ANB v ANF

• Court: High Court (Singapore)
• Judge: Steven Chong J
• Judgment Date: 03 November 2010
• Neutral Citation: [2010] SGHC 329
• Citation: [2010] SGHC 329
• Defendant Counsel: Michael Palmer and James Lin (Harry Elias Partnership LLP)
• Published date: 05 April 2011
• Plaintiff Counsel: Tan Gim Hai Adrian, Ong Pei Ching and Joseph Yeo (Drew & Napier LLC)
• Hearing Date: 01 February 2010,14 July 2010,23 June 2010,20 September 2010,26 February 2010
• Docket Number: Suit No 641 of 2009 (Registrar’s Appeal No 470 of 2009)
• Date: 03 November 2010
• Subject Matter: Tort,Civil Procedure

Steven Chong J: Introduction

Increasingly, parties who claim to be defamed are resorting to preliminary determination under O 14 r 12 of the Rules of Court (Cap 322, R5, 2006 Rev Ed) on meaning of the offending words as a precursor to either summary judgment or the trial. In some cases, the determination has led to summary judgment while in others it has resulted in a bifurcation of the suit in that the trial judge who eventually heard the defamation action was required to decide the case based on a meaning pre-determined by another judge. The undesirability of such a practice in certain situations was noted in the recent decision of the Court of Appeal in Basil Anthony Herman v Premier Security Co-operative Ltd and others [2010] 3 SLR 110 (“Basil Anthony”). Essentially, the Court of Appeal observed that the court should refrain from giving an opinion on meaning where there are clearly triable defences.

The raison d’etre for the observations in Basil Anthony is simply the recognition that bifurcation of the trial process in situations where there are triable defences can only lead to multiple routes of appeal which would inevitably lead to more cost, expense and time. As such, this decision will trace the genesis of O 14 r 12 in order to determine when such a preliminary determination on meaning in defamation suits would be appropriate so as not to derogate from the objective and rationale behind its introduction.

The offending words, which formed the subject matter of the present defamation suit, were published in an article posted on a blog. The article sought to expose the practice of a particular teacher, the plaintiff, in extracting donations from foreign students to guarantee placement in a school in spite of the students failing the placement test. The article accused the plaintiff of several acts of improper conduct. Each of the alleged acts is linked to the practice of improper placement in the school.

The principal dispute on the pleaded meaning between the parties was whether the article had accused the plaintiff of improperly extracting donations on behalf of the school or had pocketed the donations herself. It is apparent that both pleaded meanings are defamatory. The significance in the difference lies in the defence of justification. The defendant seeks to justify the former meaning but is admittedly unable to justify the latter. The Assistant Registrar (“the AR”) determined that the article had accused the plaintiff of accepting bribes for her own benefit. The only remaining pleaded defence by the defendant was justification. However, the reference point for any justification defence must be the meaning of the offending words. It follows that in order to determine whether triable issues have been raised in relation to the justification defence, it is axiomatic that the court must first make a determination on meaning. This decision will therefore examine, inter alia, how such an approach is to be reconciled with the observations made in Basil Anthony.

Facts

On 23 July 2009, the plaintiff, [ANB] (“the plaintiff”), brought a defamation action against the defendant, [ANF] (“the defendant’), in respect of an article which the defendant had posted on her web blog (“the Article”).

The Article was about two pages long, and read as follows:

[ANB] was the HOD (English) at [B] Secondary School. She was also in charge of foreign students applying at the school. She wielded so much power. Can ask the school clerks [K] and [L], they know everything.

She was sacked. But her successor told the students that she retired. The civil servant lied.

I used to send my foreign students to take entrance tests in [B] Secondary School. So many years of sending them, only two got admitted. [ANB] demanded S$3000 cash for each student in donation. Cash ah, no cheques. Die die also must go ATM to withdraw cash.

One particular guardian stood out, [M]. A Taiwanese married to an Indian. Co-incidentally the principal of [B] Secondary School then was a [N].

Many of [M]’s foreign students were accepted in [B] Secondary School and [B] Primary School. Other foreign students have to register with so many schools to take entrance tests, her students only have to sit for test at these schools and sure to enter.

I tutored one of her Taiwanese students once. Before his entrance test, he was given the essay topic and letter writing to practise with me!

Later I learnt that the entrance tests were fixed. The foreign students of selected guardians would write their phone numbers on the test papers. This ensure the students would be given a place regardless of their results. Wow!

