AD v AE

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 07 April 2004
• Neutral Citation: [2004] SGCA 15
• Docket Number: Civil Appeal No 118 of 2003
• Date: 07 April 2004
• Year: 2004
• Published date: 12 April 2004
• Plaintiff Counsel: Nicholas Cheong (Lim Soo Peng and Co)
• Citation: [2004] SGCA 15
• Defendant Counsel: David Rasif (David Rasif and Partners)
• Court: Court of Appeal (Singapore)
• Subject Matter: Whether discretionary power to extend time should be exercised differently where substantive appeal involved custody of child,Appeals,Notice,Civil Procedure,Whether extension of time to serve Notice of Appeal should be granted

7 April 2004

Chao Hick Tin JA (delivering the judgment of the court):

1 This was an appeal against a decision of the High Court granting the respondent’s application for an extension of time to serve a notice of appeal, against a district court order relating to a custody matter, out of time. We allowed the appeal with costs to the appellant, here and below. We now give our reasons.

The background

2 This appeal raised once again the perennial problem as to the circumstances under which the court should extend time to enable a party to file and/or serve a notice of appeal out of time. In particular, it also raised the question whether, where the subject matter of the proposed appeal relates to the issue of the custody, care and control of a child, there is a somewhat more enlightened regime governing the granting of such an extension of time.

3 The appellant was the husband and the respondent, the wife, and they shall be so referred to in this judgment. The parties were married in September 1991. On 29 November 2000, the husband petitioned for divorce on the ground of the wife’s adultery. A decree nisi dissolving the marriage was granted on 20 March 2001. The parties agreed on other ancillary matters except in respect of the custody of three children: the two oldest are girls, X and Y, born on 5 January 1995 and 14 November 1996 respectively; the youngest, a son, C, was born on 6 May 1998.

4 However, following disclosures made by the wife, and subsequent DNA tests carried out, the district judge found that the husband was not the biological father of X and Y. As a result of this discovery, the two girls suffered an identity crisis and having regard to their views, the district judge ordered that it would be in their interest to be in the custody of their mother, with no access to the father. The district judge gave no access to the father in order to ensure that there would not be any accusation of the sort as alleged by the wife regarding an incident which was said to have happened on 27 October 2002. As regards the son, the district judge, having noted the close bond between father and son and the express wishes of the son, granted custody of him to the father, with weekend access to the mother. These orders of the district judge were made on 26 May 2003.

5 On 11 June 2003, the wife issued a notice of appeal against the orders made by the district judge, particularly in relation to the order granting custody of the son to the husband. However the notice was not served on the husband’s solicitors until 6 August 2003 when her solicitors faxed a copy of it over to the husband’s solicitors. Objection was immediately taken on this late service, a delay of some 49 days. Moreover, it was only on 29 August 2003 that the wife took out an application to court for an extension of time to serve the notice of appeal.

6 Under O 55C r 1(4) of the Rules of Court (Cap 322, R 5, 1997 Rev Ed) (“the ROC”), it is expressly provided that the notice of appeal must be issued within 14 days after the order appealed against is given and served on all other parties within seven days of it being issued.

7 The judge who heard the application for an extension of time to serve the notice of appeal granted the request. He agreed that until a notice of appeal was served there was effectively no appeal. But he felt he should extend time in this case because the appeal concerned the welfare of a child. This was what he stated ([2003] SGHC 258 at [4]).

The issue in the substantive appeal concerned the custody of a [five-year-old] child. In such proceedings the welfare of the child is of paramount importance. That is a statutory decree backed by the common law. In such cases, the interests of the parties themselves are secondary to the interests of the child, and for that reason, I exercised my discretion in granting leave to serve the Notice of Appeal out of time. … Normally, the delay of more than a fortnight would be considered substantial; but in this case, as the substance of the appeal may affect the welfare of the child, I am of the view that an extension ought to be granted.

8 The judge granted the extension notwithstanding the fact that he came to the view that the lapse by the clerk of the solicitors acting for the wife in failing to serve the notice in time was a “poor excuse”.

The law

9 Although in this case the notice of appeal was issued within time and only its service was out of time, it is clear that under the ROC, service of the notice is an essential prerequisite for there to have been an appeal. An application to extend time to serve a notice of appeal filed within time is no different in nature from that to extend time to file a notice of appeal out of time as an appeal would only come into being where the notice is both filed and served. Accordingly, an application for an extension of time to serve a notice of appeal out of time should be treated on the same basis as an application to extend time to file a notice of appeal out of time: see Stansfield Business International Pte Ltd v Vithya Sri Sumathis [1999] 3 SLR 239 at [26], Nomura Regionalisation Venture Fund Ltd v Ethical Investments Ltd [2000] 4 SLR 46 (“Nomura”) and Denko-HLB Sdn Bhd v Fagerdala Singapore Pte Ltd [2002] 3 SLR 357 (“Denko”) at [10].

10 It is settled law, as far as these courts are concerned, that in determining whether an extension of time should be granted to a party to either file or serve a notice of appeal out of time, four factors are to be considered, namely, the length of the delay, the reason for the delay, the chances of the appeal succeeding if the time for appealing is extended and the degree of prejudice to the would-be respondent if the application is granted. This is clear from a line of authorities of our courts: Hau Khee Wee v Chua Kian Tong [1986] SLR 484, Pearson v Chen Chien Wen Edwin [1991] SLR 212 (“Pearson”), Aberdeen Asset Management Asia Ltd v Fraser & Neave Ltd [2001] 4 SLR 441 (“Aberdeen Asset”) and Nomura.

Relevant...