Ho Kian Cheong v Ho Kian Guan and Others

Assistant Registrar Vincent Leow:

[1] The genesis of the present action lay in a simple, albeit voluminous application for further and better particulars by the plaintiff against the third defendant. It evolved into a rather different kettle of fish when Mr Tan, counsel for the third defendant raised preliminary objections against the application to the plaintiff’s right to ask for further and better particulars. I dismissed the preliminary objections and felt that it would be useful to set out my grounds for having done so as it touched on a point that commonly occurs in practice.

[2] The facts of this application are not in dispute. On 17 October 2003, the plaintiff’s solicitors wrote to the third defendant’s solicitors to request for further and better particulars. Following the third defendant’s failure to provide the particulars asked for, the plaintiff filed an application for further and better particulars on the morning of 10 December 2003 in Summons-in-Chambers 7579 of 2003 (”SIC 7579 of 2003”). Unknown to the plaintiffs, the third defendant had already prepared her reply. However, she only sent her reply on 11 December 2003 after the plaintiff’s application was filed.

[4] Subsequently, solicitors for the plaintiff went through the particulars provided by the third defendant. As they were of the view that the particulars were deficient, they took out Summons-in-Chambers 589 of 2004 for further and better particulars which came before me on 12 February 2004 (“the second hearing”). At the second hearing, Mr Tan raised the preliminary objections which I dismissed. However, before I discuss why, I will first discuss in greater detail the point upon which Mr Tan’s entire objection was predicated: the fact that the Court had made no ruling on the application at the first hearing.

[5] There are three possible scenarios when an applicant will not get what he has prayed for. First, where the Court dismisses the application. Second, where the court makes an order of “no order”. Third, where the court is silent. Confusion really only arises in relation to the third scenario.

[8] I now turn to the third scenario: that is where the Court is silent. In the course of submissions, I had questioned Mr Lee, counsel for the plaintiff, whether there was any difference between this scenario and one where the Court made an order of “no order”. His reply was

I was surprised at his answer. To my mind, the situation is not necessarily the same and the appropriate interpretation to be drawn from the Court’s silence must depend on the factual matrix surrounding the Court’s silence.

[10] Second, where the Court’s silence means that the Court has decided not to deal with the matter despite being asked to. In this scenario, no decision has been rendered. This would of course be rare as the Court would normally consider all matters before it.

[11] Third, it is also possible for the Court to be silent on a prayer because the parties had not asked the Court to consider the prayer. An example would be the instant application, the effect of which I will delve into further below. It must thus be clear that the implications to be drawn from the Court’s silence in these three cases are different and not necessarily the same as that of an order of “no order”.

[12] With this in mind, I now turn to consider the arguments raised before the Court. Mr Tan raised three grounds, being : (1) the court was functus officio; (2) a party should not be allowed to approbate and reprobate; and (3) it was an abuse of process. I move to his first submission.

[13] The gist of Mr Tan’s submission was that the Court was functus officio given my earlier order made at the first hearing. As authority, he referred me to the case of Re VGM Holdings Ltd (1941) 3 All ER 417. In that case, Bennett J had ordered the respondent to pay a sum of money and further ordered that this order be stayed pending appeal provided that a sum of £5,000 was paid as security. The respondent then applied to Morton J for an order that the security be reduced to £3,000. Morton J declined to give the order stating that Bennett J’s order had already been made, passed and entered. As such, even if Bennett J was sitting on this matter, he would be functus officio. Morton J further stated that the only option open in the present case would be for the respondent to appeal to the Court of Appeal.

[14] Mr Lee did not challenge the doctrine as laid down. Instead, he merely disagreed as to the application of the doctrine on the basis that the Court could not be functus officio as the matter had not yet been adjudicated on and finally disposed of.

