This article examines the recent amendments to Order 53 of the Rules of Court and considers the impact of the revision.
Recent Amendments to Order 53 of the Rules of Court
Overview
Significant amendments have recently been made to O 53 of the Rules of Court, which governs the procedure for judicial review. These amendments arise out of a review undertaken by the Rules of Court Working Party (“ROCWP”), which, after considering the judicial review models of other leading common law jurisdictions, recommended that: (i) an applicant be allowed to seek a declaratory relief in judicial review proceedings in addition to the prerogative orders (viz, a mandatory order, prohibiting order or quashing order); and (ii) a procedure be provided in O 53 to allow an applicant to recover damages or other equitable or restitutionary reliefs (subject to the provisions in the Government Proceedings Act,1 which restrict the types of remedies that may be granted against the government), if the applicant can prove that he has a valid cause of action such that the additional reliefs would have been obtainable if they had been claimed in a separate private law action. The ROCWP’s recommendations were implemented in the recent amendments to O 53, which came into force on 1 May 2011.2
The Need for Reform
Prior to the 2011 amendments to O 53, an applicant seeking both prerogative orders as well as a declaration and/or other ordinary private law remedies, such as damages, had to proceed via two separate originating processes: (i) an application under O 53 for the prerogative orders which would require the leave of Court; and (ii) an action begun by a writ or Originating Summons (“OS”) for a declaration and/or damages, which may be initiated without the leave of Court.
The Singapore Courts have consistently stated that the procedure under O 53 of the Rules of Court can be used to obtain only the prerogative reliefs, and no other. As pointed out by Sinnathuray J in Re Application by Dow Jones (Asia) Inc,3 unlike the legal position in the UK (post the 1977 amendments to the judicial review procedure in the UK), there is no provision in our substantive law or our Rules of Court relating to procedure for the Court to make orders of declarations or give other ancillary reliefs in an application made under O 53. This was affirmed by the Court of Appeal in Chan Hiang Leng Colin and others v Minister for Information and the Arts.4 More recently, the position was reiterated in two High Court decisions, namely, Yip Kok Seng v Traditional Chinese Medicine Practitioners Board5(“Yip Kok Seng”) and Yong Vui Kong v Attorney-General6(“Yong Vui Kong”). It is also established law that the proper procedure for an applicant to seek a declaratory order was to commence proceedings either by way of a writ or OS.7
Hence, although the High Court has the power to grant a declaration pursuant to s 18(2) of the Supreme Court of Judicature Act8 (“SCJA”), read with para 14 of the First Schedule to the SCJA, as well as under O 15 r 169 of the Rules of Court, it cannot do so in an application brought under O 53. A person seeking judicial review against a public body would thus be faced with a dilemma as to which set of remedies he should seek. As mentioned above, a person who seeks bothprerogative and private law remedies would have to bring two separateapplications governed by two differentprocedures.
This state of affairs was unsatisfactory. The main procedural disadvantage of this framework was that a party who utilised the wrong procedure risked having his claim either struck out (if he had wrongly utilised the writ/OS procedure) or his application for leave dismissed (if he had wrongly utilised the O 53 procedure). In Singapore, the case for procedural reform of our O 53 was succinctly laid out by Justice Woo Bih Li in Yip Kok Seng. The learned Judge also noted that other common law jurisdictions have amended their laws to allow their Courts to award declaratory relief and damages in addition to the prerogative remedies in judicial review proceedings.
The Present Position Under the Amended Order 53
The recent amendments to O 53 sought to streamline the judicial review procedure without changing the substantive law, by: (i) allowing an applicant to pray for a declaration in judicial review proceedings in additiontothe prerogative orders; and (ii) providing a procedure in O 53 to allow an applicant to seek damages or other private law remedies, if the applicant can prove that he has a valid cause of action such that the remedies would have been obtainable if they had been claimed in a separate action.
Order 53 r 1(1) has thus been amended to provide that an applicant “may include an application for a declaration” in an application for prerogative order(s), and, consequently, O 53 r 2(1) has been amended to provide that the application for prerogative order(s) as well as any included application for a declaration must be made by summons in the OS in which leave was obtained. The present amended O 53 rr 1(1) and 2(1) read as follows:
1. (1) An application for a Mandatory Order, Prohibiting Order or Quashing Order (referred to in this paragraph as the principal application) —
a. may include an application for a declaration; but
b. shall not be made, unless leave to make the principal application has been granted in accordance with this Rule.
2. (1) When leave has been granted to apply for a Mandatory Order, Prohibiting Order or Quashing Order —
a. the application for the order and any included application for a declaration must be made by summons to a Court in the originating summons in which leave was obtained; and
b. unless the Judge granting leave has otherwise directed, there must be at least 8 clear days between the service of the summons and the day named therein for the hearing.
