Joseph Clement Louis Arokaisamy v Singapore Airlines Ltd and another matter

• Jurisdiction: Singapore
• Judge: Andre Maniam JC
• Judgment Date: 23 July 2020
• Neutral Citation: [2020] SGHC 150
• Published date: 28 July 2020
• Date: 23 July 2020
• Year: 2020
• Hearing Date: 14 July 2020
• Subject Matter: Courts and Jurisdiction,Civil Procedure,Vexatious proceedings,Inherent powers,Cause of action estoppel,Res Judicata,Striking out
• Plaintiff Counsel: The plaintiff in OS 1595/2019 and the defendant in OS 490/2020 in person
• Defendant Counsel: Chng Teck Kian Desmond (Drew & Napier LLC)
• Court: High Court (Singapore)
• Citation: [2020] SGHC 150
• Docket Number: Originating Summons No 1595 of 2019 (Registrar’s Appeal No 87 of 2020) and Originating Summons No 490 of 2020

Andre Maniam JC: Introduction and background

At the heart of these proceedings lies the following question: can a party keep re-litigating a claim indefinitely?

Mr Joseph Clement Louis Arokaisamy (“Mr Clement”) was an employee of Singapore Airlines Limited (“SIA”) from 1973 until he was dismissed in 1997. From 1997 to date, he initiated a number of actions and applications concerning his termination and continued to do so even after 2004, by which time his wrongful dismissal claim had been dismissed and had become unappealable.

History of proceedings

Mr Clement sued SIA for wrongful dismissal on 12 November 1997 (in DC/S 4929/1997). That claim was dismissed by District Judge Valerie Thean (as she then was) on 16 June 2003 following a trial (see [2003] SGDC 137). Mr Clement appealed to the High Court (by DCA 17/2003) and his appeal was dismissed by Woo Bih Li J on 9 January 2004 (see [2004] 2 SLR(R) 233). Mr Clement filed a notice of appeal to the Court of Appeal (in CA 11/2004), which the Court of Appeal struck out on 28 April 2004 as he had not sought the requisite leave to appeal. On 30 April 2004, Mr Clement filed a belated application for leave to appeal (by OM 24/2004), which was dismissed by the Court of Appeal on 23 August 2004.

At the latest, Mr Clement’s claim against SIA for wrongful dismissal, and litigation of the issues in those proceedings, should have ended there and then. But Mr Clement was not deterred, and he has been re-litigating his claim to date, even through a period of bankruptcy (ironically for his failure to pay legal costs awarded to SIA).

Re-litigation

On 6 May 2005, whilst a bankrupt, Mr Clement filed an application (by DC Summons in Chambers 6000027/2005) to re-amend his Statement of Claim in DC/S 4929/1997. By way of the application, he sought leave to plead that his dismissal was “not in accordance and not in compliance with the mandatory statutory requirements of section 13(2) of the employment act (chapter 91)”. However, his wrongful dismissal claim had already been dismissed, and he had exhausted all avenues of appeal. Moreover, both District Judge Thean and Woo J had considered s 13(2) of the Employment Act (Cap 91, 1996 Rev Ed) (“Employment Act”) and decided that it justified Mr Clement’s dismissal (see District Judge Thean’s judgment at [9]–[28], in particular [27]; and Woo J’s judgment at [12]–[47]), in particular [30]). On 30 June 2005, Mr Clement’s amendment application was dismissed.

Mr Clement tried again, in a different form, by filing HC/OS 1310/2005 on 21 September 2005 to ask that his termination letter “be declared invalid, as the said letter is not in accordance with [and/or] it does not comply with the mandatory statutory requirements of Section 13(2) of the Employment Act Cap 91”. That application was dismissed on 2 November 2005 by V K Rajah J (as he then was), who ordered that the Official Assignee be informed that “further litigation to reopen matters decided in DC Suit 4929 of 1997 have absolutely no merit” [emphasis added].

Mr Clement’s present action

After his discharge from bankruptcy on 13 June 2017, however, Mr Clement filed HC/OS 1595/2019 (“OS 1595”) against SIA on 30 December 2019. He sought: “an interpretation of Section 13(2) of the Employment Act” (prayer 1) and “the factual circumstances under which the said section is triggered and/or applicable” (prayer 2); “The applicability of section 8 of the Employment Act” (prayer 3) and “The probable factual circumstances when section 8 is applicable” (prayer 4); “A Declaration that there was Procedural Impropriety by [SIA] and the Trial Judge in DC Suit 4929 of [1997]” (prayer 5); “A Declaration that [Mr Clement] is within time for this Application” (prayer 6); and “Any such order or directions that this Honourable Court deems fit” (prayer 7).

SIA successfully applied to strike out OS 1595.

What was before me was HC/RA 87/2020 (Mr Clement’s appeal against the striking out order) and HC/OS 490/2020 (the “Restraint OS”, ie, SIA’s application for an order restraining Mr Clement from further re-litigating his wrongful dismissal claim without leave of court). After hearing parties, I dismissed HC/RA 87/2020 and allowed SIA’s Restraint OS (HC/OS 490/2020). I now set out the grounds for my decision.

