Hong Kong Oil Co Ltd v. Director of Lands

LDMR000001/1986

Statutory Interpretation - Public Reclamations and Works Ordinance (cap. 113) - section 6(2) - mandatory or directory provision - whether permissible to construe statute by reference to terms of repealing statute - claim to compensation arising under cap. 113 not governed by section 4 of Limitation Ordinance (cap. 347) - lands Tribunal Ordinance (cap. 17), section 10(2)(d) - retrospective only as to statutory notices, etc. which are directory or procedural - limited to statutes conferring specific jurisdiction on Lands Tribunal.

IN THE LANDS TRIBUNAL OF HONG KONG

Miscellaneous Reference No. 1 of 1986

TRIBUNAL: His Honour Judge Downey, Presiding Officer and M.W. Phillips, Esq., Member.

DATE: 5 December 1986

_______________________

REASONS FOR DECISION

_______________________

1. On the 7th October 1977, the Hong Kong Government ("Government") published a notice in the Gazette (G.N. 2417 - Exh. HLYS-5) concerning a proposed undertaking, involving the construction of a bridge, reclamation and other works in Tsuen Wan. That notification (to follow the statutory language precisely) was published in accordance with the requirements of section 2 of the Public Reclamations and Works Ordinance (cap. 113). It required, inter alia, all persons having objections to the undertaking, or claims of private right in respect thereof, to submit their objections or claims in writing to the Director of Public Works before the expiration of 2 months from the 7th October 1977. The notification also required such persons to submit claims for compensation containing an estimate of any loss which it is alleged would be incurred by reason of any extinguishment of private right.

2. At that date and at all material times, the applicant ("the Company") was the beneficial owner of Tsuen Wan Inland Lot No. 54 ("TWIL 54) and Tsuen Wan Permanent Pier No. 16 ("TWPP 16"), from which it operated an oil terminal. This terminal provided facilities for ocean-going oil tankers to berth alongside and to discharge their contents directly into the Company's storage tanks. These berthing facilities consisted of a pier and catwalk, with the appropriate pipelines, and two dolphins. The proposed and eventual undertaking involved the complete removal of the northernmost dolphin. Precisely what effect or impact that has had upon the Company's operations is a complex question which may have to be examined at great length at a later stage. But, it seems to be generally accepted that loss of this dolphin has made the berthing of ocean-going tankers alongside the terminal impossible; and that the Company's operations have been carried on by the more expensive method of using barges and lighters to discharge cargoes. (See Exh. ACWN-12). The Company's operations at this terminal were clearly going to be substantially affected by the proposed undertaking. On the 21st November 1977 it lodged a claim for compensation, as well as an objection to the proposed undertaking (see Exh. ACMN-1). Government concedes that this claim, though lacking certain details, constituted a valid claim for compensation within the meaning of cap. 113. Whether it has any value is a different matter, for reasons which need not be considered at this stage. But, it is important to emphasise that it is not disputed that, within the period of 2 months specified in GN 2417, the Company had lodged or submitted a claim far compensation which was sufficient for the purposes of section 2(2)(b) of cap. 113. That claim has never been withdrawn.

3. Since October 1977, the Company and Government have been exploring several alternatives for resolving the problems arising from the effect of the undertaking upon the Company's operations. Oddly enough, but perhaps significantly, neither the Company nor the Director of Lands appears to have considered an early reference to the Lands Tribunal for the compensation to be determined as one of the alternatives. Instead, Government, acting through various departments, from the very beginning embarked upon a lengthy process of considering various proposals for "re-provisioning" the Company's terminal. These discussions or negotiations have taken place over several years against a background of the Company's claim to compensation being recognised and acknowledged at all times (see Exh. HLYS-7 HLYS-8). These efforts at "re-provisioning" must, in our view, be viewed as ways of discharging legally binding obligations owed to the Company, and not as mere concessions, or exercises in good public relations.

4. The first proposal was for a replacement pier to be located parallel to the new seawall which was part of the undertaking (see Exh. ACWN-4). This was eventually rejected by Government on planning and environmental grounds. Next it was suggested that the Company should share facilities with Caltex Oil (HK) Ltd., its next-door neighbour. After lengthy negotiations between the various parties, this proposal did not come to fruition. Finally, there was a proposal for a tanker pier at Tsing Yi Island. So far that has been twice rejected by the Port Committee, but is apparently now receiving further consideration.

