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Custodian of Expropriated Property v Director of District Administration (re Wangaramut) (No 1) [1969-70] PNGLR 133 (2 June 1969)

Papua New Guinea Law Reports - 1969-70

[1969-70] PNGLR 133 - Custodian of Expropriated Property v Director of District Administration (re Wangaramut) [No.1]

[1969-70] PNGLR 133

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

CUSTODIAN OF EXPROPRIATED PROPERTY

V.

DIRECTOR OF DISTRICT ADMINISTRATION (RE WANGARAMUT.) [NO. 1]

Rabaul & Port Moresby

Clarkson J

21-24 April 1969

2 June 1969

REAL PROPERTY - Restoration of titles - Appeal from Land Titles Commission to Supreme Court - Jurisdiction of Supreme Court to review Commission’s findings of fact - Presumption of regularity in procedure leading to registration of certificate of title - Evidentiary effect of entry in Ground Book showing cancellation of encumbrance in favour of natives - Lands Registration Ordinance 1924-1962, s. 26(4)[cxcv]¹ - New Guinea Land Titles Restoration Ordinance 1951-1963, ss. 9[cxcvi]², 38[cxcvii]³, 38a[cxcviii]⁴, 49[cxcix]⁵, 67(3)[cc]⁶.

The Supreme Court upon the hearing of an appeal under the New Guinea Land Titles Restoration Ordinance 1951-1963, ss. 38 and 38a, from the Land Titles Commission has no power to receive fresh evidence.

On such an appeal the Chief Commissioner’s findings of fact should be reviewed as if he were a judge or other person acting judicially and sitting alone.

Balenzuela v. De Gail [1959] HCA 1; (1959), 101 C.L.R. 226; Paterson v. Paterson [1953] HCA 74; (1953), 89 C.L.R. 212; Benmax v. Austin Motor Co. Ltd., [1955] A.C. 370 and Jones v. Capaldi [1956] HCA 37; (1956), 98 C.L.R. 615, referred to.

In the absence of evidence to the contrary, the registration and issue of a certificate of title under the Lands Registration Ordinance 1924-1962 raise a presumption that the procedures prescribed by the Ordinance for the protecting of native rights were first carried out.

McLean Bros. and Rigg Ltd. v. James Grice [1906] HCA 1; (1906), 4 C.L.R. 835, at p. 856 and Knox County v. Ninth National Bank[1893] USSC 8; , 147 U.S. 91, at p. 97, referred to.

An entry in the Ground Book (which is an “old document” as defined by the New Guinea Land Titles Restoration Ordinance 1951-1963, s. 4) that an encumbrance in favour of natives has been cancelled is prima facie evidence, under s. 49 of that Ordinance, in favour of a claimant for restoration of the unencumbered title who claims, under s. 9 of that Ordinance, to have been a person in fact so registered.

Opinion expressed that a claim made under s. 67(3) of that Ordinance must be tested under the repealed sections (including s. 26(4)) of the Lands Registration Ordinance, and that such an entry in the Ground Book would not assist a claimant under s. 67(3).

Appeals from Land Titles Commission.

Upon claims made by the Custodian of Expropriated Property (the first appellant) and Island Estates Limited (the second appellant) made in 1952, under the New Guinea Land Titles Restoration Ordinance 1951, as then amended, on 23rd July, 1965 the Land Titles Commission made final orders holding that each of the appellants had been registered at the relevant date as owners of an estate in fee simple in certain land, known as the Wangaramut Plantation, situated in the Gazelle Peninsula, and that that estate was subject to three encumbrances, the third of which gave to natives a right of permanent, free and undisturbed dwelling and user.

Against these orders the appellants appealed, and the decision of the Land Titles Commission, the relevant facts and the grounds of appeal and arguments of counsel appear sufficiently from the judgment hereunder.

Counsel:

Kearney and Bredmeyer, for the first appellant.

Gledhill, for the second appellant.

Ley, for the respondent.

Cur. adv. vult.

2 June 1969

CLARKSON J:  These are two appeals against a final order of the Land Titles Commission, under the New Guinea Land Titles Restoration Ordinance 1951-1968, made on 23rd July, 1965. The proceedings were initiated by claims under that Ordinance in 1952 by the present appellants that the first appellant had been registered as at the appointed date as owner of a freehold interest in certain land in the Gazelle Peninsula which his been referred to as Wangaramut Plantation.

The final order of the Commission upheld the claim but found also that the land was the subject of three encumbrances, the third of which gave to natives the right to exercise over most of the land the permanent, free and undisturbed right of dwelling and user.

To understand the issues involved on this appeal it is necessary to refer briefly to the history of land registration in New Guinea. A system of registration was introduced by the German Administration in New Guinea during the latter part of the last century and before the granting of any charter by the Imperial German Government to the New Guinea Company in 1885. An informative and valuable statement of the law relating to the acquisition of native land under the German and Australian Administrations occurs in the judgment of Sir Beaumont Phillips in In re Mortlock Islands[cci]⁷ . A useful extract from that judgment has been published in Brown, Fashion of Law in New Guinea, pp. 237-248.

I might add that the judgments of Sir Beaumont Phillips relating to land law under the German Administration of New Guinea now have an even greater value than at the time of their delivery because the volumes containing the relevant German law and translations which he used were held in the Court library at Rabaul and suffered the same fate as the registers, the subject of this legislation.

The law as it existed at the relevant time in relation to the acquisition of land is set out in the decision of Sir Beaumont Phillips in In re Mortlock Islands at pp. 22-24 as follows:

“In the New Guinea Company Charter of 17th May, 1885, (see German Colonial Legislation, Vol. I, p. 434), the Imperial German Government had granted the Company, in consideration (inter alia) of the Company’s obligation to establish and maintain an administration and bear the costs of an adequate legal system, permission to exercise certain sovereign rights and the exclusive right to take possession of ownerless land in the Colony and to dispose of it and to conclude contracts with Natives concerning land and rights over land—all this under the supervision of the Imperial Government which undertook to issue the necessary regulations for the protection of existing duly acquired rights to land and for the protection of Natives. The Company’s later Charter of 13th December, 1886, was virtually an extension of the earlier one to include the northern Solomons zone within the territory of the Company (see “German Colonial Legislation”; Vol. I, p. 436).

“In both of the Charters granted to the New Guinea Company the Imperial Government confirmed its assumption of sovereignty over New Guinea territory. From the text of those documents it is clear that the German Government took the view that the Natives of New Guinea had disposable rights in land, because the Government not only gave the Company the exclusive right to negotiate with the Natives in regard to such rights but also undertook to introduce legislation to protect land rights that had already been acquired and duly acquired from Natives.

