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Saunders v Director of Native Affairs [1967] PGSC 55 (15 September 1967)

IN THE SUPREME COURT OF
THE TERRITORY OF PAPUA
AND NEW GUINEA


BETWEEN


ENID GLADYS SAUNDERS
Appellant


And the


DIRECTOR OF NATIVE AFFAIRS
Respondent


Coram: Minogue, J.

APPEAL


RABAUL
8th, 9th, August 1967
PORT MORESBY
15th Sep. 1967


REASONS FOR JUDGMENT


This is an appeal against a Final Order made by the Land Titles Commissioner on the 21st September 1965 whereby theCommission declared that the Appellant was entitled to an estate in fee simple in certain land in New Ireland known as KASALOK Extended. The appellant's complaint is that the area of land covered by the declaration and the Certificate of Title which was to issue in consequence of that declaration was less than the area o£ land in respect of which she was entitled to be registered as proprietor. She further complains of a finding that full native customary rights were retained by the native owners in a piece of land known as PAPUL and in certain other land referred to in the Final Order. She appealed on the three grounds -


(a) That the Commission exceeded its jurisdiction;


(b) That the hearings of the Commission were conducted in a manner contrary to natural justice; and


(c) That the Commission was wrong in law.


In September 1957 Burns Philp Trust Company Limited as administrator with the will annexed of the estate of Frank Veall Saunders, deceased, made a claim under the New Guinea "Land Titles Restoration Ordinance")1951-55 (to which I shall hereafter refer as "The Registration Ordinance") to have been entitled as at the appointed date, 10th January 1952, to a freehold interest in land known as Kasalok Extended and to be registered or entered in a Land Register as the owner of or the person entitled to that interest. The Register of Titles was destroyed by enemy action in or about 1942 and no duplicate certificate of title was in existence. However, Mr. Saunders who died in 1942 had mortgaged this land and other lands to Burns Philp 8 Co. Limited in July 1938 and in that mortgage the subject land was described as containing 101 hectares 29 acres more or less and as being the whole of the land comprised in the Certificate of Title dated 24th December 1936 and entered in the Register Book, Volume 10 Folio 56. The mortgage was discharged on the 5th August 1949. A Deed of Transfer was executed in April 1950 whereby the subject land was transferred to the Appellant. I was not informed why in these circumstances Burns Philp Trust Company Limited made the claim under the Restoration Ordinance but the point does not seen to have been of importance because at least from 1958 Mrs. Saunders was treated by the Commissioner of Titles as the claimant. The appellants on the Court Record were Enid Gladys Saunders and Burns Philp Trust Company Limited but before the appeal came on for hearing the company filed a Notice of Discontinuance and Mrs. Saunders is now the sole appellant.


