Bbw v Bbx

• Jurisdiction: Singapore
• Judge: Lee Seiu Kin J
• Judgment Date: 09 September 2016
• Neutral Citation: [2016] SGHC 190
• Plaintiff Counsel: Tan Tian Yi and Han Guangyuan, Keith (Cavenagh Law LLP)
• Date: 09 September 2016
• Hearing Date: 02 August 2016
• Docket Number: Suit No 689 of 2016 (Summons No 3539 of 2016)
• Year: 2016
• Court: High Court (Singapore)
• Citation: [2016] SGHC 190
• Published date: 22 September 2016

Lee Seiu Kin J:

The present summons was brought ex parte by the plaintiff, [BBW], who sought an order that all court documents and records in this action (“the Suit”) be sealed, and access by third parties to those documents and records be withheld (“the Sealing Order Application”). [BBW] also sought an order that the proceedings brought by way of the Suit be held in camera (“the In Camera Hearing Application”). According to the summons, [BBW]’s applications were based on two grounds: (a) ss 22 and 23 of the International Arbitration Act (Cap 143A, 2002 Rev Ed) (“IAA”); and (b) the inherent jurisdiction of the court.

I did not think that ss 22 and 23 of the IAA could be the basis for [BBW]’s applications, but eventually granted the applications on other grounds. However, [BBW]’s reliance on these provisions highlighted the need to clarify their precise ambit and I do so below.

The Suit

The Suit was still at the pleadings stage at the time of [BBW]’s applications. In fact, only [BBW]’s version of the Suit’s facts, as set out in the amended statement of claim, was available. I set out below the material facts that can be gleaned from the amended statement of claim.

In the Suit, [BBW] prays for a declaration that there is a valid indemnity agreement (“the Indemnity Agreement”) between him and a deceased party, [B], and for enforcement of the Indemnity Agreement against the first defendant, [BBX], who is the personal representative of [B]’s estate. [BBW] claims that under the Indemnity Agreement, [B] had agreed to indemnify him against all liability, loss or damage incurred in connection with an arbitration at the Singapore International Arbitration Centre (“the Arbitration”). In the Arbitration, the claimant, [C], seeks damages from [BBW] in relation to an agreement by [BBW] to purchase certain shares from [C]. [BBW]’s position in the Arbitration is that those shares were beneficially owned by [B], who was the father-in-law of [C]. [B] and [C] were engaged in litigation in Seychelles in relation to [B]’s claim to those shares.

Sections 22 and 23 of the IAA

I proceeded on the assumption that the Arbitration is an international arbitration falling within the scope of the IAA.

As mentioned at [1] above, the first ground for [BBW]’s applications was ss 22 and 23 of the IAA. These provisions read as follows:

Proceedings to be heard otherwise than in open court

22. Proceedings under this Act in any court shall, on the application of any party to the proceedings, be heard otherwise than in open court.

Restrictions on reporting of proceedings heard otherwise than in open court

23.—(1) This section shall apply to proceedings under this Act in any court heard otherwise than in open court.

(2) A court hearing any proceedings to which this section applies shall, on the application of any party to the proceedings, give directions as to whether any and, if so, what information relating to the proceedings may be published.

(3) A court shall not give a direction under subsection (2) permitting information to be published unless — (a) all parties to the proceedings agree that such information may be published; or (b) the court is satisfied that the information, if published in accordance with such directions as it may give, would not reveal any matter, including the identity of any party to the proceedings, that any party to the proceedings reasonably wishes to remain confidential.

(4) Notwithstanding subsection (3), where a court gives grounds of decision for a judgment in respect of proceedings to which this section applies and considers that judgment to be of major legal interest, the court shall direct that reports of the judgment may be published in law reports and professional publications but, if any party to the proceedings reasonably wishes to conceal any matter, including the fact that he was such a party, the court shall — (a) give directions as to the action that shall be taken to conceal that matter in those reports; and (b) if it considers that a report published in accordance with directions given under paragraph (a) would be likely to reveal that matter, direct that no report shall be published until after the end of such period, not exceeding 10 years, as it considers appropriate.

