Chan Tung v Attorney General [2012] WSSC 42 (12 October 2012)

SUPREME COURT OF SAMOA

Chan Tung v Attorney General [2012] WSSC 42

Case name: Chan Tung v Attorney General

Citation: [2012] WSSC 42

Decision date: 12 October 2012

Parties: Harry Chan Tung v Attorney General

Hearing date(s): 11, 13, 27 January 2011

File number(s): CP 132/04

Jurisdiction: Civil

Place of delivery: Mulinuu

Judge(s): Chief Justice Patu Falefatu Sapolu

On appeal from:

Order:

Representation:

R Drake for applicant

D Kerslake for respondent

Catchwords:

Words and phrases:

Torrens system

Wednesbury principles

Legislation cited:

Judicial Review of Administrative Action (1995) 5th ed by de Smith,

Land Law in New Zealand (2003) by Hinde

Constitutional and Administrative Law in New Zealand (2001) p. 832, 2nd ed

Cases cited:

Chang Tung v Attorney General [2005] WSSC 24

McCarthy v Attorney General [2008] WSSC 9

Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374,

Pouniu v Land Titles Investigation Commission [2003] WSSC 5

Keil v Minister of Natural Resources and Environment [2003] WSSC 54

Keil v Land Board [2000] WSSC 41

Tiatia v Attorney General [2004] WSSC 25

Lokeni – Lepa v Public Service Commission [2006] WSSC 14

Ainuu v Land and Titles Court [2011] WSSC 36

Penaia v Land and Titles Court [2011] WSSC 4

Penaia v President of Land and Titles Court [2012] WSSC 39

Vaosa v Attorney General [2000] WSSC 23

Housing Corporation of New Zealand v Maori Trustee [1988] 2 NZLR 662

Frazer v Walker [1967] NZLR 1069; [1967] 1 AC569

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] 40

Amoa v Land and Titles Court [2011] WSSC 89

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINU’U

FILE NO.

BETWEEN:

HARRY CHAN TUNG of Nuu, Businessman.

Applicant

A N D:

REGISTRAR OF LANDS Respondent

Counsel:

R Drake for applicant

D Kerslake for respondent

Hearing: 11, 13, 27 January 2011

Judgment: 12 October 2012

JUDGMENT OF SAPOLU CJ

Introduction

1. I regret the length of time it has taken to get this judgment out. This is another complex and difficult case in a long series of such cases that have come and are continuing to come before this Court. The facts of some such cases are complex, the law in other such cases is difficult, while there are also many such cases where the facts are not only complex but the law is difficult. This case falls within the third category. Much thought and no small amount of legal research have gone into trying to clarify the issues involved.
2. These proceedings for judicial review originated from a civil claim for damages by the applicant Harry Chan Tung against the Attorney General sued as defendant on behalf of the Registrar of Lands (Registrar) and the Ministry of Natural Resources and Environment. That civil claim became the subject of a strike-out motion by the Attorney General on the ground that it discloses no reasonable cause of action. In my judgment in Chang Tung v Attorney General [2005] WSSC 24, I upheld the Attorney General’s strike-out motion and struck out the applicant’s claim. I also expressed the tentative view in that judgment that perhaps what the applicant should have done was not to bring a civil claim for damages but to move for judicial review of the exercise by the Registrar of his powers to deal with the land register under ss.30 and 31 of the Land Registration Act 1992/1993 which was the applicable legislation at the time. As a consequence of that tentative suggestion, the applicant, who is now represented by different counsel, brought his motion for judicial review which is the subject of these proceedings.

Background

3. In 2002, the applicant bought “land” at Fugalei from one Theresa McCarthy of Fugalei as vendor. The “land” is about four acres in area. It is all under seawater at high tide so that anyone who inspects the “land” at high tide would think that it is part of the sea that the applicant had bought from Ms McCarthy. At low tide a small part of the “land” near the mangroves is exposed as soft mud flats; the rest of the “land” remains under seawater.
4. The transaction between the applicant and Ms McCarthy was completed by deed of conveyance 12495^c executed on 7 November 2002 after the solicitors for the applicant had carried out a search of the land register. The deed of conveyance 12495^c was registered on 3 December 2002. The legal description of the “land” is shown on the deed of conveyance as follows:

“All that piece or parcel of land containing an area of one point six two naught four hectares 1.6204ha (4a.0r.00.6p) more or less situated at Fugalei near Apia in the District of Tuamasaga described as parcel 627 being part of parcels 519, 581, 450 and part of Court Grant 909 Flur IV Upolu and part of the land registered in VOLUME 31 FOLIO 318 of the Land Register of Samoa as the same is more particularly delineated on Plan 6896 deposited in the Office of the Director of Lands, Apia”

