Mak Yui Ming and Another v. Attorney General

CACV000196/1980

Practice & procedure - appeal to Privy Council - leave granted on condition that record be prepared within 3 months - Court of Appeal had power under O.3 r.5 of Rules of Supreme Court to extend that time.

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Coram: Sir Alan Huggins, V.-P., Yang & Barker, JJ.A.

Date of hearing: 29 June 1982

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JUDGMENT

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Air Alan Huggins, V.-P. :

1. The point which we have to decade this morning is one of some technicality. The Applicants obtained conditional leave from another division of this court to appeal to the Privy Council against a decision of the court. One of the conditions was that security be given within a period of two weeks, and the other was that the record be prepared within a period of three months. The first of those conditions was complied with; the second was not; and the present application is for an extension of time in which to comply with that second condition.

2. The question which arises is whether the court has jurisdiction to extend the time. It was held previously that there was no poorer to extend the time provided in r.3 of the Order in Council Regulating Appeals to Her Majesty in Council which fixes the time at 14 days for notice of appeal. That being a time fixed by the Order in Council this Court held that there was no power to extend it. As a result an amendment was sought and obtained and now under r.3A there in express power to extend the time for appeal whether or not the 14 days period has already expired.

3. There is no express pourer in the Order in Council allowing the extension of any time fixed by this Court for the preparation of a record. It is submitted on behalf of the Applicants that the ordinary rules and practice of this Court apply and that under O.3 r.5 of the Rules of the Supreme Court this Court has power to extend the time fixed under r.4(b) of the Order in Council. In my view that submission is correct. There was a time when non-compliance with a condition resulted in the conditional leave's becoming a nullity and wit was impossible to extend a time once the time originally fixed had expired. The courts now take a very much more lenient view and the Rules of the Supreme Court reflect that view. In my view the Rules of the Supreme Court apply and we do have power to extend this period of three months as sought in the Notice of Motion.

4. The parties have already been in consultation on this matter and it was agreed by the Respondent that no point would be taken as to the delay, if there was power to grant an extension. That being so I think we should grant the order which is now sought.

Yang, J.A. :

5. I agree with the judgment delivered by my Lord the Vice-President.

Barker, J.A. :

6. I agree also and would merely add this. Our decision of course relates solely to the power to grant an extension imposed under r.4 (b) of the Order in Council. It is not necessary for us to decide, and we do not decide today, whether there would be any such power to grant an extension of time in respect of the condition under 4(a) of the Order in Council. I agree entirely with the judgment of the Vice-President.

29th June 1982.

Representation:

Mills-Owens, Q.C. & Bleach (D.L.A.) for Applicants.

D. Little & Macleod for Respondent.