Mitchell v Landowners of Land of Aitutaki Airport [1981] CKHC 9; HC (26 June 1981)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA

IN THE MATTER
of the Declaratory Judgments Act 1908

AND

IN THE MATTER
of Section 409B of the Cook Islands Act 1915

BETWEEN

MICHAEL CRAWFORD MITCHELL
of Rarotonga, Solicitor-General
APPLICANT

AND

THE LANDOWNERS OF the Lands
comprising the AITUTAKI AIRPORT
RESPONDENT

Counsel: Solicitor-General in person
Clarke for respondents

Date of Hearing: 2.6.81
Date of Decision: 26.6.1981

DECISION OF SIR GAVEN DONNE CJ

This is an application for a Declaratory Judgment determining whether section 409B of the Cook Islands Act 1915 has any application to a certain lease to the Crown contained in section 19 of the Cook Islands Amendment Act 1950.

The lease referred to in section 19 of the Cook Islands Amendment Act 1950 is a lease of lands known as the Aitutaki Airport an enactment of the New Zealand Parliament in force in the Cook Islands. The relevant provisions in the section read:

"19. Validating lease of Aitutaki to the Crown - Whereas the land described in the Second Schedule to this Act (in this section referred to as the said land) and commonly known as the Aitutaki Aerodrome is Native freehold land: And whereas the said land is at the passing of this Act in the occupation of the Crown upon the terms of an oral agreement to lease entered into by representatives of the Native owners as lessors and on behalf of the Crown as lessees;

And whereas no written lease of the said land has been signed and, having regard to the large number Native owners having an interest in the said land, it is not practicable for a large written lease thereof to be signed by all the Natives having an interest therein: And whereas it is expedient that the oral agreement to lease be validated as if it had been reduced to writing and signed by all persons having an interest in the said land: Be it therefore enacted as follows:

The land describe in the Second Schedule to this Act shall be deemed to be and to have at all been validly and effectually leased by the owners thereof for themselves, their heir, and successors to the (Minister of Foreign Affairs) for and in the name of (Her Majesty) (in this section referred to as the Crown) upon and subject to the following terms:

(a).................................

(b).................................

(c).................................

(d) If the Crown desires to obtain a renewal of the lease pursuant to paragraph (b) hereof, the Crown shall, not later than 6 months before the expiration of the first term or, as the case maybe, the subsisting renewal term of the lease, obtain at the expense of the Crown a revaluation of the said land for the purpose of assessing the annual rent to be paid during the term of the renewal lease;

(e) Subject to the next succeeding paragraph, the annual rent to be paid during the currency of each renewal term of the lease shall be 5 percent of the unimproved value of the said land as determined on the revaluation made pursuant to the last preceding paragraph, but shall not be less than ($1) for every acre of the said land;

(f) In the event of any dispute between the Crown and any person entitled to a share of the annual rent as to the unimproved value of the said lease for the purposes of ascertaining the rent payable during the currency of any renewal of the said lease, the High Court shall, on the application of the (High Commissioner) or of any person so entitled made not later than 6 months after the commencement of the renewal term, determine the unimproved value of the said land for the purpose of the renewal term;"

In 1979 the Legislative Assembly enacted the Cooks Islands Amendment Act 1978-79 in which there is added to the Cook Islands Act 1915 a further section 409B which reads:

"409B. Land Rental Arbitration - Notwithstanding anything in any lease, contract or other document conferring rights in any person to land or an interest in land the Land Court may upon application by any interested party and upon sufficient cause being shown, hear, determine and fix the capital value of any land or interest in land or the current market rental of any land or interest in land."

The respondents, the owners of the said lands, have applied to the Land Court pursuant to the above section 409B for the determination of the unimproved value of the said land as provided in section 19 (clause c) of the Cook Islands Amendment Act.

