Lines International Holding (S) Pte Ltd v Singapore Tourist Promotion Board and Another

JudgeJudith Prakash J
Judgment Date09 January 1997
Neutral Citation[1997] SGHC 6
Citation[1997] SGHC 6
Defendant CounselSteven Chong and Collin Seah (Drew & Napier),Quentin Loh and Hilda Lee (Cooma Lau & Loh)
Published date19 September 2003
Plaintiff CounselManjit Singh and Samuel Chacko (Manjit & Partners)
Date09 January 1997
Docket NumberSuit No 2000 of 1995
CourtHigh Court (Singapore)
Subject MatterNatural justice,Whether statutory bodies are obliged to promulgate regulations to implement administrative action,Tort,Extent of administrative discretion of PSA and STPB in relation to the regulation of cruises,Whether the PSA had acted ultra vires in fettering its own discretion in the allocation of berths,Elements of the tort,Whether the PSA acted ultra vires in refusing to allocate a berth to a local cruise operator,Whether a contract exists between PSA and companies who have accounts with the PSA obliging PSA to provide berths on a first-come-first-served basis,Whether a statutory board is obliged to hear personal representations after previous telephone, letter and personal discussions,Discretion of PSA in allocating berths in wharves under their control,Administrative discretion,Misfeasance in public office,Whether PSA and STPB had acted ultra vires in implementing conditions on the nature of cruises run by local cruise operators,Ambit,Inducement of breach of contract,Judicial review,Administrative Law,Discretionary powers,Contract,Legality of actions taken after discussions in such committees,Formation,Whether administrative bodies can form ad hoc committees

The plaintiff company carries on business as a cruise operator. Between October 1994 and December 1995, it provided cruises from Singapore aboard its chartered vessel, Nautican. These cruises commenced from the Singapore Cruise Centre which was constructed and is run by the second defendants, the Port of Singapore Authority (`PSA`). At the material time, however, there were also two other organisations which were interested in cruises emanating from Singapore. They were the first defendants, Singapore Tourist Promotion Board (`STPB`), and the Gambling Suppression Branch (`GSB`) of the Criminal Investigation Department (`CID`) of the Police Force.

On 11 November 1995, the plaintiffs commenced this action and by the indorsement of claim on their writ, stated that, among other things, their claim was for:

(i) a declaration that the plaintiffs were entitled to berthing rights in respect of Nautican at the usual berths allocated to cruise liners calling into Singapore;

(ii) a declaration that PSA and STPB had wrongfully and without basis refused and denied berthing rights to the plaintiffs;

(iii) an injunction to restrain PSA and STPB from wrongfully refusing and denying the plaintiffs berthing rights in respect of Nautican and an order for them to forthwith grant such rights to Nautican and allow Nautican to berth for such period as may be necessary.

On the same morning, the plaintiffs made an ex parte application for an injunction in terms of this last sub-paragraph.


I heard the application and made interim orders restraining STPB from issuing instructions to PSA to refuse and/or deny berthing rights to Nautican and restraining PSA from themselves refusing or denying berthing rights to that vessel until such date as the application could be heard on an inter-partes basis.
The inter-partes hearing took place about three weeks later and, at its conclusion, I discharged the interim injunction with effect from 4 December 1995 and directed an early trial.

The plaintiffs` claim

The plaintiffs` claim as elaborated by their subsequently filed statement of claim rests on three main planks to wit, first an administrative law claim based on ultra vires and/or illegal action on the part of both defendants causing them damage, secondly breach of contract by PSA, and thirdly, various torts committed by both defendants.

Their statement of claim recites that on 22 June 1995 a meeting was held between companies in Singapore engaged in the cruise business (including the plaintiffs) and representatives of PSA, STPB and the GSB.
At that meeting, one Mr Lee Loong Koon, an officer of STPB, stated that the three bodies in consultation with each other had agreed on a set of conditions to regulate and monitor casino activities on board cruise vessels, especially on vessels undertaking Cruises to Nowhere (`CNW`). The pleading goes on to state that the guidelines were then communicated orally to the attendees. These guidelines included a rule that CNW cruises should not exceed 30% of the voyages undertaken by a cruise vessel on a three monthly basis and that berths might not be allocated for CNW cruises in excess of the 30% limit. A definition was given of a CNW as being a cruise which lasted less than 36 hours from the time of departure from the berth in Singapore until re-berthing here and this was irrespective of whether the vessel called at any destination before its return.

The plaintiffs challenge the guidelines on several counts.
First, they aver that PSA was not empowered in law to make or issue the guidelines. Secondly, they aver that in purporting to issue the guidelines PSA had acted in breach of its statutory duty. Thirdly, they assert that the guidelines were formulated by a Cruise Review Committee (which comprised PSA, STPB and the GSB) which committee had no existence in law and therefore the purported delegation by PSA to the Cruise Review Committee to formulate the guidelines was invalid. Fourthly, PSA erred in law in issuing the guidelines and fifthly, the guidelines were uncertain. In the alternative, they contend that PSA had improperly exercised powers conferred by its constitutive statute by exercising them in a way that constituted an abuse of power. Their conclusion is that the guidelines in themselves were ultra vires and inconsistent with the provisions of the legislation.

