Pearson v Chen Chien Wen Edwin

Judgment Date30 July 1991
Date30 July 1991
Docket NumberOriginating Motion No 19 of 1991
CourtCourt of Appeal (Singapore)
Pearson Judith Rosemary
Plaintiff
and
Chen Chien Wen Edwin
Defendant

[1991] SGCA 50

Yong Pung How CJ

,

Lai Kew Chai J

and

S Rajendran J

Originating Motion No 19 of 1991

Court of Appeal

Civil Procedure–Appeals–Notice–Extension of time for filing notice of appeal–Factors to consider

Pursuant to divorce proceedings between the parties, an order on the ancillary matters was made by a judicial commissioner, which was the subject of an intended appeal by the wife. The notice of appeal was, however, filed out of time and rejected by the court registry. The wife's solicitors had laboured under the mistaken impression that O 3 r 3 of The Rules of the Supreme Court 1970, under which the period of the court vacation in December was excluded from the time for filing and service of any pleading, also applied to a notice of appeal. The wife applied for an extension of time to appeal against the judicial commissioner's order, which application was dismissed by the High Court judge who decided that the application to extend time had to be made to the Court of Appeal. The wife then filed a fresh originating motion for hearing before the Court of Appeal.

Held, dismissing the application:

(1) The application could be considered as an interlocutory motion in the divorce petition. No prejudice would be suffered by the husband if the Court of Appeal treated the wife's application as an interlocutory motion: at [9].

(2) The factors to be considered in deciding whether to grant an extension of time to file a notice of appeal were (a) the length of the delay; (b) the reasons for the delay; (c) the chances of the appeal succeeding if time for appealing was extended; and (d) the degree of prejudice to the would be respondent if the application was granted. The extension of time was a question of discretion. In particular, the chances of the appeal succeeding should be considered as it would be a waste of time if time was extended when the appeal was utterly hopeless: at [15] and [17].

(3) In the present case, the delay was 12 days and there was no indication as to whether any prejudice had been caused by the delay. The error of the solicitors arose from misconstruing a notice of appeal as a pleading and thereby omitting the court vacation in the computation of time. The judicial commissioner had good reasons for coming to his decision. While it was clear that the solicitors had made a bona fide mistake in the computation of time, the application should be on grounds sufficient to persuade the court to show sympathy to the applicant. No such grounds were shown in the present case: at [17], [19] and [20].

Banque Nationale de Paris v Shin Hong Hang Enterprise Pte Ltd [1988] 1 SLR (R) 368; [1988] SLR 439 (refd)

Carroll, In re [1931] 1 KB 104 (refd)

Gatti v Shoosmith [1939] Ch 841; [1939] 3 All ER 916 (distd)

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

Karno v Spratt [1909] WN 251 (refd)

Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942; [1985] 2 All ER 517 (distd)

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

Rules of the Supreme Court1970, TheO 3r 3, O 57rr 4, 17

Supreme Court of Judicature Act (Cap 322, 1985Rev Ed)s 29

Women's Charter (Cap 353, 1985Rev Ed)s 90

Rules of the Supreme Court (UK) O 59rr 4 (1),14 (12)

Sim Mei Ling (Ang J W & Partners) for the applicant

Ho Woon Choon (B Rao & K S Rajah) for the respondent.

Judgment reserved.

Yong Pung How CJ

(delivering the judgment of the court):

1 This was an application to the Court of Appeal for an extension of time to appeal against a court order on ancillary matters, due to a misreading of the Rules of the Supreme Court 1970 by the applicant's solicitors.

2 The parties were married in October 1965. On 29 October 1985, after being married for some 20 years, a divorce petition was filed by the wife. On 16 October 1986, a deed of reconciliation (“the deed”) was entered into by the parties, and this was followed by an application by the husband by way of summons in chambers for the court to approve the deed pursuant to s 90 of the Women's Charter (Cap 353, 1985 Rev Ed). At the hearing of the summons in chambers on 31 October 1986, the wife was absent. On the instructions of the court, a letter was written to her by the husband's solicitors to draw her attention to the court proceedings and on 27 November 1986, she appeared in person and tendered a written submission. As it appeared from this that she was alleging that the deed had not been entered into freely, the court did not give its approval to the deed. Subsequently, her divorce petition was withdrawn by consent on 8 June 1989.

3 On 15 August 1989, a divorce petition was then filed by the husband and on this petition a decree nisi was obtained and later made absolute on 18 December 1990. Before the decree was made absolute, the ancillary matters came before a judicial commissioner on 26 November 1990. After hearing the parties, the learned judicial commissioner ordered that custody of the children be given to the husband with reasonable access to the wife; and he ordered that some rosewood furniture be given to the wife absolutely; but he made no order on maintenance for the wife, and no order as to costs. This court order, in particular the portion relating to maintenance, was the subject of an intended appeal. For this purpose, the notice of appeal would have had to be filed and served under O 57 r 4 within one month of the date of the court order, ie on or before 26 December 1990. Unfortunately for the wife, her solicitors were of the mistaken impression that O 3 r 3, under which the period of the court vacation in December is excluded from the time for filing and service of any pleading, also applied to a notice of appeal. The solicitors made two attempts at filing the notice of appeal on 7 January 1991 and 9 January 1991, but each time the court registry declined to accept it as it was out of time. On the latter date, the solicitors were instructed to see the assistant registrar on 16 January 1991. On that date, the assistant registrar ruled that a notice of appeal was not a “pleading”...

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