5. As it appears from the above legal description, parcel 627 conveyed by Ms McCarthy to the applicant comprised of the following lands: (a) part of parcels 519, 581, 450; (b) part of Court Grant 909 Flur IV Upolu; and (c) part of the land registered in VOLUME 31 FOLIO 318.
6. To finance his purchase of the “land” purported to be parcel 627, the applicant obtained two bank loans using the said land as mortgage security. It seems the said deed of conveyance had already been registered by this time before the mortgage security was finalised. While the mortgage documents were with the stamp duty office for the assessment and payment of stamp duty, the applicant was informed by someone that the Registrar had deposited a caveat on the land. The effect of this was to prevent the registration of the applicant’s mortgages or any other dealing with the land. Subsequently, the Registrar, pursuant to his powers under s.30 of the Land Registration Act 1992/1993, cancelled the registration of the deed of conveyance from Ms McCarthy to the applicant. Section 30 provides:

“The Registrar may upon such evidence as appears to him to be sufficient, subject to any regulations under this Act, correct errors and supply omissions in the land register”.

The reasons for cancellation by the Registrar of the deed of conveyance

7. The Registrar said that he cancelled the registration of the said deed of conveyance because its legal description of the land was incorrect in several respects. This was because prior to registration of the deed, parcel 627 shown in the legal description was not recorded on the land register and in particular was not recorded on the land register as owned by Ms McCarthy. There was therefore no such parcel of land known as parcel 627 which Ms McCarthy could have conveyed to the applicant.
8. Furthermore, the Registrar said that the reference in the legal description of the deed to parcel 627 being part of parcels 519, 581, 450 and part of Court Grant 909 Flur IV Upolu and part of the land registered in VOLUME 31 FOLIO 318 of the land register is incorrect. Firstly, this is because parcel 519 and parcel 450 were coastal reserve and river bank reserve respectively and therefore vested in the Government of Samoa and could not have comprised part of parcel 627 which did not exist on the land register but which Ms McCarthy purported to convey as freehold land to the applicant. As for parcel 581, the Registrar said the scheme plan for parcel 581 is missing from the land registry. Secondly, the Registrar said that in relation to the reference in the legal description to part of Court Grant 909 Flur IV Upolu the non-existent parcel 627 did not comprise any part of the land that was the subject of this Court Grant. Thirdly, the Registrar said that in relation to the reference part of the land registered in VOLUME 31 FOLIO 318 of the land register there is no record of parcel 627 in VOLUME 31 FOLIO 318 of the land register or its continuations. In essence, what the Registrar was saying was that parcel 627 conveyed by deed by Ms McCarthy to the applicant does not exist on the land register so that the registration of the deed was a mistake. In other words, Ms McCarthy was never registered in the land register as the owner of parcel 627 and therefore could not have passed title in that parcel to the applicant. The Registrar therefore cancelled the registration of the deed in order to correct the register. It was not explained in these proceedings how this deed of conveyance got through the land registry office and became registered on the land register.
9. It should, perhaps, be mentioned again that the land claimed to be included in the said parcel 627 is all submerged under seawater at high tide. It is not dry land but open sea. Only a small part of it is exposed as soft wet mud flats at low tide; the rest of it still remains under seawater at low tide. This was emphasised by counsel for the respondent in his written submissions relying on the judgment of this Court in McCarthy v Attorney General [2008] WSSC 9 to show that the land in dispute must be public land and not freehold land.

