Auto Clean 'N' Shine Services (a firm) v Eastern Publishing Associates Pte Ltd

• Jurisdiction: Singapore
• Judge: Karthigesu JA
• Judgment Date: 30 June 1997
• Neutral Citation: [1997] SGCA 27
• Date: 30 June 1997
• Subject Matter: Application for extension of time for filing of affidavits of evidence-in-chief of witnesses named in order of court,Application to add new witnesses,Civil Procedure,Whether applications should be allowed,Affidavits,Filing and exchange of affidavits of evidence-in-chief
• Docket Number: Civil Appeal No 142 of 1996
• Published date: 19 September 2003
• Defendant Counsel: Raymond Lye (E Tay Raymond Lye & Partners)
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: Jimmy Yim and Kelvin Tan (Drew & Napier)

This was an appeal against the decision of a judge in chambers in which he disallowed the application by the plaintiffs for 11 witnesses of fact to be called at the trial of the action in addition to those witnesses named in the order made on the summons for directions and for their affidavits of evidence-in-chief to be filed, and also for the time to file the affidavits of evidence-in-chief of two of their witnesses of fact, named in that order, to be extended. We allowed the appeal, and now give our reasons.

The facts

The material events that led to this appeal were as follows. The plaintiffs, Auto Clean `N` Shine Services (the plaintiffs), are a partnership firm carrying on the business of car grooming in Singapore, which involves, among other things, waxing, polishing and shampooing motor vehicles. The defendants, Eastern Publishing Associates Pte Ltd (the defendants), are a company carrying on in Singapore the business of publishing books, magazines and periodicals including two monthly magazines known as Motoring and Golf .

The plaintiffs commenced this action against the defendants claiming damages for libel and malicious falsehood in respect of an article that was published in the September 1995 issues of the two magazines, Motoring and Golf . They claimed that certain portions of the article were defamatory of them in their ordinary and natural meaning and by way of innuendo. In the alternative, they claimed that the words complained of were false and were published maliciously, and particulars of falsehood and malice were set out in the statement of claim. The defendants in their defence pleaded that the article in question was not defamatory of the plaintiffs, nor did the article refer to them, and that, in any event, the article was published on an occasion of qualified privilege. The defendants also denied that the article contained any falsehoods or was published maliciously. In response, the plaintiffs filed a reply averring that the defendants were actuated by malice when they published the article.

After the close of pleadings, the plaintiffs took out a summons for directions under O 25 r 1 of the Rules of the Supreme Court (now O 25 r 1 of the Rules of Court 1996) and the summons was heard before an assistant registrar on 19 December 1995. The assistant registrar made the usual orders on the summons as to discovery, inspection of documents and the number of witnesses to be called at the trial and their evidence on affidavits, including the following orders that were relevant to this appeal:

4 The affidavits of evidence-in-chief of all witnesses shall be limited to one affidavit for each witness to be filed and exchanged within four (4) months and objection to the contents of the affidavit evidence shall be taken within one (1) month after the exchange of the affidavit evidence.

5 The trial to be fixed for eight (8) days and to be set down by 31 May 1996.

6 The witnesses whom the plaintiffs intend if necessary to call shall be limited to the following thirteen (13) witnesses of fact. ...

7 The witnesses whom the defendants intend if necessary to call shall be limited to the following eighteen (18) witnesses of fact ...

On 26 April 1996, some four months and one week after the assistant registrar`s order of 19 December 1995 (the order of court), the plaintiffs and the defendants filed and simultaneously exchanged their affidavits of evidence-in-chief. In all, the plaintiffs filed and delivered to the defendants affidavits of evidence-in-chief of nine of their witnesses named in the order of court; they omitted the affidavits of four of their witnesses so named, but added an affidavit of one witness, Gerald Koo Mun Fook, who was not named in the order of court. As for the defendants, they filed and delivered to the plaintiffs affidavits of evidence-in-chief of 15 of their witnesses named in the order of court; they omitted the affidavits of three of their witnesses so named.

On 27 and 28 May 1996, the defendants filed a series of objections to the contents of the affidavits filed and served by the plaintiffs on the ground that they were irrelevant, scandalous, vexatious, prejudicial, embarrassing and hearsay. One of the objections made was to the entire affidavit of evidence-in-chief of Gerald Koo Mun Fook, on the ground that he was not one of the witnesses named in the order of court.

On 7 June 1996, the plaintiffs applied by way of a notice for further directions seeking an order for the following, namely, the date for setting down the action for trial be extended to 31 October 1996; leave be granted for certain amendments to be made to the statement of claim; ten new witnesses of fact be called at the trial of the action; and their affidavits of evidence-in-chief be filed. One of the ten witnesses named in the application was Gerald Koo Mun Fook whose affidavit had already been filed and served on the defendants on 26 April 1996. The plaintiffs also sought an extension of time for the filing of affidavits of evidence-in-chief of two of the four witnesses, Connie Teo Ping Ling and Low Choon Yee, who were named in the order of court but whose affidavits were not filed and served on the defendants on 26 April 1996. On 18 June 1996, the plaintiffs applied by way of a second notice for further directions for another new witness to be added to the list of witnesses to be called at the trial and for the affidavit of evidence-in-chief of this witness to be filed and served. In support of their applications, an affidavit by the solicitor acting for the plaintiffs in this matter was filed, to which we shall advert in some detail in a moment.

For the sake of completeness, we should add that on 21 June 1996 the defendants also filed a notice for further directions applying for the inclusion of an additional witness of fact, one Don Wang How Weng. The plaintiffs consented to the application, and an order was made accordingly.

On 18 July 1996, the plaintiffs` two notices for further directions came on for hearing. The assistant registrar allowed the application to include the 11 new witnesses of fact and ordered that their affidavits of evidence-in-chief be filed and served within 30 days of the date of the order. However, he restricted the matters in the new affidavits to the evidence already raised in the affidavits of evidence-in-chief that had already been filed by the plaintiffs on 26 April 1996. The assistant registrar further ordered that the time for the plaintiffs` witnesses, Connie Teo Ping Ling and Low Choon Yee, to file their affidavits of evidence-in-chief be extended by 30 days. As with the new witnesses, restriction was also imposed on their affidavits, ie that the affidavit evidence of these two witnesses was to be limited to the evidence raised in the affidavits of evidence-in-chief that had already been filed. The assistant registrar also extended the date for setting down the action for trial to 31 October 1996.

Decision below

The defendants appealed to a judge in chambers against the orders made by the assistant registrar. On 14 August 1996, the learned judge heard the appeal and allowed it in part. The learned judge refused to allow the plaintiffs to include the new witnesses, except one witness named Henry Loh. The learned judge also refused to grant the plaintiffs an extension of time to file the affidavits of evidence-in-chief of Connie Teo Ping Ling and Low Choon Yee.

In disallowing the plaintiffs` applications, the learned judge took into account what he described as `three basic matters in relation to summons for directions`. First, all matters that must or can be dealt with in interlocutory applications and which have not already been dealt with must be included in a summons for directions. Only unforeseen matters should be the subject of subsequent interlocutory applications. There was no room for sequential affidavits in the scheme of O 25 of the Rules of Court 1996 or, in the words of the judge, `affidavits to re-shape evidence after sighting the opponent`s evidence`. Second, a party asking the court to exercise a discretionary power in his favour must provide the court with maximum possible information. In other words, the party must provide good reasons to serve as material upon which the court`s discretion may be exercised. Third, while clients should not be made to suffer through fault or neglect of their solicitors to comply with the rules of procedure or court orders, this was...