I. PRELIMINARY OBJECTION BY RESPONDENTS' COUNSEL

On 23.3.1996, at the hearing of the Appellant's Notice of Motion dated 14th March 1996 [Enclosure (8)] for extension of time to serve the Notice of Appeal, learned counsel for the Respondents raised a preliminary objection based on the following grounds:

(i) under S.28(1) of the Courts of Judicature Act, 1964, the decision of the Labour Court is not appealable because the claims by the respondents if taken separately do not exceed RM10,000-00; and

(ii) the said Notice of Motion is unnecessary since the Memorandum of Appeal was in any event filed and served out of time, thereby rendering the entire appeal defective and liable to be struck out. [2]

II. NOTICE OF OBJECTION

Learned counsel for the Appellant took exception to the way the preliminary objection was raised on behalf of the Respondent as no notice of the objection was given by the Respondents' solicitors to the Appellant's solicitors who only become aware of them on the day prior to the hearing itself. The Appellant's solicitors telephoned the Respondents' solicitors at 5.00 p.m. of the day prior to the hearing, after noting that the Respondents' solicitors have ignored requests by the Appellant's solicitors for particulars of the said objections vide their letters dated 6.5.96 and 16.5.96.

In reply, the Respondents' counsel submitted that there is no element of surprise in this case since both the parties are given adequate time by the Court to file their respective written submissions.

In my considered view, it is trite law that a party who wishes to raise any [3] preliminary objection must give written notice to the other party's solicitors as early as possible of his intention to do so. Failure to do so would amount to waiver of the party's right to raise the objection: per Mohd Hishamudin bin Mohd Yunus JC (as he then was) in Public Bank Berhad v. Berjaya Housing Development Sdn Bhd & Ors (1995) 1 CLJ 237, and Edgar Joseph Jr. J (as he then was) in Jasabena Sdn Bhd v. Beh Heng Poo & Anor (1985) 1 MLJ 394. It was held in these two cases that the notice of preliminary objections must satisfy two requirements, viz:-

(a) the notice must be in writing; and

(b) the notice should be given at the earliest possible moment to the other side who otherwise might be taken by surprise.

It is obvious that the whole purpose of the notice is to promote good etiquette amongst members of the Bar and more importantly to remove the element of [4] surprise. It is necessary that the party against whom an objection is intended to be raised should not be taken by surprise and that both parties are given equal opportunities to prepare their submissions in order to ventilate all the relevant issues; being forewarned is being forearmed. Although it is true to say that the element of surprise in the instant case is completely non-existent since the parties herein are given adequate equal opportunity and time to prepare their respective written submissions, it must be immediately emphasized that the notice of objection must at all times be given to the other side. There can be no excuse for any delay, intentional or otherwise, in giving notice to the Appellant.

Since the Respondents' learned counsel has failed to give any prior written notice of the preliminary objection, I hold that the Respondents are deemed to have waived their rights to do so. Waiver implies something in the nature of estoppel [See Wong Chor San v. Chop Yee Kuan (1957) 23 MLJ 68 at p.70]. [5]

Be that as it may, since both the counsel have filed their respective written submissions, I shall now proceed to consider the merits of these submissions in relation to the preliminary objection alluded to above.

III. CONTENTION OF PARTIES

The Respondents contended that S.28(1) of the Courts of Judicature Act 1964 applies here and that the court should adopt a purposive approach in construing the above provision, to flush out meagre claims, since there are 8 separate causes of