Malcomson Nicholas Hugh Bertram and Another v Naresh Kumar Mehta

• Judge: Lee Seiu Kin JC
• Judgment Date: 12 October 2001
• Neutral Citation: [2001] SGHC 308
• Citation: [2001] SGHC 308
• Date: 12 October 2001
• Published date: 19 September 2003
• Plaintiff Counsel: KM Pillai and Bianca Cheo (Allen & Gledhill)
• Docket Number: Suit No 687 of 2001 (Summons In
• Court: High Court (Singapore)
• Subject Matter: Whether difficulty in quantifying damages hinders court from granting relief,Whether recourse available for intentional acts causing emotional distress,Sending numerous e-mail and SMS messages via mobile telephone,Unsolicited communication,'Harassment',Whether to grant damages and injunctions,'Appears entitled',Whether rule mandatory,Words and Phrases,Nuisance,Tort,Making of telephone calls, sending faxes,Duty not to cause harm to others,Trespass,Whether court retains discretionary power,Summary judgment,Intrusion on residence and office premises,Duty of court to satisfy itself of plaintiff's entitlement to judgment,Harassment,Whether injunctions to be granted,Civil Procedure,Intentional use of modern communication devices to cause offence, fear, distress and annoyance,O 19 r 7(1) Rules of Court,Judgment in default of defence,Whether to grant injunctions,Negligence

: The first plaintiff (`Malcomson`) is the Chief Executive Officer of the second plaintiff (`Zerity`), a company in the business of providing financial services.

In February 2000, the defendant (`Mehta`) commenced employment in Zerity as an Assistant Vice-President. His responsibilities included looking into the development of Zerity`s business in the area of e-commerce. However things apparently did not turn out well and after less than three months, on 28 April 2000, Mehta sent an e-mail to Malcomson in which he tendered his resignation. The rest of that e-mail contained a litany of complaints about various people in Zerity. On 2 May, Malcomson replied to say that Zerity accepted Mehta`s resignation with immediate effect and waived the contractual requirement for Mehta to serve a two-month notice period. Zerity also paid Mehta $17,947.83 being his pro-rated salary for 1 May 2000 and two months` salary in lieu of notice pursuant to the relevant provision of the employment contract. Mehta acknowledged the receipt of this letter and the cheque for that sum by signing at the bottom of Zerity`s duplicate copy.

On 6 June 2001, 13 months after Mehta had left Zerity, the plaintiffs took out the writ in this action claiming damages for (1) trespass at Malcomson`s residence; (2) nuisance by telephone at Malcomson`s residence as well as at Zerity`s office; and (3) harassment of Malcomson. The plaintiffs also sought injunctions to restrain Mehta from further committing such acts. On the same day the plaintiffs applied in SIC 1266/2001 for an interim injunction prohibiting Mehta from the same three acts until trial of the action. At the hearing of the SIC on 11 June, Mehta appeared in person. He did not dispute that he had been making the telephone calls and had entered Malcomson`s residence. Instead he explained that he had been trying to contact Malcomson because of the problems he had with the Inland Revenue Authority of Singapore on account of his income tax. At the material time, Zerity was registered under the name, First-e Asia Pte Ltd. Mehta said that he received an IR8A form, which is the employer`s statement of income in respect of an employee, from Factor-e Asia Pte Ltd. However his employment contract was with First-e Asia Pte Ltd. IRAS had queried him about this discrepancy.

On the basis of Malcomson`s supporting affidavit and in view of Mehta`s position that he had no intention to trespass, cause nuisance or harass, I granted the interim injunction but directed plaintiffs` counsel to look into the matter about the IR8A form raised by Mehta. I also ordered Mehta to communicate with Malcomson and Zerity only through their counsel, Mr Pillai.

In the event, Mehta did not enter appearance by 26 June. Pursuant to O 13 r 6(1), the plaintiffs elected to proceed as if Mehta had done so. On 26 June they filed the statement of claim. This was served on Mehta on 27 June. No defence was filed by Mehta by 12 July 2001 and on that day the plaintiffs filed SIC 1575/2001 to apply for judgment in default of defence pursuant to O 19 r 7 of the Rules of Court. This application was first heard on 25 July 2001. At the hearing, Mr Pillai informed me that he had notified Mehta of the hearing but the latter had chosen not to attend. He exhibited a printout of an e-mail he received from Mehta to that effect. However the hearing was adjourned for further submissions. At the adjourned hearing on 10 August, Mr Pillai applied for and obtained leave to amend the statement of claim.

The amended statement of claim was served on Mehta on 10 August 2001. He did not file any defence to this within the prescribed time and on 27 August the plaintiffs applied again for judgment in default of defence, this time to the amended statement of claim. I reserved judgment and now give my decision in writing.

The application before me is for judgment in default of defence under O 19 r 7(1) which provides as follows:

Where the plaintiff makes against a defendant or defendants a claim of a description not mentioned in Rules 2 to 5, then, if the defendant ... fails ... to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed under these Rules for service of the defence, apply to the Court for judgment, and on the hearing of the application the Court shall give such judgment as the plaintiff appears entitled to on his statement of claim. [Emphasis is added.]

