Lim Mey Lee Susan v Singapore Medical Council

Philip Pillai J:

[1] Summons No 521 of 2011 is an application in connection with the judicial review proceedings in Originating Summons No 1252 of 2010 (“OS 1252/2010”). It is a discovery application to require the Singapore Medical Council (“SMC”) to produce the following categories of documents:

[2] The Applicant had by a letter, dated 24 January 2011, invited the SMC to provide discovery of the above documents which the SMC by a letter, dated 31 January 2011, declined.

[3] The application for discovery is pursuant to O 24 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“ROC”). It should be noted, however, that the Applicant has sought both prerogative and non-prerogative relief in OS 1252/2010. I entertain some doubt as to whether the discovery process is applicable if an applicant for judicial review is seeking prerogative relief. Woo Bih Li J in Yip Kok Seng v Traditional Chinese Medicine Practitioners Board [2010] 4 SLR 990 made the following observation (at [17]):

There seems to have been some doubt in English law (prior to the 1977 amendments to O 53 of the Rules of the Supreme Court 1965 (SI 1965 No 1776) (UK) (“RSC”)) as to whether discovery was permissible in judicial review proceedings in which prerogative remedies were sought (see Oliver Sanders, “Disclosure of Documents in Claims for Judicial Review” [2006] JR 194 at 195). Denning LJ in Barnard v National Dock Labour Board [1953] 2 QB 18 held (at 43) that there is “no discovery” in certiorari applications (also see O’Reilly v Mackman [1983] 2 AC 237 at 281 (per Lord Diplock)). However, the UK Law Commission’s Report on Remedies in Administrative Law (Cmd 6407) in 1976 noted (at [15]) that the general power to order discovery under O 24 of the RSC was prima facie applicable to O 53 of the RSC:

[4] Neither party addressed me on whether discovery is in principle available in these judicial review proceedings. In my view, however, whatever the historical position, discovery should, in principle, be available in all judicial review proceedings. As the English Law Commission has observed (see [4] above), O 24, r 1 of the ROC is unqualified in its application to “any party to a cause or matter”:

[6] The core contemplation of O 24 of the ROC relates to civil litigation and it is common ground that this is not such a discovery application. It is a discovery application made in relation to a judicial review of the actions of the SMC pursuant to the Medical Registration Act (Cap 174, 2004 Rev Ed) (“MRA”) . The adduction of fresh evidence in judicial review proceedings is necessarily limited because in such reviews the court does not make findings of fact based on evidence. The court’s role in judicial review is limited to determining whether, based on the record, the action of the SMC under challenge, ought to be quashed or prohibited by reason of illegality, irrationality or procedural impropriety (to adopt the convenient categorisations enunciated by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 410–411).

[7] The underlying differences between discovery applications in civil actions and in judicial review is succinctly stated by Lord Bingham in Tweed v Parades Commission for Northern Ireland [2007] 1 AC 650 (“Tweed”) in the following terms at [2]:

The relevant reasons for adopting this restrictive approach are also stated by Lord Carswell in Tweed at [31]:

It should be noted that Lord Carswell was inclined to adopt a more flexible approach (at [32]):

[8] The judicial review record, which comprises the Applicant’s statement in support, the Respondent’s affidavit in reply and the Applicant’s affidavits in response, together with all annexures, includes two material emails in which the members of the SMC first revoked the appointment of the 1st DC and subsequently appointed the 2nd DC. The Applicant’s case on judicial review relating to bias or apprehension of bias is founded, inter alia, on the SMC Registrar and one witness and two 1st DC members being recipients of the two emails. The recipients of the two emails are all clearly identified and include the SMC Registrar and the 1st DC members and witness.

[9] It is pertinent to note that the content of these emails to all SMC members which evince the SMC’s decisions to first revoke the appointment of the 1st DC and subsequently to appoint the 2nd DC are self-explanatory. The email dated 3 September 2010 reads:

[10] The second email dated 13 September 2010, sent by and to the same parties, reads:

Both emails required no reply and the SMC confirmed that none was received by the due dates.

[11] In short, the Applicant’s complaint that the Registrar and the two members and a witness of the 1st DC had received the emails is palpably evident in the record. It is also palpably evident on record that no express agreement was sought by the emails nor were any received by the due response dates from any member of the SMC. In the light of the above, the discovery application for all documents relating to the SMC’s action first in revoking the appointment of the 1st DC and second in appointing the 2nd DC is not necessary for disposing fairly of the Applicant’s case for judicial review on the record.

[12] There is no correspondence, emails and minutes evidencing SMC’s appointment of the 1st DC and the discussions relating to the 1st DC’s appointment in the record. The Applicant concedes that there is no allegation of bias or apprehension of bias against the process by which the 1st DC was appointed. There is therefore, on the record, no question raised of any contemporaneous bias or apprehension of bias on the part of the SMC when it appointed the 1st DC.

[13] It is only because of the Applicant’s challenge of the SMC’s appointment of the 2nd DC that the Applicant now seeks discovery of the documents relating to the appointment of the 1st DC. The discovery application for these documents relating to the appointment of the 1st DC is remote to her challenge of the appointment of the 2nd DC. The subject matter of OS 1252/2010 relates to the 2nd DC and all the core documents relating to the 2nd DC required for the Applicant to make her case are in the record. The heart of the 2nd DC appointment is in the record, these being the emails, reproduced above at [9] and [10], which are self-explanatory. The discovery application for these documents relating to the appointment of the 1st DC is again not necessary for disposing fairly of the Applicant’s case on the record.

[14] This discovery application seeks discovery of all minutes, papers and reports of the SMC in relation to the amendment of reg 42 and it being brought into effect on 20 September 2010. Under the MRA, regulations may be made by the SMC with the approval of the Minister for Health. The Applicant has applied for a declaration that reg 42 is void as it violates the rules of natural justice. It is also the Applicant’s case that the amendment of reg 42 was targeted at her. In support of this submission, the Applicant points out that reg 42 was brought into effect by the SMC on 20 September 2010 about six days after the 2nd DC was constituted (14 September 2010) and about four days after she was notified that the SMC had appointed the 2nd DC (16 September 2010). It was further submitted that the amendments brought into force on 20 September 2010 related principally to the disciplinary process and the availability of the advice of legal assessors to the disciplinary committee. Further, the Applicant avers that the entire amendments brought into effect on 20 September 2010 were subsequently repealed and reintroduced as part of a more comprehensive set of regulations brought into effect in December 2010.

[15] Insofar as the challenge to reg 42 is based on it being contrary to natural justice, this challenge may be determined ex facie on the content of the amended reg 42. Insofar as the Applicant’s submission of bias or apprehension of bias on the part of the SMC is founded on its content and legislative chronology, this is public record. It is again not necessary for fairly disposing of the Applicant’s case on the record.