BOC Gases (Samoa) Ltd v Attorney-General [2000] WSSC 8 (24 May 2000)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER: of The Lands, Surveys and Environment Act 1989

AND:

BOC GASES (SAMOA), LIMITED
a duly incorporated company having its registered office at Vaitele
("Appellant")

AND:

THE ATTORNEY-GENERAL
on behalf of the Land Board
("Respondent")

Counsel: Ms B.P. Heather-Latu for the Respondent
Mrs R. Drake for the Appellant

Hearing: 17 May 2000
Judgment: 24 May 2000

REASONS FOR JUDGMENT OF WILSON, J

A question of statutory interpretation arises here. It is therefore necessary to examine the enactment in question [section 12(1) of the Lands, Surveys and Environment Act 1989] in the context of the law regarding statutory interpretation in Samoa.

Section 12(1) of the Lands, Surveys and Environment Act 1989 provides:

"12. Appeals to Supreme Court - (1) If any person considers himself aggrieved by any decision of the Board he may appeal to the Supreme Court if, within one month after being notified of that decision, he gives notice of appeal to the Board, and also to such persons (if any) as have appeared before the Board as opponents of the case or claim or application to which the decision relates, and also gives security to be approved of by the Registrar of the Supreme Court for the costs of the appeal."

(The emphasis is mine.)

Part 1 of the Act deals with matters of general administration and, therefore, procedure. As will appear, I conclude that the Act is not an absolute statute which must be obeyed or fulfilled exactly.

In so far as the common law is a guide to the determination of the question of statutory interpretation here, viz. whether words "may .... if, within one month after being notified of that decision he gives notice of appeal" are to be interpreted as being mandatory or merely directory, I consider that I should follow the authorities set out in Police v Leafa Vitale and Toi Aukuso Cain (No. 10), unreported decision of the Supreme Court of Samoa dated 29 February 2000 and hold that the ‘literal’ rule of statutory interpretation, now much qualified, is inappropriate to the circumstances of Samoa at this time. But, as I stated in that decision, the common law is not the only guide. The Acts Interpretation Act 1974 applies, and the purposive rule of statutory interpretation is the preferred rule under the statute law of Samoa.

Section 5(i) of the Acts Interpretation Act 1974 provides:

"5. General rules of construction -

(a) to (h) ..........

• (i) Every Act, and every provision or enactment thereof, shall be deemed remedial, whether its immediate purport is to direct the doing of anything Parliament deems to be for the public good, or to prevent or punish the doing of anything it deems contrary to the public good, and shall accordingly receive such fair, large, and liberal construction and interpretation as will best ensure the attainment of the object of the Act and of such provision or enactment according to its true intent, meaning and spirit;
  
  • (j) to (k) ............"
    

I have been assisted in applying the law of statutory interpretation to the facts of this case, which is concerned with a notice of appeal being out of time, by a decision of the High Court of Australia in Hatton v Beaumont (1978) 20 ALR 314.

The question to be determined in that case was whether sub-regulation 14(e), which provided for a time limit "within" which a security (for an appeal in respect of which notice of appeal had been lodged) "shall" be deposited, was mandatory or directory. The High Court held that such a provision should be read as directory so that, although the sub-regulation must in substance be complied with, a failure to comply within the prescribed time did not deprive the court of its jurisdiction to hear an appeal.

Whilst one judicial obiter dictum in that decision (at p.319) provides support for the respondent’s stance in this case ("the requirement that notice of intention to appeal be lodged within 21 days .... (is a) mandatory provision imposed on an appellant"), Jacobs J, with whose reasons Gibbs A CJ (as he then was), Stephen and Aickin JJ agreed, stated (also at p.319):

"Then, as to the correct approach to be adopted when the legislative intention is not clear, to say that procedural requirements are usually or prima facie mandatory in character cannot gainsay the primary necessity of examining the framework and language of the statute or regulation ....."

I am provisionally of the opinion that, examining the framework and language of the Lands, Surveys and Environment Act and applying the purposive rule of statutory interpretation, section 12(1) is revealed as being a directory, and not a mandatory, provision. The words "may ..... if, within one month after being notified of that decision he gives notice of appeal" do not mean "must within one month and not otherwise....." The Supreme Court is not, I think, deprived of the discretionary power to extend the time for giving notice of appeal.

