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Parker v Morea (re Urara Makana North and South) [1971-72] PNGLR 162 (2 June 1971)

[1971-72] PNGLR 162

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

PARKER

V.

MOREA
(RE URARA MAKANA NORTH AND SOUTH)

Port Moresby
Prentice J

24-26 May 1971
2 June 1971

REAL PROPERTY - Land Titles Commission - Appeal - Finality of decision of Commission definitive of “interests in land” - Land Titles Commission (Declaratory) Ordinance, 1968, s. 2.

REAL PROPERTY - Land Titles Commission - Appeal - Denial of natural justice - Evidential material not disclosed to party - Material used in decision - Party’s intrusion into Commission’s papers.

COURTS AND JUDGES - Land Titles Commission - Exercise of jurisdiction where no procedure specified - Constitution of Commission to exercise jurisdiction - Commission different in constitution for hearing of one matter - Practice and procedure.

The reference to a decision in s. 2 of the Land Titles Commission (Declaratory) Ordinance 1968 includes any decision made upon an appeal from a decision of the Land Titles Commission.

The hearing of two applications and objections made under the Land (Tenure Conversion) Ordinance, 1964 were commenced by the Land Titles Commission constituted by three Commissioners sitting together. After two specific interim questions were decided by these three Commissioners, an apparent continuation of the hearing was held before only one of those Commissioners. The latter Commissioner reached a decision after referring to and relying upon certain written notes, a lease, and a Land Department file of documents and certain works on native custom affecting property rights. None of this material was disclosed to the applicant who was not invited to comment upon or deal with it.

Held:

On appeal, that there had been such a denial of natural justice that the appeal ought to be allowed and the applications remitted for rehearing.

Administration of the Territory of Papua and New Guinea v. Director of District Administration (Re Volupai), [1969-70] P. & N.G.L.R. 302 followed.

The disclosure and use of expertise and knowledge by a tribunal contrasted with the disclosure and use of relevant evidential material, and reference made in relation thereto to Mobil Oil Australia Pty. Ltd. v. Commissioner of Taxation [1963] HCA 41; (1962-63), 113 C.L.R. 475; (1962-63) 37 A.L.J.R. 182.

Per curiam:

Although the intrusion of a party among the papers of the Commission might amount to contempt of the Commission, it does not necessarily constitute a denial of natural justice.
Per curiam:

The equitable doctrine of laches probably has no application to the lodgment of an objection to a claim for land tenure conversion.

Per curiam:

(dubitante) “The Commission”, when once seised of a matter, may be constituted differently for different purposes, although this might only apply where at each stage of the proceedings the Commission as properly constituted for particular questions makes a decision on the evidence before it at that stage: arrangements of this nature are matters of practice and procedure and do not go to jurisdiction.

Appeal under the Land Titles Commission Ordinance 1962-1969, s. 38.

Each of two applications by John Boe Parker (the appellant) to the Land Titles Commission under the Land (Tenure Conversion) Ordinance 1964 were objected to by Virobo Morea of the Botai Laurina Iduhu (the respondent) and rejected by the Commission. Against this decision the appellant appealed.

All further relevant facts appear in the judgment hereunder.

Counsel:

Young, for the appellant.
Francis, for the respondent.
Cur. adv. vult.

2 June 1971

The following written judgment was delivered.

PRENTICE J: In 1969 the appellant John Boe Parker, a mixed race resident of Hanuabada, lodged two applications with the Titles Comm Commission seeking orders under the Land (Tenure Conversion) Ordinance of 1964. The Commission found that the applicant was a “native” within the meaning of the Ordinance. The applications are in respect of—

(1) a tuiangpoar portion of land, Urara Makana North, which juts into the bus depot at Ea; an

(6) &; a p; a pentagonal shaped block, Urara Makana South, separated from the former by a right of way known as Ruatoka Street, which leads from Boe Vagi Road up the hillock to the Lawes Monument adjoining Elevara.

