Tan Kok Ing v Tan Swee Meng & 3 Others

• Jurisdiction: Singapore
• Judge: Woo Bih Li JC
• Judgment Date: 31 July 2002
• Neutral Citation: [2002] SGHC 166
• Citation: [2002] SGHC 166
• Date: 31 July 2002
• Year: 2002
• Plaintiff Counsel: Cosmas Gomez (Hoh & Partners)
• Docket Number: Registrar's Appeal No 25 of 2002
• Defendant Counsel: Adeline Chong (Harry Elias Partnership),Linda Phua (Lee & Lee)
• Court: High Court (Singapore)
• Published date: 19 September 2003

JUDGMENT GROUNDS OF DECISION

Background

1. The Plaintiff is one Tan Kok Ing.

2. Mr Tan’s claim arises from a road traffic accident on 11 July 1997 involving two motor vehicles. He sued various defendants for damages for personal injuries and loss suffered as a result of the motor accident. He was a passenger in one of these vehicles. His claim was filed in the Magistrate’s Court on 7 July 2000.

3. On 31 January 2002, Mr Tan filed an application in the Magistrate’s Court to transfer the action from the Magistrate’s Court to the District Court. The grounds in support of his application were that when his action was commenced, it appeared that his injuries were less serious in nature and the general and special damages which he might reasonably expect to be awarded would not exceed the Magistrate’s Court limit. But since his action was commenced, Mr Tan alleged that it became apparent that his injuries were more severe than he had thought. In this regard, he relied on several medical reports. Consequently, his claim might exceed the Magistrate’s Court limit.

4. It was further alleged by Mr Tan that the transfer of proceeding would not prejudice the defendants.

5. Mr Tan’s application was dismissed by a Deputy Registrar of the Subordinate Courts. He then appealed to a District Court and that appeal was dismissed. Thereafter, he appealed to the High Court and that appeal came before me. After hearing arguments, I dismissed the appeal. I now give my written reasons.

6. The relevant provision is s 53 of the Subordinate Courts Act (Cap 321). Section 53 states:

‘Transfer from Magistrate’s Courts to District Courts

53. A Magistrate’s Court may, either of its own motion or on the application of a party to an action, transfer the action to a District Court on the ground that some important question of law or fact is likely to arise.’

7. I was of the view that in the light of this provision, there was no inherent jurisdiction in the Magistrate’s Court to transfer an action commenced in the Magistrate’s Court to the District Court and any such transfer must meet the requirement in s 53, that is, (a) some important question of law, (b) or fact, is likely to arise. Otherwise s 53 would be otiose.

Order 89 rule 4 of the Rules of Court

8. Before I deal with the requirements in s 53, I refer to O 89 r 4 of the Rules of Court, on which some reliance was placed by Mr Cosmas Gomez, Counsel for Mr Tan. This rule provides:

‘Transfer of proceedings within the Subordinate Courts (O.89, r.4)

4. (1) Where a Subordinate Court is satisfied that any proceedings in that Court ought to be tried in some other Subordinate Court, it may order the proceedings to be transferred to the other Court.

(2) Any order under paragraph (1) may be made by the Court on its own motion or on the application by summons of any party to the proceedings.

(3) Where an order under paragraph (1) is made by the Court on its own motion, the Registrar must give notice of the transfer to every party to the proceedings.’

Mr Gomez was suggesting that this provision would enable the Magistrate’s Court to effect the transfer without Mr Tan having to satisfy the requirements in s 53.

9. On the other hand, Ms Linda Phua, Counsel for the First and Second Defendants, submitted that rule 4 provides the procedure for a transfer only if one of the requirements in s 53 is satisfied and that rule 4 should not be read in isolation.

10. I was of the view that O 89 r 4 is not a provision on procedure only. However I agreed that it should not be read in isolation. If rule 4 were interpreted to mean that any Subordinate Court has an unfettered discretion to order a transfer of proceedings from a Magistrate’s Court to a District Court so long as the court ordering the transfer is satisfied that the transfer ought to be effected, then s 53 would be otiose. It will then effectively override s 53. In my view, subsidiary legislation cannot override primary legislation and rule 4 must be read subject to s 53.

11. I found support in the Malaysian case of Kee Chai Heng v Ketua Polis Daerah Kuala Muda [1999] 2 MLJ 671. In that case, the plaintiff had filed an action against the defendant for negligence for failing to ensure that he was not harmed whilst under police custody. The action was commenced in the Sessions Court. The Sessions Court however, on its own initiative, was of the view that the claim was within the jurisdiction of a lower court, i.e the Magistrate’s Court. It then ordered that the case be transferred to that court.

12. On appeal, the High Court (Alor Setar) ruled that the Sessions Court did not have the power to do so. This was because para 3(2) of the Third Schedule of their Subordinate Courts Act 1948 gave it power ‘to transfer any proceedings to another court of co-ordinate jurisdiction’ only.

13. However, O 47 r 1 of the Malaysian Subordinate Courts Rules 1980 provided that:

‘ ORDER 47

TRANSFER OF PROCEEDINGS

1. Where the Judge of any Court is satisfied that any proceedings in that Court can be more conveniently or fairly tried in some other Court he may order the proceedings to be transferred to other Court.’

14. Notwithstanding O 47 r 1, the Malaysian High Court concluded that this provision must be read subject to para 3(2) of the Third Schedule of their Subordinate Courts Act as the former was ‘merely a subsidiary legislation whereas the SCA is an Act of Parliament’ (see p 671 at I of the report).

Does the fact that Mr Tan’s claim may exceed the jurisdiction of the Magistrate’s Court show that some important question of law or fact is likely to arise?

15. Mr Gomez submitted that the mere fact that Mr Tan’s claim may exceed the jurisdiction of the Magistrate’s Court showed that an important question of law or fact was likely to arise. He relied on two cases.

16. In Manakau City Council v Nicoll Management Co Ltd [1998] DCR 722, the application to transfer a case from the District Court in Auckland to the High Court was based on s 43(2) of the District Courts Act 1947 which applies where the value or property or relief claimed in issue does not exceed $50,000. Under that provision, a judge may order the proceeding to be transferred to the High Court, if in the judge’s opinion, some important question of law or fact is likely to arise or a question of title to any hereditament is likely to arise otherwise than incidentally. In that case, the application was based on some question of law or fact. Judge R L Johnson enumerated various factors which he said must be taken into account in such an application:

(a) The nature and complexity of the case;

(b) The general or public importance of the case;

(c) The amount in issue;

(d) The likely length of the hearing and the financial resources of the parties;

(e) Novelty of any point of law raised.

17. Mr Gomez relied on factor (c) and said that this factor alone could satisfy one of the requirements in s 53. There was no need to establish that Mr Tan’s claim was complex.

18. The next case which Mr Gomez relied on was Patterson and others v Ellis and another [1957] 1 WLR 857. In that case, the relevant provision was s 44(2)(b) of the County Courts Act which allowed a transfer of proceedings in a County Court to the High Court if ‘(b) the judge certifies that in his opinion some important question of law or fact is likely to arise’.

19. In the court of first instance, Judge Gordon Clark held that ‘important’ must mean that the point affects a number of outside interests or a point of law which affects other cases.

20. However, the English Court of Appeal held that it was too narrow a construction to conclude that the point of law...