The applicant’s response to the Registrar of Lands

10. With respect, I have found the evidence given by the surveyor called for the applicant to be quite technical. Much of this evidence is complex. This is not meant to be a criticism of the surveyor as there are some technical surveying terms and measurements which cannot be explained with precision in simple words. To facilitate understanding of the evidence for the applicant, I have decided to approach it in this way.
11. Following my judgment in Chan Tung v Attorney General [2005] WSSC 24 where I upheld the motion by the Attorney General to strike out the civil claim by the present applicant as disclosing no reasonable cause of action, I had to deal with a motion by Ms McCarthy to review the decision of the Registrar of Lands declining approval of the survey plan referred to as “survey plan 6981” prepared by Ms McCarthy’s surveyor. Those proceedings are reported in McCarthy v Attorney General [2008] WSSC 9. The surveyor who gave evidence for Ms McCarthy in those proceedings also gave evidence for the applicant in the present proceedings.
12. It is mentioned in my judgment in McCarthy v Attorney General [2008] WSSC 9, that in 1904 a plan referred to as Flur Plan IV was prepared by a government surveyor which depicts the boundaries of Court Grant 909 and the adjoining lands. That was during the time of the German Administration in Samoa. Flur Plan IV and Court Grant 909 mentioned here are the same as Flur IV and Court Grant 909 mentioned in the legal description of the deed of conveyance 12495^c from Ms McCarthy to the applicant in the present proceedings. Flur Plan IV subdivided Court Grant 909 into parcels 42, 53, 54 and 97/92. This means, parcels 42, 53, 54 and 97/92 were all contained in Court Grant 909. One of the main issues of contention in McCarthy v Attorney General was the total area of Court Grant 909. The Registrar of Lands contended it was 79a.2r.23.6p whilst Ms McCarthy contended it was 112a.0r.26.3p. I preferred the evidence given for the Registrar as opposed to the evidence given for Ms McCarthy regarding the total area of Court Grant 909. I also preferred the evidence given for the Registrar that Ms McCarthy’s share of the land in Court Grant 909 had all been conveyed out so that there was no more land to be conveyed by Ms McCarthy to anyone. This meant the land shown in plan 6981 was not part of Court Grant 909 as claimed by Ms McCarthy. It was not included in Court Grant 909. Thus, the land shown in plan 6981 does not belong to Ms McCarthy and the Registrar was right in declining approval of plan 6981 submitted for approval on Ms McCarthy’s behalf. I was reinforced in this conclusion by the fact that on inspection of the disputed land it is open sea and therefore public land in terms of Articles 101 (4) and 104 of the Constitution. Ms McCarthy’s motion for judicial review of the Registrar’s decision not to approve plan 6981 was accordingly dismissed.
13. It is also shown from my judgment in McCarthy v Attorney General [2008] WSSC 9, paras 14, 15 how the Registrar arrived at the conclusion that the total area of Court Grant 909 was 79a.2r.23.6p and not 112a.0r.26.3p as argued by Ms McCarthy. This was based on sub-divisional and definition survey plans prepared over the years in relation to Flur Plan IV by different surveyors and approved by different Registrars. Those survey plans are plan 2 U/IVI aka plan 20731, plan 3104, plan 4444L and plan 5561. It is plan 5561 which is at the core of the case for the applicant in these proceedings.