Both blocks are on the west side of Boe Vagi Road and adjoin it. The latter block is fenced and has Mr. Parker’s house built on it.

The applications came on together and were heard before the Commission comprised of Mr. Chief Commissioner O’Shea and Messrs. Senior Commissioners Kimmorley and Page. The record of the Commission, as filed in this appeal, appears to be incomplete, commencing at p. 11 in respect of a hearing of 12th March, 1970. As far as I can gather, certain objections were then made on behalf of the Mission (the United Church) and the Port Moresby Bus Company. The applicant and objectors were apparently each represented by counsel. As appears from p. 13 of the Commission’s record, the Chief Commissioner suggested that the Troika, if I may again use the convenient phrase for the bench of three Commissioners, should decide two issues —

(1) &  wh cherainrtain of the land claimed was lic road,

(2) ـ#160;#160; &#1hether ther the land claimed was native land;

and that thereafter the application foure conversnversion should be heard by a single Commissioner. This course was adopted without dissent of counsel. The Troika’s decision was given on 24th March and it rejected the objections of the Mission and the Bus Company. At p. 3 of its reasons the Commission stated:

“Further proceedings on this application under Section 7 will now be taken by a single Commissioner and the hearing of these proceedings will be notified to all parties by a public notice.”

Council in this appeal was unable to refer me to any part of the record wherein the Commission made a specific finding that the land claimed was “native land” within the meaning of the Tenure Conversion Ordinance. But counsel and Commission at the Troika hearing seem to have assumed that such a finding was being made by inference.

A subsequent hearing was held, in apparent continuation of the Troika’s hearing, by one of its members only, Mr. Senior Commissioner Kimmorley, as had been agreed on 12th March, 1970. Mr. Kimmorley gave decisions, purporting to be the final decisions of the Commission, rejecting each application on the ground that “all persons having an interest therein are not in agreement with the applications.” In his reasons for decision, at p. 4, Mr. Kimmorley stated:

“There is no doubt that the land in question is native land. This was decided by the Commission in an earlier stage of the present hearing—a decision from which there was no appeal within the statutory period.”

As seemingly with all these appeals, the grounds laid are numerous and the same matter is relied on under different headings. The hearing and attempted resolution of the appeals become thereby the more tortuous. The appeal book, as made up, did not contain either Annexure 1—a vital table of genealogies or Mr. Commissioner Bramell’s “Notes on Native Land Custom, Port Moresby Region” upon which Mr. Kimmorley leaned heavily in coming to his decision. The latter like so much of the esoteric material on which land questions must perforce be decided, is hard to come by. A copy was made available to this Court by the kind offices of the Public Solicitor. Counsel before me agreed in the authentication of each of these documentary copies.

Mr. Francis for the respondent, maintained in a preliminary argument that these appeals could not be brought. (I reserved my decision on this preliminary point and allowed full argument of all grounds of appeal taken.) Mr. Kimmorley’s decision that the respondent (in possible addition to the applicant) had interests in the subject lands is unappealable he says, by virtue of s. 2 of the Lands Titles Commission (Declaratory) Ordinance 1968. It is not a decision covered by s. 16 of the Principal Ordinance and is “for all purposes and as against all persons conclusive evidence . . . as at the date of the decision . . . of the interests in land as set out in the decision.” Once it was decided that people other than the applicant had an interest and did not concur, that was, he said, an end of the matter. Section 2 of the Declaratory Ordinance impliedly repealed the right of appeal in relation to matters of ownership of the land, rights, titles and interests in land, granted by s. 38 of the Principal Ordinance (the other Commission jurisdictions such as marking out boundaries being unaffected). The purpose of the Declaratory Ordinance was related to enforcing “the intention of the Legislative Council . . . that decisions of the Land Titles Commission on questions of ownership of land and on rights in land should be final and conclusive.” (I pause here to note that the preamble went on “and should bar all future claims” and makes no reference to appeals.) The provisions of the Declaratory Ordinance are so inconsistent with and repugnant to the Principal Ordinance, Mr. Francis says, that they cannot be read with s. 38 thereof. (One ceases to be surprised at the submissions which can be devised from the reading of Territory Ordinances.) In so far as s. 2 of the Declaratory Ordinance expresses one exception, so as to save s. 16 provisions, it must be read, he says, to exclude any other exception in favour of s. 38 matters. Here, it is said, are particular provisions which cannot be cut down by the existence of earlier general ones (the converse of the “generalia non derogant” rule). Subsection (3) of s. 38, whereby “a reference to a decision of the Commission shall be read as a reference to a decision of the Commission as affected by the decision on an appeal under this section”, cannot, it is said, affect the operation of a subsequently enacted statute.

