26 Nevertheless, the following factors are among those which may be relevant to the exercise of the discretion:
(Page 11) (i) The starting point is that as a general rule, all issues of fact and law should be determined at the one time.6 The preliminary determination of a point of law (whether by a Court of Appeal, or by the primary judge) while perhaps no longer an exceptional course, is nevertheless a significant departure from the usual way of proceeding, and the discretion to proceed in that way should be exercised with commensurate caution.7 (ii) The reservation of a question to the Court of Appeal should be confined to a question which would finally dispose of the action as a whole, or an identifiable cause of action within it,8 and should be confined to a question which is able to be determined on established or agreed facts;9
(iii) The nature of the question will also be relevant. If, for example, the question involves the development of common law principles, rather than the application of well-established principles, it may be inappropriate to consider the question in the context of an 'artificially constricted' body of facts (namely those the parties agree are necessary for the determination of the preliminary or reserved question), rather than in the context of all of the facts which may be found following a trial of the issues.10
(iv) A question should not be reserved for the Court of Appeal if it does not (or does not clearly) arise,11 or no longer arises, in the case (for example, if the trial court has determined the question itself or if the question is no longer in issue before the trial Court, so that the question is moot) or if the utility of the proceedings is in doubt;12
(Page 12) (v) That a case may be (or may be said by the parties to be) one involving a question of difficulty, or of great importance to the parties, or of public importance, or a question in relation to which there is a conflict of authority on the point, or where the question will perhaps inevitably be taken to the Court of Appeal (on appeal), will be relevant,13 but the existence of these factors, whether individually or collectively, do not inevitably warrant the reservation of the question for the Court of Appeal;14 (vi) The Court of Appeal is primarily an appellate court and to by-pass the primary judge is to deprive the Court of Appeal of the benefit of a first instance judgment;15
(vii) Since the introduction of the present system of case management, the practical advantages which may flow from the determination of one or more issues tried separately have assumed a greater importance. Although these considerations are of primary importance in the trial division of the Court, they are not wholly irrelevant to the exercise of discretion under s 43 of the SC Act or O 31 r 2 and r 7 RSC. The considerations include whether the determination of a preliminary or separate question will contribute to the saving of time and cost by substantially narrowing the issues for trial, will dispose of the action in its entirety, or will significantly increase the prospect of settlement of the balance of the action.16 At the same time, it is appropriate to consider how best the limited resources of the Court as a whole should be utilised, and whether the question is one which is appropriate to consume the time and resources of the Court of Appeal.17
27 The power of a trial judge to deal with a question as a preliminary or separate question, whether pursuant to O 31 r 2 or O 32 r 4 RSC similarly involves the exercise of a wide discretion. Again, that discretion falls to be exercised having regard to all of the circumstances of the particular case, and it is not possible, nor desirable, to attempt to set out an exhaustive list of the factors which would warrant the exercise of the (Page 13) discretion. Factors of the kind to which I have referred in points (i), (iii), (v) and (vii) above may be relevant to the exercise of discretion by a trial judge pursuant to O 31 r 2 or O 32 r 4 RSC. Additional factors which may also be relevant to the exercise of that discretion, include the following: (viii) If the facts said to be relevant to the preliminary or separate question are not agreed, it will be relevant to consider whether there will be any significant overlap between the evidence adduced on the hearing of the separate question and at trial, and whether the determination of the separate question will prolong rather than shorten the litigation,18 bearing in mind the fact that savings in time and expense can prove illusory and the process can generate other problems, such as interlocutory appeals and consequent delays;19
(ix) In addition, in considering the nature of the question proposed for determination as a preliminary question, a further relevant consideration will be whether that question concerns the Court's jurisdiction to deal with the issues in dispute. The determination of that question may sometimes be possible via a preliminary question heard separately from the other issues in dispute,20 although that is not always possible or appropriate.21
5. Whether the jurisdictional issues should be reserved for, or referred to, the Court of Appeal 28 Counsel for Bayan and KRL submitted that the reservation of the jurisdictional issues in Bayan's action, and the referral of the same issues in the substantive action, to the Court of Appeal was appropriate having regard to the following considerations. First, counsel submitted that there is a conflict on the authorities as to whether the Court has an inherent jurisdiction to make freezing orders in the circumstances of this case. Secondly, it was submitted that the Court has a duty to determine the question of jurisdiction first, before dealing with the merits of the substantive action. Thirdly, it was submitted that reservation of the jurisdictional issues, together with the referral of the same issues from the
(Page 14) substantive action, to the Court of Appeal, represented the most procedurally sound and efficient way of having both proceedings brought before the Court of Appeal, and would bring finality to both sets of proceedings if Bayan and KRL were successful. Finally, counsel for Bayan and KRL submitted that the statement of claim in Bayan's action was framed in a neutral manner so as to raise the jurisdictional issues, and that 'stripped of the irrelevant factual allegations contained in BCBCS' defence' the jurisdictional issues were appropriate for resolution by the Court of Appeal as they involve no disputed facts, and there would be no need for oral testimony.
