Tolililu and Tolikun v Director of Native Affairs [1962] PGLawRp 4; [1963] PNGLR 65 (17 April 1962)

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OLLERENSHAW J: This appeal from the Commissioner of Titles came on for hearing before me at Rabaul on the 16th and 17th April, 1962, and is now part heard and adjourned to my next sitting on circuit at Rabaul.

Mr. McKillop of the Department of Law appeared for the Director of Native Affairs.

Mr. Germain of the office of the Public Solicitor announced that he appeared “for all the persons named as beneficiaries under the Commissioner’s Final Order, that position to be clarified by an application for a representative order by three persons named Tamunde Tapei and Magel, to be representatives for the class of beneficiaries already mentioned”.

There are no beneficiaries “named” in the Final Order. In it the objects of the trust, upon which the Director of District Services and Native Affairs is declared to hold the subject land, are declared and described to be: “....the natives residing on the said piece of land at the appointed date and their descendants ....”

Upon announcing his appearance as above mentioned Mr. Germain made an application to me that the said Tamunde Tapei and Magel be appointed to represent for the purposes of this appeal the persons intended to be benefited under the trust expressed as above in the Final Order.

The application was not formulated in a notice of motion, summons or other process. Mr. Germain read an affidavit sworn by Anthony Humphrey Germain on the 22nd March 1962, and filed in Court.

I refused the application and so to avoid further waste of the time available on circuit for the hearing of the appeal itself - the Notice of Appeal was filed on the 9th November, 1959, - I gave my reasons orally and said that I would put them in writing at a later date.

Mr. Germain made his application under Order 3 Rule 20 (b) of the Rules of the Supreme Court (Queensland, Adopted). In the affidavit read by him this appeal was described as an “action.” It is not an action in any sense; certainly not under the Rules relied upon by Mr. Germain. It is said, for instance, in O.2 r.1 that: “Causes commenced by writ of summons are called “actions” and what a cause is may be found in O.1 as well as O.2. This misconception may have led to the making of the application, which, in my view, was bound to fail.

In the first place, Rule 20 of Order 3 appears under the headings: “Parties to Actions. 3. Administration and Execution of Trusts” and applies to proceedings involving such administration and execution. It makes provision for a common practice, frequently exercised in the equitable jurisdiction of all courts in proceedings involving the construction of wills and other writings as well as the administration and execution of trusts. This appeal is not, of course, such a proceeding.

It is an appeal to this Court in the appellate jurisdiction conferred upon the Court by Section 5 of the New Guinea Land Titles Restoration Ordinance 1951-1955, which prescribes an appeal to the Supreme Court against a final order of the Commissioner of Titles for the restoration or registration of a title in respect of which a claimant formerly was registered or entitled to be registered under the Lands Registration Ordinance, 1924-1939.

This brings me to another and broader ground upon which the refusal of the application may be based: it is that the Rules of the Supreme Court, made in Queensland and adopted here long before the introduction of the New Guinea Land Titles Restoration Ordinance, do not apply to an appeal under that Ordinance. They do not and could not contain any provisions expressly applicable to such an appeal and there is in them no general provision capable of embracing such an appeal.

That this is so is recognized in the Ordinance itself, wherein it is provided in Subsection 2 of Section 54:

N2>“54(2) Subject to any rules made by the Supreme Court, the proceedings in or in connection with the appeal shall be as directed by the Supreme Court.”

The words “rules made” in this subsection obviously mean rules relating to appeals under the Ordinance for the reason (inter alia) that Section 68, a section to which I was not referred by Counsel, provides:

N2>“68. The judges of the Supreme Court or a majority of them may make Rules of Court regulating the procedure to be followed in respect of:

No such rules have been made. I would refer generally to the judgement which I delivered in Copland v. Bourke[lxxxiv]¹, on the 26th January, 1962, and Browne v. Commissioner for Railways[lxxxv]², per Jordan C.J. However, these cases deal with the position that arises when a right of appeal to a Court is given, to be exercised within the time, in the manner or on the conditions directed by rules of that Court and there are no such rules. The principle applied in these cases does not offer any assistance at all upon the question of the Court’s power to make a representative order.

