Kok v Resorts World at Sentosa Pte Ltd
[2017] WASCA 150
•14 AUGUST 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: KOK -v- RESORTS WORLD AT SENTOSA PTE LTD [2017] WASCA 150
CORAM: MARTIN CJ
MURPHY JA
BEECH JA
HEARD: 2 MAY 2017
DELIVERED : 14 AUGUST 2017
FILE NO/S: CACV 34 of 2016
BETWEEN: LIM SOO KOK
Appellant
AND
RESORTS WORLD AT SENTOSA PTE LTD
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :MASTER SANDERSON
Citation :RESORTS WORLD AT SENTOSA PTE LTD -v- KOK [2016] WASC 96
File No :FRJ 1 of 2015
Catchwords:
Private international law - Enforcement of foreign judgments - Appeal from dismissal of application to set aside registration of foreign judgment on grounds that enforcement contrary to public policy - Relevant public policy
Legislation:
Casino (Burswood Island) Agreement Act 1985 (WA)
Foreign Judgments Act 1991 (Cth)
Gaming and Betting (Contracts and Securities) Act 1985 (WA)
Gaming and Wagering Commission Act 1987 (WA)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr R E Lindsay & Mr W C Tay
Respondent: Ms K J Levy
Solicitors:
Appellant: Robertson Hayles Lawyers
Respondent: Squire Patton Boggs
Case(s) referred to in judgment(s):
Ainslie v Ainslie [1927] HCA 23; (1927) 39 CLR 381
Benefit Strategies Group Inc v Prider [2005] SASC 194; (2005) 91 SASR 544
Bouton v Labiche (1994) 33 NSWLR 225
Bride v Shire of Katanning [2008] WASC 131
Burswood Nominees Ltd v Liao Eng Kiat [2004] SGHC 64; [2004] 2 SLR 436
De Santis v Russo [2001] QSC 65; (2001) 27 Fam LR 414
Esther Investments Pty Ltd v Markalinga Pty Ltd [1989] 2 WAR 196
Godard v Gray (1870) 6 LRQB 139
Jenton Overseas Investment Pte Ltd v Townsing [2008] VSC 470; (2008) 21 VR 241
LFDB v SM [No 3] [2017] FCA 80
Loucks v Standard Oil Co of New York (1918) 224 NY 99
Merker v Merker [1963] P 283
Poh Soon Kiat v Desert Palace Inc [2009] SGCA 60
PT Bayan Resources TBK v BCBC Singapore Pte Ltd [2015] HCA 36; (2015) 258 CLR 1
Resorts World at Sentosa Pte Ltd v Kok [2016] WASC 96
Simonsen v Legge [2010] WASCA 238
Stern v National Australia Bank [1999] FCA 1421
MARTIN CJ:
Summary
Mr Lim Soo Kok applies for an extension of time within which to appeal from a decision of Master Sanderson dismissing his application to set aside the registration of a judgment entered against Mr Lim in favour of Resorts World at Sentosa Pte Ltd (Sentosa Casino) by the High Court of the Republic of Singapore. The judgment, in the amount of S$639,288.02 was in respect of moneys lent to Mr Lim by Sentosa Casino for the purpose of gambling at the casino. Mr Lim is a resident of Malaysia and the funds were advanced to him in accordance with the laws of Singapore which permit authorised casino operators to provide credit for the purposes of gambling to persons who are 'premium players' and not permanent residents of Singapore[1] (a class generally known within gambling circles as 'international high rollers'). Mr Lim lost the money advanced to him and repaid only a small part of the funds advanced. Judgment in default of appearance was entered against Mr Lim in the High Court of Singapore. His application to set that judgment aside was dismissed, as was his appeal from the dismissal of that application.
[1] Casino Control Act 2006 (Singapore) s 108(7).