OS 1595 was correctly struck out

At the first instance hearing of SIA’s striking out application, Mr Clement candidly admitted that he wanted a declaration that DC/S 4929/1997 (his wrongful dismissal claim) was wrongly decided.

I found that the assistant registrar was correct to strike out OS 1595.

OS 1595 is barred by res judicata

By way of OS 1595, Mr Clement sought to re-litigate his case, which was already res judicata (in the sense of cause of action estoppel) as between him and SIA. Moreover, s 13(2) of the Employment Act, which is mentioned in prayers 1 and 2 of OS 1595, had been considered by both District Judge Thean and Woo J in deciding against Mr Clement as they did (see District Judge Thean’s judgment at [9]–[28] and Woo J’s judgment at [12]–[47]).

District Judge Thean dismissed Mr Clement’s wrongful dismissal claim, Woo J upheld that decision on appeal, and Mr Clement’s two attempts to appeal to the Court of Appeal failed. The non-existence of a cause of action for wrongful dismissal has been determined as between Mr Clement and SIA. That is final and unappealable, and cause of action estoppel prevents him from continuing to assert that he was wrongfully dismissed by SIA (applying The Royal Bank of Scotland NV (formerly known as ABN Amro Bank NV) and others v TT International Ltd (nTan Corporate Advisory Pte Ltd and others, other parties) and another appeal [2015] 5 SLR 1004 (“TT International”) at [99]).

Mr Clement submitted that District Judge Thean and Woo J were wrong, in that s 13(2) of the Employment Act was never applicable to the facts of his case. The simple point is: the judges decided that s 13(2) of the Employment Act was applicable to the facts of his case, and Mr Clement cannot keep filing proceedings to reopen the matter.

Before me, Mr Clement tried to distance OS 1595 from the termination of his employment, but to no avail. He sought to characterise OS 1595 as merely seeking an interpretation of written law and other relief. However, he sued SIA as a defendant, sought to reargue the applicability of s 13(2) of the Employment Act to the facts of his case, and sought a declaration of procedural impropriety in respect of District Judge Thean’s decision against him, all of which made it readily apparent that OS 1595 was nothing more than a smokescreen for reopening the long concluded matter of DC/S 4929/1997. In any event, not only did District Judge Thean and Woo J interpret s 13(2) of the Employment Act, they also found that it applied on the facts of Mr Clement’s wrongful dismissal claim.

Mr Clement’s reference to s 8 of the Employment Act, as another basis for overturning the decisions against him, did not improve his position. He was still making a direct attack on the decisions against him, and cause of action estoppel applies (see TT International at [99]). Where cause of action estoppel has arisen, the bar against re-litigation is absolute save for fraud or collusion, which I found to be absent here, as I will explain below (see TT International at [103]).

I considered that the reference to s 8 of the Employment Act is caught by cause of action estoppel; but even if that were not so, it would still be caught by the “extended” doctrine of res judicata (see TT International at [101]–[102], and Mr Clement cannot argue that point in the absence of special circumstances, of which there are none. Any point about s 8 of the Employment Act ought properly to have been raised and argued in DC/S 4929/1997, but it was not. It was not raised in DCA 17/2003 either. Mr Clement cannot now do so.

The s 8 Employment Act argument is totally without merit

In any event, I saw no merit whatsoever in Mr Clement’s argument relating to s 8 of the Employment Act. Mr Clement accepted in the course of oral submissions that s 8 of the Employment Act had no application here, and informed me that he was withdrawing that aspect of OS 1595.

That section (in the terms in force when Mr Clement was terminated) reads:

Illegal terms of contract of service

8. Every term of a contract of service whether made before or after 15th August 1968 which provides a condition of service which is less favourable to an employee than any of the conditions of service prescribed by this Act shall be illegal, null and void to the extent that it is so less favourable.

As I explained to Mr Clement, s 8 contemplates a comparison of the terms of an employment contract, with the conditions of service prescribed by the Employment Act. However, the “term” that Mr Clement was complaining of was s 13(2) of the same Act, rather than any term in his employment contract. Mr Clement could not explain how s 8 might override s 13(2), other than to point to the phrase “less favourable” in s 8. SIA could and did terminate his employment on the basis of the deeming provision in s 13(2) of the Employment Act; s 8 of the Employment Act does not apply to s 13(2), which is not a “term of a contract of service” but part of the same Act.

In any event, the courts have already decided that s 13(2) of the Employment Act justified SIA’s termination of Mr Clement’s contract. Section 13(2) of the Employment Act deemed Mr Clement to have broken his contract of service for having been continuously absent from work for more than two days without informing or attempting to inform SIA of the excuse for such absence, and SIA had terminated his contract accordingly (see District Judge Thean’s judgment at [27], and Woo J’s judgment at [30] where Woo J expressly said that where s 13(2) of the Employment Act applies, what is deemed is not merely a breach of...