Lai Swee Lin Linda v Attorney-General

• Jurisdiction: Singapore
• Judgment Date: 07 December 2005
• Date: 07 December 2005
• Docket Number: Civil Appeal No 87 of 2005
• Court: High Court (Singapore)

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].

Abdul Majid bin Hj Nazardin v Paari Perumal [2002] 2 MLJ 640 (distd)

Aberdeen Asset Management Asia Ltd v Fraser & Neave Ltd [2001] 3 SLR (R) 355; [2001] 4 SLR 441 (folld)

AD v AE [2004] 2 SLR (R) 505; [2004] 2 SLR 505 (folld)

AG v Ng Hock Guan [2004] 3 SLR (R) 253; [2004] 3 SLR 253 (distd)

Ashmore v British Coal Corporation [1990] 2 QB 338 (refd)

Bozson v Altrincham Urban District Council [1903] 1 KB 547 (folld)

Brisbane City Council and Myer Shopping Centres Pty Ltd v Attorney-General for Queensland [1979] AC 411 (refd)

Chan Hiang Leng Colin v Minister for Information and the Arts [1995] 2 SLR (R) 627; [1995] 3 SLR 644, HC (refd)

Chan Hiang Leng Colin v Minister for Information and the Arts [1996] 1 SLR (R) 294; [1996] 1 SLR 609, CA (refd)

Ching Mun Fong v Liu Cho Chit [2000] 1 SLR (R) 53 [2000] 1 SLR 517 (distd)

Christie v Christie (1872-1873) LR 8 Ch App 499 (folld)

De Souza Lionel Jerome v AG [1992] 3 SLR (R) 552; [1993] 1 SLR 882 (distd)

Denko-HLB Sdn Bhd v Fagerdala Singapore Pte Ltd [2002] 2 SLR (R) 336; [2002] 3 SLR 357 (folld)

Gleeson v J Wippell & Co Ltd [1977] 1 WLR 510 (folld)

Greenhalgh v Mallard [1947] 2 All ER 255 (refd)

Haco Far East Pte Ltd v Ong Heh Lai Francis [1999] SGHC 152, HC (folld)

Haco Far East Pte Ltd v Ong Heh Lai Francis [1999] 3 SLR (R) 959; [2000] 1 SLR 315, CA (refd)

Hau Khee Wee v Chua Kian Tong [1985-1986] SLR (R) 1075; [1986] SLR 484 (folld)

Henderson v Henderson (1842) 3 Hare 100; 67 ER 313 (folld)

Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (refd)

JH Rayner (Mincing Lane) Ltd v Teck Hock & Co (Pte) Ltd [1988] SGHC 103 (folld)

Johnson v Gore Wood & Co [2002] 2 AC 1 (refd)

Jumabhoy Asad v Aw Cheok Huat Mick [2003] 3 SLR (R) 99; [2003] 3 SLR 99 (folld)

Kwa Ban Cheong v Kuah Boon Sek [2003] 3 SLR (R) 644; [2003] 3 SLR 644 (folld)

Lai Swee Lin Linda v AG [2005] SGHC 182 (refd)

Lai Swee Lin Linda v Public Service Commission [2000] SGHC 162 (refd)

Lee Kuan Yew v Tang Liang Hong [1997] 2 SLR (R) 141; [1997] 3 SLR 178 (folld)

Lim Kok Koon v Tan JinHwee Eunice & Lim ChooEng [2004] 2 SLR (R) 322; [2004] 2 SLR 322 (folld)

Melati, The [2004] 4 SLR (R) 7; [2004] 4 SLR 7 (refd)

Nanang International Sdn Bhd v The China Press Bhd [1999] 2 MLJ 681 (folld)

Ng Hock Guan v AG [2004] 1 SLR (R) 415; [2004] 1 SLR 415 (distd)

Nomura Regionalisation Venture Fund Ltd v Ethical Investments Ltd [2000] 2 SLR (R) 926; [2000] 4 SLR 46 (folld)

Ong Cheng Aik v Dayco Products Singapore Pte Ltd [2005] 2 SLR (R) 561; [2005] 2 SLR 561 (folld)

Oswald Joseph Reichel, Clerk (Pauper), The Rev v The Rev John Richard Magrath, Provost of Queen's College, Oxford University (1889) 14 App Cas 665 (refd)

Pearson Judith Rosemary v Chen Chien Wen Edwin [1991] 2 SLR (R) 260; [1991] SLR 212 (folld)

Pertamina v Thahir Kartika Ratna [1981-1982] SLR (R) 653; [1982-1983] SLR 351 (folld)

Public Service Commission v Lai Swee Lin Linda [2001] 1 SLR (R) 133; [2001] 1 SLR 644 (refd)

Public Service Commission v Lai Swee Lin Linda [2001] SGCA 10 (refd)

Rank Xerox (Singapore) Pte Ltd v Ultra Marketing Pte Ltd [1991] 2 SLR (R) 912; [1992] 1 SLR 73 (folld)

Salaman v Warner [1891] 1 QB 734 (not folld)

Singapore Press Holdings Ltd v Brown Noel Trading Pte Ltd [1994] 3 SLR (R) 114; [1994] 3 SLR 151 (folld)

Stansfield Business International Pte Ltd v Vithya Sri Sumathis [1998] 3 SLR (R) 927; [1999] 3 SLR 239 (folld)

Tan Chai Heng v Yeo Seng Choon [1979-1980] SLR (R) 658; [1980-1981] SLR 381 (folld)

Tan Chiang Brother's Marble (S) Pte Ltd v Permasteelisa Pacific Holdings Ltd [2002] 1 SLR (R) 633; [2002] 2 SLR 225 (folld)

Thamboo Ratnam v Thamboo Cumarasamy and Cumarasamy Ariamany d/o Kumarasa [1965] 1 WLR 8 (folld)

Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273 (refd)

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