29 Despite some attraction in the submission that the jurisdictional issues be determined by the Court of Appeal, I am not persuaded that in all of the circumstances it is appropriate to take either course contended for by Bayan and KRL. 30 I begin with the observation that the course of action proposed by Bayan and KRL is a significant departure from the usual way in which litigation is conducted, in so far as it seeks to have the Court of Appeal determine the jurisdictional issues at first instance. I am not persuaded that the factors relied upon by Bayan and KRL warrant a departure from the ordinary course.
31 First, there is no doubt that there exists a conflict in the authorities22 and it would be desirable for that conflict to be resolved in due course by an appeal court. However, the extent of the conflict in the authorities should not be overstated. The Court's attention was drawn to only three decisions over the past twenty years dealing with the issue of the Court's inherent jurisdiction to make freezing orders in circumstances similar to those in this case. In the most recent of those decisions, the primary judge was able to deal with the question of the Court's inherent jurisdiction notwithstanding the conflict in the two earlier authorities.23
32 Secondly, although it is well established that 'the first duty of every judicial officer is to satisfy himself that he has jurisdiction'24 that does not inevitably mean or require that the question of jurisdiction must be
(Page 15) determined as a preliminary question separately from, and in advance of, all other questions in a trial, and even less that the question of jurisdiction should be referred to an appellate court for determination in the first instance. Instead, the duty has been generally understood as permitting the primary court to exercise a discretion to postpone determining the question of its jurisdiction until after it has heard the whole case, provided that having done so, it then 'first' determines that question.25
33 The third, and primary, reason why I am not persuaded that this is an appropriate case for the reservation and referral of the jurisdictional issues to the Court of Appeal lies in the fact that the proceedings involve disputed facts. The statement of claim in Bayan's action largely, but not entirely, pleads facts which are drawn from my decision in BCBC Singapore. While BCBCS' defence admits (or admits but with minor qualifications) the latter allegations of fact, other additional facts alleged in the statement of claim are not admitted. The defence, particularly in par 27(c), also pleads additional facts. In the reply, Bayan and KRL deny many of the additional facts pleaded by BCBCS and in turn plead further facts to join issue with BCBCS' pleading. 34 It would clearly not be appropriate to reserve the jurisdictional issues for the Court of Appeal in circumstances where the Court of Appeal would need to resolve disputed issues of fact. However, counsel for Bayan and KRL submitted that the defence filed by BCBCS was inappropriate in its terms 'because it has attempted to infuse into a drafted action which concerns a pure question of power, a vast raft of factual allegations which may go to an exercise of the power, but could not possibly, on any sensible view of the litigation of public and constitutional law matters, [go] to the question of its existence'. In particular, counsel submitted that 'raising factual allegations of the ilk in [27(c) of the defence] is improper and is an attempt to defer and delay a proper hearing on the question of power'. Consequently, counsel for Bayan and KRL submitted that the Court should remove the jurisdictional questions to the Court of Appeal 'shorn of the irrelevant factual allegations made by BCBCS'. Counsel for Bayan and KRL submitted that this could be done by striking out the impugned allegations of fact in the defence (primarily those in s 27(c) of the defence), on the basis that they were irrelevant, or would embarrass, prejudice or delay the fair trial of the present action.