On the 5th June 19513 the then Commissioner of Titles made a provisional order under the Restoration Ordinance declaring that on the appointed date Enid Gladys Saunders was entitled to an estate in fee simple in Kasalok Extended and consequent on the publication of that order the then Director of Native Affairs pursuant to Section 36 of the Restoration Ordinance referred to the Commissioner the question of native customary rights asserted by a number of natives and native communities to a portion of that land. This was done on the 17th November 1958. Matters seem to have rested there until early in 1960 when the Commissioner of Titles wrote a letter to Mrs. Saunders who was at that time living in Chatswood, N.S.W., advising her of the receipt of the Reference from the Director of Native Affairs and informing her that he wished to list these disputes far hearing in May of that year. At the end of May 1960 Mrs. Saunders' son wrote in reply to this letter and advised the Commissioner that Mr. Warner Shand; Solicitor of Rabaul, had been asked to act on his mother's behalf and to attend as her representative at any hearings held by the Commissioner. In keeping with the somewhat leisurely tenor which appears to have been pursued in these investigations the Commissioner wrote to Mr. Shand on the 7th June 1961 with reference to intended hearings of claims in respect of Kasalok Extended and other properties in New Ireland in which Mrs. Saunders was interested. In a further letter of the 8th June to Mr. Shand the Commissioner referred to a survey of the Kasalok land carried out post-war by Mr. Surveyor Sharp. A copy of the plan prepared by Mr. Sharp was before me which shows the land known as Kasalok Extended as containing approximately 240 acres which is 97 hectares 1 are. In the letter last referred to the Commissioner went on to say that Mr. Sharp had very little actual information to go on but he said that at that stage he, the Commissioner, must act on the basis that the surveyor's reconstruction was reasonably accurate. He went on to reiterate the view which he had expressed in an earlier hearing that if any native claims did exist in relation to any particular property they were extinguished by the mere fact that a Final Certificate of Title issued (i.e. had issued pre-war). This view, I note, was held by the High Court to be correct in The Custodian of Expropriated Property & Anor. v. Tede & Ors. ([1]). The Commissioner in the same letter set out his proposal to list the disputes about the Kasalok land for hearing in July (Acil 1961) in order that counsel could advise him whether it was desired to contest the view that the issue of a Final Certificate of Title barred the native claims in respect to Kasalok Extended and also as he put it "to consider whether I should hear the native evidence if I know before hand that I am going to reject their claims in any case on the grounds that whatever their validity might have been prior to the issue of the Final Certificate of Title pre-war, they were not valid claims at the appointed date." I pause here to notice that the Commissioner was obviously then of the view that he would act upon the surveyor's plan as accurately setting out the boundaries of the land in dispute and that the proved prior issue of a Certificate of Title would preclude his giving effect to any native claims to any part of this land. It will, be convenient at this stage to see more precisely what land is involved. Mr. Sharp's plan shows a piece of land of most irregular shape. The western boundary is also the eastern boundary of other land known as Kasalok 2. From the north western corner the boundary runs generally easterly for about half of its length along the southern side of a road. The boundary then crosses the road and runs northerly for a short distance to high water mark on the sea shore. Then it runs easterly along the sea shore for about 46 chains, turns south again for a short distance, crosses the road and then runs easterly for about another 20 chains to the north eastern corner. Then it swings east of south for about 30 chains to the south eastern corner and then generally, although irregularly, westerly to the south western corner. The overall area is shown to be 240 acres or with the road excluded 236 acres. The area on the north side of the road and which fronted the sea shore comprises a little over 22 acres and the land known as Papul lies just inside the western boundary and is 1¼ acres in area. It is these two areas of 22 acres and 1¼ acres which Mrs. Saunders says should have been included in her Certificate of Title.


On the 13th July 1961 the Commissioner of Titles was in Kavieng and proceeded to hear various land claims including that relating to Kasalok Extended. At that hearing the Commissioner reiterated his view that if there was evidence that Mr. Sharp's survey covered the land covered by the pre-war Certificate of Title, the Department of Native Affairs could not succeed. On the 14th July Mr. Sharp gave evidence. In the course of that evidence he mentioned finding a number of old cement marker pegs including two found on the western boundary of the 22 acres referred to, one of which was at high water mark and a further peg found approximately two thirds of the way along the sea frontage (i.e. the northern boundary). He also gave evidence that most of this particular area had at some stage been planted but it had been allowed to be completely overgrown and no effort had been made at the time of survey to bring it back into production. He arrived at a total area of 236 acres, excluding the road. He appeared to explain that the the discrepancy between this and the 101 hectares (approximately 14 acres) arose from his inability to find the dividing line between Kasaiok Extended and adjoining land known as Kasalok 2. At the conclusion of Mr. Sharp's evidence the Commissioner said he would accept for the moment at any rate his re-establishment of boundaries as covering the areas in the respective Certificates of Title which he was considering (including of course Kasalok Extended). He went on to say that as far as the main portion of the native claims to Kasalok Extended were concerned, it would be as well to go into the position fully, even though they were covered by the pre-war Certificate of Title. It seemed to him that there might be some moral or non-legal or extra legal argument which could be put forward on their behalf, or that there was even possibly, as he put it, a weak legal basis, and he adjourned the hearing until further information could be obtained. There unfortunately, the matter seems to have rested until 1965.


In the meantime the legal situation had changed considerably. The position of the Commissioner of Title had been abolished and in its stead had been set up the Land Titles Commission. Further, it had been enacted that the jurisdiction of the Commissioner of Titles under the Restoration Ordinance was to be exercised by the Chief Commissioner of The Land Titles Commission. On the 4th March 1965 the Acting Chief Commissioner of the Commission advertised in both the Papua and New Guinea Gazette and in the New Guinea Times Courier newspaper, that he would hear claims for restoration of title to inter alia Kasalok Extended on the 14th day of June 1965 in Kavieng. For a reason of which I am not fully aware but which appears to have had something to do with a clashing with the sitting dates of the Supreme Court, the Acting Chief Commissioner decided to begin his hearings on the 9th June 1965 at Kavieng and he actually on that day dealt with Kasalok Extended. No Gazette or newspaper notice was given of the changed date of hearing. As a good deal depends on the events of this hearing I proceed to set out in some detail my findings as to what happened.


