Aberdeen Asset Management Asia Ltd and Another v Fraser & Neave Ltd and Others

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 11 October 2001
• Neutral Citation: [2001] SGCA 65
• Date: 11 October 2001
• Subject Matter: Whether extension should be granted,Extension of time to file notice of appeal,Whether prejudice caused if appeal continues due to extension of time,Notice of appeal,Rationale,When time begins to run if judge decides to hear further arguments,s 34(1)(c) Supreme Court of Judicature Act (Cap 322, 1999 Ed),Test to determine whether appeal has merit,Factors to be taken into account,Appeal from decision of judge-in-chambers,Bozson test,Civil Procedure,When time for filing notice begins to run,Request for further arguments,Merits,Appeals,Judgments and orders,Nature of order,Prejudice,Final or interlocutory,O 56 r 2(2) & O 57 r 4(a) Rules of Court
• Docket Number: Civil Appeal No 600057 of 2001 (Notices of Motion Nos 600053 of 2001 and 600098 of
• Published date: 19 September 2003
• Defendant Counsel: Chelva Rajah SC, Imran Hamid Khwaja, Chew Kei-Jin and Moiz Haider Sithawalla (Tan Rajah & Cheah)
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: Davinder Singh SC and Hri Kumar (Drew & Napier)

(delivering the judgment of the court): Before us are two related notices of motion filed in CA 600057/2001. The first (No 600053/2001) seeks to strike out the notice of appeal on the ground that it was filed out of time. The second (No 600098/2001) seeks an extension of time so that the notice of appeal already filed, even if out of time, would remain valid.

The background

On 20 October 2000, Fraser & Neave Ltd and three others (the respondents in the civil appeal and hereinafter referred to as `F&N and others`) filed a civil suit against Aberdeen Asset Management Asia Ltd and Hugh Young (the appellants in the civil appeal and hereinafter referred to as `Aberdeen & Young`) for defamation on account of a letter published by Aberdeen & Young in the 24 August 2000 issue of the Business Times.

Aberdeen & Young duly filed their defence and pleaded, inter alia, that the publication was not defamatory of F&N and others.

On 27 November 2000, F&N and others filed an application under O 14 r 12 for a determination of the natural and ordinary meaning of certain statements in the letter (`the words`). On 12 January 2001, the assistant registrar ruled that the words in question generally bore the defamatory meaning alleged in the statement of claim.

Aberdeen & Young were dissatisfied with the decision of the assistant registrar and appealed to the High Court. On 21 March 2001, Tan Lee Meng J, after hearing arguments, found the words to be defamatory but he slightly modified that defamatory meaning from that determined by the assistant registrar. He further held that the meaning he determined related only to F&N. He found it inappropriate to determine the meaning of the words vis-.-vis the other plaintiffs, as there are no specific references to the other plaintiffs in the letter. Evidence would be required to show a sufficient nexus between these other plaintiffs and the words. This would have to be determined at the trial.

The order of Tan J, however, has not been extracted as there were and are differences of views between the parties on how the order should be drawn up. The differences do not relate to the meaning of the words as determined by the judge. Because of the differences, the solicitors for F&N and others wrote to the Registrar, Supreme Court (`the Registrar`), requesting that the matter be referred to the judge so that parties could attend before him to settle the order. To-date, there has been no response to that request.

On 27 March 2001, the solicitors for Aberdeen & Young wrote to the Registrar and requested for further arguments on the basis that the order made by the judge was an interlocutory order and cited, in particular, s 34(1)(c) of the Supreme Court of Judicature Act (Cap 322, 1999 Ed) (`the SCJA`). It was only on 18 April 2001 that the Registrar informed the solicitors of Aberdeen & Young that the judge did not require further arguments.

On 8 May 2001, the appellants filed their notice of appeal against the decision of Tan J made on 21 March 2001. This is the notice of appeal which is the subject of the two notices of motion.

Issues

Under O 57 r 4(a) of the Rules of Court, the period for the filing of a notice of appeal against an order of a judge made in chambers is one month from the date on which the order was pronounced. On this reckoning, the order of Tan J having been made on 21 March 2001, the last day for filing the notice of appeal would ordinarily be 21 April 2001. That is the stand taken by F&N and others.

However, the position taken by Aberdeen & Young is that, as the order of 21 March 2001 is an interlocutory order made in chambers, following s 34(1)(c) of the SCJA, the appellant had no right to appeal against that order unless the judge has certified, pursuant to a request for further arguments made within seven days of the order, that he did not require further arguments. In the present case, the request for further arguments was made on 27 March 2001, which was within the prescribed time. Under O 56 r 2(2) of the Rules of Court, unless the Registrar informs the requesting party within 14 days that the judge requires further arguments, it will be deemed that the judge has certified that he requires no further arguments. It follows from this rule that by 9 April 2001, the judge would be deemed to have certified that he required no further arguments. Aberdeen & Young took the view that they had one month from 9 April 2001 to file their notice of appeal. Accordingly, the notice of appeal, having been filed on 8 May 2001, is therefore within time.

