Yee

- vs -

Industrial Arbitration Court

Judgment

Choor Singh J

1. In this case Mr. Ng Kian Fong moves on behalf of Mdm... Yee Yut Ee for an order of certiorari to bring up and quash a decision dated 9 January 1978 made by the Industrial Arbitration Court on the ground that there is a manifest error of law on the face of the record.

2. Mr. Chao Hick Tin, Deputy Senior State Counsel, who appears for the Attorney General, concedes that such an error appears and does not oppose an order of certiorari. However, before making such an order, the court must be satisfied that it has jurisdiction to do so.

3. The facts which are not in dispute are these. The applicant Mdm.. Yee Yut Ee is the secretary and former director of Trans-Market Research Pte Ltd, a company incorporated in Singapore and having its registered office at Room 808, OG Building, Upper Cross Street, Singapore. The company is a wholly owned subsidiary of Inmarco Inc of 7655, Sunset Boulevard, Los Angeles, California, United States of America.

4. The company, having operated at a loss since 1972 decided in October 1975 to retrench its staff in Singapore. By letter dated 17 October 1975 the company terminated the services of three of its employees, namely Abdul Basir Sumaidi, Chow Moh Lin and Nancy Chua Poh Tee. As a result of this retrenchment there arose a dispute on the question of retrenchment benefits claimed by the aforesaid employees and this dispute was referred to the Industrial Arbitration Court by joint application of the company and the Singapore Manual & Mercantile Workers Union ("the Union") representing the retrenched employees.

5. The dispute came up for hearing before the Industrial Arbitration Court on 18 June 1976. The company was not represented at the hearing although duly served. The managing director of the company, one Miss Loretta Lee was present in Singapore on that day but she did not appear at the hearing. The Industrial Arbitration Court after hearing the case presented by the Union handed down its award awarding retrenchment benefits to the aforesaid three employees which were eventually computed by the acting registrar of the Industrial Arbitration Court to amount to a total sum of $10,180.63.

6. On the day the Industrial Arbitration Court made its award, i.e. on 18 June 1976 the applicant was not a director of the company. After the award was made, the managing director of the company disappeared from Singapore. As there was no other resident director in Singapore, the applicant was appointed a director in July 1976. The applicant claims that her appointment as a director was to comply with s 122(1) of the Companies Act which requires that at least one director should be ordinarily resident in Singapore.

7. In spite of repeated reminders, the company failed to comply with the award made by the Industrial Arbitration Court. Finally on 19 December 1977 the company received a summons to appear before the Industrial Arbitration Court to answer a charge that it did:

   1. fail to comply with the order of the Industrial Arbitration Court made on 18 June 1976 to pay retrenchment benefits to three former employees amounting to $10,180.63,

   2. fail on 19 July 1977 to appear and show cause pursuant to s 55 of the Industrial Relations Act why the company should not be ordered to comply with the order made on 18 June 1976; and

   3. fail to make payments pursuant to the order to comply made under s 55 of the Industrial Relations Act on 19 July 1977 despite proper notice of the order having been served on the company.

8. At the hearing of this summons on 9 January 1978 the applicant appeared and was represented by counsel. The Union was also represented by counsel. After hearing submissions by both counsel, the Industrial Arbitration Court, constituted by the president alone made an order to the effect that as secretary and director of the company, the applicant was to be personally liable for the payment of the retrenchment benefits amounting to $10,180.63. The president made this order in spite of the fact that it was clearly pointed out to him by counsel for the applicant that under company law neither a secretary nor a director is personally liable for the debts of a company and that this principle of law has not in any way been modified by the Industrial Relations Act (Cap 124, 1970 Ed).

9. On 2 February 1978 the applicant resigned from the office of director of the company. She now applies to this court for an order of certiorari to remove into this court and quash the order made by the Industrial Arbitration Court on 9 January 1978 ordering or holding the applicant to be personally liable for the payment of the sum of $10,180.63 being retrenchment benefits awarded to three former employees of the company under an award made on 18 June 1976.

10. It is well established that the ambit of certiorari can be said to cover every case in which a body of persons, of a public as opposed to a purely private or domestic character, has to determine matters affecting subjects provided always that it has a duty to act judicially.

11. The remedy may be obtained on the ground of a defect in the jurisdiction of the court or tribunal below, or of a breach of the rules of natural justice in those proceedings or an error of law on the face of the proceedings.

12. Certiorari is said to be a discretionary remedy, and therefore it will not normally be granted unless and until the plaintiff has exhausted other remedies reasonably available and equally appropriate such as a statutory right of appeal.

