Marplan Private Limited v Attorney-General

• Jurisdiction: Singapore
• Judge: Andrew Ang J
• Judgment Date: 16 April 2013
• Neutral Citation: [2013] SGHC 80
• Court: High Court (Singapore)
• Docket Number: Originating Summons No 166 of 2013
• Published date: 23 April 2013
• Year: 2013
• Hearing Date: 14 March 2013,27 March 2013
• Plaintiff Counsel: Glen Koh (Glen Koh)
• Defendant Counsel: Khoo Boo Jin and Linda Esther Foo Hui Ling (Attorney-General's Chambers)
• Subject Matter: Administrative law,judicial review,ambit,remedies,quashing order
• Citation: [2013] SGHC 80

Andrew Ang J:

This was an ex parte application for leave pursuant to O 53 r 1 of the Rules of Court (Cap 322, R5, 2006 Rev Ed) (“the Rules”) for judicial review to quash Lee Seiu Kin J’s decision in District Court Appeal No 24 of 2012 (“the Appeal”) which had commenced as Magistrate’s Court Suit No 8131 of 2010 (“the Suit”).

I dismissed the application and now give my reasons.

Background facts

The Suit was a claim on a supply and installation contract for gymnastics products supplied to Raffles Gymnastics Academy (S) Pte Ltd (“the Respondent”). Marplan Private Limited (“the Applicant”), was the plaintiff supplier at trial. One issue in dispute was the contractual purchase price of the gymnastics products. There were two sets of February invoices, reflecting different prices. The Applicant claimed that there had been a manufacturer’s price increase reflected in the set of February invoices which indicated a higher contractual price (“the Higher February Invoices”). The Respondent claimed that there had been no such price increase, but rather, that a 30% discount had been agreed and applied to the contract price, and reflected in the second set of February invoices.

The district judge held that the Higher February Invoices evidenced the parties’ agreement on the purchase price. The district judge ordered, inter alia, that the Respondent pay the Applicant the balance purchase price of $45,656.85 in respect of the main claim.

The Respondent appealed and Lee J allowed the appeal on the basis that the Applicant had failed to discharge his burden of proof. In his decision dated 23 November 2012, Lee J found that evidence showing a manufacturer’s price increase would have been in the Applicant’s control, but the Applicant had chosen not to disclose such evidence. Lee J drew an adverse inference from the Applicant’s non-disclosure of documents evidencing the price increase and found that the Applicant had not discharged its burden of proof in the Suit. Further, he found that the district judge’s finding had been based on equivocal evidence. Lee J then reduced the judgment sum by $26,366.38.

On 14 January 2013, the Applicant applied to Lee J for leave to appeal to the Court of Appeal, but was refused. In its skeletal arguments for leave, the Applicant submitted: That the Respondents had in their possession, custody or power, evidence relevant to the case which they had withheld or suppressed from both the appellate and trial courts; Lee J erred when he found that the district judge had based his decision on equivocal evidence, as the district judge had given six reasons why he made the finding that there had been a manufacturer’s price increase; and An agreement for a discount, if made, would have been in contravention of s 5(a) of the Prevention of Corruption Act and illegal, or would have been void for uncertainty or lack of consideration.

On 21 January 2013, the Applicant took out Summons No 430 of 2013, seeking leave to appeal to the Court of Appeal against Lee J’s decision allowing the Appeal and his decision refusing leave to appeal. After it was pointed out to the Applicant by Sr Asst Registrar Cornie Ng, during a pre-trial conference, that Lee J’s decision refusing leave to appeal was final, it filed Originating Summons No 166 of 2013 (“the Application”) to quash Lee J’s decision. The Application was filed and served on the Attorney-General pursuant to O 53 r 1(3) of the Rules.

The judicial review claim

The Application asserts two grounds for judicial review: Lee J erred in drawing an adverse inference as the Applicant’s only reason for failing to adduce evidence of the price increase was because it thought it was unnecessary and the trial judge had dismissed the Respondent’s specific discovery request for those documents. Accordingly, Lee J’s inference of fact that there was no price increase was unreasonable; and Lee J erred when he found that the district judge had based his decision on equivocal evidence as the evidence was only equivocal because the Respondents had suppressed evidence. This second ground is the same as [6(a)] and [6(b)] above, which were grounds of appeal canvassed before Lee J during the application for leave to appeal.

The Applicant also argued that it had exhausted all other available remedies as leave to appeal had been refused.