That the Declaratory Ordinance should work such devastating results as Mr. Francis contended for, would I consider, be surprising in the extreme. So far as one can judge from the short Ordinance itself it would seem to have been intended to make clear that decisions of the Commission were intended to operate in rem and not only, as was possibly open to argument on s. 15(2) of the Principal Ordinance, against the parties represented at the hearing. That the saving of s. 16 rights expressed in s. 2 of the Declaratory Ordinance was not intended to be a “expressio unius”, can be gauged I consider, from the reference in the preamble and not elsewhere, of an intention to save also “rights of compensation”. It was the reinforcement of the “barring of claims” (see preamble) that was sought—not appeals, I consider. Were s. 2(1) to have the effect contended for, then ss. 15(2) and 38 of the Principal Ordinance would appear to be in conflict. It seems to me that the legislature was directing its attention in 1968 (No. 10 of 1969) to s. 15(2) only; and no doubt bore in mind that s. 15(2) had to be read in the light of s. 38(2) of the Principal Ordinance. In other words, that the “decision” referred to in s. 2 of the Declaratory Ordinance was “a decision after appeal, if any”. I do not consider that the Declaratory Ordinance has worked the effect for which Mr. Francis contends.

If I were wrong in this conclusion, I should yet have difficulty in seeing that the decision here made, was definitive of “interests in land”. The essence of it seems to be that a conversion order could not be made. The actual interests in the land, and of whom, is not decided. It may be also that the true position is that s. 2 in so far as it takes effect on a decision as to “interests in land” can only do so where there is a decision primarily as to “ownership.” I make no decision on this aspect. I reject the argument in bar of the appeal.

I turn now to the grounds of the appeal; firstly, the alleged denials of natural justice.

ALLEGED DENIALS OF NATURAL JUSTICE

These are said to lie in that—

(a) ; In seekingeking to ascertain the rules applicable stomaw the Commn used and rend relied lied on doon documencumentary materials which were unknown to the appellant and which were not put to him and concerning which he was not given an opportunity to make submissions.

(b) ـ Tid sammisommission continued its hearing of the appellant’s applicatiter tte noks, file, papers,pers, docu documents and other materials used by the Commission in recording the evidence and proceedings or some of them, had been perused by the respondent and persons on behalf of the respondent without the permission of the Commission or the appellant.

In support of these grounds the affidavit of John Boe Parker, the appellant, of 6th May, 1971, was tendered. No objection was raised to my receiving this affidavit, though this Court is not able to receive evidence on appeal from the Commission; it being conceded by respondent’s counsel that in order to urge such a ground of appeal as this, it may be necessary to aver some of the facts surrounding the hearing from which it is alleged a denial of natural justice arose. The affidavit reads as follows:

“2. I wes thliapplicant before the Land Titles Commissioapplin No./270 sect of 7 of the the Land Land TenurTenure Cone Conversion Ordinance and was present at the hearing of that application before Mr. Acting Senior Commissioner Kimmorley. On the morning of 26th August, 1970, in the course of the above hearing I called evidence from Morea Igo Tolana in support of my application. At about 10.30 a.m. that morning a European was interposed in the middle of Morea’s evidence and after taking his oath produced a file to the Commissioner and then left. I was not informed of the contents of the file nor was I given an opportunity to inspect the file or to examine the European who produced it.