That judgment was registered in the Supreme Court of Western Australia on an application made without notice to Mr Lim. At the time the judgment was registered, it was ordered that Mr Lim have liberty to apply to set aside registration of the judgment within seven days after service of notice of registration and that execution on the judgment was not to issue until after the expiration of that period or any extension of that period granted by the court, or if an application was made to set aside the registration, until that application had been determined.
After receiving notice of registration of the judgment, Mr Lim exercised the liberty to apply to set aside registration of the judgment. The sole ground of his application was that the registration of the judgment should be set aside because enforcement of the judgment would be contrary to public policy[2] and, in particular, contrary to the public policy which is opposed to the provision of credit for the purpose of gambling. After hearing the application, the master announced that it would be dismissed for reasons to be published in due course. He also stated that the dismissal of the application would not take effect until his reasons were published. When those reasons were published, they did not come to the attention of the solicitors for Mr Lim. By the time those solicitors became aware of the publication of the master's reasons, the time for appealing against his decision had expired. That is why Mr Lim has applied for an extension of time within which to appeal.
[2] Foreign Judgments Act 1991 (Cth) s 7(2)(a)(xi).
For the reasons which follow, the master was correct to dismiss Mr Lim's application to set aside registration of the Singapore judgment. Although Mr Lim has provided a reasonable explanation for his delay in commencing the appeal against the master's decision and the delay was not substantial, nor did it occasion any significant prejudice to the respondent, the application for an extension of time should be refused because of the lack of merit in the appeal, which should also be dismissed.
The reasons of the master
The master commenced his reasons by setting out the orders which he had made without notice to Mr Lim, registering the judgment of the High Court of the Republic of Singapore as a judgment of the Supreme Court of Western Australia.[3] He then referred to the facts in rather more detail than I.[4] After referring to a number of provisions of the Foreign Judgments Act 1991 (Cth) (the Act),[5] the master referred to texts and authorities on the subject of public policy in support of the propositions that:[6]
•Australian courts should be slow to invoke public policy as a ground for refusing recognition or enforcement of a foreign judgment, and in that context, the ground of public policy should be narrowly confined;
•The fact that Australian law would have produced a different result to that of the law of the relevant foreign jurisdiction is not of itself sufficient to establish that registration or enforcement of the judgment would be contrary to public policy; and
•The offence against Australian public policy should be profound before a refusal to enforce the foreign judgment is warranted - otherwise the court would be close to undertaking a review of the merits of the foreign decision.
[3] Resorts World at Sentosa Pte Ltd v Kok [2016] WASC 96 (Reasons) [1].
[4] Reasons [3] - [8], although the additional detail is not material to the issues in the appeal.
[5] Reasons [9].
[6] Reasons [10] - [12].
The master then addressed the provisions of the Gaming and Betting (Contracts and Securities) Act 1985 (WA), the Gaming and Wagering Commission Act 1987 (WA) and the Casino (Burswood Island) Agreement Act 1985 (WA). The master observed that it was not easy to reconcile the legislation relating to gaming in Western Australia to which he had referred, although he noted that s 63 of the Gaming and Wagering Commission Act expressly prohibited the provision of credit for the purpose of 'permitted gaming' under that Act.[7] The master did not address the ambit of the prohibition created by that section or its effect, if any, on the provision of credit by casinos to those who I have described as 'international high rollers', but considered it sufficient to note that Mr Lim submitted, and Sentosa Casino appeared to accept, that the provision of credit for gambling in Western Australia is prohibited. In that context, the master observed:[8]
But it does not seem to me the fact there is such a prohibition in this jurisdiction in any way undermines the judgment obtained in Singapore. The legislature in Western Australia has made a determination and enacted legislation which reflects its approach to gambling and the social problems to which it can give rise. That is a perfectly valid exercise of legislative power. But it hardly embodies a universal principle. A system which does allow the provision of credit for gambling is not so inherently evil as to render it contrary to public policy. Many ordinary citizens of Western Australia and Singapore may regard the provision of credit for gambling as morally and ethically wrong. But that is not the point. It cannot possibly be said Singapore is not entitled to make its own decision on that question. Having made that decision, and the defendant having availed himself of the facility, public policy in Australia does not dictate that registration of this judgment should be set aside.
