Tan Wee Tin and others v Singapore Swimming Club

• Jurisdiction: Singapore
• Judge: Justin Yeo AR
• Judgment Date: 23 November 2017
• Neutral Citation: [2017] SGHCR 21
• Court: High Court (Singapore)
• Docket Number: Originating Summons No 598 of 2017 (Summons No 2990 of 2017)
• Year: 2017
• Published date: 30 November 2017
• Hearing Date: 23 November 2017,19 September 2017,05 September 2017
• Plaintiff Counsel: Plaintiffs in person
• Defendant Counsel: Ms Chang Man Phing, Mr Aloysius Tan and Ms Dynyse Loh (WongPartnership LLP)
• Subject Matter: Civil Procedure,Stay of Proceedings,Administrative Law,Disciplinary Proceedings,Unincorporated Associations and Trade Unions,Disputes,Legal Proceedings
• Citation: [2017] SGHCR 21

Justin Yeo AR:

Mr Tan Wee Tin (“the 1st Plaintiff”), Ms Teo Lee Leng (“the 2nd Plaintiff”) and Mr Tang Hock Keng (“the 3rd Plaintiff”) (collectively, “the Plaintiffs”) are three former members of the Management Committee (“MC”) of the Singapore Swimming Club (“the Defendant”). They were part of the MC that held office for the term of May 2011 to May 2012 (“the 2011 MC”).

This is the Defendant’s application to stay the proceedings commenced by the Plaintiffs in Originating Summons No 598 of 2017 (“OS 598”). The basis for seeking the stay is that the Plaintiffs have failed to exhaust internal appellate processes and to comply with the dispute resolution clause stipulated under the Rules of the Singapore Swimming Club (February 2013 reprint) (“the Club’s Rules”).

Background facts

On 21 November 2011, the Court of Appeal delivered its judgment in Chan Cheng Wah Bernard v Koh Sin Chong Freddie [2012] 1 SLR 506 (“Chan Cheng Wah Bernard”). The Court of Appeal found one Mr Freddie Koh (“Mr Koh”), the then-President of the MC for the term of May 2008 to May 2009 (“the 2008 MC”), liable for defamation.

Reaffirmation of Indemnity Resolution

On 14 December 2011, the 2011 MC convened a special confidential MC meeting, at which the 1st and 2nd Plaintiffs were present. The 2011 MC reaffirmed the indemnity resolution that had earlier been passed by the 2008 MC (“the Indemnity Resolution”).

On 19 December 2011, the 2011 MC convened another special confidential MC meeting, at which all the Plaintiffs were present, and again reaffirmed the Indemnity Resolution.

On 18 January 2012, the 2011 MC convened an urgent special confidential meeting, at which all the Plaintiffs were present. The meeting was chaired by Mr Koh. At this meeting, the 2011 MC unanimously reaffirmed the validity of the Indemnity Resolution and its applicability to Mr Koh. The reaffirmation on three separate occasions allowed further payments to be made, pursuant to the Indemnity Resolution, towards Mr Koh’s legal expenses in the proceedings relating to Chan Cheng Wah Bernard (“Mr Koh’s Legal Expenses”).

On 4 March 2012, the Defendant convened an extraordinary general meeting of the members. At the meeting, the members resolved to remove Mr Koh as President of the Defendant’s MC, and for the Defendant to stop making further payments towards Mr Koh’s Legal Expenses.

On 28 March 2012, Mr Koh commenced proceedings by way of Originating Summons No 309 of 2012 (“OS 309”) against the Defendant, seeking declarations that the Indemnity Resolution was valid and binding on the Defendant, and that the resolution passed on 4 March 2012 was null and void.

The 2012 AGM

At the Annual General Meeting held on 27 May 2012 (“the 2012 AGM”), a member of the Defendant sought the passage of a “motion of censure and no confidence” against the 2011 MC. This was in relation to the cheque of $1,021,793.48 (“the $1m Cheque”) which was used for making payments towards Mr Koh’s Legal Expenses.

In particular, the member formally raised the following matters in relation to the $1m Cheque: (a) Who signed the cheque; (b) Who gave instructions for the cheque to be signed; (c) Whether the $1 million costs paid out on 14 February 2012 was budgeted? If not, was it an “emergency” expense? (d) Did the MC approve/authorise the said payment? (e) Why the haste in payment inspite of the coming EOGM and the costs being subject to review? (f) [the 1st Plaintiff] was quoted in the Straits Times dated 25 February 2012 that the said payment was made only after consultation with the [Defendant’s] lawyers. Please produce the legal advice; (g) If deem fit to pass the following Motions: (i) “That the members of the MC2011/2012, namely … [members including the Plaintiffs]… be censured for not acting in the interest of the Club and in breach of their fiduciary duties.” (ii) “That a Motion of No-Confidence be passed against the members of the MC 2011/2012, namely … [members including the Plaintiffs]… for not acting in the interest of the [Defendant] and in breach of their fiduciary duties”.

[emphasis in original]

Although the 1st Plaintiff did briefly mention, at the 2012 AGM, that the 2011 MC had reaffirmed the Indemnity Resolution, it appeared from the transcripts and minutes of the 2012 AGM that there was no discussion on this matter. There was also no mention about other sums of money that had been paid towards Mr Koh’s Legal Expenses (on which, see [18] below). Instead, the focus at the 2012 AGM was on the 2011 MC members’ involvement in giving instructions on and/or approving the $1m Cheque.

