Waterboard v National Capital District Interim Commission [1990] PGNC 40; N868 (1 July 1990)

Unreported National Court Decisions

N868

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS. 21 OF 1990
BETWEEN: THE WATERBOARD
(PLAINTIFF)
AND: THE NATIONAL CAPITAL DISTRICT INTERIM COMMISSION
(1ST DEFENDANT)
AND: THE INDEPENDENT STATE OF PAPUA NEW GUINEA
(2ND DEFENDANT)

Waigani

Brown J
9-10 April 1990
May 1990

REASONS FOR DECISION

BROWN J: This matter comes befoe cohe court by way of originating summons which claims -

1. A declanatiot thaands rom from 1st July 1990 or on such extended date as may be gazetted by the Minister, the water supply anerageem se the descrin thedule to this summons shall vest in and band be thee the prop property erty of thof the plae plaintiff with the right of the plaintiff to operate and maintain it.

2. & Subject to or:er 3:

(i) ҈& a60; an inju injunction restraining the defendant from interfering in any way with the management, ownership and operating e watpply ewerage system referred to in order 1 above by the plaintiff.

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(ii) ـ a 0; a 0; a mandatory injunction compelling the defendant to do all such things as are reasonably required to give effect to the order in paragraph 1 above.

3. ـ҈& An order ther that the plaintiff pay to the defe defendantndant just compensation on just terms in respect of only part of the properansferred by the defendant to the plaintiff as a result of orders 1 and 2 above.

4.

4. Such other and further orser as the court sees fit.

5. C e sThedulh touo touon in 1 in (as greeds outboundaries of the National Capital Distriistrict.

The >The plainplaintiff tiff was established by Act No. 68 of 1986tled 0;Nat Water Supply & Sep; Seweragwerage Acte Act 1986.” All the provisions except s 39(b) were deemed to come into operation on 1st January 1987 and s 39(b) on 1st July, 1987.

PART 1. - PRELIMINARY

1. ;ټ T60; THE PURPOSES OFES OF THIS ACT

The purposes of this Act are to establish a Waterboard and to charge it with the duty of coordina plan desionstrn, maent of and chargingrging for, for, wate water supr supply and sewerage services throughout hout the country.

2. ҈& < < COMPLIANCE WINS COUTIONAL ONAL REQUIREMENTS

(1) This Acx e e ihategu rtes ates or restricts a right or freedom referred to in sub-division III. III.3(c) 3(c) (qualified rights) of the Constitution namely -

)ټ&##160;; thedom from arbitrary rary searcsearch andh and entr entry cony conferred by Section 44 of the Constitution; and

(b) &ـ the rige right to t to privacy conferred by Section 49 of the Constitution,

is a law that is made for that purpos>

160; For the purpofes otiSec29 n 29 of the Organic Lawc Law on P on Provincial Government it is declared that this Act relates to a matter of national interest.

(3) ҈& For ther the purpopurposes of Section 53 (protection from unjust deprivation of property) of the Constitution the purposes expressed in Section 1 are public purposes.

The fdefenwas established phed pursuaursuant to the National Capital District Government (Preparatory Arrangements) Act 1982 (Ch No 392) (being an Act to establish an Interim Government for the National Capital District and to make preparatory arrangements for the establishment of a government for the National Capital District as required by Section 4(4) of the Constitution).

I shall refer to the plaintiff as the “Waterboard”, first defendant, for convenience, as “the NCDIC and the National Water Supply & Sewerage Act 1986 as the “Waterboard Act”.

The matter was argued by way of affidavits filed by all parties. The facts surrounding the establishment and continued operation of the water and sewerage supply system for the National Capital District were set out in an affidavit of the General Manager of the Waterboard, Mr Paul F Montford. He recited the establishment of a statutory corporation pursuant to the Port Moresby Water Supply Ordinance 941 of Papua and stated that the administration of that ordinance was then under the Commonwealth Department of Public Works until 1973. By Cabinet decision of that year, Cabinet approved the offer to the Port Moresby City Council of the assets of the Water Supply & Sewerage Scheme at half of their depreciated value as at 4th April 1973 and further set out the financial terms of such offer. Notwithstanding a search for records relating to the City Council’s acceptance of such Cabinet offer there is apparently no evidence in the hands of the Waterboard to find the acceptance conditions by the Port Moresby City Council although it is clear that the Council in fact took over and operated the water and sewerage works.