13. If the plaintiff is a ‘person aggrieved’ and provided he has no other remedy, it seems that the court will almost certainly grant a certiorari on his application for it is clearly necessary in cases where questions of jurisdiction are involved and where no provision is made for appeals on points of law.

14. The first issue in this case is whether or not the respondent is required to act judicially. The Industrial Arbitration Court is a creature of statute. Its procedures and powers are laid down in the Industrial Relations Act (Cap 124, 1970 Ed). In the hearing and determination of a trade dispute it has to act ‘according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms’. See s 59 of the Industrial Relations Act (Cap 124, 1970 Ed). It has been held that in general a judicial act is one which involves ‘the exercise of some right or duty to decide’ a question affecting individual rights in order to provide scope for a writ of certiorari at common law. See R v Woodhouse [1906] 2 KB 501 at 535. It has also been held that it is enough in order for certiorari to lie for the tribunal to be under a duty to act fairly. See R v Liverpool Corp, ex p Liverpool Taxi Fleet Operators’ Association [1972] 2 QB 299. There cannot therefore be any doubts on this issue. The respondent is quite clearly required to act fairly if not judicially in the determination of trade disputes.

15. The second issue is whether or not there is any error of law on the face of the record. Here again, I think the issue is free of doubt. The impugned order made by the president of the Industrial Arbitration Court on 9 January 1978 to the effect that the applicant is personally liable for the payment of $10,180.63 is clearly erroneous in law. The applicant was not a party to the proceedings in which this order was made. The parties to the proceedings were the company and the Union.

16. It is true that at the date of the impugned order, the applicant was a director of the company. It is however a cardinal principle of company law that except in cases of fraud, breach of warranty of authority and other exceptional circumstances, a director is not liable for the debts of an incorporated company. There is nothing in the Companies Act (Cap 185, 1970 Ed) which makes a director personally liable for the debts of the company. Nor is there anything in the Industrial Relations Act (Cap 124, 1970 Ed) which modifies this fundamental doctrine of company law. No one would ever volunteer to be a director of an incorporated company if he or she was to be held liable in law for the debts of the company.

17. The impugned order is quite clearly illegal because it is not authorised by law. There is accordingly a patent error of law on the face of the record. This is very correctly conceded by counsel for the respondent.

18. The next issue which is really the main issue in this case is the effect of s 46 of the Industrial Relations Act which provides as follows:

    Subject to the provisions of this Act an award shall be final and conclusive, and no award or decision or order of a Court or the President or a referee shall be challenged, appealed against, reviewed, quashed, or called in question in any court and shall not be subject to certiorari, prohibition, mandamus or injunction in any court on any account.

19. It is clear that no appeal is given from a decision of an Industrial Arbitration Court. When Parliament sets up a tribunal and refers matters to it, it becomes a question of policy as to whether to provide for an appeal. Sometimes that is thought to be appropriate. Thus, in the Land Acquisition Act (Cap 272, 1970 Ed) provision is made for the hearing of appeals by a Land Appeals Board against awards made by Collectors of Land Revenue in respect of land acquired by the Government. It is enacted that though the decision of the Land Appeals Board (presided by a judge) was to be final, there could be in appeal to the Court of Appeal by a party aggrieved by the decision of the Board on any point of law. Sometimes, on the other hand, it is not thought appropriate to provide for an appeal. In reference to the Industrial Relations Act, it was presumably thought that the advantages of securing finality of decisions outweighed any disadvantages that might possibly result from having no appeal procedure.

20. Provisions similar to s 46 have been labelled ‘no certiorari’ clauses or ‘ouster clauses’ and have been dealt with in many reported cases. The cases show that when the right to certiorari had been expressly taken away by statute the courts rely upon the proposition that Parliament could not have intended a tribunal of limited jurisdiction to be permitted to exceed its authority without the possibility of direct correction by a superior court. It has been held that certiorari would issue, notwithstanding the presence of words taking away the right to apply for it, if the inferior tribunal was improperly constituted or if it lacked or exceeded jurisdiction, or failed to comply with essential preliminaries, or if a conviction or order had been procured by fraud or collusion or where there has been a breach of the rules of natural justice.

21. The courts have, however, always been careful to distinguish their intervention whether an excess of jurisdiction or error of law from an appellate function. Their jurisdiction over inferior tribunals is supervision, not review:

    … that supervision goes to two points: one is the area of the inferior jurisdiction and the qualifications and conditions of its exercise; the other is the observance of the law in the course of its exercise.  R v Nat Bell Liquors Ltd [1922] 2 AC 128 at p 156

22. In Ex parte Bradlaugh (1877–78) 3 QBD 509, there was an ouster clause, but Cockburn CJ said at p 513:

    I am clearly of the opinion that the section does not apply when the application for certiorari is on the ground that the inferior tribunal has exceeded the limits of its jurisdiction.

