Judgment

Abdoolcader J

(delivering the judgment of the Court)

1. The appellants’ claim as plaintiffs in the substantive proceedings for specific performance by the first respondent of a contract involving the right to work a timber concession in Pahang and for damages against an the respondents jointly and severally was dismissed by Syed Othman FJ (sitting as a judge of the High Court) on 26 January 1980. A notice of appeal against that decision was filed on 25 February 1980 and served on the respondents, solicitors on the same day. The appeal was entered accordingly by the federal registry and given its designated number and the record of appeal was required to be filed on or before 7 April 1980. A draft index for the record was served on the respondents’ solicitors on 2 April 1980 and the record itself was filed in the registry on 5 April 1980 but apparently no copy thereof was served on the respondents or their solicitors as they allege as required by the provisions of r 19(8) of the Federal Court (Civil Appeals) (Transitional) Rules, 1963 which provide that the appellant shall at the the time of filing the record serve a copy thereof on each party who as been served with the notice of appeal. The equivalent provision now operative is r 62(9) of the Rules of the Federal Court, 1980 (‘the 1980 Rules’) which came into force on 1 June 1980. The appeal was set down for hearing at the sitting of this Court commencing 19 May 1981 but on 4 May 1981 the respondents took out a motion to dismiss the appeal as the record of appeal had not been served on them or their solicitors in compliance with the rules even up to the date when the motion was filed.

2. The affidavit in support of the motion to dismiss the appeal disclosed that the appeal had in fact first been fixed for hearing on 12 January 1981 but was taken out of the list for that sitting at the request of the appellants’ solicitors. On 4 March 1981 the respondents’ solicitors wrote to the appellants’ solicitors stating that they had not been served with the record of appeal in compliance with the requisite provision of the relevant rules and requesting that either the record be sent to them as soon as possible under AR registered cover or that an appointment be given for them to collect the record at the appellants’ solicitors’ office. The response to this was a carbon copy to them of a letter dated 9 March 1981 from the appellants’ solicitors to the first appellant enclosing a copy of the respondents’ solicitors’ letter on 4 March referring to the fact that the second appellant was to have served a copy of the record on the respondents’ solicitors and that the appellants’ solicitors had been informed by the first appellant that this had been done and asking for ‘fresh instructions or else it might be too late’, whatever that means.

3. It then appears that the first appellant in an affidavit made in connection with a summons in chambers in the High Court action which was wholly unrelated to the question of service of the record of appeal affirmed that he did himself serve the record on the respondents’ solicitors on 7 April 1980. The respondents’ solicitors took cognizance of this averment notwithstanding the fact that it was made in a wholly unrelated context and process and wrote to the appellants’ solicitors on 29 March 1981 referring thereto and stating that all documents received by them by way of service would always have their acknowledgment with the stamp of the firm, the date of service and the signature of the person in the firm accepting service and requesting proof of service of the record of appeal within 14 days. There was no response whatsoever to the eminently reasonable request made in this letter.

4. On 14 May 1981, just five days before the respondents’ motion and the appeal were due to be heard, the first appellant made an affidavit stating that he did serve the record of appeal on the respondents’ solicitors. If indeed he did so, he should and could have made an affidavit of service under the provisions of r 73 of the 1980 Rules which mutatis mutandis apply the provisions of O 62 r 9 of the Rules of the High Court, 1980 requiring particulars to be stated therein of who effected service and on whom, the day of the week and date on which it was served, where it was served and how in form (a) of Form 137 thereof. Not only has this not been done but the first appellant in his affidavit of 14 May did not and could not specify the person on whom he alleges he effected service and even the date and place this was done, and could not furthermore say if he had in fact taken any acknowledgment but said that if there was one, he thought he had mislaid it. In the face of all this we certainly could not accept the allegation of service of the record on the respondents’ solicitors by the first appellant and all the more so as the appellants’ solicitors in their letter of 9 March 1981 clearly referred to the fact that the service had supposedly been effected by the first appellants’ brother, the second appellant, and not by the first appellant although the first appellant in his affidavit of 14 May affirmed that he had told his solicitors that he himself had effected service a few days after doing so.

5. It is clear therefore that there was no effective response whatsoever to the complaint by the respondents’ solicitors that the record of appeal had not been served on them until after the motion to dismiss the appeal had been filed although the respondents’ solicitors had by their letter of 4 March 1981 offered to accept the record well out of time almost a year after it should have been served and they even went so far as to offer to collect the record by appointment at the appellants’ solicitors’ office. It was only on 16 May 1981, some three days before the respondents motion and the appeal were due to be heard, that a copy of the record of appeal was served on the respondents’ solicitors, and the first appellant in his affidavit of 14 May in language appropriate to a pugilistic contest, said that he would be serving ‘another copy’ of the record on the respondents’ solicitors as he ‘(did) not wish to be prejudiced in any way in (his) attempt to get justice by any technical knock-out’.

