Suffian LP:

There was a dispute between the two plaintiffs (respondents before us) and the two defendants (appellants), the matter came before the Court and on 21 April 1978, the learned trial Judge gave oral judgment against the defendants.

The defendants appeal, but unfortunately we do not have the grounds of the learned Judge's judgment.

Mr. Peddie who was counsel for the plaintiffs in the High Court made notes of what the leaned Judge said prior to delivering judgment, and Mr. Pradhan for the two plaintiffs apply for the affidavit of Mr. Peddie containing those notes to be received by us. Mr. Palasuntharam for the defendants oppose the application.

So the question is whether or not we should receive Mr. Peddie's affidavit. It is agreed by Mr. Pradhan that if we do, the notes should first be submitted to the learned Judge for his comment before we proceed to hear arguments on the merits of this appeal.

Under the old rules, the Federal Court (Civil Appeals) (Transitional) Rules 1963, published on 26 September 1963, as L.N. 242, appellants had difficulty about proceeding with their appeals if no grounds had been furnished by the trial Judge, for r. 19(4)(a) provided that the appeal record should contain among other things:

(e) the certificate, if any, given by the Judge of the grounds of his judgment or order or, if a written judgment was delivered, a copy thereof;.

See Tan Kim Leng v. Chong Boon Eng[1974].

To remove this difficulty the new Federal Court Rules 1980, published as P.U. (A) 33, on 7 February 1980, have been differently worded, to make it quite clear that an appeal may proceed when no grounds have been supplied. Rules 68 and 62(4) thereof are relevant. Rule 68 provides:

On the application of [the appellant, the trial Judge] who gave [the judgment appealed from] shall, unless the judgment was written, certify the grounds of such judgment...; but delay or failure to so certify shall not prevent the appellant from proceeding with his appeal.

Note the proviso beginning with the word "but".

Rule 62(4) provides that the written judgment or the grounds thereof must be included in the appeal record prepared for the use of our Court, but this is again subject to a proviso:

provided that the absence of the written judgment or grounds of decision shall not prevent the appellant from proceeding with his appeal.

Cases were cited from England on the procedure in an appeal to the Court of Appeal where there are no grounds. One provision cited is O. 59 r. 12 (previously O. 58 r. 11) which reads:

Where any question of fact is involved in an appeal, the evidence taken in the court below bearing on the question shall, subject to any direction of the Court of Appeal, be brought before that Court as follows:

(a) in the case of evidence taken by affidavit, by the production of printed copies of such of the affidavits as have been printed, and office copies of such of them as have not been printed.

(b) in the case of evidence given orally, by a copy of so much of the transcripts of the official shorthand note as is relevant or by a copy of the Judge's note, where he has intimated that in the event of an appeal his note will be sufficient, or by such other means as the Court of Appeal may direct.

We do not think that decisions on this provision help - for it deals with notes of evidence, whereas here we are concerned with notes of judgment. These decisions are: Earl De Le Warr v. MilesXLV Law Times 424, Thompson v. Andrews[1968] 1 W.L.R. 777. Pitman v. Southern Electricity Board[1978] 3 All ER 901.

Two old cases cited, Malins v. Price41 ER 757 and Cattell v.Corrall160 EE 763, are also not relevant because they too deal with evidence, not judgment.

The provisos to our new Federal Court rr. 68 and 62(4)(e) make it clear that the intention is that an appeal should be allowed to go on even if no grounds of judgment have been supplied by the learned trial Judge. In our judgment, nothing in the new rules prohibits us from looking at