Ten Leu Jiun Jeanne-Marie v National University of Singapore [2022] SGHC 247

Introduction

This is an appeal against an assistant registrar’s order striking out Originating Summons No 226 of 2021 (“the OS”). The appellant, Ms Ten Leu Jiun Jeanne-Marie (“Ms Ten”) previously brought action against the respondent, the National University of Singapore (“NUS”). This suit was dismissed on 9 July 2018: Ten Leu Jiun Jeanne-Marie v National University of Singapore [2018] SGHC 158 (the “Judgment”). In the OS, Ms Ten seeks to set aside the Judgment on the premise that it was tainted by fraud because of perjury on the part of NUS’s witnesses. Having heard parties and considered their arguments, I now dismiss the appeal.

Background

Suit 667 and the Judgment

Ms Ten commenced proceedings against NUS on 8 August 2012 (“Suit 667”).

The detailed facts giving rise to Suit 667 can be found at [7]–[91] of the Judgment. For the purposes of this appeal, the following brief facts are relevant. Commencing 7 January 2002, Ms Ten was a candidate for the degree of Masters of Arts (Architecture) by research at the School of Design and Environment of NUS. It was a requirement that Ms Ten complete a thesis in order to graduate from the course. Dr Wong Yunn Chii (“Dr Wong”) was Ms Ten’s sole supervisor for her thesis.

Ms Ten raised a complaint about Dr Wong’s conduct with NUS. She dealt with a number of NUS officers regarding the complaint, including Professor Lily Kong (“Prof Kong”) and Professor Ang Siau Gek (“Prof Ang”). A Committee of Inquiry (“COI”) was set up to look into Ms Ten’s complaint. The COI concluded that, amongst other things, Dr Wong had failed to comply fully with his duties as Ms Ten’s supervisor, and recommended that he be censured for this failure. When conveying the findings of the COI to Ms Ten, Prof Kong did not mention this finding of the COI. Communication between Prof Kong and Ms Ten continued, with Ms Ten complaining that the COI’s process was inadequate and lacked transparency. There were further disagreements between Ms Ten and NUS about the requirements that she needed to fulfil to receive her degree. Eventually, on 4 September 2006, NUS terminated her candidature with immediate effect before she obtained her degree.

Ms Ten brought suit against NUS to award her the degree and claimed damages for breach of contract, misfeasance in public office, intimidation and negligence. Ms Ten was dissatisfied with the way NUS had handled her complaint against Dr Wong. She felt that NUS and its officers were trying to cover up Dr Wong’s misconduct, and had thus retaliated maliciously. In particular, she alleged that Prof Kong and Prof Ang had put obstacles in her way to prevent her from obtaining her degree.

Events following the Judgment

Under O 57 r 4 of the Rules of Court applicable at the time, a notice of appeal against a judgment was required to be filed within one month from the date of judgment. Ms Ten did not file a notice of appeal against the Judgment before the prescribed deadline.

Two months after Maniam JC’s decision, on 10 March 2021, Ms Ten filed the OS. She seeks in the OS the following prayers:

On 27 December 2021, by Registrar’s Appeal 351 of 2022 (the “RA”) Ms Ten appealed against the AR’s decision. Subsequently, on 29 April 2021, she filed an application to admit further evidence for the purposes of the RA (“Summons 1658 of 2022”). She filed an affidavit in support of this application. In the interest of having matters dealt with expeditiously, NUS agreed to let that affidavit stand as Ms Ten’s affidavit in the RA, subject to their arguments on its contents.

The application to strike out the originating summons

Context for striking out

Under O 18 r 19 of the ROC, the court may, at any stage of proceedings, order the striking out of an originating summons. Order 18 r 19(1) reads as follows:

In this case, NUS contends that the OS should be struck out because it is an abuse of the process of the court. In the alternative, NUS argues that the OS should be struck out because it is frivolous and/or vexatious, and/or discloses no reasonable cause of action.

