11/2/2020 Benggong v Bougainville Copper Pty Ltd [1971] PGHCA 1; [1971-72] PNGLR 340 (30 July 1971)

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Benggong v Bougainville Copper Pty Ltd [1971] PGHCA 1; [1971-

72] PNGLR 340 (30 July 1971)

Papua New Guinea Law Reports - 1971-72

[1971-72] PNGLR 340 - Benggong v Bougainville Copper Pty. Ltd.

[1971-72] PNGLR 340

PAPUA NEW GUINEA

[HIGH COURT OF AUSTRALIA]

BENGGONG

BOUGAINVILLE COPPER PTY LTD

Brisbane & Sydney

Barwick CJ McTiernan Menzies Windeyer Owen JJ

10 June 1971

30 July 1971

MINES AND MINERALS - Mining on private land - Right of owner to compensation - Damage by activity
ancillary to mining operations - Destruction of economic trees in making access road - �Prospecting or
mining� - Assessment of compensation - Mining Ordinance 1928-1966 s. 56.[ccclxxxix]1

PREROGATIVE WRITS - Prohibition and Certiorari - Mining Warden�s Court - Compensation in respect
of prospecting or mining on private land - Whether prohibition or certiorari lies where assessment excessive.

Section 56 of the New Guinea Mining Ordinance 1926-1966 empowers a mining warden to assess �compensation in respect of
prospecting or mining on private land�.

Held

That:

N1>(1)����� The phrase �compensation in respect of prospecting or mining� in s. 56 is apt to include compensation for
damage done in activities which are ancillary to mining and carried out to further the mining venture. In particular, �mining�
includes the building of an access road to the area of the mining lease;

N1>(2)����� Accordingly, the destruction of economic trees for the purposes of providing an access road to mining
operations was compensable under s. 56.
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N1>(3)����� Although the method of assessment adopted by the Mining Warden�s Court may have been incorrect and the
award excessive the Court had not exceeded its jurisdiction and therefore prohibition and certiorari did not lie.

Per Barwick C.J.: The power of the Administrator under s. 49 R of the Ordinance to insert in a lease for mining purposes �such
covenants and conditions relating to the installation of works and the use of the land as the Administrator determines� does not
authorise covenants and conditions conferring rights to compensation and specifying how such compensation shall be determined.

Decision of the Supreme Court of The Territory of Papua and New Guinea (Full Court) reversed.

Cases Referred To

R. v. Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 K.B. 338; Wade v. New
South Wales Rutile Mining Co. Pty. Ltd. [1969] HCA 28; (1969) 121 C.L.R. 177.

Appeal from the Supreme Court of Papua and New Guinea (Full Court)

The respondent, whose application to the Administrator for a lease of certain land on Bougainville for mining purposes had been
granted, built an access road over the applicant�s land thereby causing the destruction of 110 mature cocoa trees. The applicant
claimed compensation for the loss of the trees under s. 56 of the Mining Ordinance 1928-1966 which, inter alia, gives the owner of
private land a right to compensation for damage �in respect of prospecting or mining�. The Mining Warden�s court assumed
jurisdiction under s. 56 and awarded compensation. The assessment was apparently based on the duration of the lease and not the
expected bearing life of the trees. Nor was the sum discounted to reflect the hazards of the cocoa-producing business. The
respondent later sought and obtained in the Supreme Court orders nisi for writs of prohibition and certiorari and the order nisi for
prohibition was made absolute by the Full Court on the ground that the Mining Warden�s Court had no jurisdiction to award
compensation to the applicant under s. 56.

This was an application for leave to appeal to the High Court of Australia from that decision.

Counsel

Needham Q.C., and Gyles, for the applicant.

Rath Q.C., and Wood, for the respondent.

Cur. adv. vult.

