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Placer Holdings Pty Ltd v The State [1982] PNGLR 16 (22 February 1982)

Papua New Guinea Law Reports - 1982

[1982] PNGLR 16 - Placer Holdings Pty Ltd v The State 

[1982] PNGLR 16

SC219

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

PLACER HOLDINGS PTY. LTD.

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Waigani

Kearney DCJ Greville Smith Bredmeyer JJ

26 August 1981

22 February 1982

APPEAL - Time for lodging - Extension of time for lodging - Extension applied for outside time limited - Court has discretionary power to grant - Land Act 1962, s. 121 (2).

STATUTES - Interpretation - Purposive or literal approach - Land Act 1962.

Section 121(2) of the Land Act 1962 provides: “An appeal ... shall be made within 28 days after the matter complained of, or within such further time as the National Court for any special reason allows.”

Held

The National Court has a discretionary power to extend the time within which an appeal must be lodged under s. 121(2), although the application for extension of such time is not lodged until after the statutory time-limit has expired.

Banner v. Johnston (1871) L.R. 5 H.L. 157 followed.

In re proposed appeal by Constantinou [1977] P.N.G.L.R. 1, not followed.

Cases Cited

Banner v. Johnston (1871) L.R. 5 H.L. 157.

Constantinou, In re proposed appeal by [1977] P.N.G.L.R. 1.

Jordan v. Edwards [1979] P.N.G.L.R. 420.

Lovering, Ex parte; In re Jones [1874] UKLawRpCh 69; (1874) L.R. 9 Ch. App. 586.

PLAR No. 1 of 1980 [1980] P.N.G.L.R. 326.

R. v. Lewis [1906] UKLawRpKQB 55; [1906] 2 K.B. 307.

Appeal

This was an appeal against a refusal by Miles J. to allow an extension of time in which to appeal against forfeiture of a government lease pursuant to s. 121 (2) of the Land Act 1962.

Counsel

I. Molloy and T. Glen, for the appellant.

L. Au and J. Goodman, for the respondent.

Cur. adv. vult.

22 February 1982

KEARNEY DCJ: In 1980 the appellant had a government lease of a block of land in Lae. By a Gazette notice published on 1st May, 1980, the Minister for Lands forfeited that lease for an alleged failure to comply with an improvement covenant.

Section 121(1) of the Land Act 1962 (now s. 112 of the Land Act, Ch. 185 of the Revised Laws), provides, inter alia, for appeals to the National Court against such forfeitures; and s. 121(2) provides:

“(2)    An appeal ... shall be made within 28 days after the matter complained of, or within such further time as the National Court for any special reason allows.” (Emphasis mine.)

The appellant did not lodge an appeal against the forfeiture until 23rd December, 1980, some six and a half months after the 28 day time-limit. On the same date it gave notice that it would apply for an order for “further time” under s. 121(2); in effect, that it would move to extend the 28 day limit in s. 121(2), by some six and a half months, to bring its appeal within time. On 27th February, 1981, the appellant obtained an order from the learned motions judge, granting that further time; the respondent did not appear at that hearing. On 24th March, 1981, the respondent gave notice that it would move to set aside the order of 27th February, 1981. On 4th May, 1981, after he had the benefit of argument, his Honour set aside his order of 27th February, and refused to extend the time to appeal, on the basis that the application was itself lodged too late. That left the appellant out of time, on his appeal.

The appellant now appeals to this Court against the order of 4th May.

The question is, whether an application for further time must itself be lodged within 28 days after forfeiture.

I first thought that the respondent’s argument was the stronger. However I have since had the benefit of reading the opinions of Greville Smith and Bredmeyer JJ.; I find them wholly persuasive. The matters which I had considered should go to a restrictive construction of s. 121(2)—in particular the effect of a late appeal upon the title of a subsequent government lessee—are, I think, more properly seen as matters which go to the exercise of a judicial discretion. I should add that I adopt a “purposive” approach to the interpretation of statutes; see the comments of Wilson J. in PLAR No. 1 of 1980 [1980] P.N.G.L.R. 326 at pp. 329-334.

I would allow the appeal. I agree with the order proposed by Greville Smith J. The appellant should have its costs of the appeal. I think, upon a consideration of the matters set out in Jordan v. Edwards [1979] P.N.G.L.R. 420, that a certificate should not issue for the purposes of the Supreme Court Rules, O. 91 r. 81a, as regards overseas counsel.

GREVILLE SMITH J: In Banner v. Johnston (1871) L.R. 5 H.L. 157, the House of Lords was required to interpret a statutory provision “which gives a power of appeal within a period of three weeks and says that that period shall not be exceeded unless the Court of Appeal shall ‘extend’ the time” (per the Lord Chancellor at p. 170). The Lord Chancellor said:

“What we have to look at in substance is this: Is it contrary to the meaning of the word ‘extend’ to give longer time after the original time has passed?”