The AR’s decision

The AR found that the issues raised in Prayers 1, 2 and 6 were res judicata because they either had been raised or should have been raised in Suit 667. However, the AR did not accept NUS’s argument that the CA’s decision in OS 25 raised an issue estoppel, as it was not a final and conclusive judgment on the merits of Ms Ten’s perjury allegations. Prayers 3, 4 and 5 were also struck out because, first, they were consequential to prayers 1 and 2 and could not stand alone; and secondly, they had no legal basis.

Issues in the appeal

Ms Ten appealed against all the AR’s orders.

The OS prayed for a variety of remedies. I deal with them in two categories: Prayers 1, 2 and 6, which ask for substantive relief in respect of the Judgment; and Prayers 3, 4 and 5, which ask for a specific judge to hear the OS and for two other judges to be recused from doing so.

Prayers 1, 2 and 6

These prayers are premised on the argument that the judgment in Suit 667 was obtained by fraud and perjury and should thus be set aside.

The law on setting aside a judgment obtained by fraud

In Harmonious Coretrades Pte Ltd v United Integrated Services Pte Ltd [2020] 1 SLR 206, the Court of Appeal recognised at [34] that one of three situations in which a judgment may be set aside was where it had been obtained by fraud. The Court of Appeal regarded as settled law, Prakash J’s (as she then was) summation at [44]–[46] of Ong Cher Keong v Goh Chin Soon Ricky [2001] 1 SLR(R) 213 which included the following:

The second criterion identified in the passage above is fundamental to the analysis at hand: the fraud must have been discovered after the judgment was passed. In the present case, and as I will explain, because there is no fresh material evidence that arose after the Judgment, the doctrines of issue estoppel and the extended doctrine of res judicata are pertinent.

The law on issue estoppel and the extended doctrine of res judicata

NUS relies upon the doctrines of issue estoppel and the extended doctrine of res judicata, which operate to preclude litigants from making arguments that were previously rejected by a court or tribunal or that should have been advanced on an earlier occasion. The underlying policy behind the doctrines is that litigants should not be twice vexed in the same matter, and that the public interest requires finality in litigation: The Royal Bank of Scotland NV (formerly known as ABN Amro Bank NV) and others v TT International Ltd (nTan Corporate Advisory Pte Ltd and others, other parties) and another appeal [2015] 5 SLR 1104 (“Royal Bank of Scotland”) at [98].

Issue estoppel is established “when a court of competent jurisdiction has determined some question of fact or law, either in the course of the same litigation (for example, as a preliminary point) or in other litigation which raises the same point between the same parties”: Watt (formerly Carter) and others v Ahsan [2008] 1 AC 696 at [31], as cited in Royal Bank of Scotland at [100]. In other words, issue estoppel applies where a litigant seeks to reargue points which have already been the subject of a previous judicial decision in earlier proceedings between the same parties: Royal Bank of Scotland at [101].

In addition, there are situations where a litigant seeks to argue points which were not previously determined by a court or tribunal because they were not brought to the attention of that court or tribunal. If the points ought properly to have been brought before that court or tribunal, the litigant will not be permitted to reargue those points in the absence of special circumstances. This is known as the extended doctrine of res judicata, or the doctrine of abuse of process: Royal Bank of Scotland at [101]–[102].

Ms Ten’s perjury allegations

Suit 667 of 2012

In Suit 667, Ms Ten made allegations regarding the credibility of NUS’s key witnesses, including Prof Kong and Prof Ang. Ms Ten’s counsel challenged Prof Kong and Prof Ang during cross-examination on the truth of the evidence they were giving. Subsequently in closing submissions, Ms Ten’s counsel contended that Prof Kong and Prof Ang had been dishonest when giving evidence on the stand and pointed to inconsistencies between the documentary evidence and their evidence in court.

Ms Ten’s affidavit filed in support of the OS

Ms Ten’s affidavit filed in support of the OS recounts Prof Kong’s and Prof Ang’s evidence in Suit 667, and contends that Prof Kong perjured herself in Suit 667. It also recounts NUS’s statutory demand and bankruptcy proceedings against her, and her application to the Court of Appeal for an extension of time to appeal. Concluding that she was denied access to justice by the Court of Appeal, Ms Ten argues that she was forced to apply to this court to decide on the issue of perjury by NUS witnesses as a basis for setting aside the Judgment “on the grounds that the [Judgment] is tainted by ‘fraud upon the court’ in the form of perjury by the star witnesses for NUS”.