[15] I did not agree with either counsel. In my opinion, the issue here was not whether the Court was functus officio. Instead, the proper issue should be whether res judicata estoppel had arisen. I say this because the doctrine of functus officio arises in relation to whether a judge has the ability to change an order that he himself had made previously. The position is clearly stated in the decision of Re Harrison’s Share under a Settlement [1955] 1 All ER 185 where Jenkins LJ stated conclusively at 187 that:

[17] Thus, I turned to consider this matter from the perspective of res judicata estoppel. The applicable law on res judicata is well established: see the Singapore decision of Tan Yeow Khoon and another v Tan Yeow Tat and others [2003] 3 SLR 486, the English decision of Midland Bank Trust Co Ltd and Another v Green and Another [1980] Ch 590 and the Canadian decision of R v Duhamel (No 2) (1981) 131 DLR 352 for an exposition on the law. From these cases, it can be seen that an estoppel on the grounds of res judicata can only be established if it is shown that the:

i. decision was judicial in the relevant sense;

ii. decision was in fact pronounced;

iii. tribunal had jurisdiction over the parties and the subject matter;

iv. decision was final and on the merits;

v. decision determined the same question as that now raised; and

vi. parties to the later litigation were either parties to the earlier litigation or their privies or the earlier decision was in rem.

[22] In the event that I am wrong in holding that no decision had been made, I now turn to consider the effect of the res judicata estoppel here, given that this was an application for further and better particulars which would clearly be an interlocutory matter: per Rank Xerox (Singapore) Pte Ltd v Ultra Marketing Pte Ltd [1992] 1 SLR 73 which adopted the test expounded in Bozson v Altrincham Urban District Council [1903] 1 KB 547. On first sight, it would appear that that there was no reason why res judicata estoppel should not apply with full force even to an interlocutory matter. After all, the policy concerns behind res judicata estoppel – (1) to protect the interest of the community in the termination of disputes; (2) to safeguard the finality and conclusiveness of judicial decisions; and (3) to enshrine the right of individuals to be protected from vexatious multiplication of suits; – appear to apply equally to interlocutory matters: see Re May (1885) 28 Ch D 516, Lockyer v Ferryman (1877) 2 App Cas 519, Green v Weatherill [1929] 2 Ch 213 and Carl-Zeiss Stiftung v Rayner and Keeler Ltd (No 2) [1967] 1 AC 853 for an elucidation of these policies.

[23] However, the Courts have hesitated in applying with full force the doctrine of res judicata estoppel to interlocutory applications. In explaining this approach, I can do no better than to cite the words of Tipping J in Joseph Lynch Land Co Ltd v Lynch [1995] 1 NZLR 37 at 43 who was quoted by Tay Yong Kwang JC (as he then was) in the decision of Transpac Capital Pte Ltd v Lam Soon (Thailand) Co Ltd & Others [2000] 1 SLR 264 at [26] that:

[24] This however does not mean that all interlocutory applications are not binding on parties. In particular, the authorities support the view that a dismissal of an interlocutory application is not final (as opposed to one granting the application) and will not bar a further application on the ground of res judicata estoppel: Hall v Nominal Defendant [1966] 117 CLR 423. In that case, an application was filed to extend time to sue. It was allowed at first instance, but disallowed on appeal. On further appeal, the Australian High Court had to consider whether a Court could grant an extension of time even after a previous application had failed. On this issue, Taylor J (with whom Owen J concurred) held at 440 that:

[25] Any further application is however unlikely to succeed unless different arguments are raised or further evidence in support is adduced. This point was made in the judgment of Mason J in Carr v Finance Corporation of Australia Ltd [1980-1981] 147 CLR 246 where he states:

[26] This can also be seen in WT Lamb & Sons v Rider [1948] 2 KB 331 at 334 where Scott LJ in delivering the judgment of the Court of Appeal stated:

[27] This approach has also been adopted locally in the case of Surge Electrical Engineering Pte Ltd v Powertec Engineers Pte Ltd [Unreported decision of the Singapore High Court in Suit No. 782 of 2002 dated 25 November 2002] from [13] where Lai Siu Chiu J stated that:

[28] It would thus appear that the dismissal of an application does not normally act to bar the applicant from having a second bite at the cherry. The reason for this is simple. Interlocutory proceedings by nature serve to ventilate, conceptualise and crystalise the issues to be decided by the trial judge. As such, they are facilitative in nature and serve to assist the parties in knowing not only their own case, but also the case that they have to meet. Furthermore, interlocutory applications by their nature tend to be taken out at an early stage in the litigation process. As such, the parties often do not possess all the evidence yet. Thus, it would be the case that the parties obtain more evidence especially after the process of discovery has been completed. In such a scenario, an interlocutory application that had earlier failed may now become tenable. Thus, it would appear that both on principle and on the grounds of litigation convenience, the view that the dismissal of interlocutory applications should not attract res judiciata estoppel should prevail.

