Mageswari d/o Mahendran v Dino Media Asia Pte Ltd and others

• Jurisdiction: Singapore
• Judge: Sheik Umar Bin Mohamed Bagushair
• Judgment Date: 05 July 2021
• Neutral Citation: [2021] SGMC 45
• Court: Magistrates' Court (Singapore)
• Docket Number: Suit No 13078 of 2017
• Published date: 14 July 2021
• Year: 2021
• Hearing Date: 15 June 2021,01 July 2021,18 June 2021,04 May 2021
• Plaintiff Counsel: Mohamed Ibrahim s/o Mohamed Yakub (Achievers LLC)
• Defendant Counsel: Siraj Shaik Aziz (Silvester Legal LLC)
• Subject Matter: Statutory interpretation,Construction of statute,Section 35 of the State Courts Act
• Citation: [2021] SGMC 45

District Judge Sheik Umar Bin Mohamed Bagushair: Introduction

A plaintiff has commenced an action in the Magistrate’s or District Courts. She then chooses to discontinue that action, and subsequently commences a fresh action based on the same cause of action. This is not an uncommon occurrence and is expressly allowed under O 21 r 4 of the Rules of Court (“ROC”) which provides as follows:

Effect of discontinuance (O. 21, r. 4)

4. Subject to any terms imposed by the Court in granting leave under Rule 3, the fact that a party has discontinued or is deemed to have discontinued an action or counterclaim or withdrawn a particular claim made by him therein shall not be a defence to a subsequence action for the same, or substantially the same, cause of action.

In the recent case of Arunachalam Balasubramanian v Lion City Rental Pte Ltd and anor [2020] SGMC 33 (“Arunachalam”), the Deputy Registrar (“DR”) effectively held that the plaintiff in the scenario I have painted is prohibited from commencing fresh proceedings on the same cause of action because doing so infringed s 35 of the State Courts Act (Cap 321, 2007 Rev Ed) (“SCA”), which provides as follows:

Division of causes of action

35. A cause of action shall not be divided for the purpose of bringing 2 or more actions.

I had to decide whether I should follow Arunachalam and prohibit the Plaintiff here from continuing with MC/MC 13078/2017 (the “Suit”).

Background facts

On 18 November 2015, the Plaintiff commenced DC/DC 3479/2015 (“DC 3479/2015”) against Dino Media Asia Pte Ltd (the “1st Defendant”) and ID8 Pte Ltd (“ID8”) for injuries the Plaintiff suffered on 21 September 2014 whilst exiting a truck that was used as a mobile showroom for an event (the “Incident”). The 1st Defendant was at the material time the Plaintiff’s employer. ID8 had been engaged by the 1st Defendant to manage and run the event. The Plaintiff claimed that the Defendants had breached the Workplace Safety and Health Act (Cap 354A, 2009 Rev Ed) (“WSHA”). On 21 July 2017, about 18 months after DC 3479/2015 was commenced, it was discontinued.

Very soon after, on 2 August 2017, the Plaintiff commenced the Suit, initially against the 1st Defendant and Aeroxcan Pte Ltd (the “2nd Defendant”), for the injuries she suffered arising out of the Incident. The 2nd Defendant was the owner of the truck. Aside from breaches of the WSHA, the Plaintiff also pleaded that the 1st and 2nd Defendants had breached the Motor Vehicles (Third-Party Risks and Compensation) Act (Cap 189, 2000 Rev Ed) (“MVA”).

Subsequently, the Plaintiff amended her claim to include Hung Ka Hang Thomas (the “3rd Defendant”) and Yap Chee Kiong (the “4th Defendant”), who were the directors of the 1st Defendant. The Plaintiff says that the 3rd and 4th Defendants were personally liable as they failed to procure the necessary workmen compensation insurance for the 1st Defendant, in breach of the Work Injury Compensation Act (Cap 354, 2009 Rev Ed) (“WICA”).

Interlocutory judgment has been entered against the 1st, 3rd and 4th Defendants. Only the 2nd Defendant is left to contest the Suit.

The Suit was originally fixed for trial before me on 4 May 2021. After reviewing the papers, it appeared to me that there was a potential issue with s 35 of the SCA arising out of the interpretation of that provision in Arunachalam. In Arunachalam, the DR held that s 35 of the SCA was breached where the plaintiff had discontinued his action and then subsequently commenced a fresh action based on the same cause of action. The DR held that in such a situation the later action was “null and invalid from the onset”.

If Arunachalam is correct, then the Suit cannot proceed (assuming the cause of action in DC 3479/2015 and the Suit was identical). As such, I asked the Registry to issue a correspondence to parties highlighting this potential issue and asking that parties address it.

