Irene Davis v Karipe Pitzz (Secretary for Lands and Physical Planning) and The Independent State of Papua New Guinea [1988-89] PNGLR 143

• Jurisdiction: Papua New Guinea
• Judge: Bredmeyer J
• Judgment Date: 28 April 1989
• Court: National Court
• Citation: [1988-89] PNGLR 143
• Year: 1989
• Judgement Number: N703

Full Title: Irene Davis v Karipe Pitzz (Secretary for Lands and Physical Planning) and The Independent State of Papua New Guinea [1988-89] PNGLR 143

National Court: Bredmeyer J

Judgment Delivered: 28 April 1989

N703

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

DAVIS

V

PITZZ (SECRETARY FOR LANDS AND PHYSICAL PLANNING)

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Waigani

Bredmeyer J

16 April 1989

28 April 1989

ADMINISTRATIVE LAW — Judicial review of administrative decisions — Rules of natural justice — Breach of — Right to be heard — Right to put case — Ministerial decision — Forfeiture of government lease — Short notice of hearing — Absence of relevant available material before Land Board — Formal notification giving incorrect appeal provisions — Land Act (Ch No 185), ss 9 (1), 11, 46 (1) (a), 46 (2), 112.

ADMINISTRATIVE LAW — Judicial review — Unreasonable delay as bar to relief — Discretion — Delay of two years three months — Forfeiture of government lease — No hardships or prejudice to any person — Continuing negotiations with Minister likely to be successful — Respondent not arguing delay — National Court Rules, O 16, r 4.

REAL PROPERTY — Government leases — Forfeiture — Application of rules of natural justice to — Land Act (Ch No 185), ss 9 (1), 11, 46 (1) (a), 46 (2), 112.

On an application pursuant to s 155 (2) (b) of the Constitution for judicial review of a decision of the Minister for Lands and Physical Planning, on the recommendation of the Land Board to forfeit a government lease, subject to the Land Act (Ch No 185), for failure to comply with an improvement covenant and failure to pay rent,

Held

(1) Natural justice had been denied to the lessee by:

(a) the giving of five days prior notice in the National Gazette of the sitting of the Land Board instead of the seven days prior notice required by s 9 (1) of the Land Act;

(b) the absence of relevant available material before the Board which showed that no rent was outstanding;

(c) the absence of relevant and available material before the Land Board, which explained that the improvement covenant had been met but had been breached by demolition of the dwelling house for the purpose of erecting units on the land, formal approval for which was being refused while there was an inadequate sewerage system in the area; and

(d) the existence, on official documentation given to the lessee, of incorrect and misleading information as to appeal rights, which were denied on the ground that the law had been amended.

(2) In the circumstances the relief sought should not be refused for undue delay. Whilst there had been a delay of nearly two years and three months in bringing the application:

(a) there would be no hardship or prejudice to anyone else by the grant of relief as no lease had been granted to anyone else;

(b) the lessee had persevered with representations to the Minister for a regrant of the lease which were likely to be successful; and

(c) the State had not argued the question of delay, although delay of over two years in challenging an administrative decision is likely to be detrimental to good administration.

Papua New Guinea v Lohia Sisia [1987] PNGLR 102, applied.

NTN Pty Ltd v Post and Telecommunication Corporation [1987] PNGLR 70, distinguished.

Cases Cited

Dent v Kavali [1981] PNGLR 488.

NTN Pty Ltd v Post and Telecommunication Corporation [1987] PNGLR 70.

Papua New Guinea v Lohia Sisia [1987] PNGLR 102.

Placer Holdings Pty Ltd and the Land Act [1982] PNGLR 326.

Sylvanus Gorio v National Parks Board [1982] PNGLR 364.

Judicial Review

This was an application pursuant to s 155 (2) (b) of the Constitution for judicial review of a decision to forfeit a government lease made by the Minister for Lands and Physical Planning.

Counsel

C Karingu, for the plaintiff.

Z Z Gelu, for the defendant.

Cur adv vult

28 April 1989

BREDMEYER J: This is an application for judicial review of a decision by the Minister for Lands and Physical Planning forfeiting a lease. Leave to apply for review was granted by another judge on an ex parte basis.

The story is as follows. In 1948 the Government granted a 99-year lease of Allotment 17, Section 2, Boroko, and the lease included an improvement covenant that improvements to the value of £300 (K600) were to be erected on the allotment within nine months of commencement of the lease and improvements of the same value were to be maintained thereon in good order and repair during the currency of the lease. A four-bedroom house was erected on the land and in 1975 the owners sold it to Irene Davis and Bessie Ellen Schubert as tenants in common in equal shares for K10,000. Irene Davis and her husband, Joe Davis, lived in the house until about 1980. Mrs Davis bought out Mrs Schubert's share in the property but did not submit the contract of sale or transfer for approval or registration.

In early 1980, Mr Joe Davis decided to build 12 units on the land. He went to see the Town Planner, Mr Easton, who agreed that the units could be built provided the existing house was demolished. Mr Davis then prepared plans which have been tendered to me and submitted them for formal approval to the authorities. At that time the Town Planner, Mr Easton, said that only six units could be connected to the public sewer and the remaining six units must be connected to a holding tank and pumped out regularly to the satisfaction of the Sanitary Engineer. Mr Davis said that he then submitted the plans to the Building Board but was told that approval would not be given because the sewerage system in the area was inadequate and would need to be upgraded to take the sewerage from 12 units and that he should resubmit the plan for approval when the sewerage system in that area had been upgraded. I believe Mr Davis' evidence on those matters. In the meantime, confidently expecting all necessary government approval for hi new units, Mr Davis demolished the house and servant's quarters. That was a very foolish move because under the terms of the lease he was required at all times to maintain improvements on the land to the value of K600.

In August 1983, the Lands Department sent a valuer to inspect the block and he recorded that the land was vacant and unimproved. Thereupon Mr Dogo Olewale, a delegate of the Minister for Lands, prepared two notices to show cause under s 46 (2) of the Land Act (Ch No 185) as to why the lease should not be forfeited. One of the notices he signed and dated 6 September 1983 and posted to Mrs Bessie Schubert in Australia. The other he sent undated and unsigned to Mrs Irene Davis. That notice has been tendered to me. Mrs Schubert wrote to the Secretary, Department of Lands, on 14 September 1983 acknowledging receipt of the notice to show cause and saying that she was endeavouring to contact Mrs Irene Davis about the matter, and that, as that might take some time, she requested a deferral of any action until such time as she or Mrs Davis contacted the Department. Mrs Davis replied to the notice on 11 October 1983 as follows:

"I received your letter on 29 September 1983. The rental has been paid and we have intended to improve this property, but Building Board has not given us the approval because the sewerage is inadequate. We have been told that by the end of the year the sewerage in the area will be upgraded and we will be able to build the flats as we intended originally.

On that block we had a house and we have demolished it only to find that the Building Board did not want to approve our plans to build flats because of the sewerage. Our purpose is not to speculate and try and sell the land, it is simply a plan to fully utilise the land which will have a benefit to us personally and to the country, because we will build a new building which will exceed the covenant by at least 50 times.

I sincerely hope this will help you to make a favourable decision. We thank you and remain,

Yours faithfully

I. Davis."

That letter refers to the...