“The manner in which the Imperial Government proposed to protect such duly acquired rights was disclosed in the Imperial Ordinance of 20th July, 1887 (which came into force on 1st October of that year), concerning the acquisition and charging of land in the Colony of the New Guinea Company (see German Colonial Legislation, Vol. I, p. 469). By s. 1 of that Ordinance, the acquisition of ownership of property in the Colony was (subject to the Ordinance) to be governed by the provisions of Prussian law, and in particular by the Prussian Statute of 5th May, 1872, concerning the acquisition and charging of landed property. By s. 3, however, the Prussian Ground Book Statute of 1872 was not to apply to the Colony but, in lieu thereof, local Ground Book Regulations were to be issued by the Imperial Chancellor after consultation with the Directorate of the New Guinea Company. The foregoing provisions did not, however, apply to the acquisition of ownerless land or to Native land in the Colony (see s. 4) because the occupation of ownerless land and the acquisition of land by agreement with Natives were in future to be exclusively reserved for the New Guinea Company and were to be effected in accordance with the principles of procedure to be prescribed by that Company with the sanction of the Imperial Chancellor: (s. 5). The only other persons who could derive rights from the occupation of ownerless land or from agreements with Natives were those persons who claimed to have duly acquired such rights before 21st May, 1885 (in the case of the mainland of New Guinea and the Bismarck Archipelago) or before 28th October, 1886 (in the case of the Solomons): (ss. 6-9). As to any claims that rights had been acquired by agreement with Natives, it was necessary that an agreement showing the intention to cede and to acquire the land should have been made, and possession given, before 21st May, 1885 (or, in the Solomons, 28th October, 1886), and further, that such possession should not have been relinquished or otherwise lost: (s. 7). By s. 10, claimants had to apply for the entry in the Ground Book of the properties they claimed to own and their application had to be lodged by 1st March, 1888, at the latest, otherwise their claims became legally null and void: This provision, however, did not apply to claims to ownership already entered in the “Ground Book or Register of Acquisitions” compiled by the Imperial Commissioner before the coming into force of the Ordinance. The entry of these claims in the Ground Book was open to objection on the part of the New Guinea Company if its exclusive rights had been infringed (s. 11), but in default of objection by the Company, entry in the Ground Book was to ensue if, on investigation by the Ground Book Authority, the acquisition appeared lawful. That authority was empowered to make relevant inquiries and to issue public notices calling for counterclaims, but he could depart from these rules if applicants had been for at least three years in undisturbed possession of the land claimed (s. 11). In s. 13, it was laid down that the provisions of the Ordinance should not prevent the promulgation of regulations entailing the limitation of ownership for the protection of Natives or in the public interest.

“Thus the Ordinance of 1887 placed special limitations upon the acquisition of land from Natives. The New Guinea Company and those other persons who had duly acquired land from Natives before fixed dates got a measure of protection.”

The first record of the land in dispute occurs in an extract from the German Ground Book which shows that the land was transferred to the New Guinea Company on 10th April, 1886 pursuant to a conveyance dated 22nd December, 1884. It was therefore acquired by the company before the charter of 17th May, 1885 was granted to it.

On 20th February, 1900 the land was registered in vol. 2 folio 102 of the Ground Book when a substantial encumbrance in favour of natives was recorded. Thereafter three areas described as reserves were excised from the land and in 1904 the encumbrance was cancelled.

I am informed by counsel and accept that the “Ground Book or Register of Acquisitions”, compiled by the Imperial Commissioner before the coming into force of the Imperial Ordinance of 20th July, 1887, is the register referred to in the extract from the Ground Book as Von Oertzen’s Register. Its only relevance here is to show that if registration in the Ground Book of the land the subject of these appeals was not sought before 1st March, 1888 the failure to do so is explained by the second part of s. 10 of the 1887 Ordinance.

Again to quote from In re Mortlock Islands at p. 27:

“On 21st November, 1902, an Imperial Ordinance was promulgated concerning land and rights over land in the German Colonies, and came into force on 1st April, 1903 (see Collected Laws . . . etc. of German New Guinea, p. 133). By s. 1 of that Ordinance, the law referred to in s. 19 of the Consular Jurisdiction Statute of April 1900, was, subject to the Ordinance, made applicable in the Colonies. In this way, e.g. (and in so far as they were not expressly modified or made inapplicable) the German Civil Code with its Introductory Act and the Imperial Ground Book Ordinance of 24th March, 1897 (printed in Grotefend’s Collected Legislation, 1897, p. 137), became law in New Guinea. Regulations made by the Imperial Chancellor on 30th November, 1902 (under powers given in the Ordinance of 21st of that month) related to Ground Book procedure and also prescribed elaborate rules for the surveys of land (see German Colonial Legislation, Vol. VI, p. 10).”

One further provision which is relevant to the arguments before me is referred to at p. 30, In re Mortlock Islands as follows:

“In another Imperial Ordinance,—The Expropriation Ordinance of 14th February, 1903, it was enacted (s. 32) that, where land had definitely passed from the possession of Natives to that of non-Natives, it might be expropriated in so far as this appeared necessary to the Government to ensure to the Natives the possibility of an economic existence, and, in particular, a home (see German Colonial Legislation, Vol. VII, No. 17, p. 39).”

The law as thus summarized continued, with some amendments, until the Laws Repeal and Adopting Ordinance 1921, s. 4(1) of which provided in effect that the laws in force in the Territory which had been made in the name of the German Emperor or the German Government ceased to have effect from 9th May, 1921.

In the meantime another relevant ordinance, the Expropriation Ordinance 1920, had been passed whereby the land of German nationals was expropriated and vested in the Custodian of Expropriated Property appointed pursuant to Pt. II of the Treaty of Peace Regulations made under the Treaty of Peace (Germany) Act 1919-1920 of the Commonwealth. The property expropriated vested in the Custodian on 10th January, 1920. The Custodian was authorized to appoint a delegate under the Expropriation Ordinance who had power to manage property vested in the Custodian but had no power to dispose of the land.

The next relevant statutory provision is the Lands Registration Ordinance 1924. This provided briefly for a Torrens system of title registration in New Guinea under which the Registrar, using the Ground Book entries as a starting point, issued a draft certificate of title as the first step in bringing land under the Ordinance. Elaborate provisions were made to ensure that the provisions of the draft certificate were brought to the notice of all persons likely to be interested including the Director of Native Affairs, on behalf of natives, who was required to investigate and either certify that he was satisfied there were no native claims or to refer the question of native rights for determination by the Central Court. The Registrar was required to obtain either a certificate from the Director or a determination by the court before proceeding to registration.

This process was interrupted by the Second World War and the register was closed on 11th February, 1942. During the Japanese occupation of New Guinea this register, together with other registers including the Ground Book, and many other documents including duplicate certificates of title held at Rabaul by the Delegate, were destroyed.

The New Guinea Land Titles Restoration Ordinance (which I will refer to as the Restoration Ordinance) came into effect on 1st November, 1951 and was intended to restore the registers, including the Land Titles Register, which had been lost or destroyed. The provisions of this Ordinance and its objects have been considered by the High Court in Custodian of Expropriated Property v. Tedep (the Varzin case)[ccii]⁸ and by this Court in Tolain v. Administration of the Territory of Papua and New Guinea (the Vulcan case)[cciii]⁹ .

The present dispute arises because the Custodian claims that in 1925, after the prescribed inquiries, the disputed land was registered under the Registration Ordinance in his name as owner subject to two encumbrances: the first in common form protecting the Administration’s rights under existing mining legislation, which I call the mining encumbrance, and the second protecting the right of the natives of Rakumkumbar villages to use a waterhole on the property. This I call the waterhole encumbrance.

In considering the evidence before the Commission my starting point is the Ground Book which shows the registration on 20th February, 1900 of the New Guinea Company as owner of the land being 878 hectares 40 ares in extent. It also records that a map and survey record were in the register. An encumbrance was registered on the same day in the following terms:

“(1)    All natives at present residing on property herein described have been granted free usufruct and the right of dwelling on such land as far as is necessary for their own maintenance until definitely adjusted and determined by the Imperial Court at Herbertshohe. Registered on 20th February, 1900 in favour of natives living on properties known as Tambimapina (Tonpimapin), Rarup, Ralimut and Wangaramut (Raramut).”

