Singapore Court of Appeal: Faith Community Baptist Church v Attorney-General (CA88/2014, SUM3016/2014)*

In 2010, Parliament amended the Supreme Court of Judicature Act (SCJA) (Cap. 322) to streamline and restrict appeals from interlocutory orders to the Court of Appeal. Only orders from a High Court judge which has the effect of finally disposing of parties’ substantive rights are appealable as of right, while appeals will ordinarily be denied for orders which do not finally dispose of parties’ substantive rights. In the middle category, namely, interlocutory orders made in relation to interlocutory applications, will as a default rule require leave (or permission) from the High Court judge to appeal to the Court of Appeal. Numerous court decisions have been delivered since 2010 on the interpretation of the 2010 amendments to the SCJA.

The anterior question of what constitutes an “interlocutory application” was at stake in CA88/2014, specifically, whether an application pursuant to O.53 of the Rules of Court for leave to commence judicial review was interlocutory in nature. In this case, Faith Community Baptist Church (FCBC) had applied under O.53 for leave of Court to commence judicial review, and to apply to quash or set aside the decision of the Acting Minister for Manpower, who had decided that FCBC had dismissed their former employee without “sufficient cause”, and pursuant to Section 84(2) of the Employment Act (Cap. 91) ordered FCBC to pay compensation to the former employee.

On 29 May 2014, the High Court Judge granted leave to FCBC to commence judicial review (the “Leave Order”). The next day, the Attorney-General (AG) (who is the putative Defendant on behalf of the Acting Minister for Manpower) applied for leave of Court to appeal to the Court of Appeal. However, the AG also took the position that they did not in fact require leave to appeal, but that they could appeal as of right. Their leave application was adjourned, the AG filed CA88/2014 on 11 June 2014, while FCBC subsequently applied (vide SUM3016/2014) to strike out the appeal on the basis that leave to appeal was required under the SCJA.

On 9 September 2014, the Court of Appeal held that where the Attorney-General is acting as the guardian of public interests, it had the right to revisit or appeal decisions granting leave to commence judicial review. However, they could not appeal as of right, but only with leave of Court. As such, the appeal (CA88/2014) was struck out because no leave had been sought or given by the High Court judge to appeal. The parties will now go back to the High Court judge on the issue of whether such leave or permission to appeal should be given.

No grounds of decision have been delivered at this point. However, it may be observed that the decision appears to be based on an acceptance of FCBC’s argument that the Leave Order was an interlocutory order made in an interlocutory application. The Court of Appeal was of the view that where a party files an application for and obtains leave to commence judicial review, the matter does not end there, but rather the matter proceeds to a substantive hearing on the merits within the very same set of proceedings. The proceedings are not spent.

The decision also begs the question: to the extent that the Attorney-General is not acting or making arguments in their role as guardian of public interests, but rather in their simultaneous (but distinct) role as counsel / lawyers for the Defendant, are they allowed to appeal at all given that ordinary defendants (not represented by or substituted for the AG) in an ex parte leave application under O.53 have no right of appearance, and would arguably not even have the locus standi or standing to appeal at all.

* Dominic Chan, Daniel Goh, Adrian Wee and Jenna Law of Characterist LLC successfully acted for Faith Community Baptist Church (FCBC) in this appeal / striking out application.

See also the following newspaper reports on this matter:

(1) “FCBC gets nod from court for judicial review against MOM decision”, The Straits Times (29 May 2014): http://www.straitstimes.com/news/singapore/courts-crime/story/fcbc-gets-nod-court-judicial-review-against-mom-decision-20140529

(2) “Church clears a hurdle to review minister’s order”, The Straits Times (10 September 2014): http://www.straitstimes.com/news/singapore/more-singapore-stories/story/church-clears-hurdle-review-ministers-order-20140910

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