N339(L)
PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

DOUGLAS CHARLES DENT

V

THOMAS KAVALI (MINISTER FOR LANDS)

AND

ALAN BRYAN (REGISTER OF TITLES)

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Waigani
Bredmeyer J

31 July 1981
27 November 1981

PRACTICE AND PROCEDURE - National Court - Declaratory orders - Jurisdiction to make - Discretionary nature of - Whether writ seeking demurrable - Constitution s. 155(4) - Rules of the National Court O. 4 r. 11.

STATUTES - Interpretation - Rules of court - Not statutory provisions - To be read down as relating to matters of practice and procedure only - Constitution s. 155(4) - Rules of the National Court O. 4 r. 11.

The power or jurisdiction of the National Court to grant declaratory orders derives from s. 155(4) of the Constitution. It does not derive from O. 4 r. 11 of the Rules of the National Court which is a rule not a statutory provision and should be read down as relating to matters of practice and procedure only.

The National Court has power under s. 155(4) of the Constitution to grant a declaratory order involving the determination of questions arising under the Land Act 1962 regardless of any time limit on appeal imposed by that Act.
Avia Aihi v. The State [1981] P.N.G.L.R. 81 followed and applied.

A writ seeking a declaratory order, which order is within the discretion of the court, cannot be demurred to.

Demurrer

These were proceedings on demurrer in which the defendants demurred to the plaintiffs statement of claim seeking declaratory relief on the ground that his real remedy was by way of appeal (the time for which had expired) under the Land Act 1962.

Counsel:

C. Coady, for the plaintiff.
J. Goodman, for the defendants.
Cur. adv. vult.

27 November 1981

BREDMEYER J: The plaintiff was the lessee of a Crown Lease over Allotments 18, 19 & 20, Section 105, Hohola. On 24th December, 1980, his lease was forfeited by a notice in the Gazette under s. 54 of the Land Act 1962. He did not appeal to the National Court under s. 121(2) of that Act which allows an appeal within twenty-eight days or "within such further time as the National Court for any special reason allows". Neither did he apply for certiorari under O. 81 r. 7 of the Rules of the Supreme Court, which imposes a six months’ time limit on such applications. Instead, on 2nd June, 1981, he obtained a writ of summons seeking a declaration that the forfeiture was void and of no effect. On the same day the plaintiff obtained an injunction against the defendants restraining the government from leasing the land to someone else until the trial of this action or until further order. This injunction was renewed in a slightly different form on 12th June, 1981.

The State Solicitor on behalf of the defendant has demurred that the plaintiffs cause of action is bad in law, that the plaintiffs remedy is by way of appeal under s. 121(2) of the Land Act. The plaintiffs statement of claim is that he was granted the lease in 1970. It contained an improvement covenant that he was to erect a residential dwelling to the value of K12,000 within one year of the grant. In January 1979 he was given a notice to show cause under s. 54 of the Act why the lease should not be forfeited. Shortly thereafter the plaintiff said he called on the Lands Department and verbally gave his reasons why he had not erected the dwelling as covenanted. In essence his explanation was that the block was steeply sloping and he had spent K60,000 on fill, retaining walls and drainage works. A valuer valued the ground improvements at K41,600 in May 1981. The plaintiff says the Department accepted the explanation and yet eleven months later, in December 1980, the Minister forfeited the lease. It was argued on the plaintiffs behalf that this forfeited was contrary to the principles of natural justice, that having shown cause why the lease should not have been forfeited, he should have been given a fresh notice to show cause prior to forfeiture.

Can the plaintiff obtain a declaration or is he limited to the appeal remedy provided by s. 121(2) of the Land Act? I begin by asking what is the National Court’s power to grant a declaratory judgment? Counsel seeking a declaration usually cite O. 4 r. 11 of the Rules of the National Court which reads as follows:

"An action or proceeding shall not be open to objection on the ground that a merely declaratory judgment or order is sought thereby; and the Court may make binding declarations of right in an action or other proceeding properly brought, whether any consequential relief is or could be claimed therein or not."

That is, of course, one of the Rules of Court continued in force after Independence by s. 14 of the National Court Act 1975. By s. 184 of the Constitution the judges are empowered to make rules for the National and Supreme Courts "with respect to the practice and procedure" of those courts. Prior to Independence the Rules of Court, which were adopted from Queensland, were also limited to matters of practice and procedure, Supreme Court Act 1949, s. 19, Judiciary Act 1921 (NG), s. 19 and Courts & Laws Adopting Ordinance of 1888 (Papua), s. 9.