Plan 5561 and parcel 627

(a) Submissions and evidence for the applicant

14. As already pointed out in para 12 of this judgment, Court Grant 909 contained parcels 42, 53, 54 and 97/92. It was argued for the applicant that in 1991 a definition survey was carried out of parcel 42 and parcel 53. The resulting plan from that definition survey was plan 5561. On plan 5561, parcel 42 became parcel 464 and parcel 53 became parcel 465. Parcels 464 and 465 were conveyed by the Public Trustee to Ms McCarthy in 1993.
15. Plan 5561 was, however, declared invalid by Court order on 9 September 1996. This was on application by the then Registrar of Lands. Counsel for the applicant submitted that when plan 5561 was declared invalid, parcel 42 on Court Grant 909 (parcel 464 on plan 5561) reverted to its original undefined boundaries on Flur Plan 4A (Flur Plan IV) . Likewise parcel 53 on Court Grant 909 (parcel 465 on plan 5561) reverted to its original undefined boundaries on Flur Plan 4A. In other words when plan 5561 was declared invalid, parcel 464 became parcel 42 again and parcel 465 reverted to parcel 53. So matters were back to what they were before plan 5561.
16. It was also submitted for the applicant that as a further consequence of parcel 5561 being declared invalid, the coastal and river bank reserves shown on parcels 519, 581 and 450 were incorrectly located. The correct location of those reserves are shown on plan 6981 which is a redefinition of parcel 42 following the Court order declaring plan 5561 invalid. But plan 6981 was the plan that the Registrar declined to approve and it became the subject of the motion for judicial review by Ms McCarthy in McCarthy v Attorney General [2008] WSSC9. That motion for judicial review was dismissed. So plan 6981 has remained unapproved by the Registrar.
17. It was further submitted by counsel for the applicant that in 2002, the surveyor for Ms McCarthy carried out a definition survey of the said parcel 42. This survey consisted of a definition of parcels 519, 581 and 450 as well as part of Court Grant 909. The outcome of this definition survey was plan 6896 on which parcel 627 appears. In other words, parcel 627 is made up of the lands that were initially parcels 519, 581 and 450. As already mentioned, parcels 519, 581 and 450 are coastal and river bank reserves. They are therefore vested in the Government.
18. Counsel for the applicant also referred to the evidence given by the surveyor called for the applicant. It is said in that evidence that parcel 627 is outside of parcel 464 but is part of parcel 42 on Flur Plan 4A. It is not clear what is meant here because parcel 42 shown on Flur Plan 4A (Flur Plan IV) became parcel 464 on plan 5661 prepared in 1991. In other words parcel 464 is equivalent to parcel 24. So if parcel 627 lies outside of parcel 464 then it must also lies outside of parcel 42. Parcel 464 and parcel 465 had been conveyed by the Public Trustee to Ms McCarthy in 1993. So when plan 5561 which showed parcels 464 and 465 was declared invalid by Court order in 1996 on the application of the then Registrar, parcels 464 and 465 had already been conveyed by the Public Trustee to Ms McCarthy in 1993.
19. The surveyor called for the applicant was also critical of the area given to parcel 464. In his opinion that area is incorrect. I should point out here that Flur Plan 4A (Flur Plan IV) subdivided Court Grant 909 into parcels 42, 53, 54 and 97/92. Parcel 42 became parcel 464 in plan 5561. The total area of Court Grant 909 was one of the central issues in McCarthy v Attorney General [2008] WSSC 9. The surveyor who gave evidence for the applicant in these proceedings was also the same surveyor who gave evidence for Ms McCarthy in McCarthy v Attorney General. In McCarthy v Attorney General I preferred the evidence given for the Registrar as to the total area of Court Grant 909 as opposed to the evidence given for Ms McCarthy. Thus, the issue about area has already been determined in McCarthy v Attorney General.
20. It was then said by the surveyor for the applicant that parcel 627 shown on plan 6869 as mentioned in the legal description of the deed of conveyance 12495^c is within parcel 42. Therefore there was no need to register parcel 627 to Ms McCarthy since parcel is included in parcel 42 on Flur Plan 4A. I regret I do not follow this evidence. If there was no need to register parcel 627 then that means parcel 627 has never appeared on the land register. It was therefore no surprise that the Registrar took the view that the legal description in the deed of conveyance from Ms McCarthy to the applicant was incorrect. Secondly, if parcel 627 is outside parcel 464 then it must also be outside parcel 42 because parcel 464 and parcel 42 refer to the same land.
21. It was then submitted by counsel for the applicant that the surveyor for the applicant in his evidence was able to show on plan 6981 where parcel 627 lies. Counsel or the applicant did not appear in McCarthy v Attorney General [2008] WSSC 9. She is therefore not aware that in those proceedings the motion by Ms McCarthy to review the Registrar’s refusal to approve plan 6981 was dismissed. So plan 6981 is an unapproved plan and carries no weight in these proceedings.

(b) Evidence for the Registrar of Lands

22. The oral and affidavit evidence given by the Registrar was based on the relevant entries in the land registry, plans and other documents in the land registry. In so far as the Registrar’s evidence relates to plan 5561 and parcel 627, it shows that all the land in parcel 464 and parcel 465 had been conveyed by the Public Trustee to Ms McCarthy in 1993. Parcel 464 contained an area of 40a.3r.10p and parcel 465 contained an area of 13a.2r.30p.
23. Furthermore, the Registrar explained in some detail that parcel 627 does not form part of parcel 464 contrary to what was claimed for the applicant that parcel 627 is inside parcel 464. The Registrar said that prior to the conveyance from McCarthy to the present applicant, there is no record in Volume 31 Folio 310 or its subsequent continuations that refers to a subdivision of parcel 464 relating to parcel 627 or scheme plan 6896 as provided in the deed of conveyance 12495^c from Ms McCarthy to the applicant. Consequently, prior to the said deed of conveyance there is no record in Volume 31 Folio 310 connecting parcel 464 to parcel 627. The land registry also holds no scheme plan denoting a subdivision of parcel 464 that includes parcel 627.
24. In addition, parcel 627 is claimed for the applicant to comprise parcels 519, 581 and 450 but parcel 519 is a coastal reserve and parcel 450 is a river bank reserve. Parcel 519 is delineated in scheme plan 6285 dated September 1994 and approved on 30 January 1998 and marked ‘Coastal reserve’. Parcel 450 is delineated in scheme plan dated June 1995 and approved on 7 July 1995 and marked ‘River Bank reserve’. Parcel 581 is purportedly delineated in scheme plan 6253 but this scheme plan is missing from the land registry.
25. So when the deed of conveyance from Ms McCarthy to the applicant was executed on 7 November and erroneously registered on 3 December 2002 showing parcel 627 as comprising in part of parcels 519, 581 and 450, those parcels were still reserves vested in the Government. And parcel 627 has never before been registered and therefore does not appear on the land register.
26. Evidently, the main difference between the Registrar and the surveyor called for the applicant is that the surveyor for the applicant is of the opinion that parcel 627 is inside parcel 464 but the Registrar takes the view that parcel 627 if it exists is outside parcel 464.

