Lai Swee Lin Linda v Attorney-General

JurisdictionSingapore
CourtHigh Court (Singapore)
Judgment Date07 December 2005
Date07 December 2005
Docket NumberCivil Appeal No 87 of 2005
Lai Swee Lin Linda
Plaintiff
and
Attorney-General
Defendant

[2005] SGCA 58

Yong Pung How CJ

,

Chao Hick Tin JA

and

Andrew Phang Boon Leong JC

Civil Appeal No 87 of 2005 (Notice of Motion No 81 of 2005)

Court of Appeal

Civil Procedure–Appeals–Notice–Whether extension of time to file and serve notice of appeal should be granted where substantial delay resulting from inability to furnish security for costs due to financial difficulty–Order 3 r 4, O 57 r 17 Rules of Court (Cap 322, R 5, 2004 Rev Ed)–Civil Procedure–Appeals–Whether consolidation of appeals against distinct orders arising from separate actions without order of court irregular–Whether irregularity may be cured through exercise of court's discretion–Order 4 r 1 (1) Rules of Court (Cap 322, R 5, 2004 Rev Ed)–Civil Procedure–Striking out–Whether appeal against striking-out order barred due to appellant's non-compliance with s 34 (1) (c) Supreme Court of Judicature Act–Section 34 (1) (c) Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed)

The appellant consolidated, in a single notice of appeal, two appeals against distinct orders arising from separate actions to avoid having to furnish two sets of security for costs. The first appeal concerned an order refusing a stay of bankruptcy proceedings that the respondent had commenced against the appellant. The other appeal was against a decision to strike out certain paragraphs from the appellant's statement of claim in a separate action brought against the respondent regarding the termination of her employment (“the employment action”). The relevant parts of the appellant's statement of claim were struck out on the grounds that they were either an abuse of process or scandalous (“the striking-out order”). The paragraphs struck out as being an abuse of process related to the appellant's application for judicial review and her claim for the costs of an earlier action in which she sought leave to issue certiorari (“the public law action”).

The respondent applied to set aside the appeal against the striking-out order on the following grounds: (a) there had not been proper consolidation of the two appeals; (b) the appellant had not complied with s 34 (1) (c)of the Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) (“the SCJA”) vis-à-vis the striking-out order; and/or (c) the appellant had filed and/or served her notice of appeal against the striking-out order out of time.

Held, setting aside the appeal against the striking-out order:

(1) The appellant's consolidation of the appeals was irretrievably flawed. It could not ever have been intended for O 4 r 1 of the Rules of Court (Cap 322, R 5, 2004 Rev Ed) (“ROC”) to apply to appeals. Order 4 r 1 referred to “causes or matters” that had yet to be tried and “causes” and “matters” did not fall within the natural meaning of an “appeal” but, rather, were concerned with trials. Indeed, the appellant was not at liberty to unilaterally consolidate the appeals without an order of court and then seek what was in effect ex post facto leave from the court to consolidate the appeals pursuant to O 4 r 1: at [19] and [20].

(2) Where a party wished to appeal against orders made in different actions, the ROC required separate notices of appeal to be issued for each order, even if the actions had been tried together. This would not be an appropriate case for the court to exercise its discretion under O 2 r 1 (2) of the ROC to cure this irregularity as the appellant's reasons for consolidating the appeals centred on financial convenience. Further, the appeal against the striking-out order was also “hopeless”: at [24] to [26].

(3) It did not seem that the striking-out order was clearly an interlocutory one as it was plausible to argue that this particular order did in fact finally dispose of the rights of the parties in the proceedings in so far as alleged liability with regard to administrative law was concerned. However, it was not necessary to rule on whether or not the appellant had failed to comply with s 34 (1) (c)of the SCJA given that neither party had addressed this issue: at [40] to [42].

(4) In order to ascertain whether or not the court should extend the time for filing and/or serving a notice of appeal, these factors should be utilised: the length of delay, the reasons for the delay, the chances of the appeal succeeding if time for appealing were extended, and the prejudice caused to the would-be respondent if an extension of time was in fact granted. Applying these principles, the court was not persuaded that the appellant ought to be granted an extension of time to file and serve her notice of appeal against the striking-out order: at [45] and [46].

(5) The period of delay was more than four times the prescribed period. Also, the appellant's financial difficulties in furnishing the requisite security for costs were not per se sufficient to justify an extension of time: at [47] and [48].

(6) The chances of the appeal against the striking-out order succeeding were “hopeless”. The appellant's claim for costs in the earlier public law action had already been dealt with by the court in earlier proceedings and was therefore res judicata and an abuse of the process of court pursuant to O 18 r 19 (1) (d)of the ROC. The appellant's application for judicial review was also an abuse of the process of court as the issue of judicial review had also been determined in the same earlier proceedings. Finally, the paragraphs found to be scandalous were irrelevant to the appellant's claim and were intended to garner sympathy for the appellant whilst simultaneously casting needless aspersions on her former superiors: at [49] to [51], [68] and [69].

(7) Whilst an extension of time would not cause prejudice to the respondent, it was clear that, taking all the circumstances as a whole and the application of the first three factors in particular, there were no grounds to merit the exercise of this court's discretion to grant an extension of time to file and serve the notice of appeal out of time: at [70] and [71].

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Tohru Motobayashi v OR [2000] 3 SLR (R) 435; [2000] 4...

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