Lim Kah Ho Maurice v Beenleigh Construction And Project Management Pte Ltd

This was an Originating Summons taken out by the plaintiff for proceedings in a Magistrate’s Court (MC Suit No 31634 of 2003) to be stayed. The application was made under section 6(1) of the Arbitration Act (Cap10)(“the Act”), which states:

[Emphasis added.]

It is convenient to set out here two definitions from section 2 of the Act:

[3] The current version of the Act was enacted on 17 October 2001, and commenced on 1 March 2002. When read for a second time in Parliament on 5 October 2001, the then Minister of State for Law (Assoc. Prof. Ho Peng Kee) said that the proposed Bill enacted an Act which would be “more in line with the International Arbitration Act (IAA) and international practices, as reflected in the UNCITRAL Model Law on International Commercial Arbitration.” In relation to clause 6(1) in particular, he said:

It is perhaps worth setting out at this stage the relevant provision in the predecessor version of the Act. This was Section 7(1), which stated:

[Emphasis added.]

In the predecessor Act, there was only one definition of the word “court”, which was defined to mean the High Court.

[4] Mr Yeo for the plaintiff relied on the words of the Minister of State and argued that since the amendments were made merely to “remove the inconvenience” of having to submit the matter for determination to the High Court, the High Court still had jurisdiction to hear the matter and therefore there was no defect in the application. Alternatively, he argued that even if there was a defect, it was merely a technical defect which under Order 2 of the Rules of Court (Cap 332, R 5, 1997 Rev Ed) should not nullify the proceedings. He urged me to hear the case, or at the worst, to transfer the matter back to the Subordinate Courts for determination there.

[5] It was my view that the wording of section 6 of the Act is unambiguous, and consequently, that the Parliamentary material relied on by Mr Yeo could not come in his aid. While it is true that statutes are to be interpreted purposively where appropriate, as stated in section 9A of the Interpretation Act (Cap 1), this principle is limited, in my view, by the even more cherished axiom that statutes should be read in accordance with their plain meaning unless such a reading would lead to a manifest absurdity. To subordinate the “plain meaning” rule to the purposive approach would be to abandon the wider concern that the laws of the land should be accessible and transparent to all.

[6] In my opinion, the juxtaposition of the additional definition of the term “court” to include the subordinate courts in section 2 of the Act with the amended reference to “…that court” in section 6 leaves no room for the High Court to hear the matter. Even if one were to leave to one side the jurisdictional point, to bring such an application in contravention of the preferred forum in the absence of extenuating circumstances would, I think, amount to an abuse of process.

[7] Since Mr Yeo raised the question of transferring the matter to the court in which the proceedings had been instituted, I will deal with it briefly. First, I should say that I did not think that there was a sufficient basis to transfer the proceedings to a Magistrate’s Court. Having commenced the action in an inappropriate forum, the remedy was not, I think, to transfer the matter down so that there would be two parallel proceedings when there was no necessity for this. As I indicated to Mr Yeo at the hearing, the correct procedure in my view was simply to take out an application for a stay in the existing proceedings.

[8] In any event, I doubted that I had the power to transfer the proceedings to a Magistrate’s Court as suggested by Mr Yeo. He had referred me to clause 10 of the First Schedule to the Supreme Court of Judicature Act (Cap 322), which states:

This clause is brought into play by section 18(2) of the same Act, which gives the High Court the powers set out in that schedule.

[9] However, in the case of Ong Pang Wee and Ors v Chiltern Park Development Pte Ltd [2003] 2 SLR 267, the majority of the Court of Appeal, referring to section 18(2) of the Act, held as follows:

There appears to be no statutory provision which allows the High Court to transfer matters to a Magistrate’s Court. The Chiltern Park case cited above concerned an application to transfer a case in a Magistrate’s Court to the High Court, but I should think the reasoning applies both ways.

[10] Mr Yeo also brought my attention to Order 89 of the Rules of Court, which sets out the procedure for transfer of proceedings between the High Court and the Subordinate Courts. In Chiltern Park (cited above), the majority took the view that Rules 1 and 2 of that Order do not set out the circumstances in which an application may be initiated – that issue is governed by primary legislation:

I would gratefully adopt this reasoning.

[11] Having exhausted all the arguments advanced by counsel for the plaintiff and finding them insufficient to overcome the preliminary objection, I dismissed the application.