Between 1975 and 1986 the Department of Works had constructed further water and sewerage works at an approximate cost of 15 million kina, all of which costs have been paid by the National Government (save for some amount paid by the Port Moresby City Council in 1981).

In addition other minor works have been constructed at the expense of Council.

In 1982 the NCDIC succeeded to the Port Moresby City Council pursuant to the National Capital District Government (Preparatory Arrangements) Act 1982.

That Act by s 41 gave the NCDIC power to legislate in relation to water reticulation and sewerage. The NCDIC passed subordinate legislation entitled “National Capital District Water Supply & Sewerage Law 1987”.

The Papuan Water Supply legislation was repealed by the Waterboard Act.

The NCDIC continued with the operation, management and services of the water and sewerage functions in accordance with its subordinate legislation, the NCDIC being, as I have shown, the successor to the Commonwealth Department of Works and the Port Moresby City Council. There was some evidence of various financial arrangements between the second defendant (“The State”) and the NCDIC in relation to payments for various water, sewerage and supply works. I find I do not have to enquire into those financial arrangements.

By Declaration dated 29 September 1989, published in the National Gazette No G66 of 12 October 1989, the Minister for Works declared the area specified in a schedule (The National Capital District) under s 27 and that part of the water supply and sewerage systems servicing that area, under s 28, to be the National Capital District Water Supply and Sewerage District with effect from 1 July 1990.

The Minister for Works is the Minister responsible for the administration of the Waterboard Act while the Minister for Decentralization is the responsible Minister in relation to the National Capital District Government (Preparatory Arrangements) Act 1982.

The Waterboard sought pursuant to ss 27 and 28 of the Waterboard Act to take over the water and sewerage assets of the NCDIC by virtue of such Declaration.

PART VIII SEWERAGE & WATER SUPPLY DISTRICTS ETC. SECTION 27 SEWERAGE DISTRICTS & WATER SUPPLY DISTRICTS

(1) ; The Minister nay on the rthe recommendation of the Board declare an area to be. -

(a) ټ arsewedige districttrict; or

(b) a suppstric>

(2));#160; < &#1he Waterboay may operatperate and maintain either through acquisition under this Act or by constructio-

a)҈&ـ see systems in a sewe sewerage rage distrdistrict; and

(b)  water supp supply systems tems in a water supply district.

(3) T-e by oawsegu rtiona may may make provision for all matters relating t wateply awerage systems, pms, protecrotection tion and control and the assessment and recovery of water supply and sewerage rates, charges and fees under this Act.

SECTION 28 - DECLARATION BY THE MINISTER

(1) ;ټ The Mine Minister ster may on the recommendation of the Board by notice in the National Gazette declare any water supply system or sewerage system by whatever name called to beter s district or a se a seweragwerage district under this Act.

(2) Arwateplsupyst s or meweraewerage system to which this section applies shall on the date of the publication of the notice under subs (1) together with all the lagoodserial thinrming of that water supp supply syly system stem or seor seweragwerage system, vest in the Waterboard and be the property of the Waterboard.

Mr Gaudi Kidu, the Deputy General Manager (Technical) of the NCDIC, gave evidence by way of affidavit. He took issue with the Waterboard’s action and the Gazettal declaring the boundaries of the National Capital District to be within the jurisdiction (sic) of the National Waterboard, claiming that the Minister’s actions were contrary to the National Executive Council’s decisions numbered 113/86 (dated 2 October 1986) and 6/87 (dated 14 January 1987). Mr Philip George, the General Manager of the NCDIC, also gave evidence by way of affidavit wherein he annexed, a letter dated 27 July 1987 from the Department of Justice to the Waterboard on the question of the State’s liability to pay compensation to the NCDIC; a letter dated 5 April 1987 from the Department of Finance and Planning addressed to the Chairman of the Waterboard (expressing the view that the Waterboard is heavily dependant on Government funding), and a letter dated 19 February 1990 from the State Solicitor to the Waterboard touching amongst, other things, on the issue of compensation.

No objection was taken by the plaintiff to this form of evidence.