35 It appears that the facts pleaded in par 27(c) of the defence in the present action are directed (or at least primarily directed) to the question
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whether there exists a danger that any judgment that BCBCS might obtain in the Singapore High Court and which it seeks to register and enforce in this Court may be wholly or partly unsatisfied as a result of conduct by Bayan. Because par 44 of the statement of claim is concerned with other matters which, it is contended, need to be established in order to ground the Court's inherent jurisdiction to make freezing orders, the submission that the facts in par 27(c) of the defence are irrelevant to the resolution of the jurisdictional questions is not without merit.
36 However, the force of the submission made by counsel for Bayan and KRL that the additional facts pleaded in par 27(c) of the defence are irrelevant is undermined by the fact that the reply not only denies the additional facts pleaded by BCBCS in its defence, but goes on to plead further facts in answer to them. If the additional facts relied upon by BCBCS were truly thought to be irrelevant, then it is not immediately clear why (in the context of an action which Bayan and KRL submit is solely concerned with jurisdiction) it was necessary for Bayan and KRL to actively join issue with the facts alleged. Counsel for Bayan and KRL submitted that, in the absence of a demurrer procedure in the RSC, the parties had to actively and fully plead their case in response to the facts alleged. That is not, with respect, a persuasive explanation for pleading positively in answer to facts which are said to be irrelevant. 37 In addition, the Court's inherent jurisdiction to grant Mareva orders, or freezing orders, has been developed on a case by case basis.26 The additional facts pleaded in the defence are, apparently, facts on which BCBCS now wishes to rely in support of its case that the making of the Freezing Orders falls within the inherent jurisdiction of the Court (and within O 52A RSC), and in support of its case in the substantive action that the Freezing Orders not be discharged. In determining whether the Court had or has inherent jurisdiction to make freezing orders in the circumstances of this case, it will be necessary to take into account all of the circumstances of the case (once findings of fact are made to resolve any factual dispute arising on the pleadings).
38 That being the case, to exclude the additional facts in the defence (and necessarily those that follow in the reply) from those referred to the Court of Appeal would give rise to the possibility that a decision by that Court would not determine the question of the inherent jurisdiction having
(Page 17) regard to the particular facts of this case. As a result, the Court's decision might be rendered no more than an opinion on a hypothetical question.27
39 A related consideration is that as the Freezing Orders which I made in April this year were of an interim nature, and made ex parte, the basis for those orders has not been tested in an inter partes hearing. The outcome of an inter partes hearing may be that the Court is not satisfied that freezing orders should be made in this case. In that event, any preliminary determination of the jurisdictional issues (which, quite apart from the question of the existence of the inherent jurisdiction to grant freezing orders, and the source of power to make O 52A of the RSC, includes questions of the constitutional validity of O 52A RSC) would have been unnecessary. It is ordinarily preferable not to deal with constitutional issues unless they clearly arise.28 40 Further, the law concerning the inherent jurisdiction of the Court with respect to freezing orders is still in its formative stages. That consideration supports the view that even if the additional facts pleaded in the defence could be struck out, it would be inappropriate to consider the jurisdictional issues in the context of what would then be an incomplete factual matrix.
41 Finally, although it seems very likely that the issues raised in Bayan's action and the substantive action will inevitably receive the attention of the Court of Appeal, reservation of a case to the Court of Appeal in the circumstances to which I have referred would not be an appropriate use of the limited resources of the Court of Appeal (which already operates under a significant workload pressure) and would not be the most efficacious means of resolving the dispute between the parties.
42 Accordingly, I refuse the application by Bayan and KRL to reserve the jurisdictional issues in Bayan's action, and to refer the jurisdictional issues in the substantive action, to the Court of Appeal.