30 July 1971

BARWICK CJ:� The applicant, Martin Benggong, is the owner of an area of land at Bougainville in the Territory of Papua and
New Guinea on which there is a plantation operated by him and known as �Mainku�. Prior to the events out of which this matter
has arisen, the plantation included 1,888 cocoa trees. On the 28th July, 1969, Bougainville Copper Pty. Ltd. (the prosecutor) was
granted by the Administrator-in-Council a special mining lease pursuant to Div. 4 of Pt IV of the Mining Ordinance of the Territory
of Papua and New Guinea 1928-1966 (the Ordinance). The term of the special mining lease was 42 years from the 10th April,
1969, but subject to the provisions of an agreement between the Administrator of the Territory and the prosecutor and of
the Mining (Bougainville Copper Agreement) Ordinance 1967. On 31st July, 1969, notice was gazetted that the Administrator of
the Territory had granted the application of the prosecutor for a lease of certain land for mining purposes pursuant to Div. 5 of the
said Pt IV. The land to be leased for mining purposes included portion of the applicant�s land. Up to the present time no formal
lease has been issued but the prosecutor has acted on the footing that it had the rights which a lease in accordance with its
application would give. The mining purpose for which the lease for mining purposes is to be issued is or includes the making of an
access road to the site of the prosecutor�s mining operation carried on under the special mining lease to which I have referred. In
making the access road in the area of the applicant�s plantation the prosecutor destroyed 110 mature cocoa trees. The applicant
claimed compensation for the destruction to his trees as �economic trees� under s. 56 of the Ordinance. That section provides:

N2>�56(1) Compensation in respect of prospecting or mining on private land shall be assessed in relation to the following
matters:

(a)����� damage to the surface and to improvements on the surface, including crops and economic trees.

N2>(2)����� The owner of private land eligible for compensation in accordance with Subsection (1) of this section may at
any time lodge a claim with the Warden for assessment of compensation or additional compensation, and the Warden shall
thereupon assess the compensation.

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N2>(3)����� In cases were either party is not satisfied with an assessment of compensation by the Warden, that party may
require the matter to be referred to arbitration under the Arbitration Ordinance 1951.�

The applicant�s claim was treated by the parties as a claim within s. 68 of the Ordinance. It was heard in the Mining Warden�s
Court in accordance with s. 78 of the Ordinance.

At the outset of the proceedings in the Warden�s Court the applicant and the prosecutor agreed that the Warden could act in the
assessment of compensation by resort to the provisions of s. 78(2) of the Ordinance. This allowed him to hear the claim as a
complaint in a summary way upon oral evidence and on his own view. The parties further agreed that the decision of the Warden
should be final and that there should be no right of appeal: see s. 78(3). A submission was made by the prosecutor in the course of
the present application that compensation under s. 56 ought to be fixed by the Warden and not by the Warden�s Court. In my
opinion there is no substance in this submission. The procedure taken in the Warden�s Court to determine compensation for the
destruction of the cocoa trees as a claim falling within s. 68 and to be heard under s. 78 was regular.

The Warden entered on the hearing of the complaint and heard oral evidence which was chiefly provided by the prosecutor.
Apparently the Warden was personally familiar with the applicant�s land and with �the management techniques� of the
applicant in running his plantation. He said he had observed these techniques for the past five years. His conclusion was that the
applicant�s �plantation is efficiently managed and a high producer�. He rejected the view pressed on him by the prosecutor that
the proper way to measure the compensation due to the applicant for the destruction of the 110 �economic trees� was to give the
applicant the value of the freehold land on which the 110 trees had stood. He also rejected the view that even in such a case it was
proper to value land being worked by an indigenee as a family enterprise according to the measure to be applied in valuing
properties in the possession of expatriate owners. He concluded that the proper measure of compensation was to give the applicant
the value to him of the trees which had been destroyed. On the hearing of the present application, the prosecutor quite rightly as I
think, did not contest this approach to the assessment of compensation for the destruction of �economic trees�.