3. At 12.00 1’clock noon on 26th August the hearing was adjourned for lunch and I went to my home. At approximately ten minutes to one I returned to the Hanuabada Women’s Club, where the hearing was being conducted; when I arrived there I saw Virobo Morea, Lohia Kohu and Doura Pipi examining files and books on the Commissioner’s desk. I said to them “what are you doing there?” and Lohia said to me “I am on Hiri Council and allowed to touch the files”, I replied “This is not the Local Council’s document, this is the Land Titles Commission’s document and you have no right to touch it.” Then Lohia closed the files and books and he and Virobo and Doura left the building.

4. &; Wh. Mringcting Senior Commissioner Kimm resuhe hearing at 1.00 o’clock,lock, I to I told him “people have been looking through your books and papers”, and he said “which people?” I told him that the persons who had been looking through the papers were Virobo, Lohia and Doura, and he said “don’t worry there is nothing much here”, and proceeded with the hearing.

5. ¦&#1t ; At no time during the hearing of my applicatis I sa lea certatives to theo the Admi Administrnistrationation of land used for local council chambers, which lease I understand was exhibit 9 in the Commission hearing. I was not given any opportunity to examine the lease or to cross examine any person with regard to the contents of the lease.

6. &; Duthng our course of the hearing I was given no indicatiat a t by . D. C. Bram Brammel (sic) was before fore the Cthe Commission and I had no knowledge of the existence of such a report or whether it may be inspected by me.”

No evidence in denial of the matters averred was called by the respondent, though it was pointed out that paragraph 1 of the affidavit seems to contain an error or misunderstanding in that the Commission’s record shows the calling of Mr. Cossill (the European referred to) at the conclusion of, not during, Morea Igo Tolana’s evidence. Now the intrusion of the respondent and his associates among the papers of the Commission was no doubt a grave breach of decorum amounting to a contempt of the Commission. It could well have called for a strong censure, though possibly committed in ignorance, and perhaps encouraged by the Commission’s being constrained to hold its hearings in the informal and unsatisfactory venue of the Hanuabada Women’s Club. However, I find difficulty in concluding that such an intrusion was so outrageous that it has constituted a denial of natural justice to the appellant. It may well have given rise to suspicions that justice was not being seen to be done. But I am not satisfied that any injustice was in fact perpetrated thereby.

I consider the other matters urged to lie in a different category. I should say that complaint as to the Commission’s manner of use and treatment of Commissioner Bramell’s notes, the lease and the Land Department file (apparently the documents produced by Mr. Cossill) was before me, extended also to his use of certain material being “Attachment A” in the records of application 1967/81 re Nese (Gabiruma) land at Hanuabada. The Commissioner also relied on Seligman’s and Belshaw’s works. It is common ground that none of the abovementioned material was disclosed to the applicant, and his comments thereon were not sought.

With respect, I would adopt my brother Clarkson’s approval of Professor de Smith’s dictum (Judicial Review of Administrative Action, 2nd ed., p. 191) and his comments on the cases cited therein, as set out in Re Volupai[cxciv]1. It appears from the Senior Commissioner’s reasons for decision that vital relative material was not disclosed to a party. From becoming potentially prejudicial it became actually prejudicial when used against him. The Commissioner’s remark to the appellant “Don’t worry—there’s not much here”, far from assuring me that there was no grievous miscarriage of justice, a position for which Mr. Francis contends, serves to show I think, how the learned Commissioner misdirected himself and the appellant in the latter’s uninstructed protest. (I will return later to the question of whether some of the undisclosed material might have weighed in the appellant’s favour.) Clearly, as Clarkson J. pointed out in Re Volupai[cxcv]2, a Commissioner is entitled to use his expertise and knowledge. How far he should disclose his intentions is a matter that might vary from case to case. It would be impossible for him to know in advance or in the running, all the pieces of expertise upon which he might subsequently draw, so as to allow him to put these matters to the parties for comment or criticism. Mr. Justice Kitto considered the extent to which a taxation board of review was entitled to apply its knowledge of other cases in another particular case, in Mobil Oil Australia Pty. Ltd. v. Federal Commissioner of Taxation[cxcvi]3. His Honour said:

