Lam Hwa Engineering & Trading Pte Ltd v Yang Qiang

Lai Siu Chiu J:

[2] Yang Qiang (“the Respondent”) was a foreign Chinese worker who instituted a personal injury claim against Lam Hwa Engineering & Trading Pte Ltd (“the Appellant”). However, on the first day of the trial, the action was settled between both parties, with a final judgment dated 25 July 2011 being entered against the Appellant by consent.

(a) the Respondent’s return air tickets to Shanghai, totalling $1,113.00; and

(b) the Respondent’s expenses incurred in China to travel to and from the Pudong International Airport in Shanghai, totalling $95.00.

[4] The Respondent subsequently sought a review before the DJ of the DR’s decision in disallowing his travel expenses. Both parties were represented by counsel at the various proceedings below.

[5] In reversing the DR’s decision (on 6 February 2012), the DJ, in the GD, held that the Respondent was entitled to recover his travel expenses within China and also his airfares to and from Singapore for the trial (see the GD at [13]).

[6] The DJ referred to the decision of the Court of Appeal in Rajabali Jumabhoy and Others v Ameerali R Jumabhoy and Others [1998] 2 SLR(R) 576 (“Jumabhoy”), which the Appellant had relied on to support its case. According to the DJ, Jumabhoy merely stood for the proposition that “a party to an action in court is not entitled to claim for his attendance in court” (see the GD at [16]), but did not deal with the “entirely different proposition” as to whether the travel expenses to attend court in Singapore should be claimable (see the GD at [17]). Since the Court of Appeal did not deal with the latter issue, the DJ rejected the Appellant’s interpretation of Jumabhoy.

[7] The DJ then held that the Appellant, being a tortfeasor, must take the consequences that flowed naturally from its negligence. One of the consequences was that the Respondent had to mount an action in Singapore, and therefore had to travel to and from Singapore. These expenses, according to the DJ, were “incurred only because the [Appellant] was liable to [the Respondent] for causing injury, in the first place” (see the GD at [20]). The DJ further elaborated that the Respondent was a foreign worker who, upon suffering the injury, was not able to continue working and therefore could not have stayed on in Singapore even if he had wanted to. The Respondent’s travel expenses were therefore “reasonably incurred” pursuant to O 59 r 27(2) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“the Rules”), which states:

[8] In the result, the DJ allowed the Respondent’s claim for travel expenses in the sum of $1,208.

[9] In its submissions before this Court, the Appellant relied on O 38 r 22 and O 35 r 1 of the Rules, which state:

[12] The Appellant also relied on various cases from other Commonwealth jurisdictions, which will be dealt with in detail below.

[13] The submissions of the Respondent, on the other hand, were grounded on the general notion that all reasonable disbursements incurred by a successful party should be recoverable. The Respondent submitted that if travel expenses are not allowed to be recovered, this would cause grave injustice as it would mean that poor, foreign plaintiffs (who have no choice but to commence legal proceedings in Singapore) would not be able to afford the travel expenses to pursue their claim.

[14] In response to the Appellant’s reliance on the Rules to draw a distinction between a litigant and a witness, the Respondent submitted that O 38 r 22 is “not a proposition for drawing a distinction between a [litigant] and a witness”. According to the Respondent, O 38 r 22 merely provides for the recovery of a witness’s expenses, but does not state that a litigant to an action cannot claim the same as part of reasonable disbursements. The Respondent also claimed that “[i]n practice, parties have always been able to claim travel expenses as reasonable disbursements”.

[16] I have come to this view having considered the legal position on the issue (as framed above at [1]) in Singapore and also in other Commonwealth jurisdictions, as I shall now explain.

[17] While recognizing that there is no direct authority on this point, the Appellant sought to convince this Court that the law in Singapore prohibits the Respondent from recovering his travel expenses on two grounds:

(a) first, that O 38 r 22 and O 35 r 1 of the Rules should be read as allowing only a witness, but not a litigant, to recover travel expenses to court; and

(b) second, that such a result necessarily flows from the decision of the Court of Appeal in Jumabhoy.

[18] I disagree with the Appellant on both grounds for the following reasons.