However the Warden measured this value of those trees by what the applicant might expect to receive from the trees during the
period that the prosecutor would be entitled to exercise its rights under a lease for mining purposes that is to say a period of 42
years. He seems to have accepted the view that the inability to re-plant trees between the end of the expectant life of the destroyed
trees and the expiry of the term of the lease should be measured by giving the applicant the same return in that period per tree as he
felt it proper to give the applicant for the destroyed trees during their lifespan as economic trees. He assessed the value of each of
the cocoa trees at $35.00 being the anticipated net return of each tree to the applicant over the period of the balance of the
prosecutor�s lease. Consequently he gave the applicant a total sum representing this amount for each of the 110 trees. This sum
was not discounted to reflect the hazards of the business in which such annual returns might be expected, hazards other than those
associated with the employment of labour and the possibility of expropriation. The prosecutor agreed that the total sum which the
Warden might properly assess for compensation might be paid as the applicant wished by monthly payments spread over the term
of the lease. Accordingly the order made by the Warden�s Court was for the payment of a total sum of $3,850 payable by
instalments. The prosecutor was dissatisfied with this order, and desired to challenge the basis of the assessment. Thereupon it
sought and obtained of a Judge of the Supreme Court of Papua and New Guinea an order nisi for a writ of prohibition and an order
nisi for a writ of certiorari. Grounds common to both these orders were:

N2>�1.����� That the said order was wrong in law.

N2>2.������ That the said order was contrary to the provisions of s. 56 of the Mining Ordinance.

N2>3.������ That the order was in excess of the jurisdiction of the Court.

N2>4.������ That the order was based on personal views which were not canvassed before the parties and were not
referred to in evidence and was therefore contrary to natural justice.�

An additional ground was contained in the order nisi for prohibition, namely:

N2>�5.����� That the said order was contrary to the evidence and/or was made without evidence.�

The application to make these orders absolute came before the Full Court of the Supreme Court of the Territory of Papua and New
Guinea on the 2nd and 3rd November, 1970. At that hearing the prosecutor pressed the grounds which I have set out and did not
challenge the jurisdiction of the Warden�s Court to make an assessment of compensation under s. 56 of the Ordinance. Indeed, I
gather that it declined to do so. However on 4th December the Court set the matter down for further argument expressing the view
that the applications to make the rules absolute could not be disposed of without deciding whether or not the Warden�s Court had
jurisdiction under s. 56 of the Ordinance to entertain and determine the applicant�s claim. The matter was therefore argued on 3rd
February, 1971. On 22nd February the Full Court delivered judgment and made absolute the order nisi for prohibition. The Court
held that the Warden�s Court had no jurisdiction to award compensation in respect of damage done by the prosecutor as the
holder of a lease for mining purposes in making the access road, that being a purpose of the lease. The Court reached this
conclusion because in its opinion the making of the access road was neither prospecting nor mining within the meaning of s. 56.

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The applicant now seeks leave of this Court pursuant to s. 64 of the Papua and New Guinea Act to appeal against the decision of
the Full Court. We have heard a full argument from the parties and are in a position to dispose of the matter as on appeal. The case
is clearly one for the grant of leave.

Provisions enabling the grant of special mining leases on private land, the grant of leases for mining purposes on private land and
authorities for prospecting on private land and the other provisions of Pt VI, were all introduced into the Ordinance by the same
amendment of the Ordinance. Special mining leases granted pursuant to s. 49B are to contain such terms, conditions and covenants
as the Administrator-in-Council determines. Apart from conferring on the lessee the right to mine such a lease confers on the lessee
such other rights ancillary to mining as are specified in the lease. By s. 49 O the Administrator is empowered to grant a lease for
mining purposes if specified as ancillary to mining operations carried out under �the dominant lease�, in this case the special
mining lease granted on 28th July, 1969. The purposes for which a lease for mining purposes may be granted include the making of
roads. The term of such a lease is to be identical with the term or the then balance of the term of the dominant lease. S. 49R(1)
provides:

�A lease for mining purposes shall contain such covenants and conditions relating to the installation of works and the use of the
land as the Administrator determines.�

The expression used in s. 56 of the Ordinance is �compensation in respect of prospecting and mining�. That is a large expression
and quite apt, in my opinion, to include compensation for damage done in activities which are ancillary to mining and carried out
to further the mining venture. But the Full Court thought that �mining� in the context of Pt VI of the Ordinance did not include
such an ancillary activity as the building of an access road. It is quite clear from a perusal of the Ordinance that if damage done in
pursuance of a lease for mining purposes may not be compensated under s. 56 there is no provision of the Ordinance which gives
the person suffering the damage any right to compensation. This, the Full Court of the Supreme Court realised but expressed the
view that this was the design of the Ordinance which intended that the lease for mining purposes should contain appropriate
provision for the payment�and presumably the determination�of compensation for damage done by the exercise of the rights
granted by the lease. However, as appears from my recital of the relevant provisions of the Ordinance, the power of the
Administrator, who has the authority to grant such a lease, is limited to inserting in the lease �such covenants and conditions
relating to the installation of works and the use of the land�. This power, in my opinion, is quite inadequate to support covenants
and conditions conferring rights to compensation and specifying how such compensation shall be determined. But, even if the
relevant power of the Administrator were large enough to authorise such covenants or conditions, their insertion in the lease would
be a matter for the exercise of the Administrator�s discretion. Thus, the grant of a right to compensation on the view adopted by
the Full Court would lie in the discretion of the Administrator.

An examination of the Ordinance satisfies me that in every other instance in which damage may be done by the exercise of a right
under a mining tenement compensation is to be paid. I cannot discover any policy in the Ordinance which would require for its
attainment either a denial of compensation for damage done in exercise of a right under a lease for mining purposes or for the
dependence of a right to such compensation upon the discretion of the Administrator. Indeed, I should think that damage to the
property of another by the lessee is at least as likely where mining purposes within s. 49 O(3) are being pursued under a lease for
mining purposes as where a mining operation is being carried out under a special mining lease. In that connection, it may be
observed that such a lease may authorise ancillary activities. Such activities would presumably be comprehended in the word
�mining� in s. 56 on its narrowest construction. There would seem to be no reason why there should be provision for
compensation as of right in the one case and none in the other. I see no reason whatever for giving a narrow construction to the
wide words of s. 56.

But it is said that the inclusion of s. 56 in Pt VI of the Ordinance which is headed �Prospecting and Mining on Private Land�
indicates the narrowness of s. 56. I am unable to accept this contention. Section 55 provides for applications for mining tenements.
�Mining tenements� by s. 6 means, unless the contrary intention appears, �any land held under a mining lease, or lease for
mining purposes, or application therefor . . .�. The prosecutor argues that, though falling within the description of the definition, a
lease for mining purposes ought not to be regarded as a mining tenement within s. 55. The prosecutor pointed out that such a lease
cannot be included in the operation of s. 57 because of the language of that section. It is said that that section contains a sufficient
indication to the contrary within the meaning of s. 6. But if that be so, it does not follow that the defined meaning of mining
tenement should not operate in s. 55. I can find no contrary intention in that section. Indeed, there is every reason for giving the
words their defined meaning for if that is not done there is no provision in the Ordinance for notifying an application for the grant
of a lease for mining purposes. Further s. 55(6) makes it clear that the section applies to mining tenements which it is not within the
power of the Warden to grant; a lease for mining purposes is such a mining tenement.

The preliminary assessment by the Warden of likely damage so as to determine an amount to be deposited against possible claims
for compensation does not detract in my opinion from the considerations telling in favour of the inclusion of an application for the
grant of a lease for mining purposes within the operation of the section. Thus in my opinion an application for a lease for mining
purposes to be granted under s. 49 O must be made in the prescribed form to the Warden who is to ensure that the owner of the
private land concerned is informed of the application. Having so concluded, any reason for limiting the operation of s. 56 because
of its place in Pt VI completely disappears. Rather, that conclusion suggests that �mining� in s. 56(1) should be given a generous
denotation so as to include compensation for damage done in the accomplishment of mining purposes under s. 49 O.