When the parties appeared before me on 4 May 2021 for the trial, I was prepared to hear the evidence. I indicated that the s 35 issue could be dealt with in closing submissions after parties had given their evidence. However, Plaintiff’s Counsel Mr Mohamed Ibrahim informed me that because of certain new facts that had just come to his attention, he had instructions to amend the Plaintiff’s Statement of Claim and therefore requested a vacation of the trial.

For the purposes of this decision, I need not go into the details of how the Plaintiff intends to amend her Statement of Claim. Whether any proposed amendment should be allowed would have to be decided at a later hearing, after the application is filed, the draft amended Statement of Claim is tendered, and the 2nd Defendant has had a fair opportunity to respond. Nevertheless, I was persuaded that it was in the interest of justice that the Plaintiff at least be given an opportunity to apply to amend her Statement of Claim. That would necessarily mean a vacation of the trial, even if I ultimately decided, after full arguments, that no amendment should be permitted.

However, that left the issue of s 35 of the SCA to be resolved. I initially took the view that after vacating the trial, parties could file whatever applications they deemed necessary – in the Plaintiff’s case it would be an amendment application and in the 2nd Defendant’s case it would be a striking out application on the basis that s 35 of the SCA had been infringed. However, on further consideration, I thought the better way to proceed was to decide the s 35 issue as a preliminary issue given that it could fully dispose of the Suit. If the Suit was struck out, then the parties did not have to incur time and costs dealing with the Plaintiff’s amendment application.

Therefore, I informed parties that whilst I would not be hearing any evidence, I would proceed to decide, as a preliminary issue, whether the Suit could not proceed because of s 35 of the SCA. Parties thereafter made oral submissions on 4 May 2021. I then gave parties leave to file written submissions if they thought it necessary. Both parties have done so.

Parties’ positions

The Plaintiff argued that s 35 of the SCA was not breached, for the following reasons: There was no intention to split or divide the cause of action. Unlike the case of Ng Kong Choon v Tang Wee Goh [2016] 3 SLR 935 (“Ng Kong Choon”) where multiple writs were filed and pursued to claim for different losses (namely, for uninsured loss, personal injury and cost of repairs) arising out of the same accident, there was only one writ at any one time and all claims were made in that writ. The cause of action in this Suit is not quite the same as the cause of action in DC 3479/2015. In DC 3479/2015, the claim was based on the negligence of the 1st Defendant and ID8 in complying with the WSHA. In the Suit, the claim is based on breaches of the WSHA as well as breaches of the MVA and WICA. Arunachalam was wrongly decided. The mere fact that a claim had been discontinued, without more, cannot attract the operation of s 35 of the SCA. Arunachalam is also inconsistent with the principles governing discontinuance of actions in O 21 r 4 of the ROC, which provides that the fact that an action has been discontinued is not a defence to a subsequent action for the same, or substantially the same, cause of action.

The 2nd Defendant argued that s 35 of the SCA was breached, for the following reasons: The claims in both DC 3479/2015 and the Suit arose from a single cause of action. The injury that underpinned the claims in the two actions were the same. The fact that the defendants in the two actions were not identical did not make a difference. Neither did the additional claim for breaches of the MVA or WICA change anything. That was simply a different legal characterisation of the same underlying facts. The discontinuance of DC 3479/2015 followed by the commencement of the Suit established the Plaintiff’s subjective intention to divide her single cause of action. O 21 r 4 of the ROC cannot affect the application of s 35 of the SCA. In any event, the ROC was in the nature of subsidiary legislation, and in so far as it was inconsistent with s 35 of the SCA, s 35 should prevail.

Decision

I found that s 35 of the SCA was not breached because the Plaintiff never intended to divide her cause of action into two or more actions. I therefore resolved the preliminary issue in the Plaintiff’s favour.

Analysis Ng Kong Choon

I start with a discussion of Ng Kong Choon, a decision of Belinda Ang J. That decision is binding on me and is in fact the only reported decision to-date on the scope of s 35 of the SCA.

In Ng Kong Choon, the plaintiff had filed multiple writs arising out of the same accident. There was first a writ filed for insurance excess and loss of use (also referred to as “uninsured loss”). Then a writ was filed for damages for personal injury. Finally, there was a writ filed for cost of repairs. The claims for uninsured loss and personal injury were resolved and notices of discontinuance were filed. The writ for cost of repairs was the last writ to be filed, and it was filed after the discontinuance of the two earlier actions.

The defendant argued that the writ for cost of repairs infringed s 35 of the SCA and filed a striking out application under O 18 r 19 of the ROC. Ang J considered the history of s 35 and similar provisions from other countries. Ang J came to the following conclusions on the scope of s 35: Section 35 of the SCA provides that a plaintiff with a single cause of action must bring forward all of his case in one action. He is not permitted to divide or split his cause of action by suing separately for different heads of damage. Section 35 of the SCA is a statutory prohibition that is allied to the limited jurisdiction of the State Courts and the management of cases within its jurisdiction. The test of claim-splitting...