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292 Singapore Academy of Law Journal (2003) particular, the contents of the affidavits which would have to be prepared) for the second matter would be significantly affected by the outcome of the first matter (ii) the decision in the first matter would inevitably affect the decision in the second matter, and it is not possible to make “alternative orders” 122 and (iii) an appeal in respect of the first matter is very likely. In such a situation, it would make sense for all work on the second matter to be stayed, pending the determination (including any appeal) of the first matter. 6.4.1.4 What hearing procedure should be used if the civil suit and the ancillary matters are ordered to be consolidated/heard at the same time 123 201 One reason that a party may wish to have the matter dealt with by the ordinary civil court would be because they prefer the procedural regime governing the trials of ordinary civil cases to that governing the hearing of ancillary matters. The differences in the two procedural regimes are as follows: (a) Ordinary civil suit procedure (i) (ii) (iii) (iv) Parties’ respective cases will be set out in pleadings; Only one set of affidavits of evidence-in-chief will be filed by all parties and their witnesses; The trial will be held in open court; and Each party will be able to cross-examine all the other parties and their witnesses, as of right (b) Ancillary matters procedure (i) (ii) Parties’ respective cases will be set out in affidavits filed by them; There may be several “rounds” of affidavits filed by all parties; 122 See Section 2.3.2 for an example of a case where alternative orders were made. 123 Where the civil suit and the ancillary matters are tried one after the other, the open court trial procedure should be used for the civil suit and the ancillary matters procedure should be used for the ancillary matters.
15 SAcLJ Matrimonial Assets and the 3 rd Party 293 (iii) (iv) The hearing will take place in chambers 124 ; and Witnesses may only be cross-examined with the court’s leave. 202 It is submitted that the procedural regime governing the ordinary civil suit is not necessarily more advantageous to all parties. In respect of items (i) and (ii) for each of the above categories, it is submitted that parties will be able to set out and ascertain the other parties’ cases whether they are set out in pleadings or affidavits. Indeed, the ancillary matters procedure, with its several “rounds" of reply affidavits, would seem to give the parties more than one chance to set out their case, and even to raise queries concerning the other parties’ cases, unlike the more structured pleadings regime. In respect of item (iii) for each of the above categories, there seems to be no obvious advantage, as far as the parties are concerned, of having the matter heard in open court rather than in chambers. A chambers hearing would in fact give the parties more privacy. 203 It is submitted that the most significant procedural difference lies in item (iv)—the right of cross-examination. It is beyond the scope of this article to discuss the advantages or otherwise of being able to crossexamine witnesses. Suffice to say that it is still open to the party in an ancillary matters hearing who wishes to apply for cross-examination of any witness to file a summons-in-chambers together with a supporting affidavit to seek the court’s leave to do so before the said ancillary matters hearing. This was done in Audrey Lee Dawn, supra, and Ong Tong Liang, supra, for example. 204 It is therefore submitted that the court should lean in favour of adopting the ancillary matters hearing procedure in circumstances where the ancillary matters have been consolidated to be heard with the civil suit, or ordered to be tried at the same time as the civil suit. This is because of the unique nature of family and family-related disputes, where there is a concern to protect the privacy of the parties. In this regard, see the discussion in Section 5.3 above. 124 As a matter of practice, all ancillary matters in respect of which no consent order has been recorded on the date of the granting of the decree nisi will be adjourned to be heard in chambers after the granting of the decree nisi.
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