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In my opinion, the Full Court was in error in holding that the Warden�s Court did not have jurisdiction to entertain and to grant
the applicant�s claim for compensation for the destruction of his �economic trees� by the prosecutor in the exercise of its rights
under, or in anticipation of the issue of, a lease for mining purposes. In my opinion, the Warden�s Court had the necessary
jurisdiction.

However, the prosecutor presses the ground on which it sought the orders for prohibition and certiorari. Having regard to the
opinion I have expressed, neither writ could be granted for complete lack of jurisdiction. But the prosecutor says that the a
Warden�s Court exceeded its jurisdiction or failed to exercise it in awarding the total sum of compensation which it ordered the
prosecutor to pay the applicant. A subsidiary submission was made that the Warden�s Court could not make an order for payment
of the assessed compensation by instalments: but this was done in this case with the consent of the prosecutor. In any case I do not
understand the prosecutor to seek a writ of prohibition quoad, limited to the order for payment by instalments. Consequently, the
power of the Warden�s Court to order payment of compensation by instalments need not be further examined in this case.

The prosecutor�s substantial submission on this aspect of the case is that the amount fixed by the Warden is so far beyond all
reason as to amount to an excess of, or a failure to exercise, jurisdiction. As I have said, the basis of the assessment is not now
challenged. It is the total amount of the compensation and the lack of any discounting to cover the business hazards, including
fluctuating world prices for the commodity, which a person in the applicant�s situation may or perhaps must encounter during
such a long span of years of that covered by the award of compensation which are the source of the prosecutor�s complaint. No
doubt the award was very generous: and no doubt there may have been some unreality in the lack of recognition of those hazards
and of the period of time necessarily elapsing before cocoa trees are fully productive. The prosecutor sought to draw some
distinction relevant to the circumstances between compensation and damages as explaining the amount of the assessed
compensation. But I am unable to see any application for that distinction in relation to the Warden�s award. The applicant�s
economic trees were destroyed. His land was not acquired. He is to receive compensation for his loss of the trees, or, it might be
said, for the damage to his plantation by the destruction of the trees. The basis of that compensation is the value of those trees to
him.

I am of opinion that in making his award of compensation the Warden did not exceed his jurisdiction. He has exercised it. Whether
he did so rightly or wrongly need not be decided, for the proceeding before the Supreme Court was not an appeal. His award in
respect of his calculation of compensation has no binding value as a precedent for the calculation of compensation in other cases.
Each of them will turn on their own circumstances.

Accordingly, I am of opinion that the appeal should be allowed, the order of the Full Court set aside and the orders nisi for
prohibition and certiorari discharged.

MCTIERNAN J:� I agree that the appeal be allowed and I concur in the reasons of the Chief Justice.

MENZIES J:� I have had the advantage of reading the judgment of the Chief Justice wherein everything that is material is set
out. With what His Honour has said about the appellant�s entitlement to compensation under s. 56 of the Ordinance, I agree.

The jurisdiction to assess compensation given by that section is a jurisdiction not merely to make a correct award of compensation;
it is, of course, a jurisdiction which permits the making of a wrong award. The section itself provides a remedy to a person not
satisfied with an assessment of compensation by the Warden, and, in the circumstances of this case, it seems to me that the
application for certiorari or prohibition was misconceived. These writs do not go to correct awards wrong in law or made contrary
to the evidence; they go to restrain excess of jurisdiction or to control errors of law upon the face of an award. It is, therefore, not
to the point in considering this application to conclude, from the reasons which the Warden gave, that the method of assessment he
adopted to determine compensation to be awarded must have resulted in too high a figure. This is, I think, apparent. The cocoa
trees in question were not in full bearing; the economic life of a cocoa tree is about 30 years; nevertheless compensation was
assessed on the basis that the trees destroyed would, over 42 years from the date of their destruction, produce in each year a full net
return�calculated with an allowance of 5 per cent to cover the unproductive period of trees replanted to replace old trees�for a
mature tree.

