Kamal Shashikant Shah v Bharat Dharmadas Kalwani

• Jurisdiction: Singapore
• Judge: Karolyn Gin
• Judgment Date: 26 March 2014
• Neutral Citation: [2014] SGMC 2
• Court: Magistrates' Court (Singapore)
• Docket Number: Suit No. 18094 of 2013, RAS No. 37 of 2014
• Published date: 26 June 2014
• Year: 2014
• Hearing Date: 22 January 2014,18 February 2014,10 February 2014,27 November 2013,25 October 2013,06 January 2014
• Plaintiff Counsel: Tan Sia Khoon Kelvin David (M/s Satwant & Associates)
• Defendant Counsel: Sureshan s/o T Kulasingam (Sureshan LLC)
• Citation: [2014] SGMC 2

Magistrate Karolyn Gin:

The Plaintiff applied for an interim injunction against the Defendant to restrain the Defendant and/or the Defendant’s servants and/or agents from harassing the Plaintiff and/or the Plaintiff’s family members. I granted the application and I now give my reasons.

Brief Facts:

The Plaintiff and the Defendant were friends. Various side bets were made between the parties. The Defendant sought to claim sums against the Plaintiff which the Plaintiff considered to be unenforceable by virtue of Section 5(1) of the Civil Law Act.

In his affidavit in support of the application, the Plaintiff claimed that the following instances of harassment resulted in mental distress to himself: Numerous visits by debt collectors; SMS messages by the Defendant; Various calls from private numbers; and Threats in a meeting between the Plaintiff and Defendant.

The Plaintiff’s Arguments

Counsel for the Plaintiff argued that the Plaintiff’s application was based on the tort of harassment and that such a tort did exist. He relied on Malcomson Nicholas Hugh Bertram [2001] 3 SLR 379 (“Malcomson”) in which the issue was raised as to whether there was recourse against a person for harassment via modern communications. Whilst the court recognised that there was no established tort of harassment, it stated that there was no policy reason against the granting of relief to prevent such acts from occurring. The court further considered Arul Chandran v Gartshore [2000] SGHC 284 (“Arul”) and held that the statements therein against the recovery for mental distress in tort were obiter.

In Tee Yok Kiat v Pang Min Seng [2013] SGCA 9 (“Tee”), the Court of Appeal referred to Malcomson. Although its comments were obiter, it was clear that the Court of Appeal had approved of such a tort and had even adopted the test for the same as laid down in Malcomson. The Court of Appeal concluded:-

“For the above reasons, we found that the tort of harassment would also have been made out on the evidence.”

Since the Court of Appeal had at some length considered the decision of Malcomson and had even gone on to conclude that the claim would have been made out, it would be highly unlikely for it to not follow its decision should the issue arise again.

Subsequently, in AXA Insurance Singapore Pte Ltd v Chandran s/o Natesan [2013] SGHC 158 (“AXA”), His Honour Justice Choo Han Teck took the opposite view and decided that there was no basis or principle upon which the tort was founded.

As to which decision of the High Court I should follow, Counsel relied on Usman bin Ahmad v Chin Brothers Construction Co [2001] 1 MLJ 281 (“Usman bin Ahmad”). In that case, the Court held:-

“The Federal Court in Dalip Bhagwan Singh v PP [1997] 4 CLJ 645 held that the courts in the tiers below the Court of Appeal may choose between two conflicting decisions irrespective of the dates of those conflicting decisions. That decision gives the courts subordinate to the superior courts the discretion to make the choice, thus avoiding a possible deadlock or stalemate, without being disrespectful to the superior courts.”

In Dalip Bhagwan Singh v PP [1998] 1 MLJ 1 (“Dalip Bhagwan Singh”), the Court, after reviewing the applicable English authorities, stated:

“In this connection, it is interesting to refer to Cassell & Co v Broome [1972] AC 1027 at p1054. It was held that courts in the lower tiers below the Court of Appeal could not rely on the per incuriam rule applied by the Court of Appeal for itself, but could choose between two conflicting decisions. We may add that they may so choose, whatever the dates of the conflicting decisions, as such dates do not matter to Court of Appeal itself.”

