Vellama d/o Marie Muthu v AG

• Jurisdiction: Singapore
• Judgment Date: 01 November 2012
• Date: 01 November 2012
• Docket Number: Originating Summons No 196 of 2012
• Court: High Court (Singapore)

Vellama d/o Marie Muthu

Plaintiff

and

Attorney-General

Defendant

[2012] SGHC 221

Philip Pillai J

Originating Summons No 196 of 2012

High Court

Civil Procedure—Costs—Whether public interest considerations were relevant in determining appropriate costs order for civil proceedings

The applicant (‘the Applicant’) commenced judicial review proceedings under O 53 of the Rules of Court (Cap 322, R5, 2006 Rev Ed) seeking mandatory and declaratory orders pertaining to the Prime Minister's discretion to announce a by-election in the Hougang Single Member Constituency (SMC). The Applicant was granted leave to proceed with the judicial review. However, after a by-election in Hougang SMC was called and held, the Applicant withdrew her application for the mandatory order. The judicial review proceedings was ultimately dismissed on the basis that the court had no power to grant standalone declarations in judicial review proceedings where the principal application for a mandatory order had been abandoned. The Applicant's reserved application for the same declaratory orders under O 15 r 16 of the Rules of Court was also dismissed. The Respondent took the position that costs should follow the event and as the unsuccessful party, the Applicant should be made to bear the Respondent's costs.

Held, making no order as to costs for both the applications in the judicial review proceedings and the reserved application under O 15 r 16:

(1) It was inappropriate to determine costs for the leave application for the judicial review after the substantive merits of the judicial review had been decided. As the parties only argued on the appropriate costs orders for the leave application after the judgment on the substantive merits had been released, an impartial and fair determination of costs for the leave application could not be safely made at that late stage: at [16] and [17].

(2) As with ordinary civil proceedings, the power to award costs for judicial review proceedings was in the full discretion of the court. Nevertheless, the starting point was costs follow the event: at [35] and [36].

(3) Public interest was a relevant consideration in the court's exercise of its discretion to award costs. Court proceedings carried public interest where they raised public law issues of general importance, and where the applicant in the proceedings was not seeking to protect some private interest: at [39] to [42] and [44].

(4) The parties treated the substantive judicial review application and the reserved application as one application for the purposes of costs. The issues raised in the reserved application under O 15 r 16 concerned public law issues of general importance and the plaintiff did not have a private interest in the question relating to the filling of vacant seats of elected Members of Parliament: at [19] and [45].

Baxendale-Walker v Law Society [2006] EWHC 643 (Admin) (refd)

Baxendale-Walker v Law Society [2008] 1 WLR 426 (refd)

Chee Siok Chin v Minister for Home Affairs [2006] 1 SLR (R) 582; [2006] 1 SLR582 (refd)

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

Jeyaretnam Kenneth Andrew v AG [2013] 1 SLR 619 (refd)

Law Society of Singapore v Top Ten Entertainment Pte Ltd [2011] 2 SLR 1279 (refd)

Lim Mey Lee Susan v Singapore Medical Council [2011] SGHC 131 (refd)

New Zealand Maori Council v AG of New Zealand [1994] 1 AC 466 (refd)

Oshlack v Richmond River Council (1998) 193 CLR 72 (refd)

R v Lord Chancellor, Ex parte Child Poverty Action Group [1999] 1 WLR 347 (folld)

R (Corner House Research) v Secretary of State for Trade and Industry [2005] 1 WLR 2600 (refd)

Shankar Alan s/o Anant Kulkarni, Re [2007] 2 SLR (R) 95; [2007] 2 SLR 95 (folld)

Siah Mooi Guat, Re [1988] 2 SLR (R) 165; [1988] SLR 766 (refd)

Soon Peng Yam v Maimon bte Ahmad [1995] 1 SLR (R) 279; [1996] 2 SLR 609 (folld)

Teo Soh Lung v Minister for Home Affairs [1990] 1 SLR (R) 347; [1990] SLR 40 (refd)