“Even if the board is bound in law to act ‘in the spirit and with the sense of responsibility of a tribunal whose duty is to mete out justice’ (to quote Lord Haldane’s words in Local Government Board v. Arlidge[cxcvii]4, it does not follow (and his Lordship proceeded immediately to say so) that the procedure of each such tribunal must be the same: ‘what that procedure is to be in detail must depend on the nature of the tribunal’. And notwithstanding what Lord Loreburn said in Board of Education v. Rice[cxcviii]5, about ‘always giving a fair opportunity to those who were parties in the controversy to correct or contradict any relevant statement prejudicial to their view’, the books are full of cases which illustrate both the impossibility of laying down a universally valid test by which to ascertain what may constitute such an opportunity in the infinite variety of circumstances that may exist, and the necessity of allowing full effect in every case to the particular statutory framework within which the proceeding takes place. By the statutory framework I mean the express and implied provisions of the relevant Act and the inferences of legislative intention to be drawn from the circumstances to which the Act was directed and from its subject-matter[cxcix]6.”

His Honour in adopting certain quoted words of Tucker L.J. said:

“there are no words which are of universal application to every kind of inquiry and every kind of tribunal: ‘the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry and the rules under which the tribunal is acting, the subject matter which is being dealt with and so forth’.”

Kitto J. went on[cc]7:

“What the law requires in the discharge of a quasi-judicial function is judicial fairness. That is not a label for any fixed body of rules. What is fair in a given situation depends upon the circumstances.”

His Honour then went on to discuss the questions of privacy between one subject and another that had to be considered in taxation matters and he concluded:

“. . . the board’s sense of fairness and responsibility will no doubt make the decision as to how the discretion (to disclose or not to disclose) should be exercised practically indistinguishable from that which it would have to make if faced with a legal necessity to conform to natural justice.”

But the disclosure of relevant evidentiary material as contrasted with expertise, is in a different category. I consider here the appellant was placed at a disadvantage of such a character, that it must be said there was a denial of natural justice, warranting the upholding of the appeal.

ERROR OF LAW

From page 4 of the Commissioner’s reasons it appears that some misconception arose as to the applicability of s. 81 of the Land Ordinance of 1962. As the appellant’s application was founded on an alleged lineage gift to him in 1950, the appropriate legislation would appear to have been the Land Ordinance of 1911. A considerable amount of argument was directed to establishing whether or not the 1911 Ordinance perhaps unwittingly, had the effect of totally removing a native’s ability to deal with land (by sale, gift, or other disposition of usufructuary rights). A decision that it did so, would have been a surprising development from the instruction of the letters patent in enjoining H.M.’s Commissioner in 1888 “to protect them (the natives) . . . in the free enjoyment of their lands”. One would have imagined that their right to use and dispose of their land according to native custom, would have been an essential part of their enjoyment thereof. Fortunately, counsel recalled s. 81(2) of the 1962 Ordinance with its curious “deeming” provision, so as to relieve me of consideration at least of this point—one with such potentially wide application.

