) legislation in these
circumstances?’
Although the High Court in The Nagasaki exercised its inherent jurisdiction in almost
equivalent circumstances (main text at note 16), it rested its decision on The Mardina
Merchant and did not apply O 92, r 4.
[2001] 4 SLR 25, at para 27. The court stated (ibid, at para 26): ‘It would appear that in
England there was and is no equivalent rule to our O 92 r 4. Brandon J went on general
principles. He certainly did not seek to lay down any general criteria as to how the
inherent jurisdiction should be applied. We agree with the judge below that Brandon
J’s pronouncement was just an instance of the application of the inherent jurisdiction.’
Ibid.
10
Singapore Academy of Law Journal
(2002)
of court appear to have addressed the issue.32 Statute vests the Rules
Committee, not the judges,33 with the power to create rules of court for the
purpose of ‘regulating and prescribing the procedure and practice ... in all
causes and matters whatsoever ...’.34 Therefore, it would be incorrect to
interpret the judgment of the Court of Appeal as propounding a principle
of unencumbered judicial exercise of inherent power whenever this would
be in the interest of justice irrespective of the rules of court. Indeed, O 92,
r 4,35 which must be observed as a statutory rule, recognises the inherent
power of the court as a means of ensuring that the operation of the rules of
procedure do not lead to injustice or abuse of process. There is a tacit
acknowledgement in O 92, r 4 that it is the rules of court created by a
statutorily authorised Rules Committee which is the primary source of
procedure.36 As was said by Sir Jack Jacob,‘... where the usefulness of the
powers under the rules ends, the usefulness of the powers under inherent
jurisdiction begins.’37 The learned author characterised these as a ‘...
reserve or fund of powers, a residual source of powers’. Accordingly, the
Court of Appeal’s endorsement of Sir Jack Jacob’s observation that the
court may exercise its inherent jurisdiction when ‘it is just or equitable to
do so ... ’38 must be construed in a residuary context. Order 92, rule 4 is not
a provision which vests inherent power. It merely acknowledges that the
rules of court, no matter how well drafted, can never constitute a perfect
system of procedure and that there may be occasions when injustice or
abuse of process needs to be remedied through the exercise of that power.
The inherent power of the court enables it to act in a supervisory capacity
to ensure the efficiency and fairness of its process. The Court of Appeal
recognised this in Wee Soon Kim when it said: ‘There must... be reasonably
strong or compelling reasons showing why [the inherent jurisdiction]
should be invoked’.39
32
33
34
35
36
37
38
39
Whether by acknowledging or disregarding the need.
The only statutory reference to the court’s inherent powers is O 92, r 4 (see main text
after note 13) which is not a vesting source. For a discussion of this point, see ‘The
inherent powers of the court’ [1997] SJLS 1, from p 15.
SCJA, s 80(1).
The rule is set out in the main text after note 13.
This power appears demure when contrasted to the more intrusive rule-based power of
the court to make orders ‘for the just, expeditious and economical disposal of the cause
or matter’ irrespective of what the rules might say. The first words of O 34A, r 1 are
‘Nothwithstanding anything in these rules...’.
Sir Jack Jacob (1970) Current Legal Problems 23, at 50. (It is reprinted in The Reform
of Civil Procedural Law, London: Sweet & Maxwell (1982).)
‘... and in particular to ensure the observance of the due process of law, to prevent
improper vexation or oppression, to do justice between the parties’. See Sir Jack Jacob
(1970) Current Legal Problems 23, at 51. These observations were also relied on by
Punch Coomaraswamy J in Heng Joo See v Ho Pol Ling [1993] 3 SLR 850.
[2001] 4 SLR 25, at para 30.