Ms Ten’s further affidavit for the RA

Ms Ten’s further affidavit contains many assertions which are in the nature of submissions about the various hearings in the High Court and Court of Appeal. I considered these submissions as such. There are two pieces of fresh evidence sought to be adduced by Ms Ten in this affidavit. The first is a police report that she made on 14 February 2022 about Prof Kong’s and Prof Ang’s alleged perjury. The text of the police report comprises assertions that were made in Suit 667 about Dr Wong, Prof Ang and Prof Kong. The fact that Ms Ten has repeated her allegations recently in a police report does not have any evidential value in respect of her arguments on the alleged fraud or perjury.

The second is a purported expert opinion by a Professor David Lewis, who describes himself as a professor of employment law from Middlesex University, London (“Prof Lewis”), No resume is attached to his opinion. His opinion considers various documents which were put before the court in Suit 667. He highlights contradictions between the evidence contained in those documents and the findings of the court. Prof Lewis appears unaware that the appropriate arbiter for the matters he expressed his opinion on would be the Court of Appeal. The Court of Appeal, as I recounted earlier, dismissed Ms Ten’s application for an extension of time to appeal on 30 October 2020. Prof Lewis’s opinion on Woo J’s decision is irrelevant to the OS, and accordingly to the RA.

Was the OS barred by issue estoppel and/or abuse of process?

As is clear from the above, neither of Ms Ten’s affidavits raise evidence that was not before the court in Suit 667 that is material to her allegation that NUS’s witnesses had perjured themselves in Suit 667. In this context, I now turn to consider NUS’ contentions that issue estoppel and the doctrine of extended res judicata bar Ms Ten’s claims in the OS.

Issue estoppel

In Goh Nellie v Goh Lian Teck and others [2007] 1 SLR(R) 453 (“Goh Nellie”) at [26], Sundaresh Menon JC (as he then was) identified the following four requirements for issue estoppel to arise:

The first three requirements are plainly met. The issue is whether there is identity of subject matter in the two proceedings. At [34]–[38] of Goh Nellie, Menon JC explained that identity of subject matter encapsulates three conceptual strands:

In the present case, the issue raised by Ms Ten is whether NUS’s witnesses committed perjury in Suit 667. On her own evidence, this issue was raised squarely by her and argued at length in Suit 667. The query, if any, pertains to (b), that is whether there was a determination by Woo J on the issue that was fundamental to the Judgment. In this respect, NUS argues that “the argument that [NUS’s] witnesses had committed perjury and/or were dishonest in Suit 667 had already been considered and dismissed by Justice Woo in finding that [NUS’s] officers had not acted maliciously.” NUS could not, however, point to a specific finding or determination in the Judgment on the issue of perjury or dishonesty of NUS’s witnesses.

In this regard, Menon JC in Goh Nellie drew a distinction between issues which are “no more than steps in a process of reasoning” and those which are “so cardinal” that the decision “cannot stand without them” (Goh Nellie at [37] citing Blair v Curran (1939) 62 CLR 464 (“Blair”). As stated by Dixon J in Blair at 532, “nothing but what is legally indispensable to the conclusion is thus finally closed or precluded” [emphasis added].

In my view, the Judgment contains no specific determination on Ms Ten’s allegations because such a determination was not necessary to the court’s decision. NUS argues that it would not have been possible for Woo J to have found in their favour on the tort of misfeasance without making determinations on Ms Ten’s allegations on perjury. To address this argument, I use the requirements for the tort which Woo J set out at [115] of the Judgment:

The requirement which potentially relates to the credibility of NUS’s witnesses is the one at (a). Woo J concluded at [252] of the Judgment that there was clearly no malice or knowledge that they were acting ultra vires on the part of Prof Kong or other officers of NUS. For this reason, he found that Ms Ten’s claim on the tort of misfeasance in public office failed. In particular Woo J made the following findings:

NUS’s argument on issue estoppel rests on the logic that Woo J’s findings that are detailed above must have indicated disagreement with Ms Ten’s allegations of perjury. This is because Ms Ten’s perjury contentions were premised on Prof Kong’s dishonesty. While this may be true as a matter of logic, the logical connection falls short of establishing identity of subject matter for the purposes of issue estoppel. Any disagreement by Woo J with Ms Ten’s perjury allegations was implicit rather than expressed in a determination that could be said to be cardinal to his conclusion on the tort of misfeasance. Further, while the concepts of malice, dishonesty and perjury are related, they are not strictly the same. As an illustration, it would be theoretically possible to conclude, on the totality of the evidence, that Prof Kong had acted honestly at all times when dealing with Ms Ten regarding her complaint and the awarding of her degree, while at the same time holding the view that she was not a completely honest witness at trial. Thus, I conclude that an implicit determination, if any, by Woo J on the specific allegations which Ms Ten raises in the OS was “no more than [a step] in [the] process of reasoning” (see [31] above).

The view that Woo J did not specifically determine Ms Ten’s allegations of perjury in the Judgment is consistent with the Court of Appeal’s approach when the allegations were raised by Ms Ten in OS 25. While seeing no issue with the merits of Woo J’s findings on each of the causes of action, the Court of Appeal dealt with Ms Ten’s perjury allegations as if they arose from Woo J’s findings in the Judgment and concluded that they were “unsubstantiated”.

NUS’s arguments are, however, relevant to the extended doctrine of res judicata, to which I now turn.

Extended doctrine of res judicata

The extended doctrine of res judicata requires a fact-specific inquiry to determine whether an issue should have been raised in earlier proceedings. Goh Nellie set out the following non-exhaustive list of relevant considerations at [53]:

In Suit 667, Ms Ten’s arguments were premised on the fact that NUS’s witnesses had been dishonest on the stand. In other words, the issue was central to her case, even though it did not turn out to be fundamental to the Judgment. In the light of the fact that it was fundamental to her case, she ought to have brought forward her whole case in that proceeding. As explained in Henderson v Henderson (1843) 3 Hare 100 (“Henderson”), at 114–115:

Ms Ten makes the argument that the Henderson doctrine only applies to cases where an issue was not raised in an earlier proceeding. She refers to BWG v BWF [2020] 1 SLR 1296 at [53] (“BWG v BWF”), where the Court of Appeal referred to the Henderson rule as one “that a litigant may not make a case in litigation which might have been, but was not, made in previous litigation”. Her point is that because the perjury issue was repeatedly raised by her and her counsel, it could not be subject to the Henderson rule as framed by the Court of Appeal. However, she has misunderstood the Court of Appeal’s remarks, and those of the other High Court decisions she referred to. The Henderson rule is often referred to as the extended doctrine of res judicata because it extends the breadth of the doctrine of res judicata. It applies to a wider range of scenarios for policy reasons which I return to at [62] below. Thus, for example, for issue estoppel to apply, it is a requirement that the issue was referred to and was the subject of argument: Goh Nellie at [38]. However, there is no such requirement when it comes to the extended doctrine of res judicata or abuse of process. This was what the Court of Appeal alluded to in BWG v BWF. The Court of Appeal was not suggesting that a matter must have not been raised in earlier proceedings for the doctrine of abuse of process to apply. This would lead to legal absurdity because a litigant could thereby escape the ambit of the extended doctrine by simply raising irrelevant issues in litigation which are, for obvious reasons, eventually not determined.

Coming to the case at hand, issue estoppel does not apply because the issue in question was not fundamental to the decision in the Judgment. Nevertheless, as may be seen from the extract from Henderson at [38] above, what Ms Ten has raised before, she is not permitted to raise again. As the plaintiff in the earlier case, she had raised issues pertaining to the honesty of NUS’s witnesses, and is now, again as a plaintiff, raising the issues raised earlier. In Royal Bank of Scotland at [102], the Court of Appeal explained that the purpose behind the extended doctrine is to limit abusive and duplicative litigation.

