Saravanan a/l Subramaniam as dependent of the Estate of Lingaswari a/p Koushanan (Deceased) and also for the benefit of the other dependents of the Estate of Lingaswari a/p Koushanan (Deceased) v Chua Peng Ho and another

• Jurisdiction: Singapore
• Judge: Tan May Tee
• Judgment Date: 26 July 2016
• Neutral Citation: [2016] SGDC 195
• Court: District Court (Singapore)
• Hearing Date: 26 July 2016,04 July 2016,24 June 2016
• Docket Number: District Court Suit No 1738 of 2013, District Court/Registrar’s Appeal No 43 of 2016
• Plaintiff Counsel: Mahendra Prasad Rai (instructed counsel) and Josh Singh Gill (M/s Pritam Singh Gill & Co)
• Defendant Counsel: Lydia Lee and Anthony Wee (M/s United Legal Alliance),Leonard Chew (M/s Morgan Lewis Stamford LLC),Chong Pik Wah (M/s Wong Thomas & Leong),Thaddyeus Oh (M/s Global Law Alliance LLC)
• Subject Matter: Civil procedure,Deemed discontinuance,Whether extraction of interlocutory judgment amounted to 'step or proceeding',O. 21 r. 2(6) Rules of Court
• Published date: 14 September 2016

District Judge Tan May Tee: Introduction

This appeal arose from a decision of a deputy registrar (“DR”) who had ruled that the Plaintiff’s action was deemed ‘automatically’ discontinued on 4 February 2016 pursuant to O 21 r 2(6) of the Rules of Court. The appeal touches on a single issue: whether the extraction of an interlocutory judgment amounts to a “step or proceeding” for the purposes of O 21 r 2(6) of the Rules of Court¹ (“ROC”).

For ease of reference, O 21 r 2(6) is reproduced below:

“Subject to paragraph (6A), if no party to an action or a cause or matter has, for more than one year (or such extended period as the Court may allow under paragraph (6B)), taken any step or proceeding in the action, cause or matter that appears from records maintained by the Court, the action, cause or matter is deemed to have been discontinued.”

Paragraph (6A) is of no concern as it stipulates that paragraph 6 will not apply in cases where the action has been stayed pursuant to an order of court. Background

The brief facts of the case are these: A chain collision on the morning of 15 July 2010 resulted in the death of the pillion rider (“the Deceased”) on the Plaintiff’s motorcycle. The Plaintiff and the Deceased were husband and wife. The collision involved a taxi driven by the 1st Defendant, another motorcycle ridden by the 2nd Defendant and a van driven by 1st Third Party. Apparently, the taxi had cut into the path of the van causing it to brake suddenly. The 2nd Defendant who was riding his motor cycle behind the van then collided into its rear and fell. The Plaintiff who was riding his motorcycle behind the 2nd Defendant had swerved to avoid a collision with the 2nd Defendant’s motorcycle but unfortunately lost control of his vehicle. The Deceased died from the injuries sustained in the accident.

The Plaintiff issued the writ on 7 June 2013 to claim against the taxi driver and the other motorcyclist as defendants. The 1st Defendant, represented by his insurer, brought in the van driver and the Plaintiff as third parties. Following the protocol established by the State Courts for personal injury cases, after memoranda of appearance were filed, the case was called up for the State Courts’ Court Dispute Resolution (“CDR”) process. The issue of liability was resolved after several CDR sessions in the following proportions: 1st Defendant: 75% 2nd Defendant: 5% 1st Third Party: 15% 2nd Third Party: 5% Interlocutory judgment was recorded before the CDR judge on 4 February 2015.

The Plaintiff’s solicitors did not extract the interlocutory judgment (“IJ”) until 28 August 2015. Thereafter it appears that nothing further was done until a summons for directions, SUM 956 of 2016, (“SUM 956”) under O 37 of the ROC was filed on 28 March 2016. When SUM 956 came on for hearing, the 1st Defendant’s solicitors raised a preliminary issue that the action was deemed discontinued under O 21 r 2(6) as more than one year had passed since the IJ was recorded on 4 February 2015.

The DR heard full arguments on the preliminary issue raised in SUM 956 and reserved judgment. On 25 May 2016, the DR gave his decision that the action was deemed discontinued on 4 February 2016 on the basis that the extraction of the IJ on 28 August 2015 did not constitute a step in the proceedings. He then gave directions for the reinstatement application which had been filed by the Plaintiff’s solicitors prior to the hearing of the preliminary issue to be fixed before him after the necessary affidavits had been filed and served.

The Plaintiff filed an appeal against the DR’s ruling on the preliminary issue. The appeal came on for hearing before me in my capacity as District Judge in chambers. After a full consideration of the arguments, I delivered my oral decision on 4 July 2016 allowing the Plaintiff’s appeal and indicated to the parties that I would render my written grounds of decision in due course as this particular issue has seen conflicting decisions in a number of State Courts’ cases by my fellow judges. Counsel had also intimated that the losing side would in all likelihood be taking the matter further to seek a definitive ruling from the High Court. On 18 July 2016, the 1st Defendant filed a notice of appeal to the High Court against my order. My full reasons for disagreeing with the DR and allowing the Plaintiff’s appeal are set out herein.

