Singapore Press Holdings Ltd v Brown Noel Trading Pte Ltd and Others

JurisdictionSingapore
Judgment Date28 July 1994
Date28 July 1994
Docket NumberCivil Appeal No 81 of 1993
CourtCourt of Appeal (Singapore)
Singapore Press Holdings Ltd
Plaintiff
and
Brown Noel Trading Pte Ltd and others
Defendant

[1994] SGCA 11

M Karthigesu JA

and

L P Thean JA

Civil Appeal No 81 of 1993

Court of Appeal

Civil Procedure–Injunctions–Interim mandatory injunction–Principles governing granting of interim mandatory injunctions–Grant of interim mandatory injunction tantamount to granting substantially whole of relief claimed–Civil Procedure–Judgments and orders–Interlocutory order by judge in chambers–Whether judge had jurisdiction to hear further arguments after interlocutory order had been perfected–Section 34 (1) (c) Supreme Court of Judicature Act (Cap 322, 1985 Rev Ed) and O 56 r 2 Rules of the Supreme Court (Cap 322, R 5, 1990 Ed)

By an agreement entered into between the appellant SPH and the respondent BN, SPH agreed to publish BN's advertisements of its products and business in its newspapers for the period from 1 April 1993 to 31 March 1994. The contract was governed by SPH's standard terms and conditions which were not subject to negotiations. Notwithstanding having published BN's advertisements five times without taking any objections, on 15 April 1993, SPH informed BN by fax that it will not accept the latter's advertisement for publication in its newspapers in its present format. An ex parte interim mandatory injunction was obtained by BN on 19 April 1993 requiring SPH to continue to publish BN's advertisements in accordance with the schedule and the format as agreed until trial or further order.

SPH's application to dissolve the interim injunction was dismissed by the learned judicial commissioner on 28 May 1993 (see Brown Noel Trading Pte Ltd v Singapore Press Holdings Ltd [1993] 2 SLR (R) 840). SPH's application for further arguments under O 56 r 2 of the Rules of Supreme Court (Cap 322, R 5, 1990 Ed) was also dismissed, as the learned judicial commissioner ruled that he had no jurisdiction to hear further arguments once the orders he had made on 28 May 1993 had been drawn up and entered pursuant to O 42 r 8 before the date fixed for the hearing of the further arguments, notwithstanding that the application to hear further arguments had been made and assented to by him within the time limits set by O 56 r 2 (see Brown Noel Trading Pte Ltd v Singapore Press Holdings Ltd [1993] 2 SLR (R) 715). SPH then appealed to the Court of Appeal against the learned judicial commissioner's dismissal of the application to dissolve the interim injunction and his refusal to hear further arguments.

Held, dismissing the appeal on the injunction and allowing the appeal on the issue of further arguments:

(1) The principles governing the granting of interim injunctions, whether mandatory or prohibitory, as stated in Chuan Hong Petrol Station Pte Ltd v Shell Singapore (Pte) Ltd [1992] 2 SLR (R) 1, was adopted as a correct statement of principle governing the granting of interim mandatory injunctions: at [18], [21] and [22].

(2) A judge hearing an interlocutory application for the granting or the dissolution of an interim mandatory injunction was only required to assess the relative strengths of the plaintiff's case as opposed to the defendant's defence: at [25].

(3) The learned judicial commissioner had not exercised his discretion on wrong principles in refusing to dissolve the interim mandatory injunction notwithstanding that the continuance of it would virtually put an end to the action in BN's favour. He used his best endeavours to balance the risk of injustice between BN and SPH and had considered respectively whether a remedy in damages was adequate if BN succeeded at the trial and whether a remedy in damages was adequate if SPH should succeed at the trial: at [28] and [29].

(4) A party aggrieved by an interlocutory order made by a judge in chambers could not proceed on appeal without going through the procedure of applying for further argument in court. The hearing of further argument, if heard in chambers, should be deemed to be a hearing in court for the purposes of s 34 (1) (c)of the re-enacted Supreme Court of Judicature Act. Order 56 r 2 (2) provided the further procedure that was to be followed: at [38] and [39].

(5) Order 56 r 2 (3) permitted the judge hearing further argument to make more firm what might had been tentative or to vary, or set aside the interlocutory order in chambers previously made by him irrespective of whether the interlocutory order had been perfected. It did not vest in him an appellate jurisdiction: at [43].

(6) Order 42 r 8 was no more a rule that provides for good “housekeeping”. The intent and purpose of it was to facilitate the drawing up of orders and judgments once a judge or the court had given a decision and not permit the party against whom the decision went to frustrate or delay the consequences of the decision. It could not override and frustrate the procedure designed by Parliament for the manner in which appeals against interlocutory orders made by a judge in chambers were brought: at [44].

