Vellama d/o Marie Muthu v AG

JurisdictionSingapore
CourtCourt of Three Judges (Singapore)
Judgment Date05 July 2013
Date05 July 2013
Docket NumberCivil Appeal No 97 of 2012

Court of Appeal

Chao Hick Tin JA

,

Andrew Phang Boon Leong JA

and

V K Rajah JA

Civil Appeal No 97 of 2012

Vellama d/o Marie Muthu
Plaintiff
and
Attorney-General
Defendant

Ravi s/o Madasamy (LF Violet Netto) for the appellant

Chong Gek Sian David SC, Low Siew Ling and Lim Sai Nei (Attorney-General’s Chambers) for the respondent.

Australia Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 (refd)

Boyce v Paddington Borough Council [1903] 1 Ch 109 (folld)

Chng Suan Tze v Minister for Home Affairs [1988] 2 SLR (R) 525; [1998] SLR 132 (refd)

Diplock, Re [1941] 1 Ch 253 (refd)

Eng Foong Ho v AG [2009] 2 SLR (R) 542; [2009] 2 SLR 542 (refd)

Federal Steam Navigation Co Ltd v Department of Trade and Industry [1974] 1 WLR 505 (refd)

Gibson v Union of Shop, Distributive and Allied Workers [1968] 1 WLR 1187 (refd)

Gouriet v Union of Post Office Workers [1978] AC 435 (folld)

Government of Malaysia v Lim Kit Siang [1988] 2 MLJ 12 (refd)

Karaha Bodas Co LLC v Pertamina Energy Trading Ltd [2006] 1 SLR (R) 112; [2006] 1 SLR 112 (folld)

IRC v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 (refd)

London Passenger Transport Board v Moscrop [1942] AC 332 (refd)

Ooi Ah Phua v Officer-in-Charge Criminal Investigation, Kedah/Perlis [1975] 2 MLJ 198 (refd)

PP v Mah Chuen Lim [1975] 1 MLJ 95 (refd)

R v Head Teacher of Fairfield Primary School, ex parte W (CO/541/97, transcript: Smith Bernal) (refd)

R v International Stock Exchange of the United Kingdom and the Republic of Ireland Ltd, Ex parte Else (1982) Ltd [1993] QB 534 (refd)

R v Legal Aid Board, ex parte Hardiman (CO/3193/95) (refd)

R v Secretary of State for the Environment, Ex parte Rose Theatre Trust Co [1990] 1 QB 504 (refd)

R v Secretary of State for the Home Department, Ex parte Fire Brigades Union [1995] 2 AC 513 (refd)

R v Secretary of State for the Home Department, Ex parte Salem [1999] 1 AC 450 (refd)

R (Giles) v Parole Board [2004] 1 AC 1 (refd)

R (Mc Kenzie) v London Borough of Waltham Forest [2009] EWHC 1097 (Admin) (refd)

R v Secretary of State for the Home Department (18 December 2000) (refd)

Ricket v The Metropolitan Railway Co (1867) LR 2 HL 175 (refd)

Secretary of State for the Home Department v Rehman [2003] 1 AC 153 (refd)

Stockport District Waterworks Co v Manchester Corp (1862) 9 Jur NS 266 (refd)

Tai Choi Yu v Government of Malaysia [1994] 1 MLJ 677 (refd)

Tan Eng Hong v AG [2012] 4 SLR 476 (folld)

Vellama d/o Marie Muthu v AG [2012] 4 SLR 698 (not folld)

Winterbottom v Lord Derby (1867) LR 2 Ex 316 (refd)

Yip Kok Seng v Traditional Chinese Medicine Practitioners Board [2010] 4 SLR 990 (refd)

Yong Vui Kong v AG [2011] 2 SLR 1189 (refd)

Constitution (Amendment) Act 1965 (Act 8 of 1965) ss 1, 7

Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) Art 49 (1) (consd) ;Arts 12, 38, 39 (1) , 46 (2) (b) , 55, 56, 57, 66

Criminal Justice Act 1988 (c 33) (UK) s 171 (1)

Immigration Act 1971 (c 77) (UK)

Interpretation Act (Cap 1, 2002 Rev Ed) ss 2 (1) , 52

Parliamentary Elections Act (Cap 218, 2011 Rev Ed) s 24 (2 A)

Penal Code (Cap 224, 2008 Rev Ed) ss 294 (a) , 377 A

Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 53 (consd) ;O 15 r 16

Rules of the Supreme Court (Amendment No 3) 1977 (SI 1977 No 1955) (UK) O 53 r 3 (5)

Sabah, Sarawak and Singapore (State Constitutions) Order in Council 1963 (SI 1963 No 1493) Art 33

Senior Courts Act 1981 (c 54) (UK) s 31 (3)

Singapore Colony Order in Council 1946 (Statutory Rules and Orders 1946 No 464) s 23 (1)