His Lordship answered the question in the negative, saying:

“Time is not a material with respect to which it may be said that the matter itself having ceased, there is no farther subject to operate upon.”

The other two members of the court, Lord Colonsay and Lord Cairns agreed, the latter saying (p. 172):

“In truth, my Lords, it is entirely a narrow construction of the word ‘extended’ to say that extension of time must be made within the period of time first allotted. The time may be extended just as well after the three weeks have expired as before. The argument assumes that the Act of Parliament is worded in this way: No appeal shall be brought except within three weeks, unless the Court of Appeal sanctions, within the three weeks, an extension of time to a longer period. But it is not so framed.”

In Ex parte Lovering; In re Jones [1874] UKLawRpCh 69; (1874) L.R. 9 Ch. App. 586, the court had to consider the provisions of s. 24 of the Bankruptcy Act, 1871 (U.K.), which provided that where a trustee has received an application calling upon him to disclaim a lease within twenty eight days, and for a period of not less than twenty eight days after the receipt of such application, “or such further time as may be allowed by the Court” has declined or neglected to give notice whether he disclaims the same or not, he shall not be entitled to disclaim. Mellish L.J. with whom the other member of the court, James L.J. concurred, said as follows (pp. 590-591):

“Then the trustee took no further step till three days after the twenty-eight days had elapsed, and the Registrar held that he was then too late to execute a disclaimer. Having regard to the case of Banner v. Johnston (Law Rep. 5 H.L. 157) I do not wish to lay down that the Court has in no case jurisdiction, after the twenty-eight days have elapsed, to enlarge the time. But we are informed by the Registrar that it is the practice of the Bankruptcy Court for the trustee, if he wishes to disclaim, and finds that he cannot obtain the consent of the Court within the twenty-eight days required by the 24th section, to apply to the Court before the twenty-eight days have elapsed for an enlargement of the time. That appears to me to be a very wholesome practice. If we were to depart from it in this case, and if trustees were allowed to come a week or a month after the time had elapsed and ask to have the time enlarged, the greatest inconvenience would result. The landlord and other persons interested would never know when the matter was finally settled. Therefore, unless something extraordinary happens, from such a cause as illness, or unless the landlord has done something to put the trustee off his guard, I think that the time ought not to be enlarged unless the trustee applies before the expiration of the twenty-eight days. In the present case the reason alleged, namely, the Easter Vacation, was no sufficient cause for the delay.”

By reason of s. 20(2) of the Constitution and Sch. 2 of the Constitution the principles and rules embodied in the aforementioned decisions are, in my opinion part of the adopted law of this country. They are of high authority and consistently therewith I find that under the provisions of s. 121(2) of the Land Act 1962 the court, contrary to what was decided by Williams J. in In re a proposed appeal by Constantinou [1977] P.N.G.L.R. 1, has jurisdiction, after the 28 days have elapsed, to enlarge the time for appeal. Whether the court will in the exercise of its discretion do so in a particular case will no doubt depend on all the circumstances and it may be that where the proposed appeal is against forfeiture of a lease the court will evolve a rule of practice comparable to or more stringent than that laid down by the court in Ex parte Lovering [1874] UKLawRpCh 69; (1874) L.R. 9 Ch. App. 586, especially if rights have arisen in third parties, such as on a re-lease. That of course, remains to be seen.

I would allow the appeal. The learned judge of the National Court who made the order appealed against at first made an order ex parte granting an extension of time, then made the order appealed against revoking his first order. In order to do justice in the particular circumstances of the case (s. 155(4) of the Constitution), and in case it may be argued that the allowing of this appeal revives his Honour’s first order, I would set aside both orders and remit the matter to the court to determine afresh the application for extension of time, as an exercise of discretion.

As to costs, counsel for the appellant did not refer the court to the two cases aforementioned upon which I have reached my decision in this matter. It occurs too often that this Court is left to search out relevant authorities itself. In this case, in consequence, I think it would be salutary if the court declined to certify that the matter merited the employment of overseas counsel. This I would do.

BREDMEYER J: The court is asked to interpret s. 121(1) of the Land Act 1962 which reads as follows:

“(2)    An appeal under the last preceding subsection shall be made within 28 days after the matter complained of, or within such further time as the National Court for any special reason allows.”

In the National Court Miles J. held that the latter words mean that the application for extension of time must be made to the court within the 28-day period. In giving this ruling Miles J. followed an earlier decision of Williams J. to the same effect In re proposed appeal by Constantinou [1977] P.N.G.L.R. 1, partly in the interests of judicial comity.