5. In the meantime, the Governor-in-Council authorized the undertaking, and notice to that effect was published in the Gazette on the 3rd November 1978 (see Exh. HLYS-10). Eventually, on the 26th March 1986, the Company filed with the Lands Tribunal an application for compensation to be determined under the Foreshore and Sea-bed (Reclamations) Ordinance 1985. The application was later amended to ask for compensation to be determined under the Public Reclamations and Works Ordinance (cap. 113). Although the latter was repealed in 1985, it was kept alive for the purposes of reclamation or public works notified prior to the 1985 enactment (see s.20(1) of Ordinance No. 63/85). At the same time, the Attorney General on behalf of the Government indicated that the Crown wished to take the preliminary point that the application was "out of time". On the 7th July 1986, a consent application under rules 4 and 16 of the Lands Tribunal Rules was made for a preliminary hearing on the following points:-

6. Rule 16 envisages that such preliminary points are to be determined by a Presiding Officer of the Tribunal. One of the cases on the list of authorities prepared by counsel for the Company is authority for the proposition that disregard of a valuation principle would be an error in law. Insofar as the third preliminary point might involve the exercise of a wide discretion, it seemed to me, as the Presiding Officer selected to exercise this aspect of the Tribunal's jurisdiction, that the margin of potential legal error on my part might be reduced if I had the benefit of the valuation expertise and experience of the Member of the Tribunal, Mr. M.W. Phillips, at all stages of the proceedings. Furthermore, in the interests of justice, the possibility of reliance upon consultation with another should be openly revealed to the parties and the public. Counsel for both parties consented to this constitution of the Tribunal at the outset or the hearing, after being made aware of the reasons for introducing Mr. Phillips as a member of the Tribunal.

7. On behalf of the Crown, Mr. Rice submitted that the Company's application should have been referred to the Lands Tribunal within two months of publication of the authorization of the undertaking, because the provisions of section 6(2) of the ordinance are mandatory, and the time specified therein cannot be extended unilaterally by the Company reserving its rights, or by the lands Tribunal. On behalf of the Company, Mr. Widdicombe submitted that section 6(2) was director, and not mandatory, but merely part of the procedural machinery governing the manner in which a substantive right to compensation was to be determined. As such, it could be waived by the Crown, and had been waived in the present case; alternatively, the Company could make a direct application to the Lands Tribunal within a reasonable time, and had done so in the present case. Furthermore, if necessary, the lands Tribunal had power to extend time, and should do so in the present case.

8. The central and essential feature of these submissions is the proper construction of section 6(2) of the ordinance. The Tribunal, like any other court or body charged with interpreting legislation, must give effect to clear and unambiguous language used by the legislature. But, words cannot be read in isolation. They must be read in their context of the statute as a whole. Until that has been done, it cannot be said that the language used is clear and unambiguous. The ordinance is relatively short. With the exception of the preamble and short title, neither of which, in our view, offers any assistance on the matter in issue, the "context" for present purposes is to be found in the following previsions:-

9. The ordinance essentially provides for three stages, viz., (i) notification of the undertaking; (ii) consideration of the undertaking; and (iii) authorization of the undertaking. It then makes some provision for the consequences of the last stage being completed. All public and private rights existing prior to the authorization are extinguished (section 5) and no remedy lies for such extinguishment (section 6(1)). The sparsity of the consequential provisions must be contrasted with the detail of those governing the first two stages. Furthermore, unlike section 5 and 6(1), the language of section 6(2) does not expressly deal with tile extinguishment of rights to compensation, arising under the ordinance or existing at common law. Read literally, it merely states how and when a claimant may get its claim referred to the Lards Tribunal, without even specifying to whom the claimant should address its request. As to this mode of access to the Tribunal, the Crown concedes that section 6(2) is directory or procedural in the sense that it does not exclude the claimant from direct access to the Tribunal, as has happened in this case. The Company's neighbour, Caltex Oil (H.K.) Ltd., also made a direct application. But it did so on the 2nd January 1979, just within the period of 2 months from the authorization, which took place on the 3rd November 1978 (Exh. HLYS-10; HLYS-12). The Company's application was made some 7½ years after that date, and the Crown contends that its claim was extinguished by reason of the failure to make a direct application to the Tribunal within the time specifiod by section 6(2). Put shortly, there is a distinction between the mode of access to the Tribunal and the time within which it must be exercised. Provisions relating to the former may be directory; but those relating to the latter are mandatory, and cannot be waived by the other party.

