Minister for Lands v William Robert Frame [1980] PNGLR 433

• Jurisdiction: Papua New Guinea
• Judge: Pratt J:
• Judgment Date: 28 November 1980
• Court: Supreme Court
• Citation: [1980] PNGLR 433
• Year: 1980
• Judgement Number: SC186

Full Title: Minister for Lands v William Robert Frame [1980] PNGLR 433

Supreme Court: Greville–Smith J, Kapi J, Pratt J

Judgment Delivered: 28 November 1980 (the PNGLR has 1981)

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE MINISTER FOR LANDS

V.

WILLIAM ROBERT FRAME

Waigani

Greville Smith J., Kapi J., Pratt J.

1-2 April 1981

3 September 1981

28 November 1981

RESUMPTION AND ACQUISITION OF LAND — Resumption under statutory power — "Compensation" — Quantum of assessment — Appeal against determination of — Powers on appeal — Whether power to alter amount determined in manner inconsistent with prescribed factor — Lands Acquisition Act 1974 ss. 19, 20, 22, 23 — Constitution s. 53 (2), s. 68.

EVIDENCE — Admissions — Admissions against interest — Admissions contained in report — Intention to confirm by oral evidence — Subsequent application to withdraw document — Consent of opposing party not forthcoming — Contents of document admissible.

Section 19 of the Lands Acquisition Act 1974 (the Act) sets out the principles for determining the amount of compensation payable by the Government when land is acquired by compulsory process under the provisions of the Act, which in respect of developed land, in production for not less than five years, is — "the product of the average net profit received in relation to that land over the five financial years immediately preceding the date of acquisition, as determined by the Valuer-General, and the prescribed factor for the land:" the prescribed factor being fixed by regulation by the Governor-General in Council after receiving a report from the Valuer-General.

Section 23 of the Act provides that a claimant who is "dissatisfied with a determination made by the Minister under s. 22 may appeal to the National Court, against the determination".

On appeal by a naturalized but non-automatic citizen against the Minister's determination, the appellate court increased both the figure determined by the Valuer-General as the average annual net profit and the prescribed factor. (See Frame v. Minister for Lands, Surveys and Environment [1979] P.N.G.L.R. 626.)

On appeal from this decision on the grounds that it was (a) contrary to s. 53 and s. 68 of the Constitution; (b) s. 19 of the Act had been wrongly applied, and (c) it was against the weight of the evidence:

Held:

(1) (Per Greville Smith J.) The word "compensation" in the Act means and connotes the value in money, to the owner, of the land taken from him,

In re An Arbitration between Lucas and the Chesterfield Gas and Water Board [1909] 1 K.B. 16 at pp. 29, 30;

Australian Apple and Pear Marketing Board v. Tonking (1942) 66 C.L.R. 77;

Nelungaloo Pty. Ltd. v. Commonwealth (1948) 75 C.L.R. 495;

The Commonwealth v. Hazeldell, Ltd. (1918) 25 C.L.R. 552;

Carltona, Ltd. v. Commissioners of Works and Others [1943] 2 All E.R. 560; and

Re MacDonald and Toronto (1912) 27 O.L.R. 179, applied.

(Per Pratt J.) "Compensation" under the Act means just compensation in accordance with s. 53 of the Constitution; it must be reasonable from the point of view of both parties when a balance is struck between their competing interests and evidence of what are just terms will require to be examined in the light of the National Goals and Directives Principles and the national interest.

(2) The quantum or measure of compensation under the Act will be the same whether the claimant is an automatic or non-automatic citizen.

(3) (Per Greville Smith J. and Kapi J., Pratt J. dissenting.) A person whose land is compulsorily acquired under the Act is entitled to "compensation under the Act", in the sense of meaning the money value of the land to him in accordance with the machinery provided by s. 19 of the Act: s. 16 of the Act precludes the concept of "just terms" under s. 53 of the Constitution being read into the Act.

Frame v. The Minister for Lands, Surveys and Environment [1979] P.N.G.L.R. 626 overruled in part.

(4) An appeal under s. 23 of the Act against the Minister's determination, is an appeal against the correctness of the amount of money determined in accordance with the formula prescribed under s. 19 measured in the light of the meaning of the word "compensation".