Meaning of “proceedings under this Act”

What is immediately apparent is that ss 22 and 23 of the IAA only apply to “proceedings under this Act” (“this Act” being the IAA). On a plain reading of this phrase, it refers to proceedings under specific provisions of the IAA. Such proceedings include (by no means exclusively) applications under the following provisions of the IAA: s 6(1) (stay of proceedings), s 10(3) (jurisdiction of arbitrator), s 10(4) (appeal to Court of Appeal), s 12(6) (enforcement of orders or directions of arbitrator), s 12A (interim measures), s 13(2) (subpoena), s 13(3) (bringing up prisoner for examination), s 18(b) (enforcement of consent awards), s 19 (enforcement of awards), s 24 (setting aside award) and s 29(1) (enforcement of foreign awards). An interesting question arises as to whether applications under ss 22 or 23 of the IAA amount to “proceedings under this Act”. In my view, while such an application is made under the IAA, the “proceeding” that is the subject of the application under ss 22 or 23 of the IAA must relate to an application under another provision of the IAA. To interpret this otherwise would render otiose the phrase “proceedings under this Act”, as any application that is made under ss 22 or 23 of the IAA would fall within the ambit of the phrase even though there is no connection whatsoever with any international arbitration.

The corollary to the foregoing is that a proceeding based on some other cause of action also does not qualify as a proceeding under the IAA. Indeed, some statutes make reference to proceedings under the relevant act as well as proceedings under the relevant subsidiary legislation, eg, “any proceedings under this Act or any subsidiary legislation made thereunder” (ss 53(1) and 54(1), Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Cap 65A, 2000 Rev Ed)) and “any proceedings under this Act or the regulations” (s 57(5), Immigration Act (Cap 133, 2008 Rev Ed)). These provisions indicate that the phrase “proceedings under this Act” does not include proceedings under the relevant subsidiary legislation made under the relevant act. A fortiori, the phrase does not include proceedings based on some other cause of action. Indeed, this interpretation is made even more evident when one considers s 19 of the Motor Vehicles (Third-Party Risks and Compensation) Act (Cap 189, 2000 Rev Ed) (“MVA”), which reads as follows:

Public Trustee may appear in court

19. The Public Trustee shall have the right to appear and be heard in a court in any proceedings under this Act or in relation to any claim or action for damages for the death or bodily injury of any person arising out of the use of a motor vehicle.

In this provision, express provision is made for proceedings “in relation to any claim or action for damages for the death or bodily injury of any person arising out of the use of a motor vehicle”. This means that such proceedings, which are based on a cause of action that does not arise from the MVA, are not covered by the phrase “proceedings under this Act”. These examples show that Parliament would have been explicit if it had intended for ss 22 and 23 of the IAA to cover proceedings based on some other cause of action.

In the present case, therefore, the issue was whether the Suit was a proceeding under the IAA. It was clear to me that it was not. [BBW]’s claim against [BBX] in the Suit essentially concerns the enforcement of the Indemnity Agreement and is, for this reason, a claim in contract. I was therefore of the view that the Suit was not a proceeding under the IAA. Accordingly, [BBW]’s applications could not have been granted pursuant to ss 22 and 23 of the IAA.

However, counsel pointed me to the decision in AZT and others v AZV [2012] 3 SLR 794 (“AZT”). In that case, the High Court granted an application to seal the court documents in an originating summons action which concerned the apportionment of liability between co-respondents in a Singapore arbitration. In support of his contention that an application for a sealing order may be made under s 23 of the IAA, counsel pointed to [17] of the judgment, which reads as follows:

While the present OS action is not an interlocutory application, it is a chambers proceeding which is heard “otherwise than in open court” pursuant to s 22 of the IAA: the sealing of court documents would thus be “a less significant intrusion” into the principle of open justice.

Counsel submitted that [17] of AZT suggests that the court had considered the application to be one under s 23 of the IAA. Such a view also appears to be shared by Prof Jeffrey Pinsler SC (“Prof Pinsler”) in Principles of Civil Procedure (Academy Publishing, 2013) (at para 21.033).

However, a closer reading of AZT indicates that this is not the case. First, there is nothing on the face of the summons filed in AZT (ie, Summons No 2037 of 2012) which indicates that the application was taken out pursuant to s 23 of the IAA. Second, the analysis in AZT did not consider the wording of s 23 of the IAA. This would have been done if the court had considered that it was dealing with an application under this provision. Third, although the cause of action in AZT is not immediately clear from the decision, the originating summons action concerned the apportionment of liability and, more specifically, the issue of contribution, and it is difficult to envisage how this could have been a proceeding under the IAA. Fourth, it also appeared to me that s 23 of the IAA is not a provision that provides for the sealing of court documents (see the...