Shee See Kuen v PT Trikomsel Oke Tbk

• Jurisdiction: Singapore
• Judge: Judith Prakash JCA
• Judgment Date: 29 March 2022
• Court: Court of Appeal (Singapore)
• Docket Number: Originating Summonses Nos 2 and 3 of 2022 (Summonses Nos 4 and 5 of 2022)

Shee See Kuen and others

and

PT Trikomsel Oke Tbk and another matter

[2022] SGCA 27

Judith Prakash JCA

Originating Summonses Nos 2 and 3 of 2022 (Summonses Nos 4 and 5 of 2022)

Court of Appeal

Civil Procedure — Service — Leave for service out of jurisdiction — Transfer of appeal — Leave for service out of jurisdiction granted by High Court — Whether fresh leave for service out of jurisdiction needed to be granted by Court of Appeal for originating summonses seeking transfer of appeal from Appellate Division of High Court to Court of Appeal

Held, making no orders as to the applications:

(1) The applicants were right to commence the Transfer Applications by originating summonses. Until the Transfer Applications were granted, AD 4 and AD 5 were not before the Court of Appeal. Hence, reading O 56A r 12(5) together with O 57 r 16(1) of the ROC, the Transfer Applications had to be commenced by way of originating summonses: at [7] and [8].

The Transfer Applications were in substance summonses

(2) OS 2 and OS 3 were not in substance originating processes. They should be deemed to be summonses which were made in “a pending cause or matter”. As such, pursuant to O 11 r 8(1) ROC, given that leave to serve the Writs out of jurisdiction had been granted in the Suits, the applicants need not have obtained fresh leave to serve OS 2 and OS 3 on PT Trikomsel in Indonesia: at [13].

(3) Not all originating summonses were originating processes. If after the disposition of the originating summons, there was still something left to try as between the parties, then the application whilst commenced by originating summons was interlocutory in nature. This understanding of originating summonses should be applied to O 11 r 8(1) ROC because its purpose was best promoted by holding that applications which were, in form, commenced by an originating summons but were in substance interlocutory summonses came within the ambit of the provision: at [14] and [20].

(4) Order 11 r 8(1) ROC aimed to eliminate duplicative applications for leave for service out of jurisdiction. If: (a) the originating summons was interlocutory and hence ancillary to a pending cause or matter (“underlying proceeding”); and (b) leave for service out of jurisdiction had been granted in respect of the originating process in the underlying proceeding, then Singapore's courts had already determined that it was appropriate to assume personal jurisdiction over the foreign party. This was because in analysing the requirements for granting leave for overseas service, the lower court would have satisfied itself that it was appropriate for Singapore's courts to exercise personal jurisdiction in that case. It would be superfluous for a higher court to re-analyse the requirements for granting leave for overseas service: at [18] to [20].

(5) Under O 11 r 8(1) ROC, the court did not need to grant fresh leave for overseas service of the Transfer Applications. OS 2 and OS 3 were indeed interlocutory in nature. The Transfer Applications only raised the administrative or procedural question of which court should hear the substantive appeals in AD 4 and AD 5. Deciding the Transfer Applications would in no way have disposed of the merits of the appeals. The appeals related to the separate question of whether the applicants were entitled to claim punitive and aggravated damages without specifically pleading such damages: at [22].

The Transfer Applications were filed in a “pending cause or matter”

(6) In the final analysis, “proceedings”, “cause” or “matter” were each capable of a variety of meanings. Their proper meanings in different situations should be ascertained in the statutory context and the object(s) of the legislation in which they were used: at [29].

(7) The object of O 11 r 8(1) ROC compelled the conclusion that the first instance trial/application, appeal and any transfer application arising from the appeal were a single set of proceedings. Accordingly, parties needed only apply for leave for service out of jurisdiction once. If it were otherwise, and the Transfer Applications were not deemed to be summonses in a pending cause or matter, multiple courts would be applying the same principles on leave for service out of jurisdiction to the same facts. Not only were such duplicative applications a strain on judicial resources, the spectre of inconsistent results spelt intractable practical difficulties: at [30].

Amendment of stated address in High Court's orders for overseas service

(8) As the High Court's orders granted leave to serve PT Trikomsel at Address 1, the court exercised its inherent power to vary the leave orders to grant leave to serve PT Trikomsel at Address 2 in Indonesia: at [32].