The State, by affidavit of Mr Zacchary Gelu, the Acting State Solicitor, sworn on 6 April 1990, also put in evidence a letter under the hand of the Honourable, The Prime Minister, addressed to the Minister for Works, dated 27 February 1990 wherein the Prime Minister voiced the State’s interest, and suggested that the proposed cause of action by the Waterboard be withdrawn and for the parties to negotiate an out of court settlement.

That desire of the Honourable The Prime Minister, set forth in his such letter, was in effect the State’s position throughout the proceedings.

I must say that I find these proceedings misconceived. There has clearly been a pre-emptive use by the Waterboard of the Gazettal Notice. That the State is embarrassed by the proceedings goes without question for I have regard to the matters raised by counsel for the State, Mr Puringi. He says the matters raised in argument are matters for the National Executive Council (NEC) not this Court room. I particulary have regard to s 149 of the Constitution and those other parts which confirm the Westminster system of government in this country, varied as it has been to accommodate National interests and aspirations. The Constitution nevertheless takes account of the functions and political responsibilities of Ministers and the functions of the National Executive Council.

The rationale behind the effective Cabinet Government and no doubt the need to enshrine in our Constitution the establishment and functions of the National Executive Council, may be gleaned from this historial perspective. Wade & Phillips Constitutional Law, 7th Edition, at p 193:

“Cabinet Committees

A major problem of government is to secure coordination. Cabinet committees and committees of senior officials of the departments are designed to secure this. Most problems concern more than one department and should be presented to the Cabinet after agreement has been reached or at least after differences have been defined by the departments concerned. It is necessary to distinguish between the Cabinet and its ministerial committees which settle issues of policy, and committees of officials which coordinate and advise. In theory an official committee advises; the Cabinet or a ministerial committee decides; the department takes the necessary action. This does not mean that it is necessary that every question on which a committee is asked to advise should go subsequently to Ministers. Agreed recommendations may be implemented automatically by the departments concerned on the responsibility and authority of their respective Ministers - or, if the issue involved is not a major one, without specific ministerial authority.

The Cabinet Secretariat

The conclusions prepared by the Secretary to the Cabinet and circulated to the Queen and all Cabinet Ministers are the only authentic record of Cabinet meetings. All Cabinet committees are served by members of the Cabinet Secretariat. Although the Secretariat has no executive functions like those of the department, it is a highly efficient instrument for securing interdepartmental co-ordination by ensuring that documents are circulated before meetings in a form which presents the issue to be decided, for reporting, distributing and following up decisions taken.”

Since the confidentiality of the National Executive Council meetings has been waived by virtue of their inclusion in various affidavits, I set out hereunder the gist of the two particular minutes which give rise to the conundrum. These minutes are annexed to the affidavit of Mr Gaudi Kidu of 5 April 1990.

Decision 113/86:

On 2 October 1986 Council -

(i) approvee gaz otalect sn 58on 58 of the Waterboard Act and declaration of the National Capital District as a water supply and sewerage district (curiounder &ampof th).

(iii) & direboth authoauthoritiesities to work in harmony to achieve a transfer of responsibilities and property.

(iv) ved allocations for the Wahe Waterboard budget.Deci6/87:

On 1>On 14 Jan4 January uary 1987, Council reviewed the above decision and directed that its implementation be deferred until the ratioa comnsive reporteport with with part particular reference to various matters listed by the NEC minute.

Steps were taken by both Ministerial Departments in accordance with NEC decision 6/87. As part of Mr Montford’s affidavit, there is evidence of a draft reported having been prepared. (The “draft policy submission”). In the affidavit of Mr Gaudi Kidu of 5th April, two valuation reports by Camp Scott Furphy Pty Ltd and Willing & Partners are annexed. These reports are extremely detailed. So there is evidence that both the NCDIC and the Waterboard had taken steps to enquire into those aspects raised by NEC decision 6/87.

The “draft policy submission” by the Waterboard for Members of the National Executive Council dated 15 September 1989, predates the date of the Declaration by the Minister for Works published in the Gazette. That notice was dated 29 September 1989 and published on 12 October 1989. But it is interesting that on cross-examination, Mr Montford conceded that his “draft policy submission” attached to his affidavit of 8 February 1990 never went to the NEC. So far as Mr. Montford was aware it had not been considered by Cabinet.

In his affidavit paragraph 6 he said -

“Annexed hereto and marked “B” is a draft of a policy submission prepared by myself dated 15 September 1989 then intended to be made to the National Executive Council. It is my belief that that submission with its annexures provides a factual statement of the present position concerning the water supply and sewerage systems in Port Moresby.”