The Foreign Judgments Act 1991 (Cth)
[7] Reasons [13] - [14].
[8] Reasons [15].
The appeal is governed by the Act. Section 5 of the Act is contained within pt 2. Section 5(1) provides:
Application of this Part on the basis of reciprocity of treatment
(1)If the Governor‑General is satisfied that, in the event of the benefits conferred by this Part being applied to money judgments given in the superior courts of a country, substantial reciprocity of treatment will be assured in relation to the enforcement in that country of money judgments given in all Australian superior courts, the regulations may provide that this Part extends in relation to that country.
Regulations made under the Act provide that the Republic of Singapore is a country to which pt 2 of the Act extends.[9] Consequently, s 5(4) of the Act has the effect that an enforceable money judgment which is final and conclusive given by a superior court of Singapore[10] is a judgment to which pt 2 of the Act extends.[11]
[9] Foreign Judgments Regulations 1992 (Cth) reg 3; sch, item 24.
[10] The High Court is such a court: Foreign Judgments Regulations 1992 (Cth) reg 4; sch, item 24.
[11] PT Bayan Resources TBK v BCBC Singapore Pte Ltd [2015] HCA 36; (2015) 258 CLR 1 [20] - [22] (French CJ, Kiefel, Bell, Gageler & Gordon JJ).
Section 6 of the Act provides that a judgment creditor under a judgment to which pt 2 of the Act applies may apply to have the judgment registered in the Supreme Court of a state or territory.[12] The same section provides that upon proof of the matters prescribed by the applicable rules of court, when an application is made pursuant to the section, the relevant court is to order the judgment to be registered[13] and must also specify the period within which an application may be made under s 7 to have the registration of the judgment set aside.[14]
[12] And, in some circumstances, in the Federal Court of Australia: Act s 6(1) and s 6(2).
[13] Act s 6(3).
[14] Act s 6(4).
Section 7 of the Act provides that a party against whom a registered judgment is enforceable may apply to have the registration of the judgment set aside.[15] The same section provides that in the event of such an application, the court must set aside registration of a judgment if it is satisfied of any of a number of specified matters[16] including, relevantly, 'that the enforcement of the judgment … would be contrary to public policy'.[17]
[15] Act s 7(1).
[16] Act s 7(2).
[17] Act s 7(2)(a)(xi).
In the course of argument,[18] reference was also made to s 13 of the Act, which provides:
Money judgments unenforceable if no reciprocity
(1)If the Governor‑General is satisfied that the treatment in respect of recognition and enforcement accorded by the courts of a country to money judgments given in Australian superior courts is substantially less favourable than that accorded by Australian superior courts to money judgments of the superior courts of that country, the regulations may provide that this section applies to that country.
(2)Except so far as regulations made for the purposes of subsection (1) provide, no proceedings are to be entertained in an Australian court for the recovery of an amount of money alleged to be payable under a judgment given in a country to which this section applies.
(3)Nothing in this section affects the enforcement, under the International Arbitration Act 1974, of an award.
[18] ts 4 - 5.
The grounds of appeal
There are three grounds of appeal. Each ground of appeal contains a number of separate assertions. As each assertion comes back to the fundamental proposition that the master was wrong to dismiss the application to set aside registration of the judgment, it is unnecessary to set out the grounds in any detail.
The application for an extension of time within which to appeal
There are a number of cases dealing with the exercise of the court's discretion to extend the time within which to commence an appeal.[19] While the discretion will be exercised in the interests of justice, the court will normally have regard to the length of delay, the reasons for the delay, the extent of any prejudice suffered by the respondent by reason of the delay and the strength of the appellant's case. In this case, the length of the delay was not inordinate, the reason for the delay has been satisfactorily explained and the respondent does not assert any prejudice arising from the delay. Accordingly, the question of whether an extension of time should be granted turns upon the merits of the appeal.