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17
A defiant UK Court of Appeal judge once said: ‘I ask, why should
the judges wait for the Rule Committee?’. ‘To wait for the Rule Committee
would be to shut the stable door after the steed had been stolen. And who
knows that there will ever again be another horse in the stable?’.40 In
response, a member of the House of Lords admonished (in the course of
hearing the appeal) that it was not for judges ‘to pre-empt [the Rule
Committee’s] functions’ and that ‘even if such a usurpation were legitimate,
which in my view it is not, it would, in my judgment be highly .undesirable’.41
Cases on inherent jurisdiction are scattered across the wide gulf between
these philosophies.42
18
The concern is not so much with abuse of process,43 for the courts
are normally keenly aware of what constitutes such conduct and stamp on
it through the exercise of their inherent jurisdiction.44 The quandary for the
judiciary is the esoteric and vague notion of making an order in the interest
of justice unassisted by statutory guidelines. The challenge faced by the
courts in this respect is two-fold: to take off the procedural mantle of the
Rules of Court to which they have become so accustomed and dependent
on; and to apply a doctrine the scope of which can only best be described
as uncertain. The provision in O 92, r 4 acknowledges the court’s power
to make an order to ‘prevent injustice’. The courts have also referred to
this jurisdiction as one to be exercised ‘whenever it is just or equitable to
do so’.45 In Wee Soon Kim, the Court of Appeal referred to it as a doctrine
to be exercised ‘judiciously’. Fortunately, the Court of Appeal did not
leave it at this. It went on to consider the nature of the jurisdiction.
SUMMARY OF PRINCIPLES GOVERNING EXERCISE OF
INHERENT JURISDICTION
19
40
41
42
43
44
45
46
After the judgment of the Court of Appeal in Wee Soon Kim, the
scope of the court’s inherent jurisdiction may be formulated as
follows:46
Per Lord Denning in The Siskina [1979] AC 210, at 236-237.
Per Lord Hailsham of Marylebone (ibid, at 262).
‘The inherent powers of the court’ [1997] SJLS 1, from p 14.
One of the primary grounds for the exercise of inherent jurisdiction under O 92, r 4 and
the common law.
See, for example, Heng Joo See v Ho Pol Ling [1993] 3 SLR 850.
Ibid. This definition was put forward by Sir Jack Jacob, the former Senior Master of
the Supreme Court, in his article, ‘The inherent jurisdiction of the court’ (1970) CLP
23, at p 51. This pronouncement was accepted by the Malaysian High Court in Tan
Beng Sooi v Penolong Kanan Pendaftar [1995] 2 MLJ 421, at p 431.
This is the author’s own formulation based on his interpretation of the judgment.
Singapore Academy of Law Journal
12
47
48
49
50
51
52
53
54
55
56
57
(2002)
(i)
Order 92, rule 447 refers to the inherent jurisdiction of the
court. It provides that the court may make orders which are
necessary to ‘prevent injustice’ or ‘prevent an abuse of the
process of court’.48
(ii)
The exercise of the court’s inherent jurisdiction is not limited
to a strict sense of ‘injustice’. For example, the jurisdiction
may be exercised to prevent or avoid a situation of ‘serious
hardship or difficulty or danger’.49 The court must be flexible
and not bind itself to ‘rigid criteria or tests’.50
(iii)
As long as the court acts ‘judiciously’51 or in a ‘just and
equitable’ 52 manner, it does not have to limit the
circumstances in which it can exercise its jurisdiction.53
(iv)
An essential consideration is the ‘need’ of the party
concerned.54
(v)
However, this need must be of a sufficient degree to justify
the exercise of the court’s inherent jurisdiction. It will not
be exercised merely to satisfy the party’s interest or desire.55
In Wee Soon Kim, the Court of Appeal stated that the need
was not of ‘such a gravity’ that the court should invoke its
inherent jurisidiction.56
(vi)
Such a need does not arise if there is a procedural mechanism
(whether provided by statute or the Rules of Court) in place
which effectively governs the circumstances.57
Set out in the main text after note 13.
[2001] 4 SLR 25, at para 21.
The Court of Appeal in Wee Soon Kim applied The Mardina Merchant to this effect.
