Jeyaretnam Joshua Benjamin v Lee Kuan Yew

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 22 August 2001
• Neutral Citation: [2001] SGCA 55
• Docket Number: Civil Appeal No 600023 of
• Date: 22 August 2001
• Year: 2001
• Published date: 19 September 2003
• Plaintiff Counsel: Appellant in person
• Citation: [2001] SGCA 55
• Defendant Counsel: Davinder Singh SC and Hri Kumar (Drew & Napier LLC)
• Court: Court of Appeal (Singapore)
• Subject Matter: Striking out,Statutory Interpretation,Whether rights under repealed order survive,Words and Phrases,Statutes,Whether action should be struck out,Civil Procedure,Repealing,Respondent's delay of over two years without reason or explanation,Dismissal of action for want of prosecution,Whether unavailability of services of particular Queen's Counsel amounts to prejudice,Repeal of Rules of Court O 3 r 5,Limitation period yet to expire,s 16(1)(c) Interpretation Act (Cap 1, 1999 Ed),Prejudice by reason of delay,Inordinate and inexcusable delay,Principles applicable,Effect of repeal,Whether inordinate and inexcusable delay amounts to abuse of court process,Whether delay amounts to intentional and contumelious default,'Contumelious conduct',Whether amendments to procedural rules affect rights of parties retrospectively,Distinction between substantive and procedural rights

(delivering the judgment of the court):

Introduction

This appeal arose from an application by Mr Joshua Benjamin Jeyaretnam, the appellant (`the appellant`), to strike out the action in Suit 224/97 initiated by Mr Lee Kuan Yew, the respondent (`the respondent`). The application was heard before the senior assistant registrar and was dismissed. The appellant appealed to a judge-in-chambers, and the appeal was heard before Lai Siu Chiu J. The judge dismissed it and against her decision the appellant now brings this appeal.

The facts

The material facts giving rise to this appeal are briefly these. On 30 January 1997, the respondent sued the appellant in Suit 224/97 for defamation over a statement made by the appellant at a Workers` Party rally held on 1 January 1997. Ten other plaintiffs including the Prime Minister, Mr Goh Chok Tong, also sued the appellant for defamation over the same statement but in seven separate actions. All these actions were, on or about 9 June 1997, set down for trial, and the trial dates were subsequently fixed for 18 August to 22 August 1997. On 18 July 1997, Christopher Lau JC ordered that the action commenced by Mr Goh in Suit 225/97 be tried first, and that was to be followed by the other actions with Suit 224/97 (instituted by the respondent) to be tried last.

All the eight actions came on for hearing before Rajendran J on 18 August 1997. In accordance with the order of Christopher Lau JC made on 18 July 1997, Suit 225/97 instituted by Mr Goh was heard first. The hearing ended on 22 August 1997, and judgment was reserved, and as a result the hearing of all the other seven actions was adjourned. At or about that point in time, all the plaintiffs in the seven actions, including the respondent, indicated to Rajendran J that they agreed to be bound by the court`s determination in Suit 225/97 as to the meaning of the words complained of. This was clearly borne out in the judgment of Rajendran J (which was delivered later) in Goh Chok Tong v Jeyaretnam Joshua Benjamin [1998] 1 SLR 547 , where the judge said at [para ]201:

I note that the other ten plaintiffs in related actions against the defendant have agreed to be bound by my findings on the meaning of the words. It remains for them to prove that the defendant`s words contained an obvious or readily inferable reference to them as plaintiffs in their respective suits. Damages for those plaintiffs who succeed in establishing reference to them may be assessed separately.

The appellant, however, did not indicate whether he agreed to be similarly bound.

The judgment in Suit 225/97 was delivered by Rajendran J on 29 September 1997: see Goh Chok Tong v Jeyaretnam Joshua Benjamin (supra). Both Mr Goh and the appellant appealed against the decision to the Court of Appeal. Their appeals were heard on 27 April 1998 and judgment was reserved. On 17 July 1998, the court handed down its judgment, allowing Mr Goh`s appeal and dismissing the appellant`s cross-appeal: see Goh Chok Tong v Jeyaretnam Joshua Benjamin [1998] 3 SLR 337 . The court, among other things, varied the meaning of the defamatory words as determined by Rajendran J.

After the judgment of the Court of Appeal, there was a lapse of about two years and four months during which time there were no further steps or proceedings taken by the plaintiffs in the remaining seven actions (including Suit 224/97 initiated by the respondent). Only on 7 December 2000 did the respondent`s solicitors write to the appellant`s solicitors asking if the appellant would agree that the meaning of the words found by the Court of Appeal would apply in Suit 224/97. The solicitors for the other plaintiffs sent similar letters to the appellant`s solicitors. However, there was no reply from the appellant or his solicitors to these letters. Consequently, on 14 December 2000, the respondent filed an application in SIC 604665/2000 under O 14 r 12 of the Rules of Court for an order that the meaning of the defamatory words in Suit 224/97 would be that as found by the Court of Appeal. The other plaintiffs also filed similar actions. On 22 December 2000, the appellant filed an application in SIC 604770/2000 for an order to strike out the respondent`s action in Suit 224/97 for want of prosecution. For convenience, we shall hereafter refer to Suit 224/97 as `the present action`.

