Info-Communications Development Authority of Singapore v Singapore Telecommunications Ltd

• Jurisdiction: Singapore
• Judge: Choo Han Teck JC
• Judgment Date: 02 May 2002
• Neutral Citation: [2002] SGHC 95
• Docket Number: Suit No 934 of 2001 (Registrar's
• Date: 02 May 2002
• Year: 2002
• Published date: 19 September 2003
• Plaintiff Counsel: Cavinder Bull (Drew & Napier LLC)
• Citation: [2002] SGHC 95
• Defendant Counsel: Muthu Arusu and Prakash Pillai (Allen & Gledhill)
• Court: High Court (Singapore)
• Subject Matter: Whether mere disclosure of a document makes it a fact in issue,Application for further discovery,Whether any difference between waiver of privilege made out of court and one made in court,Electronic mail printouts referring to certain documents,Disclosure of solicitor's letter of advice,Disclosure of documents,Whether such documents relevant and subject to disclosure,Waiver of privilege,Civil Procedure,Whether waiver of privilege for letter of instruction as well

: The plaintiff is a body corporate established under the Info-Communications Development Authority of Singapore Act and succeeds its predecessor, the Telecommunication Authority of Singapore (`TAS`), taking over the assets, rights, privileges, liabilities, and obligations of the latter on 1 December 1999. The defendant is a public company whose main business lay in providing telecommunication services. In 1992 TAS granted the defendant a licence to provide telecommunication services in Singapore until 2017. The licence also conferred a monopoly in respect of various services until 2007. This licence agreement was amended in 1993 so that from 1 April 2002, TAS was to be entitled to grant other operators a licence to provide telecommunication services if the services are `ancillary and incidental` to the business of those operators. This amendment naturally affected the monopoly rights of the defendant, but the amendment has no material bearing in the present action. It has only a historical and narrative relevance, the details of which I shall come to shortly. In the proceedings before me, the plaintiff was represented by Mr Cavinder Bull and the defendant by Mr Muthu Arusu and Mr Prakash Pillai.

In May 1996 TAS sought to modify one of the conditions of the licence in a way that would further affect the defendant`s monopoly rights. In its letter of 11 May 1996 TAS gave the defendant the requisite formal notice with an offer of $1.5bn as compensation for the further amendment. The defendant made its own calculations as to what the proper compensation ought to be and by its reckoning the compensation should be between $2.4 to $6.5bn. Mr Muthu Arusu submitted that the defendant had taken the phrase `ancillary and incidental` in the 1993 amendment into account in its calculations. I will set out the entire condition 1.7 so that the phrase in question can be appreciated in its context:

Provided that from 1 April 2002 the Authority shall have the right to license on a case-by-case basis, broadcasting operators and other Public Telecommunication Licensees to provide telecommunication services which overlap with the first six services listed in Part II(A) of the Appendix to the Licence, provided that these are ancillary and incidental to the broadcasting services or to the principal services provided by these broadcasting operators and other Licensees.

The defendant understood the 1993 amendment and the words `ancillary and incidental` to mean only the necessary appendages to the main business of the operators. The plaintiff, on the other hand, appears to regard the phrase in question as having a broader and looser meaning, that is to say, anything connected with the operator`s principal business. The plaintiff disagrees with the defendant`s interpretation, but Mr Bull accepts that this difference in opinion is not an issue in this action. The relevance of the true meaning and effect of the phrase `ancillary and incidental` from the defendant`s viewpoint is that if the defendant`s interpretation is the correct one then the compensation for any reduction of its monopoly rights would be more substantial than it would be if the plaintiff`s version is correct, and, therefore, its assessment of $2.4 to $6.5bn as compensation would have been nearer the fair value. This point is now only of academic interest because there is no dispute that the defendant eventually accepted the sum of $1.5bn offered by the plaintiff. The only issue is whether it was contemplated, or agreed, that if no tax was payable by the defendant on this amount, the tax component of $388m must be refunded to the plaintiff.

Reverting to the narrative, the defendant accepted TAS`s offer of $1.5bn on 30 May 1996 and TAS acknowledged by letter on the same day that the $1.5bn `will be in full and final payment`. One year later, on 31 March 1997 the full sum was paid to the defendant. Sometime in 2000 the plaintiff decided to shorten the monopoly period of the defendant even more, that is, from 2002 to 2000. Arising from this, another payment by way of compensation was made. This second payment came to $859m. There is no dispute concerning this payment; but the inquiries over the tax liability of the defendant on this amount eventually resulted in the present action in respect of the first payment, that is, the $1.5bn. This was how it happened. On 4 October 2000 the Inland Revenue Department indicated in their letter to the plaintiff that no tax was payable by the defendant on the $859m it received from the plaintiff. In this same letter, the Inland Revenue Department also stated in words to the effect that no tax was payable on the previous payment of $1.5bn either. Consequently, on 14 March 2001 the plaintiff wrote to the defendant asking for a refund of $388m being the sum believed to be payable as tax on the $1.5bn payment. The plaintiff`s case is that it believed that tax was payable on the compensation it paid to the defendant, and since it was intended that the...