Bda v Bdb

• Jurisdiction: Singapore
• Judgment Date: 18 October 2012
• Date: 18 October 2012
• Docket Number: District Court Appeal No 19 of 2012
• Court: High Court (Singapore)

BDA

Plaintiff

and

BDB

Defendant

[2012] SGHC 209

Chao Hick Tin JA

District Court Appeal No 19 of 2012

High Court

Conflict of Laws—Natural forum—Forum non conveniens—Wife resident in India commencing maintenance proceedings against husband resident in Singapore—Whether maintenance proceedings commenced in Singapore ought to be stayed—Whether India was clearly or distinctly a more appropriate forum than Singapore

Family Law—Maintenance—Whether maintenance proceedings were civil or criminal in nature—Sections 69, 77 (1) and 79 (1) Women's Charter (Cap 353, 2009 Rev Ed)

The appellant wife (‘the Wife’) petitioned for maintenance from the respondent husband (‘the Husband’) under s 69 of the Women's Charter (Cap 353, 2009 Rev Ed). Both the Husband and the Wife are citizens of the Republic of India, and hold Indian passports. Both parties have also been Singapore Permanent Residents since 2009. In January 2008, both parties relocated to Singapore from Hong Kong. In October 2010, the Wife and their son left for India. The Husband continues to be resident in, and employed in Singapore. The Husband filed for divorce in India one or two months after the Wife's application for maintenance.

The District Court granted the Husband's petition for a stay of proceedings pursuant to the doctrine of forum non conveniens. The Wife appealed.

Held, allowing the appeal:

(1) A maintenance application pursuant to s 69 of the Women's Charter was for all intents and purposes a civil matter. A plain reading of s 79 of the Women's Charter led to the unassailable conclusion that the then Criminal Procedure Code (Cap 68) only governed procedure. The legislature had merely intended to provide a simple and expeditious procedure to enable a wife (and children) to obtain support. Sections 69 and 79 did not provide that a husband commited an offence when he did not maintain his wife or children; neither could a husband be imprisoned, convicted, fined or be burdened with a criminal record. Furthermore, s 77 (1) of the Women's Charter stated that, for a s 69 application, ‘an appeal shall lie ... to the High Court exercising [its] appellate civil jurisdiction’ - it would be strange for criminal proceedings to suddenly transmute, on appeal, into civil proceedings: at [13] to [17].

(2) It was well established that the Spiliada Maritime Corp v Cansulex Ltd[1987]AC 46 (‘Spiliada’) test was applied to determine if proceedings commenced in Singapore ought to be stayed on the ground of forum non conveniens.The Spiliada test consisted of two stages. In stage one, it had to be shown that there was another available forum which was clearly or distinctly more appropriate than Singapore to determine the dispute. If there was another available forum which was clearly more appropriate, the court would ordinarily grant a stay. Under the second stage of the Spiliadatest, the court shall consider whether special circumstances existed to warrant the exercise of its discretion to refuse a stay: at [21] and [22].

(3) The Spiliadatest was essentially a factors-based test: the weight to be placed on the various factors varied with each factual matrix. A factor that proved to be the tipping point in one case might not be that important in another. However, the defendant's residence did appear to be of some import. Where a defendant seeking a stay was working and residing in Singapore, there lay a greater evidential burden on him: the countervailing factors adduced in favour of the stay had to be correspondingly more convincing, in comparison to the hypothetical factual matrix,ceteris paribus,where the defendant was not resident in Singapore: at [24].

(4) In an increasingly globalised world, multiple nationalities were becoming the norm; nationality per se was thus of limited significance. Residency and/or domicile were better indicators of the strength of a party's connection to a particular forum. However, no matter where the claim was heard, one party would have to travel. There was also no question of there being a need to compel third party witnesses. As such, residency was a neutral factor: at [29].