The issue defined

The issue arises from differing interpretations of the Court of Appeal decision in The Melati [2004] 4 SLR(R) 7 (“The Melati”) as to the meaning of “step or proceeding” for the purposes of O 21 r 2(6). The Court of Appeal in The Melati had ruled that the filing of a statement of claim out of time, and therefore irregular, was nonetheless a “step” for the purposes of O 21 r 2(6). In coming to its decision, the Court of Appeal had stated at [17]:

It is common ground between the parties that what we are concerned with is whether the irregular filing and/or service of the statement of claim on 18 March 2003 is a “step” within the meaning of O 21 r 2(6). Neither O 21 r 2(6), nor any other rule in the ROC, defines this term. Some of the difficulties relating to the words “step” and “proceeding” are raised in the article entitled “Automatic Discontinuance under Order 21 Rule 2 – First Dormant, Then Dead …” by Ms Lim Hui Min, published at (2001) 13 SacLJ 150. While there may be difficulties in determining whether some acts would constitute “steps” or “proceedings” within the meaning of O 21r 2(6), there can be no doubt that the filing of a statement of claim with the Registry is a “step” as it is clearly an act to move the action forward towards resolution.

The underlined words in [17] have given rise to the controversy between the parties as to the attributes that a “step” or “proceeding” must necessarily possess for the purposes of O 21 r 2(6). In allowing the preliminary objection, the DR proceeded on the basis that for an act to constitute a step in the proceedings, it must be one “which appears from the records maintained by the court” and is “an act to move the action forward towards resolution”, citing The Melati.

The DR reasoned that the extraction of the IJ on 28 August 2015 in the present case was not a step that moved the case forward towards resolution although he accepted that the extraction of some orders of court would constitute a step in the proceedings. He had also accepted the submission of counsel for the Plaintiff, Mr M P Rai (“Mr Rai”), that the extraction of the IJ in this case was necessary on account of the then Subordinate Courts’ Civil Registry’s reminder published in the Law Society’s eJus News² dated 24 September 2013 requiring the extraction of an IJ before a notice of appointment for assessment of damages (“NOAD”) would be allowed to be filed.

Looking at the record, the DR noted that the IJ was entered on 4 February 2015. The DR then made reference to the State Courts’ Practice Directions Part IV paragraph 38(2)(j) and held that the next step of the proceedings in the present case would be the filing of the summons for directions (“SFD”) under O 37. In his oral grounds the DR stated that after the IJ was entered on 4 February 2015, there was only one act that could move the matter forward and this was the filing of the SFD which “is a necessary step and stood in the way of all other steps”. The DR reasoned that the extraction of the IJ by the Plaintiff on 28 August 2015 served no purpose given that without the filing of the SFD, no NOAD could be filed. Hence, the extraction of the IJ was not a step that moved the case forward towards resolution.

The focus of the arguments at the appeal before me was therefore on the following sub-issues: whether a “step” for the purposes of O 21 r 2(6) had to be a step which moved the case forward towards resolution; and whether the extraction of the IJ in the present case was a step that moved the case forward towards resolution.

The Plaintiff’s case

Mr Rai who was instructed as counsel for the Plaintiff had coincidentally argued the same issue for the defendant in another case, RA 86 of 2013 in DC Suit 624/2011 before my colleague, District Judge Ong Hian Sun (“DJ Ong”, as he then was). DJ Ong had ruled against Mr Rai, holding that the action was not deemed discontinued as the extraction of an IJ was a step in the action for the purposes of O 21 r 2(6). DJ Ong was referred to a decision of a High Court assistant registrar (“AR”) in Attorney-General, Singapore v Tan Wee Beng [2002] SGHC 261 (“Tan Wee Beng”) in which the learned AR had stated that “the engrossment of the interlocutory judgment …. could not constitute a “step or proceeding” subsequent to the order itself for the reason that it is dated on and takes effect from the day of the pronouncement of the order, by virtue of Order 42 Rule7.”

DJ Ong had declined to follow the AR’s view in Tan Wee Beng on his reasoning that the extraction of an IJ is clearly a step that appears from records maintained by the court. DJ Ong had ruled that the extraction of the IJ is a step which involves parties being satisfied with the terms in the IJ before filing and it is an act which moves the matter forward towards resolution thus satisfying the requirements laid down in the Court of Appeal decision of The Melati.

Mr Rai informed me that he had initially filed an appeal to the High Court against DJ Ong’s ruling, but upon further reflection, decided that DJ Ong was correct and withdrew the appeal. He had shared DJ Ong’s decision with his fellow practitioners including Mr Pritam Singh, the Plaintiff’s solicitor. Mr Singh had then conducted this case on the premise that he had one year from 28 August 2015 to take the next step in the proceedings which he did by filing the O 37 SFD on 28 March 2016 only to meet with the very same argument that Mr Rai had canvassed in DC Suit 624/2011. It appeared that Mr Singh...