Jurisdictional Objections: A Guide
By Tay Jing En
Introduction
Under the Rules of Court 2021, a defendant to a civil claim who contends that the Court has no jurisdiction to hear the claim or should not exercise its jurisdiction to do so is permitted to file a Defence or affidavit (as the case may be) stating only grounds of jurisdictional objection. This article details (i) when and how such a Defence or affidavit should be filed, (ii) follow-up steps that defendants should take and (iii) things that defendants should take care to avoid doing.
Overview of the Legal Position
Jurisdictional objections can take many forms. A defendant to a claim filed in Court might argue:
that the Court cannot hear or try the claim for want of jurisdiction (“Absence of Jurisdiction Argument”); and/or
that should not exercise its jurisdiction to hear or try the claim (“Non-Exercise of Jurisdiction Argument”).
Such arguments may be premised on any of the following (non-exhaustive) grounds:
subject matter of the claim (e.g., a motor accident claim instituted in the Family Justice Courts);
choice of forum (e.g., a claim brought in respect of a contract stated to be within the jurisdiction of a foreign court); and/or
mode of dispute resolution (e.g., a claim brought in respect of a contract that contains an arbitration clause).
Under the old Rules of Court 2014, a defendant seeking to mount jurisdictional challenges such as those listed above had to:
in the case of a claim brought via Writ of Summons, enter an appearance to the claim and then, within the time limited for filing a Defence, take out an application (supported by affidavit) for appropriate relief (“Relevant Application”);[1] and
in the case of a claim brought via Originating Summons, take out the Relevant Application within 21 days after receiving service of originating process.[2]
With the introduction of the Rules of Court 2021, the process has been streamlined and defendants are afforded more time to mount their challenges. Now:
where a claim has been brought via Originating Claim, the defendant should file a notice of intention to contest and then file a Defence (Jurisdiction) setting out only the grounds of jurisdictional challenge;[3] and
where a claim has been brought via Originating Application, the defendant should file an affidavit deposing only to the grounds on which jurisdiction is sought to be challenged.[4]
Where jurisdiction-based objections have been made in the above manner, the Court will deal with them at the first Case Conference in the matter and will, almost invariably, give directions for the defendant to file a Relevant Application within 14 days or such other period as directed.[5] Only then need the defendant file such Relevant Application.
Relevant Applications
The Relevant Application for a defendant to make would typically depend on the nature of the jurisdictional objection mounted.
Where a defendant seeks to make an Absence of Jurisdiction Argument (e.g., due to the subject matter of the claim being outside of the Court’s jurisdiction), the Relevant Application to file would generally be an application to strike out the claim in whole. Case law bears this out:
· Mohammed Shariff Valibhoy and others v Arif Valibhoy [2016] 2 SLR 301; [2016] SGHC 11 (“Shariff Valibhoy”)
Trustees of a Muslim charitable trust applied via Originating Summons for their co-trustee to be replaced.[6] The co-trustee applied for the Originating Summons to be struck out, arguing that the High Court had no jurisdiction to hear the Originating Summons as exclusive jurisdiction over management of Muslim charitable trusts, including appointment and replacement of trustees, lay with MUIS.[7] The High Court agreed with the co-trustee and struck out the Originating Summons.[8]
· Jasmine Gowrimani d/o Daniel v Housing and Development Board [2023] SGDC 250 (“Jasmine Gowrimani”)
Having been evicted from her flat by the HDB, the plaintiff applied via Originating Summons for, among other things, an order that the HDB’s decision to evict her be set aside.[9] The HDB applied to strike out the Originating Summons, arguing that the HDB’s decision to evict could only be challenged via judicial review, which fell outside of the District Court’s jurisdiction.[10] The District Court agreed with the HDB and struck out the Originating Summons, holding that every recognised ground for striking-out applied.[11]
Where a defendant seeks instead to make a Non-Exercise of Jurisdiction Argument, the Relevant Application to file could also be a striking-out application or, as is more common, an application for a stay of proceedings. The case law on the latter point is extensive and, for the purposes of this article, need not be rehashed.
In any case, defendants are required to file affidavits in support of Relevant Applications. In preparing any such applications (and, indeed, at all times), defendants should take note of the below points.
Potential Pitfalls
It is well-established under Singapore law that where a defendant takes a step in the proceedings that evinces his or her intention for the proceedings to go on as normal, he or she may be treated as having submitted to the Court’s jurisdiction.[12] This is pertinent as a defendant who has been found to have submitted to jurisdiction is certain to fail in his or her jurisdictional challenge.
