Director of District Administration v Custodian of Expropriated Property (re Wangaramut) [No 2] [1969] PGSC 14; [1969-70] PNGLR 410 (2 February 1970)

Papua New Guinea Law Reports - 1969-70

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

[1969-70] PNGLR 410

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[dlxvi]¹ .

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[dlxvii]² .

Upon appeals under the Land Titles Commission Ordinance 1962-1968, s. 38 the primary judge set aside[dlxviii]³ 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:

N1>(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.

N1>(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] HCA 75; (1964), 113 C.L.R. 318, followed by Frost J.

N1>(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 a 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 Ordinance by the Director of District Administration on behalf of certain natives of different clans and villages adjoining Wangaramut in which they asserted that nearly three-quarters of the area claimed by the respondents had never been alienated and that they were entitled to rights over such area. On 20th March the Commissioner made four findings and on 23rd July he issued a final order which purported to give effect to those findings. The encumbrances to be shown on the certificate of title which his final order directed should issue were a standard mining encumbrance, an encumbrance relating to roads, rights of way and landing places, the waterhole encumbrance to which I have referred and a further encumbrance in these terms “the right of natives to exercise over the said land the permanent free and undisturbed right of dwelling and user”. The “said land” was land delineated and edged green on a map and was in fact the land alleged never to have been alienated by the natives on behalf of whom the reference was made. In September 1965, the respondents appealed against the Commission’s order on the only grounds then open to them, namely:

N2>(1)      That the Commission exceeded its jurisdiction;

N2>(2)      That the hearings of the Commission were conducted in a manner contrary to natural justice; and

N2>(3)      That the Commission was wrong in law.

In January 1969, by virtue of amending legislation in 1968 and by leave of the Court, each respondent added a further ground of appeal, viz. that the following findings of the Commissioner were against the weight of the evidence:

N2>(a)      That the copy certificate of title tendered in evidence was not a true copy of the certificate of title that issued in respect of Wangaramut;

N2>(b)      That the certificate of title which issued had substantial encumbrances on it in favour of the Director as trustee for natives; and

N2>(c)      That those encumbrances substantially followed those in the former German land register known as the Ground Book.

A further finding was complained of which is not material to these proceedings.

The appeal eventually came on for hearing before Clarkson J. at Rabaul in April 1969. Before him the only grounds of appeal argued were that to which I have just referred and that the Commissioner’s findings were wrong in law. On 2nd June, 1969 he allowed the appeals and quashed the final order of the Commission[dlxix]⁴. In substitution for that order he made an order which followed the same form as the final order of the Commission but which declared that the only registered encumbrances were the mining encumbrance and the waterhole encumbrance as shown on the documents originally propounded by the respondents. From that decision appeals are now brought to the Full Court of this Court.

When the appeal came on for hearing there was a preliminary difficulty to be overcome. It appeared that due to administrative reconstruction the office of Director of District Administration had been abolished and someone in the administrative machine had overlooked the fact that the Director was a party to a number of appeals before this Court. The members of the Court decided to proceed with the hearing on the assurance being given that legislation had been enacted and was in the course of being assented to which would cure the somewhat startling defect that there was no appellant in existence. That legislation was subsequently assented to by the Governor-General in Council (as was necessary before it could take effect) and although for my part I am not entirely satisfied that it succeeds in restoring the Director of District Administration to life for the purpose of this and other litigation, I think no harm is done by leaving him as the titular appellant. At the conclusion of the hearing we gave leave to add, as an appellant in each appeal, the Director, Division of District Administration who, in some respects, is a successor to the former Director of District Administration.

Towards the end of his reasons for judgment the learned appeal judge, after a careful and closely reasoned analysis of the material before the Commissioner, had this to say[dlxx]⁵:

“A review of the evidence before the Commission shows that little, if anything, depends on the credibility of witnesses. The evidence of those natives who gave evidence is imprecise and at times confusing, but whatever weight is given to it it affords no real answer to the Custodian’s claim that a certificate of title had been registered. His claim depended on documentary evidence which is before this Court in the same form as it was before the Chief Commissioner, and this Court is in as good a position as the Chief Commissioner was to draw inferences from and to evaluate the material placed before him. Indeed, because of the detailed and careful arguments before me, I may will be, in some respects, in a better position.”

Earlier he had preferred submissions of counsel for the then appellants that the Commissioner’s decision should be reviewed as if it were that of a judge or other person acting judicially and sitting alone. He held the then appellants entitled to challenge the conclusions, both of fact and law, arrived at by the Commissioner and without further elaboration referred to Paterson v. Paterson[dlxxi]⁶, Benmax v. Austin Motor Co. Ltd.[dlxxii]⁷ and Jones v. Capaldi[dlxxiii]⁸ as stating the considerations which govern the exercise by an appellate court of its jurisdiction to review findings of fact by a judge.

At the outset of his argument before us Dr. Hookey, counsel for the appellant, based himself squarely on the first ground of appeal—that the appeal judge misdirected himself in holding that he was in as good a position as or in some respects a better position than the Chief Commissioner to draw inferences and evaluate the material placed before him. In effect he submitted that that part of his Honour’s reasons which I have quoted illustrates his whole approach to his function as an appellate court in this jurisdiction, that it showed that he misconceived his powers and duties as an appellate court, that it failed to take into account both the peculiar and expert nature of the tribunal from which appeal was brought and overlooked or misunderstood the very wide discretion confided to the Commission. All or practically all of the other grounds of appeal were either subsidiary or related to this major ground or illustrative of it.

That I do not deal seriatim with the submissions made by Dr. Hookey is not to detract from their careful preparation, their erudition and their skilful and forceful presentation. But despite the wealth of authority cited to show what he submitted were analogous situations, I have come to the clear conclusion that in challenging a decision of the Land Titles Commission on the ground that it is against the weight of the evidence (as defined in s. 38(2a) of the Land Titles Commission Ordinance 1963-1968) an appellant is entitled to a review by the appellate court of that evidence, oral and documentary, and to a consideration of its probative value, to an evaluation of the inferences drawn from that evidence, as well as to a consideration of the relevant law so far as it affects that evidence. This is not to say that an appellate court is to simply substitute its own conclusions for those of the tribunal appealed from if it disagrees with them. It must be able to come to the conclusion that the decision appealed against was wrong and could not be supported either by the evidence or by any proper inferences to be drawn there from or from the relevant law. I respectfully adopt what was said by Barwick C.J. and agreed with by McTiernan J. in Whiteley Muir & Zwanenberg Ltd. v. Kerr[dlxxiv]⁹:

“The appeal therefore is an appeal against a finding of fact by the Supreme Court of Queensland after a very extensive hearing in which oral evidence was given, and in which inferences were drawn from the documents including the accounts which passed between the parties. Though his Honour did not found any part of his reasons for finding as he did upon any contested oral evidence or the credit of any witness, the appellant, to succeed in his appeal, must convince the court that the learned trial judge was wrong in the conclusion to which he came.

“No doubt where the conclusion of the trial judge is not based upon or in any respect influenced by his opinion of witnesses orally examined before him, the appellate court is in an equal position with the trial judge as to what inferences can be drawn from the facts as proved before him. But this does not mean that the appellate court should treat the appeal as a hearing de novo. The trial judge, although not depending in any respect on the credibility of any witness, may have preferred one possible view of the primary facts to another as being in his opinion the more probable. Such a finding may, in my opinion, be disturbed by an appellate court but this should only be done if other probabilities so outweigh that chosen by the primary judge that it can be said that his conclusion was wrong. Again, the trial judge, having found the primary facts, may decide that a particular inference should be drawn from them. Here no doubt the appellate court has more room for setting aside that conclusion. But, even in that case, the fact of the trial judge’s decision must be displaced. It is not enough that the appellate court would itself, if trying the matter initially, have drawn a different inference. It must be shown that the trial judge was wrong. This may be achieved by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the trial judge is so preponderant in the opinion of the appellate court that the trial judge’s decision is wrong.

“Therefore in this case it would not be enough for the appellant to persuade the court to differ from the trial judge in the conclusion which, had the court been trying the matter in the first instance, it would have drawn from the material available.”

I have had the advantage of reading the reasons for judgment about to be handed down by my brother Frost and agree with his reasoning and conclusions on the general argument advanced by Dr. Hookey relating to the powers and approach of the appellate court, on the deference to be paid to the expertise of the Commission and on the discretion vested in it and there is little that I can usefully add. Some guidance can be obtained from cases such as R. v. City of Westminster Assessment Committee; Ex parte Grosvenor House (Park Lane), Limited[dlxxv]¹⁰ and R. v. London, etc., Rent Tribunal; Ex parte Honig[dlxxvi]¹¹ cited to us by Dr. Hookey, but it must be remembered that these and others of a similar nature came before a superior court from tribunals much less endowed with judicial attributes than the Land Titles Commission and tribunals from which there was no appeal as such but only recourse to the prerogative writs where error of law or denial of natural justice had to be shown for relief to be given. In this case the duty of the Commissioner was to investigate, hear and determine claims and, in my view, before he could determine a claim in a claimant’s favour he had to have some credible and relevant evidence. I have had the further advantage of reading the reasons for judgment of Clarkson J. in Administration of the Territory of Papua and New Guinea v. Director of District Administration; Re Volupai[dlxxvii]¹². This case was decided by him after the appeal before us was heard. From a study of these reasons it appears that virtually the same arguments as we have heard on the foregoing matters were adduced before him and the same authorities relied upon. In my respectful view, his treatment of these arguments is compelling and I would adopt the conclusions reached in respect of each of them.

Although I have rejected the basic submissions on the deficiencies in approach of the appellate judge and on the consequent error in which he was said to have fallen, this Court still has to consider Dr. Hookey’s two major submissions: first, that the Commissioner’s finding that the document propounded was not a copy of the certificate of title which he found to have been issued, was not against the weight of the evidence and should not have been upset; and second, that his finding and subsequent definition of the encumbrance in favour of natives was similarly not against the weight of evidence and should have stood.

Accordingly I turn first to look at the materials which the Commissioner had on his file before the hearing began in March 1965. First, in point of time, was the claim made by the respondent Island Estates Ltd. which was signed on 3rd October, 1952. It was supported by a statutory declaration by the secretary of the claimant that the material in the claim was, to the best of the deponent’s knowledge and belief, true and correct. The claim was for a freehold interest in Wangaramut comprising 492.02 hectares and for other small parcels of land. The freehold interest was stated to have been acquired by contract of sale, from one J. Chapman, in or before February 1948, and it was further stated that the first alienee of the land acquired it from the Custodian who it was believed acquired his title by virtue of his office in acquiring former German properties. Wangaramut was described as having been entered in the register book certificate of title vol. 1 folio 5. It was also stated that the land was previously subject to a mortgage in favour of the Custodian of which details were not then held and that this mortgage had been discharged in full. The land was also said to be subject to encumbrances noted on the certificate of title. The answer to a question set out in the claim form as to whether the land was affected by any native rights was that it appeared that there had been a proposal to realign boundaries between the plantation and a native reserve. The outcome of this proposal was not known but reference was made to a photostat of a copy of the proposed change attached to the claim. Annexed to the claim were six documents. Those relevant to Wangaramut were a photostat copy of a carbon copy of what was alleged to be a copy of the certificate of title vol. 1 folio 5, a photostat copy of a plan marked “Proposed Exchange Between Wangaramut Plantation & Native Res.” and bearing the further inscription “(Signed) Alf. A. Chauncey 7.4.41” thereon, and a photostat copy of a plan marked “Plan of Wangaramut Plantation, New Britain, Ref. No. E 14”. From a perusal of the photostat copy of the title it is obvious that it is a photostat copy of a carbon copy which was then or had been in a file kept by the Custodian. However, the respondent company could not have had made available to it a document referred to in the Custodian’s subsequent claim as a tracing of a plan of Wangaramut because its claim stated that no photostat copy of the map (sic) referred to in the certificate of title was available. Accordingly, it annexed the photostat copy Ref. No. E 14, a plan which lacks precision and of which it is impossible to say by whom and when it was prepared. The plan marked “Proposed Exchange etc.” appears to show the western and southern boundaries of the land claimed and to suggest an excision of approximately ten hectares of land in the south-western corner in exchange for an acquisition of an equivalent area on the western side.

The next group of documents is the claim made by the Custodian and its relevant annexures. It bears date 31st October, 1952 and claims a freehold interest in several pieces of land, the largest being Wangaramut. It also included a claim for a freehold interest in a small trading station adjacent to Wangaramut known as Wunagaramut. The land was stated to have been acquired on 10th January, 1920 by expropriation from the former German Government. The claimant stated that the land was affected by native rights, viz. water rights with rights of ingress and egress for the purpose of exercising those rights. Attached to the claim were another photostat copy of the carbon copy of the certificate of title to which I have referred and also a photostat copy styled “Plan of Wangaramut, Tracing of Plan on Certificate of Title Vol. 1 Fol. 5”. The area shown on the purported copy of the certificate of title was stated as 492 hectares 2 ares and the purported tracing showed a like area. The tracing carried the initials W.W.W. beneath which was a date 30/11/25. The only other relevant information on this claim form is a statement to the effect that the subject land was sold as Lot B.6. First Group—Catalogue of Sales and that the purchaser was a Mr. Jack Chapman. The photostat copy title submitted with both claims contained a standard mining encumbrance and an encumbrance over land stated to be delineated and edged purple on the said map (i.e. a map referred to in the title as being on the sheet annexed to the title) in these terms:

“The obligation to allow the natives of the Rakumkumbur villages to draw water from the waterhole on the said land edged purple with the right of ingress and egress for the said purpose over the road delineated and edged purple on the said map.”

Next on the file is a claim lodged in December, 1952 by the then Acting Director of Native Affairs as trustee for natives to ownership of the waterhole encumbrance above referred to.

Next appears a provisional order made by the then Commissioner of Titles in respect of the parcel of land described as Wangaramut, District of New Britain, containing 492.02 hectares more or less in which he provisionally declared in pursuance of the Restoration Ordinance that it was established that on the appointed date the following registered interests in the land were owned by the following persons:

N2>(a)      an estate in fee simple by the Custodian of Expropriated Property; and

N2>(b)      an encumbrance being the obligation to allow the natives of the Rakumkumbur villages to draw water from the waterhole on the said land with the right of ingress and egress over the said waterhole by the Director of District Services and Native Affairs as a trustee for natives.

There the matter rested until 1960, largely I suspect due to the backlog of survey work—the Commissioner of Titles having decided that a resurvey was necessary before proceeding to deal with the foregoing claims. In 1960 the correspondence on the Commissioner of Titles’ file shows that a patrol officer in Rabaul had reported that the people of Putanagorogoi wished to lodge a claim for a very large portion of Wangaramut which they claimed was never alienated but was taken from them in the mid-1930s and further, that the people of Rakumkumbur wished to lodge a claim over a road running through the property which they said was the only reasonable access to the coast. Both these groups of people were living on land adjoining Wangaramut. At this time the Director of Native Affairs was apparently unaware of the making of the provisional order. Desultory correspondence showed that there was still some difficulty in having the land resurveyed. In May 1963 the office of the Commissioner of Titles was abolished and the Land Titles Commission established which, inter alia, took over his functions. In 1963 the Land Titles Commission was advised by letter from the Director of Lands, Surveys and Mines that he was having difficulties with the survey of Wangaramut because of strenuous resistance by the adjoining native owners and that he would refrain from any further survey work if his officers were physically resisted by the native people. In June 1964 the Director of Native Affairs filed a formal reference under s. 36 of the Restoration Ordinance by which a number of natives from the Putanagorogoi, Rakumkumbur and Vunapaka areas claimed on behalf of their vunatarais that the land which was subsequently declared by the Commissioner to be encumbered was never properly alienated. So stood the Commissioner’s file in March 1965.

At the hearing both respondents appear to have had common representation and their counsel opened and, at this stage, in effect closed his case by tendering a number of documents. First he tendered the Custodian’s file about which I will say something later. The transcript of the proceedings before the Commission records that the Chief Commissioner said that there was no necessity to tender it and Mr. Valis (counsel for the respondents) retained it. It appears that the Commissioner perused the file before returning it to counsel. Then counsel tendered a letter of which the following is a copy:

“COMMONWEALTH OF AUSTRALIA

Office of the Delegate of the Custodian of Expropriated Property,

RABAUL

L.T. 176

14th May, 1928.

Memorandum for:

The Custodian of Expropriated Property,

MELBOURNE.

Wangaramut Plantation.

Referring to previous correspondence on the subject I forward herewith copy of Certificate of Title to Wangaramut plantation.

(SGD.) W. C. THOMAS

DELEGATE.”

With this he handed up the photostat copy of the copy of a copy certificate of title which I have described as being annexed to the respondent company’s claim and two plans. These as far as I can see were the plan Ref. No. E 14 annexed to the respondent company’s claim and the tracing of the plan of Wangaramut annexed to the Custodian’s claim. And he also handed to the Commissioner a statutory declaration made by one Albert Richards at the Varzin Plantation, Kokopo on 11th March, 1965. Mr. Richards declared that he was a retired public servant of Rabaul and that since the year 1920 he had been employed as a chief inspector by the Custodian. Part of his duties was the supervision and checking of the work done by the staff of the Delegate of the Custodian at Rabaul and he was familiar with the handwritings and signatures of the staff and of the Delegate. He went on to declare that it was normal practice for the Custodian to make copies of certificates of title for his files. These copies were checked with the original by the staff and duly initialled by the proper officer in each case. Clause 5 of the declaration reads as follows:

“Now produced and shown to me and exhibited hereto and marked with the letter ‘A’ is a copy of the Certificate of Title Vol. 1 Fol. 5 in respect to land known as Wangaramut.”

It will be noted that the copy exhibited to his declaration is the photostat which was originally lodged with the respondent company’s claim, that he does not depose to having checked it with any original certificate of title or examined copy and that the copy exhibited does not bear any initials which could be ascribed to a checking officer although it does contain on it a reproduction of the markings “From File T.77 A/MT to 14/5/28”. These markings would seem to indicate that the copy came from a file of the Custodian bearing the number T.77 and that whoever put this marking on the copy of which the photostat copy was made, meant to indicate that the copy was or at some time had been an attachment to the foregoing letter of 14th May, 1928. Mr. Richards went on to depose that the signature W. C. Thomas on that letter was a signature with which he was familiar and was that of the Delegate of the Custodian. Although not recorded it was agreed by all parties that counsel for the claimants also handed to the Commissioner a photostat copy of a page of the New Guinea Gazette of 15th October, 1925 containing a notice by the Registrar of Titles dated at Rabaul 9th October, 1925 in which he gave notice of his intention to register Wangaramut Plantation containing 492 hectares 2 ares more or less under the provisions of the Lands Registration Ordinance 1924-1925 and stating that a draft certificate of title could be inspected at the Office of Titles at Rabaul, that the Custodian of Expropriated Property was the owner shown in the draft certificate of title and that it was subject to mining encumbrances under Pts. VI and XI of the Mining Ordinance 1922-1924. The land was also described as being entered in the Ground Book in vol. 2 folio 102. There was also handed to the Commissioner a copy page of the New Guinea Gazette of 15th May, 1926 in which the Custodian of Expropriated Property called for tenders for purchase of unsold lots appearing in a document described as the Catalogue of the Sale of Expropriated Properties First Group and in which Wangaramut appeared as Lot B.6 and at an official valuation of £19,206.

Apparently relying on the decision of the High Court in Custodian of Expropriated Property v. Tedep (the Varzin case)[dlxxviii]¹³counsel contended that the documents he had submitted concluded the case in his favour. However, despite his objection the Commissioner allowed counsel for the native claimants to tender the report of a district officer, one Jones, made in May 1964 and to lead evidence of natives from whom Jones had taken statements preparatory to compiling his report and other evidence. This report had annexed to it a plan setting out the area of land claimed never to have been alienated and a comparison of this plan with that tendered by counsel for the respondents shows that the natives concerned were claiming something like three-quarters of the area of Wangaramut and the plan was consistent with their allegation that only the front or northern portion thereof had been originally purchased from their ancestors. On 20th March the Commissioner stating that he was not satisfied that all the evidence had been placed before him formally found as follows:

N2>“(a)    A certificate of title issued to the Custodian in respect of this property between 1925 and 1928—see Ex. A. [This was the letter of 14th May, 1928.]

N2>(b)      That the copy certificate of title attached to Ex. A is not a copy of the certificate of title which I have found to have issued in (a) supra.

N2>(c)      That the certificate of title which issued as found by me had substantial encumbrances on it in favour of the Director as Trustee for natives.

N2>(d)      That those encumbrances followed closely the previous encumbrances in the Ground Book.”

On 20th July counsel for the respondents tendered further submissions in writing to the Commissioner which the Commissioner refused to consider although he went on to say that had they been made before he made his findings those findings would have remained the same. He pronounced a final order which was in fact issued on 23rd July, 1965.

What the learned appeal judge had to consider was whether the Commissioner’s findings were against the weight of the evidence and I conceive the function of this Court to be to review those findings in order to determine whether the judge’s decision can be supported.

No attack was made on the Commissioner’s finding that a certificate of title issued to the Custodian between 1925 and 1928 and all parties agreed that this was the case. I should have thought that the original letter of 14th May, 1928 taken in conjunction with a copy letter of 19th April, 1928 in the Custodian’s file put this finding beyond doubt.

Because in my view the third finding considerably influenced the Commissioner in and is bound up with his second finding, to it I now turn. What evidence was there before the Commissioner which could lead to such a finding? When one looks to the Ground Book entries one finds no encumbrances affecting the balance of the land left in Wangaramut, viz. 492.02 hectares. True it is that the earlier notations show that the encumbrance in favour of natives was to remain until definitely adjusted and determined by the Imperial Court at Herbertshohe, but the Ground Book itself shows that the encumbrance was removed in July 1904 and there is nothing to show that this entry was made either fraudulently or in error. In any event, in my view, this earlier encumbrance bears no more than a superficial resemblance to that formulated by the Commissioner and his fourth finding I regard as insupportable. I have been somewhat puzzled by the map “Ref. No. E 14” but there is nothing on it from which I can really deduce an encumbrance let alone speculate on its nature.

From the statements taken by Jones and the evidence given before the Commissioner it appears that an old man named Tokalula-Tolonga has a brother who looks after what I take to be vunatarai land which the witness said is inside Wangaramut. In his statement made to Jones he told of hearing of a big fight man selling the front western portion of what is now Wangaramut to the Germans for a gun and of having some knowledge, source unspecified, of a luluai telling a Mr. Bani of Wangaramut that he could have the back portion thereof. He claimed to have had a meeting with a district official and the master of Wangaramut in which complaint was made of planting being carried out on what he described as “our area”. No further definition or specification of the area was made. He claimed also that the land given by the luluai was Putanagorogoi land and the giver had no right of disposition. His statement contained a claim for pieces of ground listed in a schedule on the ground that no payment was ever made to his vunatarai and that this area was used by his people for residence, that there were coconuts and gardens on the land and it was also a hunting area. No identification of the actual land was made before the Commissioner. The evidence Tokalula gave before the Commissioner did not carry his story any further. Another native named Tokalulu of Vunakainalama stated that he was a child when the Germans planted the front part of Wangaramut. He was from Putanagorogoi and stated that he and his people lived on the back portion of the area now called Wangaramut. He could not identify any managers of the plantation until Mr. Bani who was on the plantation in 1931. In that year some of the Markham labour line from the plantation killed a man named Tombamba. Soon after this incident he claimed that Mr. Bani and his labour line started work on “our area”. They destroyed his people’s houses, gardens and livestock and his people ran away from the land. According to him two luluais went to see the district officials about moving back to their homes and some time thereafter district officials began to ask about buying their land but his people did not want to sell. He took part in marking some land on what appears to have been a field sketch prepared by Jones which was not before the Commission and stated his belief that the portion marked had never been purchased. His people wanted it back as they were short of land. He further claimed that his people still had some gardens inside the plantation area and that in about the year 1949 a new luluai named Tomika began further discussions about the land claimed with Mr. Fenbury who is now a senior administration official. Tokalulu was not called at the hearing and most of the material in his statement appears to be hearsay. The next statement was that of Tomarket-Tombio in which he claimed that the back area of Wangaramut was never used by the plantation until Mr. Bani came and moved Tomarket’s people from Vunapambe to where they were then, in 1965, living. Vunapambe was within the Wangaramut Plantation. According to him some of the people at present in his village worked at planting coconuts for Mr. Bani in the area from which the people had been removed and he claimed that the new coconuts planted about 1931 can be easily distinguished. He also said that an old uncle of his who was then deceased told him that the front or coastal portion of the plantation was purchased for a gun and other goods. The uncle did not know of any surveys in the back or southern area. The first he knew of complaints being made were those made to Mr. Fenbury and referred to by Tokalulu. He stated that the area claimed by his people had always been used for gardening and hunting and there were always coconuts where there were gardens and houses. These, he said, could be easily seen because his people did not plant in lines like the white man does and their coconuts were much taller and older than the plantation ones. He stated that his people were quite satisfied that only a small portion near the beach was actually in the sale, the rest having been taken and not bought. Tomarket remembered the situation after the arrival of Mr. Bani but for the earlier history relied on what he had been told principally by his old uncle. A witness named Penias from Putanagorogoi who was the luluai of his vunatarai gave evidence of living inside Wangaramut before the war and of the Wangaramut Plantation labourers pulling down and burning the houses of residents. His people, he said, ran away on this happening and he went on to state that two native men complained to the Administration after this incident and that these men came back and said that a district official had said they were to go back on to the land from which they had been evicted but that the people had not gone back. According to him many houses were burned. No questions were asked or evidence volunteered concerning any court investigation into native rights in Wangaramut in 1925 or thereabouts.

I am unable to see any evidence which would tend to make it more likely than not that any particular natives or native communities were entitled to a registered interest giving them the right of dwelling on and user of the land in question, let alone that all the native inhabitants of New Britain or even of the Gazelle Peninsula were so entitled. The most that can be said I think is that at some time in the early 1930s there were natives living on portion, and maybe on a considerable portion, of Wangaramut but where they were living it is impossible from the evidence to say. One might speculate that it had been on the area of approximately ten hectares which it could be thought was proposed to be taken in exchange for an equivalent area on the south-western corner of the plantation. Again it could be speculated that for a number of years natives, particularly of the Putanagorogoi people, had a just grievance that an ancestor had alienated land without any right to do so for a consideration which even in the latter part of the last and the early part of this century would have been grossly inadequate and that if the title vol. 1 folio 5 did issue, an injustice might have been committed. Some brittle support for this speculation might be furnished by the telegrams of 1925 (if the Commissioner had considered them) and in particular the Delegate’s reference to a suggestion that surveys be dispensed with where the owners of adjoining lands are natives. But nowhere can I find an attempted definition of the area said to be subject to the exercise of the right of dwelling and user and although I pay full regard to Dr. Hookey’s submission that the native conceptualization would not distinguish a right to an encumbrance of the nature under review from a right of full and unencumbered ownership, it seems to me that what they were asserting before the patrol officer in 1964 and before the Commissioner was that in fact no rights over the area claimed by them had ever been sold. There is no documentary evidence that the encumbrances originally inscribed in the Ground Book remained, indeed the evidence is to the contrary, and the only other evidence shows some sort of occupation over some unspecified portion of Wangaramut which it could well be thought ended substantially when planting was extended in or about the year 1931. That evidence in my view has no probative weight to support the inference of the encumbrance found by the Commissioner to have existed. And, after all, treating the reference as a claim to have been registered on the certificate of title, the onus is on the claimants to prove their claim. I have come to the conclusion that the Commissioner did decide against the weight of the evidence and consequently his third finding cannot be supported.

I turn now to the Commissioner’s second finding that the copy certificate of title attached to Ex. A is not a copy of the title which he found to have issued. I have been somewhat troubled by the form of this finding. If by it he means that the copy of the certificate of title produced was attached to Ex. A when it was sent from Rabaul then in my view the matter is concluded for there is no evidence nor inference whatever to support the view that the Delegate in May 1928 forwarded an incorrect copy. And if the copy propounded is a copy of the title which was registered and of which a duplicate original was delivered to the Custodian then it follows from Custodian of Expropriated Property v. Tedep[dlxxix]¹⁴ that a certificate of title in identical terms must be ordered back into the Register. In expressing his preliminary reasons for his findings on 20th March the Commissioner expressed the view that probably somebody “jumped the gun” with this copy of the certificate of title. He thought it was drawn up in anticipation and that somebody was thinking very wishfully and that between the time the title was drawn up and the time that it actually issued, negotiations must have proceeded between the Director of Native Affairs and the Custodian and, as I interpret his words, as these negotiations were not succcessful, the encumbrance propounded was included in the title. If his reference is to somebody in Rabaul anticipating the issue it may well be that he accepted that the copy certificate of title before the Court was in fact attached to the letter. However, if he meant that some person in the Custodian’s office in Melbourne anticipated the issue, his reasons are and the evidence may be open to the view that some other copy certificate of title was sent down from Rabaul on 14th May. It is on this point in particular that I find the evidence and the conduct of the hearing most unsatisfactory.

Doing the best I can to review the evidence and appropriate inferences the following can be said in support of the Commissioner’s finding: the photostat copy certificate of title was produced with no accompanying evidence that it was or ever had been attached to the letter of 14th May, 1928. There was no evidence that this was the only copy certificate of title to Wangaramut ever in the possession of the Custodian or of the respondent company. Similarly there was no evidence that the tracing of the plan of Wangaramut was at any time attached to the copy certificate of title. Further, there was no production of the original copy of which the photostat produced was said to be that of a carbon copy thereof and it could well be thought that an original copy would have been sent from the Delegate at Rabaul to his superior in Melbourne. There was no marking on either the copy certificate of title or the tracing to show that either of them had been compared with the original. On the not unreasonable assumption that the registration process began at or about the time of the publication of the Registrar’s notice in the Gazette it was a reasonable inference that the process could not have been completed by 1st December, 1925 and that the real title could not have borne the date appearing on the copy tendered. There was no correspondence nor any notation on the files before the Commissioner to give any indication that a court reference had been made and the Commissioner would be justified in expecting some such material particularly as the Custodian was advertising the property for sale in May of 1926 and would be expected to have some idea at this time of what sort of an interest he would be able to transfer. The fact of delivery of the duplicate of the certificate of title in or shortly prior to April 1928 would justify an inference that the title issued bore date somewhere around that time. It would be noteworthy too in the Commissioner’s mind that Mr. Richards was not called to give evidence. From the contents of his statutory declaration he seems to have been in a particularly favourable situation to give evidence as to the entire history of Wangaramut from 1920 onwards.

I should also make reference to the Custodian’s file handed to the Commissioner. Without some explanation as to its compilation and its content I find it a most unsatisfactory m‚lange. It certainly does not speak for itself and bears every appearance of being a bundle of documents extracted from another file or files which some unknown official thought might be of use in establishing or have some bearing on the claim to Wangaramut. The overriding impression I have obtained from it is its lack of completeness and coherence.

On the other hand, despite the strenuous and consistent contentions to the contrary it was open to the Commissioner to find that, at this early stage in the operation of the Registry of Titles, the Registrar could have begun the process of bringing Wangaramut under the Ordinance at some time in the latter half of 1924 and served the draft certificate of title on the Commissioner for Native Affairs at or about that time. Even before that official was served with such a draft certificate and notice of intention to bring the land under the Ordinance it would be reasonable to infer that in 1924 he had been provided with a list of all lands entered in the Land Register concerning which native rights affecting such lands had been at any time on the Register, pursuant to s. 23 of the Lands Registration Ordinance as it then stood and that he had initiated court inquiry under s. 24 well before the Registrar’s notice appeared in the New Guinea Gazette. So that the question of native rights affecting Wangaramut could well have been determined weeks or months prior to December 1925. The document tendered as a copy certificate of title itself bears evidence of careful compilation. The typed initials of the Registrar appear in three places, apparently showing corrections or additions. In addition the copy shows the certificate to have been signed and sealed by the Registrar and that his signing, sealing and delivery was witnessed. Further, it shows the waterhole encumbrance which was not on the draft certificate of title and from which it is proper to deduce that the question of native rights had been referred to the court and decided upon. The tracing of the plan too, as I have earlier said, bears evidence of skilful draftsmanship and furthermore, the bearings and distances on the plan correspond exactly with the bearings and distances on the purported copy certificate of title. Further, counsel for the natives was unable to produce any document which could support the registration of such an encumbrance as is now contended for.

Despite my feeling that the Commissioner’s second finding was to a very large extent influenced by his conviction that the contentious encumbrance in fact existed, I cannot, for myself, say that his finding was against the weight of the evidence. On the material before the Commissioner I would not be satisfied that the document produced was a copy of the certificate of title attached to the letter of 14th May, nor that it in fact represented the title which issued. However, I doubt whether I would have made the positive finding that it was not a copy. Accordingly, I think the learned Judge of Appeal was wrong in holding not only that the Commissioner’s finding was against the weight of the evidence but in substituting his own finding that the copy produced was a true copy of the registered title.

In my view the conduct of the hearing was so unsatisfactory and the material before the Commissioner so sketchily prepared and submitted that I would be inclined to remit the whole matter to the Land Titles Commission for a rehearing. However, I am in the minority in this view. These proceedings have now been dragging on for over seventeen years and all parties have expressly disclaimed a request for a rehearing. Further, I am satisfied that a certificate of title was issued to the Custodian and I can see no likelihood of the native claimants establishing their claim either to ownership or to a general encumbrance. Accordingly, I do not carry my inclination to the point of dissent. The appeals should be dismissed and the order of Clarkson J. will stand.

FROST J:  In the final order the subject of these appeals, in accordance with s. 17(1) of the New Guinea Land Titles Restoration Ordinance 1951-1963 (which I shall refer to as “the Restoration Ordinance”), the Chief Commissioner declared that in connexion with the claims to re-establish ownership as at the appointed date of interests in respect of the land known as Wangaramut, it was “established that on the appointed date the following interests were owned by the following persons. Estate in fee simple by the Custodian of Expropriated Property (hereinafter called ‘the registered proprietor’) subject to the encumbrances in favour of the Administration . . . and the Director of District Services and Native Affairs as a Trustee for Natives set forth in the document hereinafter referred to and that the Registered Proprietor is entitled to be Registered as the owner of his interests in the Register Book . . . and that no native customary rights were retained on the appointed date by a native or native community in respect of the land . . . or any part thereof”. The document referred to was a certificate of title, dated 1st December, 1925, a true copy of which the Chief Commissioner directed to be bound up in the Register as a folio thereof and a copy thereof to be issued to the registered proprietor as the duplicate certificate of title. It showed the Custodian as the proprietor of an estate in fee simple subject to encumbrances which were set forth as a mining encumbrance vested in the Administration, and two further encumbrances expressed to be in favour of the Commissioner of Native Affairs as a Trustee for Natives. They were the waterhole encumbrance and a further encumbrance being “the right of natives to exercise over the said land the permanent free and undisturbed right of dwelling and user”. The “said land” was shown on the map as the greater part of Wangaramut.

The effect of this order was thus to uphold the claim of the Custodian to be registered as the owner of the fee simple, subject, as the Custodian also claimed, to the mining encumbrance and the waterhole encumbrance, and also to uphold the claim of the Director to be registered in respect of the waterhole encumbrance. Upon the reference under s. 36 of the Restoration Ordinance, however, on the question of native customary rights at the appointed date, the Chief Commissioner declared that no native customary rights were retained at that date. So far as the general encumbrance set out above, as found by the Chief Commissioner is concerned, this was not the subject of any claim, although its assertion seems to have been treated by him as a claim. It is to be noted that “interest in land” is defined to mean “a proprietary right, title or estate in or in respect of land, . . . but does not include native customary rights”; s. 4. As the Chief Commissioner had declared that no native customary rights were retained on the appointed date, in declaring the interests which he found to be established including the general encumbrance, the Chief Commissioner must be taken to have established the encumbrance as a proprietary right within the defined meaning of an interest in land, and one therefore to which s. 13 would have been applicable.

In my opinion, the following passage from the judgment of the High Court in Custodian of Expropriated Property v. Tedep[dlxxx]¹⁵, is precisely in point, and particularly the sentences emphasized:

“We have already referred to the effect of the Ordinance [i.e. the Restoration Ordinance] in relation to native rights where the claimant is able to support his claim by production of a clean duplicate certificate of title. In such a case the Director of Native Affairs is not required to follow the procedure laid down in s. 35 and a final order may be made by the Commissioner without a certificate of the Director under s. 36. However, the procedure prescribed by those sections must be followed where the claimant has sought to support his claim by evidence other than the production of such a certificate. But, again, it is, we think, clear that in any such case the procedure laid down by those sections is provided for the purpose of ensuring that no new certificate of title will issue which does not take notice of native rights which were noted on the destroyed registers. What the provisions of the Ordinance, and particularly ss. 35 and 36, are concerned with is the existence of native rights ‘at the appointed date’ and, it follows from what has already been said that, if a claimant can produce a clean certificate of title or establish by other evidence an entitlement to a clean certificate, no native rights can be said to exist in the land, unless, after becoming entitled to such a certificate, and before the appointed date, the claimant has dealt with the land in such a way as to enable it to be said that such interests have been created. Further it should be noted that s. 13 of the Ordinance provides that where the Director is entitled to make a claim in respect of an interest in land vested in him for the benefit or on behalf of, or as trustee for, a native or native community, he shall take all proper steps to establish, in accordance with the procedure provided by the Ordinance, that the interest was so vested in him. But the Director could not succeed in any such claim unless he could bring it within ss. 9 and 10, that is to say, unless he could show that he was entitled to an interest in the land and that he was entitled to be registered or entered in a lost register, within the meaning of those sections, as the owner of or the person entitled to that interest. Clearly enough, the Director could not have succeeded upon any such claim in the present case and it is idle to suppose that the Ordinance so operates as to allow the claim of a registered proprietor to be defeated or affected by an adverse claim to the land, or to an interest in the land, the owner of which could not succeed in establishing that he is entitled to registration as the owner thereof under the Ordinance.”

In the present case, no appeal is brought against that part of the order restoring the fee simple in the Custodian. The appellant seeks to restore the final order and Dr. Hookey did not dispute that the Custodian had, prior to 1928, achieved registration of a certificate of title. Dr. Hookey’s argument was that he had achieved registration of the fee simple, but subject to the general encumbrance in favour of natives. But even if the evidence called on behalf of the Director as to native user of the land could be taken as establishing the general encumbrance as an interest in the land, (and in my judgment it could not be so taken), it is plain that it does not establish that the Director was entitled to be registered or entered in a lost register as the owner of or the person entitled to that interest within the meaning of ss. 9 and 10. Dr. Hookey did not suggest that the Chief Commissioner had acted under s. 67(3) of the Restoration Ordinance and I consider that it is plain that he did not. Accordingly, in my opinion, there was no evidence upon which the Chief Commissioner could declare or restore the general encumbrance as an interest in the land, and the effect of the Restoration Ordinance as construed by the High Court is sufficient to dispose of the appeals, which should therefore be dismissed. But in view of the full and able arguments submitted to the Court by counsel, it is proper that I should give my opinion thereon, which I shall now proceed to do.

At the outset, I wish to refer to certain general submissions by Dr. Hookey on behalf of the appellant. These submissions were directed to the first ground of appeal that the appeal judge misdirected himself in holding that he was in as good a position as, or in some respects in a better position than, the Chief Commissioner to draw inferences and evaluate material placed before him. Dr. Hookey supported this ground by three related arguments, the first of which was that the Land Titles Commission was an expert and specialist tribunal of such a nature that even where the decision, as in this case, was drawn primarily from documentary material, it was not lightly to be interfered with on appeal and that no appeal court could be in the same position as the Commission. He relied on the preamble to the Land Titles Commission Ordinance 1962-1968 and especially the third paragraph, which recites that “. . . it is proposed to make special provision in the laws of the Territory for the establishment of such an independent judicial tribunal to be known as the Land Titles Commission for the determination and protection of rights to land, and in particular to native land”; on s. 15(1), which confers exclusive jurisdiction upon the Commission to hear and determine all disputes concerning, and claims to the ownership by native custom of, or the right by native custom to use, any land etc., including a dispute as to whether any land is or is not native land; and on s. 29(1) which at the relevant time provided that in proceedings before the Commission, the Commission was not bound to observe strict legal procedure or apply technical rules of evidence, but should admit and consider such relevant evidence as was available (including hearsay evidence). He submitted that the Commission, exercising its functions under the Restoration Ordinance, was a specialist tribunal analogous to the rate assessment committee, which was entitled to use its knowledge and experience as part of its equipment, referred to in R. v. City of Westminster Assessment Committee; Ex parte Grosvenor House (Park Lane), Limited[dlxxxi]¹⁶; the rent tribunal which acted “on all kinds of evidence which no court of appeal would look at for a minute”, referred to in R. v. London, etc., Rent Tribunal; Ex parte Honig[dlxxxii]¹⁷ and in Reg. v. Paddington North and St. Marylebone Rent Tribunal; Ex parte Perry[dlxxxiii]¹⁸; and a workers’ compensation tribunal, which is entitled to use its general knowledge as to conditions of employment, rates of pay etc., “not only for the purposes of supplying gaps in the evidence given before it as to matters which it is required by statute to determine and must therefore determine as best it can on such material as is available to it, . . . but also for the purposes of weighing and testing any evidence that may actually be tendered”: Bryer v. Metropolitan Water Sewerage and Drainage Board[dlxxxiv]¹⁹ and the cases therein cited.

He also relied on the observations of Lord Atkin when delivering the judgment of the Privy Council in Abakah Nthah v. Anguah Bennieh[dlxxxv]²⁰:

“By colonial legislation all suits relating to the ownership of land held under native tenure are placed within the original exclusive jurisdiction of native tribunals, unless satisfactory reason to the contrary is shown. It appears to their Lordships that decisions of the native tribunal on such matters which are peculiarly within their own knowledge, arrived at after a fair hearing of relevant evidence, should not be disturbed without very clear proof that they are wrong, and their Lordships fail to find such proof in the present case.”

The same view was expressed by the Privy Council on appeal from the West African Court of Appeal in Ibrahimah v. Gariba[dlxxxvi]²¹.

In my opinion, the cases cited by Dr. Hookey are distinguishable. Each of the tribunals referred to was dealing with matters peculiarly within its own knowledge, and upon which (except possibly in the case of the Native Court) it had to make a decision, whatever the paucity of evidence. So long as the principles of natural justice were observed, its decision could not be reviewed on the facts. But in exercising its jurisdiction under the Restoration Ordinance, the Commission’s function is to adjudicate on claims by claimants claiming to have been entitled as at the appointed date to an interest in the land and also to be entitled to be registered or entered in a lost register as the owner of, or the person entitled in that interest, within the meaning of ss. 9 and 10 of the Ordinance. These functions are very different from the determination of a standard rent or rate and the decision by a native tribunal upon matters concerning native tenure. If there is insufficient evidence to support a claim under the Restoration Ordinance, the claim must fail. Of course, this does not mean that the decisions of the Land Titles Commission are not to be given the respect which would naturally be accorded a tribunal which is experienced in the exercise of specialist functions, which was the view expressed by the Privy Council.

Further, under s. 38(2a) as amended, an appeal now lies to the Supreme Court on the ground that the Commission’s decision was against the weight of evidence. “Evidence” in that section includes all information, facts, matters and opinions including hearsay evidence etc. that were properly before or present to the mind of the Commission and which the Commission ought properly to have taken into account in arriving at the decision appealed against, together with all inferences proper to be drawn therefrom: s. 38(2a). In view of the wide terms of this definition, I can see no room for any part of the evidence or material acted upon by the Commission, whether it was specifically adduced before the Commission or taken into account by the Commission as part of its general knowledge, being reserved from consideration as part of the evidence by the Supreme Court in an appeal from the Commission. But Dr. Hookey did not suggest that there were any facts not referred to in the transcript of the evidence which would support the Chief Commissioner’s decision.

Dr. Hookey’s next submission, also bearing on the first ground of appeal, is that the Land Titles Commission has a very substantial discretion and the Supreme Court should be reluctant to interfere with the exercise of the Commission’s discretion unless there was an error of law. It is unnecessary to do more than mention his overstatement of this submission, that the less conclusive the evidence the greater the Commission’s uncontrolled discretion. He referred to s. 42(1)(c) of the Land Titles Commission Ordinance, which refers to the discretion of the Commission to inquire into and determine the existence of native custom relating to land, s. 29(1), and to s. 42(1) of the Restoration Ordinance, the material provision of which is that the Commission shall proceed to investigate, hear and determine the claims, objections and references which are the subject of, or relate to, provisional orders, and to make final orders in respect thereof, either in the same terms as the provisional orders or in such other terms as it thinks just. The Commission is to decide the matter in issue judicially: s. 42(4). Dr. Hookey referred also to s. 67(3) of the Restoration Ordinance, but he did not suggest that the Commission had acted under that section. He then submitted that there was a residual discretion in the Commission, and he referred to the decision of the House of Lords in Inland Revenue Commissioners v. Ross; Re Blaelnech Distilling Co.[dlxxxvii]²² in which it was held that courts are not entitled to interfere with the exercise of a discretionary power unless either (a) the exercise of the discretion has not complied with the conditions provided by the statute for the exercise of the discretionary power, or (b) the power has not been exercised judicially: per Lord Thankerton at p. 629. However, any discretion conferred under s. 42(1) is in relation to claims, objections and references which are the subject of, or relate to, provisional orders and it has been held by the High Court in the passage I have already referred to that such claims, whether made by the original claimants or under a reference by the Director, must be claims which fall within ss. 9 and 10 of the Restoration Ordinance: Custodian of Expropriated Property v. Tedep[dlxxxviii]²³. Thus, unless a claimant claiming an interest in land, or native or native community asserting that he or it was at the appointed date entitled to native customary rights in respect of the land can show that the claim or right falls within ss. 9 and 10, then the Commission cannot exercise any discretion conferred by s. 42(1) in favour of that claimant, native or native community. Indeed, having regard to the precise terms of ss. 9 and 10, it is difficult to define the ambit of discretion conferred by s. 42(1).

In further support of the first ground of appeal, Dr. Hookey next argued that his Honour was mistaken in relying upon the authority of Benmax v. Austin Motor Co. Ltd.[dlxxxix]²⁴ in holding that the Chief Commissioner was not in a better position to decide the case than the Supreme Court. Dr. Hookey submitted that the views expressed in that case depend upon the Rules of the Supreme Court, which provide that all appeals to the Court of Appeal should be by way of rehearing (O. 58, r. 1) as referred to by Viscount Simonds[dxc]²⁵. Now the Restoration Ordinance originally provided that an appeal to the Supreme Court should be by way of rehearing (s. 58(1)), but that section was repealed in 1963 and thereafter appeals were made to the Supreme Court under the then more limited provisions of the Land Titles Commission Ordinance (s. 38(1)). Dr. Hookey thus submitted that, following the repeal of s. 58(1) of the Restoration Ordinance, the English authorities upon the powers of the Court of Appeal ceased to be applicable. He then went on to submit that the findings of the Land Titles Commission on matters of fact could only be reviewed upon the same principles as are applicable on an appeal from the verdict of a jury, that is, it could be set aside only if it were manifestly wrong. He cited the authorities which establish that the findings of a District Court judge in Queensland stand on the same footing as if they were those of a jury and the court will disregard them on appeal only if it is shown that they are manifestly wrong. See Pilmer v. No. 1 South Oriental and Glanmire Goldmining Co. Ltd.[dxci]²⁶; Michajlyszyn v. Wilson[dxcii]²⁷; Clark v. Trevilyan[dxciii]²⁸; McAntee v. Webb[dxciv]²⁹. But those authorities are plainly distinguishable on the ground, as was pointed out by Gibbs J., that they depend on the language of the District Courts Acts of Queensland, in which the same provision covers an appeal from a judge and a jury: see Clark v. Trevilyan. Again there is no trial by jury in this jurisdiction. The argument also fails to recognize that the reluctance of an appeal court to interfere with the verdict of a jury depends upon the peculiar weight given to the verdict of the jury. “For the appellate court to set aside the verdict of a jury as being against the weight of evidence, merely because the court does not agree with it, would, in my judgment, be to usurp the functions of the jury and to substitute their own opinion for that of the jury; that would be quite wrong”: Mechanical and General Inventions Co. Ltd. v. Austin[dxcv]³⁰.

The powers of a judge sitting on appeal from the Land Titles Commission now depend upon the proper construction of s. 38(2a) of the Land Titles Commission Ordinance. That section provides a new ground of appeal that the decision was against the weight of evidence, and it was made applicable to any appeal which was pending or being heard on the commencement of the Ordinance (Ordinance No. 67 of 1968, s. 13(21)). It is to be noted that the wide definition of “evidence” as used in the new ground includes all inferences proper to be drawn from information, facts etc. In my judgment, the new ground admits of no other construction than that if, after review of the evidence, the Supreme Court comes to the conclusion that the decision of the Land Titles Commission is wrong, then that decision must be set aside. This conclusion is supported by the passage cited from the speech of Lord Wright, supra, the special considerations attaching to the verdict of a jury being removed.

Further, although the appeal provisions of the relevant African legislation are not set out in Ibrahimah’s case[dxcvi]³¹ it appears that that appeal was on the ground of the weight of evidence, and in upholding the decision of the Supreme Court, the Privy Council must be taken to have approved the citation relied on by Ragnar Hyde J. from a judgment which their Lordships could not trace. That citation was as follows:

“An Appeal Court is not debarred from coming to its own conclusion on the facts, and where a judgment has been appealed from on the ground of the weight of evidence, the Appeal Court can make up its own mind on the evidence, not disregarding the judgment appealed from, but carefully weighing and considering it, and not shrinking from overruling it if, on full consideration, it comes to the conclusion that the judgment is wrong”[dxcvii]³².

Dr. Hookey argued that appeals to the Supreme Court from the Land Titles Commission were not on all fours with an appeal to an appellate court from a judge, but I see no reason why this should be so. In my opinion, the same considerations which the authorities establish are applicable in appeals to the Court of Appeal apply to appeals to the Supreme Court from the Land Titles Commission under s. 38(2a). It is true that before the Court of Appeal the appeal is a rehearing, but the English authorities seem to depend also on the fact that the appeal is from a judge alone and not an appeal from a jury: “. . . juries do not, and judges in varying degrees do, give reasons for their conclusions”, per Lord Somervell, Benmax v. Austin Motor Co. Ltd.[dxcviii]³³.

Again, appeals to the High Court are not expressed to be by way of rehearing, but the review of the principles governing such appeals by Dixon C.J. and Kitto J. in Paterson v. Paterson[dxcix]³⁴, is supported by reference to the English authorities, and the distinction must have been apparent to their Honours because of the reference to MacBean v. Trustees Executors & Agency Co. Ltd.[dc]³⁵, and the comment therein by Cussen J. upon the then Rules of the Supreme Court of Victoria, in the relevant provisions of which the words “by way of rehearing” were omitted. However, I agree with Dr. Hookey’s submission that this court is bound to give full weight to the recent restatement of the principles applicable to appeals from a judge upon questions of fact to the High Court by Barwick C.J. in Whiteley Muir & Zwanenberg Ltd. v. Kerr[dci]³⁶ in the passage[dcii]³⁷ set out in the judgment of my brother Minogue.

I therefore conclude that his Honour properly stated the principles applicable to the powers of the Supreme Court on appeal from the Land Titles Commission. As there was no question of the credibility of witnesses and the Chief Commissioner must be taken to have drawn the inferences most favourable to the appellant from the evidence of the native witnesses, I consider that his Honour was, on the facts of the present case, in as good a position as the Land Titles Commission to decide the matter.

I shall turn now to the main grounds of appeal in the consideration of which we have had the fullest assistance from his Honour’s lucid judgment. Dr. Hookey submitted that there were two fundamental issues, in that his Honour was wrong in setting aside the Chief Commissioner’s finding, first that the document dated 1st December, 1925 was not a copy of the certificate of title which was issued by the Registrar, and secondly, that the certificate of title which was issued had the substantial encumbrance in favour of the Director as Trustee for Natives. I must say that my mind has wavered on the point whether the Chief Commissioner was wrong in rejecting the purported copy certificate of title dated 1st December, 1925. No sworn evidence was called by the Custodian to the effect that no other copy certificate of title was held in the Custodian’s file, or indeed as to whether there were any other documents bearing on the matter contained in the Custodian’s file. Thus, in view of the delay between 1st December, 1925, when the copy certificate of title was purported to have been registered and the delivery of the duplicate in 1928, it would seem open to the Chief Commissioner to find that he was not satisfied that all the evidence had been called before him in the matter, and to decline to accept the document as a true copy. But against this, it is to be noted that pursuant to s. 31(1)(d) of the Restoration Ordinance (which had been repealed at the time of the hearing before the Chief Commissioner) the Custodian had filed a statutory declaration sworn by his duly authorized agent, the effect of which was that the copy of the certificate of title in question was the only one held by the Commissioner, and that statutory declaration was before the Chief Commissioner. Fraud was not alleged. Further, the reasons for the Chief Commissioner finding that the document dated 1st December, 1925 was not a copy of the certificate of title which he found to have been issued seem to be his third and fourth findings, for which there was no evidence whatever. Again, the form of the document is that of a certificate of title bearing official signatures and initials, and a volume and folio number issued under the seal of the Registrar and, on the face of it, there is no reason to suppose that it was a document “drawn up in anticipation”, as the Chief Commissioner considered it to be. So far as his reference to negotiations is concerned, there was no provision in the legislation as it stood from 1924 to 1928 under which negotiations could have been proceeded with. In my opinion, therefore, the effect of the findings is that the document was rejected by the Chief Commissioner for reasons which cannot be supported.

Dr. Hookey argued that whilst conceding that registration could have been carried out by 1st December, 1925, it was so unlikely that this was a sufficient ground for the rejection of the document. It will be necessary to refer to the provisions of the Lands Registration Ordinance as they were in force immediately after it came into operation on 1st June, 1924. The main provisions of the Ordinance were summarized in the Varzin case[dciii]³⁸. At the outset, I should say I do not consider that the fact that the Registrar delayed until 15th October, 1925 to give the notice required under s. 21(3) as necessarily indicating that he had not taken action prior to that time under ss. 16, 19 and 21(1). Further, under s. 23, the Registrar was bound to forward to the Commissioner of Native Affairs a list of all land entered in the Land Register in respect of which there were, or had been, registered in the Land Register any native rights affecting the lands whether any such registration had been cancelled or was still subsisting; that section remained in that wide form until 27th August, 1925, when by Ordinance No. 36 of 1925, it was made applicable only in the case of existing registered rights. Thus, the Registrar could have acted under that section before 27th August, 1925, in view of the native rights affecting Wangaramut which appeared in the Land Register, although they had been cancelled. Similarly, under s. 24(1)(f), the Commissioner of Native Affairs was bound to refer the question of possible native rights in relation to any land to the Court for inquiry and determination in every case where any natives had been registered in the Land Register as the owners of any rights (other than ownership) affecting any land, whether the registration had been cancelled or not. A corresponding amendment was made to this section by Ordinance No. 36 of 1925, which did not, however, come into effect until 27th August, 1925. Thus, whether or not he had been served with a notice and draft certificate under s. 21(1), the Commissioner of Native Affairs may have referred the matter to the court for inquiry and determination prior to the publication of the notice in the Gazette. If this had been done, prior to 27th August, 1925, then, having regard to the wide terms in which the duty of the court to investigate native claims was expressed in s. 26(2), the Commissioner of Native Affairs might well have taken the view that it was unnecessary to cause to be published in the Gazette the notice referred to in s. 22(a) in its amended form, when that provision came into effect on 27th August, 1925. This may account for the fact that no evidence was placed before the Chief Commissioner of any publication of such notice and it is a reasonable inference that searches have not disclosed that such a notice was published.

Dr. Hookey did not dispute that some court hearing must have taken place, because that was the only way the waterhole encumbrance could have been placed on the title. In my opinion, it would have been open to the Central Court to take the view, if its determination was made after 27th August, 1925, that, if there was a failure by the Commissioner to comply with s. 22(c) as amended and to publish the notice, in all the circumstances, it was an irregularity only and the requirements of that subsection could be dispensed with.

For these reasons, I consider that Mr. Croft’s argument is correct, that it was quite possible for the procedure required under the Lands Registration Ordinance to have been completed by 1st December, 1925. If no caveat had been lodged, s. 36 would then have come into operation. That section provided that where a question of native rights had been referred to the court and no caveat had been lodged, the Registrar should, immediately after the making of an order upon the reference, proceed to bring the land under the Ordinance by registering in accordance with the provisions of the Ordinance, a certificate of title in accordance with the order. The provisions as to registration, which are still in force, are to be found in Pt. IV. Every certificate shall be in duplicate (s. 53). The Registrar shall keep a book, to be called the “Register Book”, and shall register or enter by binding up therein one duplicate of every certificate of title (s. 56(1)). Each grant and each certificate of title shall constitute a separate folio in the register book (s. 56(2)). The other duplicate of the certificate of title shall, upon registration, be delivered by the Registrar to the person entitled thereto (s. 56(3)). The only provision concerning the date of the certificate of title is to be found in s. 59, which provides that every grant and every certificate of title shall be deemed to be registered under the provisions and for the purposes of the Ordinance, so soon as it has been marked by the Registrar with the volume and folio of the register book in which it is entered (s. 59(1)). Thus, if the certificate of title which was registered was an original of the copy dated 1st December, 1925, and if the Ordinance had been complied with, one duplicate of the certificate at that date would have been bound up or entered in the register book. There thus remains unexplained, as his Honour said, the delay in the delivery by the Registrar to the Delegate of the other duplicate certificate of title, a delay which would have persisted from 1st December, 1925 until 1928. This, to my mind, is the strongest point relied on by Dr. Hookey.

There were many details referred to by counsel in the evidence concerning the copy certificate, and I shall refer to the main points. Dr. Hookey properly referred to the absence of a certificate of annexure on the plan, the lack of precision at two places in the description of the land, and the construction to be placed on the correspondence. So far as the numbering of the folios on the Custodian’s file is concerned, there is no evidence when it was done and the evidence was certainly insufficient to satisfy the Chief Commissioner that it was done during the period 1925 to 1928. However, the position of the carbon copy of the certificate of title remaining in the file immediately after the letter of 19th April, 1928 does not appear to me to be a suspicious circumstance. It was not disputed that this copy was the same as the one placed before the Chief Commissioner as part of Ex. A, and that it came from the Custodian’s file. Dr. Hookey strongly relied on the absence of initials on the copy as, having regard to Albert Richards’ statutory declaration, telling against the authenticity of the document. But the force of that evidence is weakened in view of the three decisions, all in 1965, of the Chief Commissioner, which were cited by Mr. Croft, in each of which the Custodian tendered in evidence a copy of a certificate of title which was not initialled and certainly in two of them a statutory declaration to the same effect by Richards, and the fee simple interest was restored. Kabakaul South, Portion 79 (1965); Uweirir, Portion 762; New Britain, Kasalok 5 (unreported).

On the whole, in weighing the evidence before the Chief Commissioner, I have come to the conclusion that the compelling facts upon this part of the case are that the document dated 1st December, 1925, Ex. A, did not purport to be drawn up by the Delegate and could not be taken to be anything else than a copy of a certificate of title, signed sealed and delivered by the Registrar, that there could be only one such certificate of title, for once the land was brought under the Ordinance by the issue of a certificate of title, the Registrar was functus officio, and the copy must have come from the Custodian’s file, because it was the same as the carbon copy on the file. In not giving sufficient weight to these facts, I consider that the Chief Commissioner was wrong in his conclusion, that the document was not a copy of the certificate of title. Indeed, in directing as part of the final order that the certificate of title to be bound up in the register book should be one dated 1st December, 1925, bearing the signatures of the Registrar of the day and the same witness whose name appears on the document in question, it seems to me that the Chief Commissioner belatedly reached the same conclusion as I have. I also consider that his Honour was correct in applying the maxim omnia praesumuntur rite esse acta as proof by way of presumption that the procedure required by the Lands Registration Ordinance had been carried out.

I propose briefly to refer to Dr. Hookey’s other main submission concerning the general encumbrance. His two main submissions were closely related, for if the Chief Commissioner’s decision concerning the document dated 1st December, 1925 should not have been set aside, then that document was deprived of its effect as disproving the general encumbrance, and Dr. Hookey was able to submit that, if there was other evidence, for example, the correspondence, from which registration could be inferred, it was neutral in the sense that it did not support an inference that there had been issued a “clean certificate of title”, which, as used in the judgment of the High Court in Custodian of Expropriated Property v. Tedep[dciv]³⁹, is a term which I take to mean a certificate of title free from encumbrances. Dr. Hookey then advanced an interesting argument. He submitted that Custodian of Expropriated Property v. Tedep[dcv]⁴⁰ was distinguishable on the ground that the High Court was there dealing with the contest between a clean certificate of title entitling the Custodian to registration and subsequent unregistered interests. Although he gave no detailed analysis of the judgment, there are references to a clean certificate of title in the passage I have already cited from the judgment, and I assume that he had in mind also the following passage referring to the position under ss. 35 and 37 of the Restoration Ordinance if the claim is supported by a duplicate certificate of title[dcvi]⁴¹:

“This again, it seems to us, is the clearest indication that production of a clean duplicate certificate of title is to be accepted as conclusive of the question of the existence of native rights, a question which had, of course, been the subject of elaborate inquiries pursuant to the Lands Registration Ordinance before the issue of a certificate of title.”

Dr. Hookey did not carry the submission to its fullest extent and argue that if the evidence was not sufficient to support a clean certificate of title, it could not support an order that the Custodian was entitled to be registered as the owner of the fee simple. He was not able to so argue, because there was no appeal against that part of the final order, restoring the Custodian’s interest. He may also have considered the facts unfavourable, as it was not disputed that the Custodian or his purchasers were in possession, and there was nothing to indicate that the Custodian was entitled to a bare fee simple with the beneficial interest elsewhere. However, in accordance with the view I expressed at the outset of my judgment, the submission in that form could not have succeeded.

Dr. Hookey’s argument was that the Chief Commissioner properly interpreted the oral evidence as indicating that the natives were asserting lawful rights over the plantation at the relevant time which were readily referable to a registered encumbrance of the type held to exist. The evidence of user he submitted was prima facie evidence of the existence of rights in real property which, to be lawfully exercised at the relevant time, would have required registration. He relied on Doe d. Hall v. Penfold[dcvii]⁴². But the facts in that case of undisputed possession without evidence of title are very different from this case.

The argument in effect was that the finding of the general encumbrance was a reasonable reconstruction of the actual order that the Central Court made, between 1925 and 1928, assuming that the evidence called in 1965 had been before the Court at that time, having regard to the procedure of registration and the practice of the Central Court at the time. He referred to the Mortlock Islands case[dcviii]⁴³, in which Phillips J., as he then was, gave effect to a wide encumbrance similar to the one found by the Chief Commissioner. (But that decision would appear to be very much based on its special facts.) However, in my opinion, this reasoning can give rise to no more than conjecture, and I agree that there was no evidence, under ss. 9 and 10 of the Restoration Ordinance, that the Director was entitled to be registered or entered in a lost register in respect of the encumbrance. It is accordingly unnecessary to consider whether the form of the encumbrance could be given a construction of sufficient certainty: cf. Lands Registration Ordinance, s. 40.

None of the parties sought a rehearing. Indeed, each expressly submitted that no such order should be made. Dr. Hookey did not suggest that there was any further evidence which could be adduced in proof of the encumbrance. Accordingly, I agree that these appeals should be dismissed.

O’LOGHLEN AJ:  The appellant seeks to restore the final order of the Land Titles Commission dated 23rd July, 1965 which was quashed on appeals to the Supreme Court under s. 38 of the Land Titles Commission Ordinance 1962-1968 by Clarkson J., who made in substitution an order in somewhat different terms.

The Commission’s final order had re-established the ownership of the subject land, Wangaramut Plantation, by directing the issue of a certificate of title which recognized five interests:

N2>(a)      the fee simple in the Custodian of Expropriated Properties;

N2>(b)      an encumbrance relating to minerals in favour of the Administration (the mining encumbrance);

N2>(c)      an encumbrance relating to roads, rights-of-way and landing places in favour of the Administration (the public rights encumbrance);

N2>(d)      the waterhole encumbrance in favour of the natives of Rakumkumbur village; and

N2>(e)      an encumbrance in favour of natives in general to exercise over a specified part of the land the permanent, free and undisturbed right of dwelling and user (the general encumbrance).

Broadly speaking, his Honour accepted the first four of these interests as having been properly established, but he rejected the fifth, the general encumbrance.

The fundamental issues in this appeal have related to the overruling by his Honour of the two key findings of the learned acting Chief Commissioner:

N2>(a)      that the document bearing the date 1st December, 1925, and propounded by the Custodian as a copy of the certificate of title in respect of the subject land, was not a copy of the certificate of title which did issue (the non-acceptance finding); and

N2>(b)      that the general encumbrance had been indorsed on the certificate of title when it had issued (the general encumbrance finding).

The law governing the powers and duties of the Supreme Court on an appeal against a decision of the Land Titles Commission has been fully dealt with by my brother Minogue and I agree with the conclusions stated by him and with the reasons for the same which he has given in his judgment.

The matter has been argued before us in great detail. The conclusion which I have reached is that the non-acceptance finding is one which can be justified on the evidence before the Land Titles Commission but that the general encumbrance finding is not so justifiable. The vital issue is whether a certificate of title had been registered in respect of the subject land and if so, what was contained in that certificate. As to what in fact did happen in 1925 in relation to the processes of registration of the subject land, very little is now capable of proof. From the proved facts, sundry surmises are capable of being made leading to conclusions which are not the necessary consequence, but which are not unlikely to be a reasonable reconstruction of the events of forty years before. In the restoration jurisdiction in which the Land Titles Commission operates, a finding as to what had occurred in the past is inevitably based on such conclusions.

The subject land was entered in the German Land Register and the Registrar of Titles was required by s. 16 of the Lands Registration Ordinance 1924 to bring under the Ordinance into a Torrens system all land which was so registered.

The first step normally taken by the Registrar was to prepare, in accordance with ss. 19 and 20, a draft certificate of title, the detail for the draft being based on the Land Register. The Registrar also had to prepare, under s. 21(1), a notice in the form of the First Schedule and serve same, together with a copy of the draft certificate of title, on various interested persons.

One of these persons was the Commissioner of Native Affairs, who was required to investigate the existence or otherwise of native rights and their extent and if any such rights existed, to have them determined by the Central Court.

It is common ground in the present proceedings that the intervention of the Commissioner of Native Affairs and a determination by the Central Court was required in relation to the subject land. But a great deal turned on whether the Registrar had prepared his First Schedule notice and served it with a copy of the draft certificate of title upon the Commissioner of Native Affairs prior to 27th August, 1925: this was the date of the coming into operation of Ordinance No. 36 of 1925 which (inter alia by par. (a) of a newly substituted s. 22) imposed on the Commissioner of Native Affairs an obligation which had previously not existed to publish a notice in the Gazette which was to allow a period of three months after the date of publication for the lodgment with him of claims to native rights over the land.

A further provision that is material in the present proceedings is s. 21(3), which required the Registrar to publish in the Gazette a notice in the form of the Second Schedule notifying that the land was being brought under the Ordinance and fixing a date by which caveats were to be lodged.

In fact, in respect of the subject land, the Registrar did publish such a notice: it was dated 9th October, 1925 and was published in the Gazette on 15th October, 1925: it fixed 30th November, 1925 as the date by which caveats were to be lodged.

Counsel for the appellant argued that the duty of the Registrar under s. 21(1) was closely associated with his duty under s. 21(3); that it should be presumed that service upon the Commissioner of the s. 21(1) notice was roughly contemporaneous with the insertion by the Registrar in the Gazette of the s. 21(3) notice; and that it may well be that such service was effected after the date of the publication in the Gazette. The date of publication was therefore pinpointed by counsel as being the starting point for the Land Titles Commission’s investigation. The s. 23(3) notice in fact does contain the earliest date on which it can be established beyond question that the registration process in respect of the subject land was in train, namely, 9th October, 1925.

Counsel for the appellant claims that the inference which the Chief Commissioner drew from the evidence was that the Registrar’s action under s. 21(1) was contemporaneous with that under s. 21(3); if registration was thereafter effected on 1st December, 1925, as claimed in the document propounded, then it would be irregular because of the breach by the Commissioner of Native Affairs of his duty under par. (a) of s. 22 as it had been amended and because of the fixing by the Registrar of a caveat period which did not allow for the three months claim period specified by the paragraph.

We do not know what was the actual finding of the Chief Commissioner as to the timetable of the events which led up to the registration of the certificate of title. If he did, in fact, find the timetable which counsel for the appellant claims that he did, it must be conceded that he was not acting unreasonably in doing so: it was quite open to the Chief Commissioner to infer that the Registrar’s notice under s. 21(1) was roughly contemporaneous with his Gazette notice of 15th October, 1925. If this were the case, it was a reasonable inference that registration was most unlikely to have been effected on 1st December, 1925 and the document propounded which bears this date thereby becomes very suspect.

In my view, however, there is nothing in the evidence to render this reconstruction more probable than the alternative, which is that the Registrar prepared the draft certificate of title and the notice in the form of the First Schedule and served both of them upon the Commissioner of Native Affairs prior to the date of the amendment of s. 22, namely 27th August, 1925.

The original Lands Registration Ordinance 1924 had come into operation on 1st June, 1924. I did not take it to be contested that the certificate of title which issued in respect of the subject land bore the number vol. 1 folio 5. From this numbering, it must have been one of the first of the former German properties to have had the attention of the Registrar.

The implementation of the Ordinance did not lack teething troubles because there were two amendments to it during 1924 and three amendments in 1925 up to 27th August, 1925. But there was nothing particularly difficult or time-consuming in the task of preparing a draft certificate of title for the subject land and the form of notice set out in the First Schedule, nor in serving it on the people interested. There has not been anything put forward to show that the routine in respect of such an early dealing would not have been completed by the Registrar between 1st June, 1924 and 27th August, 1925: there was furthermore no reason why the Commissioner of Native Affairs could not have substantially carried out by 27th August, 1925 his duties under s. 22 in the manner directed by the section in the period before the amendment came into effect.

Three considerations influence me to conclude that on the balance of probabilities, the Registrar and the Commissioner of Native Affairs had the matter well in train prior to the amendment date:

N2>(a)      The Registrar was necessarily aware of the amendment and he should not be assumed to have acted contrary to it. The six-week period fixed by him in his Gazette notice was a proper compliance with the provisions of the Ordinance as it stood prior to the amendment date.

N2>(b)      The Registrar’s Gazette notice dated 9th October, 1925 stated that draft certificates of title could be inspected at the Office of Titles at Rabaul, but the schedule to the notice in the column headed “Mortgages and other Encumbrances” made no reference to three items in the nature of an encumbrance, of which the Registrar could not have been unaware:

(i)       the encumbrance in favour of natives set out in the German Land Register;

(ii)      the waterhole encumbrance which all parties concede to have appeared in the certificate of title which issued; and

(iii)     the public rights encumbrance which all parties concede to have appeared in the certificate of title which issued.

The inference which I would draw from the three omissions is that these items had been covered in the course of discussions between the Registrar and the Commissioner of Native Affairs and that consideration by the Registrar of their content and effect was so far advanced at the date of the Registrar’s notice that he did not see fit to refer to them. As likely as not, the draft certificate of title included them. The purpose of the notice would be simply to effect a formal compliance with s. 21(3) in anticipation of imminent registration; and

N2>(c)      The Commissioner of Native Affairs was also necessarily aware of the amendment to s. 22 and he should not be assumed to have acted in breach of it. If he had been served prior to the date of the amendment with the Registrar’s notice under s. 21(1) and with the copy draft certificate, he was not required to follow the new procedure laid down in the amendment, that is to publish the Gazette notice giving claimants three months in which to claim upon him: his duty consisted merely in referring the question of native rights to the Central Court and thereafter seeing the reference through its course. No evidence was adduced that the Commissioner of Native Affairs had ever published such a Gazette notice: had it been published, it would have been very material in this case and the absence of evidence as to publication is a strong indication to me that it was never published. The conclusion which I would draw from the absence of evidence as to publication is that the service was effected on the Commissioner of Native Affairs prior to the amendment date rather than thereafter, if only for the reason that the second alternative assumes that the Commissioner acted in breach of his duties.

If the action by the Registrar and by the Commissioner of Native Affairs in respect of the subject land was in train by 27th August, 1925, and there is no reason why in fifteen months it should not have been, then the determination of native rights by the Central Court could just as readily have been disposed of by 1st December, 1925.

The omission by the Registrar of any reference in his s. 23(3) notice to the encumbrance in favour of natives set out in the German Land Register is also an indication to me that the Registrar in 1925 was satisfied from his perusal of the Land Register itself and no doubt the records of the Imperial Court that the native rights had already been adjusted and that the encumbrance had been properly deleted from the Land Register. if that were so, the only intervention required of the Central Court on the reference could well have been the establishment of the waterhole encumbrance.

If the decision in the matter were mine, I would furthermore not have rejected the plan which came from the Custodian’s file and which purported to be a tracing of that appearing on the document propounded as the copy certificate of title. Counsel for the appellant submitted that the Chief Commissioner had rejected the authenticity of this plan and pointed to sundry material in the evidence which would justify such a rejection. I would have accepted this plan as authentic, including the indorsement thereon showing that it purported to have been drawn up on 30th November, 1925.

Another matter which must have affected the thinking of the Chief Commissioner is that the first mention in the file of the Custodian of the actual existence of a certificate of title in respect of the subject land is in 1928. His Honour considered that this apparent delay should not be treated as anything more than merely unexplained. It certainly must be accepted that the delay is unexplained, but the delay can also be taken as a proper basis for the rejection of the document propounded which bears date 1st December, 1925. Counsel for the appellant argued that the first known date on which it can be proved that the Custodian or his agent the Delegate actually held any duplicate certificate of title in respect of the subject land was in 1928; that the Chief Commissioner was entitled to find that the delivery of this duplicate to the registered proprietor took place in 1928; that it was a reasonable inference on the part of the Chief Commissioner that the binding up of the Registrar’s duplicate in the register book and therefore registration itself were more likely than not to have taken place at somewhere near the date of delivery of the duplicate to the registered proprietor; and that that date could well have been found by the Chief Commissioner to be 1928.

Again, we do not have the benefit of knowing what was the Chief Commissioner’s actual finding on the matter in difference: what he did find was ambivalent in terms of date. He said:

“I find that:

(a)      A certificate of title issued to the Custodian in respect of this property between 1925 and 1928—see Ex. A.”

There has been no criticism of finding (a) by any party, but the next finding is a vital one:

N2>“(b)    That the copy certificate of title attached to Ex. A is not a copy of the certificate of title which I have found to have issued in (a) supra.”

His Honour has rejected finding (b) on the ground that it was against the weight of the evidence. In conformity with his Honour, I would not, on the evidence as it appears in the record, have made this finding which the Chief Commissioner made. I can see no reason, on appeal, why the letters of 19th April and 14th May, 1928 which purport to come from the Custodian’s file should not be taken at their face value: they come from an unimpeachable source and I would have looked on them as acceptable and their content reliable. I would not have made the finding which the Chief Commissioner made. But the fundamental issue in relation to this finding of the Chief Commissioner in these appeals, as it was in the appeals below, is whether his finding was against the weight of evidence and not whether a judge on any appeal would have made a different finding on the evidence as it appeared to him from the record.

In my opinion, the Chief Commissioner’s finding (b) was one which he could properly have made, assuming that he had arrived at sundry conclusions as to the facts such as counsel for the appellant alleged that he did: one must assume that the facts were so viewed by the Chief Commissioner because his finding is understandable in the light of certain inferences from the facts which he could have made, but is not otherwise explained.

The second fundamental issue in these appeals, as it was in the appeals below, is whether the general encumbrance finding by the Chief Commissioner was against the weight of the evidence.

In his judgment, his Honour said:

“Without some documentary or other evidence that the Register contained the general encumbrance or even that it was claimed and considered in the proceedings under the Registration Ordinance, I cannot see how the finding that the general encumbrance was registered can be supported.”

It must be remembered that the proceedings before the Land Titles Commission were conducted, as counsel for the appellant stressed, under ss. 9 and 10 of the New Guinea Land Titles Restoration Ordinance 1951 (as amended) and not under s. 67.

What had to be established before the Commission under those sections was an interest in land which had already achieved registration and could be so proved. No attempt was made in the proceedings before the Commission to establish, by resorting under s. 67 to the repealed provisions of the Lands Registration Ordinance 1924-1951, any interest which had not already been registered. The clear cut issue was as to what interests had been registered and not as to what interests were capable of being registered by the Commission as a result of the proceedings if it formed the opinion set out in s. 67(3), which it is clear that it did not.

There was no direct evidence whatever in the proceedings which showed that the general encumbrance had achieved registration. Counsel for the appellant entered into a series of speculations based on material in the evidence; on the strength of these he put forward an elaborate argument, which I do not accept, that the Chief Commissioner could and did draw the inference from evidence of native occupation of some unspecified part or parts of the subject land that native rights continued and were exercised over the subject land into the 1930s; that they must be presumed to have been lawful; to be lawful they had to be registered; and that this was the basis for his general encumbrance finding. In this respect, I agree with his Honour that this finding of the Chief Commissioner was against the weight of the evidence.

The next matter to be considered is what is the effect on the judgment of his Honour as a result of my having come to a different conclusion to him as to the non-acceptance finding of the Chief Commissioner.

Under ss. 38 and 38a of the Land Titles Commission Ordinance 1962-1968, an appeal may be made to the Supreme Court against a “decision” of the Commission. The decision for the purpose of these proceedings can only refer to the final order dated 23rd July, 1965 and not to the sundry findings enunciated by the Chief Commissioner in the course of his observations during the Land Titles Commission hearing.

His Honour’s judgment that the non-acceptance finding of the Chief Commissioner was against the weight of the evidence seems to me to have only one effect on the terms of the final order; it tends to negative that part of the final order which consists of the general encumbrance.

His Honour’s judgment reverses the rejection by the Chief Commissioner of the document propounded as containing the full content of the certificate of title which issued and makes a positive decision that the document propounded was a true copy of the certificate of title which issued. My conclusion that the Chief Commissioner could not unreasonably have made his non-acceptance finding would still leave it open to the Chief Commissioner to find that the content of the certificate of title as it issued was different in some way or another to the content of the document propounded.

What was eventually found by the Chief Commissioner in that regard turned out to comprise the complete acceptance of the document propounded (virtually copying it word for word with signatures and symbols, but bringing it up-to-date in minor respects such as the references to the Mining Ordinance in the mining encumbrance) but with the inclusion of the general encumbrance by way of an addition to the form of that document and constituting the only substantial deviation from it.

Because my conclusion as to the general encumbrance finding of the Chief Commissioner conforms to the judgment of his Honour, I am of the opinion that the difference between us as to the non-acceptance finding does not advance in any way the cause of the appellant: it leaves me in the same position as his Honour in saying that there is nothing to justify the inclusion of the general encumbrance in the final order, but that the balance of the final order is in general acceptable, except perhaps for the date “1st December, 1925” which is at this stage of the present proceedings as a result of my conclusions no longer of consequence to any party.

The deletion of the general encumbrance is required to be made from the final order. The next matter to be considered is what action this Court should take in the circumstances and whether it should direct a rehearing as to whole or part by the Land Titles Commission.

All parties have requested this Court to dispose finally of the proceedings and not to remit for rehearing back to the Commission.

Leaving aside the question of fresh evidence being available at this late stage, it seems to me that if the Chief Commissioner could properly have made the non-acceptance finding, but not the general encumbrance finding, then it would, in the light of this Court’s decision, be open for the Commission on a rehearing to find that the Custodian had no interest which was capable of being proved to its satisfaction and consequently no interest would be restored; or it could, on the other hand, accept the document propounded as being an authentic copy of the certificate of title which issued and restore title accordingly. It could not restore the general encumbrance found by the Chief Commissioner without fresh and better evidence.

Attempts were made by both sides to introduce fresh evidence, both in the appeals below and in these proceedings: this fresh evidence does not appear to be in any way related to proof of the registration of the general encumbrance. It could however influence the Land Titles Commission on a rehearing to find against the document propounded, on the ground that the precise extent of the interest of the Custodian could not be proved to its satisfaction.

The evidence to support the document propounded was sufficient to satisfy me, as it did his Honour, that it sets out the interests which should have been restored to the register; namely, the fee simple in the Custodian, the mining and public rights encumbrances in the Administration and the waterhole encumbrance in the Director as successor to the Commissioner of Native Affairs.

The three claims under the Restoration Ordinance which are the subject of this litigation were made in 1952 and they have proceeded steadily through drawn-out stages, attaining a final order in 1968 and then going on successive appeals to his Honour and to this Court in 1969.

I consider that no good purpose would be served by the further protraction of these proceedings and that the request of the parties should be carried into effect; and that the matter should not be remitted to the Land Titles Commission for rehearing. The appeals against the decision of his Honour should be dismissed.

Appeals dismissed.

Solicitor for the appellant: W. A. Lalor, Public Solicitor.

Solicitors for the first respondent: C. P. McCubbery & Co.

Solicitor for the second respondent: S. H. Johnson, Crown Solicitor.

R>

[dlxvi]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.

[dlxvii]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 claimant was entitled in equity to have executed.

[dlxviii]See Custodian of Expropriated Property v. Director of District Administration; Re Wangaramut [No. 1], [1969-70] P. & N.G.L.R. 133.

[dlxix][1969-70] P. & N.G.L.R. 133.

[dlxx][1969-70] P. & N.G.L.R., at p. 161.

[dlxxi](1953) 89 C.L.R. 212.

[dlxxii][1955] A.C. 370.

[dlxxiii](1956) 98 C.L.R. 615.

[dlxxiv] (1966) 39 A.L.J.R. 505, at p. 506.

[dlxxv][1941] 1 K.B. 53.

[dlxxvi][1951] 1 K.B. 641.

[dlxxvii][1969-70] P. & N.G.L.R. 329.

[dlxxviii](1964) 113 C.L.R. 318.

[dlxxix](1964) 113 C.L.R. 318.

[dlxxx](1964) 113 C.L.R., at pp. 336-337.

[dlxxxi] [1941] 1 K.B. 53, especially at p. 69, per Lord Du Parq.

[dlxxxii] [1951] 1 K.B. 641, at pp. 646-647, per Lord Goddard.

[dlxxxiii] [1956] 1 Q.B. 229, at pp. 238-239, per Lord Goddard.

[dlxxxiv][1939] NSWStRp 32; (1939) 39 S.R. (N.S.W.) 321, at p. 330.

[dlxxxv] [1931] A.C. 72, at p. 75.

[dlxxxvi] [1954] W.A. C.A. 174, at p. 179, per Lord Cohen.

[dlxxxvii][1948] 1 All E.R. 616.

[dlxxxviii](1964) 113 C.L.R., at pp. 336-337.

[dlxxxix][1955] A.C. 370.

[dxc][1955] A.C., at p. 373.

[dxci](1900) 10 Q.L.J. 87.

[dxcii][1962] Q.W.N. 34.

[dxciii][1963] Q.W.N. 11.

[dxciv][1966] Q.W.N. 35.

[dxcv] [1935] A.C. 346, at pp. 373-374, per Lord Wright.

[dxcvi][1954] W.A. C.A. 174.

[dxcvii][1954] W.A. C.A., at p. 177.

[dxcviii][1955] A.C., at p. 377.

[dxcix](1953) 89 C.L.R., at pp. 218-224.

[dc][1916] V.L.R. 425.

[dci](1966) 39 A.L.J.R. 505.

[dcii](1966) 39 A.L.J.R., at p. 506.

[dciii](1964) 113 C.L.R., at pp. 328-329.

[dciv](1964) 113 C.L.R. 318.

[dcv](1964) 113 C.L.R. 318.

[dcvi](1964) 113 C.L.R., at p. 336.

[dcvii](1838) 8 C. & P. 536; 173 E.R. 607.

[dcviii]Unreported. (Sup. Ct., P. & N.G.L.R. (Phillips J.) 29th April, 1930.)