All these applications were heard before the senior assistant registrar on 19 January 2001. He dismissed the appellant`s application to strike out the present action. He allowed the respondent`s application and the other plaintiffs` applications for determination on the meaning of the words complained of. The appellant appealed against the senior assistant registrar`s dismissal of his application; but he did not appeal against the orders allowing the respondent`s and the other plaintiffs` applications. On 13 February 2001, the appellant`s appeal was heard before Lai Siu Chiu J, who dismissed it.

The appeal

Before us the appellant raises the same arguments as were raised before Lai Siu Chiu J and submits that the present action should be struck out. We now turn to consider these arguments seriatim.

Non-compliance with Order 3 rule 5

The appellant`s first argument is that there was a non-compliance by the respondent with O 3 r 5 of the Rules of Court. This rule was repealed on 15 December 1999: see Gazette Notification No S[thinsp]551/99. Prior to the repeal, the rule was as follows:

Notice of intention to proceed after year`s delay (O. 3, r. 5)

5 Where a year or more has elapsed since the last proceeding in a cause or matter, the party who desires to proceed must give to every other party not less than one month`s notice of his intention to proceed.

A summons on which no order was made is not a proceeding for the purpose of this Rule.

The appellant`s contention is that the repeal of this rule did not affect his right to have a notice served on him pursuant to O 3 r 5. He submits that the last step taken by the respondent in the present action was on 18 July 1997, and since then more than two years had elapsed in which no action was taken by the respondent. If immediately prior to 15 December 1999, the respondent wished to proceed with the present action he would have to give the one month`s notice to the appellant under O 3 r 5. The appellant submits that he had this right which had accrued to him prior to the repeal and was preserved by virtue of ss 16(1)(c) and 18 of the Interpretation Act (Cap 1, 1999 Ed). He therefore still has this right, notwithstanding the repeal of O 3 r 5, and as a result there arises a corresponding obligation on the part of the respondent to serve the one month`s notice as required under that rule.

We turn first to the provisions of ss 16(1)(c) and 18 of the Interpretation Act, which, so far as relevant, are as follows:

Effect of repeal

16(1) Where a written law repeals in whole or in part any other written law, then, unless the contrary intention appears, the repeal shall not -

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(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any written law so repealed;

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Effect of expiration of written law

18 The expiration of a written law shall not affect any civil or criminal proceeding previously commenced under such written law, but every such proceeding may be continued and everything in relation thereto may be done in all respects as if the written law continued in force.

We do not find that these provisions assist the contention of the appellant. With reference first to s 16(1)(c), we do not find this provision applicable for two reasons. First, as contended by Mr Davinder Singh, counsel for the respondent, this provision is concerned only with substantive rights and not procedural rights. There is a clear distinction between substantive and procedural rights, in that amendments to procedural rules affects the rights of the parties retrospectively. In Turnbull v Forman [1885] 15 QBD 234 at 238, Bowen LJ said:

Where the legislature mean to take away or lessen rights acquired previously to the passing of an enactment, it is reasonable to suppose that they would use clear language for the purpose of doing so, or, to put the same thing in a somewhat different form, if the words are not unequivocally clear to the contrary, a provision must be construed as not intended to take away or lessen existing rights. A converse rule is that, where the legislature is dealing with matters of procedure as distinguished from substantive rights, the same presumption does not apply. It is not unreasonable to suppose that, in regard to mere matters of procedure, the legislature does intend to alter the procedure even where past transactions come into question; because no person who sues or is sued on a cause of action which existed before the enactment as to procedure has a vested right to have proceedings regulated by a particular method of procedure which the legislature has thought imperfect, and therefore has altered; and it may, therefore, well be supposed that the legislature intends to apply the new and more perfect procedure universally. [Emphasis is ours.]

In R v Chandra Dharma [1905] 2 KB 335 at 338-339, Lord Alverstone CJ said:

The rule is clearly established that, apart from any special circumstances appearing on the face of the statute in question, statutes which make alterations in procedure are retrospective ... If the case could have been brought within the principle that unless the language is clear a statute ought not to be construed so as to create new disabilities or obligations, or impose new duties in respect of transactions which were complete at the time when the Act came into force, Mr Compton-Smith would have been entitled to succeed; but when no new disability or obligation has been created by the statute, but it only alters the time

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