Amoe Pte Ltd v Otto Marine Ltd

• Jurisdiction: Singapore
• Judge: Lee Seiu Kin J
• Judgment Date: 11 November 2013
• Neutral Citation: [2013] SGHC 240
• Court: High Court (Singapore)
• Hearing Date: 05 August 2013
• Docket Number: Suit No 224 of 2013 (Registrar’s Appeal No 201 of 2013)
• Plaintiff Counsel: Leona Wong Yoke Cheng (Allen & Gledhill LLP)
• Defendant Counsel: Ramachandran Doraisamy Raghunath (Selvam LLC)
• Subject Matter: civil procedure,stay of proceedings
• Published date: 17 January 2014

Lee Seiu Kin J :

This is an appeal by the defendant (“Otto Marine”) against the assistant registrar’s dismissal of its application to stay the present proceedings in favour of arbitration. The key issue before me is whether Otto Marine, by filing and serving a notice to produce documents referred to in pleadings, has taken a step in the proceedings within the meaning of s 6(1) of the Arbitration Act (Cap 10, 2002 Rev Ed) (“the Act”) so as to disentitle it from seeking a stay.

Background

Otto Marine engaged the plaintiff (“Amoe”) pursuant to a subcontractor work order dated 6 August 2010 (“the Work Order”) to provide general management support, commissioning, testing and inspections of a vessel that was being built in a shipyard in Batam, Indonesia. On 20 March 2013, Amoe sued Otto Marine in suit no 224 of 2013 to recover moneys allegedly due under the Work Order. On 25 March 2013, Otto Marine entered appearance in the action. It did not subsequently enter its defence or file any other pleadings. Instead, on 3 April 2013 it filed in court and served on Amoe a document entitled “Notice to Produce Documents Referred to in Pleadings” (“the Notice to Produce”). The Notice to Produce ran to four pages and requested the production of 18 items of documents referred to in various paragraphs of the statement of claim (“SOC”). This included the front and reverse sides of the Work Order.

On 8 April 2013, Amoe responded by filing a document entitled “Notice Where Documents May Be Inspected” to the effect that the documents listed in the Notice to Produce could be inspected at the offices of its solicitors on 15 April 2013 by prior appointment. On 22 April 2013, Otto Marine filed the present application for an order that Amoe’s suit be stayed either under the inherent jurisdiction of the court or under s 6(1) of the Act on the grounds that the Work Order had a valid and binding arbitration clause. It also prayed for an extension of time to file its defence until 14 days after the final determination of this application.

The matter was heard by the assistant registrar on 12 June 2013. It was not disputed that the Work Order contained the terms of the contract between the parties and that cl 13 thereof was an arbitration clause that applied to their dispute. The sole question was whether, by filing and serving the Notice to Produce, Otto Marine had taken a step in the proceedings within the meaning of s 6(1) of the Act. Otto Marine said that it had only done this in order to ascertain if there was an arbitration clause that applied to the dispute with Amoe. However it was not disputed that the Work Order had been prepared on Otto Marine’s standard form.

The assistant registrar held that Otto Marine by issuing the Notice to Produce had taken a step in the proceedings within the meaning of s 6(1) of the Act. In his view, the Notice to Produce was akin to an application for discovery of documents which the courts have accepted would amount to a step in the proceedings on the basis that this was an act that invoked and therefore signified submission to the court’s jurisdiction. The assistant registrar found unconvincing Otto Marine’s claim that it did not know if the Work Order had an applicable arbitration clause. Otto Marine should have known the content of its standard forms; moreover it was a public listed company that should be expected to be able to keep track of its contractual obligations. In the event, the application was dismissed. Otto Marine appealed and was ordered to file its defence within seven days if the appeal was dismissed.

My decision

Section 6(1) of the Act reads:

6.—(1) Where any party to an arbitration agreement institutes any proceedings in any court against any other party to the agreement in respect of any matter which is the subject of the agreement, any party to the agreement may, at any time after appearance and before delivering any pleading or taking any other step in the proceedings, apply to that court to stay the proceedings so far as the proceedings relate to that matter.

A party takes a “step in the proceedings” under s 6(1) of the Act if by its conduct it evinces an intention to submit to the court’s jurisdiction rather than seek recourse by way of arbitration and so advances the hearing of the matter in court: Carona Holdings Pte Ltd and others v Go Go Delicacy Pte Ltd [2008] 4 SLR(R) 460 (“Carona Holdings”). Whether an act should be regarded as a step in the proceedings should be decided in a practical and commonsensical way (Carona Holdings at [52]) and this should be seen in light of the circumstances surrounding the act (Carona Holdings at [93]).

Before me, Otto Marine said that when the SOC was first served on it, it was unable immediately to lay its hands on its copy of the Work Order, as well as other associated documents. This was because the relevant documents had been filed in an offsite warehouse and could not be accessed within a reasonable period of time. The terms and conditions of the Work Order were printed on its reverse side. Moreover, five key personnel that had handled the project with Amoe had left Otto Marine and this had put its affairs in relation to this matter in some disarray. Furthermore, although the Work Order was on its standard form, not all of its standard forms had arbitration clauses. For these reasons, it had sought the reverse side of the Work Order and the other documents named in the Notice to Produce to ascertain if there was an arbitration clause and whether there was indeed a dispute falling within that clause.¹

Amoe, on the other hand, argued that requiring disclosure of documents was a significant act amounting to a step in the proceedings. It relied on the case of Parker, Gaines & Co., Limited v Turpin [1918] 1 KB 358 (“Turpin”). Amoe said that Turpin stands for the proposition that requiring disclosure of documents indicates submission to a court’s jurisdiction and is an act that advances court proceedings. Amoe further argued that Otto Marine’s alleged ignorance of the arbitration clause in the Work Order did not entitle it to continue taking steps in the matter as long as it stood in ignorance and then apply to stay proceedings once it became (or claimed to become) aware of its option to arbitrate. Otto Marine had never, Amoe said, made any specific reservation of its right to proceed to arbitrate as was the case in Capital Trust Investments Ltd v Radio Design TJ AB and others [2002] 2 All ER 159.

I turn first to consider the nature of the Notice to Produce. This was a request by Otto Marine for Amoe to produce for inspection certain documents referred to in the SOC. Were it in the form of a letter, it would be considered mere correspondence between the parties and, without more, would not be viewed as constituting a step in the proceedings. However the Notice to Produce was filed in court. It was headed “In the High Court of the Republic of Singapore”. Although it did not state on its...