The Court of Appeal did not think that the circumstances in the latter case constituted
injustice in the context of O 92, r 4 3.([2001] 4 SLR 25, at paras 23-24).
Ibid, at para 27.
Ibid.
Ibid.
Ibid, at para 26.
The court referred to this as ‘an essential touchstone’ (ibid, at para 27). The court
pointed out, however, that it did not intend to be ‘exhaustive’ about the criteria (ibid).
The position in Wee Soon Kim. Ibid, at para 29.
Ibid, at para 29.
In Wee Soon Kim, this was Part VII of the Legal Profession Act, which ‘sets out an
elaborate scheme on how a complaint against a solicitor should be dealt with’ (ibid, at
para 28).
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The court may consider its own needs as, for example,
whether it would be able to deliberate more effectively if it
were to exercise its inherent jurisdiction.58
(viii) The court should not exercise its inherent jurisdiction merely
because to do so would not cause prejudice to the other
party.5 9
(ix)
However, the issue of whether prejudice would be suffered
by one party or the other as a result of the court’s decision to
exercise, or refrain from exercising, its inherent jurisdiction,
is a consideration to be taken into account.60
(x)
There must be ‘reasonably strong or compelling reasons’
why the court should exercise its inherent jurisdiction.6 1
OBSERVATIONS ON ABOVE FORMULATION OF PRINCIPLES
20
The validity of this formulation may be tested against certain
questions which have been previously raised as to the scope of the court’s
inherent jurisdiction.6 2 Many of the previous court rulings were found to
be divergent in approach while others appeared to be decided
extemporaneously rather than on clear principles. This state of uncertainty,
it is submitted, has been substantially resolved by the Court of Appeal in
Wee Soon Kim. The answers to these questions will be considered in the
context of that court’s observations in that case.
58
59
60
61
62
•
Is the inherent power of the court merely to be exercised to
fill ‘lacunae’ in the rules?
•
Does it go beyond this to override or qualify a rule the strict
application of which would lead to injustice?
•
Do the courts have an inherent power to modify procedure
prescribed by primary (as opposed to subsidiary) legislation
in these circumstances?
•
Are the courts entitled to use this power to establish or alter
the substantive rights of a party?
In Wee Soon Kim, the Court of Appeal did not conclude that the joinder of the solicitors
would have assisted the court. This was because all necessary documents were before
the court.
Ibid, at para 30.
Ibid.
Ibid.
‘The inherent powers of the court’ [1997] SJLS 1, at p 14.
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Singapore Academy of Law Journal
(2002)
Is the inherent power of the court merely to be exercised to fill ‘lacunae’
in the rules?
21
If there is a lacuna (gap) in the rules so that no procedure governs
the situation before the court, the court will have to decide whether it
would be acting ‘judiciously’ by exercising its inherent power. In
determining this, it will have to take into account the ‘need’ of the party
seeking the relief. To warrant the court’s intervention, he would have to
show at least ‘serious hardship or difficulty or danger’. The court should
also take into account any reason why the Rules Committee did not
provide rules to govern the situation. If the omission can be justified (for
example, in the interest of the administration of justice) over and above the
personal need of the party seeking relief, the court would not be acting
judiciously by exercising its inherent power in favour of the party. In any
event, there must be ‘reasonably strong or compelling reasons’ why the
inherent jurisdiction should be exercised. This would take into account the
party’s need, the concerns of the opposing party and whether the intention
of the Rules of Court is to permit or bar any relief that my be provided by
the judicial exercise of inherent power in circumstances not catered to by
those Rules. Although the incidence of prejudice is a factor to be considered,
it will not be determinative.
Does the inherent power extend to overriding or qualifying a rule the
strict application of which would lead to injustice?
