Ang Ming Chuang v Singapore Airlines Ltd (Civil Aeronautics Administration, Third Party)

• Jurisdiction: Singapore
• Judge: Woo Bih Li J
• Judgment Date: 24 November 2004
• Neutral Citation: [2004] SGHC 263
• Citation: [2004] SGHC 263
• Date: 24 November 2004
• Published date: 25 November 2004
• Subject Matter: Whether court should stay or dismiss Singapore action to avoid multiplicity of proceedings,Defendant bringing in Taiwanese party as third party in action in Singapore courts,Conflict of Laws,Defendant also suing Taiwanese party in Taiwan,Whether court should stay or dismiss Singapore action,Whether Taiwan clearly or distinctly more appropriate forum than Singapore,Forum non conveniens,Natural forum,Lis alibi pendens
• Docket Number: Suit No 1295 of 2002 (Summons in Chambers No 900 of 2004)
• Defendant Counsel: Loo Choon Chiaw and Lim Tong Chuan (Loo and Partners),Lok Vi Ming (Rodyk and Davidson)
• Court: High Court (Singapore)
• Year: 2004

24 November 2004 Judgment reserved.

Woo Bih Li J:

Introduction

1 The plaintiff, Ang Ming Chuang (“Ang”), initiated this action in or about October 2002 against the defendant, Singapore Airlines Limited (“SIA”), for damages and other relief arising from an accident involving an aircraft operated by SIA as flight SQ006 at Chiang Kai-Shek International Airport in Taiwan (“CKS International Airport”), Republic of China, on 31 October 2000 at about 2317 hours Taiwan time. While the aircraft was taking off in severe weather, it hit some construction machinery as a result of which the aircraft crashed on a runway. The aircraft had sought to take off on the wrong runway, ie Runway 05R instead of the designated Runway 05L.

2 On 9 January 2003, SIA was granted leave to issue a third party notice to bring in the Civil Aeronautics Administration (“CAA”), which is part of the government of Taiwan, as a third party in the action. I will refer to the third party proceedings in the present suit as SIA’s Singapore action. SIA intended to seek an indemnity or contribution from CAA should SIA be found liable to Ang. After CAA’s application in Singapore claiming sovereign immunity was unsuccessful, CAA applied for SIA’s Singapore action to be stayed, dismissed and/or discontinued on the ground that the courts in Taiwan are more appropriate to determine the claim in respect of the third party proceeding and/or to avoid multiplicity of proceedings. This is the application before me.

3 CAA’s application covers not only SIA’s Singapore action but claims by other plaintiffs from the same flight who had commenced their own actions in Singapore against SIA who in turn had commenced third party proceedings against CAA. Strictly speaking, CAA’s application should be confined only to SIA’s Singapore action although it is open to SIA and CAA to agree that a decision on CAA’s present application will apply to SIA’s claims against CAA in the other proceedings in Singapore. Indeed, I was informed that SIA and CAA have agreed to apply my decision on CAA’s present application to all the other proceedings in Singapore which SIA is taking against CAA.

4 Although SIA had obtained leave to issue a third party notice against CAA in this action on 9 January 2003, SIA subsequently commenced an action in Taiwan on 30 April 2003 against CAA in respect of the same accident. SIA’s Taiwan action was wider for the following reasons. In so far as SIA was seeking an indemnity or contribution from CAA, this was not limited to the claims against SIA already filed in Singapore and included claims against SIA worldwide. SIA’s Taiwan action also included a claim for hull and cargo losses.

5 In these circumstances, CAA’s arguments about lis alibi pendens should be considered ahead of its arguments on forum non conveniens.

First argument – Lis alibi pendens

6 In Koh Kay Yew v Inno-Pacific Holdings Ltd [1997] 3 SLR 121, a Singapore-incorporated employer had sought an injunction to restrain its employee from continuing his action in California, USA, which was for unlawful dismissal. The employee had been working in California for the employer. Chief Justice Yong Pung How, delivering the judgment of the Court of Appeal, said at [22]:

Having said that, we have to remind ourselves that, while the same principles and approach apply to every case of this nature, each case turns strictly on its individual facts. Further, in dealing with cases such as the present one, where the appellant had only started proceedings in one jurisdiction, the courts should be more cautious than not in granting injunctions compared with situations, in which a party had commenced actions concurrently in two jurisdictions. In the latter situations, it is understandable that any court should feel uncomfortable about allowing both actions to go on. Not only would the same issue be litigated twice but there would also be the risk of having two different results, each conflicting with the other. And these problems would have arisen simply because one party decided to sue in one place too many. In such circumstances, courts, including those in Singapore, should prevent the inherent abuse of the different judicial systems in different jurisdictions by compelling that party to choose the jurisdiction that he wants to litigate in. The underlying need to prevent a multiplicity of similar proceedings justifies the courts being more prepared to grant an injunction.

