Re E (guardianship of an infant)

• Jurisdiction: Singapore
• Judge: Lim Hui Min
• Judgment Date: 14 April 2003
• Neutral Citation: [2003] SGDC 84
• Court: District Court (Singapore)
• Year: 2003
• Published date: 16 January 2004
• Plaintiff Counsel: Yong Kai Chang (Drew & Napier LLC)
• Defendant Counsel: Wilson Hue and Leong Kwang Ian (Attorney-General's Chambers),Glen Joethy (CW Lee Peng Chia Phillip),Rabi Ahmad (Unilegal LLC)
• Subject Matter: Family Law,Application for discovery and interrogatories against Singapore Immigration and Registration ("SIR")
• Citation: [2003] SGDC 84

Introduction

1 The Plaintiffs ("K") in this case have, by way of summons-in-chambers No. 650494 of 2003 (“the SIC”) applied for discovery and interrogatories against the Singapore Immigration and Registration (“SIR”) under Order 24 and Order 26A of the Rules of Court (“Order 24”; “Order 26A”), and Section 34 of the Government Proceedings Act (Cap. 121) (“GPA”). The relevant rules in Order 24 are, inter alia, as follows (The relevant rules in Order 26 have similar wording.):

Rule 6(2): “An application after the commencement of proceedings for an order for the discovery of documents by a person who is not a party to the proceedings shall be made by summons, which must be served on that person personally and on every party to the proceedings.”

Rule 6(5): “An order for the discovery of documents before the commencement of proceedings or for the discovery of documents by a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order, and on such terms as it thinks just.”

2 At this juncture, I should note that SIR has been renamed the Immigration and Checkpoints Authority (“ICA”). However, as the SIC refers to the “SIR” rather than the ICA, and counsel for all parties in their submissions have used the same terminology, I have followed suit in the writing of this judgment.

Factual Matrix

3 The facts of the case are as follows: The Plaintiffs have taken out these present proceedings, Originating Summons No. 650160 of 2002 (“the OS”), for custody of the infant X (“X”). There was only one defendant to the OS at the time it was filed, namely, X’s natural father, P. An Order of Court dated 28 August 2002 (subsequently amended on 30 August 2002 to include a penal notice to the Defendant) had been made which stated, inter alia, that the Defendant and some other persons (i.e. the Defendant’s agents, some of X’s relatives, and the boyfriend of his deceased mother) were injuncted from taking X out of Singapore, pending the final adjudication of the OS, or until further order (“the order”). The order was to take effect upon service of the same upon the relevant persons. The order was served on the 1^st Defendant’s solicitors on 3 September 2002. On 25 September 2003, an order was made deeming service of the relevant documents on the 1^st Defendant’s solicitors good and sufficient service of the same on the 1^st Defendants. Orders were also made on 25 September 203 providing for service of the order on the 3^rd and 4^th Defendants, Steven Bell and Steve Chatham. On 30 September 2002, a further order was made which stated, inter alia, that X was not to be removed from the jurisdiction of the court, and that his passport was to be surrendered to the Defendant’s solicitor on his undertaking not to release the same without the consent of the Court pending the determination of the matter. The court also ordered 3 persons (i.e. the 2^nd, 3^rd and 4^th Defendants) to be added as parties to the proceedings. A subsequent order made on 11 November 2002 stated, inter alia, that should one of the parties request for the child to leave the jurisdiction of the Singapore courts, the leave of the court or the consent of all parties would be required. In the event that such leave was granted or consent given, the 1^st Defendant’s solicitors would release X’s passport to the party taking him out of the country. No application was taken out, in this regard, ever since the order of court was made. Neither have the parties come to any agreement during this time for X to be taken out of the country.

4 The Plaintiffs have alleged that X has been taken out of the country on at least three occasions since 28 August 2002, in breach of the order, namely, on or about 6 December 2002, 24 December 2002 and/or 25 January 2003. (See paragraph 4b, bundle “A”) X’s passport has in fact been in the possession of the 1^st Defendant’s solicitors since 11 November 2002. The Plaintiffs, however, believe that X was taken out of the country on another passport owned by him, or by “riding on” another person’s passport. Their reasons are set out in the 2^nd Plaintiff’s affidavit filed on 21 March 2003, at paragraphs 9-18.

