JUDGMENTS

Civil Procedure — Pleadings — Amendment — Appeal by way of rehearing — Late amendment — No affidavit explaining delay — Introduction of new and potentially dispositive defence — Prejudice — Discretion — When amendment should be refused

Contract — Repudiation — Distinction between breach and repudiation — Election — Contract Act (Cap. 106) — Limitation defence — Futility

Practice and Procedure — Registrar’s decision — Appeal — Rehearing — Discretion to allow amendment — Ketteman & Ors v Hansel Properties Ltd & Ors applied

Appeal from Judge’s ruling refusing an appeal from Registrar’s ruling that action deemed automatically discontinued, pursuant to O.21, r.2(6) RSC, and refusing reinstatement under O.21, r.2(10) RSC, dismissed.

Civil Procedure – Application for leave to appeal to the court of appeal and extension of time to file appeal – factors to consider when allowing leave to appeal – in this case no prospect of success – application dismissed

Criminal law — Bail — Revocation — Accused charged in separate case while on bail — Breach of bail conditions — Failure to remain contactable — Proper exercise of discretion — Appeal dismissed

Criminal Appeal – Extension of time to pay fine – Sentencing discretion – Ability to pay – Unrealistic repayment proposal – No merit in appeal – Appeal dismissed

Criminal Procedure — Application for Leave to Travel Abroad Pending Appeal — Road Traffic Conviction — Change of Circumstances — Risk of Absconding — Appropriate Safeguards — Appeal Hearing Date Fixed — Leave Granted with Enhanced Bail Conditions

Civil: costs of trial; A. awarded damages against Rs for personal injuries but A. 30% contributorily negligent.; Judge ordered costs to A.; O. 59, r. 3(2), RSC-Court’s power to order that part of the costs should not follow the event. Court ordered discount of 10% from Order of costs to Rs for increased costs of trial of contested contributory negligence.
Order: Rs to pay A. 90% of A’s costs.

Civil Procedure-Costs:

(i) Trial-Order 22A, r. 9(3) of Rules of Supreme Court, Cap. 5 not applicable – only offer to settle proceedings was from 2nd R. for BND 85,000; judgment for A. for BND 124,529.92, with interest and costs, more favourable than terms of offer; 1st / 2nd R.’s claim for discount of costs- relevance of J.’s contested finding of A.’s contributory negligence / rejection of some heads of claim; Directions: parties to file submissions in 7 days.

(ii) Court of Appeal – A’s appeal dismissed; A. to pay Ast / 2nd Rs’ costs on standard basis, to be taxed if not agreed.

Civil Law- Appeal allowed: Judge’s dismissal of A.’s claim for loss and damages for wrongful termination of contract of employment set aside. A.’s claim for B$180,000 allowed. Costs: R. to pay A.’s costs below and on appeal, to be taxed if not agreed. A. employed on five-year fixed term contract: no express termination clause; incomplete/missing text. R’s letter to A. of termination of employment asserted A. redundant. Now, R asked Court to imply term in contract of right to termination of employment without cause on notice payment in lieu. Implying term in contract as a matter of fact: test is ‘necessity’; reasonableness is a necessary requirement, but not of itself sufficient to imply a term. Judge erred in relying on s. 92(f) of Evidence Act, Cap.108; written contract not required for contract of employment. Judge erred: in considering terms in contracts of employment of two other employees; finding them to have ‘standard and uniform’ terms; and implying the termination clause there provided into A.’s contracts of employment. Those contracts were different from each other and were not standard and uniform terms. No evidence A. had any knowledge of any of those terms. Term implied by judge, that Respondent had right to terminate Appellant’s employment without cause, not justified in law and failed to meet ‘necessity’ test of implication of terms in fact.

• Default judgment regularly obtained – Allowing appeal from Registrar, Judge set default judgment aside; O. 13, r.8;
• Test in law in Brunei for setting aside default judgment regularly obtained – without fettering Judge’s wide discretion and save very exceptionally, a default judgment regularly obtained will not be set aside unless the defendant demonstrates a defence with a ‘real prospect of success’ – there is no point otherwise in setting aside the default judgment;
• Test derived from application of English and Brunei authorities – Application of Laws Act (Cap. 2) considered;
• Judge mis-stated test but any error of law on the part of the Judge was neither material nor, still less, crucial;
• Judge erred in fact in determining that: there was a triable issue; Appellant bore burden of proving existence of Sub-Contract between parties; Appellant was required to do so at trial. The Appellant having adduced the Sub-Contract in evidence, and the Judge having rejected the allegation of forgery, there was nothing to impugn its existence;
• Court of Appeal entitled to intervene;
• Appeal allowed – default judgment restored.

Headnote: Civil Law A.’s appeal dismissed. Appeal against J.’s finding of contributory negligence and assessment of 30% liability; failure to award damages for Future Loss of Earnings, Loss of ability to carry out DIY, Loss of salary-2018 to 2023; quantum of damages for Loss of Earning Capacity too low

Held: Appellate Court does not interfere with judge’s findings of facts, unless judge is wrong in principle, having heard all the witnesses, has misapprehended the facts or is otherwise plainly wrong.

Contributory negligence: 2nd R. conducted safety briefings-warning to stay 3-5 from operating excavator; in standing 1 m. from operating excavator A. in dangerous position- careless. J.’s assessment of 30% liability not plainly wrong.

Loss of Future Earnings; in choosing to resign from R.’s employment, leaving Brunei to return to Indonesia, two years after returning to work on full salary performing ‘light duties’, A. chose ‘risk of unemployment’, which occurred: A. did not mitigate his loss. J entitled to dismiss his claim.

Loss of ability to carry out DIY- J. entitled to find no evidence to support claim.

Loss of salary, overtime and benefits- September 2018-2023: J entitled to reject claim on basis of A’s choice to resign from R’s employment, leave Brunei and return to Indonesia with associated ‘risk of unemployment’.

Loss of Earning Capacity-quantum: J.’s award of B$40,000 was amount sought by A. at trial. J.
not plainly wrong.

Costs: parties directed to file written submissions.

Sedition