[19] See, for example, Bride v Shire of Katanning [2008] WASC 131; Esther Investments Pty Ltd v Markalinga Pty Ltd [1989] 2 WAR 196; Simonsen v Legge [2010] WASCA 238 [8].
Public policy
The Act was enacted against the background of well-established common law principles regarding the recognition and enforcement of foreign judgments, one of which was (and is) that a foreign judgment would not be enforced if to do so would be contrary to public policy. In that context, common law cases concerning that principle are of assistance in applying s 7(2)(a)(xi).[20]
[20] Jenton Overseas Investment Pte Ltd v Townsing [2008] VSC 470; (2008) 21 VR 241 [6] (Whelan J). See also, by analogy, LFDB v SM [No 3] [2017] FCA 80 [105] (Griffiths J); Bouton v Labiche (1994) 33 NSWLR 225, 235 (Kirby P).
There are many decisions dealing with the principles applicable to a determination that the registration of a foreign judgment must be set aside on the ground that the enforcement of the judgment would be contrary to public policy. Generally speaking, those decisions endorse the propositions embodied in the master's reasons. It is well established that:[21]
It is immaterial that the judgment does not accord with Australian law. The efficacy of the judgment is to be judged not according to Australian law but according to the law [of the relevant foreign jurisdiction].
[21] Benefit Strategies Group Inc v Prider [2005] SASC 194; (2005) 91 SASR 544 [77] (Bleby J, Vanstone & Anderson JJ agreeing).
Further, an application to set aside registration of a foreign judgment is not an occasion for a court to review the merits of the foreign decision by reference to the law of the relevant jurisdiction,[22] nor can registration be set aside even if it is apparent that the foreign court has erroneously applied the law of the jurisdiction in which the judgment has been registered.[23]
[22] Merker v Merker [1963] P 283; Ainslie v Ainslie [1927] HCA 23; (1927) 39 CLR 381, 402 (Higgins J).
[23] Godard v Gray (1870) 6 LRQB 139; Benefit Strategies Group Inc v Prider [77] - [78] (Bleby J).
The legal principles in this area reflect the interests of comity in the respect and recognition of the institutions of other sovereign states which are considered[24] to provide 'substantial reciprocity of treatment for Australian judgments'.[25] That is why the authorities reveal few instances in which a foreign judgment has not been enforced or registered on the ground of public policy.[26]
[24] By executive government - see Act s 5 and s 13.
[25] Jenton Overseas Investment Pte Ltd v Townsing [20] (Whelan J); Bouton v Labiche (234) (Kirby P).
[26] Jenton Overseas Investments Pte Ltd v Townsing [20] (Whelan J).
Different terminology has been used to describe the narrow and limited range of circumstances in which enforcement will be refused because it would contravene public policy. Expressions used include:
•violation of 'some fundamental principle of justice, some prevalent conception of good morals, some deep rooted tradition of the common weal';[27]
•if 'enforcement were to offend some moral, social or economic principle so sacrosanct in [the forum's] eyes as to require its maintenance at all costs and without exception';[28] and
•'where the offence to public policy is fundamental and of a high order'.[29]
[27] Loucks v Standard Oil Co of New York (1918) 224 NY 99, 110 ‑ 111 (Cardozo J), cited with approval in De Santis v Russo [2001] QSC 65; (2001) 27 Fam LR 414 [18] (Atkinson J).
[28] Private International Law, Cheshire & North (12 ed, 1992) 129, cited with approval in Stern v National Australia Bank [1999] FCA 1421 [140] (Tamberlin J).
[29] Jenton Overseas Investment Pte Ltd v Townsing [22] (Whelan J).
Public policy in a federation
Mr Lim's application to the master, and to an extent his argument in this court, was conducted on the basis that relevant public policy was to be identified by paying particular regard to the law in the jurisdiction in which the judgment had been registered - in this case Western Australia. While it may be accepted that the reference in s 7 of the Act to enforcement of the judgment being contrary to public policy is a reference to public policy recognised by the court in which enforcement is sought, it does not follow that, in a federal system such as Australia's, the laws of the particular jurisdiction in which enforcement is sought have special significance. There are two reasons for that.