Thus the two notices of motion raised the following three issues for the consideration of this court:

(1) Is the order of 21 March 2001 an interlocutory order or a final order?

(2) If the order of 21 March 2001 is an interlocutory order, should the notice of appeal be filed within one month of 21 March 2001 or 9 April 2001?

(3) If the notice of appeal should have been filed by 21 April 2001 (within one month from 21 March 2001) should the court in this instance exercise its discretion and extend time so as to validate the notice already filed by Aberdeen & Young on 8 May 2001?

Interlocutory or final order

Counsel for F&N and others, Mr Davinder Singh, submitted that the order of 21 March 2001 had finally determined the substantive issue as to the meaning of the words. This issue can no longer be re-opened at the trial. It is a final order. Order 14 r 12 empowers the court to make such a determination which is final even though it does not dispose of the entire action. Counsel also relied upon a Privy Council decision from New Zealand, Strathmore Group v Fraser [1992] 2 AC 172, where the Privy Council held that a decision on a preliminary issue was a final order.

As early as in 1967, this court had the occasion to consider the question as to the proper test to be applied in determining whether an order was interlocutory or final. That was the case of Tee Than Song Construction Co v Kwong Kum Sun Glass Merchant [1965-1968] SLR 230 [1967] 2 MLJ 205 . There, the court noted that there were two prevailing tests. One was enunciated in Salaman v Warner [1891] 1 QB 734 and the other in Bozson v Altrincham Urban District Council [1903] 1 KB 547.

The Salaman test, which is also known as the application test, was formulated as follows by Fry LJ (supra at 736):

... an order is `final` only where it is made upon an application or other proceeding which must, whether such application or other proceeding fail or succeed, determine the action. Conversely ... an order is `interlocutory` where it cannot be affirmed that in either event the action will be determined.

The Bozson test, which is also known as the order test, is, in the words of Lord Alverstone, in these terms:

Does the judgment or order, as made, finally dispose of the rights of the parties? If it does, then ... it ought to be treated as a final order; but if it does not, it is then ... an interlocutory order.

The court in Tee Than Song Construction expressed its preference for the Bozson test as being the correct test to adopt in determining the question whether an order was interlocutory or final in the context of s 68(2) of the Courts of Judicature Act 1964 (the predecessor provision of the present s 34(1)(c)).

Later in 1992 in Rank Xerox (Singapore) v Ultra Marketing [1992] 1 SLR 73 , which was a case concerning an order granting conditional leave to defend, this court revisited the case law on the subject and reaffirmed the view that the Bozson test was the correct test to apply. It held that `the rights of the parties` in that test referred to `the substantive rights in dispute in the particular action`. Accordingly, an order granting conditional leave to defend was an interlocutory order.

This view was again reaffirmed by this court in the subsequent case Ling Kee Ling v Leow Leng Siong [1996] 2 SLR 438 .

It seems to us that it must be a rather exceptional sort of a case where, applying the Salaman test, the order obtained would be held to be final. This is because that test requires that whatever order made on the application must determine the action, irrespective of whether the application succeeds or fails. We can understand that where an application succeeds that that could determine an action. It is more difficult to envisage a situation where the application fails and yet the action is determined. As we see it, under the Salaman test, few orders obtained would be held to be final. In most instances, the orders would be interlocutory in nature.

In our view, the Bozson test seems more logical. We will illustrate it by a simple O 14 application for summary judgment. In accordance with the Salaman test, a summary judgment obtained on such an application would not be a final order because the test requires that even if the application fails, it should also have determined the action. This will not be so in an O 14 application. If the application for summary judgment fails, the action would certainly not be determined. But, if the application should succeed, it will be a final order, applying the Bozson test. This accords with reality and common sense. But under the Salaman test, this is only an interlocutory order.

We now turn to examine Strathmore Group v Fraser (supra) which is relied upon by F&N and others. There, the petitioner sued its former directors for, inter alia, breach of fiduciary duty. In defence the respondents contended that there had been a compromise between them whereby the petitioner had agreed to abandon those claims. In reply, the petitioner alleged that there was no compromise, or alternatively, that it had been cancelled. The compromise issue was tried as a preliminary issue. Evidence and arguments were also tendered as to the cancellation issue. The first instance judge held that there was no binding compromise. The Court of Appeal of New Zealand reversed that decision and held that the...