Muhammad Tirmidzi Bin Misnawi v Agnes Chai Yui Yun

• Jurisdiction: Singapore
• Judge: Samuel Wee
• Judgment Date: 23 May 2023
• Neutral Citation: [2023] SGDC 100
• Court: District Court (Singapore)
• Docket Number: District Court Suit No 1533 of 2021 (Summons No 1064 of 2023)
• Hearing Date: 05 May 2023,19 May 2023
• Citation: [2023] SGDC 100
• Year: 2023
• Plaintiff Counsel: Ho Kin Onn (Hoh Law Corporation)
• Defendant Counsel: Tan Chee Kiong (Seah Ong & Partners LLP)
• Subject Matter: Courts and jurisdiction,Court judgments,Application to set aside consent interlocutory judgment,Civil procedure,Judgments and orders
• Published date: 06 July 2023

Deputy Registrar Samuel Wee: Introduction

Summons No 1064 of 2023 (“Sum 1064”) was the Defendant’s application to set aside a consent interlocutory judgment that the parties entered on 11 February 2022 (“Consent IJ”) in District Court Suit No 1533 of 2021 (“DC 1533”).

The Defendant sought to set aside the Consent IJ in light of the impact of the High Court decision of Salmizan Bin Abdullah v Crapper Ian Anthony [2023] SGHC 75 (“Salmizan”). Salmizan makes clear that in a trial bifurcated along the lines of an initial stage of liability (“Liability Stage”) followed by the assessment of damages state (“AD Stage”), causation cannot be challenged to any extent at the AD Stage. A defendant would have to challenge causation of any damage at the Liability Stage, failing which he is precluded from challenging the same at the AD Stage.

In the present case, the Defendant alleges that the Consent IJ was entered on the basis that the Defendant would be entitled at the AD Stage to challenge the issue of causation for some of the injuries the Plaintiff allegedly suffered.¹ This appears to be line with a prevailing practice in the personal injury motor accident (“PIMA”) cases at that time, where parties were under the impression that they need only prove causation for some damage at the Liability Stage, and could challenge causation for other alleged damage at the AD Stage (see Salmizan at [70]-[80]).

I dismissed the application on the basis that the court does not have the jurisdiction or power to set aside the Consent IJ under Sum 1064, which was filed as a sub-case in the main proceedings of DC 1533 (“Sub-case Route”) instead of a set of fresh proceedings (“Fresh Proceedings Route”).

I now provide the full grounds of my decision. I do so because the decision of Salmizan has impacted the way PIMA cases should be handled, and it is likely that the court will be faced with other applications to set aside consent interlocutory judgments. The findings in this case may therefore provide some guidance on the appropriate procedure to adopt when parties seek to set aside consent interlocutory judgments.

Background

The Plaintiff and the Defendant were involved in a motor accident. The Defendant’s car collided into the Plaintiff’s motorcycle.²

The Plaintiff commenced DC 1533 seeking damages relating to personal injuries arising from the Defendant’s negligence.

On 11 February 2022, the parties entered the Consent IJ for “the Plaintiff against the Defendant for 80% of the damages to be assessed and costs to be reserved to the Registrar assessing the damages”.

According to the Defendant, the Consent IJ was entered on the basis that the Defendant would be entitled at the AD Stage to challenge the issue of causation for some of the Plaintiff’s alleged injuries.³ The Plaintiff has not disputed this.

On 30 March 2023, the High Court issued its decision in Salmizan. As explained at [2] above, Salmizan affects the Defendant’s ability to challenge causation at the AD Stage.

Consequently, the Defendant sought to set aside the Consent IJ and filed Sum 1064.

