Director of District Administration v Custodian of Expropriated Property (Re Wangaramut) (No 2) [1969-70] PNGLR 410

• Jurisdiction: Papua New Guinea
• Judge: Minogue J, Frost J, O'Loghlen AJ
• Judgment Date: 02 February 1970
• Citation: [1969-70] PNGLR 410
• Docket Number: Director of District Administration v Island Estates Ltd
• Court: Supreme Court
• Year: 1970
• Judgement Number: FC4

Full Title: Director of District Administration v Island Estates Ltd; Director of District Administration v Custodian of Expropriated Property (Re Wangaramut) (No 2) [1969-70] PNGLR 410

Full Court: Minogue J, Frost J, O'Loghlen AJ

Judgment Delivered: 2 February 1970

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

DIRECTOR OF DISTRICT ADMINISTRATION

V

CUSTODIAN OF EXPROPRIATED PROPERTY (RE WANGARAMUT) [NO. 2]

Port Moresby

Minogue Frost JJ O'Loghlen AJ

29-31 October 1969

3 November 1969

5-7 November 1969

14 November 1969

2 February 1970

APPEAL — Rehearing — Grounds defined by statute — Decision appealed from against the weight of the evidence — Powers of appellate court on appeal on such ground — Appeal from specialist tribunal — Tribunal not bound by law of evidence — Matters peculiarly in its knowledge — Whether this limits powers on appeal — Land Titles Commission Ordinance 1962 — 1968, s. 38

Under s. 38 an appeal lies from the decision of the Land Titles Commission to the Supreme Court of the Territory of Papua and New Guinea on the following grounds: (a) that the Commission exceeded its jurisdiction; (b) that the hearings of the Commission were conducted in a manner contrary to natural justice; (c) that the Commission was wrong in law; and (d) that the decision of the Commission was against the weight of the evidence.

TORRENS SYSTEM — Title — Registration as proprietor of estate in fee simple — Legislative system of inquiry into adverse native rights before registration — Destruction of register — Restoration to title in new register — Natives' claim — Claim based on sketchy evidence — New Guinea Land Titles Restoration Ordinance 1951-1963, ss. 9, 10

The persons permitted to make a claim under the Ordinance are those who claim to have been entitled at the appointed date (10th January, 1952) — " (a) to an interest in the land; and (b) to be registered or entered in a lost register as the owner of or the person entitled to that interest (whether or not he was, before the loss or destruction of that register, so registered or entered) ". By s. 10 those so entitled also included persons who had not been so registered but who would have been entitled to registration but for the destruction of the register, the informal nature of, or a misdescription in, a document or the failure of some other person to execute a document which the caimant was entitled in equity to have executed.

Upon appeals under the Land Titles Commission Ordinance 1962-1968, s. 38 the primary judge set asideSee Custodian of Expropriated Property v. Director of District Administration; Re Wangaramut [No. 1], [1969-70] P. & N.G.L.R. 133 those parts of a decision of the Land Titles Commission which held as facts the following: (a) that a document produced by the registered proprietor as at the relevant date of an estate in fee simple in the subject land and purporting to be a copy of the certificate of title issued and subsequently destroyed was not a copy of that certificate of title; and (b) that the certificate destroyed after its issue had notified on it substantial encumbrances in favour of the trustee for natives which encumbrances did not appear on the document produced. Evidence adduced before the Commission included evidence related to events (including the presence of natives from time to time) on or near the subject land before and after the issue of the destroyed certificate.

Held

By the Full Court, that the appeals from the decision of the primary judge should be dismissed:

(1) By Minogue J. (dubitante) on the following grounds: The Land Titles Commission's finding that a copy certificate of title produced at the hearing before the Commission was not a true copy of that which issued to the respondent Custodian of Expropriated Property in 1928 should not have been disturbed, but its finding that the certificate of title which issued to the respondent had substantial encumbrances on it in favour of the Director of Native Affairs as Trustee for Natives was against the weight of evidence. The conduct of the hearing before the Land Titles Commission was unsatisfactory and the preparation and submission of material inadequate and a rehearing seemed desirable. However, all parties expressly disclaimed a request for such a rehearing. It was not contested that a certificate of title did issue and as there is no foreseeable likelihood of the appellants establishing a claim, either to ownership or to a general encumbrance over the land, accordingly the order of the primary judge should stand.

