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
• Court: National Court
• Citation: [1988–89] PNGLR 143
• Date: 28 April 1989
• Year: 1989

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

1 Practice and procedure—application for judicial review—delay in applying for relief

2 Real property—forfeiture of lease—judicial review

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 (Ch185), s9(1), s11, s46(1)(a), s46(2), s112.

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, O16, r4.

REAL PROPERTY—Government leases—Forfeiture—Application of rules of natural justice to—Land Act (Ch185), s9(1), s11, s46(1)(a), s46(2), s112.

On an application pursuant to s155(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 (Ch185), 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 s9(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.

The Independent State of Papua New Guinea v Lohia Sisia [1987] PNGLR 102, applied.

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

Cases Cited

The following cases are cited in the judgment:

Dent v Kavali [1981] PNGLR 488

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

The Independent State of 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 s155(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.

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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...