5 The 1^st Defendant’s solicitors had written a letter dated 7 April 2003 to state that their instructions are that X never left Singapore with the 1^st Defendant at any time since 30 September 2003. The Plaintiffs have submitted that this has left the period between 3 and 30 September 2003 “unaccounted for”. (See paragraph 30, bundle “A”) I note that firstly, the Plaintiffs did not write to the 1^st Defendant’s solicitors to clarify whether X had in fact been taken out of Singapore in the period between 3 and 30 September 2003. Secondly, the 3 occasions on which the Plaintiffs have alleged that X was taken out of the country are all after 30 September 2003. I am therefore disregarding the Plaintiffs’ submissions regarding this “unaccounted for” time period.

6 By way of this SIC, the Plaintiffs have requested SIR to search through its records to inform them as to whether X had left Singapore from 28 August 2002 onwards, the dates and times of his departure and arrival, as well as what travel documents were used, and the checkpoint through which he departed and returned (“the interrogatory portion of the SIC”). The Plaintiffs have also requested a copy of all documents and records in SIR’s possession regarding this matter (“the discovery portion of the SIC”). Should they discover, from this information, that the order has been breached, they may wish to take out proceedings against the person or persons who took X out of the country, for contempt of court (“the contempt proceedings”).

7 I have dismissed the SIC, and I set out my reasons below. Before I deal with the substantive issues, I note that counsel for SIR had stated at the outset of his submissions that the arguments that he would be making regarding the discovery portion of the SIC would be the same as for the interrogatories portion of the SIC. A similar approach appears to have been taken by the Plaintiff’s counsel. The principles established in the case law concerning the specific issue of whether discovery of documents is necessary for disposing fairly of the cause or matter, or for saving costs, should also apply to a consideration of whether interrogatories are necessary. (See Singapore Court Practice 2003, Pinsler, at page 846, paragraph 26A/2/1) (Also see paragraph 26A/1/5 at page 845, of that same volume, where it is stated that the authorities governing the Norwich Pharmacal order in the context of documentary discovery would also apply to the use of interrogatories for the purpose of obtaining a Norwich Pharmacal order.) This is in accordance with the fact that the wording of the relevant provisions in Order 24 and Order 26A are similar. In the light of the foregoing, I have applied the same principles for the discovery portion of the SIC as for the interrogatories portion, and the reasoning I set out in respect of the former in this judgment should be taken to also apply to the latter.

Order 24 and the Norwich Pharmacal Principle

8 The Plaintiffs have relied heavily on the principles set out in the case of Norwich Pharmacal Co. v Commissioners of Customs & Excise [1974] AC 133 to support their case. In Norwich Pharmacal, the appellants were the owners of a patent for a chemical compound. They strongly believed that the patent was being infringed by illicit importations of the compound from abroad. The appellants did not know the identity of the wrongdoers, and brought an action for discovery against the Commissioner of Customs and Excise, alleging infringement of the patent and seeking orders for the disclosure of the relevant information. The orders were duly granted by the court. The rationale for this was that a person who has a valid claim would be denied justice if prevented from having the necessary information. In addition, the facilitator of the wrong committed against the person seeking discovery (even though he is an unwitting facilitator) has a duty to co-operate in righting the wrong by furnishing information regarding the identify of the wrongdoer:

“The basis of the Norwich Pharmacal doctrine is that where the person concerned was involved in the circumstances which gave rise to the dispute, his interest in freedom from interference becomes subordinate to the potential plaintiff’s need for information in relation to litigation.” (See Supreme Court Practice, Pinsler, supra, at page 768)

9 The Plaintiffs have sought to establish that the facts of this present case are similar to the factual matrix in Norwich Pharmacal, and that a similar order for discovery and interrogatories should therefore be made. SIR has submitted that the court should not consider the Norwich Pharmacal case when making a decision in the matter, on the basis that the court’s power to order interrogatories and discovery against a non-party arises from the Rules of Court, and not from the common law. (See the case of Abraham v. Law Society of Singapore [1991] 3 MLJ 359. This case was decided before the present Order 24 Rule 6(5) (as set out in paragraph 1 above) were enacted. The court held that it had no power to order discovery under the Norwich Pharmacal principle, as the power of the court to order discovery was limited in that it could be exercised only in accordance with any written law or rules of court.) Section 18 of the Supreme Court of Judicature Act (Cap. 322) and item 12 of the First Schedule give the court power to order discovery of facts or documents “in such manner as may be prescribed by Rules of Court.” (emphasis added) Nonetheless, I am of the view that the Norwich Pharmacal case may be helpful in interpreting matters relating to discovery against a non-party for the purpose of identifying possible parties...