JBO v JBP and JBQ

• Jurisdiction: Singapore
• Judge: Colin Tan
• Judgment Date: 25 November 2014
• Neutral Citation: [2014] SGDC 439
• Court: District Court (Singapore)
• Docket Number: Originating Summons No 519 of 2013, Summons No 9007 of 2014
• Year: 2014
• Published date: 10 December 2014
• Hearing Date: 17 September 2014
• Plaintiff Counsel: Plaintiff / Appellant in Person
• Defendant Counsel: Mr Leong Kheng Kheong (M/s Leong Chua & Wong)
• Subject Matter: Civil Procedure,Appeals,Extension of time,Mental Capacity Act
• Citation: [2014] SGDC 439

District Judge Colin Tan: Background

In October 2013, the Plaintiff filed an application under the Mental Capacity Act for an order appointing him as Deputy for his brother (“P”) (Originating Summons 519 of 2013).

The Plaintiff named P’s wife and daughter as Defendants in the proceedings.

However, the Plaintiff did not produce any medical evidence at all to prove that P lacked mental capacity.

Eventually, the parties agreed that a medical report on P would be obtained and this medical report was tendered to the Court on 30th April 2014¹.

This medical report was dated 1st April 2014 and was written by Dr Chris Tsoi, a Consultant Psychiatrist at the National University Hospital. Dr Tsoi’s conclusions in respect of P were as follows:

“I noted he had ability to retain relevant information related to decisions he had to make. He also had ability to reason and weigh various factors and eventually make judgment accordingly.

Psychiatric Opinion

Based on my assessment and our neuropsychological test results, he has capacity to assign donee for LPA, to manage his own finance and setting up will if he wishes to do so.

He suffered from cognitive impairment after a traumatic brain injury. The cognitive impairment had no sign of deterioration so far. He is not suffering from dementia.”

In the same report, Dr Tsoi also stated that P had been examined by a clinical psychologist in his department and that the results of a neuropsychological assessment done by her were that “the patient had capacity to assign donee for LPA and to manage his own finance”.

When this report was tendered to the Court at a Pre-Trial Conference on 30th April 2014, the Plaintiff stated that he agreed with the medical report and that he wanted to proceed with his application on the basis of this medical report.

The Plaintiff did not dispute the authenticity or contents of the medical report and he also did not state that he wished to get a second opinion.

At the hearing of the Originating Summons on 30th May 2014, the Plaintiff once again confirmed that he accepted the contents of this medical report.

However, he argued that, notwithstanding the psychiatrist’s opinion, P did not have capacity.

The Defendant’s Counsel, on the other hand, argued that the Plaintiff had not demonstrated that P lacked capacity and he relied on section 3(2) of the Mental Capacity Act which provides that a person must be assumed to have capacity unless established otherwise.

In coming to a decision, some of the key considerations were as follows: In Re BKR [2013] SGHC 201, Lai Siu Chiu J cautioned that a “declaration of the incapacity of an individual is not a trivial one”² and therefore the principles set out in the Mental Capacity Act “are to be strictly followed in determining the capacity of an individual”³. Section 3(2) of the Mental Capacity Act states: “A person must be assumed to have capacity unless it is established that he lacks capacity.” The burden of proof lay on the Plaintiff and therefore it was up to the Plaintiff to adduce sufficient evidence to demonstrate that P lacked capacity. In Re BKR, Lai Siu Chiu J had highlighted that the test for mental incapacity is a “two-step test” which involves “a functional component that the individual ‘is unable to make a decision for himself in relation to the matter’, and a clinical component that this inability stems from ‘an impairment of, or a disturbance in the functioning of, the mind or brain’”⁴ and that both limbs of the test had to be satisfied before a person could be found to lack capacity. The Plaintiff had confirmed, both at a Pre-Trial Conference as well as during the hearing itself, that he accepted Dr Tsoi’s medical report, and Dr Tsoi’s medical report very clearly did not support the Plaintiff’s claim that P lacked capacity. In the course of cross-examination, the Plaintiff admitted that he had telephoned P’s employer to ask that P’s employment contract be extended, and he stated that P should work rather than stay at home. This suggested that the Plaintiff knew and accepted that P had, at the very least, a significant degree of mental capacity. Given that the expert evidence relied on by the Plaintiff himself did not demonstrate that P lacked capacity and given that the burden of proof lay on the Plaintiff and, furthermore, that the Mental Capacity Act requires the Court to assume that P has capacity unless proven otherwise, I reached the view that the Plaintiff had failed to prove that P lacked capacity and I therefore dismissed the Plaintiff’s application.

