Custodian of Expropriated Property v Tedep (1964) 113 CLR 318; 38 ALJR 344; [1965] ALR 941; No262 [56/1963]

• Jurisdiction: Papua New Guinea
• Judge: By the Court:
• Judgment Date: 30 November 1964
• Court: High Court

Full Title The Custodian of Expropriated Property and The Administration of the Territory of Papua and New Guinea v Tedep and Others, on behalf of themselves and their vunatarai, all of Tagi Tagi No 1 Village, and Towelue, on behalf of himself and his vunatarai, all of Tagi Tagi No 2 Village, The Director of Native Affairs and Norah Ellen Richards (Re Varzin Lands or Re Paparatawa Lands) (1964) 113 CLR 318; 38 ALJR 344; [1965] ALR 941; No262 [56/1963]

High Court: Barwick CJ, McTiernan J, Kitto J, Taylor J, Menzies J

Judgment Delivered: 30 November 1964

1 Torrens System—Territory of Papua and New Guinea—Title—Registration as proprietor of an estate in fee simple—Indefeasibility—Elaborate procedure for safeguarding native rights observed prior to registration—Destruction of register during Japanese occupation—Procedure for entry on new register—Claim to ownership by group of natives—Based on events occurring prior to original registration—Whether destruction of register affected title of registered proprietor—System or custom of land tenure or of succession to land or transmission of land in use amongst natives—Effect of registration thereon—Lands Registration Act 1924 (Papua and New Guinea), s55, s40, s41, s57, s68—Lands Registration Act 1924 as amended, s40—National Security (External Territories) Regulations 1944, reg21A—Lost Registers Act 1950 (Papua and New Guinea), s5, s7—New Guinea Land Titles Restoration Act 1951 (Papua and New Guinea), s9, s10, s31, s34—s37, s39, s40, s45.

2

___________________________

PRIOR–HISTORY: APPEAL from the Supreme Court of the Territory of Papua and New Guinea.

On 8 August 1952 Cecil Ralph Lambert, Custodian of Expropriated Property, lodged a claim under the New Guinea Land Titles Restoration Act 1951 (Papua and New Guinea) whereby he claimed to have been entitled as at the appointed date to the freehold interest in or relating to certain land known as "Paparatawa" or "Varzin" Plantation in the Territory of New Guinea and to be registered or entered in a lost register as the owner of or the person entitled to that interest. Certain other claims, not here material, were lodged at approximately the same time.

On 11 May 1959 the Commissioner of Titles made a provisional order pursuant to the New Guinea Land Titles Restoration Act 1951–1953 whereby he provisionally declared it to be established that on the appointed date an estate in fee simple in the said land was owned by the said Custodian of Expropriated Property subject to an encumbrance not here material. By a reference dated 11 March 1960 the Acting Director of Native Affairs referred to the said Commissioner in pursuance of s36 of the New Guinea Land Titles Restoration Act the question of native customary rights to which certain specified natives and native communities therein listed asserted that on the appointed date they were entitled. Upon investigating the claims and reference the subject of and relating to the provisional order the Commissioner on 26 August 1960 confirmed the provisional order of 11 May 1959, declared that no native customary rights were retained on the appointed date by natives or native communities in respect of the land the subject of the order or any part thereof and directed the Registrar of Titles to bind up in the register as a folio thereof the certificate of title delivered to him with the order and to complete on the said certificate of title all the necessary endorsements by him including numbering the same in accordance with his numbering system and further directing the said Registrar of Titles to issue to the Custodian of Expropriated Property as the duplicate certificate of title of which the folio of the Registrar Book constituted in pursuance of the order was the other duplicate a true copy of the said folio of the Register Book.

By notice of appeal dated 2 February 1962, as amended on 24 August 1962 and 20 December 1963, Tedep and others, on behalf of themselves and their vunatarai, all of Tagi Tagi No 1 Village, and Towelue, on behalf of himself and his vunatarai, all of Tagi Tagi No 2 Village, appealed to the Supreme Court of the Territory of Papua and New Guinea against the final order of the Commissioner of Titles.

