The plaintiffs in this case appealed under O 56 r 1(1) of the Rules of the High Court 1980 ('RHC') against the decision of the senior assistant registrar dismissing the plaintiff's application (encl 22) for judgment against the second defendant under O 14 r 1 and O 18 r 19(1) of RHC.

At the outset of the hearing of the appeal, counsel for the second defendant raised a preliminary point in that there has been an inordinate delay on the part of the plaintiff in making the O 14 application. This point was not taken up by counsel for the second defendant at the hearing of the application before the senior assistant registrar. Counsel for the plaintiff objected to the raising of such a point at the stage of the appeal before me.

The issue is — can a point not raised at the hearing before the senior assistant registrar be raised on an appeal to the judge-in-chambers pursuant to O 56 r 1(1) of the RHC?

As both counsel were not armed with the authorities when they argued on this issue, I reserved my ruling to a date to be fixed and directed them to submit written submissions with the relevant authorities within three weeks in order to assist the court to make the ruling on the issue raised.

It is not disputed that the application was filed by the plaintiffs only after the delivery of the defence and counterclaim and no explanation was given for the delay. In fact it was filed after the amended reply and defence to counterclaim (encl 20).

Mr Francis Ting, counsel for the second defendant, relied on passages from Mallal's Supreme Court Practice (2nd Ed) and Halsbury's Laws of England (4th Ed) to support his contention that he can raise the issue of delay in filing the O 14 application at the appeal stage before the judge in chambers.

Mallal's Supreme Court Practice on appeal under O 56 stated at p 680:

The appeal is by way of rehearing and the judge treats the matter as if it has come up for hearing for the first time

37 Halsbury's Laws of England para 649 at p 488 stated thus:

Fresh points may be raised before the judge which were not raised or taken before the matter or registrar.

To further support his contention, Mr Francis Ting quoted the case of Blundell v Rimmer [1971] 1 All ER 1072 where at p 1076 Payne J said:

There is one subsidiary point. I understand that the arguments before me ranged over a wider ground than those advanced by the parties' solicitors to the district registrar, and it was contended by counsel for the plaintiff that I was fettered by the proceedings before the district registrar and confined to the arguments which were presented to him; that no point could be raised before me which was not raised below. It is, I think, clear on authority that the appeal from the district registrar is a rehearing of the application and I am entitled to treat the matter as though it comes before me for the first time; moreover, that I am not fettered by the previous exercise of the district registrar's discretion, although I should, of course, give it the weight which it deserves. Authority can be found for this proposition in the speech of Lord Atkin in Evans v Bartlam [1937] 2 All ER 646 and in the notes in the Supreme Court Practice 1970, under RSC O 58 rr 1 and 4.

I think the law is clear that in a civil appeal it is by way of rehearing (see ss 29 and 69(1) of Courts of Judicature Act 1964 relating to appeals to High Courts and the Supreme Court respectively). There are no lack of local authorities on this point also. It would appear that generally the appellate courts are reluctant to allow points of law or issues to be raised when they were not raised at first instance (see A-G for the Straits Settlement v Pang Ah Yew [1934] MLJ 184; Central Bank of India Ltd v Guardian Assurance Co Ltd [1936] MLJ 163; Hassan & Anor v Wan Ishak & Ors [1961] MLJ 45). However, there are decided cases to show that there is a discretion in the appellate court to allow a point of law or issues not otherwise raised at the court below t