Case Summaries

Noor Azlin bte Abdul Rahman and another v Changi General Hospital Pte Ltd

SUPREME COURT OF SINGAPORE

9 June 2021

Case summary

Noor Azlin bte Abdul Rahman and another v Changi General Hospital Pte Ltd [2021] SGCA 59

Originating Summons No 9 of 2021

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Decision of the Court of Appeal (delivered by Justice of the Court of Appeal Andrew Phang Boon Leong):

Outcome: CoA allows the first contested application to transfer an appeal allocated by default to the Appellate Division of the High Court to the Court of Appeal.

Pertinent and significant points of the judgment

  • The Court of Appeal considers the statutory framework governing the allocation of appeals between the Appellate Division of the High Court (“AD”) and the Court of Appeal under the new amendments to the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“SCJA”) and the Rules of Court (Cap 322, R5, 2014 Ed) (“ROC”) with effect from 2 January 2021 (at [22] – [81]).
  • The Court of Appeal lays out the principles governing when it would be more appropriate for the Court of Appeal to hear an appeal than the AD, such that an appeal ought to be transferred from the AD to the Court of Appeal under s 29D of the SCJA (at [39] – [81]).
  • The Court of Appeal allows the appellants’ application for transfer. It finds that it is better placed to hear the appellants’ appeal (“the Appeal”) than the AD given its familiarity with the circumstances and background to the Appeal, the presence of pending proceedings before the Court of Appeal which will depend in part on the determination of the Appeal, and the need for efficiency (at [107] – [110]).

Facts and background

1 The first appellant, Ms Noor Azlin bte Abdul Rahman (“Ms Azlin”) commenced legal proceedings against the respondent, Changi General Hospital Pte Ltd (“CGH”) on 20 January 2015 in High Court Suit No 59 of 2015 (“Suit 59”). She claimed that CGH had caused a delay in her diagnosis of lung cancer and had thus caused loss to her (at [11]).

2 Her claim was dismissed by the High Court judge (“the Judge”) in Noor Azlin bte Abdul Rahman v Changi General Hospital Pte Ltd and others [2019] 3 SLR 1063 (“the first HC Judgment”). Ms Azlin appealed against the first HC Judgment and her appeal (“the Original Appeal”) was allowed in part by the Court of Appeal in Noor Azlin bte Abdul Rahman v Changi General Hospital Pte Ltd and others [2019] 1 SLR 834 (“the first CA Judgment”) (at [11])\.

3 In the first CA Judgment, the Court of Appeal found that CGH had breached its duty of care to Ms Azlin by failing to ensure that there was proper follow-up in her case. The Court of Appeal remitted the case back to the Judge to assess and quantify the loss and damage occasioned to Ms Azlin due to the delayed diagnosis of lung cancer (at [12]).

4 Ms Azlin passed away on 1 April 2019 from lung cancer, a month after the first CA Judgment was released. Her older brother, the second appellant, Mr Azmi bin Abdul Rahman, was added as a party to Suit 59 to continue the action in his capacity as executor of Ms Azlin’s estate. The Judge awarded Ms Azlin’s estate a sum of $326,620.61 (at [14] – [15]).

5 The appellants appealed and the Appeal was allocated by default to be heard by the AD. They subsequently filed the present application to the Court of Appeal seeking a transfer of the appeal to the Court of Appeal (at [16]).

Overview of the statutory scheme and the transfer provisions

6 The AD is designed to share in the Court of Appeal’s caseload by hearing civil appeals against decisions of the General Division of the High Court (“Gen Div”). To bring flexibility to this allocation while maintaining efficiency, there is a default allocation of appeals and a subsequent opportunity to transfer the already-allocated appeals between the two appellate courts (at [22]).

7 The default allocation of appeals has both a temporal and subject matter dimension. The temporal dimension refers to the version of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) that applies to the appeal concerned – ie, the present SCJA or the version prior to 2 January 2021 (“pre-2 Jan 2021 SCJA”). The subject matter dimension refers to the categories of civil appeals that are in a sense “reserved” to the Court of Appeal by default under the SCJA (at [24]).

