Woh Hup (Pte) Ltd and Others v Lian Teck Construction Pte Ltd

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 10 May 2005
• Neutral Citation: [2005] SGCA 26
• Court: Court of Appeal (Singapore)
• Published date: 11 May 2005
• Year: 2005
• Plaintiff Counsel: Lawrence Teh and Loh Jen Wei (Rodyk and Davidson)
• Defendant Counsel: Christopher Chuah and Ian de Vaz (Wong Partnership)
• Subject Matter: Civil Procedure,Discovery of documents,Whether application for pre-action or pre-arbitral discovery,Whether appropriate to consider applicability of arbitration clause at hearing of discovery application,Whether grounds existing to interfere with finding that application complying with requirements for discovery,Order 24 r 6, O 24 r 7 Rules of Court (Cap 322, R 5, 2004 Rev Ed),Whether party to arbitration agreement may obtain pre-action discovery,Circumstances under which court may refuse to grant pre-action discovery to party to arbitration agreement,Whether court having power to order pre-arbitral discovery
• Citation: [2005] SGCA 26

10 May 2005

Lai Kew Chai J (delivering the judgment of the court):

1 The appellants, Woh Hup (Pte) Ltd, Shanghai Tunnel Engineering Co Ltd and NCC International Aktiebolag, brought this appeal against the decision of Lai Siu Chiu J reported in [2005] 1 SLR 266, in which the trial judge dismissed their appeal against an assistant registrar’s order that they give discovery of certain documents to the respondent, Lian Teck Construction Pte Ltd.

2 We dismissed the appeal on the grounds given below.

Background

3 Pursuant to a contract between the appellants and the Land Transport Authority (“LTA”) on 7 August 2001 (“the main contract”), the appellants were made the main contractors in a project known as “Contract-825 – Design, Construction and Completion of Stations at Millenia (‘MLN’), Convention Centre, Museum (‘MSM’) and Dhoby Ghaut (‘DBG’) including Tunnels”. The appellants appointed the respondent, Lian Teck Construction Pte Ltd, as the earthworks subcontractor for the project by a letter of award dated 23 July 2002 (“the subcontract”). The subcontract included the Singapore Institute of Architects Conditions of Sub-Contract (“the Conditions”), which contained an arbitration clause (“cl 23”).

4 After six warning letters citing poor progress, poor overall performance and inexcusable delays by the respondent, the appellants terminated the part of the subcontract relating to earthworks at the MLN station by a letter dated 19 February 2004 (“the termination notice”). The respondent elected to treat the partial termination as a repudiation of the subcontract by the appellants, which repudiation the respondent accepted on 5 March 2004.

5 On 5 July 2004, the respondent filed an originating summons (“the application”) under O 24 r 6(1) of the Rules of Court (Cap 322, R 5, 2004 Rev Ed) (“the Rules”) for an order that the appellants give discovery of the following documents pertaining to the main contract:

(a) the letter of award issued to the defendants by the LTA (Item A);

(b) the main contract conditions and particular conditions (Item B);

(c) the main contract specifications (relating to earthwork only) (Item C);

(d) the original master programme and subsequent amended master programmes and all recovery programmes issued in respect of DBG, MSM and MLN (Item D);

(e) all applications for extension of time submitted by the appellants and all replies thereto (Item E);

(f) all minutes of site meetings in which the defendants were in attendance (Item F);

(g) all monthly progress reports in respect of DBG, MSM and MLN (Item G);

(h) all monthly records/documentation and/or concrete control sheets evidencing the concrete casting dates for each bore at DBG, MSM and MLN (limited to sub-structure only) (Item H); and

(i) all diaphragm wall records for DBG, MSM and MLN (Item I).

6 In an affidavit filed by the respondent’s director, Loh Teck Lok (“Loh”), in support of the application (“Loh’s first affidavit”), the respondent alleged that the appellants wrongfully partially terminated the subcontract, and that the respondent intended to refer the subsequent disputes that arose to arbitration pursuant to cl 23 of the Conditions.

7 The appellants’ project manager, Per Jonsson (“Jonsson”), filed an affidavit opposing the application on the grounds that, inter alia:

(a) the respondent had been given reasonable opportunity to inspect the main contract (Items A to C) (save for detailed prices of the appellants), as stated in p 13 of the preamble to the Conditions;

(b) the application was premature and unnecessary as cl 23 precluded the respondent from referring its dispute to arbitration until after the completion of the works, which was scheduled for 30 January 2006;

(c) in the light of the arbitration clause which bound both sides, the appellants were unlikely to be party to subsequent court proceedings; and

(d) the documents requested were largely irrelevant to the respondent’s purported claim against the appellant for wrongful termination.