6. We have in our judgment in Pow Hing v Registrar of Titles, Malacca [1981] 1 MLJ 155, 157 (at page 157) set out an exposition of the mandatory-directory dichotomy in relation to statutory requirements and it is only necessary to add in the context of the matter before us that even in relation to directory provisions substantial compliance is still necessary and that the failure to observe directory requirements may also lead to invalidity. The High Court of Australia so held in Scurr v Brisbane City Council (1973) 47 ALJR 532, 536 and Stephen J said (at page 536): “It is well-established that a directory interpretation of a statutory requirement still necessitates, as a condition of validity, that there should be substantial compliance with the requirement”, citing in support Cullimore v Lyme Regis Corp [1962] 1 QB 718 as providing a modern instance of this. In Coney v Choyce [1975] 1 WLR 422, 434 Templeman J held (at page 434) that the regulations under consideration in that case must be treated as directory as both the object and the terms of the regulations themselves seemed to him to support that, and the consequences of the contrary also seemed to him to require it but he went on to say he accepted there must be substantial compliance with the regulations. Lawton LJ in his judgement in the recent English Court of Appeal decision in Regina v Croydon Justices, ex parte Lefore Holdings Ltd [1981] 1 All ER 520; [1980] 1 WLR 1465 approved and applied this principle, adopting Templeman J’s phrase in Coney v Choyce [1975] 1 WLR 422, 434 as to a ‘substantial compliance with the regulations’.

7. Apropos of the matter before us, there has been no compliance at all with the relevant statutory provision requiring service of a copy of the record of appeal on the respondents or their solicitors, let alone substantial compliance – and this notwithstanding the respondents’ solicitors’ offer to accept service well out of time and even to the extent of offering to collect the record themselves. The request for proof of alleged service by the first appellant was totally ignored and only when faced with the respondents’ motion was the position sought to be rectified and then only some three days prior to the date fixed for hearing of the motion and the appeal. There could therefore in the circumstances be no question of reliance, as Mr Bernatt for the appellants sought to urge us, on the provisions of r 163 of the 1980 Rules that non-compliance with any of these rules, or with any rule of practice for the time being in force, shall not render any proceedings void unless the court or a judge shall so direct, but such proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner and upon such terms as the court or judge shall think fit. The conduct of the appellants in the matter complained of has been wholly inexcusable and nothing short of a blatant and callous disregard for the rules, and it is time that litigants and their legal advisers realise and appreciate that rules are made to be observed and complied with and not flouted or wantonly ignored ad libitum.

8. Mr Bernatt also sought to rely on r 164 of the 1980 Rules which provides that no application to set aside any proceedings for irregularity shall be allowed unless made within a reasonable time, nor if the party applying has taken any fresh step after knowledge of the irregularity. We cannot see how this rule has any application whatsoever to the matter before us as the respondents have certainly taken no fresh step of any sort after knowledge of the irregularity which would preclude their application to dismiss the appeal and they have not in any way been dilatory either in doing so as they voluntarily on their part made the necessary overtures by their solicitors’ letter of 4 March 1981 in giving the appellants and their solicitors an opportunity to rectify and regularise the position but with no response and then again when their request in their letter of 29 March 1981 for proof of the alleged service of the record on them was wholly ignored and left unanswered, and in the circumstances after allowing a decent interval to elapse in the expectation, unrealised however, of some response thereto in view of the categorical assertion by the first appellant on affirmation that he had indeed effected service, they had no alternative but to file this motion to dismiss the appeal.

9. In the premises and for the reasons we have given we allowed the respondents’ motion and dismissed this appeal with costs and directed that the deposit lodged in court by way of security be paid out to the respondents to account of their taxed costs.

Cases

Pow Hing v Registrar of Titles Malacca [1981] 1 MLJ 155; 157

Scurr v Brisbane City Council (1973) 47 ALJR 532; 536

Cullimore v Lyme Regis Corp [1962] 1 QB 718

Coney v Choyce [1975] 1 WLR 422; 434

Regina v Croydon Justices, ex parte Lefore Holdings Ltd [1981] 1 All ER 520; [1980] 1 WLR 1465

Representations

JG Bernatt (M/s Baharuddin, Bernatt, Tan & Ker) for the appellants.

CC Aiyathurai (M/s CC Aiyathurai & Co) for the respondents.

Notes:-

This decision is also reported at [1981] 2 MLJ 194.