In June 1965 one Bower, who lives in Kavieng, was the manager of a company known as New Ireland Enterprises Pty. Limited, and to that company Mrs. Saunders had earlier sold Kasalok Extended, apparently in return for a substantial shareholding in the company in June 1965 also, one Peter Saunders, Mrs. Saunders' son, held a Power of Attorney from his mother but he had left New Ireland in March of that year to reside in Queensland. Prior to leaving he had instructed Bower to protect the interests of his mother and himself. I am satisfied that neither Mrs. Saunders nor her son nor Bower nor Mr. Shand, nor any employee of his received notice of the intended hearing on the 9th June in that same month Mr. Philip Davenport was acting as Deputy Crown Solicitor at Rabaul. He had been there for but a short time and was inexperienced in the work of the Land Titles Commission, having-appeared at only one previous sitting. A number of files were sent over to him by the Crown Law Department at Port Moresby with instructions to appear generally for the Administration at the sittings at Kavieng. He was aware that Crown Law officers appeared for Missions and in fact at the Kavieng sittings he appeared for the Catholic Mission in one case. He was not aware that a general instruction had earlier been issued some time in 1963 to the effect that Crown Law officers could appear on behalf of private individuals seeking restoration of title. His instructions with regard to the Kavieng sittings of the Commission were verbal and conveyed by telephone and I am satisfied that they were of the most general nature. In my view the probabilities are that in such file as he received relating to Kasalok Extended there was no copy of the transcript of proceedings of June 1961 nor was there anything to show to him that Mr. Shand was acting for Mrs. Saunders.


Laconic is the only way to describe the transcript of proceedings on the 9th June which reads as follows:-


" HEARING - KAVIENG - WEDNESDAY, 9TH JUNE, 1965


KASALOK 4 & KASALOK
EXTENDED


TC 1383
TC 2713
TC 2711


Heard Before: Mr. D.J. Kelliher, Acting Chief Commissioner.


Counsel: Mr. Davenport for Other parties
Mr. P. Munro for Native Claimants


Davenport: I have no evidence in either of these matters.


A/Chief Comm: Who is on KASALOK 4?


Munro: There is apparently a native living on it now, but Saunders still comes along and gets coconuts off it.


A/Chief Comm: I have a copy of a letter dated 25th January, 1950 from Burns Phulp Trust Co., to Mr. Cromie.


Have you seen that?
(Counsel peruses)


Munro: For KALASOK EXTENDED there is no claim.


DECISION: KASALOK 4: - Final Order as per Provisional Order subject to an encumbrances over the whole of the land as follows:


"A covenant to allow natives dwelling on or using the said land on 20th day of February, 1902 and their heirs and successors to continue to use the same to the same extent as they had been accustomed to do up the 20th day of February, 1902".


KASALOK EXTENDED: - Final Order as per Provisional Order. Boundaries are as fixed by me on Exhibit "A" exclusive of the land known as PAPUL and the area north of the road marked by me as native land. I find that full native customary rights were retained by the native owners in PAPUL and that area. Such owners to be determined by the Land Titles Commission on application by an interested party.


3rd August, 1965


EXHIBIT "A" Plan of KASALOK 4 and KASALOK EXTENDED"


