Case Details
- Title: Perdigao Agroindustrial SA v Barilla GER Fratelli-Societa Per Azioni
- Citation: [2009] SGHC 210
- Court: High Court of the Republic of Singapore
- Date: 18 September 2009
- Judge: Andrew Ang J
- Case Number: OS 1497/2008, RA 62/2009, RA 63/2009
- Tribunal/Court Below: Assistant Registrar (AR); Principal Assistant Registrar of Trade Marks (PAR)
- Plaintiff/Applicant: Perdigao Agroindustrial SA
- Defendant/Respondent: Barilla GER Fratelli-Societa Per Azioni
- Procedural Posture: Two Registrar’s Appeals from AR decisions on (i) dismissal of an extension of time application to serve a notice of appeal and (ii) striking out of the notice of appeal
- Legal Area: Civil Procedure – Extension of time; Trade Marks – appeal from PAR decision
- Key Procedural Rules Referenced: O 87 r 4(3) of the Rules of Court (Cap 322, R5, 2006 Rev Ed)
- Counsel: Colin Phan (Gateway Law Corporation) for the plaintiff; Paul Teo (Drew & Napier LLC) for the defendant
- Reported Length: 14 pages; 7,279 words
- Cases Cited (as per metadata): [2005] SGCA 3; [2009] SGHC 210
- Additional Cases Mentioned in Extract: Pestbusters Pte Ltd v Registrar of Companies [1996] 2 SLR 780; Tan Chai Heng v Yeo Seng Choon [1980-1981] SLR 381; AD v AE (Court of Appeal decision by Chao JA and Tan J); Stansfield Business International Pte Ltd (High Court decision by Chao JA)
Summary
This High Court decision concerns a procedural dispute arising from trade mark opposition proceedings. Perdigao Agroindustrial SA (“Perdigao”) sought to appeal to the High Court against part of the Principal Assistant Registrar of Trade Marks’ (“PAR”) decision. Although the notice of appeal was filed within the statutory time limit, Perdigao served the notice late. The assistant registrar (“AR”) dismissed Perdigao’s application for an extension of time to serve, and allowed Barilla GER Fratelli-Societa Per Azioni (“Barilla”) to strike out the notice of appeal. Perdigao then appealed to the High Court against both AR decisions.
The High Court (Andrew Ang J) addressed two linked issues: first, when time begins to run for filing a notice of appeal under O 87 r 4(3); and second, whether the court should extend time for late service where the delay was attributed to clerical oversight and, in part, to law office relocation. The court’s analysis emphasised the strict approach Singapore courts take to procedural timelines, particularly where delay is caused by oversight, and it scrutinised whether the applicant had crossed the evidential threshold to justify the exercise of discretion.
What Were the Facts of This Case?
Perdigao applied to register the trade mark “BORELLA” in Classes 29 and 30 on 16 September 2003. Barilla opposed the application in two stages: for Class 29 on 23 June 2004 and for Class 30 on 4 August 2004, after the marks had been accepted for publication. The oppositions were heard together at the Intellectual Property Office of Singapore on 22 July 2008.
On 22 October 2008, the PAR issued her grounds of decision. She dismissed Barilla’s opposition in respect of the Class 29 mark but allowed Barilla’s opposition in respect of the Class 30 mark. Perdigao therefore sought to challenge the PAR’s decision as it related to the Class 30 mark.
On 24 November 2008, Perdigao filed an Originating Summons (OS 1497/2008) to appeal to the High Court against the PAR’s decision concerning the Class 30 mark. The notice of appeal was served on Barilla’s solicitors on 23 December 2008. The timeline then became contentious because the Rules of Court require that a notice of appeal be filed within 28 days after the decision of the Registrar, and the parties also disputed when that 28-day period began to run.
Perdigao’s position was that the time should run from when the decision was given to the appealing party, relying on Pestbusters Pte Ltd v Registrar of Companies [1996] 2 SLR 780. Barilla argued for a literal reading that the 28-day period started from 22 October 2008, the date on which the PAR’s letter enclosing the grounds of decision was dated. In any event, the AR accepted that the notice of appeal was filed within time. However, the notice was not served until 22 days later, and it was only after Barilla objected to service out of time that Perdigao applied for an extension of time on 19 January 2009.
What Were the Key Legal Issues?
The first legal issue was procedural and concerned the computation of time for filing a notice of appeal under O 87 r 4(3). The question was whether the 28-day period began on the date the PAR’s decision was dated (22 October 2008) or on the date the decision was given to Perdigao (received on 28 October 2008). This issue mattered because it determined whether the notice of appeal was filed within time.
The second issue was whether the court should grant an extension of time to serve the notice of appeal, given that service occurred on 23 December 2008, well after the relevant period. The AR had to decide whether the delay was sufficiently explained and whether the explanation met the threshold for the exercise of discretion. The delay was attributed to clerical oversight, compounded by the relocation of Perdigao’s solicitors’ office during December 2008, and the court had to determine whether that combination amounted to a proper basis for relief.
Finally, because the AR allowed Barilla’s application to strike out the notice of appeal, the High Court also had to consider whether the AR’s approach to striking out—linked to the refusal to extend time—was correct in law and principle, and whether the AR had properly applied binding authority on delay caused by oversight.
How Did the Court Analyse the Issues?
The High Court began by setting out the procedural history and the competing arguments on time computation. The AR had accepted that the notice of appeal was filed within time, and there was no appeal by Barilla on that point. However, Barilla’s written submissions still maintained that time should run from 22 October 2008. The High Court therefore treated the filing-time dispute as part of the broader procedural context, even though the focus of the appeals was the extension of time for service and the striking out consequence.
