APRIL 20 ― In “What is an interlocutory matter, and why hearsay evidence is admissible?” I raise the question whether an application for leave for judicial review under Order 53 rule 3(1) Rules of Court 2012 is an interlocutory proceeding.
I refer to the more than a century-old English case of Gilbert v Endean [1878] where Cotton J said that interlocutory applications “do not decide the rights of parties” but are made for the purpose of keeping things status quo till the rights can be decided, or for the purpose of obtaining some direction of the court as to how the cause is to be conducted, as to what is to be done in the progress of the cause for the purpose of enabling the court ultimately to decide upon the rights of the parties.
Many of the cases which are brought before the court may be interlocutory in form but are not interlocutory within the meaning of the rule as regards evidence.
In whatever form a matter may come before the court, where the court is to decide the rights of the parties, the evidence must be regulated by the ordinary rules, and must be such as would be admissible at the hearing of the cause.
In short, where the application or matter before the court is not interlocutory, hearsay evidence is not admissible.
Gilbert v Endean ― a decision of the English Court of Appeal ― has been said to draw a distinction between interlocutory proceedings generally and proceedings which are interlocutory in form but there is an issue to be determined, which decides the rights of the parties. This was noted more than 80 years later in Rossage v Rossage and Others [1960] ― another decision of the English Court of Appeal.
In Rossage v Rossage, the mother of a child applied to strike out certain affidavits, filed by the child’s father in support of his application to suspend the mother’s access to the child, on the ground that the affidavits were scandalous and irrelevant.
Three of the affidavits contained hearsay evidence as well as some relevant material. The trial judge ruled that the hearsay was irrelevant and inadmissible, but refused the application to strike out on the ground that he was quite capable of shutting his mind to the irrelevant matter.
On appeal by the wife the husband contended, among others, that as the proceeding was interlocutory an affidavit might contain, by virtue of the proviso to the then Order 38 rule 3 of the Rules of Supreme Court which stated that on interlocutory proceedings an affidavit might contain statements of information and belief, with the sources and grounds thereof.
The proviso is in pari materia or materially similar with Order 41 rule 5(2) of the Rules of Court 2012.
The Court of Appeal held that as the father’s application to suspend access, although interlocutory in form, was an application to decide the rights of the parties, it was not an “interlocutory proceeding” within the meaning of the proviso as similarly decided in Gilbert v Endean.
The hearsay evidence in the affidavits was therefore inadmissible and irrelevant, and, as the proportion of that material to the relevant material was so high, the three affidavits were expunged.
Months later the case of Re J (an infant) [1960] came before the English High Court (Chancery Division) where the mother of a child took out an application by way of a summons asking that she should be at liberty to take the child out of the jurisdiction to live with her abroad.
The summons was served on the father of the child and on another person. In support of her application the mother swore an affidavit which in paragraph 2 read as follows:
“The signed statement now produced and shown to me marked 'BJ.1' is in so far as the same consists of matters of fact true to my knowledge and in so far as it consists of matters of information or opinion true to the best of my knowledge and belief”.
The father applied to the court for an order (a) that the words in the said paragraph and (b) a number of passages in the exhibited statement, should be struck out on the grounds that they were “scandalous, irrelevant and argumentative or otherwise oppressive and are in breach of the Rules of Supreme Court”.
The father’s application also asked for similar relief in connection with an affidavit sworn in support of the mother’s application by another deponent and a statement exhibited to it.
Cross J ruled that the mother’s application for leave to take the child out of the jurisdiction was not an interlocutory proceeding within the meaning of the proviso to Order 38 rule 3 of the Rules of Supreme Court, which permitted an affidavit in such proceedings to contain statements of information and belief, with the grounds thereof.
If an affidavit or exhibit filed in a proceeding that is not interlocutory contains hearsay evidence, the court has complete discretion whether the inadmissible matter should or should not be struck out.
On a similar account, an application for leave under Order 53 rule 3 of the Rules of Court 2012 is not interlocutory proceeding. It is an application to decide the right of the applicant to seek judicial review.
Furthermore, the ex parte application for leave commences an application for judicial review ― the first of two steps. In other words, it is an originating step in the proceeding and not an interlocutory proceeding. The latter is a step while an action is “pending”. An action is pending as soon as commenced and until it is concluded. (See K Sockalinga Mudaliar v S Eliathamby [1952])
The leave application is a mode of commencement, not interlocutory.
Accordingly, it is humbly submitted that hearsay evidence is not admissible in an application for leave for judicial review under Order 53 of the Rules of Court 2012.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