Returning to the relevant considerations at [53] of Goh Nellie (summarised at [37] above), the issue of perjury not having been decided in her favour, the extended doctrine operates as a bar to the OS unless there are matters of fresh evidence that warrant re-litigation, or other bona fide reasons why Ms Ten should be allowed to advance this argument again.

In this respect, it must also be noted that the notion of there having been fraud perpetrated in Suit 667 is not new. It was already once pursued after the Judgment, in the context of the application for an extension of time to appeal. On the evidence presented in that application, the Court of Appeal noted that the allegations were unsubstantiated. In their remarks, the Court of Appeal directly addressed one of Ms Ten’s concerns about the inconsistency between Woo J’s findings and Prof Kong’s evidence on the witness stand, as follows:

In the OS, Ms Ten has similarly not brought any new evidence forward. She has again sought to establish fraud by pointing to the documentary evidence that was before the court in Suit 667, and the findings in the Judgment itself. The primary purpose of the OS is to advance a case that Suit 667 was wrongly decided on the evidence that was before it. Ms Ten was frank as to this purpose and motivation:

And:

This amounts to nothing more than an impermissible collateral attack on the Judgment. Of relevance are Lord Diplock’s remarks in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 541 that were cited in Goh Nellie at [20]:

The OS is therefore barred by the extended doctrine of res judicata.

Did the OS meet the requirements for setting aside the Judgment on the grounds of fraud?

Finally, I turn to consider, issue estoppel and abuse of process aside, the factual and legal sustainability of Ms Ten’s claim that the Judgment should be set aside because it was tainted by fraud.

In Ching Chew Weng Paul and others v Ching Pui Sim and others [2011] 3 SLR 869 (“Ching Chew Weng Paul") at [40], Steven Chong J (as he then was) set out Kirby P’s summary on how assertions of perjury should be dealt with, from Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 (at 538–539). It is apt to this case and I set it out here:

This dicta illumines how exceptional fresh evidence must be in order to raise, in a new action, the contention that an earlier judgment was tainted by fraud and in particular, perjury on the part of witnesses. In this regard, the present case must be distinguished from Takhar v Gracefield Developments Ltd and others [2019] 2 WLR 984 (“Takhar”) and Su Sh-Hsyu v Wee Yue Chew [2007] 3 SLR(R) 673, authorities on which Ms Ten relies. In both of these cases, fresh material evidence arose after their conclusion, and fraud had not been raised in the proceedings leading to the judgment sought to be set aside. In both cases, expert evidence was adduced concerning the authenticity of signatures on transfer documents for properties that were key to the dispute at the earlier trials. At the hearing, Ms Ten sought to liken Prof Lewis’s opinion to that of the expert dealing with the authenticity of the signature of the claimant in Takhar. However, Prof Lewis’s opinion is in an entirely different category. His report does not pertain to any scientific or technical fact. It would not be admissible evidence under the Evidence Act 1893. There was therefore no fresh evidence that Ms Ten sought to rely on in the OS. The principles that the UK Supreme Court cited in Takhar, at [56], referring to Royal Bank of Scotland plc v Highland Financial Partners lp [2013] 1 CLC 596 at para 106, are apposite:

These authorities align with the analysis set out in Ong Cher Keong: see [18] above. Similar to Ching Chew Weng Paul, Takhar emphasised that finality is important, citing (at [44]) The Ampthill Peerage [1977] AC 547 at 569:

By Ms Ten’s own assertions, she sought to make the same arguments that her counsel pressed in Suit 667. While the police report and the expert opinion did arise after the Judgment, they do not relate to any of the material events considered in Suit 667 and therefore certainly are not evidence of matters which prima facie would be a reason for setting the decision in Suit 667 if they were established by proof.

Ms Ten’s approach was summed up in her written submissions, which made patent that she did not seek to rely on any new evidence that was not before the court in Suit 667:

Given that Ms Ten has not raised any fresh material evidence in the OS, it must be struck out.