By annexing this “draft policy submission” comprising some 57 pages am I expected to make a decision which is clearly the responsibility of the NEC?

I find that there was an attempt by virtue of the Gazettal Notice to prevent the National Executive Council’s further consideration of those particular matters referred to in NEC 6/87.

On commencement of this hearing Mr. Donigi for the NCDIC addressed me on the question of my jurisdiction to hear the claim. He stated that on a review of the affidavits (which were not then in evidence) the Executive powers and avenues had not then been exhausted as to the substantive determination. The NEC had apparently not considered the matter further and it was not for this Court to preempt Council’s consideration by embarking on an enquiry.

The plaintiff is seeking a declaration as to the efficacy of a gazettal notice which purports to vest the sewerage and water reticulation works in the plaintiff contrary to the existing interest of the NCDIC. Mr Donigi went on to raise the matter of s 53 of the Constitution (dealing with rights on compulsory acquisition of property) and asserted that the Waterboard legislation did not comply with the premise contained in s 53 in that assets may not be compulsorily acquired except in circumstances therein set forth. Whilst the Waterboard Act in s 2(3) states - “for the purposes of s 53 (protection from unjust deprivation of property) of the Constitution the purposes expressed in Section 1 are public purposes”, counsel says the Act of the Gazette was not for public purposes as the phrase was understood.

In all the circumstances he says that s 18(2) of the Constitution requires my referral of the gazettal by the Minister for Works (pursuant to ss 27 and 28 of the Waterboard Act), to the Supreme Court. He gave as the basis of his authority the various comments to that section to be found in the Annotated Constitution of Papua New Guinea (pp 52-54 inclusive) and referred me particularly to the Supreme Court Reference 3 of 1982 at p 405.

I shall give reasons later in this decision why I do not feel constrained to refer these questions to the Supreme Court and hence defer consideration of the plaintiff’s claim.

But I now come to the power of the court to make declarations. Such a power is very wide as expressed by Moffit P of the NSW Court of Appeal:

“The proper conclusion to be drawn concerning the power to make a declaration is that the jurisdiction (in the strict sense) to grant declaratory relief in a properly constituted action is very wide, so that no particular limitation can be pointed to, but it may be excluded by statute in a particular type of case, e.g. where jurisdiction is conferred upon another tribunal in terms which exclude the jurisdiction of the Court. Limitation in respect of the power depends upon the discretion (in the wide sense) of the Court not to exercise it, because the practice of the Court so dictates, or because the individual judge, on the facts of the case, in exercise of his judicial discretion, determines it inappropriate to exercise the power. In broad outline the policy of the Court as to the occasion for the exercise of the discretion is that defined by Lord Dunedin (36) as a distillation of decisions of the Scottish courts over the centuries and adopted as appropriate in the use of declaratory relief in England. There is reluctance, however, for the Courts, in advance, to lay down other specific limitations to fetter the exercise of the discretion. However, the power to make a declaration is but one of the powers of the Court, and some practices and policies of the Court have general application. A court therefore, in exercise of the power to grant declaratory relief will need to consider to what extent any general policy or practice of the Court dictates that the power to make a declaration should or should not be exercised.” Johnco Nominees Pty Ltd v Albury-Wodonga (NSW) Corp. (1977) 1 NSWLR 43(a) 57.

This court’s practice has been to utilise the relief in a wide variety of situations e.g. Taumaku Morea v Central Provincial Government [1978] PNGLR 415 (declaration seeking confirmation of entitlement to seat in Provincial Assembly); PNG v Lohia Sisia [1987] PNGLR 102 (review of administrative acts deriving from s 23(2) and s 155(4) of the Constitution) are but examples.

If I was to grant the declarations, the effect would be to prevent further considerations by the NEC. It is apparent that the NEC has deferred making a decision pending consideration of various matters touched on in the draft submission. I am not being asked to substitute my findings on those considerations to prevent NEC from further review, but rather by declarations, acknowledge that the Waterboard’s utilisation of procedures is correct and consequently the efficacy of the notice gazetted.

It is strange that Counsel for the State has not argued that the National Executive Council is to reconsider the problem and seek an adjournment during which time the responsible Ministers would have been subject to direction by Council.