Case(s) referred to

Blake v Norris (1990) 20 NSWLR 300 (folld)

Burgundy Global Exploration Corp v Transocean Offshore International Ventures Ltd [2014] 3 SLR 381 (folld)

Choo Cheng Tong Wilfred v Phua Swee Khiang [2022] 1 SLR 1142 (refd)

Delbert-Evans v Davies [1945] 2 All ER 167 (refd)

Goh Teng Hoon v Choi Hon Ching [1985–1986] SLR(R) 869; [1986] SLR 353 (refd)

Hawksford Trustees Jersey Ltd v Stella Global UK Ltd (No 2) [2012] EWCA Civ 987 (refd)

Jurong Shipyard Pte Ltd v BNP Paribas [2008] 4 SLR(R) 33; [2008] 4 SLR 33 (folld)

Lee Hsien Loong v Review Publishing Co Ltd [2007] 2 SLR(R) 453; [2007] 2 SLR 453 (folld)

Milaha Explorer Pte Ltd v Pengrui Leasing (Tianjin) Co Ltd [2022] 1 SLR 1147 (refd)

Noor Azlin bte Abdul Rahman v Changi General Hospital Pte Ltd [2021] 2 SLR 440, CA (refd)

Noor Azlin bte Abdul Rahman v Changi General Hospital Pte Ltd [2022] 1 SLR 689, CA (refd)

Sidney Faithorne Green v Lord Penzance (1881) App Cas 657 (folld)

Syed Suhail bin Syed Zin v AG [2021] 4 SLR 698 (refd)

Wei Fengpin v Raymond Low Tuck Loong [2022] 1 SLR 857 (refd)

Zoom Communications Ltd v Broadcast Solutions Pte Ltd [2014] 4 SLR 500 (refd)

Facts

CA/SUM 4/2022 (“SUM 4”) and CA/SUM 5/2022 (“SUM 5”) were ex parte applications for leave to serve the originating summonses in CA/OS 2/2022 (“OS 2”) and CA/OS 3/202 (“OS 3”) out of jurisdiction on PT Trikomsel Oke Tbk (“PT Trikomsel”). OS 2 and OS 3 were applications to the Court of Appeal seeking the transfer of AD/CA 4/2021 (“AD 4”) and AD/CA 5/2021 (“AD 5”) from the Appellate Division of the High Court (“Appellate Division”) to the Court of the Appeal.

PT Trikomsel was the respondent in OS 2 and OS 3 (the “Transfer Applications”) and AD 4 and AD 5. It was an Indonesian company with its address in Indonesia. The applicants herein were the plaintiffs in HC/S 564/2018 and HC/S 565/2018 (the “Suits”) in which PT Trikomsel was one of the defendants. As events transpired, interlocutory judgment in default was entered against PT Trikomsel in both Suits and thereafter damages were ordered to be assessed against PT Trikomsel. At the assessment hearings, the applicants were awarded damages on the normal compensatory basis against PT Trikomsel. The applicants were dissatisfied, however, as they had failed to obtain punitive and aggravated damages. AD 4 and AD 5 were the applicants' appeals against the High Court judge's dismissal of their claims for punitive and aggravated damages.

After the Transfer Applications were filed, the Registry of the Supreme Court issued letters dated 27 January 2022 (the “27 Jan Letters”) directing PT Trikomsel to file its papers for the Transfer Applications by 7 February 2022. However, at a case management conference on 8 February 2022, it came to light that the applicants had not served the Transfer Applications on PT Trikomsel. In addition, it appears that the 27 Jan letters were dispatched, but not to PT Trikomsel's last known address in Central Jakarta (“Address 2”). The 27 Jan Letters were only sent to PT Trikomsel's previous address in Jakarta (“Address 1”). This was because Address 1 was the address stated by the applicants in the Transfer Applications.

The applicants filed SUM 4 and SUM 5 on 21 February 2022 seeking leave to serve OS 2 and OS 3 on PT Trikomsel in Indonesia at Address 2. However, the applicants had been granted leave to serve the writs of summons (“Writs”) in the Suits on PT Trikomsel at Address 1 in January 2019. Further, the Memorandum of Service dated 30 May 2019 in both suits showed that the Writs had been served on PT Trikomsel at Address 2.

The starting position was that service of an originating process out of Singapore was permissible with the leave of court: O 11 r 1 of the Rules of Court (2014 Rev Ed) (“ROC”). In contrast, no separate leave was required to serve “any summons, notice or order issued, given or made in any proceedings” in which “leave for service of the originating process has already been granted”: O 11 r 8(1) ROC. A “summons” was defined in O 1 r 4(1) ROC as a summons in a “pending cause or matter”. In these circumstances, the central question was...