The Melati

• Jurisdiction: Singapore
• Judge: Belinda Ang Saw Ean J
• Judgment Date: 21 October 2003
• Neutral Citation: [2003] SGHC 254
• Docket Number: Admiralty in Rem No 600072 of 2002
• Date: 21 October 2003
• Published date: 28 October 2003
• Year: 2003
• Plaintiff Counsel: Tan Hui Tsing (Joseph Tan Jude Benny)
• Citation: [2003] SGHC 254
• Defendant Counsel: Lim Tean and Probin Dass (Rajah & Tann)
• Court: High Court (Singapore)
• Subject Matter: Whether court should extend time for service of Statement of Claim,Rules of Court (Cap 322, R 5, 1997 Rev Ed) O 3 r 4,Extension of time,Whether service out of time and without leave an irregularity capable of being cured especially if prejudice to defendants can be compensated by costs,Non-compliance,Whether service of Statement of Claim out of time and without leave of court invalid,Civil Procedure,Rules of Court (Cap 322, R 5, 1997 Rev Ed) O 21 r 2(6),Statement of Claim served outside prescribed period and without leave of court,Rules of Court (Cap 322, R5, 1997 Rev Ed) O 2 r 1,Whether action deemed discontinued,Rules of court,Discontinuance

1 On 5 March 2002, the Plaintiffs who are cargo interests commenced in rem proceedings against the vessel Melati. The claims arose out of a casualty sustained by the Melati on 24 December 2000 in the course of a laden voyage from Buatan, Indonesia, to Huangpu and Shanghai, China. The vessel suffered a severe list to port and she drifted unmanned after her master and crew abandoned the vessel. Salvage services were rendered under Lloyds Open Form. The salvors were Wijsmuller Salvage BV who towed the Melati to Singapore. After her stability was restored, the Melati continued on her voyage in March 2001 to Huangpu and Shanghai. Since the Defendants declared general average, the Plaintiffs provided general average bond and salvage guarantee to the Defendants.

2 The in rem writ was served on 12 March 2002. An appearance was entered on behalf of the Defendants as owners of the Melati on 20 March 2002. Some eleven months after appearance was entered, the solicitors for the Plaintiffs on 18 March 2003 served the Statement of Claim. It is not disputed that the Statement of Claim was served outside the period required by Order 18 r 1 and without leave of court. The Defendants’ solicitors objected to the service on 21 March 2003. With the invalid service, their stand is that by operation of Order 21 r 2(6), the action is deemed discontinued since 21 March 2003. Order 21 r 2(6) states:

“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.”

3 On 4 April 2003, the Plaintiffs applied for an extension of time to serve the Statement of Claim or in the alternative for the action to be reinstated. The AR Registrar, Mr. Kenneth Yap, dismissed the application and the Plaintiffs filed this appeal.

4 The Plaintiffs contend that the service out of time and without leave must be treated as an irregularity, and is capable of cure under Order 2 r 1. Furthermore, the Court has power under Order 3 r 4 to extend time for service of the Statement of Claim. The Plaintiffs argue that they should not be deprived of the opportunity to prosecute their claim as a punishment for breach of the Rules especially where prejudice, if any, to the Defendants could be adequately compensated by costs. In support of her arguments, Ms Tan Hui Tsing, Counsel for the Plaintiffs, referred me to the case of The Tokai Maru [1998] 3 SLR 105 where the Court of Appeal followed the principles in Costellow v Somerset County Council [1993] 1 All ER 952.

5 Counsel for the Defendants, Mr. Lim Tean, maintains that Order 2 r 1 and Order 3 r 4 have no application to an action that has been deemed discontinued. Mr. Lim argues that the application for time extension is made outside the deadline of 20 March 2003. This situation calls for the application of the tests laid down in Rastin v British Steel Plc [1994] 2 All ER 641.The Plaintiffs are unable to show that the litigation was conducted at least with reasonable diligence. The principles of Rastin were applied in Bannister v SGB Plc [1997] 4 All ER 129. The Plaintiffs’ response is that the principles in Rastin are applicable to a situation in which the action was automatically struck out under Order 17 r 11(9) of the English County Court Rules. They are inapplicable to this case. Ms Tan invites the court to apply the ordinary principles that is applied to any application for an extension of time. As is apparent from my judgment, Mr. Lim’s contention above does not arise. The premise of the contention is not established.

6 Mr. Lim’s contention that no service at all has taken place because of non-compliance with Order 18 r 1 is flawed. This argument is akin to the notion that the procedural error would annul the proceedings. The distinction between nullities and irregularities was abolished by Order 2 r 1 in its present form. The approach taken by the Assistant Registrar below was correct in this respect. His starting point was that the last step taken within the year was in respect of the Statement of Claim and went on to consider whether the irregularity in the service of the Statement of Claim could be cured. On that point, he ruled against the Plaintiffs.

7 In my judgement, the failure to serve the Statement of Claim on time and without leave is by Order 2 r 1 “treated as an irregularity and shall not nullify…any step taken in the proceedings.” In other words, the purported service on 18 March 2003 nonetheless constitutes a step taken in the proceedings. Order 2 r 1 states that

“Where, in the 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 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]

8 In The Golden Mariner [1990] 2 Lloyd’s Law Report 215, the service of the writ out of jurisdiction was defective in that by error some of the defendants received one another’s writs and one had received only an acknowledgement form. The...