As will be seen later some significance attaches to the fact that the terms, used in describing the encumbrance, state that further adjustments by the court are to be made.

Then follow the registration of further dealings whereby between 1900 and 10th April, 1904 three reserves totalling 386 hectares 38 ares, comprising over forty per cent. of the total area of the property, were excised and the final dealing registered is the cancellation of the encumbrance on 22nd July, 1904. On the face of the Ground Book therefore, from 1904 onwards the New Guinea Company held the balance of the property, 492 hectares 2 ares, unencumbered.

The Registration Ordinance came into force on 1st June, 1924 and it is obvious that the procedure to bring the subject land under that Ordinance had commenced before October 1925. This procedure entailed the issue by the Registrar of a draft certificate of title prepared pursuant to ss. 19 and 20 of the Ordinance. Section 20(f) which came into force on 27th August, 1925 provided that where there had been vested in the Custodian under the Expropriation Ordinance the property of a person registered in the Ground Book as the owner of any land the Registrar was obliged to enter in the draft certificate the name of the Custodian instead of the person registered in the Ground Book. It was not in issue that the certificate of title which was found to have been issued was in the name of the Custodian by virtue of this provision.

The date on which the draft certificate of title was issued is not established but the notice which the Registrar was obliged to give in the New Guinea Gazette under s. 21(3) of the Registration Ordinance and which was dated 10th October, 1925, appeared in the New Guinea Gazette of 15th October, 1925. This notice showed that the volume and folio number in the Ground Book of the land concerned was Gazelle Peninsula, vol. 2 folio 102, the land was described as Wangaramut Plantation containing 492 hectares 2 ares more or less and under the heading “Name of Owner as Shown in Draft Certificate of Title” appears “The Custodian of Expropriated Property”. Under the heading “Mortgages and Other Encumbrances” appears the following: “Mining Conditions under Parts VI and XI of the Mining Ordinance 1922-1924”, which is the mining encumbrance to which I have referred. The notice further stated that the draft certificate of title might be inspected at the Office of Titles in Rabaul and required caveats from any person objecting to registration in terms of the draft certificate and then proceeds, “if no caveat is received on or before the thirtieth day of November 1925 registration will be proceeded with forthwith in accordance with the provisions of such Ordinance”.

Section 21 and following sections set out the obligations regarding the giving of notices and the making of inquiries imposed on the Registrar and the Director of Native Affairs.

There are no formal records available to show what happened after the gazettal of that notice, although the alleged copy certificate of title on which the Custodian relied in the proceedings before the Commission is dated 1st December, 1925. I will refer later to a suggestion that the Custodian was relying on what purported to be a copy of a draft certificate of title; but clearly, to support the notice gazetted on 15th October, 1925 the draft certificate of title must have carried some earlier date.

The next document in chronological order is a notice gazetted on 15th May, 1926 by the Custodian inviting tenders on the sale of various expropriated properties including Wangaramut.

There is then a gap until 1928. The Custodian’s file which was put in evidence shows that on 19th April in that year the Delegate at Rabaul wrote to the Custodian in Melbourne as follows: “I have to inform you that the Title Certificate for Wangaramut Plantation has been delivered to me. Copy thereof will be forwarded to you as soon as a copy can be made of the plan of the property.” On 14th May, 1928 the Delegate wrote to the Custodian forwarding “copy of Certificate of Title to Wangaramut Plantation”, and the file contains two documents which the Custodian maintained were sent with that letter. The first is the document which purports to be a copy of certificate of title, vol. 1 folio 5, in the name of the Custodian for the land identified on the “next sheet” and known as Wangaramut, and containing 492 hectares 2 ares more or less. This document states the land to have been originally acquired before 1st April, 1889 and to have been registered in the Land Register (Ground Book) of the Colony of German New Guinea, and is said to have been signed and sealed on 1st December, 1925 by the Registrar of Titles. The second document, that is the “next sheet” referred to above, is a plan entitled “Plan of Wangaramut: A tracing of plan of Certificate of Title vol. 1 fol. 5” which purports to be a plan of the area of 492 hectares 2 ares to which I have referred.

The purported copy certificate of title is indorsed with two encumbrances. The first, in favour of the Administration, sets out in detail the mining encumbrance referred to in the notice gazetted on 15th October, 1925. The second is in favour of “the Commissioner of Native Affairs as a Trustee for Natives” and the nature of the encumbrance is described as follows: “the obligation to allow the natives of the Rakumkumbar 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.” The plan to which I have referred although not coloured does in fact identify a road leading to a waterhole in the northern half of the land and the extent of what was the purple edging can be identified thereby.

The Custodian’s file also contains a letter from the Custodian to the Delegate of 18th June, 1928 in the following terms: “Receipt is acknowledged of your memorandum of 14th May 1928 No. LT.176 forwarding copy of Certificate of Title to Wangaramut Plantation.” The Custodian’s file shows that the property was sold on a date which is not specified to one J. Chapman, the predecessor in title to Island Estates Ltd. who purchased the property by a contract executed in or about February 1948.

As previously noted the relevant registers and a number of other documents were destroyed or lost during the Second World War and the passing of the Restoration Ordinance which came into operation on 1st November, 1951 gave rise to the attempts by the Custodian and by Island Estates Ltd. to establish a registered title to the land. Section 9 of that Ordinance provides:

“9.      A person claiming to have been entitled as at the appointed date—

(a)      to an interest in 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),

may make a claim in respect of that interest.”

The “appointed date” for the purposes of the Ordinance was fixed as 10th January, 1952.

The first step in the proceedings leading to this appeal was a claim made to the land by Island Estates Ltd. on 3rd October, 1952. Claims to a number of properties were made by the company on one claim form and several particulars regarding this claim should be noted. The claim form contained a claim not only to Wangaramut but also to another property known as Wunagaramut. The company claimed to be the successor in title to the Custodian and Chapman and alleged that the Wangaramut land was registered in the Register Book as certificate of title vol. 1 folio 5 and photostats of the purported copy certificate of title and plan annexed thereto were filed with the claim. The claim form also refers to negotiations for an exchange of land affecting the western and southern boundaries to which I will refer later.

On 31st October, 1952 the Custodian’s claim was lodged. This also was in relation to a number of properties including both Wangaramut and Wunagaramut. The claim was based on expropriation on 10th January, 1920 and was supported by the purported copy of certificate of title vol. 1 folio 5 and plan.

On 4th December, 1952 a claim was filed by the Director of Native Affairs as trustee that he was entitled to encumbrances against a number of properties. One such claim was to an encumbrance on Wangaramut and was described in the following terms: “The obligation to allow the natives of Rakumkumbar villages to draw water from the waterhole on the said land edged purple with right of ingress and egress for the said purpose over the road delineated and edged purple on the said map—attached Draft Certificate.” No document purporting to be a draft certificate of title was produced to this Court and this reference in the Director’s claim does not appear to have been clarified either before the Land Titles Commission or on the appeal. However, it is clear that as at December 1952 the only formal claim made on behalf of natives in respect to Wangaramut was for what I have described as the waterhole encumbrance, and that it was made in the same terms and presumably by reference to the same plan as the Custodian used in his claim.