(5) (a) (Per Greville Smith J.) The appellate court has power to amend or alter the amount determined by the Minister in a manner inconsistent with the particular prescribed factor; there being nothing in the Act requiring the appellate court to use the prescribed factor, or any factor at all in assessing the rightness of the determination appealed against.

(b) (Per Pratt J.) The power given to a claimant under s. 23 (1) (c) of the Act to appeal against the use of an incorrect prescribed factor gives the appellate court the concomitant right to determine on the evidence before it what is the correct figure.

(c) (Per Kapi J. dissenting.) The prescribed factor as a matter of legislative enactment cannot be questioned by a court.

(6) (Per Greville Smith J. and Pratt J., Kapi J. dissenting.) In the circumstances there was no good reason for disturbing the reassessment of compensation made by the appellate court.

(7) (Per Greville Smith J.; Kapi J. and Pratt J. not deciding.) A report which is put in evidence with the intention of having it confirmed by oral evidence, insofar as it contains admissions, cannot be withdrawn without the consent of the opposing party, and where consent is not forthcoming, admissions against interest contained therein may be relied upon by the opposing party.

Appeal.

This was an appeal pursuant to s. 4 (2) of the Supreme Court Act 1975, against judgment of the National Court given on appeal under s. 23 of the Lands Acquisition Act, 1974 against a determination of compensation made by the Minister for Lands under s. 22 (1) of the Act (See Frame v. The Minister for Lands, Surveys and Environment [1979] P.N.G.L.R. 626.) The grounds of appeal were as follows:

1. The decision of the judge is wrong in law in that it is contrary to s. 53 and s. 68 of the Constitution.

2. The judge erred in law in that his Honour wrongly applied s. 19 of the Lands Acquisition Act 1974.

3. The order of the judge is wrong in that it is against the weight of evidence.

Counsel:

L. Lucas, for the appellant.

T. Morling Q.C. and C. Kirke, for the respondent.

Cur. adv. vult.

28 November 1981

GREVILLE SMITH J.: This is an appeal, and an application for leave to appeal, under the provisions of s. 4 (2) of the Supreme Court Act 1975 against a judgment of the National Court. The judgment appealed against was itself given by the National Court upon an appeal under the provisions of s. 23 of the Lands Acquisition Act 1974, as amended (hereinafter sometimes called "the Act") by the present respondent against a determination by the Minister for Lands made under the provisions of s. 22 (1) of the Act of the amount of compensation payable under the provisions of the Act to the respondent for certain land, the property of the respondent, which was acquired by compulsory process under the provisions of s. 7 of the Act.

Section 7 of the Act provides that if certain conditions are fulfilled the Minister for Lands may by notice in the Government Gazette declare that the land specified in the notice is acquired by compulsory process under the Act, and that upon the publication of such notice of acquisition the land to which the notice applies is, inter alia, by force of the Act, vested in the Government.

Section 12 of the Act provides, so far as is relevant to this appeal, that the interests of every person in land to which a notice of acquisition applies is, on the date of acquisition, converted into a right to "compensation under the Act".

Section 19 of the Act, so far as it is applicable to the land in question, provides inter alia as follows:

"19. Principles for Determining the Amount of Compensation Payable by the Government

(1) The Government shall, in respect of any land acquired by compulsory process under this Act, pay by way of compensation for that land —

(a) ...

(b) ...

(c) in the case of land which has been developed or partly developed for the purpose of returning an income and which at the date of acquisition of the land —

(i) has been in production for not less than five financial years — the product of the average annual net profit received in relation to that land over the five financial years immediately preceding the date of acquisition, as determined by the Valuer-General, and the prescribed factor for that land;"

Section 20 of the Act provides that the Governor-General in Council may, for the purpose of prescribing the factors to be used in determining the compensation payable by the Government under s. 19, after receiving a report from the Valuer-General, by regulation fix a factor in relation to, inter alia, a particular parcel of land.

Section 23 of the Act provides as follows:

"23. Appeal to the Supreme Court

(1) A claimant whose claim has been accepted by the Minister and who...