VC George J

The defendants had duly filed a notice of appeal against a decision of the senior assistant registrar. When the appeal came up for hearing on 8 April 1991 before me in chambers, the plaintiff respondent was represented by counsel but neither the appellants defendants nor their counsel or solicitors were present. There being nobody to prosecute the appeal it was not heard. It was struck off with costs.

By their application encl (18), the defendants seek to have the said appeal reinstated and for a date to be allotted for its disposal.

Encik WM Chang, counsel for the plaintiff, by way of preliminary objection opposed the application contending that the court had no jurisdiction to reinstate an appeal that had been struck off once the order of striking off had been perfected as was the case here.

Encik Chang first of all correctly pointed out that there is no express rule in the Rules of High Court 1980 allowing the reinstatement or the re-hearing of an appeal from the senior assistant registrar that had been struck off. There is only one rule in the Rules of High Court 1980 that specifically deals with appeals from the decisions of the registrar to a judge. It is O 56 r 1 which has four sub-rules to it. Rule 1(1) is the enabling provision. Rule 1(2) prescribes the procedure for trying such an appeal and sub-r (3) the time frame within which it has to be brought. The last sub-rule, (4), provides that such an appeal shall not operate as a stay of the proceedings unless the court otherwise directs. How the appeal is to be dealt with when it comes on for hearing is not dealt with by this order as is done, say, in O 55 which deals with appeals from subordinate courts to the judge. Inter alia, that order provides by r 5(1) that if the appellant is not present the court may dismiss the appeal. Rule 5(2) sets out what the court could do if the respondent is absent and r 5(3) expressly provides for the court to allow an application to have the appeal re-heard where it had been disposed of in the absence of one or the other of the parties.

Similarly, in respect of the hearing of a summons-in-chambers before a judge, the relevant rules in O 32 deal with various aspects of the proceedings at the hearing. Rule 4(1) provides that the hearing of a summons may be adjourned from time to time. Rule 4(2) provides that if a hearing is adjourned generally the party taking out the summons could have it restored to the list. Rule 5 deals with what the court could do if one or the other of the parties is absent — it could proceed to dispose of the matter. Rule 5(3) provides that if the order disposing of it has not been perfected the court may re-hear the summons. Rule 5(4) provides that when the summons has been dismissed without a hearing by reason of the failure of the party who took out the summons being absent, the court if satisfied that it is just to do so may allow the summons to be restored to the list.

It is to be noted that in respect of a r 5(4) situation, whether the order dismissing the summons has been perfected or not is not relevant. A distinction is made between the situation of the party taking out the summons being absent in which case the application cannot be heard because there would be nobody to move it and a r 5(3) situation where the summons is heard and disposed of on it being successfully moved by the applicant in the absence of the respondent.

In respect of originating summonses, which are dealt by O 28, it is expressly provided in r 1 thereof that O 32 r 5 shall apply in relation to originating summonses as it applies in relation to other summonses. It would seem then that in respect of what should happen at the hearing of an appeal from the registrar to a judge there is a hiatus, a lacuna, in the rules of procedure.

Encik Chang however contended that although O 56 does not have rules dealing with the disposing of appeals from the registrar to a judge it cannot be said that there is a lacuna because O