10. We were referred to examples of reported cases where such distinctions had been drawn (Of Hughes v Wavertree Local Board (1894) 10 T.L.R. 357; Moore v Hewitt [1947] 2 All E. R. 270). Whilst accepting that such fine distinctions may have to be made when construing the provisions of a particular statute, we do not derive any real assistance from these authorities. They deal with obviously different matters. Our task is to endeavour to ascertain what consequences the legislature intended to follow from a failure to comply with its requirement, as expressed in the statute under immediate scrutiny. Little is to be gained from considering how different statutes have been construed by the courts in the past. In each case, regard must be had to the subject matter, the importance of the provision in question in relation to the statutory purposes to be achieved, whether any provision is made for remedying the failure, as well as the seriousness of the inconvenience or injustice likely to be caused to the parties affected by the provision. It may be that other factors or considerations can be cited as relevant. But, as t matter of general principle, we doubt whether much can be done to improve upon the principle or conclusion expressed by Lord Campbell in Liverpool Borough Bank v Turner (1861) LJCh 379 (at 380).

"No universal rule can be laid down ..... It is the duty of Courts of Justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be considered."

That appears to have been the view of the Full Court in Re Freezinhot Bottle Co. Ltd. [1964] HKLR 676 (at 680-681), which seems to be the only reported case on the statute which we are required to construe in this case.

11. The Full Court did not have to decide whether the equivalent of section 6(2) then in force was mandatory or directory, since the claimant had "addressed a letter of claim to the Colonial Secretary" within 2 months of the publication of the authorization of the undertaking (Cf [1963] HKLR 595 at 597). It was principally concerned with the question whether the claimant had complied with the statutory provisions which governed the first stage (i.e. notification of the undertaking) and whether the claimant was entitled to submit a claim for compensation in respect of the extinguishment of its previous rights. At that time, the ordinance (No. 27 of 1956) and rules made thereunder provided for a direct application to a tribunal appointed by the Chief Justice. Yet, no point was taken that the claim was lost or barred because that particular mode of access to the tribunal had not been used within the period of 2 months from the authorization of the undertaking. The claimant's failure to submit "within the time provided by [section 6 of the Ordinance] particulars of claim to the tribunal", by serving upon the Registrar of the Supreme Court two copies of its claim, was regarded by the tribunal as a procedural irregularity which could be waived by the Crown (Cf [1963] HKLR 595 at 597-8). What is, perhaps, more significant is the fact that the legislature acquiesced in the 2 months' period in the Ordinance being so clearly treated as procedural or directory from 1956 onwards or, at least, until 1974, when jurisdiction was transferred to the more permanent lands Tribunal. From then until August 1985, when the Foreshore and Sea-bed (Reclamations) Ordinance (No. 6385) was enacted, the Lands Tribunal Rules provided for claims for compensation being made directly to the Lands Tribunal, whereas section 6(2) of the relevant ordinance contemplated a different step, i.e. a request or requirement that some other person should refer the claim to the Lands Tribunal.

12. On behalf of the Company, Mr. Widdicombe put forward five points for the contention that suction 6(2) should be treated as directory. One of his points was that the legislature could not have intended section 6(2) to become s mandatory provision, without clearer words, after earlier enactments had been treated as directory. He also submitted that 2 months was an extremely short period for extinguishing s claim to compensation. Apart from pointing to the fact that s claimant had ample time to comply with the very simple requirements of section 6(2), if the time for completion of the first and second stages is taken into account, Mr. Rice sought to rely on the provisions of the latest ordinance (No. 63/85) to support his submission that the 2 months period in section 6(2) had always been intended as s mandatory provision, extinguishing s claim to compensation if not adhered to by a claimant.