Although O. 4 r. 11 appears to confer a power on the court to grant declaratory orders and judgments, albeit expressed in a negative way, in view of the Constitution, s. 184, and the other statutory provisions cited, it should be interpreted as relating only to matters of practice and procedure. Although the Rules are "continued in force" by s. 14 of the National Court Act I consider that they remain rules of court, and as such are subordinate to any statute. Any statute passed which conflicted with a rule of court would override it, see the Constitution, s. 184(4). In my view, O. 4 r. 11 is a rule, not a statutory provision, and must be read down as relating to matters of practice and procedure.

I consider the National Court’s jurisdiction or power to grant a declaratory order comes from the Constitution, s. 155(4), in particular the latter words of that section. Section 155(4) reads:

"Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case."

Likewise I consider that the power of the pre-Independence Supreme Court of Papua New Guinea to grant a declaratory order did not come from O. 4 r. 11 but rather from the statutory provisions conferring on that court the powers of the Court of Chancery in England. I propose merely to allude to the statutes which produced that result. Section 6 of the Supreme Court Act 1949 conferred on the Supreme Court of the Territory of Papua and New Guinea the same jurisdiction in relation to the Territory of Papua as that exercised by the Supreme Court of the pre-war Territory of Papua, and, in relation to the Territory of New Guinea, the same jurisdiction as that exercised by the Supreme Court of the pre-war Territory of New Guinea. The Supreme Court of pre-war Papua had the jurisdiction of the Supreme Court of Queensland (s. 10 of the Courts and Laws Adopting Ordinance of 1888, and s. 6 of the Papua Act, 1905). Likewise the Supreme Court of pre-war New Guinea also had the jurisdiction of the Supreme Court of Queensland (s. 11 of the Judiciary Ordinance 1921 (N.G.)). The Supreme Court of Queensland in turn had the equitable jurisdiction of the Lord High Chancellor in England (s. 22 of the Supreme Court Act, 1867 of Queensland). And the Court of Chancery before 1883 could make binding declarations of right whereas the common law courts could not. In 1883 a rule was made, similar to the Papua New Guinea rule, which introduced a very big change in the law of declaratory judgments; it enabled the court to make a binding declaration of right whether or not any consequential relief was or could be claimed, see historical note in Supreme Court Practice 1967, vol. 1, par. 15/16/1.

It follows from my analysis that in seeking a declaratory order the plaintiff is seeking to invoke s. 155(4) of the Constitution which is the supreme law of Papua New Guinea and superior to any statute (ss. 10 and 11 of the Constitution). I consider the National Court thus has constitutional power to grant a declaratory order (and under the earlier part of s. 155(4) a certiorari order) in disregard of the time limit on appeal imposed by s. 121(2) of the Land Act. That is consistent with the decision of five judges of the Supreme Court in Avia Aihi v. The State1. There the Supreme Court held that it had power to entertain a criminal appeal under s. 155(2) of the Constitution despite the appellant’s failure to comply with the 40-day time limit on appeal imposed by s. 27 of the Supreme Court Act 1975. Any statutory provision inconsistent with a constitutional provision is invalid to the extent of the inconsistency (Constitution, s. 11).

For these reasons I consider the plaintiff is not barred by s. 121(2) of the Land Act from seeking a declaratory order. Whether or not he succeeds in getting a declaration lies in the discretion of the court. There is abundant authority that a declaration is a discretionary remedy. See Supreme Court Practice, 1967, vol. 1 par. 15/6/2 and de Smith, Judicial Review of Administrative Action (4th ed.) pp. 512-518. It is not appropriate on a demurrer that I should exercise a discretion. The plaintiff has a cause of action; it will depend on the court’s discretion, after hearing evidence, inter alia, on the reasons for the plaintiffs delay and failure to exercise other remedies, whether he succeeds or not. I therefore overrule the demurrer and award costs of arguing the demurrer to the plaintiff.

On the view that I have taken it is not necessary for me to consider the English case law on declarations and certiorari. But for the record I mention three relevant cases. The English courts’ willingness to grant certiorari and declarations even in the face of ouster clauses in the statutes has been demonstrated in numerous cases, a high water mark being Anisminic Ltd. v. Foreign Compensation Commission and Anor.2 which was cited to me by Mr. Coady, counsel for the plaintiff. This however should be contrasted with Smith v. East Elloe Rural District Council3 and R. v. Secretary of State for the Environment, Ex parte Ostler 4.

Demurrer overruled with costs.

________________________________________

Solicitor for the plaintiff: Craig Kirke & Wright.
Solicitor for the defendants: B. Emos, State Solicitor.