Grassland Express & Tours Pte Ltd and another v M Priyatharsini and others

• Jurisdiction: Singapore
• Judge: Woo Bih Li JAD
• Judgment Date: 19 July 2022
• Neutral Citation: [2022] SGHC(A) 28
• Citation: [2022] SGHC(A) 28
• Docket Number: Civil Appeal No 39 of 2022 (Summons No 15 of 2022)
• Published date: 22 July 2022
• Year: 2022
• Plaintiff Counsel: Pillai Subbiah (Tan & Pillai)
• Defendant Counsel: Palaniappan Sundararaj and Ranita Yogeeswaran (K&L Gates Straits Law LLC)
• Hearing Date: 01 June 2022
• Court: High Court Appellate Division (Singapore)

Woo Bih Li JAD (delivering the judgment of the court):Introduction

On 12 April 2022, the appellants in the main appeal in AD/CA 39/2022 (“CA 39”) filed a Notice of Appeal (“NA 39”) against the “whole of the decision” of the High Court Judge (the “Judge”) “given on 16-03-2022” in HC/S 1044/2018 and HC/S 1307/2018 respectively (collectively, the “Suits”). On 22 April 2022, the respondents in CA 39 filed the present AD/SUM 15/2022 (“SUM 15”) to strike out NA 39. To avoid confusion, we refer to the parties who filed SUM 15 collectively as the “Customers” and the parties opposing SUM 15 collectively as the “Companies” in this judgment.

Having considered the parties’ submissions, we allow the application in SUM 15 and accordingly strike out NA 39. These are our reasons for doing so.

Background facts

The Customers were holiday makers who were travelling from Genting Highlands back to Singapore on 31 August 2016. They were on board a double decker luxury coach (the “Bus”). En route to Singapore, the Bus was involved in a road accident. The Customers sustained injuries and filed an action to claim damages. The Companies are incorporated in Singapore and were found to have undertaken to transport the Customers from Singapore to Genting Highlands and back, by bus, under the relevant contracts and to do so with reasonable care.

On 24 February 2022, the Judge gave interlocutory judgment on liability in favour of the Customers with damages to be assessed (including damages in relation to the Companies’ contractual liability to all the Customers for failing to provide the transportation service with reasonable care) and costs to be heard separately in R Manokaran and others v Chuah Ah Leng and others and another suit [2022] SGHC 39 (the “Main Judgment”).

The Judge also directed parties to file submissions on costs by 3 March 2022 by way of correspondence from the Court over eLitigation. Notably, the first paragraph of that correspondence referred to “the Judgment dated 24 February 2022”.¹ On 28 February 2022, the Customers requested an extension of time of a week to file such submissions which the Judge granted on 1 March 2022.² The Companies filed their submissions on costs on 9 March 2022 and the Customers filed their submissions on the same on 10 March 2022. On 16 March 2022, the Judge made orders on costs and disbursements against the Companies in respect of each of the two Suits by way of correspondence from the Court (the “Costs Orders”). Thereafter, on 17 March 2022, the Judge directed parties to write in by 21 March 2022 “if there are any objections to the Court having made the orders on costs and disbursements by way of the letter dated 16 March 2022”.³

On 12 April 2022, the Companies filed NA 39 to this Court stating:

Take Notice that an appeal under Order 19 of the Rules of Court 2021 has been filed by the 3rd Defendant (s) in HC/S 1044/2018 and 3rd Defendant(s) in HC/S 1307/2018 to the Appellate Division of the High Court.

The appeal is against the whole of the decision of [the Judge] in HC/S 1044/2018 given on 16-03-2022, [the Judge] in HC/S 1307/2018 given on 16-03-2022.

The Notice of Appeal before us was not the Companies’ first attempt to file an appeal against the Main Judgment. On 24 March 2022, counsel for the Companies first attempted to file a purported “appeal”. However, this was filed under “All Other Summons” in the underlying casefile. Counsel for the Companies was informed that there were two issues with such a filing. First, nothing on the face of that document stated that it was an appeal and it did not comply with the relevant form applicable then for a notice of appeal. Second, the document was filed in the underlying casefile. Accordingly, that filing was rejected by the General Division of the High Court.

On 25 March 2022, the Companies filed a Notice of Appeal to the Court of Appeal.⁴ That was also procedurally deficient for three reasons. First, it was filed out of time as 24 March 2022 was the last day for filing an appeal. However, when filing the Notice of Appeal, counsel for the Companies indicated that an extension of time was not required. Second, it was filed to the Court of Appeal instead of the Appellate Division of the High Court. Third, there was no accompanying Certificate for Security for Costs.

