The Melati

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 28 June 2004
• Neutral Citation: [2004] SGCA 25
• Citation: [2004] SGCA 25
• Date: 28 June 2004
• Year: 2004
• Plaintiff Counsel: Lim Tean and Probin Dass (Rajah and Tann)
• Docket Number: Civil Appeal No 134 of 2003
• Defendant Counsel: Kenneth Lie and Chow Sy Hann (Joseph Tan Jude Benny)
• Court: Court of Appeal (Singapore)
• Published date: 30 June 2004

28 June 2004 Judgment reserved.

Chao Hick Tin JA (delivering the judgment of the court):

1 This appeal raises a procedural matter of considerable importance to litigation lawyers. It relates to the construction of O 21 r 2(6) of the Rules of Court (Cap 322, R 5, 1997 Rev Ed) (“the ROC”) which provides for a regime of automatic discontinuance of an action in a certain specified circumstance. The appeal raises the question as to whether a statement of claim, which was filed and served out of time, should be regarded as a “step or proceeding” within the meaning of O 21 r 2(6) so as to preclude the application of the rule.

2 Another issue which the appeal raises is whether the court, on the facts of the case and in exercise of its discretion, should extend time to regularise the statement of claim which was filed and served out of time.

The facts

3 On 24 December 2000, a casualty occurred while the vessel, Melati, was on its voyage from Batam, Indonesia to Huangpu and Shanghai, China. Goods carried on board had to be salvaged. The shipowners, the defendants in the present action, declared general average. The cargo owners, who are the plaintiffs in the action, provided a general average bond and a salvage guarantee to the shipowners.

4 On 5 March 2002, the plaintiffs commenced in rem proceedings against the vessel Melati. The writ was served and the defendants entered appearance on 20 March 2002. However, no further step was taken by the plaintiffs until 18 March 2003 when a statement of claim was served on the defendants who duly objected to the service on the ground that it was served out of time and without the leave of the court. They took the view that the service could, therefore, be disregarded.

5 Obviously appreciating that the statement of claim served on 18 March 2003 might well be defective, the plaintiffs applied, on 4 April 2003, for an extension of time to serve the statement of claim. In the alternative, the plaintiffs applied for the action to be reinstated pursuant to O 21 r 2(8) of the ROC. On 24 April 2003, the assistant registrar refused the plaintiffs’ application for an extension of time to serve the statement of claim and ordered that the statement of claim filed on 18 March 2003 be struck out.

6 The plaintiffs appealed to the judge in chambers. Belinda Ang Saw Ean J held that although the statement of claim was filed and served out of time and without leave, and thus was an irregular step, it was nevertheless a “step” for the purposes of O 21 r 2(6). Ang J regularised the irregular step by extending the time for service of the statement of claim. She also ordered that the statement of claim filed and served on 18 March 2003 was to stand.

7 The delay in filing and serving the statement of claim on the part of the plaintiffs was caused by their decision to await the outcome of the salvors’ arbitration which was then in progress in London. The plaintiffs wanted to be able to quantify the indemnity sought by them against the defendants when filing the statement of claim. While Ang J noted that this decision of the plaintiffs to wait might not have been justifiable, she felt that this failure in filing and serving the statement of claim within the period prescribed in O 18 r 1 of the ROC was only an irregularity, which was curable since it did not cause the defendants any real prejudice. Ang J explained at [16] and [17] of her judgment (reported at [2003] 4 SLR 575):

The only prejudice raised by the defendants is that the defendants … would be deprived of a limitation defence under the Hague Rules. This is a circular form of argument. The defendants only have a limitation defence if the application to extend time is refused or if the action has been discontinued and consequently reinstatement is sought in either event. … On 18 March 2003, it made no difference at all to the defendants whether or not the statement of claim was served out of time and without leave since any which way the defence of time bar was not available.

The grant of an order to cure the irregularity cannot be viewed as prejudicial to the defendants’ interests. They still have the full opportunity to defend the action. On the other hand, a refusal of the time extension would for the plaintiffs mean an end to the action.

8 Ang J also added that this was not a case where there was a wholesale disregard of the rules of court. There had been no breach of any court order. Being dissatisfied with her decision, the defendants have appealed to us.

The appeal

9 The defendants argued that the object of O 21 r 2(6) is to ensure that every action instituted in court is conducted expeditiously and efficiently. This aim must be borne in mind when the court construes the meaning of the expression “step or proceeding” in O 21 r 2(6). In this light, an irregular step, such as a statement of claim filed and served out of time, should not and cannot be regarded as a “step or proceeding” within the meaning of the rule. In any event, in the circumstances of this case, particularly having regard to the long delay, the judge should not have regularised the position by granting an extension of time to enable the plaintiffs to serve the statement of claim out of time.

The meaning of “step or proceeding”

10 We agree with counsel for the defendants that the object of O 21 r 2(6) is to ensure that actions instituted in court should be proceeded with expeditiously and not be allowed to become dormant. Nevertheless, how the expression “step or proceeding” in the rule should be construed must necessarily be viewed in the light of the other rules in the ROC.

11 Under the previous rules of court, an action could be left hanging for a long time especially where both the plaintiff and the defendant were, for their own respective reasons, happy to let the action remain dormant. All that the plaintiff needed to do to bring a dormant action to life would be to give notice to the defendant that the plaintiff intended to prosecute the action.

12 Order 21 r 2(6) brought a dramatic change to all that. It was first introduced in 1996 and subsequently amended in 1999. It places the onus on the plaintiff to ensure that the action is not allowed to become dormant for more than a year. Under the scheme, the Registry need not allocate scarce manpower to police the management of cases. The plaintiff should monitor his action closely, failing which he runs the risk of the action being deemed discontinued.

13 The starting point in the consideration of how the expression “step or proceeding” should be construed, is O 18 r 1 which provides that the plaintiff shall serve his statement of claim within 14 days of appearance having been entered by the defendant. Order 18 r 21 provides that all pleadings must be filed with the Registry. Clearly, from both these rules, the statement of claim must also be filed within the said 14 days. It seems to us that O 18 r 1 emphasises service because while filing and serving need not be on the same day, service must still be effected within 14 days of appearance having been entered.

14 Next, O 19 r 1 provides that where the plaintiff fails to so serve his statement of claim, the defendant may apply to court to have the action dismissed. However, the defendant is not compelled to make the application. The option is his. No such application was made by the defendants in the present case.

15 While there is nothing in the ROC which provides that a step or proceeding which ought to be taken within a prescribed time may not be taken thereafter, quite clearly the proper procedure would have been for that party to apply to court for an extension of time to take that step or proceeding pursuant to O 3 r 4. The question that arises is whether a step taken out of time, and without leave, is a nullity or is only an irregularity. Counsel for the defendants did not contend that the filing of the statement of claim and its service on the defendants on 18 March 2003 were nullities. We think he is correct to regard the statement of claim served on the defendants as an irregularity and this is explicitly recognised in O 2 r 1(1) which reads:

Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein. [emphasis added]

16 The failure as regards the statement of claim, filed and served by the plaintiffs on the defendants on 18 March 2003, was in respect of time. Thus, pursuant to O 2 r 1(1), the step taken by the plaintiffs is accordingly only an irregularity, not a nullity.

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 21 r 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.

18 The thrust of the defendants’ argument here is that an irregular step should not be regarded as a “step” within the meaning of O 21 r 2(6). In this connection, references were made by counsel for the defendants to various policy...