22
It would be much more difficult for the court to ignore rules which
specifically govern the procedure to be applied. Indeed, such an approach
may not be entirely legitimate as statute empowers the Rules Committee,
not the court, to create procedural rules. Although a power does exist
pursuant to O 34A, r 1 which enables the court to make orders for the ‘just,
expeditious and economical’ disposal of proceedings ‘notwithstanding
anything in these Rules’, this authority to override other rules may be
justified because it has statutory force (as a rule of court).63 Furthermore,
O 92, r 4, which refers to the inherent power of the court, is indicative of
a residuary rather than overriding jurisdiction.6 4
23
Wee Soon Kim does not bar the exercise of inherent jurisdiction
where this would clash with the apparent or literal approach of a rule of
court. The crux of the matter is whether the court would be acting
judiciously (in the context of the administration of justice) in the event of
63
64
Also see note 36.
See main text from note 35.
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a conflict with a statutory rule. The exercise of inherent jurisdiction in
such circumstances may be necessary (and therefore ‘just and equitable’)
where a purposive (or non-literal) interpretation of a rule of court is
necessary in the interest of justice. It is submitted that although the SCJA
vests the Rules Committee with the power to make rules to govern
procedure, that statute does not prevent a court from exercising its inherent
power when fundamental considerations of justice are involved.6 5 No
body of rules, no matter how comprehensive, can cater to the unlimited
variety of circumstances which may arise in the course of litigation.
Although cases may have common features, the particularity of the facts
which arise may require special consideration. The rules may not
contemplate the specific circumstances of the case and there may therefore
be no available procedure. A strict application of the rules may lead to
injustice in a certain situation, an outcome which the court may regard as
not having been foreseen by the statutory machinery. It is here that the
doctrine of inherent jurisdiction has an important role to play by virtue of
its flexibility and permeability. The point should be made, however, that
it would be particularly onerous for the party to show that his ‘need’ should
be acknowledged by the court despite the existence of rules which appear
to operate against his interest. A compelling case would certainly have to
be shown.
Do the courts have an inherent power to modify procedure prescribed
by primary (as opposed to subsidiary) legislation in these
circumstances?
24
The question of whether the court has an inherent power to modify
procedure prescribed by primary (as opposed to subsidiary) legislation
may be answered affirmatively. On the premise that the foundation of the
doctrine of inherent powers is that the court must have overall control over
65
Constitutional provisions may be interpreted to support the existence of the court’s
inherent powers in this respect. Article 93 of the Constitution provides that ‘the judicial
power of Singapore shall be vested in a Supreme Court and in such subordinate courts
as may be provided by any written law for the time being in force’. If the words ‘as may
be provided by any written law...’ are construed so as to concern the establishment of
the subordinate courts rather than to restrict the term ‘judicial power’, then such power
may be interpreted as the court’s unrestricted entitlement to govern and regulate its own
process to ensure that justice is achieved. In Bremer Vulkan Schiffbau und
Maschinenfabrik v South India Shipping Corporation Ltd [1981] AC 909, Lord Diplock
said of the court’s jurisdiction in this regard: ‘Such a power is inherent in its constitutional
function as a court of justice’(ibid, at 977), and that:‘... it would stultify the constitutional
role of the High Court as a court of justice if it were not armed with power to prevent its
process being misused in such a way as to diminish its capability of arriving at a just
decision of the dispute’ (ibid).
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its own process to prevent injustice and abuse, there is obvious justification
for the view that the inherent power of the court extends to any procedure
in the course of litigation even if its source is primary statute law. It might
be contended that as O 92, r 4 is part of the rules of court, the inherent
powers which the rule declares should only affect procedure generally
governed by rules of court and other subsidiary legislation. However, such
an argument fails to take into account the fact that the rule is not a vesting
source for the inherent powers which exist as part of the institutional role
of the courts. Accordingly, the significance of O 92, r 4 is that it points out
the inherent powers in the context of the rules of court but does not exclude
their application to other legislation, whether primary or subsidiary. Whether
the court will exercise its inherent power in relation to the procedure
prescribed by primary statutes depends on the interpretation of the relevant
provisions and legislative intention.66
25
The Court of Appeal in Wee Soon Kim decided that the case before
it was not appropriate for the exercise of inherent jurisdiction. However,
its declaration that the inherent power must be exercised ‘judiciously’ and
in an unfettered manner is consistent with the approach advocated in the
preceding paragraph. The Court of Appeal concluded, inter alia, that as
s 96 of the Legal Profession Act comprehensively formulated the procedure
for the disciplinary proceedings, there was no need for the court to exercise
its inherent jurisdiction. The assumption may be made that the court
would have exercised its inherent jurisdiction in the interest of justice if the
statutory mechanism did not achieve this objective.
