Udia v Administration of the Territory of Papua and New Guinea [1969] PGSC 42; [1969-70] PNGLR 171 (21 April 1970)

Papua New Guinea Law Reports - 1969-70

[1969-70] PNGLR 171 - Gomora Udia v The Administration of the Territory of Papua and New Guinea

[1969-70] PNGLR 171

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

GOMARA UDIA AND OTHERS

V.

ADMINISTRATION OF PAPUA AND NEW GUINEA

Port Moresby

Frost J

21 April 1970

PRACTICE - Case stated - Statement of hypothetical questions - Land Titles Commission Ordinance 1962-1968, s. 32(1).

The Court, in the exercise of its discretion to so order under the Land Titles Commission Ordinance 1962-1968, s. 32(1), ought not to order that the Land Titles Commission state a case where the facts, upon which the question of law to be stated depended, had not been agreed or determined.

Sumner v. William Henderson & Sons Ltd., [1963] 1 W.L.R. 823, applied.

Originating Summons.

Gomara Udia and others made an application to the Land Titles Commission, under s. 15(1) of the Land Titles Commission Ordinance 1962-1968, for determination of their claim that an area of approximately forty-five square miles near Port Moresby, including June Valley and running down to the Laloki River, was native land, and further that they were the owners of that land by native custom.

At a stage when the taking of evidence by the Commission had not been completed, the applicants made an application under s. 32(1) of the Land Titles Commission Ordinance that the Commission temporarily refrain from making a decision in this matter and state a case for determination by the Supreme Court on the following question of law:

“Is a contract of sale of land between natives and the Crown valid under the law existing in 1891, if the land is communally-owned land and (a) not all natives who have interests in the said land were parties to the transaction; or (b) the parties to the transaction had no right or title in perpetuity of which they were capable in law of disposing; or (c) the parties to the transaction did not understand the nature of the transaction.”

The Commission refused the application and the applicants made application by way of originating summons to the Supreme Court for an order that the Commission temporarily refrain from making a decision in the case and state a case to the Supreme Court for the determination of the following questions:

“Is the contract for sale of land herein between natives and the Crown valid under the laws in force in British New Guinea in 1891 if the land was communally owned and

(a)      not all the natives who had interests in the land were parties to the transaction; or

(b)      the parties to the transaction had no right or title in perpetuity of which they were capable in law of disposing; or

(c)      the parties to the transaction did not understand the nature of the transaction.”

Counsel:

Young, for the applicants.

Tuthill, for the respondent.

21 April 1970

FROST J:  [After stating the above facts, his honour continued:] There had been given in evidence before the Land Titles Commission certain contracts, whereby in 1891 and 1897 the Administration purported to purchase the land. The case which is being made by Mr. Young on behalf of his clients is that those contracts were not binding on the basis of the three grounds incorporated in the question of law which he seeks to have determined.

Before the Commission, much evidence has been called, and much evidence remains to be called. There is no agreement upon the facts. The view which Mr. Young took was that it would facilitate the hearing if he could at that stage have the law established so far as his three objections are concerned which relate to the validity of the transactions of purchase. The application was made under s. 32(1) of the Land Titles Commission Ordinance 1962-1968 which provides that, in the course of an inquiry into or the hearing of a matter, the Commission may, and upon the order of a judge shall, temporarily refrain from making a decision and state a case upon a question (other than a question of fact only) for determination by the Supreme Court. In a well-reasoned judgment, the Land Titles Commission on 9th April, 1970, refused the application. The following passage from the learned Chief Commissioner’s reasons sums up the basis of the Commission’s decision:

“What is most relevant in my view is that the facts upon which the question of law is requested to be stated are not all before the Commission, they have not been the subject of a determination, some may or may not be established, and they are contested. No determination of fact could properly be made by the Commission at this stage. I am unable to agree that the Commission is likely to benefit from the case being stated, and for the facts on which the question is to be stated to be first established, determined or agreed upon, is, in my opinion, a necessary pre-requisite of any such benefit.”

Now, it is plain that, under s. 32(1), I have a discretion in the matter. How that discretion is to be exercised has been the subject of legal argument before me. Mr. Young’s argument was that the Land Titles Commission was wrong in the view it took that at this stage, when the facts were not agreed upon, and not determined, it was premature to have a case stated for the determination by this Court. He referred to O. 38, r. 2 of the Rules of the Supreme Court (Queensland, adopted), which he submitted indicated by analogy the principles to be observed in the exercise of my discretion. Order 38, r. 2 provides, in substance, that if it is made to appear to the court or a judge that there is any question of law which it would be convenient to have decided before any evidence is given or any question or issue of fact is tried, the court or judge may make an order accordingly, and may direct such question of law to be raised for the opinion of the court, either by special case or in such other manner as the court or judge may deem expedient. Mr. Young argued that the only two matters to be considered under that rule are, first, was the question which was sought to be determined by the Supreme Court a question of law, and secondly, was it convenient to have it decided at that stage, and there was nothing contained in O. 38, r. 2 which required that the facts should first be determined or agreed upon before a court would order a case to be stated. He referred to three matters bearing on convenience—first, that the Land Titles Commission was a commission in which there were two lay members who could overrule the Chief Commissioner; secondly, that the resolution of the question of law would relieve the Land Titles Commission of deciding any other questions except those of the facts; and thirdly, at this stage they would be assisted to have that determination of law so that they could proceed immediately without further debate to the determination of the facts. However, it is quite plain on the authorities that the power conferred by O. 38, r. 2 will not be exercised where the legal liability depends on facts which are disputed. It is sufficient for me to refer to the case which was cited before the Land Titles Commission, of Sumner v. William Henderson & Sons Ltd.[ccxix]¹. There the Court of Appeal was dealing with an application for the determination of certain question by special case. The Court said[ccxx]²:

“It does not seem to us possible, or, if possible, appropriate to express a general opinion on the law which might be of no effect or erroneous on a certain view of the facts or which would have to be alternative with regard to a variety of views of the facts. . . . In the present case no facts have been agreed and what the outcome of the evidence will be is most uncertain. It does not seem to us in the interests of either party that a hypothetical decision should be reached now.”

Thus, if resort is made to the provisions of O. 38, r. 2, by way of analogy, the Court would not order the question of law to be determined on a special case if the facts upon which that question depends are not agreed or determined. It is unnecessary for me to consider the other authorities cited by Mr. Young as to the limits of the discretion conferred under that particular rule. It seems to me that the considerations referred to by the Court of Appeal are helpful in determining the principles upon which I should exercise my discretion under s. 32(1) of the Land Titles Commission Ordinance, and I have reached the conclusion that an order should not be made where the facts upon which the question depends have not been determined or agreed. That is the case before me. It is possible that at the end of the hearing before the Land Titles Commission, the Commission will find different sets of facts from those upon which the question is based, rendering its determination nugatory. In my opinion, this Court should avoid making an order on a hypothetical set of facts, for, as was said by Warrington L.J. in the case cited by Mr. Tuthill, Stephenson, Blake & Co. v. Grant, Legros & Co.[ccxxi]³, “the function of the Court is not to decide abstract questions of law, but to decide questions of law when arising between the parties as a result of a certain stale of facts”. For these reasons, I refuse the application.

Application refused.

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

Solicitor for the respondent: P. J. Clay, Acting Crown Solicitor.

R>

[ccxix][1963] 1 W.L.R. 823.

[ccxx]1963 1 W.L.R., at pp. 827-828.

[ccxxi] (1971) 86 L.J. Ch. 439, at p. 440.