Procedural History

Sum 1064 came up for hearing on 5 May 2023. I granted an adjournment till 19 May 2023 (“19 May Hearing”) so that parties could make submissions on whether the Consent IJ could be set aside under Sum 1064 (ie. the Sub-case Route), or whether fresh proceedings would have to be filed (ie. the Fresh Proceedings Route). I also directed parties to consider the following cases: Airtrust (Singapore) Pte Ltd v Kao Chai-Chau Linda [2014] 2 SLR 693 (“Airtrust”). Andiappan Vijayakumar (trading as Siga Solutions) v Chartered World Academy Pte Ltd [2010] SGHC 49 (“Andiappan”). Chiang Shirley v Chiang Dong Pheng [2017] 1 SLR 283 (“Chiang Shirley”). Loh Der Ming v Koh Tien Hua [2021] SGCA 81 (“Loh Der Ming”). Siva Kumar s/o Avadiar v Quek Leng Chuang and others [2021] 1 SLR 451 (“Siva Kumar”). Turf Club Auto Emporium Pte Ltd and others v Yeo Boong Hua and others and another appeal and other matters [2017] 2 SLR 12 (“Turf Club Auto”). Wiltopps (Asia) Ltd v Drew & Napier and another [1999] 1 SLR(R) 252 (“Wiltopps”).

On 18 May 2023, the Defendant sent a letter to court to indicate that the Plaintiff is consenting to Sum 1064 and requested for a consent order to set aside the Consent IJ. I declined the request and instructed the parties to attend the 19 May Hearing.⁴

At the 19 May Hearing, both the Plaintiff and Defendant took the position that the Sub-case Route can be taken and that the court has the jurisdiction to set aside the Consent IJ under Sum 1064, particularly since parties have consented to it.

Counsel for the Defendant raised the following arguments in support of the adoption of the Sub-case Route instead of the Fresh Proceedings Route. In Kek Lai Quan (Guo Laiquan) v Lim Junyou [2022] SGMC 7 (“Kek Lai Quan”), a consent interlocutory judgment was set aside by the court under a summons filed in the suit itself. Like the present matter, Kek Lai Quan involved a situation where parties entered a consent interlocutory judgment in a motor accident claim, and later sought to set it aside due to the parties’ erroneous understanding of the law vis-à-vis the issue of causation (which they realised when the Court of Appeal issued its decision in Tan Woo Thian v PricewaterhouseCoopers Advisory Services Pte Ltd [2021] 1 SLR 1166). The court set aside the consent interlocutory judgment after considering the merits of the application. In Wellmix Organics (International) Pte Ltd v Lau Yu Man [2006] 2 SLR(R) 117 (“Wellmix”) at [91]-[100], the High Court found that it had a residuary discretion to have ultimate control over its own procedure and could decide not to enforce a consent unless order in certain special circumstances. The residuary discretion could be premised on the inherent powers of the court pursuant to Order 92 rule 4 of the Rules of Court (Cap 322, R 5, 2004 Rev Ed). The court also drew a distinction between the procedural sphere (which a consent unless order fell within) and the substantive sphere (which deals with the merits of a case). In Airtrust at [23], the High Court determined that under Order 92 rule 4 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed), it has the residual discretion to vary or set aside the terms of a consent order. Relying on Wellmix and Airtrust, counsel argued that a consent interlocutory judgment should be seen as part of the procedural sphere (rather than the substantive sphere); and that the court can rely on its residuary discretion to set aside a consent interlocutory judgment as part of its ultimate control over procedural matters.

Counsel for the Plaintiff agreed with the Defendant’s submissions.

As mentioned at [4] above, I dismissed the application on the basis that the court does not have the jurisdiction or power to set aside the Consent IJ under Sum 1064, which was filed as a sub-case in DC 1533 instead of fresh proceedings. I provided the following reasons, which are elaborated on below: The legal authorities are clear that the Fresh Proceedings Route must be adopted (ie. an application to set aside a consent judgment or order must be commenced as fresh proceedings). Order 92 rule 4 of the Rules of Court (Cap 332, R5, 2014 Rev Ed) (“ROC 2014”) does not provide the court with a residual discretion to set aside contractual consent orders. Parties cannot by consent confer on the court a jurisdiction which the court otherwise lacks.

The legal authorities are clear that the Fresh Proceedings Route must be adopted

The legal authorities point towards the adoption of the Fresh Proceedings Route.

In Wiltopps, the High Court considered the effect of a consent unless order (which remains binding until it is set aside); and found that fresh proceedings must be commenced to...