In the light of the above-mentioned Malaysia authorities and the absence of any local High Court authority cited by the Defendant, Counsel argued that it remained open to this Court to decide which High Court decision to follow. Since the recent Court of Appeal findings and the decision in Malcomson were entirely consistent with each other, Counsel for the Plaintiff submitted that I should follow those decisions.

Nevertheless, it was not necessary that this Court must follow one or either decision. The application before this Court was not a trial. It was an interlocutory application for an interim injunction and all that the Plaintiff needed to do was to pass the threshold test for the granting of such an injunction. The first limb of such a test is whether there is a serious question to be tried. As stated by the Authors of Singapore Civil Procedure (“the White Book”) at paragraph 29/1/1:

“It is no part of the court’s function at this stage of the litigation to resolve conflicts of evidence…. nor to decide difficult questions of law which call for detailed arguments and mature considerations. These are matters to be dealt with at trial.”

Further, as stated in the White Book at paragraph 29/1/12:

“The prospect of the Plaintiff’s success are to be investigated only to a limited extent. As pointed out by the High Court in Buckman Laboratories (Asia) Pte Ltd v Lee Wei Hoong [1999] 3 SLR 333, there is a low threshold…”

This court needed to only consider whether there was a serious question to be tried. The fact that there was a High Court decision (Malcomson) confirming the existence of such a tort (and supported by the Court of Appeal in Tee) was more than sufficient to cross that particular threshold.

The second issue was where the balance of convenience lay. Counsel for the Plaintiff argued that the balance was clearly in favour of the Plaintiff. There was nothing to preclude the Defendant from pursuing legal avenues for his claim. He was also not precluded from making requests or communicating via solicitors. Further, there was nothing to be gained from further harassment of the Plaintiff as the Plaintiff’s position had been made clear.

As regards the adequacy of damages, the harassment was causing anxiety, embarrassment and shame to the Plaintiff as well as affecting his business. Not all of those were easy to quantify. In the circumstances, it would not be unjust for the injunction to be granted.

The Defendant’s Arguments

Counsel for the Defendant relied on AXA. In that case, the Honourable Choo Han Teck J (Choo J) carefully analysed the decision in Malcomson.

Choo J’s decision could be summarised as follows: Choo J reviewed the cases Lee JC took into consideration in coming to the conclusion that such a tort existed. These cases included a series of English cases; In performing that review, Choo J noted that the law in England at the time was unsettled as to whether a tort of harassment existed. He pointed out that if there was no previous tort of harassment in existence, then the Court in Malcomson could not have recognised any such tort. If at all, Lee JC was creating an entirely new tort; At the time when Malcomson was decided, there were calls in the United Kingdom for the legislature to enact laws to protect against harassment. The Protection from Harassment Act was passed in 1977; Remedies against acts of harassment must necessarily be passed by the legislature, and these would be penal in nature; It was not for the court to formulate what may be termed as a “blockbuster tort”.

Accordingly, Choo J declined to make any orders on the cause of action pleaded as the tort of harassment.

Counsel for the Defendant submitted that when a lower Court is faced with two conflicting High Court decisions, it should prefer the later decision. The preference should be based on the following criteria: The later decision was reached after full consideration of the first decision; and, flowing from this, The later decision has considered all relevant material.

Reliance was placed on paragraph 7-013 of “Smith, Bailey and Gunn on the Modern English Legal System – Fourth Edition” (“Modern English Legal System”):

“However, it has been stated that where there are conflicting decisions of judges of co-ordinate jurisdiction, the later decision should thereafter be preferred, provided that it was reached after full consideration of the first decision: the only, rare, exception would be where the third judge was convicted that the second judge was wrong in not following the first, for example where some binding or persuasive authority had not been cited in either of the first two cases. This view has been cited with approval on a number of occasions, although it has been...