It is clear from O 53 rr 1(1) and 2(1) that an applicant seeking prerogative order(s) (termed the “principal application” in
O 53 r 1(1)) may include in his application an application for a declaration. However, it is not open to an applicant to seek onlya declaration (and not in addition to any of the prerogative orders) under O 53. In such an instance, the applicant should still (and rightfully so) commence proceedings by way of ordinary writ or OS to seek the declaration. The amendments thus serve the twin purposes of preserving the existing position that applications for declarations do not require the leave of Court and empowering the Courts to grant declarations under O 53 proceedings in conjunction with the prerogative orders. They do not seek to introduce an alternative route (via O 53) for an applicant seeking only a declaration against a public body.
Once an applicant has convinced the Court that he is entitled to one of the reliefs under O 53, he need not begin separate proceedings in order to seek damages or any other equitable or restitutionary relief, if he can satisfy the Court that he has a valid cause of action in private law against the public body that would have entitled him to such additional reliefs. The amendments introduced a new r 7 to O 53 to allow the Court to grant an applicant other relevant relief, if the applicant can prove that he has a valid cause of action such that the relevant relief would have been obtainable if it had been claimed in a separate action:
Power of Court to grant relief in addition to Mandatory Order, etc. (Order. 53, r. 7)
7. — (1) Subject to the Government Proceedings Act (Cap. 121), where, upon hearing any summons filed under Rule 2, the Court has made a Mandatory Order, Prohibiting Order, Quashing Order or declaration, and the Court is satisfied that the applicant has a cause of action that would have entitled the applicant to any relevant relief if the relevant relief had been claimed in a separate action, the Court may, in addition, grant the applicant the relevant relief.
(2) For the purposes of determining whether the Court should grant the applicant any relevant relief under paragraph (1), or where the Court has determined that the applicant should be granted any such relief, the Court may give such directions, whether relating to the conduct of the proceedings or otherwise, as may be necessary for the purposes of making the determination or granting the relief, as the case may be.
(3) Before the Court grants any relevant relief under paragraph (1), any person who opposes the granting of the relief, and who appears to the Court to be a proper person to be heard, shall be heard.
(4) In this Rule, “relevant relief” means any liquidated sum, damages, equitable relief or restitution.
Such “relevant relief” is further defined in O 53 r 7(4) to include damages, as well as other equitable or restitutionary reliefs. The Court’s power to grant such other relevant relief is, however, subject to the Government Proceedings Act. Thus, it is for instance not possible for a Court to grant an applicant an injunction against the government under O 53 r 7.
Order 53 r 7(2) grants the Court full power to give the necessary directions for the conduct of the proceedings or otherwise as appropriate, in particular to obtain the relevant evidence that is necessary for the Court to grant and assess the damages sought, or grant any other civil law remedies claimed.
O 53 r 7(3) provides that before the Court grants any relevant relief, the Court must hear any person who opposes the grant of such relief.
Conclusion
The recent amendments to O 53 enable an applicant to seek a declaratory order under O 53 and to also combine a claim for judicial review with private law claims for damages or any other equitable or restitutionary reliefs (subject to the provisions of the Government Proceedings Act). The amendments have removed a common pitfall faced by an applicant under the previous framework, who used to run the risk of having his claim either struck out or his application for leave dismissed if he had sought a specific type of remedy which could not be obtained under the previous O 53. We are of the view that the amendments would lead to the saving of legal costs and time for the parties, since the Court is empowered to deal with the claims for judicial review and for damages or other equitable or restitutionary reliefs within the same proceedings. The amendments are, therefore, to be welcomed.
► Chung Yoon Joo *
Deputy Senior State Counsel
Attorney-General’s Chambers
► Peh Aik Hin
Assistant Director, Legal Policy Division
Ministry of Law
► Denise Wong
Deputy Senior State Counsel
Attorney-General’s Chambers
* This article is written in the authors’ personal capacities and does not represent the views of the Attorney-General’s Chambers or the Ministry of Law.
Notes
1 Cap 121, 1985 Rev Ed.
2 See Rules of Court (Amendment No 2) Rules 2011.
3 [1987] SLR(R) 627.
4 [1996] 1 SLR(R) 294.
5 [2010] SGHC 226.
6 [2011] 1 SLR 1. This point was also affirmed by the Court of Appeal in Yong Vui Kong v Attorney-General[2011] 2 SLR 1189.
7 See Ng Hock Guan v Attorney-General[2004] 1 SLR(R) 415 andChee Siok Chin and others v Minister for Home Affairs and another[2006] 1 SLR(R) 582.
8 Cap 322, 2007 Rev Ed.
9 The rule provides that “No action or other proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether or not any consequential relief is or could be claimed”.