NAIL PALACE (BPP) PTE. LTD. v COMPETITION AND CONSUMER COMMISSION OF SINGAPORE

Facts

The Competition and Consumer Commission of Singapore brought DC/OSS 285/2021 and DC/OSS 286/2021 against Nail Palace (BPP) Pte Ltd (NPBPP) and Nail Palace (SM) Pte Ltd (NPSM), companies providing manicure, pedicure and foot treatments. It claimed they had committed unfair practices under the Consumer Protection (Fair Trading) Act 2003, including misleading representations to a consumer about the need for a fungal treatment package. On 8 August 2022 the District Judge found for the Commission and made declarations, injunctions, a Publication Order and a Notification Order against each company (ORC 2624 for NPSM, ORC 2625 for NPBPP). The companies sought to make further arguments on the publication and notification orders; these were dismissed on 2 September 2022 and further orders (ORC 2622 and ORC 2623) followed on 9 September 2022.

The Notices of Appeal filed on 14 September 2022 in HC/RAS 28/2022 and HC/RAS 27/2022 were expressly against the decisions given on 2 September 2022 only. The companies said they had instructed their former solicitors to appeal against both sets of orders. On 4 January 2023 they applied in HC/SUM 29/2023 and HC/SUM 30/2023 to amend the notices to cover the whole of the District Judge's decision. NPBPP also applied in HC/SUM 156/2023 to adduce a doctor's memo on the visual assessment of toenail fungal infection.

Issues

1. Whether the applications to amend the notices of appeal were in substance applications for an extension of time to appeal, and if so whether the more stringent standard applied
2. Whether the companies satisfied the requirements for an extension of time to appeal against the August 2022 orders
3. Whether NPBPP should be allowed to adduce the doctor's memo as further evidence on appeal under the Ladd v Marshall requirements

Holding

Goh Yihan JC dismissed all three summonses, SUM 29, SUM 30 and SUM 156, and directed the parties to seek directions from the Registry on the hearing of the substantive appeals. Costs of $5,000 were fixed for each summons plus reasonable disbursements.

Reasoning

The judge held that an amendment with a material bearing on the merits, such as adding an appeal against an order not in the original notice, is in substance an application for an extension of time. Leong Mei Chuan v Chan Teck Hock David [2001] 1 SLR(R) 261 did not rule out the more stringent extension standard in such cases; it applies where the circumstances strongly engage concerns of fairness and finality. Relevant factors include whether new points are raised, how much time the applicant had to decide what to appeal, and whether the lower court's orders were distinct and knowingly left out. Otherwise a party could file a threadbare notice in time and add substantive grounds later.

Here the amendments added appeals against ORC 2624 and ORC 2625. NPSM had close to 39 days to decide what to appeal, the two sets of orders were clearly separate, the notice specifically targeted the 2 September decision, and an affidavit filed for a stay of execution showed NPSM knew of both orders. Applying the factors in Lee Hsien Loong v Singapore Democratic Party and others and another suit [2008] 1 SLR(R) 757, the delay of some 110 days was very substantial, and the explanation that former solicitors had not followed instructions was a bare assertion without supporting evidence. The judge was not convinced of the appeal's prospects, and as the Commission acted in the public interest, costs could not compensate the prejudice of further delay in compliance. The same reasoning applied to NPBPP's SUM 30.

On SUM 156, the judge applied the Ladd v Marshall requirements of non-availability, relevance and credibility, applying non-availability more strictly because the hearing below involved significant fact-finding and finally disposed of the dispute. NPBPP's counsel accepted the memo may have been readily available. It was not relevant, since the District Judge's finding was that staff had no basis to diagnose fungal infection by sight, and the memo did not say they could; it said nail scrapings were the gold standard. The doctor had never seen the patient or any photographs, which reduced the memo's weight.

From the judgment