American Cyanamid Co v Ethicon Ltd [1975] AC 396 (refd)

Cayne v Global Natural Resources plc [1984] 1 All ER 225 (folld)

Chuan Hong Petrol Station Pte Ltd v Shell Singapore (Pte) Ltd [1992] 2 SLR (R) 1; [1992] 2 SLR 729 (folld)

Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670 (folld)

J H Rayner (Mincing Lane) v Teck Hock & Co (Pte) Ltd [1988] SGHC 103; [1989] Mallal's Digest 394 (folld)

Locabail International Finance Ltd v Agroexport [1968] 1 WLR 657 (refd)

Shepherd Homes Ltd v Sandham [1971] Ch 340 (refd)

Tan Ah Yeo v Seow Teck Ming [1989] 1 SLR (R) 134; [1989] SLR 257 (distd)

Supreme Court of Judicature Act (Cap 322, 1970 Rev Ed)s 34 (2)

Supreme Court of Judicature Act (Cap 322, 1985 Rev Ed)s 34 (1) (c)

Rules of the Supreme Court (Cap 322, R 5, 1990 Ed)O 42r 8, O 56r 2, O 57rr 9A (10),9A (15)

Rules of the Supreme Court (Amendment) Rules, The (S 515/1992)

Rules of the Supreme Court (Amendment No 2) Rules, The (S 278/1993)

Rules of the Supreme Court (Amendment) Rules, The (S 194/1994)

Unfair Contract Terms Act1977 (c 50) (UK)

Salem Ibrahim and Geraldine Chew (Harry Elias & Partners) for the appellant

Jimmy Yim and Andy Leck (Drew & Napier) for the respondents.

Judgment reserved.

M Karthigesu JA

(delivering the judgment of the court):

1 The appellants, Singapore Press Holdings Ltd (“SPH”) are the publishers, inter alia, of The Straits Times and The New Paper, two daily newspapers printed and published in Singapore. The first respondents, Brown Noel Trading Pte Ltd (“BN”) are retailers and wholesalers of cosmetics, toiletries and perfumeries, carrying on business in Singapore.

2 This appeal arises from the dismissal of SPH's application by Lim Tiong Qwee JC on 28 May 1993 to dissolve an interim mandatory injunction obtained by BN, ex parte, on 19 April 1993 that SPH:

do perform the master contract made between the plaintiffs (BN) and the first defendants (SPH) dated 11 February 1993 by publishing the plaintiffs' advertisements in the first defendants' newspapers in accordance with the schedule and the format as agreed between them until trial or further order.

3 SPH also appeals against the decision of the learned judicial commissioner dismissing their application for further arguments under O 56 r 2 of the Rules of the Supreme Court. The learned judicial commissioner had held that he had no jurisdiction to hear further arguments once the orders he had made on 28 May 1993 had been drawn up and entered pursuant to O 42 r 8 before the date fixed for the hearing of the further arguments notwithstanding that the application to hear further arguments had been made and assented to by him within the time limits set by O 56 r 2.

4 The learned judicial commissioner's judgment on the former question is reported at Brown Noel Trading Pte Ltd v Singapore Press Holdings Ltd [1993] 2 SLR (R) 840 and his judgment on the latter question is reported at Brown Noel Trading Pte Ltd v Singapore Press Holdings Ltd [1993] 2 SLR (R) 715.

5 BN's pleaded case against SPH, supported by an affidavit of their executive director, for the interim mandatory injunction, was that by an agreement entered into between SPH and BN on SPH's standard form of contract dated 11 February 1993 (hereinafter referred to as “the master contract”) SPH agreed to publish BN's advertisements of their products and business, in the form as finalised by BN's advertising agents, in their newspapers for the period from 1 April 1993 to 31 March 1994. This contract was governed by SPH's standard terms and conditions which were not subject to negotiations between the parties. Following this, BN's advertising agents agreed with SPH a schedule of dates on which BN would like the advertisements to be published; a sample copy of the advertisements to be published was also delivered to SPH. SPH then published BN's advertisements of their products and business, operating at BN's outlet at The Promenade, in the editions of The Straits Times of 1 and 7 April 1993 and in the editions of The New Paper of 2, 8 and 15 April 1993.

6 However, on 12 April 1993, so BN contend, a representative of SPH met with representatives of BN and notified them that they were “under pressure” to stop publishing BN's advertisements. BN assumed that the third respondent acting for and on behalf of the second respondent was responsible for this and openly so alleged to SPH's representatives, and so convinced were they that when proceedings were commenced they were made parties and prohibitory interim injunctions were obtained prohibiting them from exerting any influence on SPH. These injunctions were subsequently dissolved and are of no concern in this appeal.

7 BN claim that they protested to SPH that their products were genuine, including those appearing in their advertisement and accordingly the advertisement was lawful. SPH had already published BN's advertisements five...

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