A relevant question to be asked before finally reaching that conclusion is : what are the consequences if the provision is not observed? That question is, I think, to be answered by looking at the subject-matter of the legislation and the relation of the particular provision to the general object to be secured by the legislation. It is important to bear in mind the effect of determining that the provision is mandatory. This, in general, will mean that non-compliance with the provision will result in the "total failure" (see the authority relied upon by Mrs Drake, Howard v Bodington [1877] UKLawRpPro 14; (1877) 2 PD 203 at p.210) of anything sought to be done by the appellant under the legislation, and in the "total failure" of any rights or powers which would otherwise flow from it. That will be so whatever be the circumstances of the non-compliance and whatever, in the particular case, be the injustice to flow from it.

I am conscious of the authority which supports the view that, in the context of judicial proceedings, statutory provisions are generally construed as mandatory. But the rigidity of the operation of a provision, if mandatory, and the fact that its consequences will flow regardless of the merits of the individual case must, in my opinion, be carefully weighed.

In Accident Compensation Commission v Murphy [1988] VicRp 52; (1988) VR 444 the Full Court of the Supreme Court of Victoria, Australia, after discussing these issues and referring to Howard v Bodington supra at p.211, said (at p.446):

"It is .... of assistance to ascertain whether failure to adhere strictly to the requirement has caused prejudice to those for whose benefit the requirement was introduced or whether the public interest would suffer a disservice if it were held to be mandatory."

The view I hold is that prejudice to the appellant has been shown to exist here and the respondent has not, except in a general way, pointed to potential "disservice .... to the public interest" which would be suffered if I were to reach a different decision. This is not a case in which a decision favourable to the appellant would open the flood-gates to chicanery or lead to the wholesale frustration of Parliament’s intention.

I conclude my consideration of the law, as it applies to the subject requirement as to time, by referring to the persuasive decision of the Court of Appeal of New South Wales, Australia, in Woods v Bate (1987) 7 NSWLR 560 in which McHugh JA (as he then was) said (at p.560).

"A statute which requires an act to be done within a particular period does not necessarily invalidate the doing of that act outside the period. The purpose of the statutory requirement may be directory rather than mandatory. It depends on the terms of the enactment. If the purpose of the provision is to ensure that the act is done within the stipulated period, then the doing of the act outside that period is of no effect. If, however, the purpose of the provision is to state a direction but not an imperative requirement, then the doing of the act outside the period will not necessarily invalidate it. To determine what is the purpose of the provision, it is necessary to weigh the various consequences of a failure to comply with the statute ....."

And (at p.367) His Honour said:

"In recent times the courts have shown great reluctance to invalidate an act done pursuant to a statutory provision because of the failure to comply with an antecedent condition."

After considering a number of relatively recent authorities in New Zealand, England and Australia, His Honour went on (at p.367):

"Speaking generally, I think that, at the present time, the proper approach is to regard a statutory requirement, expressed in positive language, as directory unless the purpose of the provision can only be achieved by invalidating the result of any departure from it, irrespective of the circumstances or resulting injustice : cf. Hatton v Beaumont (1977) 2 NSWLR 211 at 226 per Mahoney JA."

I am persuaded by the reasoning of Lawton LJ in Reg. v Croydon Justice, Ex parte Lefore Holdings Ltd. (1980) 1 WLR 1465, a decision of the Court of Appeal in England, in which the Magistrates Courts Rules 1968 were considered and in which His Lordship said (at p.1470):

"Now, the ‘general object intended to be secured’ (see Howard v Bodington supra at p.211) by the change in the law was the speeding up of justice. It was not to curtail the opportunities for doing justice. I have to bear in mind that all sorts and manner of persons come before (judicial tribunals); some may be worldly wise; some may have the benefit of expert legal advice; some may not be worldlywise; others may have the advice of inexperienced lawyers. It would be a sad state of affairs if ........ a mere failure to comply with a procedural rule should in all the circumstances keep an applicant away from the seat of justice."

For all these reasons, on the appellant’s notice of motion seeking inter alia an order extending the time for giving notice of appeal pursuant to section 12(1) of the Lands, Survey and Environment Act 1989, I order that the said time be extended until 2 November 1999. There is no legal impediment to this Court making such an order. I make such an order in the exercise of the judicial discretion that is mine. The matters I have taken into account include the length of the delay in giving notice of appeal (a matter of several months), the explanation for the delay (as deposed to in the affidavit of Stuart Fowler sworn on 23^rd November 1999), the lack of evidence of any specific evidence of prejudice to the respondent by the granting of an extension of time other than a desire to achieve a measure of certainty and to avoid delays in the finalisation of land matters, and the actual prejudice to the appellant (the denial of his opportunity to appeal if the application were denied).

The application of the respondent to have the appellant’s notice of appeal struck out is dismissed.

JUSTICE WILSON