Chang Min Tat FJ (delivering the judgement of the Court):

On objection being taken to this appeal for failure of service, the appellants made an application by notice of motion to this court for extension of time to serve the notice of appeal on the respondent.

Notice of appeal was filed within the one month specified in r. 13 of the Federal Court (Civil Appeals) (Transitional) Rules 1963, but a copy of the notice was not served on the respondent at the same time as required by r. 7. It was served some considerable time later. The reason for the failure to serve was given by the clerk to the solicitors for the appellants that he had relied upon the court process-server to effect the service. It is not part of the duties of the Court Registry to perform this service and it is not argued that the failure was other than the fault of the solicitors' clerk. It is however tendered as an explanation.

The rules relevant to this appeal are:

6(1). Appeals to the court shall be by way of re-hearing and shall be brought by giving notice of appeal.

. ...

7. Notice of appeal shall be served on all parties directly affected by the appeal or their solicitors respectively at the time of filing the notice of appeal. It shall not be necessary to serve parties not so affected.

13.No appeal shall, except by special leave of the full court be brought after the expiration of one month -

(a) ....

(b) in the case of an appeal against the refusal of an application, from the date of such refusal;

(c) in an other cases, from the date on which the judgment or order appealed against was pronounced:

. .."

The special leave of the full Court of Appeal is required. The notice of motion did not however ask for this special leave. It asked merely for an extension of time to serve the notice of appeal on the respondent. The affidavits in support in addition to the explanation asserted that the respondent would suffer no prejudice which could not be compensated by way of costs.

It is accepted by Mr. RR Chelliah for the applicants that the default of a solicitor (Re a Debtor) [1910] MN 224 or a mistake of a solicitor's clerk (Hendry v. De Cruz) [1949] MLJ Supp 25 would not be a ground for granting the special leave of the full Court of Appeal. If this is a case for special leave, he must fail. He argues however that he does not have to apply for this special leave. All he needs to do is to apply for ordinary leave and that is because having filed the notice of appeal in the Court Registry within time, he has sufficiently "brought" the appeal before the Federal Court for all the purposes of r. 6. His reasoning is that bringing an appeal up and serving the notice of appeal are two different matters.

Authority however is against him. The Court of Appeal in Gurbachan Singh V. Seagrott & Campbell (no. 2) , Which dealt with O.58 rr. 15, 1A(1) and 2, Rules of the Supreme Court which are in pari materia with rr. 13, 6(1) and 7, held that an appeal could only be said to be brought when the notice of appeal was served on the respondent. The case relied on by the Court of Appeal was the English case of Christopher v. Croll (1885) 16 QBD 66. It is however urged by Mr. Chelliah that reliance on the English case was unsafe and the judgment of the Court of Appeal therefore erred since in England, the notice of appeal need not be served. But it seems to us by this argument that where there is a statutory requirement for service of the notice on the respondent, failure to serve must be a stronger argument for the conclusion that the appellants had not brought up the appeal within the requirements of the rules. With respect, we see no reason for departing from Gurbachan Singh V. Seagrott & Campbell (no. 2) case, or from Chin Hua Sawmill Co. Sdn. Bhd. V. Tuan Yusoff Bin Tuan Mohamed FC which followed Gurhachan Singh's case.

There is further support for the rejection of Mr. Chelliah's contention in Tan Ting Kok V. Cheong Lep Keen & Anor. a decision of this Cou