I agree with the order proposed by the Chief Justice.

WINDEYER J:� In my opinion the application for special leave to appeal from the judgment of the Supreme Court of the
Territory of Papua and New Guinea should be granted. The case was fully argued. I consider that the Supreme Court ought not to
have made absolute the order nisi for prohibition. As the Court did not expressly determine the application for certiorari, I say no
more of it than that I think the order nisi should have been formally discharged. I can see no basis for certiorari in this case, even if
it be not precluded by s. 134 of the Mining Ordinance 1928-1966. Courts ought not to forget the warning and adjuration of Morris
L.J. in R. v. Northumberland Compensation Appeal Tribunal; Ex parte Shaw[cccxc]2�against treating certiorari as a disguised
form of appeal.

I shall not elaborate at length my reasons for thinking that the appeal to this Court was properly entertained and should be allowed.
I agree in what the Chief Justice has said in his judgment. I shall merely make some observations on some aspects that seem to me
of critical importance.
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The award that the Mining Warden made was expressed in his formal order as the award of the Warden�s Court at Nairovi and
Kieta. It was as follows:

�And the Court orders:

N2>1.������ The defendant shall pay to the plaintiff Martin Benggong the sum of $3,850.00 for the loss of 110 cocoa
trees and the manner of payment shall be as follows.

(a)����� On 10th April, 1970, $61.60 and

(b)����� on 10th of each month thereafter until 10 April, 2011, a sum of $7.70.

N2>2.������ The defendant shall forthwith pay to the plaintiff Martin Benggong a sum of $50 for the severance of the
land from other land owned by the plaintiff.

N2>3.������ The defendant shall forthwith pay to the plaintiff Martin Benggong a sum of $50 for loss of surface rights of
way.

N2>4.������ The defendant shall forthwith pay to the plaintiff Martin Benggong a sum of $384 as consequential damage
being $50 for nuisance caused by dust and noise and $334 to cover the cost of fencing on either side of the road which severs the
plaintiff�s land for a distance of 16.7 chains.

Given under my hand at Kieta this 1st day of April, 1970.�

The Warden expressly declared that his order was made by virtue of s. 56 of the Ordinance. The part that the present respondent
company specifically challenges is the award for the loss of the cocoa trees.

It is noteworthy that the company did not originally dispute in the Supreme Court that the Warden had jurisdiction under s. 56 to
make an award for the damage of which the appellant complained. Its claim was that the amount was excessive and based upon a
false premise. Nor had it before the Warden objected to the proposal, made on behalf of the appellant, that the compensation should
be assessed at a capital sum and paid by monthly instalments over the period of the lease.

Although the company went to the Supreme Court hoping that, by motions for prohibition and certiorari, it could there dispute the
amount of the Warden�s award, this aspect was not dealt with by that Court. That was because their Honours questioned whether
s. 56 was applicable to damage suffered by an owner of private land which had become the subject of a lease for mining purposes.
A lease for mining purposes under the Ordinance is of the same nature as tenements of the same name in Australia. When granted
over private land such interests are peculiar creatures of Australian mining law. I had occasion to notice their anomalous
characteristics in Wade v. New South Wales Rutile Mining Company Pty. Ltd.[cccxci]3. The question whether in this case the
Warden had any jurisdiction under s. 56 having been raised by the Supreme Court, their Honours adjourned the case to enable
counsel to consider that matter. Counsel for the company readily embraced the suggestion thus held out. On the resumption he put
a challenge to the Warden�s jurisdiction in the forefront of his argument. The Supreme Court upheld his submission and made an
order for prohibition on the ground that the Warden had exceeded his jurisdiction.