On 20th April, 1955 the Commissioner of Titles pursuant to s. 33 of the Restoration Ordinance issued a provisional order by which it was provisionally declared that on the appointed date a registered interest of an estate in fee simple was owned by the Custodian in the land concerned subject to the waterhole encumbrance.

Thereafter there is a long delay until 17th October, 1960. On that date the patrol officer at the sub-district office, Rabaul, wrote to his assistant district officer requesting information from the Commissioner of Titles as to when he intended to issue a provisional order in respect of Wangaramut. The letter then goes on: “the people of Putanagorogoi wish to lodge a claim for a very large portion of this property which they claim was never alienated but was taken from them in the mid-1930’s. Secondly, people of Rakumkumbar wish to lodge a claim over a road that runs through the property. They claim that the road is their only reasonable access to the coast. . . .” It will be noted that only one of the three native groups on behalf of whom the reference was subsequently made is named as a claimant and that the claim of the Rakumkumbar group had changed from the claim in December 1952 for the waterhole encumbrance to a claim for a right of way to the coast. The provisional order had, as already noted, issued some five years earlier.

On 14th May, 1964, Mr. F. D. Jones, then an assistant district officer, prepared a report for the Director of Native Affairs in which the claim as made in the subsequent reference is first formulated in detail. This was followed by the reference dated 2nd June, 1964, which set out claims by the three village groups that the bulk of the land to which the Custodian claimed to have had a registered title had never been alienated.

The hearing of the Custodian’s claim took place in Rabaul in March and July 1965, at the conclusion of which the Commission issued the final order the subject of this appeal.

It will be seen that the Custodian was claiming that in effect the certificate of title had been registered on 1st December, 1925 and that he was under s. 9 of the Restoration Ordinance a person claiming to have been entitled to an interest in land and be registered in the lost register as the owner of that interest. In effect he also claimed that the title related to the area of 492 hectares 2 ares and that the registered encumbrances were, firstly, the mining encumbrance and, secondly, the waterhole encumbrance.

The reference, made on 2nd June, 1964 on behalf of the natives, claimed that approximately 360 hectares being the whole property less a portion at the northern end of it had never been alienated. There was no mention of the waterhole encumbrance claimed by the Director in 1952 nor of the right of way referred to in the patrol officer’s letter of 17th October, 1960.

I should say that this reference does not appear to me to be a complete answer to the claim under the Restoration Ordinance although if established it could have made it less likely that a certificate of title had been registered in 1925 in the form claimed by the Custodian. Nevertheless the hearing before the Commission appears to have proceeded on the basis that in answer to the Custodian’s claim the Director alleged, firstly, that no certificate of title had been registered or, alternatively, if it had been, then it was not in the form contended for by the Custodian.

This initial failure to define clearly the issues led to some confusion at the hearing. Counsel for the Custodian first tendered the evidence on which he relied to establish that a certificate of title had in fact been registered in 1925. This evidence consisted of the Gazette notices, the purported copy certificate of title and plan, and the correspondence on the Custodian’s file. Counsel for the Director, against the objection of counsel for the Custodian, tendered the report of Mr. Jones of 14th May, 1964, and in addition he called several native witnesses to support the claim that a large portion of the land claimed by the Custodian had been acquired by the Custodian’s predecessor in title without any agreement on the part of the natives.

Subsequently counsel for the Custodian asked for a final order which was opposed by counsel for the Director. The Chief Commissioner then made four findings, the effect of which was as follows:

(a)      That a certificate of title had issued to the Custodian in respect of the property between 1925-1928.

(b)      That the copy certificate of title propounded by the Custodian was not a copy of the certificate of title which in fact issued.

(c)      That the certificate of title which issued had substantial encumbrances on it in favour of the Director as trustee for natives.

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

The transcript of what the Commissioner then said is as follows:

“I think what happened was this. Somebody ‘jumped the gun’ with this copy of certificate of title. It was drawn up in anticipation and it appears that somebody was thinking very wishfully, and that between the time that this copy was drawn up and the time the title actually issued, negotiations must have proceeded between the Director and the Custodian, and when these were not granted, certain encumbrances . . . [interruption]. They may deal with it under s. 24(a). I do not know. There is this lag of three years when they did nothing. I note from here that the Custodian when he put in his claim in 1952 in answer to question 19 on the claim form and it says. . . . I cannot see how Mr. Valis can argue now that this is a copy. I am not satisfied that you have placed all of the evidence before me, Mr. Valis.”

As I understand these remarks the Chief Commissioner held that someone in anticipation of a certificate of title being registered under the Lands Registration Ordinance in the form propounded by the Custodian in his claim prepared what it was thought would then be a copy, but that in fact the certificate of title when finally registered contained substantial encumbrances in favour of the natives along the lines of the encumbrance which was removed from the Ground Book in 1904.

A number of objections which I shall deal with later were taken to this passage and the findings immediately preceding it.

I should add a comment regarding the use before the Commission of the relevant extracts from the Ground Book. Although initially counsel for the Custodian stated that he did not rely on those entries all counsel before me on the appeal agreed that they were before the Commission as part of the Custodian’s file and were read by the Commissioner who, as it will be seen from the extracts quoted above, referred to them in his findings.

There were subsequent proceedings when the Commissioner read, but declined to take into account, some further submissions.

The final order issued on 23rd July, 1965 by which the Commission declared it established that on the appointed day 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 of the Territory of Papua and New Guinea and the Director of District Services and Native Affairs as a trustee for natives set forth on the document hereinafter referred to and that the registered proprietor is entitled to be registered as the owner of his interest in the Register Book kept under the provisions of the Lands Registration Ordinance 1924-1962 of the Territory of New Guinea and s. 21 of the New Guinea Land Titles Restoration Ordinance 1951-1963 and that no native customary rights were retained on the appointed date by a native or native community in respect of the land the subject of this Order or any part thereof

AND THE LAND TITLES COMMISSION DOES HEREBY DIRECT

The Director of Lands, Surveys and Mines to cause a survey of the land delineated and edged green on the said map to be made by a licensed surveyor and to supply to the Registrar of Titles (appointed under the provisions of the said Lands Registration Ordinance) the duly signed plan of such survey

AND THE LAND TITLES COMMISSION DOES FURTHER DIRECT

the said Registrar of Titles, on receipt by him of the above-mentioned plan of survey, to bind up in the said Register Book as a folio thereof a true copy of the document annexed to the original of this order and marked with the letter ‘B’ and thereon to complete all necessary endorsements and thereupon to issue to the registered proprietor as the duplicate Certificate of Title of which the folio of the said Register Book constituted in pursuance of this Order is the other duplicate a true copy of the said folio of the Register Book.”

On the document marked “B” occur the mining encumbrance and then the following:

Pursuant to the direction in the final order a plan was prepared showing the northern boundary of the land affected by the encumbrance and the final result was that the Custodian was declared to be entitled to be registered as proprietor of the land but subject to the mining encumbrance, the waterhole encumbrance and the general encumbrance in favour of the three groups of natives over that portion of the land which the natives claimed had never been alienated.

Notice of appeal to this Court was filed under s. 38 of the Land Titles Commission Ordinance. Following the amendment of that ordinance in 1968 and the making of rules relating to appeals from the Commission to this Court, the notice of appeal was amended. In addition various orders were made, aimed principally at completing the record before this Court, and an order was made for the consolidated hearing of the appeals by the Custodian and Island Estates Ltd. These appeals were heard at Rabaul in April 1969.