Singapore Colony Order in Council 1955 (SI 1955 No 187) ss 51 (1) , 51 (2)

Administrative Law—Judicial review—Leave to apply for prerogative order and declaratory relief—Application for judicial review filed less than three weeks after vacancy of seat of elected Member of Parliament—Whether there was factual basis for High Court to grant leave

Administrative Law—Judicial review—Standing—Change of circumstances between initial application and substantive hearing—Whether issue of standing crystallising at point of first initiation of proceedings

Administrative Law—Judicial review—Standing—Applicant seeking declaration on Prime Minister’s duties under Art 49 Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) —Whether application based on private or public rights—Whether applicant having to prove special damage to establish standing in application for declaratory relief predicated on public rights—Article 49 Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint)

Administrative Law—Remedies—Declaration—Applicant seeking standalone declaration after withdrawing prayer for prerogative order in proceedings commenced under O 53 Rules of Court (Cap 322, R 5, 2006 Rev Ed) —Whether court having power to grant standalone declarations in principal application for prerogative order—O 53 r 1 and O 53 r 7 Rules of Court (Cap 322, R 5, 2006 Rev Ed)

Constitutional Law—Constitution—Interpretation—Filling of casual vacancies in elected Parliamentary seats for single member constituencies—Whether Prime Minister having discretion whether to call by-election—Whether Prime Minister having discretion when to call by-election—Article 49 Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint)

Following the vacancy of the Parliamentary seat for Hougang Single Member Constituency (“SMC”) on 14 February 2012, the appellant – a resident voter of the constituency – instituted judicial review proceedings for a mandatory order requiring the Prime Minister to advise the President of the Republic of Singapore to issue a writ of election for Hougang SMC within three months from the date of the vacancy or such other reasonable period as the court deemed fit. The application also sought a declaration on the proper construction of Art 49 of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”).

On 2 March 2012, a week after the appellant’s application, the Prime Minister announced that he intended to call a by-election in Hougang SMC but had not yet decided on its timing. On 3 April 2012, the High Court granted the appellant leave for a substantive judicial review hearing. The writ of election for Hougang SMC was issued on 9 May 2012 and the by-election was held on 26 May 2012. Three days later, the appellant nevertheless proceeded to file her summons seeking the same mandatory order and a declaration. The appellant later informed the High Court that she was abandoning her prayer for the mandatory order. On 1 August 2012 the High Court dismissed the appellant’s application.

Held, dismissing the appeal:

(1) The authorities were clear that an applicant’s standing did not crystallise at the point when proceedings were initiated, but remained subject to review until the courts arrived at a final determination: at [13] and [14] .

(2) In Tan Eng Hong v AG [2012] 4 SLR 476 it was acknowledged that in some instances our courts had proceeded to hear the case and granted declaratory relief even if the facts on which the action was based could be described as theoretical due to a change of circumstances, but it nevertheless had to be shown that the relief claimed would be of practical significance to the applicant :at [25] and [26] .

(3) Further, it was trite that an applicant could not apply for declaratory relief if there was no factual basis for such an application: at [15] .

(4) The appropriate test for determining an applicant’s standing turned on the nature of the rights at stake although, whether it was a public or private right, it could be prosecuted by private citizens. The applicable principle on standing where an application for declaratory relief was predicated on public rights had to be that which was set out in Gouriet v Union of Post Office Workers [1978] AC 435 and traceable to the second limb of Buckley J’s statement in Boyce v Paddington Borough Council [1901] 1 Ch 109, namely, that the applicant who asserted no more than a public right must demonstrate that the interference with, or violation of, such a public right had caused him “special damage”. The mere fact that other potential litigants had also suffered damage did not preclude the applicant from establishing that he had incurred “special damage”. There was also merit in the High Court of Australia’s clarification in Australia Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 that “special damage” referred to a ‘special interest’ which was not limited to actual pecuniary loss and need not have been exclusive to the applicant: at [29] , [31] , [33] and [41] to [43] .

(5) After the by-election in Hougang SMC was held on 26 May 2012, the facts which underpinned the appellant’s application were rendered moot and she was thereafter no different from any other citizen interested in the proper construction of Art 49 of the Constitution unless she had suffered “special damage”. It was abundantly clear that the “special damage” or “special interest” exception had not been made out as the Appellant was not able to point to any damage which she had suffered or any special interest of hers which had been affected. Accordingly, the appeal was dismissed: at [38] , [43] and [44] .

(6) The proper construction of O 53 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) should be such that an applicant who wished to obtain a prerogative order and a declaration under this order had, first, to obtain leave to make an application for a prerogative order (O 53 r 1 (1) (b )). In the same application he could also apply for a declaratory relief. Once leave was granted, and upon hearing the parties on the substantive merits, the court could grant (a) any prerogative order and a declaration; or (b) only a prerogative order without any declaration; or (c) only the declaration without any prerogative order...

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