My decision

The test for granting leave to apply for a quashing order was summarised by Philip Pillai J in Lim Mey Lee Susan v Singapore Medical Council [2011] SGHC 131 (at [3]). Leave is not granted unless the court is satisfied that: The matter complained of is susceptible to judicial review; The Applicant has sufficient interest in the matter; and The material before the court discloses an arguable or prima facie case of reasonable suspicion in favour of granting the public law remedies sought by the applicant.

There was no question that the Applicant had a sufficient interest in the matter and it remained for me to assess whether the matter complained of was susceptible to judicial review and whether the material presented disclosed an arguable case of reasonable suspicion in favour of judicial review.

Whether the matter is susceptible to judicial review Susceptibility to judicial review of the decision-making body

I found that the decision of a High Court judge acting in that capacity is not reviewable.

The function of a Quashing Order is explained in Singapore Civil Procedure, vol 1 (Sweet & Maxwell, 2013) at para 53/1/3:

A Quashing Order is mainly used to control unlawful exercises of power by inferior courts, tribunals and other public bodies by quashing decisions which are reached in excess or abuse of power. [emphasis added]

A broad overview of case law shows that where there is a serious or grave breach of natural justice occurring in a Magistrate’s (or inferior) court and which results in a criminal conviction, both a right to appeal and in serious cases, a right of judicial review may be granted. There is, however, no record of judicial review ever being granted for a superior court.

The notion that the supervisory jurisdiction of the court only applies to inferior tribunals is also established in the common law. Lord Diplock’s dicta in Re Racal Communications Ltd [1981] AC 374 (at 384) which was quoted with approval by the Court of Appeal in Wong Hong Toy v Public Prosecutor [1987] SLR(R) 213 (at [51]), sums up the common law position:

... The High Court is not a court of limited jurisdiction and its constitutional role includes the interpretation of written laws. ... There is simply no room for error going to [the Judge’s] jurisdiction, nor, as is conceded by counsel for the respondent, is there any room for judicial review. Judicial review is available as a remedy for mistakes of law made by inferior courts and tribunals only. Mistakes of law made by judges of the High Court acting in their capacity as such can be corrected only by means of appeal to an appellate court; and if, as in the instant case, the statute provides that the judge’s decision shall not be appealable, they cannot be corrected at all. [emphasis added in italics and bold italics]

I should add that even with inferior courts, judicial review is reserved only for the most extreme situations where it would be “ludicrous” to deny parties the remedy of review, for example, where a man was convicted without the court having heard his evidence: see The King v Wandsworth Justices, ex parte Read [1942] 1 KB 281. In Singapore, almost all such cases would fall within the court’s powers of criminal revision in the Criminal Procedure Code (Cap 68, 2012 Rev Ed). Moreover, none of the considerations set out at [14] above apply to the present case.

Even if the common law position were in doubt (which it is not), s 27(1) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“SCJA”) makes clear that the supervisory and revisionary jurisdiction of the High Court is only available over subordinate courts. It reads as follows:

27.—(1) In addition to the powers conferred on the High Court by this Act or any other written law, the High Court shall have general supervisory and revisionary jurisdiction over all subordinate courts.

[emphasis added]

During the hearing before me, counsel for the Applicant, Mr Glen Koh (“Mr Koh”), attempted to argue that s 27(4) of the SCJA further extended this jurisdiction to cases involving appeals from the Subordinate Courts to the High Court. Section 27 reads as follows:

27.—(1) In addition to the powers conferred on the High Court by this Act or any other written law, the High Court shall have general supervisory and revisionary jurisdiction over all subordinate courts.

(2) The High Court may in particular, but without prejudice to the generality of subsection (1), if it appears desirable in the interests of justice, either of its own motion or at the instance of any party or person interested, at any stage in any matter or proceeding, whether civil or criminal, in any subordinate court, call for the record thereof, and may remove the matter or proceeding into the High Court or may give to the subordinate court such directions as to the further conduct of the matter or proceeding as justice may require. (3) Upon the High Court calling for any record under subsection (2), all proceedings in the subordinate court in the matter or proceeding in question shall be stayed pending further order of the High Court. (4) The High Court shall, when exercising (or deciding whether to exercise) its supervisory and revisionary jurisdiction under subsection (1) or powers under subsection (2) in relation to any matter which concerns a case where the High Court has heard and determined an appeal from a subordinate court, have regard to whether that matter was, or could reasonably have been, raised in that appeal.

Mr Koh’s...