I have said that the provisions of the relevant legislation referring to appeals from the Commission to the Supreme Court have recently been amended. The provisions of Pt. IV of the Restoration Ordinance originally conferred on a person aggrieved by a final order the right to appeal against that order to the Supreme Court. Section 55 provided that such an appeal should be by way of re-hearing and expressly empowered the court to receive further evidence, and provided that in the hearing and determination of an appeal the court was not bound to observe strict legal procedure nor to apply technical rules of evidence but was empowered to admit and consider such relevant evidence, including hearsay, as was available. See ss. 55(4) and 52.

Section 56 provided that the Supreme Court on the hearing of an appeal might make any order or exercise any jurisdiction, power or authority which the Commission could have made or exercised.

These provisions were repealed in 1963 and thereafter appeals from the Commission to the Supreme Court were governed by s. 38 of the Commission Ordinance. This permitted appeals on the following grounds only: that the Commission had exceeded its jurisdiction, that the hearing had been conducted contrary to natural justice, or that the Commission was wrong in law.

These provisions were extended by amendments in 1968 and it is under these extended provisions that these appeals have been heard. The grounds of appeal were extended to allow an appeal where a decision is against the weight of evidence, and since the Commission is not bound to apply technical rules of evidence and may admit such information as is available (s. 29) “evidence” is for the purpose of appeal given a greatly widened meaning by s. 38(2a), which reads:

“. . . ‘evidence’ means all information, facts, matters and things including hearsay evidence, expressions of opinion and the results 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 decision appealed against 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.”

Section 38a (2) reads:

“(2)    Upon the hearing of the appeal, the Supreme Court shall inquire into the matter and may—

(a)      adjourn the hearing from time to time;

(b)      affirm or quash the decision;

(c)      if the justice of the case so requires, substitute for the decision any decision that might have been given by the Commission; or

(d)      remit the case in whole or in part for hearing or for further hearing before the Commission.”

These provisions explain why much of the material before the Commission and considered on the hearing of these appeals would not ordinarily be admissible as evidence.

During the hearing counsel for the Custodian sought to produce further evidence relating to the agreement of 22nd August, 1903 referred to in the Ground Book entry. The application was opposed and after consideration I rejected it. As I have pointed out s. 53 of the Restoration Ordinance formerly conferred an express power on this Court to receive further evidence on the hearing of an appeal. I have no doubt that on an appeal under the more restrictive provisions of s. 38 of the Commission Ordinance which followed and which did not permit an appeal on the ground that the decision was against the weight of evidence fresh evidence was not admissible, and I have concluded that the amendment to s. 38 and the addition of s. 38a effected in 1968 are not wide enough to restore the power expressly removed in 1963.

Counsel for both appellants went to some pains to maintain that some findings of the Commission were both against the weight of evidence and were wrong in law. Counsel for the second appellant referred to statements in the authorities pointing to a distinction between an application for a new trial on the ground that the verdict was against the evidence and complaints of misdirection in law. In the former a new trial is, within limits, a discretionary remedy, but in the latter there is an error of law which must be assumed to have led to a miscarriage of justice. See for instance Balenzuela v. De Gail[cciv]¹⁰ per Windeyer J., and the cases there cited.

Therefore, it was argued, whilst this Court on appeal might have a discretion whether to interfere with findings which were shown to be only against the weight of evidence the appellants were entitled as of right to a quashing of the final order if an error of law was shown.

In my view this argument is misconceived. The statements relied on by counsel were made in respect to motions for re-trial at common law after the verdict of a jury. Here the powers and duties of this Court in determining this appeal depend principally on the proper construction of statutory provisions including those creating the right of appeal. The distinction drawn in appeals before the 1968 amendments between findings of fact against the weight of evidence and errors of law was necessarily drawn because findings against the weight of evidence would not alone support an appeal.

Counsel for the respondent submitted that this appeal should be dealt with as if it were an appeal against the verdict of a jury, whilst the appellants’ counsel maintained that the Commission’s decision should be reviewed as if it were that of a judge or other person acting judicially and sitting alone. I think the latter view is correct. The Chief Commissioner in this mattter sat alone and on the information before him and the relevant Ordinances reached conclusions of both fact and law which the appellants are entitled to challenge in this Court. The considerations which govern the exercise by an appellate court of its jurisdiction to review findings of fact by a judge have been stated on a number of occasions and I do no more than refer to Paterson v. Paterson[ccv]¹¹, Benmax v. Austin Motor Co. Ltd.[ccvi]¹² and Jones v. Capaldi[ccvii]¹³.

I express no opinion on what principles should be applied if the appeal were from a decision of a Commission which had been reviewed by three Commissioners under Pt. V div. 2 of the Ordinance.

Probably the most important piece of evidence in support of the appellants’ claim was the document which was propounded as a copy of the certificate of title. If it were accepted that the document was what it was claimed to be then a certificate of title had been registered and the only registered encumbrances were what I have referred to as the mining encumbrance and the waterhole encumbrance. In these circumstances it did not matter if the native claims had not been fully recognized in the inquiries which preceded the registration of the certificate of title because, except in the case of fraud, which was not suggested, and subject to the other provisions of s. 68 of the Registration Ordinance the Custodian would have acquired an indefeasible title to the land in 1925.

The entries in the Ground Book were on the Custodian’s case clearly explicable on the basis that the encumbrance in favour of the natives over the whole of the land was removed after satisfactory arrangements had been made for the natives by the creation of the substantial reserves referred to and which the natives have occupied without challenge ever since. But whatever the explanation there is no question that the encumbrance was cancelled. The Custodian was then able to point to Gazette notices which indicated that the process of bringing the land under the Registration Ordinance proceeded at least to the stage where adverse claims were called for. Then follows the correspondence in 1928 between the Custodian and his Delegate which, dishonesty apart, and the respondent’s counsel disclaimed any such suggestion, is only explicable on the basis that a duplicate certificate of title had been issued by the Registrar and copied by the Delegate’s office.

The respondent in his argument on the appeal saw the crux of the case to be whether the decision was against the weight of evidence and maintained that the inferences drawn by the Chief Commissioner were such as could properly be drawn.

The respondent was able to point to a number of deficiencies in the appellants’ case. The draft certificate of title was missing and there was no record or evidence of the proceedings which should have occurred before the waterhole encumbrance could have been properly indorsed on the certificate of title. Also, it was argued, the native evidence showed that the natives had occupied a substantial area of the land until they were driven off in the 1930s. Also, some emphasis was placed on the delay which occurred if the certificate of title was registered on 1st December, 1925 but not issued until 1928.

My attention was drawn to the fact that only about six weeks, from 15th October to 30th November, was allowed for the lodging of caveats and yet the certificate of title was said to have been registered on 1st December with a new encumbrance which must have resulted from some court process.

It was claimed that the encumbrances as found by the Chief Commissioner did in fact closely follow the early encumbrance in the Ground Book and that this encumbrance was expressed to be in force until a court order was made of which there was no evidence.

The respondent maintained, as he was entitled to, that the claimants before the Commission carried the onus of establishing the interest in the land, its nature and extent and that it had been registered.