On 29 and 30 March 2022, the Registry of the Supreme Court attempted to contact counsel for the Companies on his mobile line and office line but to no avail. He, however, did write in on 29 March 2022 (again, in the underlying casefile) to inquire about the filing of the Notice of Appeal. On 30 March 2022, the Registry responded, asking counsel for the Companies to confirm whether the Notice of Appeal to the Court of Appeal was filed out of time as that appeared to be the case. On 31 March 2022, he wrote to the Registry, stating that the appeal was “not out of time”.⁵

In those circumstances, an Assistant Registrar (“AR”) convened an urgent case management conference (“CMC”) on the matter on 4 April 2022. However, counsel for the Companies was absent as neither he nor his staff allegedly had notice of the CMC. The CMC was thus refixed to 7 April 2022. At the CMC on 7 April 2022, the AR set out the background which led to the CMC and the issues faced by the initial filing on 24 March 2022 as well as the subsequent filing on 25 March 2022 which we have mentioned at [7] and [8] above. The AR said that the Notice of Appeal would be rejected due to numerous deficiencies. The AR also mentioned that counsel for the Companies ought to consider whether an application for an extension of time to appeal should be filed. The Customers had indicated they might apply to strike out the appeal, if he sought to file an appeal without an extension of time. Eventually, the Companies filed NA 39 on 12 April 2022 before the Appellate Division of the High Court without seeking an extension of time to do so.

The parties’ cases

The Customers contend that because NA 39 refers only to the decision of the Judge on 16 March 2022, it is an appeal against the Costs Orders only. As such, it may be filed only with the court’s permission to do so. If the Companies wished to appeal against the Main Judgment on liability, which was pronounced on 24 February 2022, they might do so only if an extension of time to appeal was obtained. As neither permission to appeal against the Costs Orders nor an extension of time to appeal against the Main Judgment was sought, NA 39 should be struck out.

The Companies contend that NA 39 was “against the whole of” the Judge’s decision in respect of liability and costs. Such appeal was filed within time as the relevant time began running only when the Judge had resolved all issues, including costs. As such, the relevant time only ran from 16 March 2022 when the Costs Orders were made. SUM 15 should accordingly be dismissed.

Issues to be determined

The first issue that arises before us is whether NA 39 is an appeal against the Costs Orders only such that permission to appeal is required. If that is so, then it must be struck out as permission has not been obtained. But, if it is against the Main Judgment in addition to the Costs Orders, then a second issue arises as to whether it is filed out of time.

The decisions appealed against in NA 39The parties’ cases

The Customers argue that the Companies have “mischievously and inaccurately” sought to characterise NA 39 as an appeal against the Judge’s decision on liability and costs and, in so doing, have filed it as a “backdoor appeal” against the Judge’s decision on liability (ie, the Main Judgment).⁶ The significance of the Customers’ argument, as alluded to above, is that pursuant to s 29A of the Supreme Court Judicature Act 1969 (2020 Rev Ed) (“SCJA”) read with para 3(f) of the Fifth Schedule to the SCJA (the “Fifth Schedule”), permission of the appellate court is required:⁷

Permission required to appeal in certain cases

29A.—(1)In the following cases, permission is required before an appeal may be brought against a decision of the General Division made in the exercise of its original or appellate civil jurisdiction:

…

(c)subject to any exception specified in the Fifth Schedule, a case specified in paragraphs 3, 4(1) and 5(1) of that Schedule.

…

FIFTH SCHEDULE

DECISIONS OF GENERAL DIVISION THAT ARE APPEALABLE ONLY WITH PERMISSION, AND CERTAIN EXCEPTIONS

Interlocutory decisions, etc.

3.Subject to paragraph 4(2), the permission of the appellate court is required to appeal against a decision of the General Division in any of the following cases:

…

(f)where the only issue in the appeal relates to costs or fees for hearing dates; …

The Companies do not dispute that an appeal which is confined to costs may be filed only with the permission of the appellate court. What they contend, however, was that the scope of the appeal in NA 39 is against the “whole decision with regard to the judgment which was delivered” by the Judge “in chambers” and not against the decision on costs only. Hence, they do not need permission to file the appeal.⁸

The Companies rely on three arguments. First, that NA 39 is “against the whole judgment of” the Judge.⁹ Second, the judgment “extracted by [the Customers] dated 16 March 2022 deals with the issue of liability and costs”.¹⁰ Third, the trial was a “bifurcated” one “on the issue of liability and costs and not as alleged by the [Customers] only on the issue of costs”.¹¹ The Companies also submit that it would be “odd” if they had to file two separate notices of appeal “which would only incur more costs” and “also waste the resources” of the appellate court.¹²

AnalysisThe extracted judgments

On the facts of the present case, it is clear that two different decisions were rendered on two different dates. The first is the Main Judgment, which was pronounced on 24 February 2022,...