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6. Whether the Court should itself determine the jurisdictional issues as preliminary questions prior to the determination of the merits of the substantive action
43 Bayan and KRL submitted that if I declined to reserve the jurisdictional issues to the Court of Appeal, I should nevertheless determine the jurisdictional issues myself, as preliminary questions, and in advance of the non-jurisdictional issues in the substantive action. In all of the circumstances, I am not persuaded that that is the appropriate course.
44 In reaching this conclusion, in the exercise of the discretion in O 31 r 2 or O 32 r 4 RSC, I have taken into account all of the considerations to which I referred above (other than those dealing specifically with the Court of Appeal itself).
45 I have also taken into account whether there would be any significant saving in the resources of the Court and of the parties if I were to deal with the jurisdictional issues in advance of a trial of the non-jurisdictional issues. Counsel for Bayan and KRL submitted that if the jurisdictional issues were determined at the same time as the substantive action as a whole, then Bayan and KRL would not seek to adduce any evidence on issues going to the merits in the substantive action but would put BCBCS to proof on its case that the Freezing Orders should remain in place. It was submitted that Bayan and KRL would also wish to lead evidence in relation to the methodology and quantum of the security for the undertaking provided by BCBCS. According to the affidavit of Mr David Cowling, if Bayan and KRL were permitted to cross-examine BCBCS' witnesses, the legal arguments and cross examination on the merits of the Freezing Orders alone would be likely to take more than five days of hearing time.
46 A hearing on the jurisdictional questions alone would be likely to require at least a day. The practical difference, then, in dealing with the jurisdictional issues in advance of the non-jurisdictional issues amounts to at least four days of hearing time. However, in the present circumstances, I am not persuaded that this is such a significant difference in overall hearing time as to warrant dealing with the jurisdictional issues separately from the non-jurisdictional issues.
47 I have also taken into account the fact that if Bayan and KRL are successful in relation to the jurisdictional issues, that will bring the litigation to an end. On the other hand, if the Court determines that it has jurisdiction, the substantive issues will remain to be determined. This is not a matter of the kind where dealing with preliminary issues would give
(Page 19) rise to any prospect of a settlement. In addition, given the significance of the jurisdictional issues, dealing with those questions separately from the non-jurisdictional issues will be very likely to result in a multiplicity of appeals.
48 Finally, Bayan and KRL contended that there should be an expedited determination of the jurisdictional issues, in order to minimise the disadvantage to them if the interim Freezing Orders I made in the substantive action were found to have been made in the absence of jurisdiction. 49 The potential for any such disadvantage can be minimised by proceeding as expeditiously as is possible in the circumstances to a hearing of both the present action and Bayan's action. As Bayan and KRL do not propose to adduce evidence on the merits of the substantive action, and as BCBCS should (in view of its preparation for the ex parte hearing in April this year) be ready to proceed to trial in the near future, then the substantive action, together with Bayan's action, should be able to be heard relatively quickly.
50 Accordingly, I propose to list Bayan's action, and the substantive action, for directions, to make programming orders with a view to listing both actions for hearing at the earliest opportunity.
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1BCBC Singapore Pte Ltd v PT Bayan Resources TBK [2012] WASC 1702[2012] HCA Trans 170, 289 - 2913[2012] HCA Trans 170, 346 - 3524Smith v Mann(1932) 47 CLR 426, 445 - 446 (Dixon J); Skubevski vR[1977] WAR 129, 132 (Burt CJ). 5Section 25(6) of the Federal Court of Australia Act 1976 (Cth); Uniform Civil Procedure Rules (NSW) r 1.21; Supreme Court Act 1986 (Vic) s17B; Supreme Court Act 1935 (SA) s 49; Supreme Court Act 1995 (Qld) s 251; and Supreme Court Civil Procedure Act 1932 (Tas) s17. 6AWB Ltd v Cole and Anor (No. 2)(2006) 233 ALR 453, 460 [29] (Young J); City of Swan v Lehman Brothers Australia Ltd(2009) 73 ACSR 86, 95 [27] (Rares J).