First, the Act is an Act of the Commonwealth Parliament prescribing the circumstances in which foreign judgments may be registered and enforced by Australian courts. In that context the reference to public policy in s 7 of the Act should be construed as a reference to the public policy of Australia, as recognised by all of the courts of Australia, rather than as a reference to public policy parochial or peculiar to a particular state or territory.
Second, the cases to which I have referred make it clear that only a contravention of public policy which is 'fundamental and of a high order'[30] will sustain an application to set aside registration of a foreign judgment. In this context it is inconceivable that a principle of 'public policy so sacrosanct as to require its maintenance at all costs'[31] could be peculiar or parochial to a particular state or territory of Australia. It follows that, in the circumstances of this case, the laws of Western Australia relating to the provision of credit for the purposes of gambling have no greater significance or weight than the laws of the other states or territories which together comprise Australia.
[30] Jenton Overseas Investment Pte Ltd v Townsing [22] (Whelan J).
[31] Jenton Overseas Investment Pte Ltd v Townsing [22] (Whelan J).
Gambling on credit in Australia
As I have noted, it is well established that the fact that the law of the foreign jurisdiction in which the relevant judgment was first entered is not consistent with the law of Australia does not, of itself, lead to the conclusion that enforcement of the judgment in Australia would be contrary to public policy. However, if enforcement of the judgment within Australia would offend some public policy of a 'fundamental and … high order … so sacrosanct as to require its maintenance at all costs' or would 'violate some fundamental principle of justice' it is inconceivable that the relevant public policy would not be evident in the laws of Australia and recognised by the courts of Australia.
Put more bluntly, the fact that a foreign judgment was entered in circumstances which would not sustain a cause of action in Australia does not mean that enforcement of the foreign judgment would be contrary to Australian public policy. On the other hand, if the foreign judgment was entered in circumstances which would sustain a good cause of action and a judgment enforceable in Australia, it is inconceivable that enforcement of that foreign judgment could be contrary to the public policy of Australia. Put even more directly, it is inconceivable that the courts of Australia could recognise a public policy which was not recognised by the laws[32] which those courts are required to enforce.
[32] Either common law or statute.
For reasons which will shortly appear, that simple proposition is determinative of Mr Lim's application for an extension of time and his appeal.
Essentially, that is because Mr Lim now accepts, through counsel, that all or at least a significant number of Australian jurisdictions, including Western Australia, expressly permit the provision of credit by casino operators to premium players who are not permanent residents of Australia, and authorise the courts to enforce debts created by the provision of such credit. So, on behalf of Mr Lim, it is now accepted that the laws of all or at least most Australian jurisdictions have the same substantive effect as the laws of Singapore which permitted Sentosa Casino to provide credit to Mr Lim for the purposes of gambling and which authorised the High Court of Singapore to enforce the debt created by the provision of that credit.
As I have noted, the master proceeded upon an apparent assumption by each of the parties to the effect that the provision of credit for the purposes of gambling was prohibited in Western Australia by s 63 of the Gaming and Wagering Commission Act. Because of the position apparently adopted by the parties, he did not analyse that proposition in any detail or investigate the extent to which it prevented a casino providing credit to members of the group I have described as 'international high rollers' for the purposes of gambling.
I have also noted that the particular provisions of the law regulating gambling in Western Australia are of no greater significance to an application to set aside registration of a foreign judgment in this court than the law regulating gambling in any other state or territory of Australia. However, as Mr Lim's counsel conceded, the general effect of the laws regulating gambling in Western Australia is typical of the general effect of the laws regulating gambling in most, if not all, states and territories of Australia. It is therefore appropriate to give more detailed consideration to the relevant laws of Western Australia.