WEIGHT OF EVIDENCE

Mr. Young argued strongly that the decision was against the weight of evidence. A lease which became exhibit 9, had been relied on to support inferences that the lineage from which the appellant claimed to have received a gift was only one of several Botai clan lineages which had interests in the subject land. The Commission seems to have known of the existence of this lease prior to the hearing before Mr. Kimmorley. It does not appear that either the appellant or the respondent procured its production. And from the statements on p. 9 of the Commissioner’s reasons it appears that he was in possession of information about the lease that did not appear on its face. He is able to state who the principals of the (agent) lessors were—a fact which does not appear on the document exhibited. The Commissioner places great store on this piece of information—very properly, assuming it to be accurate. The lease was of land bordering on that claimed. Because several lineages joined in 1960 in the grant of this lease, it is said that the appellant’s story that after the grant of land to L.M.S. Mission in 1899, the remainder of the Botai land became split among different lineages of the clan—is untrue. It was urged upon me that the lease indicates that the lessor agents and those the Commissioner says were principals are, as to Pipi Raho and Doura Pipi and Heni Mamina descended from Bemu Tolana; and as to Keni Heni, Hekura Igua and Lohia Kohu descended from Gari Tolana through Heni Gari. But the appellant claims his “donors” took through Lohia Gari another son of Gari Tolana. The fact that the lineage of his “donors” are not represented in the lease document could be said very strongly to show there had been a division of Botai land in 1899, and to support his claims. Why else should Morea Igo Tolana and Hekoi Tolana not have shared in rents of this adjoining land, if the whole Botai (Elevara) owned the leased land? If it was leased without the concurrence of Lohia Gari’s lineage then on this theory, the lease would be invalid. On the other hand, if it were valid, Hekoi Tolana would be able to call for an accounting of rent paid to date. Morea does not claim through Gari Tolana but through Lohia Gari. It is pointed out that Tolana Igodai the grandfather of Morea Igo Tolana is identical with the Tolana Igo appearing in the transfer No. 433 exhibited before the Troika, as the second named transferor who was granting land in 1899 to the Government for the Mission. Other significant features are that of the respondent’s witnesses, Doura Raho agrees some piece of the subject land could have been sold; and Lohia Kohu does not deny the possibility of it all having been sold. Both witnesses said this land was Tolana Igodai’s. I do not think that the evidence is such that I could find on a “weight of evidence” ground, that the Commission was “clearly wrong” within the principle most recently stated in Da Costa’s case[cci]8, but I should consider the Commission to have made an error in law if it did not consider the possibilities enumerated above. And it appears that it could not have done so, when one looks at the reasons for decision. For myself I should have found great force in these submissions of Mr. Young as to the effect of the evidence as it now stands in establishing the appellant’s claim.

DELAY

A great number of submissions have been made to me on the question of delay. In view of the course which I consider I should take and in deference to counsel’s submissions, I feel I should say a word on that. Before the Commission, delay was not raised by the parties; but the Senior Commissioner had regard to certain assumptions as to native custom and proceeded to deal with the question of delay as a matter of fact only, and as to whether it amounted to an admission. Counsel for the appellant contended that there had been delay by the respondent and it should have been dealt with as a matter of law. Various passages in Bramell’s notes were cited to show the uncertainty and variability of Hanuabaden custom. A relevant question for the Commission was to consider whether in customary law the clan rights had been given over to lineage rights. I would, with respect, agree that this is a matter for the Commission. It is also said that the equitable doctrine of laches should have been applied to bar the respondent’s objections and that if there were any conflict between customary law and the equitable doctrine, that equity should prevail. It is said that in effect, the respondent by his objection is applying for declaratory (i.e. equitable) relief and that he can be met with the reply of laches. Now the doctrine of laches is usually defined in some such terms as “that delay defeats equities or that equity aids the vigilant and not the indolent. A court of equity has always refused its aid to stale demands where a party has slept upon his rights and acquiesced for a great length of time. Nothing can call forth this Court into activity but conscience, good faith and reasonable diligence; when these are wanting, the Court is passive and does nothing” (Lord Camden). But the question of the occurrence of laches arises, in my understanding, only where resort is had to the enforcement of an equity or where the court of equity’s remedies are called upon. It is sufficient I think if I say, with respect, that I share the learned Commissioner’s apparent doubt as to how a question of equitable rights can be seen to arise in this lodgment of an objection to a claim for a statutory right to a tenure conversion. It is difficult to predict the future course of this application and the arguments that may be presented. No doubt the Commission will consider such arguments as to the application of equities as can be presented.

