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Sina v Administration of the Territory of Papua and New Guinea [No 1] [1969-70] PNGLR 352 (16 July 1970)

Papua New Guinea Law Reports - 1969-70

[1969-70] PNGLR 352 - Saraga Sina v Administration of the Territory of Papua and New Guinea [No. 1]

[1969-70] PNGLR 352

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SARAGA SINA AND OTHERS

V.

ADMINISTRATION OF THE TERRITORY OF PAPUA AND NEW GUINEA AND OTHERS [NO. 1]

Port Moresby

Clarkson J

13 July 1970

16 July 1970

APPEAL - Case stated - Land Titles Commission - Discretion to state a case and temporarily refrain from decision - Refusal of leave to amend claims - Refusal to state case challenging refusal of leave to amend - Whether making a decision refusing leave a bar to state a case - “Decision” to temporarily refrain from making - Land Titles Commission Ordinance 1962-1970, s. 32[dxxviii]¹ .

The Land Titles Commission refused leave to amend the claims before it. Subsequently it refused an application made under the Land Titles Commission Ordinance 1962-1970, s. 32(1) that it state questions for the determination of the Supreme Court, the purpose of the questions sought to be stated being a basis for challenging the refusal of leave to amend the claims. In refusing to state a case the Commission, in its reasons, stated: “The Commission is not being asked to temporarily refrain from making a decision and state a case on a question for determination by the Supreme Court but to submit to the Supreme Court for its confirmation or otherwise a ruling made in the course of hearing the present application.”

Held:

On an application made under s. 32(1) to the Supreme Court:

(1)      The question before the Commission upon application being made to it to state a case was not whether its ruling by which it refused leave to amend the claims finally concluded that matter, but whether the Commission should, in the judicial exercise of its discretion under s. 32(1), have stated a case on the questions of law said to be involved in its refusal of leave to amend; so that the Commission did not apply itself to the proper question before it.

(2)      The “decision” within the meaning of s. 32(1) is something in the nature of a final decision on the claims before the Commission or a final determination of all the matters in dispute before the Commission.

(3)      That the Commission has already expressed its view on the question or questions which it is asked to refer by way of case stated does not bar the stating of the case by the Commission or the requiring of a case to be stated by the Supreme Court.

In re an Arbitration between Spillers & Baker Ltd. and H. Leetham & Sons, [1897] UKLawRpKQB 6; [1897] 1 Q.B. 312, applied.

(4)      In the exercise of the discretion vested in the Supreme Court by s. 32(1) the Commission should be directed to state a case for the determination of the Supreme Court on those questions of law said to arise out of the refusal by the Commission of leave to amend the claims.

Originating Summons.

On 10th July, 1970 Saraga Sina and Madaha Gieta on behalf of the Iarogaha and Uhadi clans (the first applicant), Diho Gabe on behalf of the Adari clan (the second applicant) and Kore Avie and Raho Rakatani on behalf of the Gaibudubu clan (the third applicant) applied to the Supreme Court of the Territory of Papua and New Guinea, under the Land Titles Commission Ordinance 1962-1970, s. 32(1), that the Land Titles Commission state a case on certain questions for the determination of the Supreme Court. The Administration of the Territory of Papua and New Guinea (the first respondent), Gomara Udia and Hariki Goro on behalf of the Ogoni Dabunari clan, Vana Rakatani on behalf of the Ogoni Gubini clan, Udia Sivari on behalf of the Mokogaha clan, Heni Guba on behalf of the Kaevaga clan and Ganega Gumasa on behalf of the Baruni clan (the other respondents) were made respondents to the application.

By 6th July, 1970 the above-mentioned applicants and the other respondents had made claims under the Land Titles Commission Ordinance 1962-1970, s. 15 to the ownership of certain land situated near Port Moresby known as DA1 and DA180. The first respondent claimed ownership to the land and contested all other claims to its ownership.

On 8th July, 1970, in the course of proceedings had upon the above-mentioned claims, the above-mentioned applicants and the other respondents applied to the Land Titles Commission for leave to amend the applications before that Commission by deleting therefrom the words that the claim was that “the land comprised in the annexed plan and known as DA1 and DA180 is owned by the above idihus” and substituting in lieu thereof the words “that the claim by the Administration to be the owner of the land comprised in DA1 and DA180 to the exclusion of claims to ownership by native custom of or the right by native custom to use the said land be declared invalid and of no force and effect”. The first respondent opposed the application and the Commission unanimously rejected the application and published reasons for its rejection.