Having stated these contentions I now turn to the finding and comments of the Chief Commissioner. The passage commencing, “I think what happened was this” and reproduced earlier in these reasons, follows immediately on the four findings recorded earlier and should I think be read as explaining the findings. The transcript it will be noted is incomplete but the clear suggestion is that the document propounded was prepared before any certificate of title had been registered and that the encumbrances as found by the Chief Commissioner were at some stage after 1st December, 1925 recognized and indorsed on the certificate of title. The Chief Commissioner then suggests that some determination might have been made under s. 24a of the Registration Ordinance. The appellants complain, rightly, that this could not have occurred because s. 24a was not added to the Registration Ordinance until 1933.

The Commissioner goes on to suggest, as I read the transcript, that the Custodian’s claim was originally based on a draft certificate of title and that the Custodian was at the hearing endeavouring to bolster his case by claiming the document to be a copy of a certificate of title. He refers to question 19 in the Custodian’s claim of 1952. This entry is as follows:

“Q.     Where is your certificate of title or other instrument evidencing your title to the interest claimed?

A.       Copies of certificates of title are held by the Custodian except for Wunagaramut for which a draft certificate of title only is held.”

The appellant maintains with some force that the Chief Commissioner mistakenly read “Wunagaramut” in the above answer as “Wangaramut” and the importance of this mistake can be appreciated by reference to the findings already made and the relevant provisions of the Ordinance.

The Chief Commissioner had when he made that remark already found that a certificate of title had been issued, so his reference to a draft certificate of title is not relevant to that issue. It could however explain the Chief Commissioner’s suspicion that all the evidence available had not been placed before him and it is highly relevant in the determination of what encumbrances were on the certificate of title which was registered. As I have pointed out the draft certificate of title is issued on the strength merely of the entries in the Ground Book and before any inquiries as to the rights of natives or others commenced. Furthermore in 1925, s. 26(4) of the Registration Ordinance provided that on a reference to the court by summons of any question of native rights cancellation of registration of native rights in the Ground Book was not of itself evidence that those rights did not exist. If the Commissioner thought the document he was looking at to be merely a copy of the draft certificate of title which preceded the registration of the certificate of title he would naturally assess the encumbrances thereon in the light of s. 26(4) and of his assumption that no inquiries had been commenced. If, however, he appreciated that the document was not a copy of a draft certificate of title but of a certificate of title which could only have been registered after the detailed inquiries and safeguards under the Ordinance had been worked out, he would naturally give much greater weight to it as evidence of the encumbrances indorsed on the certificate of title in 1925. Also this error would explain why the Chief Commissioner thought the delay from 1925 to 1928 to be significant. If a draft certificate of title issued in 1925 and no certificate of title was registered until 1928 and no explanation given for the delay, one might well think that the whole story had not been told and that there may well have been other proceedings in that period. On the other hand once a certificate of title had been registered, all proceedings would have been finalized and a delay in issuing the duplicate certificate of title for the same period would not raise the same doubts.

When the application continued before the Chief Commissioner in July 1965 his recollection of what he had previously said was, “I said previously that I was satisfied it was not a copy of a certificate of title but perhaps it was a draft certificate of title”. But this also is difficult to square with the known facts. It is clear from the Gazette notice of 15th October, 1925 that the draft certificate of title did not have indorsed on it the waterhole encumbrance which first appears on the document propounded. Furthermore, as mentioned earlier, the draft certificate of title must have borne a date earlier than 10th October, 1925 while the document under discussion was dated 1st December, 1925.

The position at the stage when the findings were made was that the Chief Commissioner accepted that a certificate of title had been registered in the name of the Custodian but did not accept that the document propounded was a copy of it. To find that a certificate of title had in fact been registered the Chief Commissioner must have accepted the correspondence on the Custodian’s file relating to the receipt of a duplicate certificate of title and the sending of a copy of it to the Custodian. That he did so is clear from his reference in the first finding to Ex. A to which I shall refer later. Since he did that it is difficult to see why he should not also accept the evidence of that file as to the contents of the copy. All folios are accounted for and the folio numbers on the file for this period are consecutive and the purported copy was on the file with other documents in what one would expect to be the correct chronological order and there is no copy of any other certificate of title on the file. Its position on the file would place it as having been put there in 1928.

There are a number of other matters to be noticed: the date—1st December, 1925—is consistent with registration in accordance with the Gazette notice “forthwith” after the 30th November, 1925, and the area and boundaries accord with the Ground Book entries. I note also the encumbrances indorsed on the purported copy. The first is the mining encumbrance foreshadowed by the Gazette notice relating to the draft certificate of title. The second, the waterhole encumbrance, is new. It is interesting to note that this encumbrance in the exact form as it appears in this indorsement is subsequently claimed by the Director in his claim under the Restoration Ordinance of 4th December, 1952.

At first sight it might appear that the fact that the document propounded was dated the day after the last day for the lodging of caveats threw some doubt on its authenticity because at some stage the court should have determined the existence of the waterhole encumbrance. From a perusal of the relevant sections as they were at the time, it appears the Director may have received notice under s. 21 well before 15th October, 1925 and the court proceedings may have been commenced and determined by 1st December, 1925. But it is unnecessary in my view to determine exactly what happened and when. It was not suggested that the procedures to protect native rights, as those procedures existed at the time, could not have been carried out within the timetable as it is known. The position is that the evidence is not sufficient to establish that they were, but there is no evidence that they were not. In these circumstances there is a presumption that they were.

In McLean Bros. & Rigg Ltd. v. James Grice[ccviii]¹⁴, Griffith C.J. quotes with approval the statement by Brewer J. in the United States of America, in Knox County v. Ninth National Bank[ccix]¹⁵ that:

“It is a rule of very general application, that where an act is done which can be done legally only after the performance of some prior act, proof of the later carries with it a presumption of the due performance of the prior act.”

Here, it was found and on the appeal not disputed, that the Registrar had registered and issued a certificate of title to the Custodian under the Restoration Ordinance. In the absence of evidence to the contrary it will be presumed that the Registrar issued a draft certificate of title and obtained the necessary authority required by the Ordinance in the form of a court order before he registered the certificate of title.

I turn now to the four findings by the Chief Commissioner which immediately preceded the comments I have been discussing. The first was: “(a) A certificate of title issued to the Custodian in respect of this property between 1925 and 1928—see Ex. A. Exhibit A is the letter of 14th May, 1928 from the Delegate to the Custodian and containing the statement, ‘I forward herewith copy of certificate of title to Wangaramut Plantation’.”

The second finding was: “(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.” It will be seen that the Commissioner accepted that the document propounded was attached to the letter of the 14th May, but went on to say that it is not a copy of the certificate of title which had in fact issued. It is difficult to see on what evidence this conclusion was reached or, as discussed earlier, why the Commissioner, accepting the correspondence as establishing the issue of a certificate of title and the sending of a copy to the Custodian, did not accept it as establishing that the copy certificate of title attached to Ex. A was a copy of the certificate of title which had been issued. The Commissioner appears to have been concerned at the apparent delay which occurred between the registration of the certificate of title in 1925 and the issue of the duplicate in 1928. I have already referred to one possible explanation for his concern, but whether under the then existing practice this was an abnormal delay or not does not appear and I cannot see why if the correspondence on the Custodian’s file is accepted, as it was, the apparent delay should be treated as anything more than merely unexplained.