LACK OF WRITTEN OBJECTION

A further ground of appeal was taken that the respondent was not properly before the Commission in that written objections had not been lodged. I think there is little merit in such a point and I merely say that it appears that the Commission quite properly deemed the respondent to be objecting and to be properly “an objector”.

FAILURE TO INVESTIGATE

The appellant also contended that there had been a “failure to investigate” by the Commission. This is a ground currently popular, as I have found in the appeals under the New Guinea Land Titles Restoration Ordinance. No duty comparable to that imposed under s. 42 of that Ordinance appears to be laid on the Commission under the Tenure Conversion Ordinance. While not allowing this as a ground of appeal I would agree that the Commission might judiciously have pursued inquiry:

(a) having Br&mell’s notes—into the relevance of custom described therein at ant d tes,wand ehether there mire might not have been possible changes in custom;

(b) &##160; &#160to theo the effect of delay in extinguishing rights in native custom;

(c) ـn into tveloevelopment of custom as to individual hgs by 1950 and subsequently;

(d

(d) ҈ her a custocustom was in existence or developing in 1899 tode clnd inneage tage tenure and whether linr lineage eage tenure was transferable to individuals;

(e) &##16;& the existonce or development of individual tenure stricto sensuontrawith y tenurtenure;

(f) < ; including ding enquiries of the witnesses themselves as to the abov>

ERROR OF LAW—EXCESS OF JURISDICTION

A further major ground of appeal was argued to the effect that the second stage hearing by a single Commissioner amounted to an error of law or excess of jurisdiction. In so far as a question as to native land was involved, s. 14(3) of the Land Titles Commission Ordinance required jurisdiction to be exercised only by the Chief Commissioner sitting with two Senior Commissioners. Once such a Troika became seized of the hearing there was no power to remove the Commission’s jurisdiction in that hearing to a single Commissioner, so the argument runs. Apart from the provisions allowing a single Commissioner to make enquiries on a review (s. 36(4)), the powers of the Commission to make arrangements for transfers of hearings would seem to depend upon Rule 17 (1968 Rules) made under s. 14(1) and s. 40(1). (I understand it does make preliminary enquiries (s. 15(1)) through single Commissioners who then aver the evidence and their findings to the full Commission and are questioned thereon.) Mr. Young contends that Rule 17 is ultra vires if it allows a transfer to a single Commissioner from a Troika already seized of an application—more particularly (as I understand the argument to be put) where the hearing overall, includes a s. 14(3) point. The principle enunciated by Professor de Smith Judicial Review of Administrative Action, 2nd ed., at p. 207 that “where a function vested in (an) administrative body incorporates a judicial element, the decision must be made by that body and not by one of its committees or officials unless there is express statutory authority to delegate power to decide”, is said to be applicable or, as Professor de Smith says (p. 282) “special tribunals and public bodies exercising functions broadly analogous to the judicial are also precluded from delegating their powers of decision in the absence of express statutory authority to that effect.” Lord Denning has summarised the position of a judicial tribunal in Barnard v. National Dock Labour Board[ccii]9—”No judicial tribunal can delegate its functions unless it is enabled to do so expressly or by necessary implication.” And Lord Somervell in Vine v. National Dock Labour Board[cciii]10—”Judicial authority normally cannot, of course, be delegated”. As the preamble to the Commission’s Ordinance declares, the Commission is intended to be a judicial tribunal. This is a question of jurisdiction, the argument runs, not one of the regulation of practice and procedure such as is provided for under s. 40(1). A single Commissioner is deprived of power under s. 14(3)—he cannot be given it under Rule 17.