As the Plaintiff was acting in person, I informed him that if he was dissatisfied with my decision, he had the right to appeal and that he had 14 days in which to do so.

Summons 9007 of 2014

The Plaintiff did not appeal within the time permitted to do so.

Instead, on 26th June 2014, the Plaintiff filed an application (Summons 9007 of 2014) for leave to file a Notice of Appeal out of time.

After hearing the arguments put forward by the Plaintiff and the Defendant’s Counsel, I dismissed the Plaintiff’s application.

The Plaintiff has appealed against my dismissal of his Summons application for leave to appeal out of time, and I therefore now set out herein the grounds of my decision in respect of this Summons application.

The law

In Falmac Limited v Charlie Cheng Ji Lai [2014] SGCA 42, the Court of Appeal held that whether the court would extend time for filing a Notice of Appeal would depend on the following four factors: “(a) the length of delay; (b) the reasons for the delay; (c) the chances of the appeal succeeding if time for appealing were extended; and (d) the prejudice caused to the would-be defendant if an extension of time was in fact granted.”⁵

In respect of the third factor above (i.e. the chances of the appeal succeeding), in Lee Hsien Loong v Singapore Democratic Party and others and another suit [2007] SGCA 51, the Court of Appeal held:

“This third factor nevertheless becomes of signal importance where the appeal is a truly hopeless one. In such a situation, notwithstanding even a very short delay, an extension of time will generally not be granted by the court simply because to do so would be an exercise in futility, resulting in a waste of time as well as resources for all concerned. As Yong Pung How CJ put it in this court's decision in Pearson Judith Rosemary v Chen Chien Wen Edwin [1991] 2 SLR(R) 260 (“Pearson”) at [17]: [T]he chances of the appeal succeeding should be considered, as it would be a waste of time for all concerned if time is extended when the appeal is utterly hopeless.”⁶

Decision

The factors which were particularly relevant to the current case were the second and third factors, i.e. the reason for the delay and whether the appeal was hopeless. No significant arguments were raised in respect of the first and fourth factors.

Reason for delay

In respect of the reason for delay, the Plaintiff claimed that he did not know that he had to file his Notice of Appeal within 14 days.

However, I found this somewhat difficult to believe as I had specifically stated at the end of the Originating Summons hearing that if the Plaintiff wished to appeal he had to do so within 14 days.

During the hearing of the Summons application for extension of time, the Plaintiff claimed that he had not heard what I said about the 14 days. However, the Defendant’s Counsel confirmed that he had heard me mention the 14 days.

There were also some doubts about the Plaintiff’s credibility that arose from his statements during the Summons hearing on 17th September 2014.

The Plaintiff challenged a statement in Dr Tsoi’s medical report where Dr Tsoi had stated that P did not suffer from dementia. The Plaintiff stated that he (i.e. the Plaintiff) had a report from “AIC” in his affidavit and that this report stated that P was to be placed in “dementia daycare”⁷.

I asked the Plaintiff where this AIC report was and he referred me to a paragraph in his affidavit. However, that paragraph only contained a bare assertion by the Plaintiff and no report had been exhibited.

When I asked the Plaintiff about this report which he had earlier claimed was in his affidavit, he admitted that did not actually have such a report⁸.

Therefore, it appeared that his initial assertion that he had exhibited this report in his affidavit was not true.

As such, I had some doubts about whether the Plaintiff’s claim that he did not know that he had to file his Notice of Appeal within 14 days was true.

Whether the appeal was hopeless

In respect of the third factor set out by the Court of Appeal (i.e. the chances of the appeal succeeding), I was of the view that the facts were against the Plaintiff’s application.

The Plaintiff had relied on Dr Tsoi’s medical report for the earlier hearing and he had also stated that he...