Case Details
- Citation: [2009] SGHC 210
- Title: Perdigao Agroindustrial SA v Barilla GER Fratelli-Societa Per Azioni
- Court: High Court of the Republic of Singapore
- Date of Decision: 18 September 2009
- Judge: Andrew Ang J
- Coram: Andrew Ang J
- Case Number(s): 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 (“Perdigao”)
- Defendant/Respondent: Barilla GER Fratelli-Societa Per Azioni (“Barilla”)
- Procedural Posture: Two registrar’s appeals arising from (i) dismissal of an application to extend time to serve a notice of appeal; and (ii) striking out of the notice of appeal for late service
- Legal Area(s): Civil Procedure – Extension of time; Intellectual Property (trade mark opposition and appeal)
- Statutes Referenced: Rules of Court (Cap 322, R5, 2006 Rev Ed) (in particular O 87 r 4(3))
- Cases Cited: [2005] SGCA 3; [2009] SGHC 210
- Counsel: Colin Phan (Gateway Law Corporation) for the plaintiff; Paul Teo (Drew & Napier LLC) for the defendant
- Judgment Length: 14 pages, 7,279 words
Summary
Perdigao Agroindustrial SA v Barilla GER Fratelli-Societa Per Azioni concerned procedural time limits in the context of an appeal from a trade mark decision. The plaintiff, Perdigao, sought to appeal to the High Court against the Principal Assistant Registrar’s decision allowing Barilla’s opposition in respect of Perdigao’s “BORELLA” mark for Class 30. Although the notice of appeal was filed within the statutory filing period, it was served on Barilla’s solicitors 22 days after filing. Perdigao then applied for an extension of time to serve the notice of appeal.
The High Court (Andrew Ang J) dealt with two linked registrar’s appeals. One appeal challenged the Assistant Registrar’s dismissal of Perdigao’s application for an extension of time. The other appeal challenged the Assistant Registrar’s decision allowing Barilla’s application to strike out the notice of appeal. The central issue was whether the court should exercise its discretion to extend time where the delay in service was attributed to clerical oversight and was said to have been worsened by the relocation of the plaintiff’s solicitors’ office.
On the facts, the court upheld the Assistant Registrar’s approach. The High Court emphasised that, while procedural rules exist to ensure orderly litigation, the discretion to extend time is not automatic. Where the delay is caused by oversight by the clerk or solicitor, the courts require persuasive evidence of causation and justification. The plaintiff’s explanation—office relocation and related administrative disruption—was treated as at best a contributing factor rather than the true cause of the delay, and the procedural consequences followed.
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 Principal Assistant Registrar (“PAR”) issued her grounds of decision. She dismissed Barilla’s opposition in respect of the Class 29 mark but allowed the opposition in respect of the Class 30 mark. Perdigao therefore sought to appeal the PAR’s decision regarding Class 30 to the High Court. On 24 November 2008, Perdigao filed Originating Summons No 1497 of 2008, which was the appeal mechanism from the PAR’s decision.
Perdigao served the notice of appeal on Barilla’s solicitors on 23 December 2008. The timeline mattered because the Rules of Court required that a notice of appeal be filed within a prescribed period, and service was also expected to be carried out promptly. The PAR’s letter enclosing the grounds of decision was dated 22 October 2008 but was received by Perdigao on 28 October 2008. Perdigao filed the notice of appeal on 24 November 2008 and, on the same day, telephoned Barilla’s solicitors to inform them that an appeal had been filed and that service would follow shortly.
However, service did not occur until 23 December 2008—22 days after filing. Perdigao explained the delay as a clerical oversight. In an affidavit affirmed on 16 January 2009, Perdigao’s solicitor, Mr Colin Phan, deposed that service of the Originating Summons was overlooked because the conducting solicitor was called away on urgent business to travel to Tokyo, and because Perdigao’s solicitors were relocating their office premises in December 2008. Perdigao stated that once the oversight was discovered, service was effected immediately upon the solicitor’s return to Singapore on 22 December 2008.
What Were the Key Legal Issues?
The first legal issue was procedural: whether the notice of appeal was filed within time under O 87 r 4(3) of the Rules of Court. The defendant argued that the 28-day period for filing ran from the date of the PAR’s decision (22 October 2008). Perdigao relied on authority suggesting that time runs from the date the decision is given to the appealing party, not merely the date it is made.
The second, more consequential issue concerned service and the court’s discretion. Even if filing was within time, the notice of appeal was served 22 days later. Perdigao sought an extension of time to serve. The legal question was whether the court should exercise its discretion to extend time where the delay was attributed to clerical oversight and where the plaintiff’s solicitors’ office relocation was said to have worsened the oversight.
Finally, the case required the High Court to consider the proper approach to reviewing the Assistant Registrar’s exercise of discretion. The High Court had to determine whether the Assistant Registrar applied the correct legal principles and whether the evidence provided crossed the threshold necessary to justify an extension, particularly in light of binding guidance on delays caused by solicitor or clerk oversight.