Unfortunately, I have not any material before me to show what documents the Acting Chief Commissioner actually considered but I cannot think that he had a complete file with him or that he had that part of the file which contained the correspondence with Mrs. 5aunders nor copies of the letters written in 1961 to Mr. Shand. As Mr. Davenport said he was at the Bar Table during the whole of the hearings which were conducted at Kavieng and in the light of his appearance for the Mission and of the general (but unknown to him) instruction empowering him to act for private individuals which instruction would have been known to the Acting Chief Commissioner it may well be that the latter assumed that Davenport was appearing on behalf of the Saunders. This assumption would be the more easily made if the Acting Chief Commissioner did not have all the previous files of the Commissioner of Titles before him. However, I find that Davenport was not acting on behalf of Mrs. Saunders and further that he did not believe himself to be so acting. He may have had some idea that he was appearing on behalf of the Administration but in this particular case the Administration could have no interest of its own to uphold. Mr. Munro, of course, appeared for the native claimants, as he also did in all other cases in which native claims were involved at these sittings. A good deal was sought to be made of the fact that Mr. Davenport applied on behalf of the Saunders for an adjournment of the hearing in relation to another piece of land known as "Bangatan" but as he said he had heard this land described as "5aunders' lease" and in effect, as an act of courtesy he made enquiries as to whether anyone was interested in this case.


As a result of his enquiries Bower who got in touch with him at the Kavieng Club, told him that he was Mr. Saunders' manager and of his surprise to hear that the Bangatan case was to be heard and asked him if he could possibly arrange for it to be adjourned. This Davenport did, but in no sense could he be said to be acting generally for the Saunders. I am satisfied too that the matter of Kasalok Extended was not discussed and that at the time of his conversation with Bower Kasalok Extended was not in Davenport's mind. Indeed, I feel sure that from his early perusal of such scanty file as he had, Davenport had dismissed Kasalok Extended from his mind as a case in which he would be likely to be interested. In the result, I am satisfied that the claimant for the restoration of title to Kasalok Extended was not aware either herself or through any agent of hers of the fact that her claim was to be heard at Kavieng on the 9th June, that she was given no opportunity to be heard and that her case was not presented.


Unfortunately, no reasons were given by the Commissioner for his decision and he has informed Mr. Shand that he is unable to furnish any such reasons as he has no written record of them and no independent recollection of them at all. Apparently within the next few days after the pronouncement of the Final Order at Kavieng the native parties interested warned members of the labour line employed by New Ireland Enterprises Pty. Limited not to enter upon the land to which they had laid claim, that is the land on the north side of the road not included in the Chief Commissioner's order. Bower sent a telegram to Davenport who by then had gone to Sohano for some further land hearings. On the latter's return to Aabaul on the 16th June he telephoned Bower and in the course of their conversation told him of the making of the Final Order. This was the first knowledge that Bower or anybody interested on behalf of the Saunders had that there had been a hearing in relation to Kasalok Extended.


From Mr. Munro's affidavit I am not clear as to what evidence was actually considered by the Acting Chief Commissioner. It is not clear to me when he says that the evidence before the Commissioner was as set out in paragraph 15 of that affidavit if he means that the Commissioner either directed his attention to or had his attention directed to the various documents set out in that paragraph or whether he means that this evidence was contained in the Commissioner's files. I cannot understand the reference to the evidence contained in the letter from the Commissioner of Titles to Mrs. Saunders. This could not possibly have been evidence that the areas claimed by the native parties had not been purchased; the letter merely contains an assertion on their behalf that they claim ownership. Furthermore, I cannot see how the statement contained in the letter of June 1961 from the Commissioner of Titles to Mr. Shand that the properties were surveyed by Mr. Surveyor Sharp but "that he had very little information to go on" can in any way be regarded as evidence before the Commissioner. He that as it may I do not think I need concern myself greatly with the evidence upon which he based his decision because as will appear I have reached the conclusion that he should rehear this claim and reference.


It is necessary that I turn now to examine what the powers of this Court are in` this appeal. Under the Restoration ordinance appeals against a Final Order were by way of re-heaving and upon the hearing of the appeal the Supreme Court was Empowered to make any Order or exercise any jurisdiction, power or authority which the Commissioner (of Titles) could have made or exercised and to discharge or vary the Final Order or such part of it as was appealed against (section 56). These provisions were repealed by the New Guinea Land Titles Restoration Ordinance of 1962 and in their place was enacted section 38 of the Land Titles Commission Ordinance 1962 which is the only section dealing with appeals against a decision of the Commission. Section 38 (2) enacts that an appeal may be made only on the ground that -


(a) The Commission has exceeded its jurisdiction;


(b) The hearings of the Commission were conducted in a manner contrary to natural justice; or


(c) The Commission was wrong in law.