[19] Firstly, contrary to the Appellant’s submission, O 35 r 1 of the Rules does not make it mandatory for a litigant to attend court in person because he could always instruct counsel to appear on his behalf. This is clearly stated in Singapore Civil Procedure 2013 (G P Selvam gen ed) (Sweet & Maxwell Asia, 2013) at para 35/1/2:

The premise of the Appellant’s submission – that O 35 r 1 obliges the Respondent to travel to and appear in court – must therefore be qualified. More importantly, it does not follow logically that just because O 35 r 1 compels a litigant-in-person to appear in court, his travel expenses are therefore non-recoverable.

[27] Even though the issue of travel expenses was not present in Chorley at all, the Appellant highlighted the quote from Lord Coke (emphasized above) to argue that the travel expenses of a litigant, as with his “loss of time” in court, are not recoverable. In my respectful view, it is not clear whether Lord Coke had indeed envisaged that travel expenses for all purposes incurred by a litigant are not recoverable. Nevertheless, what is important is whether the jurisprudence in England has since proceeded or developed on the basis that travel expenses for all purposes incurred by a litigant should not be recoverable. While the Appellant would wish to submit it is so, the subsequent English cases below would suggest otherwise.

[29] The proposition that a litigant was “not entitled to any allowance, but as a witness he was entitled to an allowance like any other witness, and none the less because he was also a party litigant” [emphasis added] contradicts the Appellant’s case that all travel expenses incurred by a litigant are not recoverable. It is clear after Harbin v Gordon that while some travel expenses incurred by a litigant (ie, to instruct counsel, to attend a watching brief in court) are not recoverable, travel expenses incurred for the purposes of attending court as a witness should be recoverable. This proposition of Buckley LJ has since been cited and applied in England in Gibbs v Gibbs [1952] P 332 (“Gibbs”) and Ammar v Ammar [1954] P 468 (“Ammar”), and also in Australia in Rowan v Cornwall (No 6) [2002] SASC 234 (“Rowan v Cornwall”).

[30] In Ammar, the wife filed a petition for divorce against the husband and alleged cruelty. The husband was resident in Cyprus and also qualified as a legally assisted person. An application was made by summons on his behalf for his evidence to be taken in Cyprus before a special examiner, but the wife objected to it and various points or questions of general interest were raised before Sachs J. The first point which Sachs J had to deal with (at 470) was “whether the expenses of the husband attending court in such a case are allowable on a taxation under the Third Schedule to the Act of 1949 [viz, the Legal Aid and Advice Act 1949 (c 51) (UK)]” [emphasis added]. He then continued (likewise at 470):

[31] From the above cases, it seems to me that in England, a litigant will be entitled to recover travel expenses which are necessarily incurred for the purposes of attending court as a witness. I now turn to consider whether this proposition has similarly been articulated in Australia and Canada as well.

[32] In Cachia v Hanes (1994) 179 CLR 403 (“Cachia”), the issue before the High Court of Australia (“HCA”) was whether the claims of the appellant, a litigant-in-person, for (a) compensation for the loss of his time spent in the preparation and conduct of his case and (b) travel expenses associated with the preparation and conduct of his case should be allowed. The majority in the HCA dismissed the appellant’s claims and held (at 410-411):

[33] These two paragraphs were, once again, cited by the Appellant to suggest that a litigant’s time and travel expenses are “unrecoverable in principle”. However, this ignores the fact that the travel expenses that were disallowed in Cachia were “associated with the preparation and conduct of the appellant’s case”. The distinction between travel expenses incurred for preparation work or for the hearing of judgment as opposed to those incurred as a witness was recognized by the HCA in Cachia just a few pages later (at 417):

[34] This passage reinforces my understanding that a litigant should not be deprived of the reimbursements he would receive as a witness simply because he also happens to be a litigant in the matter. In fact, adopting the reasoning of the HCA, the appellant in Cachia would have been entitled to travel expenses as a witness so long as these expenses fell within the ambit of a “witness’s fee”. This understanding was reiterated less than a decade after Cachia in CGU Workers Compensation (Vic) Ltd v Rees [2003] VSCA 18 (“Rees”), where the Court of Appeal of the Supreme Court of Victoria held (at [12]):