There is the “well-settled” principle “that if an additional jurisdiction is conferred upon an already existing Court it is deemed to be exercisable according to the procedure of that Court with all its limitations as to jurisdiction ....”: Ex Parte Suttor Re Bedsor[lxxxvi]³ per Jordan C.J. and Australian Tramway & Motor Omnibus Employees’ Association v. Commissioner for Road Transport & Tramways N.S.W.[lxxxvii]⁴, per Dixon J.

This principle, too, offers no assistance and, indeed, it seems to emphasize the difficulty in which I considered the application found itself inasmuch as the procedure of this Court in relation to representative orders is limited to the special cases mentioned in its Rules, e.g., O.20. r.3. It is, as Lord Haldane said at page 552 in his judgment in National Telephone Co. Ltd. v. Postmaster-General[lxxxviii]⁵, “. . . . the ordinary incidents of the procedure” of the Court that attach to the new jurisdiction given to it.

Mr. Jones’ attitude was that he had not envisaged making application for representative orders, although his clients, the Appellants, were in fact representatives, as Alualuas or clan leaders for land purposes, of all the Tolais interested in the success of this appeal. He referred me to the practice of the Commissioner to hear and consider claims and contentions through such leaders without making any special orders. If, however, I did propose to make representative orders, then, he was quite prepared to make any necessary application on behalf of the Tolais.

Mr. McKillop, while submitting that the Rules of the Supreme Court (Queensland, Adopted) did not apply, did submit that “. . . . there is no reason why any of the interests of absentees, persons under disability and generations as yet unborn should not be the subject of representative orders . . . .” and, further, that such orders would be appropriate in the case of the Tolais as well as in the case of Mr. Germain’s Sulkas.

In support of his submission that “. . . . there is no reason why . . . .” representative orders should not be made he argued that the power to make such orders was contained in Section 52 of the Ordinance, as applied to this appeal by Section 56 thereof. Section 52, as so applied, provides that the Court is not bound to observe strict legal procedure or to apply technical rules of evidence. It is, to my mind a novel suggestion that a power to make an order such as a representative order may be discovered in a provision for the relaxation of ordinary legal procedures and rules of evidence.

To understand the difficulty involved in the application, in this appeal, for representative orders it is necessary fully to appreciate that the object of a representative order is to make the decision of the Court binding upon persons who are not before the Court in the proceedings in which the decision is given. Such an order is made when there is before the Court a suitable party to be appointed to represent such absentees, a party to the proceedings having or in the same interest as the absentees and so presumed to be concerned to put before the Court the evidence available and the arguments in support of such interest. Notwithstanding the demands of convenience and expediency it is, indeed, a serious matter to deprive a person of the fundamental right to be heard before he is bound by a judicial decision and one naturally seeks a source of special power to do so. If there is no power the order would be a futility and the Court should not make an ineffectual or useless order.

In my experience and reading there is always a legislative sanction for the making of a representative order, expressly providing that a decision made in the presence of the representative shall be binding upon the person or class of persons represented and the Court gets its power to make such an order from such legislative sanction. I am not aware of, nor was I referred to any source of such power in a Court in the absence of such a sanction, contained in a legislative enactment or rules properly made thereunder.

The provisions in Order 3, under which this application purported to be made, are examples of such a sanction and expressly confer the requisite power to bind persons in their absence. Other examples are Order 16 Rule 32 of the Rules of the Supreme Court (England): Rule 37 of the Consolidated Equity Rules of 1902 (N.S.W.) and, cf., Section 26 of the Equity Act (N.S.W.), 1901-1947. This section permits the Court to adjudicate on questions between the parties to a proceeding notwithstanding the absence of other interested persons. It does not, however, provide that the decision of the Court is to bind the interested persons, who are not parties to the proceedings, with the result that, although the Court may adjudicate to bind the parties before it, the decision of the Court does not bind the other persons who are also interested in the subject of the proceedings but are not before it: see Parker’s Practice in Equity (N.S.W.) 2nd ed. at p. 54.