It should first be noted that s 63 of the Gaming and Wagering Commission Act, to which the master referred, applies to 'permitted gaming'. That expression is defined by that Act to mean gaming which is conducted under and in accordance with a permit issued pursuant to that Act.[33] However, gambling at the state's only casino is lawfully undertaken pursuant to an authorisation granted pursuant to the provisions of the Casino (Burswood Island) Agreement Act, rather than pursuant to a permit issued under the Gaming and Wagering Commission Act. Accordingly, s 63 of the latter Act does not apply to gambling operations conducted at the state's only casino. Those operations are regulated pursuant to the authorisation granted under the Act specifically relating to that casino. As that Act, the Casino (Burswood Island) Agreement Act, is specified in the schedule to the Gaming and Betting (Contracts and Securities) Act, gambling activities conducted at the casino come within the definition of 'prescribed gaming' in s 3 of that Act.
[33] Gaming and Wagering Commission Act s 3(1).
Section 4 of the Gaming and Betting (Contracts and Securities) Act reflects and enacts the longstanding common law policy to the effect that contracts relating to or arising out of contracts for gaming or betting are not enforceable, but excepts from its operation contracts relating to 'prescribed gaming'. Section 5 of the same Act provides that the placement of a lawful bet in connection with prescribed gaming is deemed to give rise to a contract which may be enforced by any court of competent jurisdiction and specifically provides that such a contract will not be deemed to be illegal or void by reason only that it arises out of or in connection with gaming or betting. Section 6 of the same Act provides:
Money or security lent for lawful gaming or betting recoverable
Where -
(a)money or any valuable thing is lent or advanced for the purpose of lawful gaming or of making any lawful bet, or for the purpose of the payment of any debt in respect of lawful gaming or lawful betting; or
(b)any bill, note, cheque, mortgage or other security is accepted, made, given, granted, entered into or executed by any person for the purpose of repaying or re‑imbursing, or as security for the repayment or re‑imbursement of, money or any valuable thing lent or advanced for the purpose of lawful gaming or of making any lawful bet or to secure the payment of any debt in respect of lawful gaming or lawful betting,
that money or valuable thing is recoverable in a court of competent jurisdiction and that money or valuable thing and any such security shall be taken to have been used or given for a lawful consideration.
So, contrary to the assumption made by the master on the basis of the position apparently adopted by the parties, the advancement of credit for the purposes of gambling regulated by the Gaming and Betting (Contracts and Securities) Act is not prohibited. To the contrary, that Act specifically provides that loans made for that purpose may be recovered. As I have noted, that Act regulates gambling conducted at the state's only casino.
Further, gambling operations at the casino are regulated by the conditions imposed upon the authorisation granted to the casino operator pursuant to the Casino (Burswood Island) Agreement Act. Although the relevant and precise terms of the applicable conditions were not established during the course of argument or by evidence, counsel for Mr Lim expressly accepted that those conditions permitted credit to be advanced to premium players who are not normally resident in Australia.[34] As I have noted, counsel for Mr Lim conceded that the effect of the laws regulating gambling in Western Australia is substantially identical to the effect of the laws regulating gambling in Singapore and in most, if not all, states and territories of Australia.[35]
[34] ts 21.
[35] ts 20.
This concession was fatal to the appeal. However, counsel for Mr Lim contended that in discerning public policy, the court could have regard to a general rule stated in legislation without giving effect to an express statutory exception to that rule.[36] Counsel for Mr Lim further contended that enforcement of a foreign judgment founded on conduct sanctioned as lawful and giving rise to enforceable rights and obligations under Australian legislation could nevertheless be determined to be contrary to public policy on account of the conduct on which it was founded.[37] These contentions fundamentally misunderstand the relationship between the legislative and judicial arms of government, and the duty of the court to give effect to constitutionally valid legislation.
[36] ts 11 - 12, 26 - 27.
[37] ts 17 - 19.
