Hin Hup Bus Service (a firm) v Tay Chwee Hiang and Another

• Jurisdiction: Singapore
• Judge: Lai Siu Chiu J
• Judgment Date: 25 September 2006
• Neutral Citation: [2006] SGHC 169
• Docket Number: District Court Appeal No 17 of
• Date: 25 September 2006
• Published date: 29 September 2006
• Year: 2006
• Plaintiff Counsel: Madan Assomull and Vivian Chew (Assomull & Partners)
• Citation: [2006] SGHC 169
• Defendant Counsel: R Kurubalan (Kuru & Co)
• Court: High Court (Singapore)
• Subject Matter: Similar fact evidence,Magistrate issuing second judgment after first judgment,Vicarious liability,Evidence,Amendments,Applicable principles,Civil Procedure,Further and better particulars,Whether defence of fraud and particular fraudulent acts clearly pleaded,Meaning of "material",Second judgment covering events occurring after first judgment,Scope of employer's vicarious liability for employee's fraudulent acts,Pleadings,Whether necessary for fraudulent acts to have been done for employer's benefit,Whether material fact pleaded,Tort,Whether second judgment not valid as court operating functus officio,Whether principles relating to similar fact evidence in criminal cases equally applicable to civil cases,Amendment,Admissibility of evidence,Judgments

25 September 2006

Lai Siu Chiu J:

The facts

1 The first respondent, Tay Chwee Hiang (“Tay”), was the owner of a concrete mixer, No WB5241E (“the concrete mixer”). His duty was to transport concrete between construction sites. On 1 July 2003 at 6.37pm, the concrete mixer driven by Tay collided with a bus, No PH2136Y (“the bus”), being driven by the second respondent, Poh Tian Pow (“Poh”). (Henceforth, Poh and Tay will be referred to collectively as “the respondents” and the collision will be referred to as “the accident”). Poh was the first defendant and was employed by Hin Hup Bus Service (“Hin Hup”), the owner of the bus. Hin Hup was the second defendant in Magistrate’s Court Suit No 2365 of 2004 (“the action”).

2 On the day in question, Tay was travelling straight along Benoi Road when the bus driven by Poh emerged from the filter lane at the junction between Benoi Road and Jalan Ahmad Ibrahim and hit the concrete mixer. As a result of the accident, the left side and front of the concrete mixer was extensively damaged.

3 In the action, Tay claimed the following special damages against Poh and Hin Hup arising out of the accident:

(a)	Cost of repairs	$29,900.00
(b)	Loss of use	$ 4,800.00
		$34,700.00

4 Hin Hup’s defence in the action was that Tay’s claim was false and/or fraudulent and should be invalidated or dismissed for the following reasons:

(a) The accident was staged and/or concocted by Tay, Poh and Tay’s repairer, Sun Automobile Services (“Sun Automobile”) owned by one Voon Thye Sang (“Voon”).

(b) The claim was fraudulently made and/or highly inflated and/or greatly in excess of the true amount of the damage Tay allegedly sustained as to be incompatible with good faith.

5 On 25 February 2005, the magistrate who tried the action on 27 January 2005 made the following orders:

(a) The defendant and the plaintiff were to bear 70% and 30% liability respectively for the accident.

(b) The defendant was to pay the plaintiff 70% of the damages, viz, $17,533.25.

(c) The defendant was to pay the plaintiff costs fixed at $5,000 plus reasonable disbursements.

The total claim of $34,700 was reduced by $9,652.50 to $25,047.50 before apportionment of liability by the magistrate. The claim for cost of repairs ($29,900) was reduced to $24,247.50 while that for loss of use was reduced from $4,800 to $800. The magistrate had apparently taken into consideration the evidence of Hin Hup’s surveyor (Ng Cheng Yeow) that 14 items of Tay’s claim for cost of repairs were not replaced and she disallowed certain items therefrom.

6 The magistrate delivered her written judgment on 25 February 2005 in open court (“the first judgment”). The order of court for the first judgment was extracted on 23 March 2005. Subsequently the magistrate released a second written judgment (see Tay Chwee Hiang v Poh Tian Pow [2005] SGMC 24) on 26 August 2005 together with the record of proceedings, after the notice of appeal was filed (see [7] below).

7 On 2 June 2005 in Originating Summons No 290 of 2005 (“the OS”), the High Court granted Hin Hup leave to appeal to the High Court against the decision below. (The magistrate had refused to grant Hin Hup leave to appeal.) Hin Hup filed the notice of appeal herein in District Court Appeal No 17 of 2005 (“the Appeal”) on 16 June 2005. This was followed by Hin Hup’s application for leave to adduce further evidence in the Appeal, which was granted. The order of court dated 9 September 2005 states:

…

2. the Appellants be at liberty upon the hearing of the Appeal herein … to adduce the following additional evidence:–

(a) Discharge voucher dated 17 February 2004 allegedly signed by one, Guay Chin Hock on behalf of Optimix Concrete Pte Ltd and witnessed by the 1st Respondent’s Repairer, Voon Thye Sang.

(b) Notice of Resolution of Optimix Concrete Pte Ltd lodged on 24 December 2003.

(c) Registry of Companies Search of Optimix Concrete Pte Ltd.