As regards STPB, the plaintiffs contend that they were not empowered in law to make or issue the guidelines and/or that they erred in law in issuing the same.
In the circumstances, STPB was acting outside its jurisdiction and ultra vires its constitutive statute in purporting to issue the guidelines.

The plaintiffs also contend that there were flaws in the actual decision to deny Nautican berthing facilities on the basis of an alleged breach of the CNW limit of 30%.
First, PSA denied the plaintiffs natural justice and procedural fairness. Alternatively, this decision was made by PSA at the direction or behest of Mr Lee of STPB and PSA failed to properly exercise its discretion before making the decision. Thirdly, PSA decided to deny berthing facilities to Nautican without regard to the merits of the plaintiffs` case and also took into account irrelevant considerations when making that decision. They further assert that PSA`s decision was so unreasonable that no reasonable person in its place would have made it.

In the alternative, the plaintiffs aver that STPB and PSA purported to exercise powers which were conferred on them for the benefit of the public or a section of the public, either with intent to injure the plaintiffs or in the knowledge that the acts were ultra vires their respective constitutive statutes.
This is the tort of misfeasance by a public servant.

The next ground, also a tortious one, is that STPB knowing, at all material times, that the plaintiffs had entered into contracts which required the plaintiffs to undertake CNWs on every Saturday and Sunday, wrongfully compelled or attempted to compel the plaintiffs to breach the said contracts.
The plaintiffs were prevented from performing their contracts because they were not allowed to adhere to Nautican`s existing schedule for CNWs and as a result breached the said contracts and thereby suffered loss and damage. A similar allegation was made in respect of PSA.

The next ground, that founded in contract, is that there was a contract between the plaintiffs and PSA whereby PSA was obliged to provide berthing facilities to Nautican on a first-come-first-serve basis.
PSA had breached this contract by denying Nautican its berth. In this connection, a further tortious ground is raised against STPB in that it is averred to have known of the contracts between the plaintiffs and PSA and to have wrongfully induced and procured PSA, in breach of the contract, to deny and/or suspend berthing facilities which otherwise would have been allocated to the plaintiffs.

The reliefs sought by the plaintiffs take the form of declarations and injunctions.
The plaintiffs want the guidelines to be declared ultra vires and void. They also want the decision of PSA to deny Nautican a berth to be similarly declared ultra vires and void. They want a declaration that they are entitled not to be denied berthing facilities by PSA on account of their failure to comply with the guidelines. They want injunctions supporting the declarations so that they will be able to carry on their trade and provide as many cruises to nowhere as they deem fit. They also claim damages, interest and costs.

The facts



Background

STPB is a body corporate established under the Tourist Promotion Board Act (Cap 328) (`TPB Act`). Under the TPB Act, STPB has the power, inter alia, to engage in, assist or promote the improvement of facilities for visitors to Singapore and to make recommendations to the Government in relation to any measures which may be taken with a view to increasing the number of visitors to Singapore. STPB appears to have first recognised the potential for developing Singapore as an international and regional cruise centre in 1987. The next year, it established a Cruise Department to develop and implement a plan to promote international and regional passenger cruising in ASEAN with Singapore as the cruise hub.

There was a parallel development within PSA, a body corporate established under the Port of Singapore Authority Act (Cap 236) (`PSA Act`) and for this purpose they set up their Cruise Development Unit in 1988.
PSA is the owner, operator and person in control of all wharves in Singapore. To further its objective of developing Singapore as a cruise hub, PSA constructed the International Passenger Terminal at the Singapore Cruise Centre (World Trade Centre) which has berths for cruise vessels to come alongside for disembarkation and embarkation of passengers. The Singapore Cruise Centre has been operational since 1992.

In February 1989, STPB and PSA established an ad hoc committee named `STPB/PSA Cruise Development Liaison Committee`.
The objective of the committee was to develop and promote international passenger cruising in ASEAN with Singapore as the cruise hub.

The plaintiff company was incorporated in November 1990.
Shortly afterwards, the plaintiffs applied to PSA to open an account with it in connection with their intended use of the port facilities and services provided by PSA. At the time of their application, the plaintiffs indicated that the services that they required related to passenger cruise vessels. The plaintiffs` application was approved by PSA on 10 November 1990.

As the cruise industry developed, however, so did news reports that there was undue gambling on cruise ships and some of them operated as `floating casinos`.
For example, in October 1992, the Hong Kong magazine Trade Winds , in an article which alleged that Singapore`s bureaucracy was affecting its ambition to become one of the world`s leading centres for cruise ships, also stated that the attempt to attract cruise...

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