The Administration of the Territory of Papua and New Guinea v Toilu Mai and Another (Re Emananus Island) [1969–70] PNGLR 319

• Jurisdiction: Papua New Guinea
• Judge: O'Loghlen AJ
• Judgment Date: 06 May 1970
• Court: Supreme Court
• Citation: [1969–70] PNGLR 319
• Year: 1970
• Judgement Number: No569

Full Title: The Administration of the Territory of Papua and New Guinea v Toilu Mai and Another (Re Emananus Island) [1969–70] PNGLR 319

Supreme Court: O'Loghlen AJ

Judgment Delivered: 6 May 1970

1 Land Titles Commission—New Ireland Province

2 Land Titles Commission upheld in refusing to let Administration withdraw claim for restoration of title; no absolute right to withdraw; public interest in final determination; tribunal could make rules of procedure as need arose unless contrary to statute of natural justice; Land Titles Commission ruled Administration failed to prove claim

COURTS—Procedure—Jurisdiction—Exercise of jurisdiction where no procedure specified—Land Titles Commission—Constituted by statute—Commission to investigate, hear and determine claims etc.—No rules of procedure—Claim made for restoration of title—Withdrawal of claim—Whether withdrawal open—Claimant's withdrawal of claim communicated to Commission—No provision in statute allowing withdrawal of claim.

LAND TITLES COMMISSION—Practice—Restoration jurisdiction—Rules made for procedure before Commission—Application of those rules to restoration jurisdiction—New Guinea Land Titles Restoration Act 1951–1968, s42—Land Titles Commission Act 1962–1967, s29, s40—Land Titles Commission Rules 1968, r8, r15.

By Division 6 of Part III of the New Guinea Land Titles Restoration Act 1951–1968 (which includes s42 of the Act), the Land Titles Commission was required to deal with the establishment of interests and the compilation of new registers as part of the jurisdiction of the Commission to direct the restoration of titles to land the registers of which had been destroyed. Any claim for restoration might have been made the subject of a provisional order, notice of which was published. By s42 of the Act the Commission was required after the date specified in the published notice, to proceed to investigate, hear and determine the claim and any objections or references relating to the provisional order and to make a final order in respect of those matters in such terms as it thought just. The Administration of the Territory of Papua and New Guinea made a claim under those provisions that it was the absolute owner of and entitled to be registered as such as owner of Emananus Island. A provisional order was made and published. A reference was made to the Commission in relation to native rights over the island. Whilst exercising its jurisdiction under s42, the Commission refused the Administration's application that it be allowed to withdraw its claim and the Commission proceeded under s42 and made a final order declaring that it was not established that, at the appointed date, the Administration was entitled to an interest in the island or to be registered in relation to any such interest.

Held:

On an appeal against the final order to the Supreme Court, that the decision of the Commission should be upheld upon two grounds: (1) that the Commission was within its jurisdiction and acted lawfully in refusing to permit the withdrawal of the claim and in proceeding thereafter to hear the matter and make the final order; and (2) the Commission was entitled to regard whether the Administration had a right to withdraw as a matter of practice and to reject it and in doing so the Commission did not act contrary to natural justice or to the provisions of any statute applicable to it.

Per curiam:

R15(3) of the Land Titles Commission Rules 1968 did not apply to proceedings brought before the Land Titles Commission under the provisions of the New Guinea Land Titles Restoration Act 1951–1968 by virtue of the provisions of r8(2) of those Rules.

Opinion expressed that where a statute creates a tribunal but does not provide machinery for dealing with the matter brought before it, the tribunal itself is to prescribe the machinery and that where that tribunal sets up procedural machinery for the conduct of its business, that machinery is valid unless it is contrary to statute or to natural justice and the tribunal may make such rules of procedure as the need arises.

Ex parte Toohey's Ltd; Re Butler (1934)4 SR (NSW) 277; Electric Light and Power Supply Corporation Limited v Electricity Commission of New South Wales (1956) 94 CLR 554; Re Horacek; Ex parte Springfield [1933] QWN 19; R v Industrial Court; Ex parte Northern Australian Breweries (1960) 58 QJPR 50; Edgar v Greenwood [1910] VLR 137, applied.

APPEAL under the Land Titles Commission Act 1962–1967, s38.

On 17th September, 1969, the Administration of the Territory of Papua and New Guinea (the appellant) appealed against a final order made by the Land Titles Commission on 29th August, 1969 in relation to the claim by the appellant that it was the absolute owner of and entitled to be registered as owner of Emananus Island, whereby the Commission declared, in favour of Toilu Mai on behalf of the Kurakur clan and Arurusea Ta Us on behalf of the Gnai–u clan (the respondents), that at the appointed date it had not been established that the appellant was entitled to an interest in or to, or to be registered in relation to that island.

All of the relevant facts appear in the reasons for judgment.

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O'Loghlen AJ: This is an appeal against the final order of the Land Titles Commission dated 29th August, 1969, whereby the Commission declared:

"that in connexion with the claim to re–establish ownership, as at the appointed date, of interest in or in respect of the claimed land it is not established that as at the appointed date the claimant was entitled to an interest in the claimed land or to be registered or entitled to be registered as the owner of or person entitled to an interest therein".

The grounds of appeal are that the Commission exceeded its jurisdiction and was wrong in law in that: (a) it failed to permit withdrawal of the claim for restoration of title; and (b) it heard the matter after the claim for restoration of the title had been withdrawn. The appellant seeks an order that the final order of the Commission be quashed and that the appellant be permitted to withdraw its claim for restoration of title.

The Administration which was the claimant before the Commission, alleged that it had withdrawn its claim on two occasions. The first was by letter dated 23rd March, 1966, that is, prior to the making of the provisional order on 28th July, 1966. This alleged withdrawal was investigated by the Commission during the course of the public hearing at Kavieng on 23rd July, 1969, and its finding was that there was no record of the same having been communicated to the Commission and having thereby become effective prior to the making of the provisional order. The Commission therefore concluded that the alleged withdrawal of 23rd March, 1966 had been ineffectual and that the provisional order was validly made.

The second purported withdrawal was the one which is the subject matter of this appeal and was made by counsel for the claimant at the public hearing of the claim before the Commission at Kavieng.

At the commencement of this appeal, counsel for the appellant intimated that he was no longer pressing the claimant's earlier contention that it had withdrawn its claim prior to the date of the making of the provisional order and that his argument would be limited to the withdrawal of the claim after such order had issued.

The exercise by the Administration of the right to withdraw a claim under the New Guinea Land Titles Restoration Act 1951–1968 (the Restoration Act) is potentially a matter of some importance by virtue of s14, which provides that the time limits which operate against other persons shall not apply to the Administration as long as a final order has not been made in respect of the land concerned. Once, however, a final order has been made, the Land Titles Commission (Declaratory) Act 1968 enacts that the same becomes a judgment in rem in respect of the ownership of land the subject of the decision and of the rights, titles, estates and interests therein set out.

If therefore it is decided in this appeal, as it is urged on behalf of the appellant, that a claimant has the right to withdraw his claim at any time before a final order has been made, then the claimant of his own decision can inhibit the power of the Commission to make findings as to ownership which would, once made, operate as a judgment in rem: and, if that claimant is the Administration, it has the unrestricted right to make a fresh claim in respect of the same land at any later time when it should consider that circumstances have become more favourable. There are relatively few claims still to be dealt with in the restoration jurisdiction and any advantage which might accrue to the Administration as a result of such a determination may not now be of great practical importance.

The first point raised by counsel...