There is no provision either in this Ordinance or in the Papua-New Guinea Act or in the Supreme Court Ordinance directing what the Supreme Court is to do when such an appeal is made or setting out what powers it has. Implicit in the section there must be a power to hear an appeal the right to which is there given and to decide whether there has been an excess of jurisdiction, a denial of natural justice or an error in law on the part of the Commission, as the case may be. I am of the view that the Court must at least have the power to quash the Order of the Commission or to declare it to be void or of no effect in law. But beyond this I do not see that the Court can go. Without specific legislative authority I cannot see haw it can substitute its own Order for that of the Commissioner or vary any order made by him.


What then should be done in this case? It is clear to me that, albeit unwittingly, there has been a denial of natural justice. The refusal or failure to hear a party in a judicial proceeding is one of the best recognised examples of such a denial. Mr. Gledhill pressed upon me a wealth of authority from Cooper v. Wandsworth Board of Works ([2]) to Ride v. Baldwin ([3]), to support this ground of appeal. Mr. Lalor for the Respondent did not contest either the proposition that proceedings before the Commission were judicial proceedings ox that there was a denial of natural justice and consequently that the appeal should be allowed if the Appellant had no notice and consequently no opportunity to be heard. His concern was to show that notice had been given and that Mr. Davenport was in fact appearing on behalf of the Appellant.


This I have found not to be so. It is beyond argument that there was a duty in the Acting Chief Commissioner to act judicially and to hear each party and I think it unnecessary to enter upon an analysis of the relevant Ordinances which lead me to that conclusion. I am satisfied that he did not hear the Appellant's case at all and therefore the "hearing" at Kavieng was a nullity. This would be sufficient for this Court to allow the appeal and quash the order of the Acting Chief Commissioner. However, as a great deal of argument was directed on behalf of the Appellant to the other two grounds of appeal I think that I should, in deference to that argument, say something shortly about them.


I am inclined to agree with Mr. Gledhill's submission that the Acting Chief Commissioner exceeded his jurisdiction for the reason that he had no jurisdiction to make any order affecting a party whom he did not hear. This was the view taken by the Full Court of Queensland in The Queen v. Toon Ex Parte Visona & Anor. ([4]) and appears to have been the view of some of their Lordships in Ridge v. Baldwin ([5]) e.g. see per Lord Reid at page 80 and Lord Hodson at page 136. But as the excess of jurisdiction arises out of a denial of natural justice I do not think I need say any more about this ground.


The submission that the Commissioner was wrong in law merits mere consideration. Mr. Gledhill submitted that there was no evidence to support the Acting Chief Commissioner's exclusion of the two areas of 22 acres and 1¼ acres from the land covered by his Final Order, nor to support his findings that full native customary rights were retained in these two areas. A prima facie case was established, so he said, for their inclusion. The Acting Chief Commissioner had before him the Claim, the Provisional Order made by the Commissioner of Titles, a letter from Burns Philp Ltd., to Mr. J.I. Cromie of the 25th January, 1950, which in effect advised the latter of the former existence of a Certificate of Title to Kasalok Extended, the survey plan prepared by Mr. Sharp in 1958, and the evidence taken before the Commissioner of Titles in 1961. From that evidence it appeared, so he urged upon me, that Mr. Sharp had re-established the area covered by the Certificate of Title to within approximately 1% and consequently its boundaries. If there were no other evidence before him, and in the absence of any evidence to support exclusion of the two areas of land, he should have found for the claimant. The reference by the Director of Native Affairs was a mere assertion and was in no sense evidence and could not justify any finding being based upon it. The position was analogous to that in Overgaard v. Licensing Magistrate of the Murray District ([6])


As I have already stated, I do not feel confident as to just what evidence the Acting Chief Commissioner considered. But assuming that all this material was before him and referred to by him I do not take the view that he was wrong in law in refusing to be satisfied that the Certificate of Title for which restoration to the register was sought included the two areas of land in question. I agree with Mr. Lalor's submission that if there were no evidence at all from the native claimants, the onus of proof of entitlement to registration was upon the claimant and the question whether the claimant had satisfied that onus is purely a question of fact and not a question of law upon which this Court can rule.