In the course of argument I referred to Section 54 (2), cited above and providing that: “Subject to any rules made by the Supreme Court”, of which there are none, “the proceedings in or in connection with the appeal shall be as directed by the Supreme Court”, and I suggested that it was by this Subsection, rather than by Section 52, that the power to make a representative order, if it existed, could be applicable to this appeal. I reserved for further consideration before the hearing of the appeal was concluded the question of what, if any, directions, in the exercise of the power of the Court, I should give under Subsection 2 of Section 54, including directions as to the representation of absentees, in the event of the results of my own researches or those of Counsel persuading me, contrary to my present opinion, that there is a power to make representative orders in this proceeding but nothing has occurred so to persuade me.

I granted leave to Mr. Germain to appear for the three persons named by him: Tamunde Tapei and Magel. This will enable him to put the case for the Sulkas.

However, Mr. McKillop, in the course of argument upon the application for representative orders, informed me that the controllers of the lands occupied by Sulka clans upon the Reserve, the title to which is in question in this appeal, have been, since 1931, officials appointed from the Sulkas by the Administration in the stead of the previous and traditional regulators of clan holdings, who were known as “Taven” and are no longer recognized. He submitted that such official appointees would be the appropriate persons to represent the Sulkas and that it was not clear from the affidavit, which Mr. Germain had read, whether his clients Tamunde Tapei and Magel were such appointees. I now have before me in Exhibit “4,” which was not tendered until after I had refused Mr. Germain’s application and granted him leave to appear for these three Sulkas, the Report of Mr. W. J. Kelly to the Commissioner of Titles, which Report confirms that Mr. Germain’s clients were the present officially appointed controllers of the clan holdings of the Sulkas.

Although I wish to guard against being thought to say, without further consideration, that never would it be necessary or desirable in such a proceeding as this appeal to make such an order as was sought, I would refer to sections such as 68 and 69 of the Lands Registration Ordinance, whereby the protection therein provided for is given, upon registration of a Certificate of Title, to the title of the registered owner of the land and transferees thereof. If a Certificate of Title eventually does issue in respect of the land subject to this appeal the protection offered by these sections would be available to the registered owner notwithstanding the absence of persons who, but for such sections, might have had claims, estates, or interests other than those which are recognised by the Certificate of Title.

I would also refer not only to the practice in these Territories but also in other places where the Courts of Our Sovereign administer the law and native interests in land are involved. In the reported cases one usually finds that the native parties before the Court were really the representatives of native peoples or communities for land purposes and that the Court has proceeded without any question of making a representative order. I have in mind such cases as:

Geita Sebea & Ors. v. Territory of Papua[lxxxix]⁶, heard in this Court by His Honour Mr. Justice Gore and taken on appeal to the High Court, and Amodu Tijani v. The Secretary, Southern Nigeria[xc]⁷, which went on appeal to the Privy Council.

In the former the plaintiffs were headmen who represented the clans of Iduhu or Kila Kila who had interests in the land in question.

In the latter the plaintiff was the head chief of a family or community which was interested in the lands in question and appeared as plaintiff in his representative or constitutional capacity as the holder or controller of those lands as well as in his own right as an Idejo or one of the landowning White Cap Chiefs of Lagos.

N1>(2) Question of what directions (including as to the representation if where possible) should be given under Section 54 (2) of the New Guinea Land Titles Restoration Ordinance 1951-1955, reserved for further consideration.

N1>(4) Mr. Germain has leave to appear for Tamunde Tapei and Magel to put argument for the Sulkas.

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[lxxxv][1935] NSWStRp 69; 36 S.R. (N.S.W.) 21 at p. 28.

[lxxxvi][1943] NSWStRp 33; 43 S.R. (N.S.W.) 308 at p. 311 and [1943] NSWStRp 33; 60 W.N. (N.S.W.) 192 at 193.

[lxxxvii][1935] HCA 77; 54 C.L.R. 470 at pp. 502-503.

[lxxxviii]1913 A.C 546.

[lxxxix]67 C.L.R. 544.

[xc][1921] UKPC 80; 1921 2 A.C. 399.

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Papua New Guinea Law Reports

Tolililu and Tolikun v Director of Native Affairs [1962] PGLawRp 4; [1963] PNGLR 65 (17 April 1962)

Papua New Guinea Law Reports - 1963