Lim Chi Szu Margaret and Another v Risis Pte Ltd

• Jurisdiction: Singapore
• Judge: Andrew Phang Boon Leong JC
• Judgment Date: 31 October 2005
• Neutral Citation: [2005] SGHC 206
• Date: 31 October 2005
• Subject Matter: Extension of time,Whether to grant extension of time to file application,Civil Procedure,Application filed out of time,Parties assuming order of High Court judge in chambers interlocutory in nature,Order 56 r 3 Rules of Court (Cap 322, R 5, 2004 Rev Ed), ss 34(1)(c), 34(2) Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed),Application for leave to appeal against order of High Court judge in chambers for interlocutory judgment with damages to be assessed
• Docket Number: Originating Summons No 521 of 2005
• Published date: 02 November 2005
• Defendant Counsel: Tan Tian Luh (Tan and Tan Partnership)
• Court: High Court (Singapore)
• Plaintiff Counsel: Mohd Sadique bin Ibrahim Marican (Sadique Marican and Z M Amin)

31 October 2005

Andrew Phang Boon Leong JC:

Introduction and background

1 The most seemingly innocuous legal proceedings can, on occasion at least, generate (or, in the case of the present proceedings, unearth) awkward legal issues. The present proceedings constitute one such occasion.

2 However, the crucial legal issue in the present proceedings could not be simpler: Should the plaintiffs be granted an extension of time to file an application for leave to appeal (here, to the Court of Appeal), the original application having been filed out of time? Nevertheless, one of the issues that was raised, although (as we shall see) not ultimately vital to the actual outcome of the present proceedings, generated serious implications for appeals in interlocutory proceedings generally. For this reason, amongst others, the present judgment is necessary to attempt to clarify any doubts that would otherwise arise in this particular context.

3 The plaintiffs had interlocutory judgment entered against them, with damages to be assessed. They appealed from the decision of the assistant registrar to the District Court. Their appeal was dismissed and they appealed to the High Court. In other words, they had had a “third bite at the cherry”, but were unsuccessful yet again. They were dissatisfied and wanted a “fourth bite” in the Court of Appeal. For that, leave to appeal was required. Counsel for the plaintiffs filed their application for leave to appeal (in Originating Summons No 521 of 2005 (“OS 521/2005”)). Unfortunately, this particular application was out of time. Not surprisingly, perhaps, counsel for the defendant sought (in Summons In Chambers No 2448 of 2005 (“SIC 2448/2005”)) to strike out this application for failure to comply with s 34(1)(c) of the Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) (“the Act”) or, in the alternative, for failure to comply with O 56 r 3 of the Rules of Court (Cap 322, R 5, 2004 Rev Ed). In response, counsel for the plaintiffs applied (in Summons in Chambers No 2504 of 2005 (“SIC 2504/2005”)) for an extension of time to file their application for leave to appeal.

4 I held that there was no reason to grant an extension of time on the facts before me. There was simply no merit to the application premised even just on what had been done. More importantly and generally, sound grounds based on established principles were not shown meriting an extension of time. For this reason alone, the defendant was entitled to succeed in SIC 2448/2005 and I therefore dismissed the plaintiffs’ application pursuant to SIC 2504/2005 and, accordingly, struck out OS 521/2005. I also held, however, that the plaintiffs had failed to comply with s 34(1)(c) of the Act, although this was not strictly necessary for my decision (being an argument tendered by the defendant in the alternative). For reasons that I will elaborate upon below, although my decision with regard to s 34(1)(c) was correct on the assumption upon which counsel for both parties relied (to the effect that I was considering an interlocutory order), I have, upon further reflection, come to the view that this assumption by counsel was probably erroneous. This, in turn, itself raised an issue as to the nature of an interlocutory judgment, with damages to be assessed and for which I have, to the best of my knowledge, been unable to locate any local authority. This is yet another reason why I thought that writing grounds would be helpful in clarifying the position.

5 In so far as the argument with respect to s 34(1)(c) of the Act is concerned, it is significant to note, at the outset, a point briefly alluded to above. And it is that counsel for both parties assumed that the present proceedings were interlocutory in nature. If, indeed, the proceedings were interlocutory in nature, then counsel for the plaintiffs’ argument to the effect that there was no need to comply with s 34(1)(c) of the Act would – as I shall emphasise below – be both startling as well as contrary to the spirit behind the provision itself.