But I am on notice that the NEC has not reconsidered, and any grant of a declaration in these circumstances in the face of NEC decision 6/87 would be tantamount to an infringement of the executive branch of Government’s right to carry on its business. Whilst I need not enquire into the “draft policy submissions”, would I not by such declaration be undermining the integrity of the NEC which itself has not yet considered the very aspects deferred pending a report?

I adopt the obita dicta of Greville Smith J in SCR No 4 of 1980 (No 2) re Petition of M T Somare [1982] PNGLR 65(a) 70 where he says:-

“For the preservation and promotion of the integrity and welfare of Papua New Guinea the various branches of government must support one another as far as they legally and properly can, and there seems to me much to be said for the view that it would be, in the circumstances I have outlined, legal, proper and desirable for this Court to refuse a declaration.”

I consider I should refuse to exercise my discretion for those reasons.

Hutley JA expressed his reluctance to entertain an application for declaratory relief in the circumstances of Dorney v Commissioner of Taxation [1980] 1 NSWLR 404(a) 408 where he said:

“There is a further restriction on the effectiveness of a declaration, namely that, as its name indicates, it is not a constitutive legal act as is, for example, a judgment for debt or damages; and, except by giving to existing legal relations the status of a res judicata, it cannot change them.”

Normally a declaration would serve the continuing legal interest of plaintiff (Tebbutt v Egg Marketing Board of NSW [1976] 2 NSWLR 179(a) 185 and cases referred to by Hutley JA). But this case can be distinguished, for the plaintiff seeks a declaration which would extinguish the continuing legal interest of the NCDIC in those water and sewerage assets. The legal effect of the gazettal notice then is clearly in issue, for I am asked to say it transfers the assets from the NCDIC and vests them in the Waterboard.

Counsel for NCDIC says I should not embark on the hearing of that question for it raises the interpretation or application of a provision of a constitutional law. I do not believe that it does. The provisions of the Waterboard Act which he says requires interpretation or application are ss 1, 2(a), 27 and 28 since he says the gazettal results in “a compulsory acquisition”. This is not within the Minister’s powers if this Court was to have regard to the purposes of the Waterboard Act and thus “compulsory acquisition” is unjust deprivation of property expressly prohibited in terms of s 53 of the Constitution.

The Waterboard is a Statutory Authority created by an Act of Parliament. The water and sewerage assets were those of the NCDIC at the time of the gazettal notice. There is no doubt in my mind that the protections afforded “people” and “citizens of PNG” by the provisions of s 53 of the Constitution do not apply to arguments of this nature between these two parties.

I rely on extracts from the CPC Report which are included in the Annotated Constitution of Papua New Guinea. These extracts “may be used as aids to interpretation where any question relating to the interpretation or application of any provision of a Constitutional Law arises” [s 24 Constitution].

To allow particular arms of Government or statutory authorities to rely on s 53 for internal arguments would be to create a mischief. The section was not inserted for that purpose and it would be improper in my opinion to extend the operation for it to be so used. The Recommendations (p 29) state:

“15(1)

(a) &&#160jectbto clto clause (use (2) below, no citizen shall be deprived compulsorily of any property or interest in or right over such property except in accordance with law and principles of justice

(b) ...../p>.

an<

S53p>S53

(b) ҈& “8220;the nehe necessity for taking of possession or acquis for ttainof thrposeor that reasons is such as to afford reasonable juse justifictificationation for for the cthe causing of any resultant hardship to any person affected.”

I consider that disposes of those “acquisition” arguments raised by Mr Donigi as they affect his reading of “public purpose” in s 2(3) and “vesting” under s 28(2) of the Waterboard Act which arguments would preclude my continued hearing of the originating summons. In other words there is no acquisition by Government or Government Instrumentality from a “citizen” or “person” afforded the protection of s 53 of the Constitution.

I find I do not have to consider his argument on s 38(2) of the Constitution (general qualifications on qualified rights) for the NCDIC is a District Government or part of the “body politic” and is a very authority burdened by the provisions of s 28(2) in the exercise of its legislative function and is not “a person” or “citizen” whose individual rights or freedoms are affected by Government.

That leaves his argument based on the “purpose” of the legislation as evinced by Section 1. Am I to make a reference to the Supreme Court on the basis that, on the recommendation of the Board, by gazettal, the Minister for Works has purported to vest NCDIC assets in the Waterboard ultra vires the powers of the Act?