After making the concession to which I have referred, counsel for Mr Lim was invited to advance any basis upon which it could be contended that the enforcement of a judgment arising from a contract which was lawful and enforceable in the foreign jurisdiction in which a judgment was first entered, and which would also be lawful and enforceable in most, if not all, states and territories of Australia, could somehow be contrary to the public policy of Australia. Counsel was unable to identify any authority in any jurisdiction which would support that proposition, or to enunciate any process of reasoning which could lead to that extraordinary conclusion.[38]
Poh's case
[38] ts 25 - 28.
The grounds of appeal specifically rely upon the decision of the Court of Appeal of Singapore in Poh Soon Kiat v Desert Palace Inc[39] and considerable reliance was placed on that decision in both written and oral submissions. However, properly analysed, the decision in that case provides no support for the appeal - to the contrary, it supports the conclusion that the appeal should be dismissed.
[39] Poh Soon Kiat v Desert Palace Inc [2009] SGCA 60.
That case concerned an appeal from a decision upholding a claim in a common law action to enforce a judgment of the superior court of the State of California in Singapore. The judgment in California arose from the provision of credit amounting to $US2 million to enable the appellant, Poh Soon Kiat, to gamble at the casino known as Caesars Palace in Las Vegas, Nevada. Section 5 of the Civil Law Act of Singapore partly provides that:
(1)All contracts or agreements, whether by parol or in writing, by way of gaming or wagering shall be null and void.
(2)No action shall be brought or maintained in the court for recovering any sum of money or valuable thing alleged to be won upon any wager or which has been deposited in the hands of any person to abide the event on which any wager has been made.
In Poh, the Court of Appeal overturned an earlier decision of a single judge in Burswood Nominees Ltd v Liao Eng Kiat[40] to the effect that a loan for the purposes of gambling did not come within the scope of s 5 of the Civil Law Act. Rather, the Court of Appeal concluded that s 5(2) reflected the public policy of Singapore, which was opposed to the enforcement of gambling debts, and that public policy extended to and included the enforcement of loans made for the purposes of gambling.
[40] Burswood Nominees Ltd v Liao Eng Kiat [2004] SGHC 64; [2004] 2 SLR 436.
The court's conclusion turned critically upon the fact that the relevant public policy, against the enforcement of gambling debts, was embodied in the statute laws of Singapore. That is apparent from the following passages of the reasons of the court. After referring to a passage from a text, the court observed:[41]
In the above passage, the authors probably had in mind public policy at common law ('common law public policy'). In the case of s 5(2) of the CLA, it may be said to encapsulate a public policy emanating from statute ('statutory public policy'). In any case, s 5(2) is a statutory prohibition against the recovery of gambling debts which was imposed in the public interest. In this regard, it bears emphasis that 'statutes can be the source of fundamental public policy of general application' [emphasis added] ... As a matter of principle, a legal or public policy expressed in the statute would be more fundamental than common law public policy as it is axiomatic that statute law takes precedence over the common law.
Ex hypothesi, the statutory public policy expressed in s 5(2) of the CLA is superior to what may be called the 'higher' international public policy at common law, ie, the 'higher standard of public policy in operation when a forum court is faced with a foreign judgment' ... This is because the higher international public policy is only common law public policy. The position would be different if the court's refusal to enforce a gambling debt, in whatever form or guise that debt takes (including the debt as converted into a foreign judgment), is based on domestic public policy that has no basis in statute; in such circumstances, the court would be entitled to prefer the higher international common law public policy to its domestic common law public policy. But, this is not the case where s 5(2) of the CLA is concerned. In a contest between the higher international public policy at common law and statutory public policy, the latter must prevail.
...
Common law public policy has to be distinguished from statutory public policy because statute law has superior legal force compared to the common law. It follows that statutory public policy necessarily takes precedence over common law public policy. (original emphasis)
[41] Poh [112] ‑ [113], [118].
