before arriving at my decision.
Precedent
66
It is clear that the relevant case law supports the conclusion that r 13 of the PER is
mandatory and that, therefore, a failure to comply with it will result in the plaintiff’s application being
dismissed if the defendant chooses to apply to this effect pursuant to r 13(4). Indeed, a failure to
comply with r 13 is precisely what happened in the present proceedings.
67
As already noted above, the leading decision was handed down decades ago in the Chong
Thain Vun case ([25] supra). What is of added significance is that that particular decision has more
than stood the test of time – right up to the present (see, in particular, the Charlee Soh case ([33]
supra)). The rule relating to the furnishing of security in these decisions was, it should be further
noted, identical to our r 13. However, it is essential, in my view, not to adopt an excessively legalistic
approach and simply rest my decision on a “peg-hanging basis”. What I mean is this: that while it is
extremely common for lawyers to seek and find “comfort” in a precedent (preferably “on all fours” with
the case at hand), such an approach that utilises an existing precedent without more as a “peg” to
hang one’s decision on, whilst helpful, ought not to be carried to extremes. Such an approach is
undoubtedly an integral part of the common law process. But that ought not to be the be all and end
all of the matter for, surely, the reasoning and logic of the precedent concerned must matter as well.
Indeed, in the worst-case scenario, an existing precedent could in fact embody erroneous principles
of law. It is therefore imperative to also examine the reasoning and rationale of the relevant
precedents as well as to decide (whenever possible) the case on first principles. This is accordingly
what I propose to do vis-à-vis r 13.
68
I commence with the finding that the reasoning in the Chong Thain Vun case as well as in the
Charlee Soh case is logical and persuasive (see generally [25]–[34] above). However, I wish to go
further. The logical and fair starting point is to examine the very language of r 13 itself, bearing in
mind the very important caveat pointed out by Mr Chan above (at [20]–[22]) that I ought to confine
myself, as far as is possible, to the language and four corners of the Act and the accompanying PER
themselves.
69
Rule 13 has in fact been reproduced in full at [4] above. Of particular importance is para (1)
thereof as it is that specific provision which not only sets out the general duty of the plaintiff (or
someone on behalf of the plaintiff) to give security but also lays down the timelines concerned.
Rule 13(1) reads as follows:
At the time of the filing of the application under section 90, or within 3 days afterwards, security
for the payment of all costs, charges and expenses that may become payable by the plaintiff
shall be given on behalf of the plaintiff. [emphasis added]
The words italicised above are of particular importance. Let me elaborate.
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One will notice right from the outset at least two important (and related) points with respect
to the timeframe set out under r 13(1).
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The first is that, on a general level, the timeframe is very specific. In other words, it is not
phrased in general terms. More importantly, there is no exception incorporated into r 13(1) itself, for
example, the provision for an extension of time if the timelines therein are not met. Indeed, the
reference in r 13(1) is to two timelines, not just a single timeline. This is a point that has, to the best
of my knowledge, not been canvassed in any of the case law. However, it is, as I shall point out in a
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