In relation to the corresponding provision in the repealed English Rules of the Supreme Court, the Supreme Court Practice 1999 had the following commentaries:

Proof of plaintiff`s case - At a meeting of the Judges, a majority decided that the Court cannot receive any evidence in cases hereunder, but must give judgment according to the pleadings alone ( Smith v Buchanan ...; Young v Thomas ...). It is therefore not necessary on the hearing of the summons or motion for judgment to prove the case by evidence ( Webster v Vincent ...).

Discretion of the Court - Although para. (1) of the rule is expressed in mandatory terms, the rule is not mandatory but discretionary, and the Court retains its discretionary power whether to give judgment or to extend a party`s time to plead when it is just to do so ... [para 19/7/14]

In respect of discretion, I would go further to say that the words `appears entitled` that I have emphasised in the rule above requires the court to be satisfied that the plaintiff is indeed entitled to the judgment and relief prayed for. It would require a determination whether the pleadings disclose any cause of action.

In the present case, the plaintiffs have pleaded three causes of action, namely:

(1) trespass and nuisance in respect of Malcomson`s residence (`the residence`);

(2) trespass and nuisance in respect of Zerity`s office premises (`the premises`);

(3) harassment of Malcomson.

The pleaded facts

I turn now to the facts pleaded in the amended statement of claim. In the particulars pleaded under para 5, the plaintiffs alleged that the following had occurred after Mehta had ceased employment:

(i) Between May 2000 and June 2000, the Defendant telephoned Malcomson at the premises on not less than 10 occasions.

(ii) Between October 2000 and April 2001, the Defendant sent 8 e-mails to Malcomson which he retrieved at the premises and elsewhere.

(iii) In November 2000, the Defendant sent Malcomson 2 facsimiles and 1 bouquet of flowers at the premises.

(iv) On 22 October 2001, the Defendant procured a third party, whose name and identity is unknown, to telephone Malcomson at the residence at 6.00 am.

(v) On 1 April 2001, the Defendant trespassed on the residence while Malcomson was overseas. He demanded and obtained from Malcomson`s maid the latter`s confidential mobile phone number. On the same day, the Defendant made 3 calls to Malcomson at his mobile phone. These calls were received by Malcomson while he was outside the residence.

(vi) On 22 April 2001, the Defendant trespassed on the residence and delivered a greeting card addressed to Malcomson and his wife. This was a card normally used to congratulate couples over the birth of a new-born baby. The Defendant was aware that this was close to the anniversary of the death of their infant son.

(vii) Following his resignation in May 2000, the Defendant sent numerous e-mails and SMS messages via mobile telephone to various employees and directors of Zerity, namely the Chief Financial Officer Nachiappan Alagappan, the Chief Operating Officer Cavin Choo and Malcomson. The e-mails and messages were received at the premises and elsewhere.

In the particulars pleaded under para 9 of the statement of claim, the following additional facts were alleged:

(i) Between May 2000 and June 2000, the Defendant telephoned Marianne Lim, Nachiappan Alagappan, Cavin Choo and Martin Buchholz, employees of Zerity, at the premises on a total of 15 occasions.

(ii) In October 2000, the Defendant telephoned Marianne Lim, the Human Resource Manager of Zerity, at the premises on 3 occasions.

(iii) Between October 2000 and April 2001, the Defendant sent a total of 31 e-mails to Marianne Lim, Nachiappan Alagappan, Cavin Choo, Martin Buchholz and William Scrimgeour, employees of Zerity, at the premises.

(iv) In November 2000, the Defendant sent a bouquet of flowers and 2 greeting cards to Marianne Lim, Nachiappan Alagappan and Cavin Choo at the premises.

(v) On 1 June 2001, the Defendant attempted to wrongfully enter the premises.

And finally, in para 10 of the statement of claim, the following additional particulars were pleaded:

(i) In May 2000, the Defendant wrongfully entered the premises on at least 2 separate occasions.

(ii) On 24 October 2000, the Defendant wrongfully entered the premises.

In respect of the first two causes of action, ie trespass and nuisance in respect of the residence and the premises, on the pleadings the plaintiffs have established the bases for them. The plaintiffs have alleged that Mehta had trespassed or attempted to trespass the residence and the premises. The persistent faxes, telephone calls and e-mail retrieved at either location would interfere with the plaintiffs` use and enjoyment of the land. These acts collectively constitute the tort of nuisance in relation to the residence and the premises.

It is the third cause of action that requires consideration. This is because harassment is not an established tort. However Mr Pillai urges that the time has come for the court to give recognition to it as an actionable tort. Before turning to examine the relevant developments in the law pertaining to this, I first set out factual circumstances. I am aware that in the present application it is not necessary to look at the evidence. However due to the unique circumstances of the present case, it would be useful to do so in order to obtain a full picture of the harassment complained of....