It is contended by the Crown that the respondents cannot invoke the provisions of section 409B (supra). The first point to be considered is whether the general provisions of section 409B of the principal Act apply to section 19 of the Amendment of 1950. The law is stated in Craies on Statue Law (7^th Edn) at p. 222:

'Acts of Parliament sometimes contain general enactments relating to the whole subject-matter of the statute, and also specific and particular enactments relating to certain special matters; and if the general and specific enactments prove to be in any way repugnant to one another, the question will arise, which is to control the others? In Pretty v Solly [1859] EngR 249; (1859) 26 Beav 606, 610 Romilly M.R. states as follows what he considered to be the rule of construction under such circumstances. 'The general rule,' said he, 'which are applicable to particular and general enactments in statutes are very clear; the only difficulty is in their application.' The rule is, that whenever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply.'

The principle is forcibly put by Viscount Haldane quote in Maxwell on Interpretation of Statutes (12^th Edn) p. 196:

"We are bound... to apply a rule of construction which has been repeatedly laid down and is firmly established. It is that wherever Parliament is an earlier statute had directed its attention to an individual case and has made provision for it unambiguously, there arises a presumption that if in a subsequent statute the Legislature lays down a general principle, that general principle is not to be taken as meant to rip up what the Legislature had before provided for individually, unless an intension to do so is specifically declared."

The principle is also referred to with approval in Coleridge-Taylor v Novello & Co. Ltd (1938) 2 All ER a Chancery Division case in which Morton J at p. 325 (line 114) to p. 326 (Line B2) said:

"I may add that, if the two sections were irreconcilable otherwise, there is the principle, which I think should be disposed to apply, laid down in MAXWELL'S INTERPRETATION OF STATUTES, 8^th Edn, p. 156:

'Having already given its attention to the particular subject and provided for it, the legislature is reasonably presumed not to intend to alter that special provision by a subsequent general enactment unless that intention be manifested in explicit language, or there be something which shows that the attention of the legislature has been turned to the special Act and that the general one was intended to embrace the special cases provided for by the previous one, or there be something in the nature of the general one making it unlikely that an exception was intended as regards the special Act. In the absence of these conditions, the general Statute is read as silently excluding from its operation the cases which have been provided for by the special one'.

That passage, which is based on certain authorities cited in the notes, is dealing with the question of two separate Acts, one a special Act and the other a general Act, but the same principle has been applied to two different sections of the same Act."

The respondents contend that section 19 is not a statutory creation of a lease; the lease was already in existence and its terms implied under the Property Law Act 1908. They look to the preamble to the section which states that there was an oral agreement to lease and that it was considered "expedient that the oral agreement to lease be validation". They submit that the section is a validating one only. In my view that argument is untenable. The section does much more than validate the lease. It provides that the land "shall be deemed to be" validly leased upon the terms set out in the section. The fact that the terms of the lease are "deemed to be" as set out in the section connotes a of lack knowledge as to what terms (if any) were agreed to by the parties. The effect of the section is to create terms notwithstanding this. As was said by Wild C.J. in Watson v Nelson Regional Water Board (1976) 2 N.Z.L.R. 333 at page 336 (lines 15 to 40):

"Taking this view of the matter I think that, as the Act stood in its original form, the method of disposal proposed by the company, involving percolation of some part of the effluent into ground water or underground water, did not fall within s. 21(1) or (3), and was not prohibited by s. 34(1). At that time, then, no right was required to do what the company proposes to do.

But then subs (3) with its deeming provision was added to s. 34 by the 1971 amendment. In St Aubyn v Attorney-General [1951] UKHL 3; (1952) AC 15; (1951) 2 All ER 473 Lord Radcliffe said:

'The word 'deemed' is used a great in modern legislation. Sometimes it is used to impose for the purposes of a statute an artificial construction of a word or phrase that would not otherwise prevail. Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain. Sometimes it is used to give a comprehensive description that includes what is obvious, what is uncertain and what is, in the ordinary sense, impossible;' (ibid, 53; 498).

The sense in which the word is used depends largely on the context: Hunter Douglas Australia Pty Ltd v Perma Blind [1970] HCA 63; (1970) 122 CLR 49, 65-67, per Windeyer J. Mr. McKay's contention was, in effect, that the word 'deemed' was used in s. 34(3) for the second purpose mentioned by Lord Radcliffe. In my opinion, however, it is clear both from the terms of the subsection itself and from the circumstance of its enactment, that it was used for the first purpose he mentioned, which was described by Cave J in R County v Norfolk Council (1891) 60 LJ QB 379 in the following way:

'... generally speaking, when you talk of a thing being deemed to be something, you do not mean to say that it is that which it is deemed to be. It is rather an admission that it is not what it is to be deemed to be, and that, notwithstanding it is not that particular thing, nevertheless, for the purpose of the Act, it is to be deemed to be that thing' (ibid 380-381).

