N387
PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

PLACER HOLDINGS PTY. LTD.

AND THE LAND ACT (CH. 185)

Waigani
Kapi DCJ

6 September 1982

APPEAL - Extension of time - Application for - Relevant principles - Forfeiture of lease - Special reason - Discretionary power - Onus on applicant - Land Act, (Ch. 185) s. 112(2) - Constitution, s. 155(4).

Under the Land Act (Ch. 185), s. 112, an appeal against the forfeiture of a government lease 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".

On an application for extension of time in which to appeal under s. 112(2) of the Land Act:

Held:

(1) the power to grant leave to appeal is discretionary;

(2) there must be a special reason or exceptional circumstances shown for any delay;

(3) there must be some merit in the proposed grounds of appeal; and

(4) the onus of so satisfying the Court is on the applicant;

(5) such an order could be made under s. 155(4) of the Constitution according to the principles applicable under s. 112.

Cases Cited:

Avia Aihi v. The State [1981] P.N.G.L.R. 81.
Avia Aihi v. The State (No. 2) [1982] P.N.G.L.R. 45.
Constantinou, In re proposed appeal by [1977] P.N.G.L.R. 1.
Placer Holdings Pty. Ltd. v. P.N.G. [1982] P.N.G.L.R. 16.
R. v. Brown [1963] S.A.S.R. 190.
R. v. Jeffries [1949] N.Z.L.R. 595.
R. v. Rhodes (1910) 5 Cr. App. R. 35.
R. v. Tyrrell [1974] A.C.L. 164.
Secretary for Law v. Tisunkac Nawok Domstock [1974] P.N.G.L.R. 246.
S.C.R. No. 2 of 1981; Re s. 19(1)(f) of the Criminal Code [1982] P.N.G.L.R. 150.
Varney v. The Queen [1964] V.R. 143.

Application

This was the hearing on the merits on an application for extension of time in which to appeal against forfeiture of a lease under s. 112(2) of the Land Act (Ch. 185).

Counsel:

T. Glen, for the applicant.
L. Au and B. Corder, for the respondent.
Cur. adv. vult.

6 September 1982

KAPI DCJ: This is an application for extension of time within which to appeal under the Land Act (Chapter 185), s. 112(2).

Placer Development Ltd. was granted a government lease (Vol. 50, Folio 59) under the Land Act. The lease was forfeited by the government on 1st May, 1980. The applicant and its lawyers became aware of this forfeiture on 16th May, 1980. Under the Land Act, (s. 112(2)) an interested person may appeal to the National Court on a forfeiture of a lease within 28 days or within such further time as the court may allow. The applicant did not appeal against the forfeiture within 28 days. The application to extend time was not filed until 23rd December, 1980. This application came before Miles J. on 27th February, 1981. The State was not represented. The application was granted and time extended to 23rd December, 1980. The applicant filed a notice of appeal on that day.

Subsequently, the State made an application to Miles J. to set aside his order of extension of time. A number of new matters were raised which were not brought to his Honour’s attention during the hearing of the earlier application. The most important matter was a decision of Williams J. in In re proposed appeal by Constantinou [1977] P.N.G.L.R. 1. This case stands for the proposition that an application for extension of time within which to appeal under s. 112(2) of the Land Act, cannot be made outside the time limited for appeal (i.e. 28 days). His Honour felt bound by this decision and he came to the conclusion that had this authority been brought to his attention earlier, he would not have made the order he made. He set aside his earlier order on this basis.

The applicant appealed to the Supreme Court on the basis that the Constantinou case was wrongly decided and that an applicant could make an application outside the 28 days period and it was a matter for the National Court in the exercise of its discretion whether to grant the application or not. The Supreme Court upheld the appeal and sent the matter back for rehearing on the merits. See Placer Holdings Pty. Ltd. v. P.N.G. [1982] P.N.G.L.R. 16.

I am required to consider the merits of this application under s. 112(2) of the Land Act which provides:

112(2) An appeal under sub-s. 1 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.

What are the proper principles which should guide the court in considering applications under this provision?

In construing the provision I do not intend to define the meaning of special reason". What is or may not be a "special reason" on the particular facts of a case should be left to the discretion of the court in the particular case. However, some assistance can be obtained from cases dealing with general statutory provisions on extension of time. Section 34(2) of the then Supreme Court (Full Court) Ordinance 1968 provided as follows:

"The time within which notice of appeal, or notice of an application for leave to appeal, may be given, may be extended at any time by the Full Court or a Judge."

