A party's absence at trial due to negligence negates the ability to contest the judgment effectively, and procedural fairness is upheld if issues have been previously argued.

Gopal Sri Ram FCJ:

[1] We dismissed this application for leave and made the usual consequential orders. As we have said on previous occasions, this court does not give reasons for granting or refusing leave save in rare cases. This is such a case.

[2] The applicants before us seek leave on several questions which they contend meet the threshold that must be crossed by leave applications. But if you look at the questions carefully enough they are really alien to the fact pattern of this case. And the facts of this case have been thoroughly interrogated by both the majority and dissenting judgments in the Court of Appeal reported in Lembaga Kemajuan Tanah Persekutuan (Felda) & Anor v. Awang Soh Mamat & Ors [2009] 5 CLJ 1. We are therefore spared the task of regurgitating them here. Suffice that we make broad and general reference to them.

[3] The applicants were the second and third defendants at first instance. The first defendant is since deceased. The plaintiffs who are settlers claimed that they had been cheated by the defendants. They claimed damages based on fraud, that is to say, in the tort of deceit. Such damages are usually substantial. The suit was therefore of much importance to both the applicants and the respondents. After the usual preliminary steps the suit was fixed for trial. There is material placed before us that shows that the applicants' solicitors were aware of the hearing date. In fact, solicitors for the respondents took the unusual but cautious step of writing to the applicants' solicitors reminding them of the trial date. Despite this, neither counsel nor solicitors for the applicants appeared before the High Court on the morning of the trial. Counsel for the respondents were most fair. They had the matter stood down to 10.30am to enable the applicants and their counsel to appear. They would have telephoned the applicants' solicitors office but that would have been a wasted exercise as the trial was held on a Sunday - a working day in Kota Bharu but a public holiday in Kuala Lumpur where the applicants' solicitors' office was located. After waiting for a reasonable length of time the court convened. The absence of the applicants and their counsel was noted. The respondents then led evidence in support of their claim. Since the applicants were absent, the evidence of the respondents' witnesses was correctly accepted by the learned judge who awarded the plaintiffs substantial damages.

[4] The applicants came to know about this state of affairs soon after the court pronounced judgment. An application was made to have the judgment set aside. It failed. The judge had a discretion to exercise one way or the other. He had all the relevant material before him upon the issue. He was told that the failure to attend was occasioned by the negligence of the solicitor in the respondents' solicitors' firm who previously had conduct of the matter. He had failed to diarise the trial date. The judge exercised discretion against the applicants. He dismissed their application. An appeal to the Court of Appeal to have that exercise of discretion reviewed failed. So what we really had before us was an attempt to re-open the concurrent exercise of discretion. In accordance with its settled practice that is something that this court will not do. That is not to say that we will never do it. A very strong case will have to be made out for us to grant leave in such a case. Where, for example, it is demonstrated to a conviction that a manifest injustice was visited upon the head of a litigant, we may grant leave. But this is not such a case. The facts make that plain.

[5] Learned counsel for the applicants sought to argue that h