Although the Commissioner did not mention the matter the respondent on the appeal drew attention to the fact that there were no initials on the document propounded. In fact the respondent’s counsel went so far as to say that this omission was the strongest evidence that it was not a copy of the certificate of title. This comment was based on statements in the statutory declaration of Mr. Richards, formerly a chief inspector of the Office of the Custodian. In par. 4 of his declaration he stated it was normal practice for the Custodian to make copies of certificates of title for his file and that such copies were checked with the original certificates of title by the staff of the Custodian, which would include the staff of the Delegate at Rabaul, “and duly initialled by the proper officer in each case”. I confess that this does not appeal to me as being strong evidence against the authenticity of the document propounded. Mr. Richards refers to the practice as being “normal” only and it should be borne in mind that this certificate of title, which was only the fifth to be registered in the Registry, may well have been copied in the Delegate’s office before any regular practice had been adopted.

The third finding was: “(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.” Again it is difficult to see on what evidence this finding was based. The finding is not one that substantial encumbrances should have been indorsed but that they were in fact indorsed on the certificate of title. Whether the document propounded be rejected or not there was no documentary evidence of any indorsement on the certificate of title—which the Chief Commissioner found had been registered—of the substantial encumbrance in favour of natives. Furthermore, if the natives’ present claim that the bulk of the land had not been alienated had been raised in 1925 and accepted, then the most that one would expect the Custodian to have received under the Registration Ordinance would be a certificate of title to only that portion of the land which it was admitted had been alienated.

The fourth finding was: “(d) That those encumbrances followed closely the previous encumbrances in the Ground Book.” This finding was attacked with some justification in a number of ways. The Ground Book entries before the Commissioner showed that the former encumbrance over the whole of the land in favour of natives had been cancelled and no evidence was given which would require one to believe that the encumbrance had been revived. There was some discussion as to how the encumbrance in view of its terms could have been removed without a court order, but on investigation this does not appear to be of great significance.

The Imperial Order on Expropriation of 1903 enabled expropriation from the new owner of land already acquired from natives to ensure a home and the means of economic existence for the natives from whom the land had been acquired. An examination of some of the old land cases decided by Sir Beaumont Phillips in which he discusses the land law at this time, shows that this protection to the native owners was sometimes given by excising reserves from the land purchased for the use of the natives. See for example In re Malala Land[ccx]¹⁶, In re Bitapaka Virgin Land[ccxi]¹⁷ and, generally, In re Mortlock Islands[ccxii]¹⁸.

In the present case, the New Guinea Company obtained registration in the Ground Book only on terms which left the native occupiers or at least four groups of them free to live on and maintain themselves from the whole of the land pending final determination of the natives’ rights by the court.

The last two of the three reserves were created pursuant to the same agreement and were created by excising portions of the land on the east and west sides and resulted in the transfer to the Crown Lands Department of some 385 hectares. These transfers registered on 10th April, 1904 were followed by the cancellation of the encumbrance on 22nd July, 1904. No authority for the cancellation is given and it may well be that it was authorized by some court order following the creation of the two reserves, but in any event no evidence exists which suggests the cancellation was improper. It seems to me an obvious inference that the price paid by the company to obtain an unencumbered title to the centre portion of the land was the surrender of the two reserves, totalling over forty per cent. of the property, for the use of the natives.

The appellants’ counsel suggested that the probable explanation for the significance attached to the cancelled encumbrance by the Chief Commissioner was that he failed to note the cancellation of the encumbrance and proceeded as though it had not been removed.

Some time was spent before me analysing the evidence of the respondent’s witnesses but, even if that evidence is accepted, as his counsel submitted it should be, as showing that the native claimants occupied substantial portions of the plantation until 1931, this evidence when considered with the finding that a certificate of title had in fact issued to the Custodian between 1925 and 1928 does not begin to show what the actual indorsements on the certificate of title were.

But in any event, if one assumes that the fourth finding was justified, it does not appear to have been put into effect in the final order, because there are a number of discrepancies between the former encumbrance in the Ground Book and the encumbrances as ultimately defined in the final order by the Commissioner. These are that the Ground Book encumbrance was conditional in time and subject to final adjustment and it was limited to a defined class, being “all natives at present residing on property”, the villages of those natives being identified. The rights reserved to the natives extended only as far as necessary for their maintenance and the encumbrance applied to the whole land. In all these respects the cancelled encumbrance differs from that found by the Chief Commissioner.

There were further discrepancies between these four findings of the Chief Commissioner and the final order which he made. The claim under the Restoration Ordinance and the supporting evidence indicated that there had been some discussions in 1941 regarding an exchange of land between the plantation owner and the natives which would have affected the western and southern boundaries. There was however no evidence of any agreement being reached. Nevertheless the Chief Commissioner in his final order defined these boundaries in such a way as to suggest that part of the proposed exchange had been put into effect. The 1925 plan showed these boundaries quite clearly and the respondent conceded that the Chief Commissioner had erred in defining the boundary as he did.

The northern boundary in the final order appears to be based on the rough sketch prepared by Mr. Jones. There was no identification on the ground of the land claimed by the natives and I can see no evidence, except possibly that of the Jones report, to support the fixing of the northern boundary in the position shown in the final order. It is not consistent with the Ground Book nor with the document propounded by the appellants. Finally, there was no evidence that the certificate of title which was found to have issued contained such a plan as that which the Chief Commissioner had reconstructed.

I have already referred to s. 26(4) of the Registration Ordinance which was repealed in 1951 but which would have been in operation at the time the proceedings under the Registration Ordinance were determined. The appellants sought to obtain some benefit in these proceedings under the Restoration Ordinance from s. 49 of that Ordinance. This section, which as s. 51 was repealed but reproduced as s. 49 in 1963, provides that the production of an old document is prima facie evidence that a person named therein was at the date indicated in the old document entitled to the interest attributed to him therein. By definition an entry in the Ground Book is an old document (s. 4) and the Custodian claimed that prima facie his predecessor in title, the New Guinea Company, was after 22nd July, 1904 when the encumbrance was cancelled prima facie entitled to unencumbered ownership of the land.

I am inclined to think that this contention is correct. In these proceedings the Custodian was claiming under s. 9 of the Restoration Ordinance as a person who had in fact been registered and s. 49 of that Ordinance applied. By contrast a claim under s. 67(3) must be tested under the repealed sections of the Registration Ordinance including s. 26(4). The fact that an entry in the Ground Book shows that an encumbrance in favour of natives has been cancelled assists a claimant under s. 9 but not one under s. 67(3).

The respondent’s evidence before the Commission is referred to in the transcript and includes the report of Mr. Jones. It will be seen to contain much hearsay and witnesses when called were at times asked merely to confirm what was in a statement or what others had said. The positions of places named were not identified on a map. The general gist of the evidence was of the use by the natives of parts of the land and of a dispute in the 1930s when planting was extended to the south.

The agreement for purchase was made in 1886 and it is not surprising that no one could say what then happened and that what accounts there are consist of hearsay. Probably none of the witnesses would have been old enough to play any part in the 1886 transaction nor in any negotiations leading to the agreement relating to the reserves.

If after the whole area had been purchased and the reserves created planting was extended from time to time to the south it is not unnatural that some natives having been told of the original sale would conclude that each extension of planting to the south was a mere taking of land without authority. Also it is not unreasonable to assume that while the southern part of the land was unimproved the natives were able to hunt and garden there, so that each extension of planting would appear as a restriction upon their rights.