Grounds of the motion for review

27. The grounds of the applicant’s motion for review may be stated as follows:-

(a) The Registrar has no power under s.30 of the Land Registration Act 1992/1993 to cancel or de-register deed of conveyance 12495^c from Ms McCarthy to the applicant;

(b) The Registrar in cancelling deed of conveyance 12495^c took into account irrelevant considerations or failed to take into account relevant considerations;

(c) The Registrar in cancelling deed of conveyance 1249^c acted irrationally or unreasonably; and

(d) The Registrar in cancelling deed of conveyance 12495^c without seeking directions from the Court pursuant to s.31 of the Land Registration Act 1992/1993 acted with procedural impropriety.

28. The last ground of the motion of review that as a result of the Registrar’s action in cancelling deed of conveyance 12495c the applicant has suffered substantial prejudice is not a recognised ground of judicial review. Prejudice suffered by an individual as a result of an official decision may provide the basis for standing (locus standi) to bring review proceedings of that decision but it is not a ground of review.
29. The current grounds of judicial review have been classified into illegality, procedural propriety (or procedural fairness), and irrationality (or unreasonableness). This classification was introduced into Samoan law in Keil v Land Board [2000] WSSC 41 from Lord Diplock’s judgment in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410-411. This classification of the grounds of review into illegality, procedural property, and irrationality has been applied in a number of subsequent cases by the Samoan Courts, for example, Pouniu v Land Titles Investigation Commission [2003] WSSC 5; Keil v Minister of Natural Resources and Environment [2003] WSSC 54; Tiatia v Attorney General [2004] WSSC 25; Lokeni – Lepa v Public Service Commission [2006] WSSC 14; Ainuu v Land and Titles Court [2011] WSSC 36; Penaia v Land and Titles Court [2011] WSSC 4; Penaia v President of Land and Titles Court [2012] WSSC 39. A fourth possible ground of review mentioned by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410 is “proportionality” but this has not arisen in any Samoan case so that the Samoan Courts have not had to consider whether to accept “proportionality” as a ground of review.
30. Grounds (a) and (b) of the applicant’s motion as set out in para 27 above will be considered under illegality; ground (c) will be considered under irrationality or unreasonableness; and ground (d) will be considered under procedural propriety or procedural fairness.

Discussion of the applicant’s grounds of review

(a) Illegality

31. It was submitted for the applicant that the Registrar has no power under s.30 of the Land and Titles Investigation Act 1992/1993 to do what he did which was to cancel the registration of deed of conveyance 12495^c from Ms McCarthy to the applicant. Thus, the action by the Registrar was illegal as he acted without power or authority. In Keil v Land Board [2000] WSSC 41 and Keil v Minister of Natural Resources and Environment [2003] WSSC 54, this Court adopted a passage from Judicial Review of Administrative Action (1995) 5th ed by de Smith, Woolf and Jewell at para 6-001 where it is stated that an administrative decision is illegal if it contravenes or exceeds the terms of the power which authorises the making of the decision or pursues an objective other than that for which the power to make the decision was conferred. The applicant is effectively claiming that the Registrar exceeded his powers under s.30 of the Act.
32. As already cited in para 6 of this judgment, section 30 provides:

“The Registrar may upon such evidence as appears to him to be sufficient, subject to any regulations under this Act, correct errors and supply omissions in the Land Register”.

33. In dealing with ground (a) of the applicant’s motion, it is important to bear in mind that the system of registration which was applicable at the relevant time was the deeds system of registration of title. This system of registration was first established under the Samoa Land Registration Order 1920 (NZ) which contained no provision giving the Registrar power to correct the land register.
34. The Land Registration Act 1992/1993 repealed the Samoa Land Registration Order 1920 but continued the deeds system of registration. Section 30 of the Act was a new provision giving power to the Registrar to correct errors and supply omissions in the land register. When deed of conveyance 12495^c from Ms McCarthy to the applicant was executed on 7 November 2002 and registered on 3 December 2002, the deeds system of registration was still in force.
35. The Land Registration Act 1992/1993 and the deeds system of registration were repealed by the Land Titles Registration Act 2008 which established the Torrens system of registration and introduced concept of “indefeasibility of title”. The essential difference between the two systems of registration is that the deeds system is a system of registration of title whereas the Torrens system is a system of title by registration: Vaosa v Attorney General [2000] WSSC 23 per Wilson J.
36. For present purposes, the material differences between the deed’s system of registration and the Torrens system of registration are stated in Land Law in New Zealand (2003) by Hinde McMorland & Sim vol 1, para 8.009 as follows:

“The fundamental differences between the Deeds system and Torrens system may be summarised as follows:

“(1) The Deeds system is nothing more than a method of registering instruments which affect the title to land. Under the Torrens system it is the title itself that is required by registration”.