[35] I should point out, however, that the exact purposes of the travel expenses incurred which are recoverable in Australia are not entirely free from doubt. In Willing v Hollobone (1972) 3 SASR 532 (“Hollobone”), the Supreme Court of South Australia (“SCSA”) held (at 534) that:

[36] The SCSA further added in Rowan v Cornwall at [15] that:

[37] In my view, these two decisions by the SCSA could be interpreted as adopting an even wider position than that expressed in Cachia and Rees, given that it is not clear from Hollobone and Rowan v Cornwall whether the travel expenses incurred were solely for the purposes of the litigant attending court as a witness. Nevertheless, it suffices to note that all four Australian decisions would not support the Appellant’s case in the present factual matrix (ie, where the Respondent had incurred travel expenses for the purposes of attending court as a witness). The proposition which I have extracted from the English case law (see above at [31]) can thus be similarly found in the Australian jurisprudence as well.

[38] The two Canadian cases which the Appellant relied on were Dilcon Constructors Ltd v ANC Developments Inc (1996) 42 Alta LR (3d) 132 (“Dilcon Constructors”) and Beloit Canada Ltd v Valmet-Dominion Inc (1991) 39 CPR (3d) 90 (“Beloit Canada”). These two Canadian decisions are similar and unique in that the successful plaintiffs claiming travel expenses were corporations rather than individuals.

[40] In my view, the holding above in Dilcon Constructors does not advance the Appellant’s case, for the simple reason that Mr Osborn was not a witness, and appeared to have attended the trial merely for the purposes of holding a watching brief.

[41] Similarly, in Beloit Canada, the Federal Court of Appeal of Canada (“FCA”) had to decide whether to allow “the living and travelling expenses of Mr. D.J. Veneman, [an in-house] counsel [of the successful plaintiff] for his attendance in Toronto to instruct counsel and assist in the preparation of the appeals” (at [1]). Unsurprisingly, the FCA held that it was (at [5]):

[42] Once again, the travel expenses involved in Beloit Canada were not incurred for the purposes of a litigant (or its representative) appearing as a witness at trial. They were therefore held to be not recoverable by the FCA.

[43] As an illuminating contrast, Bayliner Marine Corp v Doral Boats Ltd (1987) 15 CPR (3d) 201 (“Bayliner Marine”) shows that the proposition which I have identified above (at [31]) can be applied, and was in fact applied, even in a case where the successful litigant was a corporation. In Bayliner Marine, the FCA held (at [16]):

[44] In the same manner, an assessment office of the Federal Court of Canada in Halford v Seed Hawk Inc (2006) 69 CPR (4th) drew a principled distinction between Beloit Canada and Bayliner Marine on the basis that, in Canada, “travel disbursements are recoverable for a party as witness at his own discovery and to testify at trial [as in Bayliner Marine], but not to attend to give instructions [as in Beloit Canada]” (at [147]). The same assessment officer re-affirmed the existence of this distinction in the more recent case of Pizzaro v Canada (Attorney General) (2010) FC 718 at [6].

[45] For the above reasons, I am of the view that the legal position in Canada, similar to that in England and Australia, supports the proposition that a litigant is entitled to recover travel expenses which are necessarily incurred for the purposes of attending court as a witness.

[46] Since the Respondent had sued the Appellant on a personal injury claim, the Respondent would clearly have been a necessary witness should the matter have proceeded to trial. I therefore hold that the Respondent is entitled to claim his travel expenses as disbursements under O 59 r 24(1)(c) and that the sum of $1,208 is recoverable under O 59 r 27(2) of the Rules.

[47] Since neither the common law nor the Rules have made it clear that travel expenses incurred by a litigant for all purposes are not recoverable as disbursements, I am convinced that this decision is the just and fair outcome on the facts. As the DJ has taken pains to point out (see above at [7]), the Respondent was forced to leave Singapore because he was injured and could no longer work. His sole reason for incurring the travel expenses was to attend the trial of the action as a key witness. Denying such plaintiffs their right to recover their travel expenses (which could be a very significant amount to some of them) might very well be tantamount to denying many of them – however strong their substantive cases are – access to justice.