On 10th July, 1970 the above-mentioned applicants and the other respondents applied to the Commission pursuant to s. 32(1) of the above-mentioned Ordinance that the Commission state a case on certain questions for determination by the Supreme Court. On the same day the Commission refused this application for reasons which it delivered in writing.

Counsel:

Gyles, for the first applicant.

Hartigan, for the second applicant.

Court, for the third applicant.

Tuthill, for the first respondent.

Young, for the other respondents.

Cur. adv. vult.

16 July 1970

CLARKSON J:  The matter now comes before this Court on the hearing of an application by the present applicants for an order that the Land Titles Commission temporarily refrain from making a decision and state a case on certain questions for the determination by the Supreme Court. The application is supported by all the other claimants and is opposed by the Administration.

The applicants argue that the Commission has power to control its own procedure but that if in the exercise of its discretion to refuse or allow an amendment of the claim it misdirects itself in law the Supreme Court is entitled to intervene, and here, it is argued, it is apparent that the Commission acted on a wrong principle because it was under misapprehensions relating to its functions, the legal effect of the amendment sought and the law to be applied in determining the claims. Further, the applicants say, the Commission failed to give proper or any weight to the fact that all eight parties on one side of the record supported the application for amendment.

Counsel for the Administration has argued to support the decisions of the Commission, firstly to refuse the amendment and secondly to refuse to state a case. As to the first, it is said that the claimants by their proposed amendment sought to abandon or at least defer the claim they had made to be owners of the land and to substitute for it the contention that the Administration could not establish its claim to the land; further, that the claimants’ claim may well fail without the Administration having to establish its own title.

As to the second, it is said that this application before me is not an application under s. 32(1) but an attempt to challenge a ruling by the Land Titles Commission in the course of the hearing.

What I have set out is by no means a complete summary of the matters in issue but it is sufficient to outline the circumstances in which arises the problem which I am required to determine, and that is the limited question whether under s. 32(1) of the Land Titles Commission Ordinance 1962-1970 I should order the Commission to refrain temporarily from making a decision and to state a case on a question (other than a question of fact only) for determination by the Supreme Court.

I am not aware of any previous applications under this section to this Court and counsel did not refer me to any.

A similar procedure is provided for in some jurisdictions in respect to arbitrations—see for instance s. 19 of the Arbitration Act, 1889 of England considered in The Tabernacle Permanent Building Society v. Knight[dxxix]² and s. 19 of the Arbitration Act 1915 of Victoria considered in Carr v. Shire of Wodonga[dxxx]³.

The Land Titles Commission Ordinance sets no criteria by which the exercise of my discretion should be controlled although the cases to which I was referred by counsel, including the two mentioned, give some indication of matters which have been considered relevant.

In view of the conclusion I have reached I wish to make it abundantly clear that I express no view on the merits of the claimants’ objections to the Commission’s refusal to permit the proposed amendment. I heard sufficient argument to enable me to appreciate the nature of the dispute and to conclude that the amendment, if allowed, could well have a substantial bearing on the future proceedings before the Commission. I therefore make no comment on the written reasons of the Commission dated 8th July, 1970.

I am, however, concerned with what happened thereafter.

As I have said, on 10th July application was made to the Commission requesting it to state certain questions for the determination of this Court. Those questions, which are before me, were clearly enough intended to be the basis of a challenge to the refusal of the Commission to permit the amendment sought, and the real question then before the Commission was whether in exercise of the power conferred by s. 32(1) it should state those questions, or the substance of them, for determination by the Supreme Court.

But it seems to me that at this stage the proceedings miscarried, and that the Commission did not address itself to the question properly before it. The Commission said:

“The Commission is not being asked to temporarily refrain from making a decision and state a case on a question for determination by the Supreme Court but to submit to the Supreme Court for its confirmation or otherwise a ruling made in the course of hearing the present application.”

I have the impression that the Commission in this opening passage of its reasons is equating the “decision” it is being asked to refrain from making with the ruling it had made on 8th July and that, in effect, it is saying to the claimants: “You are not asking us to refrain from making a decision and to state a case. You are asking us to submit to the Supreme Court for confirmation or otherwise the ruling or decision already made.” The implication is that in some way s. 32(1) does not fit the facts as they then existed.