6 However, this was not the only issue relating to s 34(1)(c). As already mentioned, on further reflection, it seemed to me that the assumption by both counsel in the preceding paragraph might be misconceived to begin with. In other words, although the present proceedings were indeed held in chambers, they might not in fact be of an interlocutory nature so as to bring into operation s 34(1)(c) in the first instance. Indeed, this was the argument that counsel for the plaintiffs ought to have run in order to counter counsel for the defendant’s argument that the applicant had not complied with the requirements in s 34(1)(c). In other words, counsel for the plaintiffs mistakenly conceded that the proceedings were interlocutory in nature. If the proceedings were in fact interlocutory in nature, then s 34(1)(c) ought to have been complied with and I indeed so held. However, as I held that the plaintiffs failed on the facts before me with regard to O 56 r 3, the defendant’s argument with regard to the failure by the plaintiffs to comply with s 34(1)(c) became immaterial in any event. To the extent that there is no conclusive authority to the effect that the proceedings in the present case were clearly final and not interlocutory in nature, my holding with regard to the plaintiffs’ failure to comply with s 34(1)(c) still stands, not least because both counsel argued before me on the basis that the proceedings were interlocutory in nature. Further, the (related) broader implications of the plaintiffs’ argument that there was no necessity to comply with s 34(1)(c) had, as I have pointed out, an importance that justifies an analysis of the spirit and intent behind the provision in the present judgment.

The argument from s 34(1)(c) of the Supreme Court of Judicature Act

The relevant provisions

7 Section 34(1)(c) of the Act reads as follows:

Matters that are non-appealable or appealable only with leave
34.—(1) No appeal shall be brought to the Court of Appeal in any of the following cases:

…

(c) subject to any other provision in this section, where a Judge makes an interlocutory order in chambers unless the Judge has certified, on application within 7 days after the making of the order by any party for further argument in court, that he requires no further argument; …

[emphasis added]

8 The relevant corresponding provision (O 56 r 2) in the Rules of Court reads as follows:

Further arguments on interlocutory orders (O. 56, r. 2)

2.—(1) An application to a Judge for further argument in Court pursuant to section 34 (1) (c) of the Supreme Court of Judicature Act (Chapter 322) shall, subject to the provisions of that section, be made in accordance with practice directions for the time being issued by the Registrar.

(2) Unless the Registrar informs the party making the application within 14 days of the receipt of the application that the Judge requires further arguments, the Judge shall be deemed to have certified that he requires no further arguments.

(3) Upon hearing further arguments, the Judge may affirm, vary or set aside the interlocutory order previously made or may make such other order as he thinks fit. Any such hearing, if in Chambers, shall be deemed to be a hearing in Court for the purposes of section 34 (1) (c) of the Supreme Court of Judicature Act.

Issue one: What constitutes an interlocutory order?

9 As I have already mentioned, both counsel assumed that the proceedings in the main action were interlocutory in nature. This assumption is crucial for the simple reason that if the order of the High Court in the main action in the present proceedings dismissing the appeal of the plaintiffs against the interlocutory judgment against them (with damages to be assessed) was a final one instead of an interlocutory one, then s 34(1)(c) of the Act would not be even potentially applicable in the first instance.

10 The test presently adopted in the Singapore context to distinguish between interlocutory and final orders is clear. It is that laid down in the English Court of Appeal decision of Bozson v Altrincham Urban District Council [1903] 1 KB 547 (“Bozson”), where Lord Alverstone CJ stated the test to be applied as follows (at 548–549):

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.

11 The above test (popularly known as the “order” test) has been preferred to that laid down in the (also) English Court of Appeal decision of Salaman v Warner [1891] 1 QB 734 (and popularly known as the “application” test), where Fry LJ observed (at 736) thus:

[A]n order is “final” only where it is made upon an application or other proceeding which must, whether such application or proceeding fail or succeed, determine the action. Conversely, I think that an order is “interlocutory” where it cannot be affirmed that in either event the action will be determined.

12 As already alluded to above, the test in Bozson is clearly the law in Singapore: see, for example, the Singapore Court of Appeal decisions of Ling Kee Ling v Leow Leng Siong [1996] 2 SLR 438; Aberdeen Asset Management Asia Ltd v Fraser & Neave Ltd [2001] 4 SLR 441 (“Aberdeen Asset Management Asia Ltd”); Rank Xerox (Singapore) Pte Ltd v Ultra Marketing Pte Ltd [1992] 1 SLR 73; Jumabhoy Asad v Aw Cheok Huat Mick [2003] 3 SLR 99; and Lim Kok Koon v Tan JinHwee Eunice & Lim ChooEng [2004] 2 SLR 322; as well as the earlier Federal Court decision (on appeal from Singapore) in Tee Than Song Construction Co Ltd v Kwong Kum Sun Glass Merchant [1965–1968] SLR 230. It is not surprising that this particular test constitutes the emphatic preference in the local context, not least because it is imbued with practical justice and common sense. In this regard, Chao Hick Tin JA, delivering the decision of the court in Aberdeen Asset Management Asia Ltd, helpfully...