It is a pity that the legislature did not expressly state exactly when applications for extension of time for an appeal are to be made. Many statutory provisions or rules expressly provide for this. Thus O. 90, r. 6 of the National Court Rules provides that an application to enlarge or abridge the time for the doing of any act under the Rules may be made “after the expiration of the time originally allowed or limited”. By way of contrast, s. 27(2) of the Supreme Court Act, 1975 provides that the time for an appeal against a criminal conviction “may be extended at any time by the Supreme Court on application made within 40 days after the date of the conviction”.

When I apply the plain or literal meaning rules of statutory interpretation to the words of s. 121(1) I consider that the application for extension of time can be made before or after the 28-day period. I consider that if the legislature had intended that the application for extension must itself be made within the 28-day period it would have said so by additional words to that effect. The interpretation adopted by Williams J. in the case cited is, with respect, a forced one; it is, in effect, adding words which are not there, namely “provided the applicant obtains permission from the court to do so within the 28-day period”. I do not find the reasoning of Williams J. persuasive: his reference, for example, at p. 3 of the report, to s. 121(4) in two places is wrong. That section has no application to appeals against forfeiture; it is limited to appeals against re-assessment of the unimproved value of land and re-appraisals of rent and royalty. Also, he does not cite any authority for his view. I offer a number of reasons in favour of my view.

Firstly, it is supported by the decision in R. v. Lewis [1906] UKLawRpKQB 55; [1906] 2 K.B. 307, on wording similar to that used in s. 121(2). In that case the rule provided that notice of appeal had to be given to the magistrate etc., within 7 days after receipt of the notification of the decision “or within such further time as may be allowed by the magistrate”. Lord Alverstone C.J. and two other judges held that the magistrate had power to extend the time for giving notice of appeal, although the application to do so was made after the expiration of the 7-day period. Lord Alverstone at pp. 310, 311 thought it not reasonable to suppose that the magistrate’s power to extend should be limited to applications made to him within the original period of 7 days, for if the party aggrieved came to the magistrate within 7 days he could give notice of appeal to the magistrate on the spot and extension of time would not be wanted. The same reasoning can be applied to s. 121(2) of the Land Act. If the person aggrieved decides to appeal within 28 days he may do so; he does not need to ask then and there for an extension so that he may finally lodge the appeal after the 28 days. It is not as if he is required to prepare a detailed notice of appeal giving his grounds of appeal. It is very desirable to state grounds of appeal in a notice of appeal but no rules have been made expressly requiring grounds to be stated. A short notice of appeal without stating the grounds would be sufficient for s. 121(2).

Secondly, by way of analogy, the National Court and its pre-Independence predecessor, have adopted a similar wide interpretation of s. 237(b) of the District Courts Act 1963. By s. 226 of that Act appeals to the National Court must be lodged within one month of the decision of the District Court. By s. 237(b) of the Act the National Court may extend the time for compliance with a condition precedent to the right of appeal prescribed by the Act. In scores of unreported cases since 1964, when the Act came into force, judges have allowed extensions of time to appeal after the one-month appeal period has expired.

In the third place I do not consider that the “purposive” view of statutory interpretation gives a different result. What is the legislative purpose or intent of the Land Act? Clearly it is to enable the government to acquire customary and non-customary land by purchase, lease and resumption, to lease government land, and to regulate dealings in land. What is the particular legislative intent of s. 121 as amended? It is to allow an interested person to appeal to the National Court against the re-appraisal of rent, the variation of a royalty and the forfeiture of a lease. It has been argued for the State that if an aggrieved party is allowed to appeal out of time, it would jeopardize the title of a subsequent lessee of the land, and that the legislature could not have intended that result. It must be emphasized that s. 121(2) is not restricted to appeals against forfeiture: it also applies to appeals against re-appraisals of rent and variations of royalty where no subsequent lessee is involved. Also, in practical terms, if after forfeiture the land has been leased to a new lessee that would be a compelling reason for a judge, in his discretion, to refuse to allow an application for extension out of time. The onus is on the would-be appellant. He has to show a “special reason” why he should be allowed to appeal out of time.

For those reasons I would allow the appeal and remit the matter to the court for re-hearing.

The appellant is entitled to its costs but, as this appeal only involved a short point of statutory interpretation, I do not consider that it merited the employment of overseas counsel.

Appeal allowed. Orders of the National Court of 27th February and 4th May 1981, quashed. Appellant’s application of 23rd December, 1980, remitted to National Court, for re-hearing.

Appellant to have its costs of the appeal, but no certificate for overseas counsel under O. 91 r. 81a, to issue.

Solicitor for the appellant: Beresford Love & Company.

Solicitor for the respondent: B. O. Emos, The State Solicitor.