23. And Mellor J added:

    It is well established that the provision taking away the certiorari does not apply where there was an absence of jurisdiction. The consequences of holding otherwise would be that a metropolitan magistrate could make any order he pleased without question.

24. This case has been treated as a leading authority that ‘no certiorari’ clauses do not oust the courts where there is an absence of jurisdiction (Lord Parker CJ in R v Hurst, ex p Smith [1960] 2 QB 133 at p 142) or an excess of jurisdiction (Denning LJ in R v Medical Appeal Tribunal, ex p Gilmore [1957] 1 QB 574 at p 586).

25. In Gilmore’s case, in dealing with ‘no certiorari’ clauses, Lord Denning observed, at p 586:

    I would like to say a word about the old statutes which used in express terms to take away the remedy by certiorari by saying that the decision of the tribunal ‘shall not be removed by certiorari.’ Those statutes were passed chiefly between 1680 and 1848 in the days when the courts used certiorari too freely and quashed decisions for technical defects of form. In stopping this abuse the statutes proved very beneficial but the courts never allowed those statutes to be used as a cover for wrongdoing by tribunals. If tribunals were to be at liberty to exceed their jurisdiction without any check by the courts, the rule of law would be at an end.

26. And Romer LJ added:

    … it would be deplorable if we were constrained to hold that the decision of a medical appeal tribunal, however wrong in law, and however obviously wrong, was immune from review by Her Majesty’s courts … it is not in the public interest that inferior tribunals of any kind should be ultimate arbiters on questions of law.

27. In the New Zealand case of NZ Waterside Workers Federation Industrial Association of Workers v Frazer s 96(2) of Industrial Conciliation and Arbitration Act 1908 of New Zealand provided that ‘no award, order, or proceeding of the court (of arbitration) shall be liable to be reviewed, quashed, or called in question by any court of judicature on any account whatsoever’. It was held by the Supreme Court of New Zealand that the section must be read subject to the proviso that the award, order or proceeding so protected from examination was an award, order or proceeding within the jurisdiction of the Arbitration Court, and that certiorari would go to bring into the Supreme Court an industrial award in respect of an excess of jurisdiction.

28. The Privy Council held more than a hundred years ago in Colonial Bank of Australasia v Willian (1874) LR 5 PC 417 that certiorari would issue in the face of a privative clause purporting to preclude review by certiorari, but only for a manifest defect of jurisdiction in the authority that made the order or for manifest fraud in the party procuring it. A decision which is manifestly outside jurisdiction therefore cannot be protected by such a privative clause.

29. And in the recent case of Anisminic Ltd v Foreign Compensation Board [1969] 2 AC 147 the House of Lords held that a purported determination made by the Commissioner outside its jurisdiction was not a ‘determination’ at all but a nullity; hence the privative clause was irrelevant, and a declaration that the ‘determination’ was void could be granted.

30. Numerous other authorities can be cited which support the well established doctrine that when there is a defect in jurisdiction, the High Court will intervene. It would be quite intolerable if in such a case as this, there was no means of correcting the error. The control which the High Court exercises over inferior tribunals in a supervisory capacity extends not only to seeing that the inferior tribunals keep within their jurisdiction but also to seeing that they observe the law.

31. In my judgment the impugned order contains an error of law which caused the Industrial Arbitration Court to exceed its jurisdiction. It clearly had no power to make that order and in making it, it acted in excess of or without jurisdiction, that is to say, ultra vires the powers given to it under the Industrial Relations Act (Cap 124, 1970 Ed). The order must issue to quash the order of the Industrial Arbitration Court of 9 January 1978 holding the applicant to be personally liable for the payment of the retrenchment benefits amounting to $10,180.63.

Cases

Anisminic v Foreign Compensation Board [1969] 2 AC 147; Bradlaugh, ex p (1877-78) 3 QBD 509; Colonial Bank of Australasia v Willian (1874) 5 LR PC 417; R v Hurst, ex p Smith [1960] 2 QB 133; R v Liverpool Corp, ex p Liverpool Taxi Fleet Operators’ Association [1972] 2 QB 299; R v Medical Appeal Tribunal, ex p Gilmore [1957] 1 QB 574; R v Woodhouse [1906] 2 KB 501

Legislations

Companies Act (Cap 185, 1970 Ed)

Industrial Relations Act (Cap 124, 1970 Ed) s 46

Representation

Ng Kian Fong (Ng Kian Fong & Co) for the applicant.

Chao Hick Tin (Deputy Senior State Counsel) For the Attorney General.