Vellama d/o Marie Muthu v AG [2012] 4 SLR 698 (refd)

Vellama d/o Marie Muthu v AG [2012] 2 SLR 1033 (refd)

Yeap Wai Kong v Singapore Exchange Securities Trading Ltd [2012] 3 SLR565 (refd)

Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) Arts 46 (2) , 49 (1)

Government Proceedings Act (Cap 121, 1985 Rev Ed) ss 2 (2) , 29

Legal Profession Act (Cap 161, 2009 Rev Ed)

Rules of Court (Cap 322, R5, 2006 Rev Ed) O 59 r 2 (2) , O 59 r 3 (1) , O 59 r 3 (2) (consd) ;O 15 r 6 (2) (b) , O 15 r 16, O 53, O 53 r 1 (1) , O 53 r 1 (2) , O 53 r 1 (3) , O 53 r 1 (4) , O 53 r 2 (3) , O 59, O 59 r 1

M Ravi (LFViolet Netto) for the applicant

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

Judgment reserved.

Philip Pillai J

Introduction

1 The judgment on the judicial review application in Originating Summons No 196 of 2012 (‘OS 196’) (‘the Substantive Application’) and the Applicant's reserved application for two declarations (‘the Reserved Application’) was released on 1 August 2012: Vellama d/o Marie Muthu v AG [2012] 4 SLR 698 (‘the Final Judgment’). At the initial hearing for leave to proceed with the judicial review application (‘the Leave Application’), neither counsel made any submissions on costs and none were then ordered. After the Final Judgment was delivered, both counsel made their submissions on the costs of all the above applications. The following is my judgment on the costs of all these applications.

Background

2 On 28 February 2012 the Speaker of Parliament announced that the elected Member of Parliament seat in Hougang Single Member Constituency (‘Hougang SMC’) had become vacant under Art 46 (2) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (‘the Constitution’).

3 On 2 March 2012 the Applicant filed OS 196 seeking a mandatory order and two declarations under O 53 r 1 (1) of the Rules of Court (Cap 322, R5, 2006 Rev Ed) (‘the ROC’). The mandatory order sought was to enjoin the Prime Minister to advise the President to issue a writ of election for a by-election in Hougang SMC pursuant to Art 49 (1) of the Constitution and to tender such advice within three months or within such reasonable time as the court deemed fit. The declarations were to declare that the Prime Minister does not have unfettered discretion in deciding whether to announce a by-election in Hougang SMC and that he must decide within three months or within such reasonable time as the court deemed fit. The Applicant filed her statement pursuant to O 53 r 1 (2) on 4 March 2012 (‘the Statement’).

4 On 9 March 2012, the Prime Minister announced in Parliament that he intended to call a by-election in Hougang SMC but that he had not decided on the timing. He would decide on the timing after taking into account all relevant factors including local, national and international factors: see Singapore Parliamentary Debates, Official Report(9 March 2012) vol 88 at col 5.

5 On 3 April 2012, leave was granted to the Applicant to proceed with the Substantive Application. The grounds of decision to grant leave were set out in Vellama d/o Marie Muthu v AG [2012] 2 SLR 1033 (‘the Leave Judgment’).

6 On 9 May 2012, the writ of election calling for a by-election in Hougang SMC was issued by the President, upon the advice of the Prime Minister. The by-election was held on 26 May 2012.

7 After leave was granted, the Attorney-General (‘the AG’) appealed to the Court of Appeal on 4 April 2012 against the decision to grant leave. Following the issue of the writ of election on 16 May 2012, the AG withdrew the appeal.

8 On 29 May 2012, the Applicant proceeded with the Substantive Application by filing Summons No 2639 of 2012 (‘SUM 2639’). This was followed by a series of interlocutory applications (‘the Interlocutory Applications’) by both parties:

(a) Summons No 2684 of 2012 (‘SUM 2684’) filed by the AG on 31 May 2012, to strike out SUM 2639 and seek a permanent...