8 To determine the default allocation of an appeal, the applicable version of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) and the Rules of Court (Cap 322, R 5, 2014 Ed) should first be ascertained (ie, the temporal dimension). If the pre-2 Jan 2021 SCJA and the version of the ROC pre- 2 January 2021 apply to the appeal, the appeal will lie only to the Court of Appeal. If the SCJA and ROC apply to the case, it is necessary to ascertain whether the case falls within any of the grounds prescribed under the Sixth Schedule to the the SCJA or if any other written law provides that the appeal is to be heard by the Court of Appeal pursuant to s 29C(2) of the SCJA (ie, the subject matter dimension). If this is answered in the affirmative, the appeal and other related applications are to be filed in the Court of Appeal. Otherwise, they are to be filed in the AD (at [37]).

9 A transfer of the appeal may subsequently be effected pursuant to ss 29D and 29E of the SCJA (at [37]).

10 Focussing on s 29D SCJA, the power to transfer an appeal from the AD to the Court of Appeal lies solely with the Court of Appeal and is exercisable at its discretion in three situations: (a) on the Court of Appeal’s own motion; (b) on a reference by the AD; or (c) on an application by any party to the appeal before the AD – as is the case in the present application (at [42]).

11 When faced with an application for transfer from the parties, the overarching inquiry is whether it is more appropriate for the Court of Appeal to hear an appeal that has been made to the AD and in determining this question, the Court of Appeal may have regard to the seven grounds as prescribed under O 56A r 12(3) of the ROC in determining whether to grant or dismiss the application (at [43] – [44]).

12 Order 56A r 12(3)(a) of the ROC provides that the Court of Appeal may have regard to “whether the proceedings relate to a matter of national or public importance”. Cases that involve issues of fact and law which are of national or public importance may fall within this ground. Such matters do not necessarily have to arise squarely for the court’s determination in the appeal. However, the scope of the provision is delimited by the words “national or public importance” and the determination of whether a matter engages these words must depend on the facts and circumstances of each case. The words “public importance” indicate that the matter will have weighty ramifications that go beyond the parties to the dispute. The addition of the requirement of “national or public importance” indicates that the legislative drafters envisaged that cases falling within this ground will not only affect a segment of society, but also have the potential to impact Singapore on a macro-level (at [47] – [49]).

13 Order 56A r 12(3)(b) of the ROC provides that the Court of Appeal may have regard to “whether the appeal will raise a point of law of public importance”. The targeted words “the appeal will raise” indicate that the point of law of public importance must be an issue that directly arises for the court’s determination, and which has a substantial bearing on the outcome of the case. The explicit reference to “law” makes clear that this ground will not be engaged if the appeal relates to points which are factual in nature, even if they are of public importance. Finally, the question of whether a point of law of “public importance” arises in an appeal must depend on the facts and circumstances of the case. An ordinary reading of the words indicates that the point (when adjudicated upon) will have weighty ramifications that go beyond the parties to the dispute. The identical wording of s 47(2) of the SCJA in the context of an application for leave to appeal against a decision of the AD, suggests that similar principles apply in respect of the interpretation of the two provisions (at [52] – [62]).

14 Order 56A r 12(3)(c) of the ROC provides that the Court of Appeal may have regard to “the complexity and novelty of the issues in the appeal”. The words “issues in the appeal” indicate that the issues must not only feature in the appeal but also arise directly for the court’s determination and have a substantial bearing on the outcome of the case. Both complexity and novelty must be present and whether the threshold is crossed to fulfil this ground is a matter of degree for the court to determine after having regard to the facts and circumstances of the case (at [65] – [67]).