“(2) Under the Deeds system, the legal estate in the land passes on the execution and delivery of the deed. Under the Torrens system, the registered estate (which for many purposes may be regarded as equivalent to the legal estate) does not pas until the instrument is registered. Under the Deeds system, the legal estate passes by an act of the parties; under the Torrens system, it passes by an act of the State”.

“(3) Except in so far as registration under the Deeds system affected priorities, a deed did not acquire any additional effectiveness or validity when it was registered. The title to the land depended upon the deeds themselves, not upon registration. Thus the registration of a void deed had no effect on the title. Under the New Zealand Torrens statute (the Land Transfer Act 1952), however, the registration without fraud of a void instrument is effective to vest and to divest title and to protect the registered proprietor against adverse claims”

37. In my opinion, the basic differences between the deeds system and the Torrens system are relevant to the construction to be given to s.30 of the Land Registration Act 1992/1993 because the power under that provision to correct errors and supply omissions in the land register was given to the Registrar in the context of the deeds system. This is different from the context of the Torrens system under which powers to correct the land register are given to the Registrar under ss.80 and 81 of the Land Transfer Act 1952 (NZ). Central to the Torrens system is the concept of indefeasibility of title created by the registration of an instrument of title. This is to be borne in mind when reacting New Zealand authorities on the powers of the Registrar to correct the land register.
38. For the purposes of this case, I refer to Housing Corporation of New Zealand v Maori Trustee [1988] 2 NZLR 662, 680-699 where McGechan J traced the legislative history of the Registrar’s powers of correction under s.81 of the Land Transfer Act 1952. His Honour also referred to the differing judicial opinions over the years on the scope of the Registrar’s powers of correction. In particular, McGechan J at 12690 referred to Frazer v Walker [1967] NZLR 1069; [1967] 1 AC569 where Lord Wilberforce said at p.1079:

“The second observation relates to the power of the Registrar to correct entries under ss.80 and 81. It has already been pointed out (as was made clear in Assets Co case by the Board) that this power is quite distinct from the power of the Court to order cancellation of entries under s.85... The powers of the Registrar under s.81 are significant and extensive (see Assets Co case)... As well as in the case of fraud, where any grant, certificate, instrument, entry or endorsement has been wrongfully obtained or wrongfully retained, the Registrar has power of cancellation and correction”

39. At p.691of his judgment, McGechan J goes on to say:

“At this stage, taking the decision [in Frazer v Walker] on its face value, I think there is no escape from the conclusion that a ‘significant and extensive’ power in the District Land Registrar to correct and cancel entries in the register was recognised and affirmed by the Privy Council”.

40. At p.699, McGechan J says:

“It was an important factor in the Privy Council’s decision [Frazer v Walker] that s.81 Registrar’s corrective powers were ‘significant and extensive’. Section 81 therefore is to be interpreted so as to be available in a ‘significant and extensive’ way”.

41. McGechan J then expressed his views about giving ‘significant and extensive’ powers of correction to the Registrar by saying at p.699:

“I see no escape from the conclusion that s.81 is alive and well, however unwelcome, and applies where the person obtaining registration does so in a manner which is ‘wrongful’ in sense that it infringes the legal rights of another. While immediate indefeasibility may bar the citizen, and indeed even in this Court, it will not in such situations bar the Registrar.

“However, while that may represent the law, it does not represent present realities and modes of thinking. It is well established in New Zealand that, whatever his powers may be, the Registrar does not act of his own volition under s.81. If a person has been wronged by a registration, the invariable practice has been to require that person to take Court proceedings, following which the Registrar will then as a matter of discretion and implement the result. The Registrar has not despite Frazer v Walker and the passage of a generation, himself as a matter of general practice invalidated registrations under his own powers, whether arising under indefeasibility exceptions in ss.62 and 63, or going beyond those exceptions. There are a number of reasons. He does not have the resources. Traditionally, it is not regarded as his function. An activist Registrar would be looked upon severely askance. Doubtless also general uncertainty as to the extent of his powers has contributed”.