The “motion of censure and no confidence” was subsequently amended to be directed only against two persons: the 1st Plaintiff, allegedly because he could not deny knowledge of the payment having signed the $1m Cheque; and the 2nd Plaintiff, allegedly because she refused to provide her response and walked out of the 2012 AGM before the vote for the amended motion was taken.

The motion was passed at the 2012 AGM.

Legal Proceedings relating to the Indemnity Resolution

After the new MC was elected at the 2012 AGM, the three reaffirmations of the Indemnity Resolution were discovered.

On 18 June 2012, the Defendant commenced proceedings, by way of Suit No 510 of 2012 (“Suit 510”), to recover the moneys which the Defendant had paid towards Mr Koh’s Legal Expenses. OS 309 and Suit 510 were subsequently consolidated as Suit No 634 of 2012 (“Suit 634”).

The decision in Suit 634 was eventually appealed to the Court of Appeal, and on 26 April 2016, the Court of Appeal issued its judgment in Singapore Swimming Club v Koh Sin Chong Freddie [2016] 3 SLR 845 (“Singapore Swimming Club”). Amongst other things, the Court of Appeal found that Mr Koh had not acted properly in the discharge of his duties and responsibilities for and on behalf of the Defendant when he made the defamatory statements, and therefore, that his actions fell outside the scope of the Indemnity Resolution.

Disciplinary Proceedings

Less than a month after Singapore Swimming Club was rendered, on 24 May 2016, Mr Poh Pai Chin (“Mr Poh”) lodged a complaint against the 2011 MC members (“the Complaint”). Mr Poh alleged that the 2011 MC members’ reaffirmation of the Indemnity Resolution and payment of Mr Koh’s Legal Expenses, after the decision in Chan Cheng Wah Bernard had been rendered, was done with the intention to prefer Mr Koh’s interests rather than the Defendant’s interests. Mr Poh also alleged that the 2011 MC members had therefore breached their fiduciary duties to the Defendant.

The Complaint was referred to the Disciplinary Panel convened under the Club’s Rules. Six charges were brought against each member of the 2011 MC (“the Charges”). The Charges related to the 2011 MC’s reaffirmation of the Indemnity Resolution, and specifically, the sums of money that were paid out on various dates, as follows: 1st Charge: contravention of Club’s Rules by re-affirming the Indemnity Resolution and paying $58,720.26 towards Mr Koh’s Legal Expenses. 2nd Charge: contravention of Club’s Rules by re-affirming the Indemnity Resolution and paying $20,000 towards Mr Koh’s Legal Expenses. 3rd Charge: contravention of Club’s Rules by re-affirming the Indemnity Resolution and paying $51,000 towards Mr Koh’s Legal Expenses. 4th Charge: contravention of Club’s Rules by re-affirming the Indemnity Resolution and paying $1,021,793.48 towards Mr Koh’s Legal Expenses (ie, the $1m Cheque). 5th Charge: contravention of Club’s Rules by re-affirming the Indemnity Resolution and paying $60,297.90 towards Mr Koh’s Legal Expenses. 6th Charge: contravention of the Defendant’s Code of Conduct and Ethics relating to honesty and integrity.

The Disciplinary Panel Chairman convened a Disciplinary Committee (comprising three senior legal practitioners) to hear the Complaint. The Plaintiffs did not object to the constitution of the Disciplinary Committee. The 1st and 2nd Plaintiffs submitted supporting documents for their respective disciplinary hearings, while the 3rd Plaintiff did not submit any supporting documents. The Plaintiffs eventually did not attend their respective disciplinary hearings, or the subsequent mitigation hearing. The Disciplinary Committee decided to expel the Plaintiffs on each of the Charges, with effect from 28 October 2016.

Under the Club’s Rules, a member who is dissatisfied with the decision of the Disciplinary Committee may appeal to the Appeals Board (comprising five senior legal practitioners), within 14 days of being notified of the decision of the Disciplinary Committee. Each of the Plaintiffs informed the Defendant that they would be appealing against the Disciplinary Committee’s decision.

On 22 March 2017, the Defendant’s general manager, Mr Alfred Poon (“Mr Poon”), wrote to the Plaintiffs to inform them of their Appeals Board hearings. The Plaintiffs sought to obtain documents and information from the Defendant, such as the Disciplinary Committee’s grounds of decision, and details regarding the Appeals Board members. The Defendant provided the latter, but not the former, as this was not required under the Club’s Rules and Bye-Laws, and the Defendant’s practice was not to give such grounds. In any event, the Appeals Board would hear the matter de novo, and the Plaintiffs were entitled to re-canvass all the arguments that had raised to the Disciplinary Committee.

On 25 May 2017, Mr Poon wrote to the Plaintiffs to inform them that the Appeals Board had dismissed their appeals. Mr Poon also informed the Plaintiffs that pursuant to Rules 14(f) of the Club’s Rules (“Rule 14(f)”) and Bye-Law 19(j) of the Club’s Bye-Laws (“Bye-Law 19(j)”), they may, within 21 days, further appeal the Appeals Board’s decision to a meeting of general members. The Plaintiffs had until 15 June 2017 (ie, 21 days after the issuance of the Appeals Board’s decision on 25 May...