7 In Yusen Air & Sea Service (S) Pte Ltd v KLM Royal Dutch Airlines [1999] 4 SLR 21, Federal Insurance Co, the insurers of some missing cargo, had commenced an action in New York against Yusen Air & Sea Service Pte Ltd (“Yusen”), a freight forwarding company incorporated in Singapore. Yusen joined KLM Royal Dutch Airlines (“KLM”) as a third party in the New York proceedings seeking contribution and/or an indemnity from KLM. Subsequently, Yusen also commenced action in Singapore against KLM and the cargo handling agents Changi International Airport Services Pte Ltd seeking a declaration for an indemnity in respect of the claim by Federal Insurance Co and Yusen’s costs and expenses in the New York proceedings.

8 KLM applied to strike out Yusen’s Singapore action. It succeeded before an assistant registrar whose decision was upheld by a judge. However, on appeal, the Court of Appeal allowed Yusen’s appeal, finding that Yusen had not affirmatively elected to proceed against KLM exclusively in New York because the evidence showed that Yusen intended to pursue its claim in Singapore for an indemnity for its costs and expenses in the New York proceedings for which it was advised would not be recoverable under New York law. As Yusen had elected to proceed against KLM in Singapore, it was allowed to do so but the Court of Appeal granted an injunction restraining Yusen from continuing the prosecution of the New York proceedings against KLM. Karthigesu JA said at [27]:

In our judgment, when a plaintiff sues the same defendant in two or more different jurisdictions over the same subject matter, the defendant can take up an application to compel the plaintiff to make an election as to which set of proceedings he wishes to pursue. For the purposes of an election, the considerations of forum conveniens do not come into play. However, the defendant would need to demonstrate a duplicity of actions in the different jurisdictions. Once this is established, the burden of proof then shifts to the plaintiff to justify the continuance of the concurrent proceedings by showing ‘very unusual circumstances’. If the plaintiff fails to demonstrate such unusual circumstances, he would have to make an election.

9 CAA placed reliance on these two cases, especially on that part of the judgment of Karthigesu JA in Yusen which said that once a duplicity of actions was established, the burden of proof then shifted to the plaintiff to justify the continuance of the concurrent proceedings by showing very unusual circumstances.

10 However, I note that the last sentence of [27] of that judgment said that if the plaintiff failed to demonstrate such unusual circumstances, he would have to make an election. Therefore, it seems to me that if SIA has not already elected to pursue its action in Taiwan and if it were to elect to carry on with its Singapore action, then the burden would shift back to CAA to establish its argument on forum non conveniens.

11 In the present case, SIA did not elect to proceed with the Singapore action and to stay its Taiwan action until in the hearing before me when, in the course of arguments, SIA’s counsel submitted, firstly, that the prosecution of the two actions was not vexatious and if it were vexatious and SIA were called upon to elect, SIA would then elect to continue with the Singapore action and stay the Taiwan action. This submission was made on the assumption that SIA had not yet elected to continue with the Taiwan action.

12 Since 30 April 2003 when SIA filed the Taiwan action, there have been a number of hearings in Taiwan. In my view, it is prima facie vexatious for SIA to continue with both its Taiwan action and its Singapore action. Although there is some evidence that SIA cannot stay the Taiwan action unless CAA agrees and even then, only for a limited period of four months, it is still open to SIA to limit its Taiwan action to claims not covered by SIA’s Singapore action. This it did not do. In my view, SIA has also failed to demonstrate very unusual circumstances for continuing with its Taiwan and Singapore actions.

13 In any event, there is also the question whether SIA has elected affirmatively to carry on with the Taiwan action. Significantly, the facts before me are the opposite of those in Yusen. In Yusen, the Singapore action was commenced to claim relief which was not sought in the New York action, ie Yusen’s costs and expenses in the New York action. On the facts before me, SIA’s Taiwan action is claiming a wider scope of relief than in the Singapore action, as I have mentioned. Therefore, although the mere commencement of an action in a foreign jurisdiction does not per se amount to an election to proceed there, I am of the view that SIA has affirmatively elected to proceed against CAA in the Taiwan action. In my view, the fact that SIA has not elected to proceed exclusively in either Taiwan or Singapore is neither here nor there because it is still carrying on with both actions and that gives rise to a duplicity of actions.

14 In the circumstances, it is not necessary for me to put SIA to an election and SIA’s Singapore action should either be dismissed or stayed on the ground of lis alibi pendens.

Second argument – Forum non conveniens

15 In the event that I am wrong on the issue of lis alibi pendens, I will also deal with the issue of forum non conveniens. The classicus locus on the factors to be considered for such an application is the case of Spiliada Maritime Corporation v Cansulex Ltd (The Spiliada) ...