How Did the Court Analyse the Issues?
Andrew Ang J began by setting out the procedural background and the competing positions on the computation of time. The Rules of Court provision at the heart of the dispute was O 87 r 4(3), which provides that every notice of appeal must be filed within 28 days after the decision of the Registrar. Barilla’s literal reading was that the period started on 22 October 2008, the date the PAR issued her grounds of decision. Perdigao argued 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, where Kan Ting Chiu J held that time runs from the date the decision was given to the appealing party.
On this point, the Assistant Registrar had ruled in Perdigao’s favour, and Barilla did not appeal that aspect. The High Court therefore treated the filing issue as effectively resolved. The focus shifted to service, because service occurred well after filing and because Barilla objected to service out of time. Perdigao’s extension application was filed only after Barilla objected, on 19 January 2009.
The High Court then examined the quality and sufficiency of Perdigao’s explanation for the delay. At the first hearing before the Assistant Registrar, the affidavit in support of the extension was described as “fairly bare.” The Assistant Registrar nonetheless accepted oral testimony that the office relocation contributed to the delay, and granted an extension but ordered indemnity costs against Perdigao. However, the Assistant Registrar later recalled the earlier order after further evidence and further oral submissions did not establish the required causal link between the relocation and the delay.
A key feature of the High Court’s analysis was the Assistant Registrar’s treatment of the evidence. The supplementary affidavit filed on 3 February 2009 provided particulars of the move but did not explain how the relocation was related to the specific oversight or the 22-day delay. When the Assistant Registrar asked counsel to explain clearly how the move caused the delay, counsel candidly agreed that the move “worsened the oversight.” In the minutes, counsel described the relocation process—packing files, transferring technology, and the solicitor’s other responsibilities—yet the Assistant Registrar concluded that the evidence showed only that the move was a contributing factor, not the cause.
In recalling the earlier order, the Assistant Registrar relied on binding guidance that courts are “not very forgiving” where delay is caused by oversight by the clerk or solicitor. The Assistant Registrar referred to authorities including AD v AE (a Court of Appeal decision by Chao JA and Tan J) and Stansfield Business International Pte Ltd (a High Court decision by Chao JA), which were cited by Barilla. The Assistant Registrar’s reasoning was that the plaintiff had not crossed the threshold of persuading the court that the relocation was the cause of the delay. The court’s discretion was therefore not exercised in Perdigao’s favour.
Although the judgment extract provided is truncated, the High Court’s approach can be understood from the procedural posture and the Assistant Registrar’s reasoning as described. The High Court was effectively asked to determine whether the Assistant Registrar erred in principle or in the evaluation of evidence. In such cases, the High Court typically examines whether the lower tribunal correctly identified the relevant legal test for extension of time and whether it applied that test to the facts. Here, the Assistant Registrar’s emphasis on the insufficiency of evidence and the strictness of the approach to solicitor or clerk oversight indicates a legal framework in which causation and justification must be demonstrated, not merely asserted.
What Was the Outcome?
The High Court dismissed Perdigao’s appeals. The practical effect was that the Assistant Registrar’s decision to dismiss the extension application stood, and the notice of appeal remained struck out. As a result, Perdigao’s appeal against the PAR’s decision on the Class 30 mark did not proceed on the merits in the High Court.
The outcome underscores that procedural defaults—particularly late service—can be fatal even where filing is within time, and even where the delay is explained by administrative disruption such as office relocation, unless the evidence establishes a sufficient causal basis for the court to extend time.
Why Does This Case Matter?
Perdigao Agroindustrial SA v Barilla GER Fratelli-Societa Per Azioni is significant for practitioners because it illustrates the court’s approach to extension of time in the context of appeals from trade mark proceedings. Trade mark disputes often involve multiple stages and tight procedural timelines. This case demonstrates that courts will treat service requirements seriously and will not readily excuse delay where the explanation amounts to clerical oversight.
From a doctrinal perspective, the case reinforces a practical evidential lesson: when seeking an extension for late service, an applicant must do more than provide a general narrative of what went wrong. The applicant must show how the stated circumstances caused the delay. Office relocation may be a relevant background factor, but it will not automatically satisfy the threshold if it does not explain the specific oversight and the precise period of delay.
For litigators, the case also highlights the importance of ensuring that affidavits supporting extension applications are sufficiently detailed at the outset. In this case, the Assistant Registrar initially accepted oral supplementation, but later concluded that the supplementary affidavit and oral evidence still did not establish the necessary causation. The decision therefore serves as a cautionary example of how incremental supplementation may not cure an evidential deficiency.
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
- AD v AE (Court of Appeal decision by Chao JA and Tan J) (as cited in the judgment)
- Stansfield Business International Pte Ltd (High Court decision by Chao JA) (as cited in the judgment)
- Tan Chai Heng v Yeo Seng Choon [1980–1981] SLR 381 (as cited in the judgment)
- [2005] SGCA 3 (as cited in the judgment metadata)
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.