13. Although we accept that guidance on the Legislature's intention can occasionally be obtained from subsequent enactments, we do not think that such assistance can be obtained from examining the provisions of the Foreshore and Sea-bed (Reclamations) Ordinance 1985. This latest enactment contains provisions which are not to be found in earlier enactments. Furthermore, it contains provisions which more explicitly indicate theta failure to make a claim within a particular period clay result in the claim being extinguished (Cf sections 12(2) and 13(6)). It also introduces what is, in our view, a very important new feature to the third stage. It requires the Director of Buildings and Lands to give notice to over person who has made an objection to the proposed undertaking that such undertaking has been authorized. No such duty was imposed upon any representative of the Crown by the earlier legislation. The differences between the latest ordinance and the earlier legislation are too numerous and substantial to offer reliable assistance as to the intention of the legislature as expressed in the statute under consideration.

14. The right to compensation only arises upon publication of the authorization of the undertaking. Is the language of section 6(2), construed in the contest of the entire statute, so clear and unambiguous as to oblige us to say that the new right is completely taken away because of the Company's failure to require its claim to be referred to the Lands Tribunal within 2 months? Did the legislature intend that to be the penalty for failure to comply literally with the words enacted in sub-section 2 of section 6, having regard to the express and emphatic language employed in sub-section (1) and section 5? In Re Freezinhot Bottle Co. Ltd. [1964] HKLR 676, the Full Court appeared to think that such early extinguishment of the new claim would be so unjust that it could not be regarded as the legislatures intended penalty for non-compliance with the statutory requirements, unless that consequence was "imposed by language that is peremptory, precise and free from uncertainty" (ibid at 686). We are not strictly concerned with the question whether the supposed early deprivation of rights is just, but, whether the legislature, having regard to the subject matter of the legislation and all proper and material considerations, intended that as the inevitable consequence of failure to comply with its express requirements. The point regarding the shortness of the period of two months is partly answered by the fact that it only begins to operate at the third stage of the proposed undertaking. The second stage, i.e. consideration of the undertaking by the Governor in Council may take much longer. Indeed, in the Freezinhot Bottle case, the second stage was spread over some 3 years. We take the point that claimants should not be put to the trouble and expense of preparing claims, before the undertaking is authorized, so as to be able to refer it to the Lands Tribunal within 2 months. But, it may be the case that the legislature contemplated that such difficulties would be catered for by rules of procedure, in particular, the power to enlarge time for various steps to be taken. Similarly, we see nothing absurd in a claim for compensation being referred to the lands Tribunal and then adjourned sine die, because the parties wish to negotiate a settlement or need more time to proceed to a hearing.

15. But, when these factors are coupled with the absence of any provision for claimants to be notified of the authorization, except for the constructive notice of publication in the Gazette, we think that it is most unlikely that the legislature impliedly intended that the reference to a period of 2 months in section 6(2) was to be in the nature of a statutory limitation or extinction of the statutory claim for compensation. It might take that time, or much of that period, to ascertain the identity of the person or body who should be required to refer the claim to the Lands Tribunal for determination. In the present case, was it the Director of Public Works, because he published the notice in the Gazette dealing with the first stage? Or was it the Clerk of Councils, because he published the notice in the Gazette regarding the third stage? Or, should the Company have addressed its requirement that its claim be referred to the Lands Tribunal to the Governor, or to the Governor in Council, having regard to the various persons empowered to act during the second stage? This vagueness is, in our view, a further indication that the legislature did not intend section 6(2) to have the effect of extinguishing the statutory claim to compensation.

16. We have already adverted to the substantial differences between sections 5 and 6(1) on the one hand, and section 6(2) on the other hand. In our view, the differences in language cannot be dismissed as insignificant. The legislature has used the word "shall" in its mandatory or imperative sense, in provisions which are clearly designed to extinguish existing rights. But, in section 6(2), which ostensibly deals with the machinery for getting a claim for compensation, already submitted in accordance with section 2(2)(d), before the Lands Tribunal, the legislature has resorted to the word "may", which carries a more permissive or directory connotation. We are well aware of the fact that the word "may" occasionally means "must" or "shall", but we are not persuaded that this distorted meaning must be given to the provisions of section 6(2) of cap. 113. Indeed, on behalf of the Crown, Mr. Rice never suggested that we should so construe the provisions of section 6(2) of the ordinance.