(2) By Frost J. on the following ground: Even if the evidence as to native user of the land could have been acted upon to hold that there was a general encumbrance as an interest in the land in favour of natives, that evidence does not establish that the encumbrance thereunder is entitled to be registered or entered in a lost register as the owner of or the person entitled to that interest under the New Guinea Land Titles Restoration Ordinance 1951-1963, ss. 9, 10.

Custodian of Expropriated Property v. Tedep (1964), 113 C.L.R. 318, followed by Frost J.

(3) By O'Loghlen A.-J. on the following ground: On the evidence, the finding that the document produced was not an accurate copy of the certificate of title which was issued and destroyed, can be justified on the evidence before the Commission but the finding that the certificate of title issued subject to a general encumbrance in favour of natives cannot be so justified.

Per totam curiam: Upon an appeal under s. 38 on the ground that the decision under appeal is against the weight of the evidence, the appellant is entitled to the appellate court's review of that evidence, its consideration of its probative value, its evaluation of the inferences drawn from that evidence and its consideration of the relevant law so far as it affects that evidence. The appellate court is not simply to substitute its own conclusions for those of the decision under appeal if it disagrees with them. It must be able to come to the conclusion that the decision appealed against is wrong and can not be supported either by the evidence or by any proper inferences to be drawn therefrom or from the relevant law. The decision appealed against on that ground is not in the same position as that of a specialist tribunal which has dealt with a matter peculiarly within its knowledge and against the decision of which the only remedy available is a prerogative writ.

Whiteley Muir & Zwanenberg Ltd. v. Kerr (1966), 39 A.L.J.R. 505, applied. R. v. City of Westminster Assessment Committee; Ex parte Grosvenor House (Park Lane), Limited, [1941] 1 K.B. 53; R. v. London, etc., Rent Tribunal; Ex parte Honig, [1951] 1 K.B. 641; Reg. v. Paddington North, etc., Rent Tribunal; Ex parte Perry, [1956] 1 Q.B. 229, distinguished. Administration of the Territory of Papua and New Guinea v. Director of District Administration; Re Volupai, [1969-70] P. & N.G.L.R. 329, approved.

Appeal from Clarkson J.

From the decision reported at [1969-70] P. & N.G.L.R. 133, the Director of District Administration (the appellant) instituted an appeal to the Full Court of the Supreme Court of the Territory of Papua and New Guinea, to which appeal Island Estates Limited (the first respondent) and The Custodian of Expropriated Property (the second respondent) were made respondents.

All relevant facts appear in the judgments.

Counsel

Hookey, for the appellant.

McCubbery, for the first respondent.

Croft, for the second respondent.

Cur. adv. vult.

2 February 1970

The following written judgments were delivered:

MINOGUE J: On 19th and 20th March, 1965 the Land Titles Commission in the person of the Acting Chief Commissioner of that Commission (to whom I shall hereinafter refer as "the Commissioner") heard claims by both respondents to be entered on the new register book established by virtue of the New Guinea Land Titles Restoration Ordinance 1951-1963 (which I shall refer to as "the Restoration Ordinance") as owners of the freehold interest in land in New Britain near Rabaul known as Wangaramut. It is unnecessary to dwell on the reason for each respondent making a claim beyond stating that the respondent Custodian of Expropriated Property claimed to be entered in the register book by virtue of his having been shown in that which had been destroyed during the Japanese occupation of Rabaul as owner of the freehold interest and the respondent Island Estates Ltd. claims to be so entered by virtue of a contract of sale made between it and an intermediate purchaser from the Custodian. Concurrently the Commissioner heard claim by the Director of District Administration (which had been lodged by his predecessor, the Director of Native Affairs) to be registered as owner of an encumbrance being the obligation to allow the natives of the Rakumkumbur villages to draw water from a certain waterhole on the said land with the right of ingress and egress for that purpose over a road leading to the waterhole and also a reference under s. 36 of the Restoration...