The matter came on for hearing before Mann CJ who on 17 June 1963 made an order setting aside the final order of the Commissioner of Titles and directing that the certificate of title issued in pursuance thereof be rectified by restoring the date that the Custodian's original certificate bore and that it should bear in addition an endorsement appropriate to the practice of the Registrar of Titles to signify that an encumbrance created by the operation of the New Guinea Land Titles Restoration Act 1951 had arisen by virtue of this final order in favour of the native community in question and constituted unrestricted ownership and right to use and enjoy so much of the land as was therein specified and that this be followed by a dealing appropriate to the practice of the Registrar of Titles recording that this portion of the land had by operation of law and by the direction of the Court become vested in the Director of Native Affairs as a native reserve on behalf of the said communities entitled to the land by law and by native custom. These endorsements were to appear on the Register Book with a reference to the date of the final order and the said appointed date as the date on which the interest of the native communities was held to subsist.

On 18 December 1963 leave to appeal to the High Court from the order of Mann CJ was granted to the Custodian of Expropriated Property and the Administration of the Territory of Papua and New Guinea.

Further facts sufficiently appear in the judgment of the Court hereunder. AB Kerrigan QC (with him RJ Bainton), for the appellants. The scheme of the Lands Registration Act 1924 was to command the Registrar of Titles to look at the German Land Register or Ground Book in use and kept under the laws in force in the Territory before 9 May 1921, to bring all the land in the Ground Book under the Act, to ascertain who was the owner in the Ground Book and to name him as the owner in the draft certificate. Where the owner happens to be a German national whose land has been expropriated he is to put the Custodian of Expropriated Property in his place. Both under the Act and in fact, a lot of care was taken to protect native rights. If a native appeared in the Ground Book as owner under the Act, the land was to come into the register in the name of the Director of Native Affairs. S41 provides that whatever might have been the native system or custom of land tenure was not to be affected by the Act or by any registration. That means that the beneficial rights were to be dealt with in the ordinary way in which the natives were accustomed to dealing with their rights, which might be by word of mouth or otherwise not in accordance with the accepted notions of land under the register. Succession to land or transmission of land amongst the natives was not to be affected. It follows from the view which Mann CJ took, namely that the destruction of the register and duplicate certificate of title was the destruction of the title, that in effect you only have a title so long as you have one or both pieces of paper. The view was based on three features of these two Acts: first, on the general protective nature of the Lands Registration Act so far as native rights are concerned; secondly, upon s41, and thirdly, upon provisions in the Land Titles Restoration Act, which says that there must be an investigation as to native rights unless the duplicate certificate is actually lodged with the claim. It is submitted that any lack or defect of title under German law in the then owner is immaterial so far as the title of the appellant is concerned, once he obtained a certificate of title. (He referred to s16 and s68 of the Lands Registration Act 1924; Bonnin v Andrews (1878) 12 SALR 153; Papworth v Williams (1899) 20 LR (NSW) 280; [1900] AC 563, at 565.) Once a person becomes a registered proprietor he remains a registered proprietor though the evidence of the registration may disappear. (He referred to Assets Co Ltd v Mere Roihi [1905] AC 176, at 204; Boyd v Mayor of Wellington [1924] NZLR 1174; Clements v Ellis (1934) 51 CLR 217; Caldwell v Rural Bank of New South Wales (1951) 53 SR (NSW) 415; 69 WN 246.) We do not seek to challenge the ruling of Mann CJ that the time for appeal had not expired at the time the new certificate of title issued.

DL Mahoney QC (with him AHS Conlon), for the respondent Norah Ellen Richards. The effect of the issue of the certificate of title consequent upon the order of the Commissioner of Titles and the subsequent registration of the title in the name of this respondent operates, whatever may have been the...