(5) The pending divorce proceedings instituted by the Husband in India were distinct from, and did not cover the same grounds, as the relief claimed by the Wife in the present maintenance application in Singapore: at [30].

(6) A Singapore court would not be at a complete disadvantage, when compared to an Indian court, in determining the proper quantum of maintenance as it also need to take into account the standard of living enjoyed by the Wife when the parties were living together in Singapore. While a Singapore court might be at a slight disadvantage vis-à-vis the question of the cost of living in India, it is at an advantage vis-à-vis the question of the previous standard of living of the parties in Singapore: at [33].

(7) In sum, the Husband had not discharged the burden of showing that India was clearly or distinctly a more appropriate forum; proceedings in Singapore should not be stayed: at [34].

[Observation: It was clear that the court, in determining whether Singapore was a forum non conveniens, exercised a discretion. As such, an appellate court should be slow to interfere. Such an exercise of discretion should not be interfered with unless the judge had misdirected himself on a matter of principle, or he had taken into account matters which he ought not to have taken into account or had failed to take into account matters which he ought to have taken into account, or his decision was plainly wrong: at [23].]

Brinkerhoff Maritime Drilling Corp v PT Airfast Services Indonesia [1992] 2 SLR (R) 345; [1992] 2 SLR 776 (folld)

Chew Cheng Swee v Chan Chye Neo [1932] MLJ 5 (folld)

CIMB Bank Bhd v Dresdner Kleinwort Ltd [2008] 4 SLR (R) 543; [2008] 4 SLR 543 (refd)

Dampierre v De Dampierre [1988] AC 92 (refd)

Eng Liat Kiang v Eng Bak Hern [1995] 2 SLR (R) 851; [1995] 3 SLR 97 (folld)

Helen Diane Womersley v Nigel Maurice Womersley [2003] SGDC 186 (distd)

Henry v Henry (1996) 185 CLR 571 (refd)

JKN v JCN [2011] 1 FLR 826 (refd)

Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 (refd)

Orchard Capital I Ltd v Ravindra Kumar Jhunjhunwala [2012] 2 SLR 519 (folld)

Oriental Insurance Co Ltd v Bhavani Stores Pte Ltd [1997] 3 SLR (R) 363; [1998] 1 SLR 253 (folld)

Prapavathi d/o N Balabaskaran v Manjini Balamurugan [2002] SGDC 354 (distd)

Q & M Enterprises Sdn Bhd v Poh Kiat [2005] 4 SLR (R) 494; [2005] 4 SLR 494 (refd)

Rockware Glass Ltd v Mac Shannon [1978] AC 795 (refd)

Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 (folld)

Tan Hock Chuan v Tan Tiong Hwa [2002] 2 SLR (R) 90; [2002] 3 SLR 145 (folld)

Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 (refd)

Criminal Procedure Code (Cap 68, 1985 Rev Ed) (repealed)

Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264, 1985 Rev Ed)

Reciprocal Enforcement of Commonwealth Judgments (Extension) (Consolidation) Notification (Cap 264, N 1, 1999 Rev Ed)

Women's Charter (Cap 353, 2009 Rev Ed) ss 69, 77 (1) , 79 (1) (consd) ;ss 65, 69 (4) (f) , 79

Matrimonial Causes Act 1973 (c 18) (UK)

Koh Tien Hua (Harry Elias Partnership LLP) for the appellant

Raymond Yeo (Raymond Yeo) for the respondent.

Judgment reserved.

Chao Hick Tin JA

1 This is an appeal filed by BDA (‘the Wife’) against the decision of a District Court judge (‘the Judge’) where the Judge stayed an application for maintenance filed by the Wife against her husband, BDB (‘the Husband’), under s 69 of the Women's Charter (Cap 353, 2009 Rev Ed) (‘Women's Charter’) on the ground of forum non conveniens.

Facts

2 The Husband and the Wife were married in India in February 2005. Both of them are legally qualified to practise law in...