Section 18 of the Constitution requires such a reference which relates “to the interpretation or application of any provision of a Constitutional Law.” By Schedule 1-2 “Constitutional Law” means “this Constitution, a Law altering this Constitution or an Organic Law”.

The Waterboard Act is not expressed to be an Organic Law so on the reasoning of Kapi J (as he then was) the “question to ask here is whether the Reference raises any question of interpretation of a word or words or provision of a relevant constitutional law”, SCR No 2 of 1981 referred to in “The Annotated Constitution of Papua New Guinea” (a) 56. Where it does not the issue remains for this court to decide the intention of Parliament in passing the Waterboard Act and whether the act of gazettal was ultra vires the Ministers powers when he purported to vest those assets in the Board.

I pass then to the consideration of whether the purported vesting of the asset of NCDIC in the Waterboard was ultra vires the Ministers powers. I start at Section 1 of the Waterboard Act which sets out its purposes. That section has previously been reproduced. The true object of this Act is crucial to the validity or otherwise of the Ministers gazettal.

The practical effect of the gazettal is to interfere with the function of the NCDIC in a most material way. The NCDIC was brought into existence by an Organic law and has a legitimate interest in maintaining its right to its assets. No Constitutional law has been referred to me which would imping on that right. Sections 27 and 28 then of the Waterboard Act purport to give the Minister power on advice of the Board to gazette areas and consequently vest certain property in the Board.

Sections 27 and 28, the legislative provisions giving rise to the gazettal, subject the NCDIC to great disadvantage. I do not consider those sections are directed to any consideration of or the protection of legitimate proprietory interests of the NCDIC. The direct effect is to extinguish by gazettal the rightful interest of the NCDIC to those assets. Were the Waterboard Act to regulate evenhandedly to effect its legitimate public purposes of providing water and sewerage services and its effects on other instrumentalities or Provincial Districts were only incidental, then I would uphold the validity of the gazettal notice. But such is not the case here. The burden imposed on the NCDIC is clearly excessive in relation to the supposed benefit to the public under the Waterboard Act. The NCDIC has carried out and continues to carry out the function of supplying water and sewerage services to the NC District and while the Waterboard argues that it is best placed to carry out that function the fact remains no clear local benefit can be shown sufficient to displace or out weight the detrimental effect to the NCDIC by such purported “vesting”.

If there is a legitimate local purpose to be found in the gazettal order pursuant to the “purposes of this Act” clause (s 1) then the question becomes one of degree i.e. balanced against the legitimate interest in the NCDIC to continue with its functions. But since the gazettal strikes at the very base of the NCDIC interest, its proprietory right to the assets, I do not consider the gazettal notice only incidentally affects the NCDIC and hence is void as being ultra vires.

For these reasons on examination of the competing legitimate public interests and its direct and indirect effect I do not presume to say such gazettal notices in different circumstances will always be void and of no effect. But I can see no justification for such a draconian step as gazettal here on a reading of the purposes of the Waterboard Act. The gazettal has been directed towards a result, the acquisition of assets, the burden on the NCDIC could then hardly be classified as “incidental” by declaring the NC District a Waterboard area. The characterisation of the gazettal notice is analogous to that of compulsory resumption.

The practical operation of the Waterboard as a whole is directed towards “management of” water and sewerage services. When one has regard to the nature and extent of the assets and the impact such transfer would have on the functions of the NCDIC, the inescapable conclusion is that the gazettal is beyond the legitimate concerns of the Board, as provided for under the “purposes” section of the Waterboard Act.

The question whether this gazettal is a necessary or desirable solution to this perceived problem of the Waterboard is a political question best left for determination as envisaged by the NEC. That part of the gazettal notice which purports to vest the water supply and sewerage system of the NCDIC in the Waterboard nevertheless is void and of no effect.

“But if the means which the law adopts are disproportinate to the object to be achieved the law has not been considered to be appropriate to the achievement of the object”: the Tasmanian Dam case [1983] HCA 21; (1983) 158 CLR 1(a) 278; South Australia v Tanner (1989/166) CLR 161(a), 165, 178 adopted in Cartlemaine Tooneys Ltd v SA (a) 153.