42. It seems from the discussion in Housing Corporation of New Zealand v Maori Trustee [1988] 2 NZLR 662 that the concern about giving extensive powers to the Registrar to correct the register is that it could undermine the concept of indefeasibility of title which is central to the Torrens system. That, of course, does not apply to the deeds system where title depends on the deed and not upon registration.
43. From what has been said in paras 31-42 of this judgment, I am of the view that s.30 of the Land Registration Act 1992/1993 should be given a literal interpretation. That means the Registrar did in fact have power to “correct errors and supply omissions in the land register”. The power to “correct errors in the land register” must necessarily include the power to cancel a registered deed of conveyance which contains an erroneous legal description as it is in this case. I am reinforced in this view by the words of s.3(2) (a) of the Act which provides:

“It shall be the duty of the Registrar to keep and maintain the land register”.

44. It follows that the Registrar had the power under s.30 to cancel deed of conveyance 12495^c from Ms McCarthy to the applicant. The Registrar therefore did not act illegally. Ground (a) of the motion for review is therefore dismissed.
45. As for ground (b) of the applicant’s motion for review, namely, that the Registrar took into account irrelevant considerations or failed to take into account relevant considerations, it is not clear from the submissions for the applicant what were the irrelevant considerations that the Registrar took into account or the relevant considerations that he failed to take into account. As already mentioned in paras 7-9 of this judgment, the Registrar said that he cancelled the registration of deed of conveyance 12495^c because the legal description in the deed was incorrect in several respects. Firstly, parcel 627 shown in the legal description does not exist on the register. No such parcel was recorded on the register and in particular no such parcel was recorded on the register as owned by Ms McCarthy. Thus, there was no parcel 627 which Ms McCarthy could have conveyed to the applicant. Secondly, parcel 519 and parcel 450 mentioned in the legal description of the deed as forming part of parcel 627 were coastal reserve and river bank reserve respectively and therefore belonged to the Government and not to Ms McCarthy. Thirdly, the non-existent parcel 627 did not comprise any part of Court Grant 909 Flur IV Upolu as mentioned in the legal description. And fourthly, there is no record of parcel 627 in Volume 31 Folio 318 of the register or its continuations but the legal description mentions parcel 627 as being part of Volume 31 Folio 318 of the register. Furthermore, the land said to comprise parcel 627 is part of the sea and therefore is public land and not freehold or private land. The land is under seawater at high tide and only part of it near the mangroves is exposed as soft wet mud flats at low tide.
46. In my view, the factors which the Registrar took into account in arriving at his decision to cancel deed 12495^c were very relevant considerations; they were not irrelevant considerations.
47. As for the relevant considerations said by the applicant not to have been taken into account, it would appear, from the submissions for the applicant that a relevant consideration which the Registrar failed to take into account was the cancellation of plan 5561 by Court order in 1996 and its possible consequences. With respect, this is not correct. The Registrar did take into account plan 5561 and its cancellation. Paras 9-18 of the Registrar’s supplementary affidavit show that the Registrar gave careful consideration to the cancellation of parcel 5561 and its possible consequences. The relevant paragraphs of that affidavit are quoted in para 71 p.16 of the written submissions by counsel for the Registrar. According to the Registrar in his supplementary affidavit, plan 5561 was cancelled because of a dispute which related to the boundary between parcel 52 and parcel 53 delineated on parcel 5561. Save for this boundary, plan 5561 was correct in its totality. The Registrar further says that if the boundaries of parcel 52 and parcel 53 are to be adjusted that will not reduce the total area shown on plan 5561 by a substantial amount.
48. The ground of failing to take into account a relevant consideration means what it says, that is, a decision-maker has failed to take into account a consideration that is relevant. Here, the Registrar did take into account the cancellation of plan 5561. But it did not change his decision to cancel the deed of conveyance. Ground (b) of the applicant’s motion for review is therefore also dismissed.
49. Before leaving this ground of review of taking into account irrelevant considerations or failing to take into account relevant considerations, I wish to refer to Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] 40 where Mason J (as he then was) said at para 15 (c):

“Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the Court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision... A similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision”.

50. In Amoa v Land and Titles Court [2011] WSSC 89 , para 39, this Court said:

“The ground of the alleged failure of the LTC to take into account relevant considerations and the alleged taking into account of irrelevant considerations would come under the modern ground of illegality. As already mentioned, the concept of error of law includes illegality, procedural fairness (or procedural propriety) and irrationality (or unreasonableness) as grounds of review. For a decision to be set aside for any error of law, the error of law has to be material in the sense that it affects the outcome of the decision. If the error of law is not material to the outcome of decision, the Court in the exercise of its discretion may refuse to grant a remedy”.

