JUDGMENT

Abdul Malik Ishak J

This was an application for an order of certiorari. The applicant applied ex parte by way of a notice of motion dated 23 July 1985 (encl 3) instead of by way of an ex parte summons-in-chambers for leave before Shankar J (now JCA) and that application was supported by a statement (encl 2) setting out the name and description of the applicant, the reliefs sought and the grounds relied upon. The statement which was dated 25 March 1985 was verified by an affidavit affirmed by the applicant dated 25 March 1985 (encl 1). The notice of that application for leave was served on the Attorney General's Chambers on 16 August 1985 and copies of the statement and the affidavit were lodged in those Chambers (see affidavit of service in encl 5). On 19 August 1985, Shankar J (now JCA) gave leave and ordered, inter alia, that 'all proceedings in the matter be stayed pending final determination or further order' (encl 11). The steps for leave to be given are clearly set out in O 53 rr 1(1) to 1(5) of the Rules of the High Court 1980 ('RHC') and I need not dwell on them at length. Suffice for me to say that under O 53 r 1A of the RHC an application for leave must be made within six (6) weeks after the date of the proceedings or time prescribed by any written law or the delay must be accounted for to the satisfaction of the court. Where the proceeding in question is subject to appeal the court may adjourn the application for leave until the appeal is determined or the time for appealing has expired.

Now, reverting back to the present case, the applicant upon obtaining leave filed an originating notice of motion dated 29 August 1985 (encl 7) but without enclosing copies of the statement and the affidavit (see O 53 r 2(1) and r 3(1) of the RHC). Instead, the applicant adopted a novel approach by giving notice to the respondent incorporated in the originating notice of motion (encl 7) in the following terms:

And take notice that on the hearing of this motion, the applicant will use the statement dated 25 March 1985 and the affidavit of Musa bin Keran sworn on 25 March 1985 and the exhibits therein referred to.

It was in this fashion that encl 7 were served on the respondent and the Attorney General on 22 October 1985 as reflected in the affidavit of service in encl 16 and this prompted the learned senior federal counsel to object and he argued that the application for certiorari was not properly made as there was non-compliance with O 53 r 3(1) of the RHC. This was said to be fatal as it went to the procedural defect which could not be cured. In Mersing Omnibus v Minister of Labour and Manpower & Anor [1983] 2 MLJ 54 , Abdoolcader FJ (as he then was) in construing O 53 rr 1 and 1A of the RHC were of the view that the imperative requirements of that order must be complied with before an application for certiorari can be made. The learned senior federal counsel sought to draw a parallel with Mersing Omnibus and argued that the mandatory procedural provisions of the RHC like O 53 r 3(1) must be adhered to without fail. It was said that the RHC has statutory force and it should be obeyed ( Pacific Centre Sdn Bhd v United Engineers (Malaysia) Bhd [1984] 2 MLJ 143 ). The Supreme Court in Mohamed Noor bin Othman & Ors v Haji Mohamed Ismail bin Hj Ibrahim & Ors [1988] 3 MLJ 82 had succinctly stated that: 'For it is trite law that where the words of a statute are clear there is no room for the court to go beyond the expressed language of the statute.' In Mersing Omnibus, Abdoolcader FJ (as he then was) in the context of the facts of that case where the Minister of Labour had given his decision on 23 November 1981 to the effect that the appellant extend recognition to the second respondent for the categories of employees stipulated therein and it was only on 9 January 1982 that the appellant sought leave to apply for certiorari to quash the decision of the Minister. That leave was granted but subsequently on the substantive applica