17. However, Mr. Rice did submit that the time specified in section 6(2) had to be strictly observed because the provision was meant to be extremely important to Government in the sense that it required claimants to declare, their determination to pursue their claims to compensation before a certain date. No are not convinced that this contention has any merit, or is a reason for construing section 6(2) as a provision extinguishing the statutory right to compensation. The number and likely value of claims, as distinct from objections, are clearly important matters to be considered before an undertaking is authorized. But the ordinance provides for the availability of this information at the first two stages of notification and consideration (section 2(2)(b) and 3). If Government decides to proceed to the third stage of authorization before known outstanding claims have been compromised or settled, withdrawn, or determined by the lands Tribunal under section 3(2)(d), we fail to see the necessity for a claimant re-notifying some unspecified civil servant that it still wants its claim to be determined by the Lands Tribunal. If, as in the present case, the claimant and Government are negotiating a possible compromise or settlement during the consideration stags, but the undertaking is authorized before these negotiations are completed, what is the point of requiring the claimant to indicate, during the 2 months following the authorization, of which he may be ignorant, that he wishes those negotiations to continue in the different form of a reference to the Lands Tribunal? More to the point, was it the intention of the legislature that his potential statutory right to compensation would be forever extinguished if he failed to give that particular notification within 2 months of the publication of the authorization? In the absence of any requirement for giving notice to such claimants, we do not think that such intention can be inferred from the language used.

18. The absurdity of the contrary construction can be demonstrated by a hypothetical situation which is not unrealistic and, in our view, is in the category envisaged by the legislature when it enacted different provisions for the three stages governed by this ordinance. A claimant submits a claim under section 2(2)(b), claiming that loss of his private rights would entitle him to compensation of $250 million. After much negotiation and exchange of detailed information during the second stage, the representative of Government concedes that the value of the extinguished rights is not less than $150 million, but no more than $200 million, but could be reduced to $100 million if the claimant's business is "reprovisioned" on, other land, on the usual terms of a Crown Lease, which both parties contemplate will be executed 3 months later. Is it to be supposed that it was the intention of the legislature that, if Government, without any notification to the claimant, immediately published its authorization of the undertaking, the entire claim for compensation would be extinguished two months later? We think not. The legislature has not imposed any time limit on the second stage. Negotiating a settlement or compromise is one of the approved methods of dealing with claims for compensation. The third stage of authorization is not dependent upon all claims being settled or determined by the Lands Tribunal. It can take place at any time. And the legislature has not, in our view, expressed any intention that all claims must be settled or determined within 2 months of the authorization.

19. We would respectfully agree with Mr. Widdicombe that section 6(2) was probably introduced in order to deal with small claims, or claims by persons who could not afford to wait for an award at some indefinite future date, or lacked the means to formulate details of their claims sufficiently to present them to the lands Tribunal. Having submitted their claims to the Director of Lands, they would rely on the Director to present details and all necessary documentation to the lands Tribunal on their behalf in the event of their not being able to agree on a settlement. Bearing in mind that the second stage of the scheme might take several years and impose heavy demands on the Director and his staff, it would not be unreasonable for the legislature to relieve him of that burden shortly after the undertaking has been authorized. We think that such is probably the purpose of section 6(2), and that it does not operate as a bar to a claimant himself presenting his claim to the Lands Tribunal, as the Company has done in this case.

20. For the aforesaid reasons we are unable to construe section 6(2) of cap. 113 as imposing a mandatory provision, barring the bringing of a claim before the Lands Tribunal in the same way as certain claims may be defeated by lapse of time because of the provisionsof the Limitation Ordinance (cap. 347). The Company's claim to compensation, arising out of the proposed extinguishment of its private rights, is probably one which owes its origin to the common law principle that private rights are not to be acquired compulsorily for public purposes without payment of reasonable compensation. Turner v Midland Railway [1911] 1KB 832 is authority for the general principle that there is no time limit for bringing such claims, normal time limits only begin to operate when an award is made. We have considered section 4(1)(d) of the Limitation Ordinance (cap. 347), and we are of the view that, on its proper construction, it does not apply to the claim in this case. Mr. Rice virtually conceded that cap. 347 had no application to the present case. Whether the origin of the Company's claim is the common law, or cap. 113, we are unable to find any clear expression of intention by the legislature that such claims should be totally and forever extinguished, if not brought before the Lands Tribunal within a specific time from the commencement of any of the three stages we have referred to. If the legislature had intended to bar all such claims, if steps to get them referred to the Lands Tribunal had not been taken within 2 months of the authorization of the undertaking, we think that it would have used much clearer language such as that to be found in section 11 of the Mass Transit Railway (Land Resumption and Related Provisions) Ordinance (cap. 276). Accordingly, we reject the respondent's first and principal contention that the present application is "out of time". We now turn to the alternative contention that it is "out of time" because it has not been brought before the Lands Tribunal within a reasonable time.