The decision in Poh directs attention to public policy embodied in the statute laws of the jurisdiction in which enforcement of the foreign judgment is sought. Mr Lim concedes that the laws of most, if not all, states and territories of Australia permit the provision of credit for gambling in the circumstances in which credit was provided to Mr Lim in Singapore, and further provide that debts arising from the provision of such credit are enforceable in the courts of the states and territories of Australia. It follows that the decision in Poh is directly contrary to the arguments advanced in support of Mr Lim's appeal.
Some red herrings
For the sake of completeness, it is appropriate to briefly deal with two contentions advanced on behalf of Mr Lim.
Reciprocity
It was submitted that registration of the judgment should be set aside because it should be concluded from Poh's case that the courts of Singapore would not enforce the judgments of Australian courts in respect of debts arising from loans made for the purposes of gambling. It was submitted that the reciprocity which underpins the Act is not present, with the result that registration of the judgment should be set aside.[42]
[42] Appellant's submissions [38] - [42], WAB 28.
There are many reasons why this misconceived submission must be rejected. First, under the Act, and in particular s 5 and s 13 of the Act, reciprocity of treatment between foreign jurisdictions and Australia are matters to be determined by the Governor General (presumably on the advice of executive government) as a step in determining the countries to which pt 2 of the Act extends. Reciprocity of treatment in the foreign jurisdiction in which the judgment was first entered of a notional case corresponding to the claim the subject of the judgment is not a matter properly considered by a court hearing an application to set aside registration of the judgment.
Second, under s 7(2)(a)(xi) of the Act, the question which must be determined by the court hearing an application to set aside a judgment is whether enforcement of the judgment would be contrary to the public policy of Australia. Although there may be cases in which public policy recognised internationally may be relevant to that question, the statutory provisions in a single jurisdiction, such as Singapore, are not likely to bear significantly upon that issue.
Third, given that an application to set aside the default judgment entered in Singapore was dismissed, and an appeal from that decision was also dismissed, thereby affirming the judgment entered, it cannot be assumed that the courts of Singapore would refuse to enforce judgments of Australian courts entered in similar circumstances. To the contrary, although the contemporary law of Singapore was not explored in evidence, there is a fair inference from the sequence of events giving rise to the judgment in Singapore in this case to the effect that the law of Singapore is not as it was when Poh's case was decided.
The particular circumstances in which credit was advanced to Mr Lim
Although not addressed in any aspect of any ground of appeal, the written submissions advanced in support of Mr Lim's case rely extensively upon the particular circumstances in which the credit was said to have been advanced to Mr Lim for the purposes of gambling. There are a number of reasons why those submissions must be excluded from consideration.
First, the submissions are irrelevant because they do not relate to any ground of appeal. No application was made to amend the grounds of appeal to include a ground based upon this aspect of the written submissions.
Second, in the proceedings before the master, counsel for Mr Lim expressly confirmed that the application to set aside the judgment was based solely upon the proposition that enforcement of the judgment would be contrary to the public policy against the provision of credit for the purpose of gambling. No reliance was placed upon the factual assertions now made on behalf of Mr Lim. Those factual assertions were and remain contentious, and were the subject of conflicting evidence which was not tested. No determinations of fact concerning those assertions were made by the master. In those circumstances it would not be appropriate to allow these issues to be raised, for the first time, on appeal.
Third, counsel for Mr Lim was unable to identify any ground of public policy to which the particular circumstances of the advance of credit to Mr Lim were relevant. In particular, counsel did not identify or refer to any ground of public policy that would be contravened by the enforcement of the judgment other than the asserted public policy against the provision of credit for the purposes of gambling.[43] As it is clear that Mr Lim was given credit for the purposes of gambling, the particular circumstances in which that credit was advanced are irrelevant.
[43] ts 15 - 17.
Conclusion
For these reasons the grounds of appeal have no prospect of success. It follows that the application for an extension of time within which to commence an appeal, and the appeal, should be dismissed.
MURPHY JA: I agree with the Chief Justice.
BEECH JA: I agree with Martin CJ.
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