Defendants in civil claims mounting jurisdictional challenges should therefore be wary of taking any steps or doing any acts that could compromise their position, as happened in the below examples:
· Julian Moreno Beltran and another v Terraform Labs Pte Ltd and others [2023] SGHC 240 (“Beltran”)
The claimants sued Terraform Labs Pte Ltd (“TLPL”) for alleged misrepresentation.[13] TLPL applied for the proceedings to be stayed in favour of arbitration.[14] By the time this application was made, TLPL had filed (i) a Defence containing substantive responses to the allegations raised in the claimants’ Statement of Claim,[15] (ii) a Counterclaim of its own,[16] and (iii) an application for various interlocutory reliefs (such as an order for provision of further and better particulars of the claimants’ allegations as to how a contract had been formed between parties).[17] Ultimately, TLPL’s application was dismissed on the basis that by taking the aforesaid steps, TLPL had submitted to the Court’s jurisdiction.[18]
· India International Insurance Pte Ltd v Ng Hua Bak [2023] SGMC 71 (“III v Ng”)
On behalf of a defendant to a personal injury claim, India International Insurance Pte Ltd (“III”) made payment of Court-ordered damages and party-and-party costs to the successful plaintiff, Ng.[19] Unhappy that it had taken III around one (1) year after the date of judgment to pay these sums, Ng demanded interest.[20] Although it took the position that interest should not have accrued in the interim as Ng was awaiting the Public Trustee’s approval of his solicitor-and-client costs, III nevertheless made payment under protest.[21] III then filed an Originating Application seeking, principally, recovery of the disputed interest payment made.[22] At first, Ng filed an affidavit challenging jurisdiction.[23] However, he then (i) applied for III to furnish security for his costs, (ii) notified the Public Trustee of the proceedings and (iii) filed an affidavit deposing to facts in response to III’s affidavit.[24] He also allowed the Originating Application to proceed to a hearing without having filed any Relevant Application.[25] In rendering its decision, the Court held that it did have jurisdiction to hear the Originating Application and that, in any case, Ng had submitted to its jurisdiction by taking (or not taking) the aforesaid steps.[26] (Fortunately for him, the Court ultimately adjudged that Ng was entitled to be paid interest. [27])
Interestingly, TLPL, the first defendant in Beltran, had, in its Defence and Counterclaim, set out a reservation that TLPL would be raising substantive allegations “without prejudice to [its] contention that the Court [had] no jurisdiction over the case and/or should not exercise jurisdiction over the case”.[28] In this regard, the High Court succinctly held as follows:
“… it bears emphasising that a reservation is not a panacea – it will not save an act that is inconsistent with the bringing of a jurisdictional challenge from being a ‘step in the proceedings’.”[29]
All this is to say that the Courts have pronounced authoritatively that defendants who wish to make jurisdictional objections should do just that, and resist the temptation to “do more” unless absolutely necessary.
Comments
The introduction of the Rules of Court 2021 has, unequivocally, been a positive development for defendants seeking to make jurisdictional objections. Defendants now have the assurance that they have more time than before to prepare and file the necessary applications for relief and can focus their energies on these applications without having to engage with the merits of the claims made against them.
As much as added time is a blessing for savvy defendants, it can be a curse for uninformed ones; it widens the window for them to overthink things, make missteps or otherwise engage in conduct that could jeopardise their chances of success.
Defendants in such positions would thus do well to pay heed to pointers such as those shared above.
If you have been served with Court papers and are unsure as to whether the claims made against you can or should be determined in Court, or otherwise have questions on matters of civil procedure, please feel free to contact us at info@covenantchambers.com. Our team of litigation and dispute resolution lawyers would be glad to assist you.
Footnotes
[1] Rules of Court 2014, O 12 rr 7(1), 7(3)
[2] Rules of Court 2014, O 28 rr. 2A(1), 2A(3)
[3] Rules of Court 2021, O 6 rr 7(4), 7(5)
[4] Rules of Court 2021, O 6 rr 12(3), 12(4)
[5] Rules of Court 2021, O 9 r 7(1), 7(2)
[6] Shariff Valibhoy at [2]
[7] Shariff Valibhoy at [4] – [5]
[8] Shariff Valibhoy at [97] – [100]
[9] Jasmine Gowrimani at [1]
[10] Jasmine Gowrimani at [2(c)], [56] and [58]
[11] That is: no reasonable cause of action was disclosed, and the claim was brought frivolously, vexatiously and in abuse of Court process. See Jasmine Gowrimani at [71].
[12] See for example Shanghai Turbo Enterprises Ltd v Liu Ming [2019] SGCA 11 at [37].
[13] Beltran at [7]
[14] Beltran at [29]
[15] Beltran at [20]
[16] Beltran at [20]
[17] Beltran at [27]
[18] Beltran at [117]
[19] III v Ng at [4]
[20] III v Ng at [5]
[21] III v Ng at [6]
[22] III v Ng at [7]
[23] III v Ng at [15]
[24] III v Ng at [16] – [19]
[25] III v Ng at [20] – [21]
[26] III v Ng at [29] – [30] and [37] – [39]
[27] III v Ng at [61(c)]
[28] Beltran at [20]
[29] Beltran at [64]