The "Million No II"

• Jurisdiction: Singapore
• Court: High Court (Singapore)
• Judge: Lim Teong Qwee JC
• Judgment Date: 25 February 1998
• Neutral Citation: [1998] SGHC 53
• Citation: [1998] SGHC 53
• Defendant Counsel: Kenneth Lie (Ang & Partners)
• Plaintiff Counsel: Winston Kwek (Joseph Tan Jude Benny & Scott)
• Published date: 19 September 2003
• Docket Number: Admiralty in Rem No 345 of 1991 (Registrar's Appeal No 209 of 1997)
• Date: 25 February 1998
• Subject Matter: Admiralty and Shipping,O 70 r 17 Rules of Court 1996,Dismissal for want of prosecution,Actions arising from collision at sea,Collision,Plaintiffs' failure to proceed for six years after writ,Civil Procedure,Preliminary act,Object and effect of,Principles,Whether delay inordinate and inexcusable,Whether risk of prejudice to defendants,Defendants able to file summary of case and preliminary act

Judgment:

LIM TEONG QWEE JC

This is an appeal against the decision of an assistant registrar dismissing the defendants` application. I dismissed the appeal and after hearing further arguments I affirmed the order for dismissal of the appeal.

2.The defendants` application is for an order that the plaintiffs` action be dismissed on the grounds that: (a). the plaintiffs have failed to comply with O 18 of the Rules of the Supreme Court 1990 and/or the Rules of Court 1996; and/or

(b). there is want of prosecution on the part of the plaintiffs.

The first ground was not proceeded with both before the assistant registrar and on appeal.

3.On 28 April 1991 there was a collision at sea in the Singapore Strait between the `Million No II` and the `Daphne`. The next day the writ in this action was issued. It is indorsed with a claim `in respect of damage and loss suffered by [the plaintiffs] arising out of [the collision] which occurred outside Singapore Port limits on or about 28 April 1991 and which was solely caused by the negligence of the defendants, their servants or agents`. No other particulars are given.

4.On 11 May 1992 an appearance was entered by the defendants. Apart from a notice of change of solicitors filed on 18 March 1997 no further proceedings were taken in the action until after a notice of a pre-trial conference was given by the registrar on 18 February 1997. Notwithstanding O 70 r 17(2) neither the plaintiffs nor the defendants filed a preliminary act within two months of service of the writ or of the entry of appearance and when the parties attended the pre-trial conference they had still not filed any preliminary act.

5.Arising out of the same collision the defendants themselves commenced proceedings against the plaintiffs in Admiralty in Rem 914/91. The writ in that action was issued on 21 August 1991 and it is indorsed with a claim for damages and/or loss and/or expense arising out of the collision caused by the breach of duty and/or negligence of the plaintiffs, their servants or agents. The claim is substantially the same as that of the plaintiffs in this action except for the allegation of negligence against the other party. In that action also no proceedings were taken until after 22 March 1997 when the registrar gave notice of a pre-trial conference. No preliminary act had been filed by either party by then although the plaintiffs (defendants in that action) entered appearance as long ago as 9 May 1992.

6.The parties arranged for the pre-trial conference in both actions to be held on the same day. For the purpose of the pre-trial conference the defendants filed a summary of their case on 18 March 1997. In Admiralty in Rem 914/91 the defendants (plaintiffs in that action) also filed a summary of their case. The plaintiffs also filed a summary of their case in this action.

7.The defendants` case as stated in their summary is that: (a). the Daphne was proceeding in its rightful lane of the traffic separation scheme at the material time;

(b). the Million No II intended to cut across the traffic separation scheme and failed to appreciate the presence of the Daphne and failed to have regard whether it was safe to do so; and

(c). the Million No II failed to take early or adequate action to avoid the collision.

It is exactly the same as that in Admiralty in Rem 914/91 where they are the plaintiffs.

8.On 27 March 1997 the parties attended a pre-trial conference. According to the note recorded by the assistant registrar Mr Kwek said that the parties were proceeding with the action and they would like to file pleadings and proceed to trial. Mr Lie was present but it does not appear that he disagreed or said anything in response to that.

9.At the conclusion of the pre-trial conference on 27 March 1997 the assistant registrar made an order for a statement of claim to be filed and served by 19 April 1997, a defence to be filed and served by 10 May 1997 and a reply if any to be filed and served by 24 May 1997. It was also ordered by consent that the Rules of Court 1996 will apply and finally it was ordered that a summons for directions be taken out by the plaintiffs by 30 June 1997 failing which the action was to stand dismissed with costs. No order was made with respect to the filing of preliminary acts. Similar orders were made in the other action. Although the parties were represented by solicitors at the pre-trial conference it appears to have escaped everyone`s attention that this is a collision action to which O 70 r 17 applies and Part Two of the preliminary acts are deemed to be the pleadings of the parties.

10.No `statement of claim` was filed or served by the plaintiffs within the time ordered. On 14 May 1997 this application (to dismiss this action) was issued. On 30 May 1997 directions were given for the plaintiffs to file and serve an affidavit and the application was adjourned to 27 June 1997. On 11 June 1997 the plaintiffs...