Kesavan Engineering & Construction Pte Ltd v S P Powerassets Limited

• Jurisdiction: Singapore
• Judge: Leslie Chew
• Judgment Date: 03 June 2011
• Neutral Citation: [2011] SGDC 179
• Court: District Court (Singapore)
• Docket Number: District Court No. 346 of 2011, Registrar’s Appeal No. 7 of 2011, RAS No. 88 of 2011
• Published date: 13 June 2011
• Year: 2011
• Hearing Date: 09 May 2011
• Plaintiff Counsel: Mr Harbajan Singh (M/sDaisy Yeo & Co.)
• Defendant Counsel: Mr Harpreet Singh SC (M/s Drew & Napier LLC)
• Citation: [2011] SGDC 179

District Judge Leslie Chew: Background

This is the usual Registrar’s Appeal. The Defendant appealed the decision of the Deputy Registrar who refused to strike out the Plaintiff’s action under O 18 r 19 of the Rules of Court and under the inherent jurisdiction of the court.

I heard the matter on 9 May 2011 and allowed the Defendant’s appeal. Essentially, I ordered the Plaintiff’s action to be struck out as prayed for by the Defendant.

The Plaintiff has appealed my decision. I now give my reasons.

The Case

The Plaintiff is a company providing service for among other things installation of electricity cables. The Plaintiff was awarded a contract by the Defendant for such works.

A dispute arose between the parties in which the Defendant claimed that the Plaintiff had failed to deliver certain works. These had been contracted by the Defendant from the Plaintiff. In the dispute, the Plaintiff took the position that it had indeed carried out the works and monies were due from the Defendant. By a letter dated 3 Dec 2010 to the Plaintiff (‘the Letter’) the Defendant maintained that no monies were due to the Plaintiff. The Letter was addressed to Plaintiff company and was not copied to any other party.

Taking the view that the Letter contained defamatory matters directed at the Plaintiff, the Plaintiff commenced the present action against the Defendant seeking among other things ‘damages for libel’.

The application that formed the subject matter of the appeal that was before me, is as I have mentioned, an application to strike out the Plaintiff’s actions under the Rules of Court and under the inherent jurisdiction of the court.

The application itself is based on the following factual grounds: That the pleading and indeed the action does not disclose that there was publication of the Letter. That the Plaintiff’s action is an abuse of the court’s process because any publication which is denied by the Defendant, was in any event minimal and did not amount to a real and substantial tort.

The Defendant argued that it is trite that “no action for libel can be maintained unless there has been publication of the words complained of, and that in order to constitute publication, the matter must be published by the defendant to a third party i.e. one person other than the claimant”.

In the present case, on the Plaintiff’s case, the Letter was read by 4 persons. Three were the Plaintiff’s employees and the fourth was a director of the Plaintiff.

The Defendant, relying on a case decided by the New South Wales Court of Appeal, contended that the fact that the Letter was read by those 4 persons did not, in law amount to publication of the alleged defamatory material.

The Plaintiff on the other hand, argued that the circumstances gave rise to a publication of the Letter.

For the purposes of the application to strike by the Defendant, the Plaintiff took the position that: Such application is based on law. There are no Singapore decisions on this issue There are however at least 2 Australian decisions which have taken different approaches. Accordingly, this matter should go to trial

Essentially the position taken by the Plaintiff in the matter before me was that since the issue is one of law, the Defendant cannot satisfy the court, that the matter summarily on the ground that the Plaintiff has no case. Indeed, the Plaintiff argued that “There is here a prima facie case which must be left to the Court to determine after a full hearing”.

The Plaintiff also disagreed with the New South Wales case which the Defendant relied on.

The Court’s Decision

This is a case in which the alleged defamatory words are themselves not in issue at least so far as the present application is concerned. What is at issue and which I am asked to decide is the threshold question relating to the most basic elements of libel or defamation, that is the question of whether or not there has been ‘publication’ of the impugned material. In this case the impugned material comprised the Letter.

At this point, it is useful to note that both parties are agreed on this single issue. The Plaintiff did not dispute the scope of the inquiry which the Defendant had circumscribed.

The ‘publication’ necessary to satisfy this element of defamation is premised on ‘publication’ to a third person – other than the claimant.

Before I examine and discuss the issue of publication, I ought to dispose of the point raised by the Plaintiff that this is a case requiring a full trial and accordingly, I ought not to strike out the action. As the Plaintiff correctly pointed out the question before me was one of pure law, the facts are not in any way in dispute. That being so, contrary to what the Plaintiff has argued, I am obliged to deal with the case based on the law and not ‘push it over to trial’. The material facts not being in dispute, a court can always decide on the law as argued by the parties. Even though, as here, there are no local decisions and only precedents from other common law jurisdictions which seem to be in conflict, a court can and indeed must to the best of its ability decide the point. I therefore reject that argument.

In the present case there was, factually speaking, publication of the Letter to 4 persons. That is to...