Alliance Entertainment Singapore Pte Ltd v Sim Kay Teck and Another

• Jurisdiction: Singapore
• Judge: Andrew Ang J
• Judgment Date: 18 July 2006
• Neutral Citation: [2006] SGHC 124
• Date: 30 March 2007
• Subject Matter: Previous action struck out on narrow ground concerning party's failure to show chain of title giving party right to commence action,Civil Procedure,Applicable principles,Striking out,Whether commencement of second action precluded on grounds of res judicata or issue estoppel,Court commenting that fresh proceedings may be commenced
• Docket Number: Suit No 797 of 2005 (Summonses Nos 5478, 5489, 5531, 5587 and 5757 of 2006),Suit No 797 of 2005 (Summons No 84
• Published date: 19 July 2006
• Defendant Counsel: Sarbjit Singh and Sarbrinder Singh (Kerta & Co)
• Court: High Court (Singapore)
• Plaintiff Counsel: Wong Siew Hong and Teh Ee-Von (Infinitus Law Corporation)

18 July 2006

Andrew Ang J:

1 This was an application by the defendants in Suit No 797 of 2005 to strike out the plaintiff’s claim, as embodied in the writ of summons and the statement of claim, under O 18 r 19 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) on the grounds that:

(a) it discloses no reasonable cause of action;

(b) it is scandalous, frivolous or vexatious;

(c) it may prejudice, embarrass or delay the fair trial of the action; and/or

(d) it is an abuse of the process of the court; and alternatively, under the inherent jurisdiction of the court.

Though framed in these wide terms, the bone of contention between the parties was whether the plaintiff, Alliance Entertainment Singapore Pte Ltd (“Alliance”), was precluded from bringing this action in Suit No 797 of 2005 by reason of res judicata or issue estoppel. The defendants’ ground for so contending was that the claim in Suit No 978 of 2004 (“Suit 978”) on substantially the same issues had previously been struck out. For a better understanding of this issue, it is necessary to go into the background to ascertain what transpired in regard to Suit 978.

2 In that action, Alliance together with three other parties, namely, Comic Ritz Production Co Ltd (“Comic”), Catalyst Logic Co Ltd (“Catalyst”) and Speedy Video Distributors Sdn Bhd (“Speedy”), brought legal proceedings against the defendants for copyright infringement.

3 By Summons in Chambers No 3032 of 2005 (“SIC 3032/2005”), the defendants sought to strike out the claim in Suit 978 on the ground, inter alia, that Alliance had no title to commence proceedings; it was contended that there was no “chain of title” linking the owner of the copyright with Alliance as sub-licensee of the right to replicate and distribute the film “Meteor Garden 2” (“the Film”) in Singapore. At the hearing of SIC 3032/2005 on 22 July 2005, I allowed an adjournment for the plaintiffs in Suit 978 to file an application to amend the writ and/or pleadings as appropriate with a view to avoiding a striking out.

4 The plaintiffs duly made an application in Summons in Chambers No 4130 of 2005 (“SIC 4130/2005”) to amend the writ of summons and the statement of claim and the same was heard on 6 October 2005 together with the adjourned striking-out application in SIC 3032/2005.

5 In the application for leave to amend, the position taken by Alliance was that it was the exclusive licensee and that by reason of the new s 124 of the Copyright Act (Cap 63, 2006 Rev Ed) it was entitled to maintain the action without the owner of the copyright joining in as plaintiff. The proposed amendments also set out how Alliance derived copyright in the Film, thereby answering the defendants’ objections as to the lack of a “chain of title” to the copyright. I would have allowed the plaintiffs’ application to amend but for the defendants’ contention at the hearing that it appeared that there was more than one sub-licensee of the copyright in Singapore. If that was true, Alliance could not claim to be the exclusive licensee and therefore could not maintain the action on its own. Counsel for the plaintiffs was unable to respond to that contention at the hearing.

6 He therefore sought an adjournment to apply for leave to further amend the writ of summons and statement of claim but I declined to allow the plaintiffs a second bite at the cherry. I disallowed the amendments sought in SIC 4130/2005, adding that, in view of the defendants’ objection as to the apparent lack of exclusivity, the amendments sought would not have sufficed anyway. It was in that context that I said, “They will not save plaintiffs’ case in any event.” However, in refusing to adjourn to allow the plaintiffs to apply for further amendment, I added that proceedings could be instituted afresh. (Although, unfortunately, this was not recorded in the minutes, when I reminded counsel for the defendants of this at the hearing of Summons No 84 of 2006 (“Sum 84/2006”) in this action, he agreed that I had done so. However, he added that he thought I had meant that the proceedings had to be brought afresh in the names of all four plaintiffs. Whilst he may have thought so, in truth I had not thus prefaced or circumscribed my remarks. The application in Sum 84/2006 was therefore considered on the basis that I had made a general point that fresh proceedings could be instituted.)

7 In the event, a fresh action (Suit No 797 of 2005) was begun by Alliance and it was met with an application for striking out in Sum 84/2006.

8 I now turn to the law.

The law

9 In Spencer Bower, Turner and Handley, The Doctrine of Res Judicata (Butterworths, 3rd Ed, 1996) (“Spencer Bower”), it is stated at para 19 as follows:

A party setting up res judicata by way of estoppel as a bar to his opponent’s claim, or as the foundation of his own, must establish the constituent elements, namely:

(i) the decision was judicial in the relevant sense;

(ii) it was in fact pronounced;

(iii) the tribunal had jurisdiction over the parties and the subject matter;

(iv) the decision was –

(a) final, and

(b) on the merits;

(v) it determined the same question as that raised in the later litigation; and

(vi) the parties to the later litigation were either parties to the earlier litigation or their privies, or the earlier decision was in rem.

The passage quoted above was cited with approval in a number of cases including Midland Bank Trust Co Ltd v Green [1980] Ch 590 at 607.

10 In a similar vein, in the recent case of Lee Tat Development Pte Ltd v Management Corporation of Grange Heights Strata Title No 301 (No 2) [2005] 3 SLR 157 (“the Lee Tat Development case”), the Court of Appeal held that the requirements of an issue estoppel were as follows (according to the headnote of the report):

(a) there needed to be a final and conclusive judgment on the merits; (b) that judgment had to be by a court of competent jurisdiction; (c) there had to be identity between the parties to the two actions that were being compared; and (d) there had to be an identity of subject matter in the two proceedings. In relation to the last requirement, the decision on the issue must have been a “necessary step” to the decision, or a “matter which was necessary to decide and which was decided as the ground work of the decision”: at [14] and [15].

11 For the purpose of the present case, it is necessary to examine two of the constituent elements, viz:

(a) whether the earlier decision was final; and

(b) whether the earlier decision determined the same question as that raised in the later litigation.

Whether earlier decision determined the same question as that raised in the later litigation

12 Spencer Bower describes this element thus (at para 177):

The party setting up the estoppel must establish...