That aptly describes the deeming in s. 34(3)."

By section 19, the Legislature admits that it is unaware of the terms of the oral agreement to lease and consequently it has enacted what those terms shall be deemed to be. That was the particular purpose of the enactment. It therefore is a specific enactment which creates the terms of lease of the Aitutaki lands, in particular, the terms relating to revaluation and rent fixation on a renewal of the lease. Consequently, applying the principles expressed above, I am satisfied that, there being no expressed intention in section 409B to later the special provisions of section 19 or any intention therein to indicate that the attention of the Legislation had been turned to section 19, that section 409B does not apply to the lease in question.

I also reach that conclusion on another ground. The Crown Proceedings Act 1950, a New Zealand enactment applying in the Cook Islands by virtue of section 350 of the Cook Islands Act 1915, by section 5(1) provides:

"5. Liability of the Crown under other Acts - (1) Except as expressly provided by this Act or any other Act, this Act shall not be construed so as to make any Act binding upon the Crown which would not otherwise be so binding, or so as to impose any liability on the crown by virtue of any Act which is not binding on the Crown."

The Crown is not bound by a statute unless it is directly or by necessary implication referred to. The rule is explained by Wrottesley J. in Attorney-General v Hancock (1904) 1 All ER 32 p. 34 (lines 2 to E5):

"The rule dealing with Acts of this kind the effect of these Acts upon the Crown is, of course, a very old one. In MAXWELL ON THE INTERPRETATION OF STATUTES, 8^th Edn., p. 120, it is described as follows:

'It has been said that the law is prima facie presumed to be made for subjects only. At all events the Crown is not reached except words or by necessary implication in any case where it would be ousted of an existing prerogative or interest. It is presumed that the Legislature does not intend to deprive the Crown of any prerogative, right or property, unless it expresses its intention to do so in explicit terms, or makes the inference irresistible.' "

In CRAIES ON STATUTE LAW, 4^TH EDN., a passage dealing with this matter from Plowden is quoted as follow at p 361:

"The reason of the rule is thus put by Plowden at p. 240: 'Because it is not an Act without the King's assent, and it is to be intended that when the King gives his assent he does not mean to prejudice himself or to bar himself of his liberty and his privilege, but he assents that it shall be a law among his subjects.'

That would, perhaps, nowadays be regarded as rather an over statement of the position of the Crown with regards to Acts of Parliament, and the true rule is probably, as has been put in argument, more likely that it is not that the Crown merely legislates for its subjects but that very often Crown legislates for itself and its subjects, and that, when the legislation in question is one which would otherwise affect, or which would affect, the Crown's rights, interests and prerogatives, then the Act does not apply to the Crown unless the Crown is specially named in that sense, and it is only a short step from that preposition to the further one that the Crown is again to be regarded as being party to the Act or Crown is again regarded as being party to the Act of Parliament which affects itself when it is shown that the Crown was to be affected by necessary implication from the language of the statute. That being the origin of this rule, and that being, as I understand it, the exception, it is clear that from time to time in the last hundred years the question has come before the courts for debate and decision."

There is no provision in the Cook Islands Act 1915 which provides that the enactment binds the Crown; there is certainly nothing in section 409B which could imply that the Crown is bound thereby such as there is in section 19 of the 1950 amendment. For that reason, I hold the Crown is not bound by section 409B of the Cook Islands Act and the section does not apply to the said lease.

For the above reasons I answer:

Question (a) No.

Question (b) No answer required.

Question (c) No answer required.

SIR GAVEN DONNE, K.B.E.
CHIEF JUSTICE

Solicitor for applicant: Crown Solicitor, Rarotonga
Solicitor for respondent: Clarke, Ingram & Co., Rarotonga.