Notwithstanding the respondent’s submissions I cannot accept as a reasonable conclusion from what evidence there was that the whole of the area made the subject of the encumbrance found by the Chief Commissioner or even any identifiable part was held and occupied adversely by the natives for any portion of the period from 1904 to 1930. Furthermore, it is not clear that the Commissioner so found. He appears to have considered a possibility that before the certificate of title was registered there may have been disputes and consequent discussions leading to the indorsement of an encumbrance in the form he found. However, as I read the native evidence, disputes arose in 1931 when the certificate of title had admittedly been issued for approximately three years and when it had probably been registered since 1925. 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.

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 well be, in some respects, in a better position.

The finding that a certificate of title issued has not been challenged on this appeal and is, in my view, a finding justified by the evidence but I am satisfied that the Chief Commissioner fell into error in finding that the certificate of title was indorsed with the general encumbrance set out in the final order.

From the explanation which the Chief Commissioner gave immediately after making his findings it appears probable that at that time he misread the Ground Book entries and the answer to question 19 in the Custodian’s claim with the consequences I have referred to earlier. But whether this is so or not, it seems to me that the Chief Commissioner instead of directing his mind to the questions whether or not a certificate of title had issued and if so in what form, having found that a certificate of title had issued then endeavoured to give substantial effect to the present day native claims as revealed in Mr. Jones’ report in 1964, and this he was not entitled to do.

I have said there was no evidence to support a finding that the certificate of title issued with an encumbrance on it in that form and, quite apart from the documentary evidence, there are some indications that it did not.

It seems unlikely, if the proceedings in 1925 had resulted in the indorsement of such an encumbrance that the Custodian and his successors should have concerned themselves with the proposed exchange to adjust a boundary to land which they owned in name only or that the Director, bearing in mind his statutory duties would in 1952 claim only the waterhole encumbrance, or that the patrol officer in October 1960 after discussions with the natives on the ground could so badly misrepresent their claims in his letter.

The Chief Commissioner apparently without relying on the annexures to the Delegate’s letter of 14th May, 1928 found that two encumbrances were indorsed on the certificate of title which was registered, and this he was entitled to do. The mining encumbrance was shown by the Gazette notice of 15th October, 1925 to be on the draft certificate of title and the waterhole encumbrance was shown in the Director’s 1952 claim and was not opposed by the appellants.

If so much were established and if then there was no evidence of any other registered encumbrance I am inclined to think that the Custodian would have been entitled to the order he sought. If the encumbrance were not registered it could not stand against the Custodian’s registered title. If it were registered then some onus was on the Director to establish that it was and that onus could not be discharged merely by calling evidence of native occupation prior to 1930.

However, it is unnecessary to decide this point finally because I go further and say there was positive evidence in the form of the copy certificate of title and plan annexed to the Delegate’s letter of 14th May, 1928 which should have satisfied the Chief Commissioner that the certificate of title was registered with only the mining and waterhole encumbrances indorsed on it.

I cannot accept as satisfactory the explanation that someone “jumped the gun” as the Chief Commissioner put it. No reasons are given for this conclusion and I have been unable to find anything to support it. All the indications are that the copy certificate of title and plan put in evidence, and no other document, were annexed to the letter of 14th May, 1928, and that such copies were made at some time after the 19th April, 1928; that is, more than two years after the certificate of title was registered.

The Chief Commissioner was satisfied that the purported copy put in evidence was annexed to the Delegate’s letter of 14th May, 1928 so that any error or malpractice occurred in the Delegate’s office. We are not concerned with some small, albeit important, error which could occur through an oversight, but with the authenticity of the whole document.

At this time when the purported copy was made the Register was available for anyone to search and from the evidence it is known that the Custodian in 1926 was endeavouring to sell the property and that it was later sold.

I have been unable to find any reason, and the Chief Commissioner did not suggest one, why the Delegate should in these circumstances enact the solemn farce which could benefit neither the Delegate nor the Custodian of sending a fabricated document to the Custodian having first set the stage with the letter of 19th April, 1928. There is nothing in the document itself to raise suspicions and the plan initialled on 30th November, 1925 looks genuine enough.

The simple and by far the most probable reconstruction of events is that as the correspondence suggests the Delegate received the duplicate certificate of title on or before 19th April, 1928 and wrote informing the Custodian. When the plan had been traced a copy of the duplicate certificate of title and the plan was then sent with the letter of 14th May, 1928 to the Custodian.

For the reasons I have given I am satisfied that the Chief Commissioner was wrong in finding that when the certificate of title was registered the third or general encumbrance in favour of natives referred to in the final order was indorsed thereon. Because of that the final order cannot stand in its present form and a question arises as to what order I should now make. The powers of this Court in determining these appeals are set out in s. 38a(2) which is quoted earlier in these reasons.

There was some suggestion that there might be further evidence available on a re-hearing but counsel conceded that such evidence did not affect the issue as to what indorsements were on the certificate of title which was registered.

All counsel agreed that the western and southern boundaries as fixed pursuant to the final order need readjustment but it seems that with that reservation all evidence relating to the substance of the matters in dispute is before me and I have reached a firm conclusion as to what the proper order should have been.

In these circumstances I have decided that a complete re-hearing should not be ordered. I am influenced by the desirability that this long drawn-out litigation should end and that a complete re-hearing would be a substantial burden.

I propose therefore to allow the appeals and to quash the final order of the Commission dated 23rd July, 1965. In substitution for that order there will be an order which follows the same form but which declares that the only registered encumbrances were the mining encumbrance and the waterhole encumbrance as shown on the document propounded by the claimant.

I have already found that no agreement for the exchange of land on the western and southern boundaries was concluded and if I were to make an order now I would restore the boundaries to those shown in the 1925 plan. However, in view of the negotiations which appear to have taken place in the past and the fact that it appears there may have been some overplanting I propose to remit to the Commission for hearing and investigation the determination of the western and southern boundaries. I have in mind that the Commission, accepting the decision which I have substituted for its decision, will endeavour to effect a settlement of the western boundary by consent pursuant to s. 43 of the Restoration Ordinance and that, in any event, the Commission in exercise of its power under that section will make a final order defining the boundaries in such a manner as will in its opinion effect substantial justice.

If all the parties can agree on the form of a final order I request that a draft of the order be submitted. In any event, liberty is reserved to any party to apply as to the form of the formal order to give effect to this decision.

Liberty is also reserved to any party to apply in respect to the costs of these appeals.

Appeal allowed. Final order of 23rd July, 1965 discharged. New order substituted.

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

Solicitor for the second appellant: F. N. Warner Shand, Esq.

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

ence>[cxcv]Infra, at p. 153.

[cxcvi]Infra, at p. 143.

[cxcvii]Infra, at p. 149.

[cxcviii]Infra, at p. 149.

[cxcix]Infra, at p. 159.

[cc]Infra, at p. 160.

[cci]Unreported (1930).

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

[cciii][1965-66] P. & N.G.L.R. 232.

[cciv][1959] HCA 1; (1959) 101 C.L.R. 226, at p. 243.

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

[ccvi][1955] A.C. 370.

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

[ccviii][1906] HCA 1; (1906) 4 C.L.R. 835, at p. 850.

[ccix][1893] USSC 8; 147 U.S. 91, at p. 97.

[ccx]Unreported (22nd Sept. 1932, Rabaul).

[ccxi]Unreported (13th July 1931, Rabaul).

[ccxii]Unreported (1930).