21. What is a reasonable time is a question which cannot be answered in the abstract. There are many relevant factors to be considered. The nature and importance of the allegedly untimely act or omission are obviously relevant. The conduct and interests of the parties especially those likely to be prejudiced by delay, are clearly relevant, and, occasionally, decisive. Whether there has been actual prejudice or embarrassment to a partly is highly relevant. Where there has been, what seems to the objective observer, considerable or excessive delay, it may cease to have that quality because of the mutual conduct of the parties. If all interested parties choose to "stop the clock" while they seek to negotiate some form of settlement, that time must be discounted for the purposes of determining whether or when a reasonable time has elapsed. In the case of ordinary disputes, we recognise that the existence of "on-going negotiations", with a view to a compromise or settlement, does not excuse a failure to issue a Writ, or other originating process, within the time stipulated by statute for bringing the "cause of action" before the appropriate court or tribunal. In the present case, we are of the view that the legislature has not imposed any time limit for barring claims for compensation. On the contrary, it has enacted provisions designed to encourage the compromise or settlement of such claims within a period which is indefinite, viz the second stage. Having regard to the fact that the legislature does not require the claimant to be notified that the undertaking has been authorized, we consider that the failure to commence the appropriate legal proceedings within six years of the 3rd November 1978, i.e. the date of authorization of the undertaking and extinguishment of rights under section 5 of cap. 113, is not a reason for denying the Company an opportunity of establishing the claims which it now seeks to assert. Indeed, the failure of the Company to assert its present claim on or before the 2nd January 1979 is readily explained by the fact that Government demonstrated, at all material times, a willingness to find a solution to the Company's problems which would dispense with the need to pay compensation, or considerably diminish the amount thereof, and without recourse to legal proceedings.

22. The negotiations began on the 18th May 1978, when Government asked the Company to withdraw its objection to the proposed undertaking (Exh. HYLS-7). They continued in various forms, but without interruption, until the 6th March 1985, when the Secretary for Economic Services, in effect, informed the Company that there was no prospect of the third proposal for re-provisioning being put into effect, because of the views of the Director of Marine and the Port Committee (See ACWN-25). Before that date, the Company had learned about the authorization of the undertaking, and taken legal advice. It could have pressed its claim for compensation by making an application to the Lands Tribunal long before March 1985. We are satisfied that it did not do so because it feared that the prospects of being re-provisioned would be jeopardised. Whether these fears were justified is beside the point. Government continued negotiations on the same footing all along. It was exploring various ways and means of dealing with the Company's claim for compensation. It has not been prejudiced by the lapse of time; nor has it ever indicated that, in exploring the various alternatives, it was merely entertaining a "moral claim" in accordance with section 8 of cap. 113. Confronted by a willingness on the part of all officials to continue these negotiations, it was not, in our view, unreasonable for the Company to think that its business interests and the welfare of its employees might be prejudiced by suddenly commencing "hostile" legal proceedings, while these negotiations were being conducted. In all the circumstances, we do not think a reasonable time for commencing proceedings for the determination of the compensation due to the Company under cap. 113 had elapsed before March 1985.