In construing this provision, the then Full Court said:

"From authorities cited before us we take the proper construction of s. 34(2) to be that an extension of time will not be granted as a matter of course but that the Court will in every case require substantial reasons to be advanced before granting such a concession." (Emphasis mine)

See Secretary for Law v. Tisunkac Nawok Domstock [1974] P.N.G.L.R. 246 at p. 248.
The courts have used different words to describe the type of reasons which must be shown before time is extended. Here are some cases which used different terms to describe the reasons which must be shown:

—"grave reason" See R. v. Brown [1963] S.A.S.R. 190.

—"special and substantive reasons" See R. v. Jeffries [1949] N.Z.L.R. 595; Varney v. The Queen [1964] V.R. 143.

—"satisfactory reasons" See R. v. Rhodes (1910) 5 Cr. App. R. 35; Varney v. The Queen (supra).

—"cogent and convincing reason and exceptional circumstances" See R. v. Tyrrell [1974] A.C.L. 164.

All these cases were adopted in Avia Aihi v. The State (No. 2) [1982] P.N.G.L.R. 44.

It appears to me from the foregoing cases that the words "special reason" in s. 112(2) of the Land Act specify the type of reason which the courts have implied into more general provisions. I consider the principles set out in the above cases applicable in this case.

1. leave will not be granted as a matter of course;

2. there must be special reason, or substantial reason, or satisfactory reason, or cogent and convincing reasons or exceptional circumstances shown for the delay.

3. there must be some merit in the grounds of appeal.

4. whether leave is granted is in the discretion of the court.

5. the onus is on the applicant to satisfy the court.

The applicant was made aware of the forfeiture on 16th May, 1980. The applicant’s lawyers were advised immediately on the same day. The applicant and its lawyers had 12 days in which to lodge an appeal against the forfeiture. I consider that they had enough time in which to lodge the appeal. The applicant does not allege that its lawyers did not have enough time to lodge the appeal. They allowed the 28 days period to lapse.

The only reason which it puts forward as a special reason is that its lawyers were given to understand by the Department of Lands that the same land would come up for tender and that it would submit a new tender. The lawyer for the applicant apparently determined that it had good prospect of success and advised not to appeal and wait for the new tender. The applicant’s submission is that its lawyers were lulled into a false security and therefore determined not to appeal.

[His Honour then considered the evidence and concluded.]

I have come to the following conclusions:

(a) That there is no evidence to show that the applicant’s lawyer was lulled into a false security by the Department of Lands that its application in the new tender would be successful.

(b) The choice not to appeal within time was made by the applicant upon advice by its own lawyer. The lawyer’s advice was based on his own independent opinion of the success of the new tender. The prospect of success in the new tender was very remote at time the decision was made not to appeal. The applicant and its lawyer took this course out of their own accord.

(c) When the applicant was made aware that it ran the risk of not having this land approved by the town planner in July 1980, it took no action to secure the right of appeal by applying for extension of time at an earlier date.

(d) Upon receipt of advice by the town planner that the land would not be up for tender on 12th November, 1980, the applicant took no action until 34 days later. No explanation has been given for this delay.

I am not satisfied that any special reason has been shown by the applicant.

The applicant further relied on the provision of s. 155(4) of the Constitution. This argument was not fully developed.

This provision has been fully considered in Avia Aihi v. The State [1981] P.N.G.L.R. 81, and S.C.R. No. 2 of 1981; Re s. 19(1)(f) of the Criminal Code [1982] P.N.G.L.R. 150. These cases have established that power given under this provision is remedial in nature and cannot be used to create primary rights. There must be an existing right. This power can be used to protect or enforce existing rights. In principle, I consider that the right to apply for an extension of time in which to appeal under s. 112(2) of the Land Act could equally be enforced under the second leg of s. 155(4) of the Constitution. However, I do not consider that the provision takes the matter any further than the Land Act. Under s. 155(4) of the Constitution, the court may make orders which "are necessary to do justice in the circumstances of a particular case". What is justice in the circumstances means justice according to law. The court cannot apply its own action of justice. The law to be applied on an extension of time in the context of this case is in s. 112(2) of the Land Act. That is to say, the exercise of the court’s discretion can only be exercised in favour of extension of time for a special reason. I have already concluded that the applicant has failed to show any special reason.

Application refused.

________________________________

Solicitor for the applicant: Beresford Love & Co.
Solicitor for the respondent: O. Emos, State Solicitor.