Their Honours reached their conclusion mainly upon a comparison between s. 56 and other provisions of Pt VI of the Ordinance
and by reference to the definition of �Mining Purposes� in s. 6. That definition does not expressly mention the making of roads
as one of the designated purposes. It is, however, noteworthy that the definition has two limbs. First it states that the term �mining
purposes� �means the purpose of searching for or obtaining gold or any other mineral from earth by any mode or method of
mining . . .� Then it goes on to say that it �includes� a variety of operations described, among them �constructing any railway
or tramway�. To suppose that constructing a road with rails upon it can be within the meaning of a mining purpose, but that
making an ordinary road of access cannot, seems to me to be carrying literalism rather far. However, it is not necessary to adopt
this narrow construction of the effect of s. 56, because s. 49 O(3) states �the making of roads� as among �the purposes for
which a lease for mining purposes may be granted�. This provision was one of those introduced into the Ordinance by
amendment in 1966. The definition of �mining purposes� in s. 6 operates �unless the contrary intention appears�. It should
now I think be read having the new provision in mind. Thus ordinary roads now come in with railroads and tramroads.

The Ordinance is, of course, to be read as it now stands, and read as a whole. But that does not necessitate curtailing the width of s.
56 in the interest of a supposed harmony with its neighbours. Words may be known by the company they keep: but I do not think
we should say of s. 56, noscitur a sociis . It provides that compensation �in respect of prospecting or mining on private
land shall be assessed in relation to� the matters specified and for �all consequential damage�. The making of an access road
authorised by a lease for mining purposes is I have no doubt something done �in respect of prospecting or mining�. It is surely
not surprising that a landowner should have a right to compensation for damage if his land be taken by a lease for mining purposes
in the same way as he would have if it were made the subject of some other mining tenement. It would be strange if, as the

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respondent contends, he must rely for recompense for loss and damage on the Administrator in his discretion making this a
condition of the lease. Consistency in policy and considerations of justice reinforce the literal reading of s. 56.

As I am unable to take the view of the Ordinance that the Supreme Court took, I turn to the aspect of the matter which their
Honours did not find it necessary to consider, but which was argued before us. The respondent contends that the Warden�s order
was extravagant in amount, so extravagant that it could be said to have been made without jurisdiction, and that therefore
prohibition should go. I do not think that that proposition can be sustained. It may be that the Warden�s assessment was on a
generous scale. It may be too that, in estimating the damage flowing from the loss of cocoa trees, he took into consideration not
only the destruction of trees that were on the land but also that the appellant�s being deprived of the use of the land would prevent
his replanting it when the life of those trees would have expired. Compensation for the loss of trees ought to be assessed, it would
seem, by reference to their expected bearing life, not by the duration of the lease of the land. An inability to plant trees on the land
taken for a road might thus be considered an element in assessing a proper rent, or the occupation fee under s. 116 B, rather than
�consequential damage� within the meaning of s. 56 (1). However, even if the Warden�s assessment was excessive, and I do
not say that it was or was not, I do not think that it can be said that it was not made in the exercise of his jurisdiction, or that there
is any error manifest on the face of it. An application for certiorari or prohibition is not a disguise for an appeal against an
excessive assessment. The remedy for that is an arbitration under the Arbitration Ordinance as provided for in s. 56 (3). The
respondent did not invoke this remedy but mistakenly challenged the Warden�s jurisdiction.

I concur in the order that the Chief Justice proposes.

OWEN J:� I agree with the Chief Justice.

Appeal allowed with costs. Order of the Supreme Court of the Territory of Papua and New Guinea set aside and in lieu thereof
order that the orders nisi for prohibition and certiorari be discharged with costs.

Solicitor for the applicant: Cannan & Peterson as agents for W. A. Lalor, Public Solicitor.

Solicitor for the respondent: Thynne & Macartney as agents for Cyril P. McCubbery & Co.

[ccclxxxix]Infra p. 342.

[cccxc][1952] 1 K.B. 388 at p. 357.

[cccxci][1969] HCA 28; (1969) 121 C.L.R. 177.

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