[ANB] was sacked because of [M]. The Chinese proverb says, “Go up the hill too often, sure to meet a tiger.”

A Chinese failed her entrance test at [B] Secondary School. She was referred to [M] who not only got her a place in [B] Secondary School but a place in her homestay. That angered probably the guardian of the girl. That was how [ANB] was exposed.

[ANB] was sacked, all retirement benefits vanished into thin air.

[ANB] was mad, she called up other guardians to find out if they were the ones who made the complaint. She was not remorseful and was looking for someone to blame.

[M] took her in as a tutor for her foreign students.

I’m surprised, no further investigations were done. MOE didn’t refer her to CPIB. No mention of this in our papers. Blackout.

That’s why the civil servants get bolder and bolder.

The things an educator will do for performance bonus. [ANB] is not the only bold one. There are plenty in our government schools. I’ll have to expose them one by one.

The plaintiff contended that the ordinary meaning of the Article meant and was understood to mean that:

[T]he Plaintiff was sacked as a teacher and lost her retirement benefits because the Plaintiff was corrupt in accepting bribes from the guardians of children applying for places in [B] Secondary School.

The defendant disagreed with the plaintiff that the ordinary meaning of the Article was that the plaintiff had accepted bribes from guardians of children applying for places in [B] Secondary School (“[B]SS”). In her Defence (Amendment No. 1) filed on 27 August 2010, the defendant pleaded that the Article meant: 8A(i) that the Plaintiff did not accord fair and equal treatment to all guardians who had attempted to register their foreign students at [B] Secondary school; 8A(ii) that the Plaintiff had on behalf of [B] Secondary School, improperly accepted cash donations of S$3000 each from some guardians of the foreign students. These donations were made to guarantee the admissions of these foreign students (whose guardians had made the said donations) into [B] Secondary School regardless of their placement test results; 8A(iii) that the Plaintiff’s solicitation and collection of donations in exchange for the grant of limited publicly funded places in government schools to foreign students (regardless of their placement test results) amounts to an improper conduct on the part of a public servant; and 8A(iv) by her improper conduct of accepting donations (on behalf of [B] Secondary School) in exchange for guaranteed admissions of foreign students, the Plaintiff was hoping to secure a better performance bonus for herself.

Summons [xxx]/2009

On 2 October 2009, the plaintiff filed an application in Summons [xxx]/2009 (“SUM [xxx]”) under O 14 r 12, for determination of the natural and ordinary meaning of the Article. SUM [xxx] also included an application for interlocutory judgment on the ground that the defendant had no defence to the plaintiff’s claim.

The defendant’s response to SUM [xxx] was that it was not appropriate for the Court to make a determination of meaning at this stage of the proceedings. In the event that the Court decided that determination of meaning was appropriate, the proper meaning of the Article was simply that the plaintiff had accepted cash donations of $3000 per student from guardians of foreign students who were accepted into [B]SS regardless of the placement test results. Finally, the defendant also claimed that the plaintiff should not be granted summary judgment because there were triable defences.

SUM [xxx] was heard by the AR on 24 November 2009. The AR first found, as a preliminary point, that it was appropriate to make an O 14 r 12 determination on the meaning of the Article. During the hearing, the AR then raised the issue whether comments made by third parties on the blog on which the Article was posted could be taken into account in determining the natural and ordinary meaning of the Article. He then invited the parties to make further submissions on this issue, and indicated that he would give his decision on 8 December 2009.

On 8 December 2009, the AR delivered his decision. The AR first stated that he had not relied on the comments that had appeared on the blog because these comments had not been pleaded by the plaintiff, and were in any case extrinsic evidence. As to the natural and ordinary meaning of the Article, the AR found that:

[T]he natural and ordinary meaning of the Article is that the Plaintiff was corrupt. She was corrupt because she had accepted cash bribes of S$3000 from guardians of foreign students. These bribes were made to guarantee acceptance of these foreign students into [B] Secondary School and were received by the Plaintiff herself.

After the AR’s decision on meaning was delivered, the matter was stood down at the request of counsel for the defendant. Thereafter, the remaining application for summary judgment was scheduled for a half-day special hearing before the AR in the second week of January 2010. The AR, however, did not eventually hear the summary judgment application because the defendant proceeded with her appeal against the decision on meaning.

The Appeal

On 18 December 2009, the defendant filed a notice of appeal against the AR’s decision...