(b) Irrationality or unreasonableness

51. In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410, Lord Diplock explained irrationality as a ground of review by saying:

“By irrationality I mean what can by now be succinctly referred to as ‘Wednesbury unreasonableness’...It applies to a decision which is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it”.

52. This approach to irrationality is further stated in Constitutional and Administrative Law in New Zealand (2001) p. 832, 2nd ed by PA Joseph in a passage which I cited in Lokeni-Lepa v Public Service Commission [2006] WSSC 14. It is there stated:

“Wednesbury unreasonableness equates with senselessness. Lord Diplock said a decision is irrational if it is ‘so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it’. A plaintiff had to show ‘something overwhelming. In local authority rating cases, the Court of Appeal has adopted the full range of expressions for Wednesbury unreasonableness: ‘outside the limits of reason’, ‘so outrageous in its defiance of logic or of accepted moral standards’, ‘a pattern of perversity’, and ‘so absurd that he must have taken leave of his senses’. For the House of Lords, Lord Diplocks’ requirement of senselessness was a ‘fundamental limitation’ on the power of judicial review.

“The Courts typically employ Wednesbury principles when reviewing the decision of government Ministers, elected councils, or commercial organizations, or where the impugned decision is pre-eminently about policy or involves political or subjective evaluation”.

53. Any decision which meets the Wednesbury principles would undoubtedly be irrational. However, as pointed out in Amoa v Land and Titles Court [2011] WSSC 89, paras 40-42, the English Court have lowered the threshold test for review on the ground of irrationality. This has been from Wednesbury unreasonableness which equates with senselessness to lesser examples of irrationality which would include ‘an absence of logical connection between the evidence and the ostensible reasons for the decision, where the reasons display no adequate justification for the decision, or where there is absence of evidence in support of the decision’: Judicial Review of Administrative Action (1995) 5th by de Smith, Woolf and Jowell 13-019, p.559. This English development has been followed in New Zealand: Constitutional and Administrative Law in New Zealand (2001) 2nd ed by PA Joseph 22.3.2, p.836.
54. Applying the traditional Wednesbury principles which equate with senselessness to this case, it is impossible to say that the Registrar’s action in cancelling the registration of deed of conveyance 12495^c was senseless. The Registrar had good grounds in support of the action he took. Even if the lower threshold test for review on the ground of irrationality is applied, it is still not possible to say that the Registrar acted irrationally. It cannot be said that there was an absence of logical connection between the information that was before the Registrar and the action that he took in de-registering the deed, or that the reasons for the Registrar’s action show no adequate justification, or that there was no evidence in support of the Registrar’s action. The question is not whether the Registrar’s decision or action was right or correct. The real question is whether the Registrar’s action was irrational or unreasonable.
55. The Registrar had explained his reasons for cancelling the registration of the deed. He had also taken into account the cancellation of plan 5561 and why that cancellation did not change his decision to de-register the deed. There was also sufficient information before the Registrar to make him decide to de-register the deed. It follows that the Registrar did not act irrationally.
56. This ground of the motion for review is therefore also dismissed.

(c) Procedural propriety of procedural fairness

57. The last ground of the motion review that the Registrar acted without procedural propriety when he cancelled the registration of the deed without seeking directions from the Court pursuant to s.31 of the Land Registration Act 1992/1993 is based on the view that the Registrar had no power under s.30 to cancel the registration of the deed. It was submitted for the applicant that the power of the Registrar under s.30 to correct errors in the register related only to clerical errors and omissions. I think this was the view held by some lawyers during my law school days with counsel for the applicant in relation to the Registrar’s powers of correction under ss.80 and 81 of the Land Transfer Act 1952 (NZ) which is Torrens system legislation. As it is shown from the judgment of McGechan J in Housing Corporation of New Zealand v Maori Trustee [1988] 2 NZLR 662 that is not the law in New Zealand. Whether Samoa will follow the Frazer v Walker interpretation of s.81, now that we have a Torrens system of our own, is a question to be decided in a future case.
58. I have already explained why the Registrar did in fact have the power under s.30 of the Land Registration Act 1992/1993 to correct the register. The Registrar therefore did not have to seek directions from the Court in this case pursuant to s.31.

Conclusion

59. The applicant’s motion for judicial review is dismissed.
    
60. Counsel to file memorandum as to costs by 6 November 2012.
    

CHIEF JUSTICE

Solicitor

Drake and Co Law Firm for applicant

Attorney General’s Office, Apia, for respondent