As well on paraphrasing the judgment of Mason J in American Dairy (Qld) Pty Ltd v Blue Rio [1981] HCA 65; (1981) 56 ALJR 47(a) 49, I am satisfied that Part VIII of the Waterboard Act “does not have the appearance of a Code” and consequently is not “a comprehensive and exclusive code” dealing with the property rights purported to be affected by the gazettal notice under ss 27 and 28. There is in s 28(2) the bland statement that “a water supply system ..... shall on the date of publication of the notice under subsection (1) (the gazettal notice) together with all the lands goods materials and things forming part of that water supply ... vest in the Waterboard and be the property of the Waterboard.”

Section 29 - saving of contracts; Section 30 - actions, etc not to abate; and Section 31 - application of Acts etc do not touch on obligations of the Board viz a viz the unlucky transferee, (whether by way of compensation or otherwise,) the method of transfer (reciting powers under the Act or by way of valuable consideration for instance) or any other matters which may be expected in an all inclusive code dealing with such transfer of property.

From the findings of the American Dairy case I quote from Mason J’s judgment (a) 49 -

“the general rule is that the court will construe a statute in conformity with the common law and will not attribute to it an intention to alter common law principles unless such an intention is manifested according to the true construction of the statute. See The Queen v Morris (1867) LR 1 C.C.R. 90 at p 95, Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277 at p 304; see also Craies on Statute law (7th Edit. 1971) pp 188-189. This rule certainly applies to the principles of the common law governing the creation and disposition of rights of property. Indeed, there is some ground for thinking that the general rule has added force in its application to common law principles respecting property rights” and further “the question then is whether the Act on its true construction is intended to operate as a comprehensive and exclusive code so as to deny to a sub lessee of land let under Part XI of the Act the right to dispose of his interest in land.”

The facts of the American Dairy case involved the right of a sub-lessee to transfer mortgage or sub-let under Part XI of the Land Act (Queensland). The High Court found on appeal, that what the Act did was to prohibit those dealings without written approval, so “instead of authorising a lessee to transfer mortgage or sublet, it relies on the lessees right of disposition at common law and restricts or qualifies it in the manner indicated” [49G].

The NCDIC has, by succession, common law rights to its assets.

While a literal reading of s 28(2) would appear to extinguish all common law rights to property of others on gazettal, the “purposes of the Act” cannot be said to justify such a reading.

Further when I find that Part VIII of the Waterboard Act is not an exhaustive Code which particularises all rights powers and obligations of the respective parties affected, I have regard to the dicta of Street C.J. in North Sydney Municipal C. v Comfytex P/L (1975) 1 NSWLR 447(a) 450 “It is a long recognised and salutary principle that, the wide ranging jurisdiction of a superior court is not to be treated as limited or abrogated by anything short of a clear expression of legislative intention to that effect.”

The plaintiff in asserting that the Waterboard Act is a Code would put limits on this Courts discretion. In effect it is suggested, the Court can do nothing other than grant the Declarations sought. Adopting the principle stated by Street CJ, I find that I am not so constrained for, that part of the Act is not a comprehensive and exclusive exposition of rights duties and obligations in circumstances involving a gazettal of a Water District. It is not a Code.

Finally the gazettal specified, “that part of the water supply and sewerage systems servicing the area specified in the schedule (the National Capital District) as is owned by the State, to be the National Capital District Water Supply and Sewerage District”. Hence under s 28 those assets and works “owned by the State” vest in the Waterboard.

Since the coming into operation of the National Capital District Government (Preparatory Arrangement) Act 1982, the assets and works which have come from the State through the Port Moresby City Council to the NCDIC, are the property of the NCDIC and are held by right of that legislation.

I accordingly find that gazettal notice so far as it purports to acquire lands, goods, materials and things forming part of the water supply system or sewerage system of the NCDIC is void and of no effect. As I have previously said, I decline to make the declarations as sought.

It would be appropriate for the NEC to complete its considerations, and for that reason I find the State has been properly joined, although it did not argue the merits of the case before me content to submit to the orders of the court. The defendant shall have its costs of these proceedings from the plaintiff. The State has really not involved itself in the imbroglio but, I am of the view it should bear its own costs.

ORDERS

In respect of the originating summons filed 9 February 1990, I refuse the declarations sought and dismiss the summons. I order the plaintiff to pay the defendants costs of those proceedings and of the motion of 26 February 1990.