On the service delay, the High Court examined the evidence Perdigao provided. Perdigao’s solicitor, Mr Colin Phan, affirmed an affidavit on 16 January 2009 explaining that service of the Originating Summons was overlooked due to clerical oversight and because the conducting solicitor was called away on urgent business requiring travel to Tokyo. In addition, the solicitors were relocating from their previous office to new premises in December 2008. Perdigao’s explanation was that once the oversight was discovered and Mr Phan returned to Singapore on 22 December 2008, service was effected on 23 December 2008.
At the initial hearing before the AR on 2 February 2009, the AR accepted that the affidavit was “fairly bare” but was prepared to accept oral testimony supplementing the reasons for delay, particularly relating to the office relocation. The AR granted the extension but ordered indemnity costs against Perdigao and directed that the order not be extracted until a supplementary affidavit was filed without objection. This procedural step reflected the AR’s willingness to consider the explanation, but also its concern that the evidence might not be sufficient.
Perdigao then filed a supplementary affidavit on 3 February 2009. However, the supplementary affidavit did not explain how the office relocation was related to the 22-day delay in serving the notice of appeal. Barilla objected and requested further arguments, citing Tan Chai Heng v Yeo Seng Choon [1980-1981] SLR 381 to argue that even where solicitors had explained delay (in that case, files being misplaced due to renovations), the court might still decline to exercise discretion if the explanation did not justify the delay. The AR ultimately heard further arguments on 10 February 2009 and probed directly whether the oversight should be excused merely because it occurred during a period of relocation.
The AR’s minutes show that the AR was not persuaded that the relocation caused the delay. The AR asked counsel to explain clearly how the move caused the delay, and counsel candidly agreed that the move worsened the oversight. Counsel’s oral explanation was that during the move, files and boxes were being transported, computers and electronic filing systems fell under the solicitor’s responsibilities, and the solicitor was also involved in trademark counterfeiting infringement matters requiring liaison with the police. The AR, however, concluded that the delay was caused by oversight of the clerk and that the move was at most a contributing factor. In recalling the earlier order, the AR relied on binding authority indicating that courts are “unfortunately not very forgiving” where delay is caused by oversight of a clerk or solicitor.
Crucially, the AR treated the evidential threshold as unmet. It had earlier given Perdigao the benefit of the doubt by assuming the move was the cause, but after further evidence and oral submissions, it concluded that Perdigao had not persuaded it that the move was the cause of the delay. The AR therefore recalled its earlier orders and dismissed Perdigao’s application for extension of time, leading to the striking out of the notice of appeal.
In the High Court, Andrew Ang J’s task was to determine whether the AR had erred in principle or in the exercise of discretion. The High Court’s reasoning, as reflected in the extract, focused on the AR’s approach to binding precedent and the requirement that an applicant demonstrate a causal link between the circumstances relied upon and the procedural default. The court also considered the AR’s view that the authorities did not leave discretion open where the delay was fundamentally attributable to oversight, even if the oversight was “worsened” by other events such as office relocation.
What Was the Outcome?
The High Court dismissed Perdigao’s appeals. The practical effect was that the notice of appeal was struck out, and Perdigao’s trade mark appeal against the PAR’s decision in respect of the Class 30 mark could not proceed in the High Court due to the failure to obtain an extension for late service.
In addition to the substantive dismissal, the decision underscores that procedural relief is not automatic even where the applicant provides some explanation. The court’s outcome therefore reinforces that litigants must ensure timely service and must provide sufficiently detailed evidence demonstrating why the delay occurred and how the asserted circumstances caused the default.
Why Does This Case Matter?
Perdigao Agroindustrial SA v Barilla GER Fratelli-Societa Per Azioni is a useful authority for practitioners because it illustrates the strictness of Singapore courts toward procedural defaults, particularly in the context of appellate timelines. Even where a notice of appeal is filed within time, late service can be fatal unless the applicant can satisfy the court that the delay should be excused. The case demonstrates that the court will look beyond generic explanations and require a clear causal narrative supported by evidence.
For lawyers handling appeals from trade mark decisions (or other specialist tribunals), the case highlights the importance of distinguishing between (i) filing time and (ii) service time. A litigant may be within the filing window but still face strike-out consequences if service is late. This is especially relevant where the appeal is initiated by originating summons procedures that incorporate appellate steps under the Rules of Court.
The decision also matters for how courts treat “oversight” explanations. The AR’s reliance on binding guidance that courts are “not very forgiving” where delay is caused by oversight signals that office relocation, workload pressures, or solicitor travel may not suffice unless the applicant can show that these factors actually caused the procedural default, rather than merely coincided with it. Practitioners should therefore treat this case as a cautionary precedent: procedural discretion is exercised sparingly, and affidavits must be detailed enough to establish causation, not just context.
Legislation Referenced
- Rules of Court (Cap 322, R5, 2006 Rev Ed), O 87 r 4(3)
Cases Cited
- Pestbusters Pte Ltd v Registrar of Companies [1996] 2 SLR 780
- Tan Chai Heng v Yeo Seng Choon [1980-1981] SLR 381
- AD v AE (Court of Appeal decision by Chao JA and Tan J) (as mentioned in the extract)
- Stansfield Business International Pte Ltd (High Court decision by Chao JA) (as mentioned in the extract)
- [2005] SGCA 3 (as per metadata)
- [2009] SGHC 210 (this case)
Source Documents
This article analyses [2009] SGHC 210 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.