23. In view of the unpromising terms of the letter from the Secretary for Economic Services, we have anxiously considered whether the Company was acting reasonably in postponing its application to the Lands Tribunal for just over one year, especially as the Company apparently then felt that it had little or no alternative but to press its claim for monetary compensation (see para. 9 of Mr. Chu's affirmation). However, after carefully examining the correspondence passing between the parties and other events occurring between March 1985 and March 1986, we are satisfied that the Company was not "out of time" in making its present application to the Lands Tribunal on the 26th March 1986. On the 14th May 1985 the Company's solicitors wrote a letter setting out some of the details of the Company's claims, and enclosing a raport from its accountants. This was acknowledged by a letter dated the 21st May 1985 seeking clarification of the first head of claim. These are, in our view, normal steps taken within a reasonable time as preliminaries to further consideration of the claim or its more detailed preparation. It is not clear what happened during the neat five months, except that it would seem that the Company was trying to got the Director of lands to reconsider the third proposal of a pier at Tsing Yi Island (see letter dated 16th October 1985 in ACWN-26). In spite of some faint hope being raised, by a letter dated the 25th October 1985, the Director turned down the Company's application, by letter dated the 10th December 1985. The Company indicated that it wished to "appeal" against that decision. On the 12th January 1986, it submitted a report from marine experts, in response to an assurance that it would be "carefully considered by the departments concerned" (see letter dated 21st December 1985 in ACWN 26). Eventually, at a meeting held on the 21st March 1986, the Secretary for Lands and Works suggested that the Company should make a further application for a pier at Tsing Yi Island (see note 7 of ACWN-27).

24. During this 12 months' period, the Company's hopes of "re-provisioning" appear to have been revived, and received some slight encouragement from the Lands Department. Perhaps, more significantly, there was never any suggestion that the Company's claim for monetary compensation would not be entertained because it was made after a reasonable time had elapsed. In fact, the letter of the 14th May 1985, from the Company's solicitors, was not answered until the 13th January 1986, when there was still no suggestion that the claim was "out of time". Instead, Crown Counsel contended that the alleged claim was of no value and that Government had fully met its obligations under the leases for TWIL 54 and TWPP 16. Indeed, the first suggestion that the claim was "out of time" was made in the second letter from the Legal Department dated the 19th February 1986. But, that point was "reserved" on the basis that section 6(2) of cap. 113 extinguished or barred the claim, not on the basis that it had not been brought before the Tribunal within a reasonable time. In the light of a11 these circumstances we are unable to agree with Mr. Rice's comment that the Company had slept on its rights for years. If it did, it did so at the invitation of, and with encouragement from, agreeable "bedfellows" in the shape of various departments of Government over most, if not all, of those years.

25. Having reached the above conclusions, it is not necessary for us to express concluded opinions on the other matters argued before us viz., waiver and the applicability or scope of section 10(2)(d) of the Lands Tribunal Ordinance (cap. 17). Waiver can only arise if section 6(2) of cap. 113 is directory or procedural. It cannot be relied on if the provision is mandatory and goes to jurisdiction. Although, we are of the view that, section 6(2) of cap. 113 is directory, it is not strictly necessary to decide whether it has been waived by Government, since Mr. Rice did not seek to raise any objection to the application merely because it had been made directly to the Lands Tribunal. After Mr. Rice made that concession, in the opening stages of his reply to Mr. Widdicombe's submission, waiver in the strict sense ceased to be a live issue.

26. Waiver implies some positive act of choosing between known alternatives. Whether it also requires the other party to have suffered some detriment is a question which we need not answer, because we do not think that the conduct of various representatives of Government was sufficiently positive or elective to amount in law to a waiver of its rights regarding the Company's claim. Indeed, until the claim was brought before the Lands Tribunal, it would be difficult to identify the legal right, privilege, etc. allegedly waived by conduct, representations or otherwise. In effect, the various points which have been submitted to us under the heading of "waiver" are, in reality, arguments for determining whether the present claim has been brought within a reasonable time. Having considered all these points, we are of the view that Government has enlarged the period of "reasonable time", as a result of initiating and encouraging various proposals for the settlement of a valid legal claim, and later acquiescing in the revival of hopes of finding a solution, which might obviate the need to pursue that legal claim by formal proceedings.

