The "Osprey"

JudgeChao Hick Tin JA
Judgment Date23 December 1999
Neutral Citation[1999] SGCA 87
Docket NumberCivil Appeal No 150 of 1999
Date23 December 1999
Published date19 September 2003
Plaintiff CounselR Srivathsan and Subashini (Haridass Ho & Partners)
Citation[1999] SGCA 87
Defendant CounselPhilip Tay and Chia Song Yeow (Rajah & Tann)
CourtCourt of Appeal (Singapore)
Subject MatterO 18 r 19(1) Rules of Court,Striking out,Whether appellants' inability to adduce evidence to support claim constitutes ground for striking out,Bills of lading,Identity of contracting carrier,Admiralty and Shipping,Principles applicable,Reasonable cause of action,Abuse of process,Frivolous and vexatious,Effect of attestation clause,Pleadings,Whether necessary for appellants to adduce all evidence at interlocutory stage,Civil Procedure,Parties to contract

(delivering the grounds of decision of the court): This was an appeal against the decision of the High Court ordering the appellants` statement of claim (as amended) be struck out and their action be dismissed. Against the decision the appellants appealed. We allowed the appeal and now give our reasons.

Circumstances in which the appeal arose

The circumstances in which the appeal arose were as follows. The vessel `Osprey` was arrested on 13 July 1996 by Kolon International Corporation (`the second respondents`) in the action, Adm in Rem 234/96, in which the second respondents were the plaintiffs. The ship was later sold pursuant to an order of court in that action and the proceeds from the sale were paid into court.

The appellants, Mya Yadanar Enterprise Ltd, were the owners of a cargo consisting of deformed steel bars loaded on board the vessel at the time of the arrest.
The appellants had purchased the cargo from a company, Swiss Singapore Overseas Enterprises Pte Ltd (`Swiss Singapore`) and were the holders of a bill of lading PK/YGN-001 dated 8 July 1996 (`the bill of lading`) evidencing the shipment of the cargo for carriage from Port Klang to Yangon, Myanmar. As a result of the arrest of the vessel, the appellants had to have the cargo discharged, surveyed and transshipped to another vessel for carriage to Yangon.

Thereafter, they commenced the present action, Adm in Rem 625/96, against the owners of the vessel (`the shipowners`), the first respondents, claiming damages for breach of contract for failure to deliver the cargo at Yangon, Myanmar.
The appellants claimed the sums of US$578,349 and S$133,703.73 being the losses incurred. The writ was served on the vessel on 9 October 1996, but the owners did not enter an appearance to the action. On 9 October 1998, the appellants obtained interlocutory judgment. On 18 January 1999, the second respondents obtained leave to intervene in the present action. Following that, the second respondents on 19 February 1999 applied, by way of notice of motion, to set aside the interlocutory judgment and to strike out the statement of claim. The application was heard by Lai Siu Chiu J who set aside the interlocutory judgment but gave leave to the appellants to amend their statement of claim; she also gave leave to the second respondents to defend the claim.

Pursuant to the order, the appellants on 3 June 1999 amended their statement of claim.
The second respondents, however, remained undaunted, and on 13 July 1999, they again applied, by way of a notice of motion, to strike out the appellants` amended statement of claim. The application was also heard before Lai Siu Chiu J, and on this occasion, the second respondents were successful. The learned judge allowed the application and ordered the appellants` amended statement of claim be struck out and the action dismissed. The appellants appealed against her decision. After the appeal was filed the appellants obtained an order expediting the hearing of this appeal, and on that basis the appeal was heard before us.

Striking out

Under O 18 r 19(1)(a) to (d) of the Rules of Court, the court may strike out any pleading and dismiss the action on any of the grounds stated there. In this case, the second respondents` application for striking out the appellants` amended statement of claim was expressed to be based on most of the grounds, namely, that it discloses no reasonable cause of action, is frivolous and vexatious and/or is an abuse of the process. It is well-established that the power of striking out will only be exercised in plain and obvious cases. In Tan Eng Khiam v Ultra Realty Pte Ltd [1991] SLR 798 , 803; [1991] 3 MLJ 234, 237, GP Selvam JC (as he then was) said:

Courts are reluctant to strike out a claim summarily either under O 18 r 19 of the RSC or the inherent jurisdiction. This is anchored on the judicial policy to afford the litigant the right to institute a bona fide claim before the courts and to prosecute it in the usual way. Whenever possible, the courts will let the plaintiff proceed with the action unless his case is wholly and clearly unarguable: see Blue Town Investments Ltd v Higgs & Hill plc [1990] 1 WLR 696 and Oxy Electric Ltd v Zainuddin [1991] 1 WLR 115.

And in Ko Teck Siang v Low Fong Mei & Anor and other actions [1992] 1 SLR 454 , this court approved and followed Wenlock v Moloney [1965] 2 All ER 871, 874 where Danckwerts LJ said:

The position is very clearly expressed by Lord Herschell in Lawrence v Lord Norreys [1886-90] All ER 858, at p 863. He said:

`It cannot be doubted that the court has an inherent jurisdiction to dismiss an action which is an abuse of the process of the court. It is a jurisdiction which ought to be very sparingly exercised, and only in very exceptional cases. I do not think its exercise would be justified merely because the story told in the pleadings was highly improbable, and one which it was difficult to believe could be proved . `...

The position under two former rules has been incorporated in the present RSC, O 18 r 19 of the new rules. There is no doubt that the inherent power of the court remains; but this summary jurisdiction of the court was never intended to be exercised by a minute and protracted examination of the documents and facts of the case, in order to see whether the plaintiff really has a cause of action. To do that, is to usurp the position of the trial judge, and to produce a trial of the case in chambers, on affidavits only, without discovery and without oral evidence tested by cross-examination in the ordinary way. This seems to me to be an abuse of the inherent power of the court and not a proper exercise of that power. [Emphasis is added.]

This general rule was reiterated more recently in the case of Gabriel Peter & Partners v Wee Chong Jin & Ors [1998] 1 SLR 374 , 383 at [para ] 18 where this court held:

In general, it is only in plain and obvious cases that the power of striking out should be invoked. This was the view taken by Lindley MR in Hubbuck & Sons v Wilkinson, Heywood and Clark [1899] 1 QB 86 at p 91. It should not be exercised by a

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