Gopal Sri Ram JCA:

Introduction

[1] There are two appeals before this Court. Both appeals are directed against the same decision of the High Court. The first is by Hong Leong Equipment Sdn Bhd For convenience I will refer to it as the appellant. The second is by the Minister of Labour and Manpower whom I shall simply refer to as 'the Minister'. I must first say a few words about how both these appeals came to be heard together.

[2] When we commenced this session on 4 December 1995, we had only the appellant's appeal before us. We were unaware of the Minister's appeal at that time. However, when Encik Sivabalah commenced his submissions on behalf of the appellant, he informed us of it, but went on to say that he was given to understand that the Minister's appeal had been withdrawn and disposed of for failure to lodge the record of appeal within the time limited by the Court of Appeal Rules 1995. He said that those having conduct of the matter on behalf of the Minister were aware that the appellant's appeal had been scheduled for hearing during the present sitting of this Court and that he had been informed that Counsel having conduct of the matter on the Minister's behalf would be present at the hearing. However, when the appeal was called on, Counsel representing the Minister was absent.

[3] In the event, we proceeded to hear the appellant's appeal. It was heard on 5 and 6 December 1995. After he had concluded his submissions on 6 December, Dato' V K Lingham of Counsel for the respondent quite properly informed us that he had discovered from the Registrar of the Court that the Minister's appeal had been neither withdrawn nor disposed of and that it was very much alive. Only the record of appeal was not on file.

[4] I must, in this instance, express my thanks to Encik Zainal, the Registrar in attendance, for his valuable assistance in bringing the relevant status of the Minister's appeal to our attention. But for his timely intervention, I fear that a grave injustice may have been done to the Minister. For we would have proceeded on the erroneous basis that the Minister's appeal was at an end. Although Encik Zainal had requested learned Senior Federal Counsel to attend before us, no one representing the Minister appeared on 6 December.

[5] On learning that the Minister's appeal was intact, we directed learned Senior Federal Counsel having conduct of the brief on the Minister's behalf to appear before us the following day. Further hearing of the appellant's appeal was adjourned until we had heard from learned Senior Federal Counsel. We also requested the Registrar to inform learned Senior Federal Counsel concerned that we were prepared to entertain an application made on short notice for an extension of time for the Minister to deliver his memorandum of appeal. Dato' Lingham, with his usual courtesy, informed us that he would not oppose such an application.

[6] When this Court convened on 7 December, Cik Haliza Aini Othman, learned Senior Federal Counsel having conduct of the matter on the Minister's behalf appeared. There was placed before us a motion to extend time for the filing of the Minister's memorandum of appeal. Being unopposed, we extended time in favour of the Minister. So that our order would not produce any unwarranted delay in the due prosecution of the appeals, we gave the following directions:

(1) that the Minister shall deliver his memorandum of appeal on or before Monday, 11 December 1995;

(2) that the record filed and delivered by the appellant do stand as the record in the Minister's appeal; and

(3) that all costs occasioned by the Minister's application be reserved and be dealt with upon disposal of the appeals.

[7] Both appeals were then adjourned to 11 December 1995, when we heard arguments from Cik Haliza Aini in support of the Minister's appeal, Encik Sivabalah's final address on the appellant's appeal and Dato' V K Lingham's response. Judgment was thereafter reserved.

The Facts

[8] The Hong Leong Group ('the