Ali FJ (delivering judgment of the Court):

This notice of motion for an order to extend the time to serve the notice and record of appeal on the respondent was dismissed on the date of hearing 11 June 1973. We now give our reasons.

The judgment against the applicant was pronounced in the High Court at Kota Bharu on 1 February 1973. On 14 February 1973 his solicitors filed a notice of appeal in the Registry of that Court. But it was not served on the respondent until 27 May 1973. In view of r. 13 of the Federal Court (Civil Appeals) (Transitional) rules 1963 which prescribes the time limit for bringing an appeal, it is clear that the respondent was not served with the notice within the prescribed time of one month. The question is whether this precludes the applicant from appealing. The same question arose in Gurbachan Singh V. Seagrott & Campbell (no. 2) . The then Court of Appeal considered rr. 1A(1), 2 and 15 of O. 58 of the Rules of the Supreme Court, 1957 which are respectively identical in terms as rr. 6(1), 7 and 13 of the Federal Court (Civil Appeals) (Transitional) rules 1963, hereinafter referred to as the 1963 rules. Thomson CJ (as he then was) delivering the judgment of the Court of Appeal had no hesitation in allowing the decision in the case of Christopher v. Croll [1885] 16 QBD 66 in the construction of r. 15 of O. 58 which is equivalent to r. 13 of the 1963 rules. He referred to a passage from the judgment of Lord Esher, MR which reads thus:

Rule 1 of Order LVIII says that 'all appeals should be brought by notice of motion', and r. 15 provides that no appeal from a final judgment in an action shall be 'brought' after the expiration of a year. This seems to show that the appeal is 'brought' when the notice of appeal is served on the respondent."

Similarly in this case the mere filing of the notice of appeal is not sufficient compliance with r. 13. It must also be served on the respondent as required by r. 7 and failure to do so within one month precludes the applicant from appealing unless special leave of the full Court is given under r. 13.

It is necessary to consider whether special leave should be given in this case. The affidavit in support of the notice of motion is that of Mr. Foo Say Ghee, the applicant's solicitor. In para 16 Mr. Foo Say Ghee said that from 9 February 1973 until 26 March 1973 he was not in a proper and normal state of mind to conduct his office work. This was because he was personally involved in matters which have nothing to do with the applicant's case. In such a state of mind he said he inadvertently omitted to instruct his staff to serve the notice on the respondent or the respondent's solicitors. Here is a clear admission that the failure to serve the notice was due to the solicitor's mistake. Needless to say that such mistake is not a ground for granting special leave. That must be so for the obvious reason that it is not possible to draw a dividing line between a mistake which can support the exercise of a discretionary power and that which cannot. A mistake is a mistake whatever may be the reason for it. As to whether or not Mr. Foo's mistake amounts to negligence we express no opinion.

Mr. Wilson who argued this motion has submitted that this is not a case in which special leave is required. What we have said earlier regarding rr. 7 and 13 of the 1963 rules is sufficient to show that special leave is required. Counsel was apparently of the view that r. 73 of the 1963 rules or r. 7 of O. 64 of the rules of the Supreme Court which waives the Court power to enlarge time is to be read independently of r. 13 so that the failure to serve the notice in this case can be looked upon as a mere irregularity which can be cured simply by payment of costs. We do not agree for the reasons already stated.

Lastly, the point was taken that the respondent has not been prejudiced by the failure to serve the notice. See para. 25 of the affidavit. It is true that as early as 14 Februa