27. If these initiatives of Government and its exploration of various methods of "reprovisioning" the Company's terminal, are ignored, it is possible to point to dates when the Company should, perhaps, have brought this matter to a head by referring its claim to the Lands Tribunal, or asking some representative of Government to do so. The earliest date would have been 2 months after the authorization, viz 3rd January 1979. It will be recalled that Caltex Oil (Hong Kong) Limited made a direct application for compensation under cap. 113 on the 2nd January 1979. It is significant that Government, by a letter dated the 15th January 1979, asked for that application to be postponed indefinitely (Exh. HLYS-13). That letter came from the same file as the correspondence between Government and the Company, regarding its claim. If the Company had made a similar application to the Lands Tribunal, we think it very probable that it would have been handled in the same way. There is certainly no evidence, nor even any suggestion, that it has been treated differently because it was not brought forward at the same time. If Government thought that the Company's claim was statute barred or otherwise "out of time because it was not referred on or before the 3rd January 1979 - or in 1982 when the Company learned of the authorization and took legal advice - one would have expected that view to be conveyed to the Company at some stage of the lengthy negotiations, so that the Company would know that its claim was being entertained merely as a "moral claim" under section 8, and not as a legal claim under section 6(2) of cap. 113. That was never done.

28. There has been no suggestion that Government has been or will be prejudiced, in any way, by the delay in bringing the Company's claim before the Lands Tribunal. There is no evidence that such delay or any other conduct of the Company has induced Government to believe that the Company's claim has or may have been withdrawn or abandoned. On the contrary, the letter from its solicitors, dated the 14th May 1985, makes it clear that it was pressing its claim for compensation under the statute. It clearly believes that its claim is of substantial value. Government appears to think otherwise, because of the terms of the Crown leases. We need not decide whether such terms override the provisions of cap. 113 or whether, as Mr. Widdicombe submitted, they were also extinguished by publication of the authorization. These questions are not now before us. We merely wish to emphasise that, insofar as Government may feel that it has no legal liability to the Company, or that "compensation payable amounts to nil", that state of affairs has not been brought about by the delay in bringing this matter before the Lands Tribunal or any other conduct of the Company.

29. We are grateful to counsel for their detailed submissions on the effect of section 10(2)(d) of the lands Tribunal Ordinance. Whilst we consider that it was introduced to deal with problems relating to the provisions of Fart IV of the Landlord and Tenant (Consolidation) Ordinance (cap. 7), requiring the exchange of statutory notices as a precondition to invoicing the statutory jurisdiction to grant new tenancies of domestic premises, it has to be acknowledged that the legislature has not imposed any such express limitation. The Lands Tribunal is given jurisdiction to enlarge the time, fixed by any ordinance for the giving of any notice. We are inclined to the view that the power does not extend to every ordinance which fixes a time for giving a notice, but must be confined to those ordinances which confer some jurisdiction on the Lands Tribunal. But, it is not a provision which empowers the Lands Tribunal to condone delay by extending time generally. It is confined to the giving of notices, required or regulated by statute. We think that the amendment was intended to have retrospective effect, insofar as statutory notices which are directory or procedural are concerned. But, if the giving of the relevant statutory notice is a mandatory requirement, going to the jurisdiction of the Lands Tribunal, we think that this enlarging power cannot be exercised to resurrect some right or claim which has ceased to exist prior to the date of the amendment. We have concluded that section 6(2) of cap. 113 does not have that effect on the Company's claim. Crown counsel has indicated that no point is taken on the Company's failure to require its claim to be referred to the Lands Tribunal by the Governor - in - Council or the Director of Lands within 2 months of the authorization. In the circumstances, we consider that we are not required to exercise the power conferred on us by section 10(2)(d) of cap. 17. But, if we are in error in this regard, we would have no hesitation in finding that there was good casue for enlarging time in this case.

30. Accordingly, for the aforesaid reasons, we decide in favour of the Company on the preliminary points set out in the letter, dated the 7th July 1986, from the Company's solicitors. Our answer to point 1 is : 'No'. In our view, points 2 and 3 do not really arise. But, insofar as any time limits imposed by cap. 113 are directory and procedural we consider that the Tribunal does have jurisdiction to enlarge the time for compliance therewith, and, in the circumstances of the present case, should do so by directing that the Company's amended application of the 26th March 1986 should stand subject to hearing counsel we propose to issue directions for the further conduct of the application.

Representation:

David Widdicombe, Q.C. with Anthony Neoh (M/s. Lo & Lo) for Applicant

Mark Rice, with Francis Yip, C.C. for the Crown