Under the Restoration Ordinance as amended the duty of the Commissioner was to investigate, hear and determine the claims, objections and references which were the subject of or related to the Provisional Order and to make Final Orders in respect thereof, either in the terms of the Provisional Order or in such terms as he should think just (Section 42). The Commissioner is the judge of fact and it seems to me that whether or not, or the extent to which, the claimant has made out his claim are questions of fact and not of law. I respectfully adopt what was said by Cussen A - C.J. in Driver v. War Service Homes Commissioner ([7]) at page 352 "From these cases I conclude that where there is a real conflict of evidence no question of law ..........arises and that no such question evidence ..........is all on one side, if on that side is the onus of proof [underlining mine] but that the question whether there is or is not any evidence upon which there might properly be a finding in favour of the person upon whom is the onus of proof may be a question of law." This passage was quoted with approval by Dixon J. (as he then was) in Hocking v. Bell ([8]). Had there been a finding by the Commissioner that the two areas of land in question should be included in the Certificate of Title, a question of law might have arisen as to whether there was any evidence to justify such a finding. But, where the Commissioner has failed or refused to be satisfied upon arises even if the side is the onus of the evidence before him no matter how preponderating it may be or appear to be, I doubt whether it could be said he has erred in law. Such an error might appear in the rare case where a Court of Appeal could feel that there had been a miscarriage of justice as for example, where the Court would feel impelled on the material before it to conclude that the tribunal had come to its decision upon matters quite extraneous to the case.


Mr. Gledhill sought to show that if the evidence before the Acting Chief Commissioner established portion of the claim it should have established the whole because the only evidence before him was that the area shown in Mr. Sharp's survey was virtually the same as the area comprised in the pre-war Certificate of Title. (In fact it was less by about 10 acres - a variation of 4%). If he was not satisfied that Mr. Sharp's evidence was sufficient to support the making of a Final Order in favour of the claimant in respect of both the disputed pieces of land, then he should not have been satisfied as to any of the area and consequently I should come to the conclusion that his decision was based on something not presented at the hearing. I do not think this necessarily follows. Although clearly enough the Commissioner of Titles when the matter was before him in 1961, was content to accept Mr. Sharp's plan as showing the area of land in respect of which Mr. Saunders was entitled to be registered, I cannot see that the Acting Chief Commissioner was wrong in not being so content. For myself, if the decision was for me, whilst I would not have much difficulty in deciding that Mrs. Saunders was entitled to be registered in respect of 101 hectares, I would need to scrutinise the proofs as to the boundaries of the land with some care and I would probably have a look at the land for myself, particularly if I knew that natives were claiming some part of the land. But the task of deciding this question is not for this Court and I have no doubt that the Chief Commissioner will give weight to all relevant considerations when he comes to rehear this matter as I presume he will.


With regard to his finding that full native customary rights were retained by the native owners in the two areas not included by him in his Final Order, I am of the opinion that he has made an error in law. It is clear that he made no enquiry of the natives concerned as to the basis upon which their claims were made and I can see nowhere in the material before me any evidence at all that there were native owners of this land at the date of this hearing, whatever conclusions may be drawn from the statement of 1913 in the German Ground Hook that the whole of what is now Kasalok Extended was owned by natives. When a finding is made by a tribunal where there is no or no more than a scintilla of evidence to support that finding there is an error in law. However, this finding was complementary to that made in respect of Mrs. Saunders' claim and the fact that the Acting Chief Commissioner was wrong in law in making it does not involve as a corollary that he ought to have found in favour of Mrs. Saunders in respect of the land in question. That is another matter. I agree with Mr. Lalor's submission" that-there the question of fact was whether these pieces of land were proved to have been included in the original Certificate of Title.


For the reasons I have stated, I hold that the Acting Chief Commissioner conducted his hearing at Kavieng on the 9th June, 1965, in a manner contrary to natural justice and that he was wrong in law in finding on the material before him that full native customary rights were retained by the native owners in the area of land shown on Mr. Sharp's plan as being north of the road and in the area known as Papul. Accordingly, I declare that his findings were of no effect and that his Final Order should be quashed. I have heard no argument on the question of costs and accordingly will reserve this matter for further consideration.



[1] (1964-65) 113 C.L.R. 318.
[2] (1863) 14 C.B.N.S. 180
[3] (1964) A.C. 40
[4] (1960) 54 Q.J.P.R. 79
[5] (1960) A.C. 40
[6] 9 W.A.L.R. 31
[7] (1924) V.L.R. 515
[8] (1945-46) 70 C.L.R. 430 at page 498.


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