8 Pursuant to O 55C of the Rules of Court (Cap 322, R 5, 1997 Rev Ed) (“the 1997 Rules”) which was then applicable, Hin Hup filed its appellant’s case for the appeal on 21 October 2005 but neither Tay nor Poh filed their respondents’ case. At the hearing of the Appeal, only Tay was represented although Poh was present. I allowed the Appeal, set aside the judgment of the magistrate and dismissed with costs here and below, Tay’s claim against Hin Hup.

The issues

9 The issues that arose in connection with the appeal were the following:

(a) Could the magistrate issue a second judgment after she had delivered her first judgment?

(b) Were Hin Hup’s pleadings on fraud inadequate?

(c) Did the respondents stage the accident and make a fraudulent claim on Hin Hup as the latter alleged?

(d) Was Hin Hup, as Poh’s employer, vicariously liable for his negligence?

Tay’s failure to file a respondent’s case

10 Before dealing with the above issues, I need to dispose of a preliminary point. Order 55C of the 1997 Rules is now replaced by O55D of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“the Rules”) which came into force on 1 January 2006. Order 55D sets out the rules for appeals from the Subordinate Courts to the High Court. Order 55D rr 7(2) and 7(15) read as follows:

(2) The respondent must file his Case (referred to in this Order as the Respondent’s Case) —

(a) within one month after service on him of the record of appeal and the Appellant’s Case; or

(b) in the event a joint record of appeal is filed, within one month after service on him of the Appellant’s Case.

…

(15) A respondent who fails to file his Case within the time specified in paragraph (2) may be heard only with the leave of the High Court and on such terms and conditions as the High Court may impose.

11 Counsel for the first respondent, Mr Kurubalan, did not file Tay’s case but only filed his skeletal submissions which were served on counsel for Hin Hup on 13 February 2006. In submitting that the court should not allow his opponent to submit Tay’s case orally, Mr Madan Assomull, counsel for Hin Hup, relied on Glahe International Expo AG v ACS Computer Pte Ltd [1999] 2 SLR 620 at [18] where the Court of Appeal said:

No respondent’s case was filed on behalf of ACS in this appeal, notwithstanding that they were legally represented. Their counsel was before us, and at the commencement of the hearing no application was made by him pursuant to O 57 r 9A (17) of Rules of Court for leave to be heard. In view of his unexplained silence, we enquired of him why no respondent’s case was filed on behalf of ACS and whether he would be applying for leave to be heard. To our utter astonishment, he replied nonchalantly that there was no need to file a respondent’s case for ACS, as he expected the appeal to be disposed of without him being called to reply and that after hearing the arguments advanced on behalf of Glahe, if necessary, he would apply for leave to be heard … It was wholly presumptuous of him to expect that the court would grant him leave to be heard. There was no question of granting him such leave in this appeal. Regrettably, we heard this appeal unassisted by counsel for ACS. [emphasis added]

12 In addition, Mr Assomull referred the court to a passage in another Court of Appeal decision in Tan Boon Hai v Lee Ah Fong [2002] 1 SLR 10 at [8]:

The 17 defendants, the respondents in this appeal, did not file the respondents’ case, as they were required to do under the rules. However, through their counsel they put in a written ‘skeletal submission’ and intended to obtain leave of the court, by an oral application, to argue against the appeal before us. Counsel for the appellant objected to this course of conduct on the part of the respondents. In response, counsel for the respondents explained that the reason for not filing the respondents’ case was that the respondents wished to save further costs and expenses in the litigation, and applied orally for leave to make submission before us in this appeal. We did not find such explanation acceptable, and accordingly we refused leave to counsel for the respondents to make any submission on behalf of the respondents in resisting the appeal. We also refused to consider the written skeletal submission filed in court. [emphasis added]

13 Questioned by the court why he failed to file the first respondent’s case, Mr Kurubalan’s cavalier explanation was, there was no need as he was not contesting the magistrate’s judgment! As the explanation was unacceptable, I refused to exercise my discretion under O 55D r 7(15) of the Rules to allow Mr Kurubalan leave to make any submission on behalf of the first respondent.

Could the magistrate deliver a second judgment after the first judgment?

14 I turn now to the first issue. Mr Assomull stated that in the second judgment, the magistrate referred to the application in the OS for leave to appeal. He submitted that the magistrate’s role as a judge was functus officio after 25 February 2005 when the order of court for the first judgment was extracted. The offending parts of the second judgment ([6] supra) were [4], [39], [62], [79], [80] and [87] where the magistrate made copious reference to the OS and to the affidavit filed on behalf of Hin Hup in support of the application. Further, the magistrate varied her order for costs from $5,000 in the first judgment to $6,000 in the second judgment. Which judgment and which order for costs should prevail?

15 The court in Tan Yeow Hiang Kenneth v Tan Chor Chuan [2006] 1 SLR 557 at [8] clarified the principle of finality of judgments as follows:

As the order of court had been extracted, the court was functus officio and could not allow what would in effect be a variation of the order as distinct from a clarification. The distinction between the two is brought out in Wee Soon Kim Anthony v UBS AG [2005] SGCA 3, where the Court of Appeal held at [69] as follows:

It is absurd to suggest that when clarification is given, the court is functus officio, which was the stand taken...