It is true that the Commission then goes on to say without giving any reasons that it did not consider “this matter” one which it should refer under s. 32 but it seems to me that the reason for this view is not some relevant but unexpressed considerations but the situation as the Commission understood it, and as is described in the first paragraph of its reasons which I have set out above.

I think it clear that the “decision” referred to in s. 32(1) which the Commission is asked to temporarily refrain from making is something in the nature of a final decision on the claims or a final determination of all the matters in dispute and that it is no bar to the Commission stating a case, or to this Court requiring it to state a case, that the Commission has already expressed its view on the question or questions it is asked to refer.

In Spillers’ case (In re an Arbitration between Spillers & Baker Ltd. and H. Leetham & Sons)[dxxxi]⁴ which was concerned with s. 19 of the Arbitration Act, 1889 of England, the English Court of Appeal held that the fact that the arbitrator had expressed no opinion adverse to the party applying for a direction that a case be stated was no bar to the right to apply for such a direction, and the Court of Appeal clearly assumes that the right exists when an adverse opinion has already been expressed, as is the case here.

In the present case I have concluded that the Commission did not apply itself to the proper question before it, namely, whether the Commission should in the judicial exercise of its discretion have stated a case on the questions of law said to be involved in its ruling of 8th July 1970, but rather it treated its ruling of 8th July as finally concluding the matter raised except presumably to the extent that it might subsequently be challenged in ways other than under s. 32(1).

The problem then is to decide what action I should take. I could adjourn this summons in order that the Commission might reconsider the application to it in the light of the views I have expressed. This course however might still result in my having to deal finally with the application.

All parties consider the ruling on the application to amend the claims to be of considerable importance. I am told that the claims refer to a large area of land on which the Administration has already erected substantial improvements in the form of buildings and roads. And it seems that if the Commission were wrong in refusing the application—and I do not say it was—the future course of these proceedings which have already continued for three and a half years could be significantly changed.

In these circumstances I have decided to exercise my discretion in favour of the applicants and to require the Commission to state a case on questions of law, substantially in the form of those set out in par. 18 of the affidavit of Miss Campbell, for determination by the Supreme Court.

Although it appears that the Commission at the present stage of its inquiry is not in a position to make any final decision the formal order will be in terms of s. 32(1) of the Land Titles Commission Ordinance.

I assume that the parties will endeavour to provide a draft of the proposed case for the Commission and I invite their attention to the remarks of Hale J. in B.P. Australia Ltd. v. Town of Albany[dxxxii]⁵ and the authoritative statement by the High Court on the principles regulating the contents of cases stated appearing in Reg. v. Rigby[dxxxiii]⁶.

Direct that the Land Titles Commission state a case for the opinion of the Supreme Court.

Solicitor for the applicants and the other respondents: W. A. Lalor, Public Solicitor.

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

Note: On 19th October, 1970, upon the application of Harika Boro, Gomara Udia, Vani Rakatani, Udia Siviri and Saraga Sina on behalf of the Ogoni-Gubini, Ogoni Dabunari, Baruni, Kaevaga, Mokagaha, Ianagoru and Iarogaha clans and by Mea Gabe on behalf of the Adari clan, Clarkson J. ordered that the case to be stated by the Land Titles Commission concerning DA1 and DA180 be argued before the Full Court and that the above-named applicants should have carriage of the proceedings pursuant to r. 7(2) of the Supreme Court (Full Court Appeals) Rules. See Saraga Sina v. Administration of the Territory of Papua and New Guinea [No. 2], [1969-70] P. & N.G.L.R. 359.

[dxxviii]The relevant provisions of s. 32 are as follows: “(1) In the course of an inquiry into or the hearing of a matter, the Commissioner may, and upon the order of a Judge shall, temporarily refrain from making a decision and state a case on a question (other than a question of fact only) for determination by the Supreme Court.”

[dxxix][1892] A.C. 298.

[dxxx](1924) 34 C.L.R. 234.

[dxxxi][1897] 1 Q.B. 312.

[dxxxii](1963) 10 L.G.R.A. 46.

[dxxxiii][1956] HCA 38; (1956) 100 C.L.R. 146.