Can the courts exercise their inherent power to affect substantive
rights and liabilities?
26
Previously, there was considerable uncertainty over the distinction
between the inherent power of the court to act in a procedural context to
prevent injustice and the statutory power of the court to grant substantive
relief. This was primarily due to the failure to distinguish between the
general common law jurisdiction of the English courts and the mere
procedural power to prevent abuse of process and injustice.67 These doubts
were laid to rest by the introduction in 1993 of paragraph 14 of the First
Schedule to the Supreme Court of Judicature Act, which caters to substantive
rights by providing that the court has ‘power to grant all reliefs and
66
67
See main text under the preceding question: ‘Does the inherent power extend to
overriding or qualifying a rule the strict application of which would lead to injustice?’
Discussed in ‘The inherent powers of the court’ [1997] SJLS 1, at pp 31-35.
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Inherent Jurisdiction Re-Visited
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remedies at law and in equity’.6 8 The inherent power of the court, in the
context of Singapore anyway, concerns the mechanism of the legal process.
It is a procedural power intended to avoid abuse and to serve the interests
of justice.6 9 The observations of the Court of Appeal in Wee Soon Kim
concerning the court’s responsibility to act ‘judiciously’ are consistent
with this principle.
CONCLUSION
27
The inherent jurisdiction of the court to maintain procedural fairness
is paramount to the administration of justice. Unfortunately, past uncertainty
as to the scope of the doctrine has hindered its development. The judgment
of the Court of Appeal in Wee Soon Kim must be welcomed for its
clarification of the principles to be applied.
JEFFREY PINSLER*
68
69
*
This paragraph was introduced by the Supreme Court of Judicature (Amendment) Act,
1993(16/1993).
As Sir Jack Jacob has pointed out:‘The inherent jurisdiction of the court is exercisable
as part of the process of the administration of justice. It is part of procedural law, both
civil and criminal, and not of substantive law; it is invoked in relation to the process of
litigation.’ (The Reform of Civil Procedural Law, London: Sweet & Maxwell, (1982),
at 222. Also see Sarwan v Amar 1980 P & H 162 to the same effect in relation to s 151
of the Indian Civil Procedure Code.) Selvam JC, as his Honour then was, stated in
Antonius Welirang v Bank of America National Trust and Saving Association (Suit
No. 296 of 1979, unreported judgment dated 6/10/92) that ‘The inherent jurisdiction of
the court in this context [an application for dismissal for want of prosecution] is a
procedural power reasonably necessary for the administration of justice’. In HengJoo
See v Ho Pol Ling [1993] 3 SLR 850, Coomaraswamy J was prepared to exercise these
powers ‘... to ensure the observance of the due process of law ...’. In Emilia Shipping
Inc v State Enterprises for Pulp and Paper Industries [1991] SLR 615 at 623, Chan Sek
Keong J (as he then was) recognised the inherent jurisdiction of the court as being
based on its position as ‘ultimately master of its own process’. In Connelly v DPP
[1964] AC 1254, at 1347, Lord Devlin declared:‘... the judges of the High Court have
in their inherent jurisdiction, both in civil and criminal matters, power (subject of course
to any statutory rules) to make and enforce rules of practice in order to ensure that the
court’s process is used fairly and conveniently by both sides.’
LLB (L’pool), LLM (Cantab); Barrister (MT); Advocate and Solicitor (Singapore);
Professor, Faculty of Law, National University of Singapore.