Tan Thye Heng v Pan Mercantile (S) Pte Ltd and Another

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JC
• Judgment Date: 09 October 1989
• Neutral Citation: [1989] SGHC 89
• Docket Number: District Court Appeal No 60 of 1988
• Date: 09 October 1989
• Year: 1989
• Published date: 19 September 2003
• Plaintiff Counsel: Loo Dip Seng (Ang & Partners)
• Citation: [1989] SGHC 89
• Defendant Counsel: MP Rai (Niru & Co)
• Court: High Court (Singapore)
• Subject Matter: Appeals,ss 18(2)(h) & 27(1) Supreme Court of Judicature Act (Cap 322),Civil Procedure,O 3 r 5 & O 54 rr 1(1), 1(5), 2 & 3(2) Subordinate Courts Rules 1986,Whether extension of time to be granted by High Court or subordinate court,Leave,Serving leave to appeal to High Court outside prescribed time,O 3 r 5 Rules of the Supreme Court 1970

Cur Adv Vult

The appellant, who was the plaintiff in an MC suit, brought the action to recover damages from the defendants on account of the damage caused to his motor vehicle arising out of a motor accident. The district judge who heard the case dismissed the action with costs on 10 October 1988. The appellant, being dissatisfied with the judgment, filed a notice of appeal on 21 October 1988. However, the notice was not served on the respondents until 25 October 1988.

Under O 54 r 2 of the Subordinate Courts Rules 1986 (SCR), a notice of appeal must be filed and served within 14 days from the date of judgment. Accordingly, the appellant was out of time by one day in so far as service of the notice on the respondents was concerned. The appellant applied by way of summons-in-chambers before the High Court for an order that `the time for the service of the notice of appeal herein dated 21 October 1988 be extended to 25 October 1988`.

The application for extension of time was heard by the learned assistant registrar of the High Court. The respondents raised a preliminary point of jurisdiction. The submission was that this application for extension of time should be made to the subordinate court and not to the High Court. The assistant registrar did not accept this argument of the respondents and went on to grant an order to extend time as prayed for by the appellant. The respondents, being dissatisfied with the decision of the assistant registrar, has appealed to the judge-in-chambers and that is the matter now before me.

Mr Rai for the respondents reiterated his submission that the application to extend time should be made to the subordinate court and not to the High Court. He argued that until and unless the notice of appeal was filed and served, there was no appeal. Accordingly, there was no pending appeal before the High Court upon which the High Court could grant an extension of time. On the other hand, counsel for the appellant contended that there was in existence an appeal the moment the requisite notice of appeal was filed. In his submission, service on the respondents was not critical. He said the mere filing of the notice brought an appeal into being. If there were other irregularities, they fell within the jurisdiction of the appellate court and the appellate court would have the power to deal with them.

The subject of an appeal from a judgment or order of a subordinate court is governed by O 54 of the SCR. Rule 1(1) of that Order provides that an appeal to the High Court must be brought by notice of appeal. The prescribed form for the notice of appeal requires that the notice must be addressed to `the Registrar, Subordinate Courts and to:`. This obviously means that it must be addressed to all the respondents who would be affected by the notice of appeal. This is further reinforced by r 1(5) which requires that the notice of appeal `must be served on all parties to the proceedings`. Then there is r 2 which prescribes that every notice of appeal must be filed and served within 14 days of the judgment or order made.

The first issue which I am asked to address is: is there an appeal where the notice of appeal, though filed, was not served on the respondents within the prescribed time. In my opinion, in the light of the Rules referred to above, there...