[29] Additional support for this conclusion can also be drawn from the cases dealing with summary judgment under Order 14 of the Rules of Court (“O14”). In Techmex Far East Pte Ltd v Logicraft Products Manufacturing Pte Ltd [1998] 1 SLR 483 Chao Hick Tin J (as he then was) considered the question of whether a second O14 application may ever be made in an action after the first has been dismissed and no appeal has been brought against that earlier decision. Chao J’s view on this matter can be seen at [15] where he stated:

[30] This approach must however be contrasted to the more permissive decision of TS Sinnathuray J in United Commercial Bank v Yap Cheng Hai and Others [1978-1979] SLR 535. In that case, Sinnathuray J in dealing with the same problem of whether a second O14 application could be taken out after leave to defend had been granted in the first application stated that:

[31] It was perhaps unfortunate that this decision was not highlighted to Chao Hick Tin J in the Techmex case as apparent at [1] where Chao Hick Tin J stated “there does not appear to be a local decision on [this point]”. As such, there appears to be a difference between the two cases as to the conditions that must be satisfied before the losing applicant in the O14 application can take out a second O14 application. Be that as it may, what is clear is that both judges had accepted that res judiciata estoppel does not apply in its full force where the O14 application did not succeed and that it was open to the losing applicant to apply a second time.

[32] Given the above, even if my silence at the first hearing was construed to mean that I had dismissed the substantive prayers in SIC 7579 of 2003, this dismissal would not necessarily prevent the plaintiffs from making a second application. Furthermore, given the factual matrix of the instant application, I would have proceeded to hear it as the application was, in my opinion, justified on the facts.

[33] Mr Tan next argued that the plaintiff was precluded by his actions in taking out this application. Mr Tan based his contention on the principle of approbation and reprobation. The position in relation to approbation and reprobation is clearly stated by Lord Atkin in United Australia Limited v Barclays Bank Limited [1941] AC 1 at 30:

[37] Mr Tan’s last submission was that this application constituted an abuse of process as there was already a pre-existing order on the same subject matter. Thus if the plaintiff wanted further and better particulars, the proper procedure was to appeal against my earlier order. On this point, Mr Tan referred me to the case of Henderson v Henderson [1843-1860] All ER 378 where Wigram VC stated that:

[38] I agreed with the principle articulated above. However, I did not see how it applied to the present case. As I had already stated above, there was no pre-existing order on the same subject matter. As such, I could not see how the plaintiffs could follow what Mr Tan had suggested as being the proper procedure and appeal my decision in the first hearing. There was simply no order to appeal from. Even if the plaintiffs had tried to appeal my decision, what could the judge on appeal do? There was no order to allow the appeal against. The only possible option would be to send the matter back down for determination. As such, I could not agree that there was an abuse of process.

[39] Having dismissed the preliminary objections, I then proceeded to hear the substantive application for further and better particulars and made certain orders. The details of these orders are not material to the preliminary objections and I do not propose to elaborate on them.

[40] The fact that res judicata estoppel does not apply when an application has been dismissed does not then mean that parties are free to repeatedly apply, hoping for a more sympathetic coram. First, repeated applications on the exact same evidence and arguments would of course constitute an abuse of process. Second and more importantly, while I would of course admit that the exercise of discretion can vary from judge to judge, a second application on the same evidence and arguments would normally fail as due respect would be accorded to the earlier decision. It is thus imperative in any subsequent application that the applicant prove to the judge how the new relevant evidence before the Court would change the complexity and nature of the factual matrix before the earlier judge such that the applicant should be entitled to succeed.