Tan Boon Hai v Singapore Hainan Hwee Kuan
| Jurisdiction | Singapore |
| Judge | G P Selvam J |
| Judgment Date | 30 March 2001 |
| Neutral Citation | [2001] SGHC 63 |
| Court | High Court (Singapore) |
| Year | 2001 |
| Published date | 05 April 2004 |
| Plaintiff Counsel | Yang Ing Loong and Christopher Tan (Allen & Gledhill) |
| Defendant Counsel | Lee Chin Seon (CS Lee) |
| Subject Matter | Civil Procedure,Costs,Taxation,Review of registrar's decision by judge,Whether judge's discretion fettered on review,Whether judge not to interfere with taxing officer's decision on mere question of quantum except in exceptional circumstances |
| Citation | [2001] SGHC 63 |
[Please note that this case has not been edited in accordance with the current Singapore Law Reports house style]
Judgment reserved
GP Selvam
1 I have before me an application for review of costs payable by the plaintiff, Mr Tan Boon Hai, to 17 of the 34 defendants in this originating summons.
2 The matter from which the application arose concerned election politics of a clan association. The association in question is Singapore Hainan Hwee Kuan. The plaintiff took out OS 1022/1999 on his own behalf and 32 other candidates who contested in the Association’s annual general meeting held on 30 May 1999. In brief, the summons sought a declaration that the election of the successful candidates was ineffective on account of irregularities. Additionally, he further sought an order for a fresh election. He asked for an order to restrain the newly elected management committee from functioning as such. Finally, he sought an order to virtually freeze the funds of the Association.
3 The originating summons was filed on 5 July 1999. On 29 July 1999 there was an interim order in favour of the plaintiff. There was a partial freezing of the bank account. The interim order was made after a contested hearing.
4 The originating summons was heard for some nine days with cross-examination of witnesses. The case was given a further period of 15 hearing days but that did not materialise. It ended without a decision by the court as it was discontinued by the plaintiff. This resulted in him having to pay the costs of the action. The notice of discontinuance was filed with the consent of the defendants. The consent was on the basis that the plaintiff would pay the defendants 80% of the costs of the action. The costs were to be taxed on the standard basis if not agreed. The costs were not agreed. So there was a taxation of a bill submitted on behalf of the 17 defendants. The 17 defendants claimed a sum of $250,000 in Section I for work done. They were given $100,000. On review that amount was reduced to $70,000. The 17 defendants were dissatisfied with the award and applied for a review of the decision below. They said that even the amount of $100,000 was too low. They urged me to award something between $150,000 and $180,000.
Point of law
5 At the review before me, counsel for the plaintiff raised an important point of law. The point was that a judge must not interfere with the decision of the taxing officer on a mere question of quantum except in exceptional circumstances. In my view, that point no longer obtains, even though in 1992 it received the imprimatur of the Singapore Court of Appeal in Diversey (Far East) v Chai Chung Ching Chester (No 2) [1993] 1 SLR 542 and Jeyaretnam JB v Lee Kuan Yew [1993] 1 SLR 185. It has been overtaken by events. I shall now explain how.
The doctrine of fettered discretion (the old law)
6 First, a review of the old law. In 1875, Vice-Chancellor Sir R Malins, during arguments by counsel in Smith v Buller (1875) LR 19 Eq 473, remarked at p 474:
Although the Court is reluctant to go into questions of detail, it will do so in a proper case, and even in a question of quantum will do so, where there has been a charge of a very exorbitant character.
The Vice-Chancellor was considering the taxation of the costs in a patent action.
7 The above statement, which I shall call the doctrine of fettered discretion, has been widely followed for more than a century. Some 60 years later, in 1939, Aitken J was guided by the statement of the Vice-Chancellor, see Re Kana Moona Syed Abubakar deceased; Khatijah Nachiar v Sultan Allaudin
I am not the Registrar, and the rule that a Judge must not interfere with the decision of a taxing officer on a mere question of quantum, unless very exceptional circumstances are present, is both settled and of long standing.
8 In 1973, Choor Singh J in Starlite Ceramic Industry v Hiap Huat Pottery [1972–1974] SLR 440 at 442; [1973] 1 MLJ 146 at 147 referred to the statement of Aitken J and said:
Another general rule is that the court will not interfere with the discretion of the taxing officer upon a mere question of quantum if the taxing officer has exercised his discretion after considering all the circumstances and if no question of principle arises.
9 In none of the above cases did the court attempt to refer to the relevant rule which conferred the review power on the judge. In 1958, however, the English Court of Appeal did so in Gorfin v Odhams Press [1958] 1 All ER 578;
Although the terms of R.S.C., Ord. 65, r. 27 (41), are very wide, and, in effect, treat the matter before the judge in chambers as a re-hearing, I think it is now clear in practice and on authority that the court will only interfere with the exercise of the master’s discretion if it is clear that the master has gone wrong in principle. It is for this reason that matters of quantum only, where no principle is involved, are rarely, if ever, interfered with. In other matters, as indeed, the question whether two counsel or one counsel should be allowed, it is impossible to say that there is no principle involved; and, accordingly, if it can be shown that the master has erred in principle, then the court will exercise its own discretion in the matter.
10 Then came the decision of the Singapore Court of Appeal in Diversey (Far East) v Chai Chung Ching Chester (No 2) [1993] 1 SLR 542. In this case, two items awarded below were reduced by the judge-in-chambers. On further appeal, the awards made at the registrar’s level were restored by the Court of Appeal. S Rajendran J, delivering the judgment of the Court of Appeal on 12 November 1992, reaffirmed the principle enunciated in Re Kana Moona Syed Abubakar deceased (supra). S Rajendran J said at p 551–552:
The principles applicable on review
We were unable to accept the submissions of counsel for the respondents relating to the principles applicable on review of the registrar’s certificate by a judge in chambers. In our view, what is germane to the issue is a consideration of O 59 r 36(5), in particular the opening words:
On an application under this Rule, the Judge may make such order as the circumstances require, and in particular may order the Registrar’s certificate to be amended or, except where the dispute as to the item under review is as to amount only, order the item to be remitted to the Registrar for taxation.
This was the successor to that part of O 65 r 27(41) of the Rules of the Supreme Court 1957, which sets out the power of the judge in the following terms:
… and the Judge may thereupon make such order as the Judge may think just …
Looking at the two sub-rules, the wording may have changed but in substance, the rules provide for the same. The phrase ‘as the circumstances require’ confers on the judge a discretion. This discretion, however, is not unfettered and must be judicially exercised. The judge should not interfere with the registrar’s decision unless there is an error of principle or some other material error. The dicta of Aitken J in Kana Moona Syed Abubakar to the effect that a judge would be justified in interfering where the registrar’s decision was ‘an affront to reason and common sense’ is, in our opinion, too harsh a standard to apply. What is required is a broad overview of the matter by the judge and if there is an error in principle or some other material error, he will be justified in interfering with the decision below. To suggest, as counsel for the respondents did, that the hearing before the judge is a rehearing, would not be in keeping with the wording of r 36 which speaks of ‘review’, not of ‘rehearing’ nor,...
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