Placer Holdings Pty Ltd v The Independent State of Papua New Guinea [1982] PNGLR 16

• Jurisdiction: Papua New Guinea
• Judge: Bredmeyer J:
• Judgment Date: 22 February 1982
• Citation: [1982] PNGLR 16
• Court: Supreme Court
• Year: 1982
• Judgement Number: SC219

Full Title: Placer Holdings Pty Ltd v The Independent State of Papua New Guinea [1982] PNGLR 16

Supreme Court: Kearney DCJ, Greville–Smith J, Bredmeyer J

Judgment Delivered: 22 February 1982

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

PLACER HOLDINGS PTY. LTD.

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Waigani

Kearney DCJ Greville Smith Bredmeyer JJ

26 August 1981

22 February 1982

APPEAL — Time for lodging — Extension of time for lodging — Extension applied for outside time limited — Court has discretionary power to grant — Land Act 1962, s. 121 (2).

STATUTES — Interpretation — Purposive or literal approach — Land Act 1962.

Section 121 (2) of the Land Act 1962 provides: "An appeal ... shall be made within 28 days after the matter complained of, or within such further time as the National Court for any special reason allows."

Held

The National Court has a discretionary power to extend the time within which an appeal must be lodged under s. 121 (2), although the application for extension of such time is not lodged until after the statutory time-limit has expired.

Banner v. Johnston (1871) L.R. 5 H.L. 157 followed.

In re proposed appeal by Constantinou [1977] P.N.G.L.R. 1, not followed.

Cases Cited

Banner v. Johnston (1871) L.R. 5 H.L. 157.

Constantinou, In re proposed appeal by [1977] P.N.G.L.R. 1.

Jordan v. Edwards [1979] P.N.G.L.R. 420.

Lovering, Ex parte; In re Jones (1874) L.R. 9 Ch. App. 586.

PLAR No. 1 of 1980 [1980] P.N.G.L.R. 326.

R. v. Lewis [1906] 2 K.B. 307.

Appeal

This was an appeal against a refusal by Miles J. to allow an extension of time in which to appeal against forfeiture of a government lease pursuant to s. 121 (2) of the Land Act 1962.

Counsel

I. Molloy and T. Glen, for the appellant.

L. Au and J. Goodman, for the respondent.

Cur. adv. vult.

22 February 1982

KEARNEY DCJ: In 1980 the appellant had a government lease of a block of land in Lae. By a Gazette notice published on 1st May, 1980, the Minister for Lands forfeited that lease for an alleged failure to comply with an improvement covenant.

Section 121 (1) of the Land Act 1962 (now s. 112 of the Land Act, Ch. 185 of the Revised Laws), provides, inter alia, for appeals to the National Court against such forfeitures; and s. 121 (2) provides:

" (2) An appeal ... shall be made within 28 days after the matter complained of, or within such further time as the National Court for any special reason allows." (Emphasis mine.)

The appellant did not lodge an appeal against the forfeiture until 23rd December, 1980, some six and a half months after the 28 day time-limit. On the same date it gave notice that it would apply for an order for "further time" under s. 121 (2); in effect, that it would move to extend the 28 day limit in s. 121 (2), by some six and a half months, to bring its appeal within time. On 27th February, 1981, the appellant obtained an order from the learned motions judge, granting that further time; the respondent did not appear at that hearing. On 24th March, 1981, the respondent gave notice that it would move to set aside the order of 27th February, 1981. On 4th May, 1981, after he had the benefit of argument, his Honour set aside his order of 27th February, and refused to extend the time to appeal, on the basis that the application was itself lodged too late. That left the appellant out of time, on his appeal.

The appellant now appeals to this Court against the order of 4th May.

The question is, whether an application for further time must itself be lodged within 28 days after forfeiture.

I first thought that the respondent's argument was the stronger. However I have since had the benefit of reading the opinions of Greville Smith and Bredmeyer JJ.; I find them wholly persuasive. The matters which I had considered should go to a restrictive construction of s. 121 (2) — in particular the effect of a late appeal upon the title of a subsequent government lessee — are, I think, more properly seen as matters which go to the exercise of a judicial discretion. I should add that I adopt a "purposive" approach to the interpretation of statutes; see the comments of Wilson J. in PLAR No. 1 of 1980 [1980] P.N.G.L.R. 326 at pp. 329-334.

I would allow the appeal. I agree with the order proposed by Greville Smith J. The appellant should have its costs of the appeal. I think, upon a consideration of the matters set out in Jordan v. Edwards [1979] P.N.G.L.R. 420, that a certificate should not issue for the purposes of the Supreme Court Rules, O. 91 r. 81a, as regards overseas counsel.

GREVILLE SMITH J: In Banner v. Johnston (1871) L.R. 5 H.L. 157, the House of Lords was required to interpret a statutory provision "which gives a power of appeal within a period of three weeks and says that that period shall not be exceeded unless the Court of Appeal shall 'extend' the time" (per the Lord Chancellor at p. 170). The Lord Chancellor said:

"What we have to look at in substance is this: Is it contrary to the meaning of the word 'extend' to give longer time after the original time has passed?"

His Lordship answered the question in the negative, saying:

"Time is not a material with respect to which it may be said that the matter itself having ceased, there is no farther subject to operate upon."

The other two members of the court, Lord Colonsay and Lord Cairns agreed, the latter saying (p. 172):

"In truth, my Lords, it is entirely a narrow construction of the word 'extended' to say that extension of time must be made within the period of time first allotted. The time may be extended just as well after the three weeks have expired as before. The argument assumes that the Act of Parliament is worded in this way: No appeal shall be brought except within three weeks, unless the Court of Appeal sanctions, within the three weeks, an extension of time...