15 Order 56A r 12(3)(f) of the ROC provides that the Court of Appeal may have regard to “the significance of the results of the proceedings”. Unlike the other provisions which focus on issues in the appeal or the proceedings as a whole, the focus of this ground is on the outcome. The word “significance” is unaccompanied by any stipulation as to who or to what the outcome matters. This suggests that the ground may be satisfied even in cases where the determination of the appeal will only affect the parties concerned if the results are of substantial and critical consequences to them. That said, the O 56A r 12(3)(f) of the ROC should not be seen as a general ground available to all and sundry so long as they can demonstrate some personal interest in the results of the appeal. Such a broad reading of this ground would render it to be so broad as to be meaningless. In all cases, whether the ground is fulfilled is a matter for the court to determine, having regard to the facts and circumstances of the case (at [70] – [73]).

16 Order 56A r 12(3)(g) of the ROC provides that the Court of Appeal may have regard to “any other relevant matter”. This provision is worded broadly and serves as a catch-all category for reasons that do not fall within the other six grounds in O 56A r 12(3) of the ROC, but which nonetheless make it more appropriate for the Court of Appeal to hear an appeal. Any court hearing a transfer application premised on this ground will be vigilant in scrutinising the veracity of any reasons put forth in support of the transfer of so as to prevent any abuse of this ground (at [74] – [77]).

17 Order 56A r 12(3)(d) of the ROC provides that the Court of Appeal may have regard to “whether there is a decision of the Court of Appeal in relation to a point of law raised in the appeal which may be material to the outcome of the appeal”. While similar principles in relation to “a point of law” “raised” in “the appeal” apply to both O 56A rr 12(3)(b) and 12(3)(d) of the ROC, the difference between them is that in so far as O 56A r 12(3)(d) of the ROC is concerned, there must be a prior decision of the Court of Appeal which relates to the “point of law” which may be “material to the outcome of the appeal” (at [79] – [80]).

18 Order 56A r 12(3)(e) of the ROC provides that the Court of Appeal may have regard to “whether there are conflicting judicial decisions”. The Court of Appeal, as the final arbiter of law in Singapore, is uniquely placed to develop and bring clarity to the law by resolving conflicting judicial decisions. While the provision places no restrictions on the nature of the conflict, it appears that leave to transfer an appeal from the AD to the Court of Appeal will seldom be granted solely on this ground where the conflict pertains only to decisions of the Gen Div. This is because the AD, by virtue of its position of precedence above the Gen Div, is well placed to resolve conflicting decisions of the Gen Div (at [79], [81]).

The Court of Appeal’ decision

19 As a preliminary point, the Appeal was rightly filed to the AD. It is an appeal against a decision of the Judge released after 2 January 2021. It was thus a decision of the Gen Div, to which the amendments in the SCJA and ROC apply (ie, the temporal dimension). As none of the parties in the application contended that the Appeal falls within any of the prescribed categories in the Sixth Schedule to the SCJA, there was no error in the allocation of the Appeal to the AD by default (at [82] – [83]).

20 The appellants’ contention that the amendments to the SCJA and ROC only apply prospectively to cases commenced in the Gen Div after 2 January 2021 is completely baseless. Section 31(5) of the SCJA makes clear that proceedings begun in the High Court prior to 2 January 2021 will be deemed to continue as proceedings in the Gen Div, on or after, 2 January 2021 (at [84] – [87]).

21 The two grounds under O 56A rr 12(3)(a) and 12(3)(b) of the ROC are not engaged on the facts (at [90] – [100]).

22 The two grounds under O 56A rr 12(3)(c) and 12(3)(f) of the ROC are not engaged on the facts (at [102] – [105]).

23 While transfer applications which hinge on O 56A r 12(3)(g) of the ROC will be subject to searching scrutiny by the Court of Appeal and will, barring exceptional and rare circumstances, generally fail to warrant an exercise of the court’s power under s 29D(1) of the SCJA, the Court of Appeal’s familiarity with the circumstances and background to the Appeal, the presence of pending related proceedings before the Court of Appeal which will depend in part on the determination of the Appeal, and the need for efficiency in respect of the resolution of Suit 59, has generated a unique and exceptional situation which makes it more appropriate for the Court of Appeal to hear the Appeal (at [107] – [110]).

 

This summary is provided to assist in the understanding of the Court’s judgment. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s judgment.

 

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