As a final matter, I deal with Ms Ten’s mode of commencing this claim. Fraud allegations carry a high threshold of proof and affidavit evidence is usually not sufficient to lead to a finding of fraud: see Yee Heng Khay (alias Roger) v Angliss Singapore Pte Ltd and another matter [2022] SGHC(A) 20 at [19]. A writ action is the appropriate mode of commencement where factual matters require resolution: O 5 r 2 of the ROC. For completeness, I highlight that even though I could have allowed the appeal and converted the matter to a writ action if any of Ms Ten’s arguments required a trial, I did not think any of her arguments were of sufficient materiality to be tested in an action converted to a writ. Ms Ten’s view, in any event, as seen from the extract at the [51] above, is that no new factual issues needed to be determined.

Prayers 3, 4 and 5

Prayers 3 and 4 are specific requests for Woo JAD and Maniam J not to hear the OS. Prayer 5 is a specific request for Chan SJ to hear the OS. These prayers are now irrelevant as I dismiss the appeal against the striking out of the OS. As I will explain, these prayers are also legally and factually unsustainable and are therefore frivolous and vexatious.

Prayers 3 and 4 contain allegations of apparent bias. The law on apparent bias was definitively restated in the case of BOI v BOJ [2018] 2 SLR 1156 at [103]:

(a) The general test is an objective one: whether there are circumstances that would give rise to a reasonable suspicion or apprehension of bias in the fair-minded and informed observer.

(b) “Reasonable suspicion or apprehension”: there is a reasonable suspicion or apprehension of bias when an observer would think, from relevant circumstances, that bias is possible. This belief cannot be fanciful, and it must be a reasoned one, capable of articulation with reference to the evidence presented.

(c) The observer’s perspective is that from which matters are to be judged: such an observer would be informed of all relevant facts that are generally capable of being known by members of the public, including the traditions of integrity and impartiality that the administrators of justice have to uphold. The observer must also be fair-minded, and cannot be unduly complacent, sensitive or suspicious.

Prayer 3 alleges apparent bias on the premise of [302] of the Judgment. At [302], Woo J observed as follows:

An objective reading of [302] does not yield any reasonable suspicion or apprehension of bias. It was a specific finding of fact made in the context of a factual matrix established at trial and based on a trial judge’s consideration of witnesses assessed at trial. When the paragraph is read in the context of the judgment as a whole, it is clear that Woo J’s observation at [302] was a conclusion drawn from facts as found earlier in the judgment. A fair-minded observer would not thereby conclude that Woo J would be biased in any future proceedings tried before him that involved Ms Ten. The mere fact that a judge has previously made adverse comments or findings against a litigant is, on its own, not sufficient for a recusal application to succeed: TOW v TOV [2017] 3 SLR 725 at [42].

Prayer 4 prays for Maniam J’s recusal on the ground of apparent bias as Maniam J was previously a lecturer at the Singapore Management University where Prof Kong was Vice Provost. This information does not give rise to any reasonable suspicion of bias. An oral application to this effect was also made in the course of RA 316, which Maniam JC (as he then was) dismissed.

The Court of Appeal’s guidance in BOI v BOJ on such matters at [141] remains apt:

Finally, coming to Prayer 5, there is no legal basis for a litigant to pray for any specific judge hear her case, and for good reason. Prayers 3 and 4 concern unfounded contentions for judges to be recused. Prayer 5 is a prayer for a specific judge to hear the OS. Both categories of requests are forms of “judge shopping”, which “is not to be condoned as it is insidious, and undermines and weakens the administration of justice”: see Chee Siok Chin and another v Attorney-General [2006] 4 SLR(R) 541 at [10].

AR’s costs order

Conclusion on RA 351 of 2021

The nature of litigation is such that plaintiffs who lose their cases may find they disagree with a trial court’s decision, and further down the road, the appellate court’s decision. Rather than to ask another court to adjudicate the issue again, better closure may be found in accepting that the chosen forum for dispute resolution has a responsibility to be fair to all parties that come before it. As explained by Court of Appeal’s decision in Lim Geok Lin Andy v Yap Jin Meng Bryan and another appeal [2017] 2 SLR 760 at [44]: