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Administration of the Territory of Papua and New Guinea v Director of District Administration (re Volupai) [1969-70] PNGLR 303 (18 December 1969)

Papua New Guinea Law Reports - 1969-70

[1969-70] PNGLR 303 - The Administration of the Territory of Papua and New Guinea v Director of District Administration (re Volupai)

[1969-70] PNGLR 303

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

ADMINISTRATION OF THE TERRITORY OF PAPUA AND NEW GUINEA

DIRECTOR OF DISTRICT ADMINISTRATION (RE VOLUPAI.)

Port Moresby

Clarkson J

26-28 November 1969

18 December 1969

REAL PROPERTY - Restoration of titles - Land Titles Commission - Nature of appeal therefrom - Commission using material or knowledge not disclosed to parties - New Guinea Land Titles Restoration Ordinance 1951-1966, ss. 42[cdxxiii]¹, 67[cdxxiv]² - Land Titles Commission Ordinance 1962-1968, ss. 38[cdxxv]³, 38a[cdxxvi]⁴ .

Upon an appeal under the Land Titles Commission Ordinance 1962-1968, s. 38, on the ground that the decision appealed from is against the weight of the evidence, the principles by which the review of the evidence is to be conducted are those ordinarily applied in reviewing the fact finding of a judge or magistrate sitting alone.

In its hearing and determining matters under either s. 42(1) or s. 67(3) of the New Guinea Land Titles Restoration Ordinance 1951-1966, the Land Titles Commission has not a complete discretion, regardless of what evidence was produced before it or what opinion it formed, to make a final order for restoration of title or not under s. 42(1) or to implement its opinion formed under s. 67(3) or not, but is bound to act judicially.

Observations on whether, because of the flexibility and informality of the proceedings before the Land Titles Commission and the local knowledge and experience it would have, its findings of fact should be accepted on appeal as being virtually incontravertible or accorded, at the least, the same respect as the verdict of a jury, and the opinion expressed that, if the Commission were to use information not known to, or disclosed to, the parties in reaching its decision, the Commission would have proceeded contrary to natural justice within the meaning of s. 38(2)(b) of the Land Titles Commission Ordinance 1962-1968.

Appeal from Land Titles Commission.

The Administration of the Territory of Papua and New Guinea (the appellant) appealed, under the New Guinea Land Titles Restoration Ordinance 1951-1966, s. 38, against a final order made by the Land Titles Commission (the Commission) issued on 18th October, 1966, relating to an application made to the Commission for the restoration of titles to certain land in New Britain known as Volupai Portion 161. The Director of District Administration was the only respondent to the appeal. At the hearing of the appeal the respondent submitted that, notwithstanding that the Commission erred in thinking that certain notices published in the New Guinea Gazette did not support the appellant’s claim to Portion 161, the Supreme Court in law could not disturb the final order made.

Counsel:

Croft, for the appellant.

Hookey, for the respondent.

Cur. adv. vult.

18 December 1969

CLARKSON J: [His Honour referred at length to the facts and to documents relating to the proceedings before the Land Titles Commission, and held that there was no explanation of the fact that the Chief Commissioner appeared to have thought that the notices expressly referring to Portion 161 and published in the New Guinea Gazette did not or may not have related to any portion of the land claimed. His Honour then continued as follows:]

In the present circumstances, where the only relief sought is a rehearing, it is unnecessary for me to comment on the interesting arguments raised as to the evidential value of some of the documents and I express no opinion whether or not the claim in respect to Portion 161 should or could have succeeded if the gazetted notices were accepted as applying to that land. However, the respondent claims that notwithstanding a conclusion that the Chief Commissioner erred in treating the gazetted notices as no support for the claim this Court could not in law disturb the present decision and I turn now to the questions of law thus raised.

The Restoration Ordinance originally contained its own provisions regarding appeals from final orders of the Commission to the Supreme Court. Section 54 provided that a person aggrieved by a final order might appeal to the Supreme Court against that order. Section 55 provided that an appeal should be by way of rehearing and that on the appeal the Supreme Court might receive further evidence and consider the documentary records of proceedings held and evidence given before the Commissioner.

These provisions were repealed in 1963 and the provisions of div. 3 of the Land Titles Commission Ordinance relating to appeals to the Supreme Court thereafter governed appeals from the Commission under the Restoration Ordinance. Originally the grounds on which an appeal lay were limited to the following: (a) that the Commission had 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. By the amending legislation in 1968 a further ground was added, namely that the decision was against the weight of the evidence.

Counsel for the respondent argued that the history of the legislation shows that originally there was a general right of appeal and that the appeal was expressly stated to be by way of rehearing and that the absence of any reference to a rehearing in the present legislation indicates that the appeal is no longer by way of rehearing. The respondent further argues that because an appeal such as the present is not a rehearing, the findings of fact by the Commission must be treated as if they were findings of fact by a jury.

In my view this argument is open to two criticisms. Firstly, it underestimates the extent to which, on an appeal as opposed to a rehearing, the appellate court is empowered to re-examine the facts. Secondly, it fails to recognize that the reluctance of an appeal court to interfere with the verdict of a jury stems largely from the peculiar weight which is given to the verdict of a jury and not from any failure of the statute conferring the right of appeal to describe the appeal as being by way of rehearing.

An appeal is a creature of statute and “the scope and effect of an appeal must in the end be governed by the terms of the enactment creating it” (Commissioner for Railways (N.S.W.) v. Cavanough[cdxxvii]⁵ per Rich, Dixon, Evatt and McTiernan JJ.).

The distinction between an appeal and a writ of error has been clearly drawn. “An appeal is a process of civil law origin, and removes a cause entirely; subjecting the fact as well as the law, to a review and retrial: but a writ of error is a process of common law origin, and it removes nothing for re-examination but the law.” (Wiscart v. Dauchy[cdxxviii]⁶ per Elsworth C.J., quoted by Isaacs J. in South Australian Land Mortgage and Agency Co. Ltd. v. The King[cdxxix]⁷.)

In Victorian Stevedoring and General Contracting Co. Pty. Ltd. v. Dignan[cdxxx]⁸ Gavan Duffy C.J. and Starke J. said:

“ ‘Appeal’ is used in more senses than one: it is a process which may subject (1) the whole matter for rehearing; (2) a question of law only, for review; (3) the facts as well as the law for review—that is, whether the order of the tribunal from which the appeal is brought was right, on the materials which it had before it.”

The usual distinction drawn between an appeal and a rehearing is that referred to by Latham C.J. in Boulus v. Broken Hill Theatres Pty. Ltd.[cdxxxi]⁹, where the Chief Justice said:

“Paragraph (b) of sub-s. (11) reads—‘The appeal shall be in the nature of a re-hearing of the application.’ Accordingly, when the District Court upon appeal deals with the matter, it deals with it by way of rehearing, and therefore applies the law as existing at the time of rehearing so far as relevant and applicable and also takes into account the facts as existing at the time of the rehearing. There is a distinction between a rehearing of this kind and an appeal. Upon an appeal, the appellate tribunal determines whether, on the facts before the lower court, the decision of the lower court was right or wrong.”

See also Dixon J., as he then was, at p. 197.

In Dignan’s case[cdxxxii]¹⁰ Rich J. makes the same point that reconsideration of rights and liabilities of parties as they have come to be when the appeal is heard is not a function of true appellate jurisdiction. See also Evatt J. at p. 113.

But where an appeal lies as here on the ground, inter alia, that the decision is against the weight of evidence the appellate tribunal is empowered and indeed, if asked to do so, obliged to review the facts as they appeared before the lower court.

Of an appeal to the High Court under s. 73 of the Constitution which provides merely that the “High Court shall have jurisdiction . . . to hear and determine appeals from all judgments . . .”, Dixon J., as he then was, said in Dignan’s case[cdxxxiii]¹¹: “It is established that upon such an appeal, it is for the Court to form its own judgment of the facts so far as it is able to do so. . . . For this reason an appeal to this Court is often said to be by way of rehearing.” The learned justice then goes on to distinguish the position of the English Court of Appeal where the appeal is by way of rehearing in its fullest sense as described in Boulus’ case[cdxxxiv]¹².

For support for the proposition that, because the appeal is not by way of rehearing in its fullest sense, findings of fact by the Commission must be treated as findings of a jury, counsel referred to Pilmer’s case (Pilmer v. No. 1 South Oriental & Glanmire Gold Mining Co. Ltd.)[cdxxxv]¹³. In this case counsel had argued[cdxxxvi]¹⁴ that: “This appeal being an appeal from a District Court judge sitting without a jury, is in the nature of a rehearing, and this Court is not bound by the finding of the District Court judge on questions of fact.” Griffith C.J. in reply said[cdxxxvii]¹⁵:

“It makes no difference, so far as regards the functions of this Court on the hearing of appeals from District Courts, whether the case was tried with or without a jury. The findings of a District Court judge stand on the same footing as if they were those of a jury, and the Court will review the findings of a judge on the same principles as those applied when it is asked to review the findings of a jury—that is, it will disregard them only if it is shown that they are manifestly wrong. Section 147 may possibly somewhat enlarge their powers in that respect. The case of Murison v. Rankin[cdxxxviii]¹⁶ is quite consistent with that view. There is great distinction between an appeal of this sort and an appeal from a judge of the Supreme Court sitting alone, which is in the nature of a rehearing, so that in that case fresh evidence may be taken by the Court of Appeal. What I have said is the opinion of the Court.”

Counsel is reported as saying: “Then, practically, more power is given to a District Court judge than to a Supreme Court judge. If the District Court judge makes a mistake it cannot be put right.” To which the learned Chief Justice replied: “A Supreme Court judge sitting alone is the only judge from whom there is an unrestricted appeal.”

Two matters should be noted. First, while a District Court judge in Queensland may sit with or without a jury, the Chief Commissioner sits alone and juries do not exist in the Territory. Secondly, it is not altogether clear that the learned Chief Justice was saying, as is argued here, that it was merely because the appeal was not by way of rehearing that the findings of a District Court judge were to be reviewed on the same principles as those applied to the review of findings of a jury.

He made two interrelated but separate statements. Firstly, that findings of a District Court judge sitting without a jury were to be reviewed on the same principles as findings of a jury would be, and secondly, that there was a great distinction between an appeal from a District Court and an appeal by way of rehearing from a judge of the Supreme Court sitting alone. In the latter case the appeal was “unrestricted”.

If, however, the passage I have quoted is read as support for the respondent’s present contention, then it should be considered with the knowledge that it was made in the course of argument, that no authority was given for it and that a number of important decisions have since been given relating to the extent of appellate jurisdiction.

It is also of value to consider the subsequent history of the matter in Queensland. Pilmer’s case[cdxxxix]¹⁷ was followed by the Queensland Full Court in Michajlyszyn v. Wilson[cdxl]¹⁸ and again in Clark v. Trevilyan[cdxli]¹⁹. In the latter case Gibbs J. for the Court, after quoting portion of the above extract from Pilmer’s case went on:

“It is true that in Federal Gold Mine Ltd. v. Ennor[cdxlii]²⁰ the High Court held that an appeal under virtually identical sections in the Local Courts Act, 1904, Western Australia ‘is a rehearing and not to be confounded with proceedings for the setting aside of verdicts of juries’ (per Barton J., at p. 284; see also per Griffith C.J., at p. 279). The point of distinction between the Queensland and the Western Australian statute is that the same words in the District Courts Act cover an appeal from a judge and an appeal from a judge and jury, whereas the Local Courts Act makes no provision for juries (see Pettigrew v. Klumpp and Klumpp[cdxliii]²¹, per Philp J.). Counsel for the appellant did not contest that we should treat the decision in Pilmer v. No. 1 South Oriental & Glanmire Gold Mining Co. Ltd.[cdxliv]²² as applicable to The District Courts Acts, 1958 to 1960. If we are bound, as I think we are, to treat the findings of a District Court judge as though they were those of a jury, we have no right to substitute our own findings for those of the District Court judge.”

It will be noted that the distinction drawn by Gibbs J. can also be drawn here, namely that the Chief Commissioner does not sit with a jury.

Pilmer’s case was again considered in Webb v. McAntee[cdxlv]²³, an appeal against an order for contribution by a tortfeasor following a traffic accident. The Full Court, relying on Clark v. Trevilyan[cdxlvi]²⁴ and the very wide discretion given to the judge or jury (in that case a judge) in determining a just and equitable contribution, dismissed the appeal. Special leave to appeal was sought from the High Court[cdxlvii]²⁵. Leave was refused and at p. 131 of the last-mentioned report McTiernan J. is reported as saying:

“The Court does not think this is a case for special leave to be granted on either ground. Having regard to the history of the section in question and the course of judicial decisions upon it, going back for more than sixty years, we do not think we should grant special leave to appeal to allow an established matter of Queensland practice to be questioned now.”

It seems that the decision of the High Court, influenced by the practice followed in Queensland since Pilmer’s case, was not intended to be authority in jurisdictions where a similar practice has not been followed. I am not aware of any case in this jurisdiction—and I was referred to none—in which, on appeal from the District Court or Local Court in the Territory, the findings of a magistrate have been treated as findings of a jury. On the contrary, to the best of my knowledge, the approach adopted in this Court to findings of a magistrate has been the same as that ordinarily adopted to findings of a judge sitting alone.

Further, the general attitude of the High Court as expressed in a line of cases commencing with Dearman v. Dearman[cdxlviii]²⁶, reviewed in Paterson v. Paterson[cdxlix]²⁷ and continued in Jones v. Capaldi[cdl]²⁸ (see also Whiteley Muir and Zwanenberg Ltd. v. Kerr[cdli]²⁹), and a similar attitude adopted in England (see Benmax v. Austin Motor Co. Ltd.[cdlii]³⁰), is contrary to that taken in Pilmer’s case[cdliii]³¹.

Both the Australian Digest and the index to the Commonwealth Law Reports suggest Coles v. Adeney[cdliv]³² is authority for the contention that on appeal from a judge sitting without a jury, the principles applicable are not different from those applicable where the trial was before a jury. I think this view may well depend on a misreading of a passage in the reasons of Griffith C.J. However, I note that in the course of the reasons of Isaacs J. he states expressly: “. . . it is our duty as a Court of Appeal so far as we can to form our own judgment”, a view entirely consistent with the line of authority to which I have referred.

In my view, the Queensland cases cited to me are of no assistance to the respondent here where no similar long-standing practice has been established and where what practice can be ascertained has been to the contrary. I have been unable to find any other authority which suggests that, merely because an appeal is not by way of rehearing, the findings of a judge sitting alone must be approached on appeal as if they were findings of a jury and it would hardly be an apt test in this jurisdiction where juries do not exist even for the trial of indictable offences. Whether one says that an appeal to this Court from the Land Titles Commission is not by way of rehearing in its fullest sense or is by way of rehearing in the loose but restricted sense referred to by Dixon J., as he then was, in Dignan’s case[cdlv]³³, the fact remains that the appellant is entitled to challenge the present decision in this Court on the ground that it is against the weight of the evidence. This necessarily involves a review of the evidence. The learned Chief Commissioner sat alone and there is no verdict of a jury to which the law elsewhere would attach special weight. In selecting the principles by which this review is to be conducted I can see no reason why principles applicable to a review of a jury’s verdict in other jurisdictions where juries exist should be preferred to those principles which—except in relation to a District Court judge in Queensland—are ordinarily applied in reviewing the fact finding of a judge or magistrate sitting alone.

The respondent contended that since the 1968 amending legislation (which conferred a right of appeal where the decision is against the weight of the evidence) applied to enable the appellant to add this ground in this appeal, the amendment should be read restrictively and not as conferring a right to a full rehearing. I think the short answer is that no one contends before me that the amendment should be read so widely and I have read it restrictively in adopting the construction I have, namely that I am engaged in a review of the facts before the Commission and not in a full rehearing.

It was further argued that in hearing and determining matters under s. 42(1) or in considering the application of s. 67(3) of the New Guinea Land Titles Restoration Ordinance, the Commission had a complete discretion, regardless of what evidence was produced or what opinion was formed, either to make an order or not.

Section 42(1) reads:

“Subject to section thirty-seven of this Ordinance, the Commission shall, after the date specified in the notice published under section thirty-four of this Ordinance, proceed to investigate, hear and determine the claims, objections and references which are the subject of, or relate to, the provisional orders listed in the notice, 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.”

Section 67(3) reads:

“For the purposes of this Ordinance, a person shall be deemed to have been entitled, at the appointed date, to an interest in land, and to be entered or registered in a lost register as the owner of, or person entitled to, that interest if, in the opinion of the Commission, it would have been so entitled if—

(a) the provisions repealed by this section had remained in force;

(b) no relevant document or register had been lost or destroyed; and

(c) the procedure prescribed by those provisions had, before the appointed date, been completely applied in relation to that land.”

The suggestion in relation to s. 42(1) is, if I understand it correctly, that because final orders can be made “either in the same terms as the provisional orders or in such other terms as it thinks just”, the Commission, notwithstanding that it may determine that a claim should succeed or should fail, need not reflect that determination in its order.

I think this view quite untenable. The Commission as I have already pointed out is bound to act judicially and therefore not arbitrarily or capriciously as it would be if it designed its order so as not to give effect to the conclusions it had reached. Where a body is required to act judicially, “the decision must be come to in the spirit and with the sense of responsibility of a tribunal whose duty it is to mete out justice” (per Starke J., R. v. War Pensions Entitlement Appeal Tribunal; Ex parte Bott[cdlvi]³⁴ ).

The argument advanced in relation to s. 67(3) was to the effect that notwithstanding the Commission formed the opinion described in that subsection it could nevertheless, in its discretion, refuse to implement that opinion. It seems to me quite clear that if the Commission forms the opinion described it is bound to implement it and its obligation to do so is none the less merely because the Commission’s opinion on the matters set out in s. 67(3) is selected as the test whether a person is to be deemed entitled to the benefit of earlier sections. Once the necessary opinion is formed and expressed by the Commission the applicant is “deemed to have been entitled . . .” by the operation of the section itself and not by the later exercise in his favour of some discretion in the Commission to decide whether the opinion should be implemented or not.

Finally, I refer to the contention that because of the flexibility and informality of the Commission’s proceedings and the local knowledge and expertise it would have, its findings of fact should be accepted in this Court as virtually incontrovertible or at least accorded the same respect as a jury’s verdict.

A number of cases relating to administrative tribunals were referred to in which it appeared that before or during the proceedings or in the decision it was disclosed that the tribunal had used or intended to use information not known to the parties in reaching its decision and the extent to which the particular tribunal could so act is discussed.

In general terms it can be said that “if relevant evidential material is not disclosed at all to a party who is potentially prejudiced by it, there is prima facie a breach of natural justice irrespective of whether the material in question arose before during or after the hearing” (de Smith, Judicial Review of Administrative Action, 2nd ed., p. 191). As I understand counsel’s argument this proposition was not challenged but it was said that in addition the Commission was entitled to use its own special knowledge and expertise and to use it without disclosing it had done so.

The next step in the argument is to say that since the Commission can so act, the fact that a decision of the Commission cannot be supported by reference to the facts disclosed at the hearing is not enough to warrant disturbing the decision which might be justified by reference to further facts within the knowledge of the Commission but not disclosed on the Commission’s documents nor disclosed to the parties.

I regret I am unable to agree. No doubt the Commission can be expected in the course of its work to acquire expertise and it is entitled to use that expertise in drawing inferences from the evidence. But even where not bound by rules of evidence, tribunals such as the Commission “. . . are nevertheless obliged to act in accordance with natural justice. And this means that in the absence of contrary intendment they must not place a party at a disadvantage by depriving him of an adequate opportunity of commenting on material relevant to their decision if it is gleaned from an outside source or in the course of their own investigations or from evidence given in earlier cases” (de Smith, Judicial Review of Administrative Action, pp. 193-194). Professor de Smith then continues:

“As yet the case-law gives no clear indication of the extent to which they will be permitted to abstain from disclosing during the hearing their own expert opinions, or information relevant to the exercise of their discretion in so far as they can take public policy considerations into account. But it is thought that the courts will lean in favour of imposing judicial standards as far as practicable, so that if a party is misled as to the basis on which the tribunal is likely to decide and is thus placed at a material disadvantage in putting his case, he may be held to have been denied natural justice.”

There is respectable support for this view. In R. v. War Pensions Entitlement Appeal Tribunal; Ex parte Bott[cdlvii]³⁵ Starke J. said: “The appeal tribunal can obtain information in any way it thinks best always giving a fair opportunity to any party interested to meet that information.” This statement was cited with approval by the Full Court of Victoria in R. v. Metropolitan Fair Rents Board; Ex parte Canestra[cdlviii]³⁶. See also R. v. Milk Board; Ex parte Tomkins[cdlix]³⁷.

The same view has been taken in England, see R. v. Paddington and St. Marylebone Rent Tribunal; Ex parte Bell, London and Provincial Properties[cdlx]³⁸. Two recent English cases should also be mentioned. In Crofton Investment Trust Ltd. v. Greater London Rent Assessment Committee[cdlxi]³⁹ Lord Parker C.J., having rejected a submission that the tribunal was not entitled to act “on their own impression and on their own knowledge”, says[cdlxii]⁴⁰:

“The second way in which Mr. Caplan puts this case is that even if they are entitled to act on their own knowledge, yet here rules of natural justice, or, to put it more simply, fairness, demanded that before they approached the matter as they did . . . they should have so informed the landlords’ representative in order to enable the landlords’ representative to deal with the point and to call evidence, if need be. . . .

“It is quite clear that whenever a new point emerges, something which might take a party by surprise or something which the committee have found out and of which the parties would have no knowledge, fairness would clearly dictate that they should inform the parties and enable them to deal with the points.”

See also Metropolitan Properties Co. v. Lannon[cdlxiii]⁴¹.

I find the decision of Lowe J. in R. v. Milk Board; Ex parte Tomkins[cdlxiv]⁴² of assistance here. The first paragraph of the headnote reads:

“The Milk Board, in conducting an inquiry for the purpose of assessing compensation, under s. 24(3) of the Milk Board Act 1933, as enacted by s. 11 of the Milk Board Act 1936, acts in a quasi-judicial capacity. Accordingly, while it is entitled to make use of information in its possession or documents under its control, it must in fairness disclose such information or documents to the claimant for compensation, and give him a proper opportunity of meeting them, before it arrives at a decision upon his claim.”

His Honour said:

“. . . the Board is not bound to accept the evidence of the prosecutor, even if uncontradicted. . . . The legislature must have known that the Board . . . would acquire a fund of information and have under its control many documents containing information pertinent to the assessing of compensation, and I find it impossible to suppose that Parliament intended that the Board should not make use of this information and these documents. . . .”

But his Honour’s conclusion was that “where particular facts or documents are relied on by the Board it must disclose these to the claimant and give him an opportunity, if he desires it, of answering them”.

Admittedly it is difficult to define in advance the circumstances in which a tribunal would be acting on its own knowledge or expertise and those in which it would be acting on information “gleaned from outside sources or in the course of their own investigations or from evidence given in earlier cases”. But here, where the evidence appears to have been wholly documentary the distinction drawn by Lowe J. in R. v. Milk Board; Ex parte Tomkins[cdlxv]⁴³ is relevant.

When one considers the present case in the light of these authorities three significant points appear. Firstly, there can be no doubt that the Commission was bound to act in accordance with the requirements of natural justice. Section 42(4) of the Restoration Ordinance requires it to act judicially and its decision at the time when it was given could be attacked in this Court if the hearing were conducted in a manner contrary to natural justice; “. . . a right of appeal from any Court is a limitation of that Court’s jurisdiction”. The Commonwealth v. Limerick Steamship Co. Ltd.[cdlxvi]⁴⁴ per Isaacs and Rich JJ.

Secondly, this is not a case where, it having been shown that the Commission took matter into account of which the parties were ignorant, it must be decided whether it was proper for the Commission to do so. Here there is nothing to indicate that the Commission took into account anything except the material which is now before this Court and no suggestion was made to me as to what other material it might have taken into account. The Commission did not say it had taken into account anything except the material now available and it is mere speculation to say that it might have.

Thirdly, if it be assumed that the Chief Commissioner did take other material into account, there is nothing to show whether or not that material was “gleaned from outside sources or in the course of [his] own investigations or from evidence given in earlier cases” or whether it was knowledge of “particular facts or documents”.

The brief reason given by the Chief Commissioner for his decision was that he was not satisfied that the “notice” related to the land claimed. However, as I have previously indicated, a perusal of the documents shows that on its face the notice did relate to the land claimed.

I think the proper view is that if the Commission, in reaching the conclusion it did, relied on relevant material obtained by the Commission itself, or even if when relying on its own knowledge “a new point emerge[d], something which might take a party by surprise”, or if this knowledge related to particular facts or documents and this material or knowledge tended to show that the notice did not relate to the land claimed, the Commission would have proceeded contrary to natural justice if it did not disclose the material or knowledge on which it relied.

However, there is no indication that the Commission acted or might have acted contrary to natural justice. In the absence of any indication that other information relating to the notice was used by the Commission I think I am entitled, if not bound, to assume that the Commission proceeded correctly and that the relevant information before the Commission is that now disclosed in this Court.

The simple and much more probable explanation of what occurred is that the Chief Commissioner, acting under pressure and with the facts of many similar cases in his mind, confused land which had been referred to as “Volupai Swamps” and to which the notice did not refer, with land called “Volupai Portion 161” to which the notice did refer. In the circumstances this was no doubt an unfortunate but nevertheless understandable error and it should be treated as such.

In his reply, counsel for the appellant suggested that in the circumstances of this case it might be appropriate for a rehearing to be ordered under s. 38a(3) of the Land Titles Commission Ordinance (the principal Ordinance).

Section 38a was inserted by s. 14 of the Land Titles (Jurisdiction and Appeals) Ordinance 1968. By s. 8 of that Ordinance, ss. 28a and 28b were also inserted in the principal Ordinance. These sections provide:

“28a(1) A transcript of the evidence given in a matter before the Commission shall be taken and subscribed by the Commission.

(2) The Commission shall keep a record of any inquiries or investigations made by it under Subsection (1) of Section 15, or under Subsection (4) of Section 36, of this Ordinance.”

“28b. The reasons for the decision of the Commission in a matter before it shall be recorded by the Commission in writing.”

Section 14 of the 1968 Ordinance which added s. 38a to the Principal Ordinance provides:

“14(1) After Section 38 of the Principal Ordinance the following section is inserted in Division 3 of Part V:—

‘38a(1) On an appeal under Section 38 of this Ordinance against a decision of the Commission, the Supreme Court may require the Commission to furnish to it—

(a) the transcript of the evidence taken by the Commission;

(b) copies of all documents before the Commission;

(c) the record of any inquiries or investigations made by the Commission under Subsection (1) of Section 15, or Subsection (4) of Section 36, of this Ordinance in relation to the matter of the decision; and

(d) the reasons for the decision,

certified as correct by the Commission.

(2) . . . .

(3) Where the transcript of evidence or any other matter or thing which may be required to be furnished under Subsection (1) of this section in relation to an appeal is in the opinion of the Supreme Court not adequate to allow the Court to come to a proper decision on the appeal, the Court shall—

(a) require the Commission to furnish to it any further information, matter or thing relating to the decision; or

(b) remit the case in whole or in part for hearing or further hearing under paragraph (d) of Subsection (2) of this section.’

(2) The amendments effected by Subsection (1) of this section apply to and in relation to any appeal under the Principal Ordinance which is pending or is being heard on the date of commencement of this Ordinance.”

It will be seen that while s. 38a is expressly applied to appeals pending at the date of commencement of the 1968 Ordinance, the new ss. 28a and 28b are not and it is obvious that if the transcript record and reasons required to be kept or recorded by these sections were not in fact kept or recorded at a hearing which occurred before the commencement of the 1968 Ordinance it would be impossible for the Commission to comply with ss. 28a and 28b.

Bearing in mind both the state of the law at the time of the hearing before the Commission in 1966 and the conclusion I have already reached in this case I think the material supplied is adequate to allow me to come to a proper decision and I do not rely on s. 38a(3) in making the order I do.

The appeal will be allowed and the whole case remitted to the Land Titles Commission for rehearing.

Liberty is reserved to the parties to apply in respect to the costs of the appeal.

Appeal allowed. Remitted to Land Titles Commission for rehearing. Liberty to apply for costs of appeal.

Solicitor for the appellant: P. J. Clay, Crown Solicitor.

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

[cdxxiii]Infra, at p. 310.

[cdxxiv]Infra, at p. 310.

[cdxxv]The provisions of s. 38 are summarized infra, at p. 304.

[cdxxvi]Infra, at p. 316.

[cdxxvii][1935] HCA 45; (1935) 53 C.L.R. 220, at p. 225.

[cdxxviii] (1796) 3 Dall. 321, at p. 327.

[cdxxix][1922] HCA 17; (1922) 30 C.L.R. 523, at p. 552.