8 In a second affidavit filed by Loh (“Loh’s second affidavit”), the respondent did what the trial judge described as a “volte-face”. Loh deposed that the respondent was no longer proceeding by way of arbitration because cl 23 did not necessarily have universal application to all of its claims, and the respondent intended to institute legal proceedings against the appellants in the High Court for work done under the subcontract estimated to be in the region of about $2.5m. In addition, the respondent had other claims against the appellants for damages, expenses and losses which might need to be assessed.

9 The application was heard on 4 August 2004 before an assistant registrar who granted an order in terms of Items A to D only (“the Order”). The trial judge dismissed the appellants’ appeal and affirmed the Order on the basis that the documents disclosed were to be used for court proceedings, should the respondent decide to pursue its claim against the appellants based on those documents. The trial judge also extended the time for compliance with the Order.

The parties’ arguments and the decision below

10 Before us, the arguments canvassed by the parties mirrored those raised in the court below. The appellants, asserting that the application was for pre-arbitral discovery, framed the following two issues in their appeal:

(a) Whether the court has power to order pre-arbitral discovery of documents;

(b) Whether the respondent’s application for discovery satisfied the requirements of O 24 rr 6 and 7 of the Rules.

11 Both parties had made submissions in the hearing below as to whether the court had the jurisdiction to order pre-arbitral discovery. The trial judge opined that the arguments made by counsel for the appellants, based on s 18 of the Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) (“SCJA”) read in conjunction with the First Schedule of the SCJA, O 24 r 6 and O 69 of the Rules, as well as s 31 of the Arbitration Act (Cap 10, 2002 Rev Ed), cast some doubt on whether the court’s inherent jurisdiction extended to ordering pre-arbitral discovery. However, the trial judge found it unnecessary to decide this issue as, upon her inquiry, counsel for the respondent had confirmed that it intended to commence a suit against the appellants. The trial judge further held that the appellants’ argument that the respondent’s intended legal proceedings would be stayed by reason of the arbitration provision was premature, as it was not for the court to decide at this juncture whether cl 23 should be upheld.

12 The appellants argued that the trial judge should have recognised that the application was, as it was originally brought, for pre-arbitral discovery. Alternatively, the trial judge should have considered the arbitration clause, and had she done so, she would have found that it bound the parties. In either case, the question of whether the court has jurisdiction to order pre-arbitral discovery had to be answered, and should have been answered in the negative.

13 The appellants again cited s 18 of the SCJA and para 12 of the First Schedule to the SCJA in support of their argument that the court did not have jurisdiction to order pre-arbitral discovery. Section 18 of the SCJA provides:

(1) The High Court shall have such powers as are vested in it by any written law for the time being in force in Singapore.

(2) Without prejudice to the generality of subsection (1), the High Court shall have the powers set out in the First Schedule.

(3) The powers referred to in subsection (2) shall be exercised in accordance with any written law or Rules of Court relating to them.

14 Paragraph 12 of the First Schedule, which sets out the additional powers of the High Court, states:

Power before or after any proceedings are commenced to order discovery of facts or documents by any party to the proceedings or by any other person in such manner as may be prescribed by Rules of Court.

15 The appellants contended that the reference to “any proceedings” in para 12 of the First Schedule refers only to court proceedings as the SCJA is solely concerned with proceedings in the superior courts of Singapore. They supported this interpretation by reference to the use of the word “proceedings” in paras 4, 5, 6, 9, 10 and 19 of the First Schedule. Further, the court’s powers pursuant to s 31 of the Arbitration Act, which include the power to order discovery, can only be exercised in support of arbitration proceedings that have already commenced. Order 69 of the Rules, which regulates court procedure in relation to arbitration proceedings, also makes no reference to pre-arbitral discovery. Thus, they argued, the Rules do not prescribe any procedure for the grant of pre-arbitral discovery. This led to the conclusion that no power has been accorded to the High Court under the Rules to grant pre-arbitral discovery.

16 The appellants also cited case law rejecting the suggestion that the court has inherent jurisdiction to give discovery orders that are not prescribed by legislation: see eg, Abraham v Law Society of Singapore [1991] SLR 761, AJ Bekhor & Co Ltd v Bilton [1981] QB 923 and Cox v Bankside Members Agency Ltd [1995] CLY 4122.

17 In response, the respondent contended that the question as to whether the court has power to order pre-arbitral discovery was academic and irrelevant because:

(a) the application was for pre-action discovery, which the court had power to order; and

(b) the court was unable to conclude at that stage whether any legal proceedings taken by the respondent against the appellants would be stayed in favour of arbitration.

18 The respondent asserted that, in any event, the court had jurisdiction to order pre-arbitral discovery. The respondent argued that the court’s powers under para 12 of the First Schedule and O 24 r 6(1) could be exercised in respect of any proceedings, which encompassed both litigation and arbitral proceedings. Furthermore, the phrase “before or after any proceedings”...