Now it is clear that there was only one proceeding here (on two applications). The Troika’s record has this reference: “Further proceedings on the application will now be taken before a single Commissioner and the hearing of these proceedings will be notified . . .” The Commission’s notification subsequently stated: “The hearing will re commence . . .” The decision as subsequently announced by the Senior Commissioner alone, stated: “This application having been heard on Friday 24th July and subsequently before Acting Senior Commissioner Kimmorley, the Land Titles Commission declares . . .” And the record was signed by the Senior Commissioner alone. In his decision he had referred to “the hearing” having taken place “in two parts”.

Mr. Francis points to the concurrence of counsel representing the parties before the Troika, in the course then proposed, of referral to a single Commissioner. This he says, amounts to acquiescence working an estoppel. The parties are bound by their conduct and objection may not be taken now. The case of Magripilis v. Baird[cciv]11 was relied on. I consider that case distinguishable; a point of jurisdiction ot there involved. To say that parties are are bound by the way they have conducted cases is not the same as to say that parties are bound by the way a court, although with their concurrence, conducts itself without jurisdiction. If jurisdiction is here involved, no agreement of parties of acquiescence could I consider, confer on a single Commissioner, power expressly reserved from him by Ordinance. I doubt that authority need be cited for that statement.

Mr. Francis further contends that the transfer from the Troika to the Senior Commissioner was a mere matter of practice and procedure. A land tenure conversion hearing normally involves a separate and distinct adjudication as to whether land is native land, he says. There would normally first be a completion of an “adjudication record”. The inference from s. 8(1) of the Tenure Conversion Ordinance is that an application may be made without a prior “completion of an adjudication record”. Section 20 infers that the application will be before a single Commissioner.

I have found myself greatly troubled by this point. I have come to the conclusion that there has been no “delegation” by the Commission. The matter was at all times before the Commission—there was but the one hearing in two stages—the Commission being constituted at each stage in an appropriate way, having regard to s. 14(3) of the Land Titles Commission Ordinance. I consider there has been an arrangement intra Commission as to practice and procedure. The Commission at each stage made a decision on the evidence before it at that stage. I would therefore have disallowed the appeal on this ground. However, I can readily see that other minds could come to a different conclusion. I bear in mind that an appellate court should over-ride an exercise of discretion in regard to a matter of practice and procedure (if that it be, as I have found), only when satisfied that the course taken is likely to have led to a miscarriage of justice.

However, I am left with such an element of doubt as to the correctness of my conclusion in this regard that I propose to recommend (and I feel I should do no more than that), that in the rehearing which I intend to order, the bench of three original members should be reconstituted to complete the hearing of the applications. The course recommended might at least preserve the parties in this case, if not those in other cases, from chancing the hazards of a further appeal on this particular ground—from harnessing a fifth (if I may count myself a fourth) “runner” to the Troika.

The appeal will be allowed and the whole case remitted to the Land Titles Commission for rehearing. I have in mind that the Commission will take appropriate steps to, in effect, continue the hearing from the point to which the Troika had originally taken it.

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

Appeal allowed. Applications remitted for rehearing.

Solicitors for the appellant: Gaden Bowen & Stewart.
Solicitors for the respondent: Craig Kirke & Pratt.

[cxciv]Administration of the Territory of Papua and New Guinea v. Director of District Administration (Re Volupai) [1969-70] PNGLR. 303, at pp. 311, 312.
[cxcv][1969-70] PNGLR. 303.
[cxcvi][1963] HCA 41; (1963-64) 37 ALJR. 182.
[cxcvii] [1915] AC. 120, at p. 132.
[cxcviii][1911] UKLawRpAC 18; [1911] AC. 179, at p. 182.
[cxcix](1963-64) 37 ALJR., at p. 190.
[cc](1963-64) 37 ALJR., at p. 191.
[cci][1970] HCA 43; (1970) 44 ALJR. 455; (124) CLR. 192.
[ccii][1953] EWCA Civ 5; (1953) 1 All ER. 1113, at p. 1118H.
[cciii] (1956) 3 All ER. 939, at p. 951B.
[cciv] [1926] St. R. Qd. 89, at p. 91.