Home | Databases | WorldLII | Search | Feedback Supreme Court of Papua New Guinea

First Assistant Secretary, Department of the Administrator, on behalf of the Biangai Land Owining Group of the Kwembu, Baiawen, Kaisinik, Wandumi, Winima and Wurawura Villages v The Administration of the Territory of Papua and New Guinea and Leahy (re Por [1971] PGSC 20; [1971-72] PNGLR 442 (6 March 1972)

Papua New Guinea Law Reports - 1971-72

[1971-72] PNGLR 442 - First Assistant Secretary, Department of the Administrator, on behalf of the Biangai Land Owining Group of the Kwembu, Baiawen, Kaisinik, Wandumi, Winima and Wurawura Villages v The Administration of the Territory of Papua and New Guinea and Leahy (re Por

[1971-72] PNGLR 442

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

FIRST ASSISTANT SECRETARY, DEPARTMENT OF THE ADMINISTRATOR, ON BEHALF OF THE BIANGAI LAND-OWNING GROUP OF THE KWEMBU, BAIAWEN KAISINIK,WANDUMI, WINIMA AND WURAWURA VILLAGES

V.

THE ADMINISTRATION OF THE TERRITORY OF PAPUA AND NEW GUINEA AND LEAHY (RE PORTION 56, MOROBE)

Lae & Port Moresby

Frost SPJ

6 October 1971

6 March 1972

REAL PROPERTY - Restoration of title - Claims for absolute interest and leasehold interest - Provisional order in respect of claim for leasehold only - Certificate that no native claims made to land by natives - Subsequent claim to absolute interest by Administration - Only evidence, evidence of a granted application for a lease - No evidence to establish interest in land - New Guinea Land Titles Restoration Ordinance, ss. 9[cdlxxxiv]1, 10[cdlxxxv]2, 14[cdlxxxvi]³, and 33[cdlxxxvii]⁴, Land (New Guinea) Ordinance 1922-1958, s. 17[cdlxxxviii]5, Land Regulations (New Guinea), reg. 9[cdlxxxix]⁶ .

APPEAL - Parties to appeal - Entitlement of First Secretary on behalf of natives to bring appeal - “A person aggrieved” - Land Titles Commission Ordinance 1962-1970, s. 38 (1)[cdxc]⁷.

WORDS AND PHRASES - “A person aggrieved” - Land Titles Commission Ordinance 1962-1970, s. 38 (1).

L. claimed entitlement to restoration of a title as lessee of a registered leasehold of certain land known as “Portion 56, Morobe”. The Land Titles Commission then made a provisional order, provisionally restoring to L. a lease from the Administration in the subject land for ninety-nine years from 1st October, 1936. That provisional order was duly published in the Gazette and after inquiries the Director of District Administration filed in the Land Titles Commission a certificate that to the best of his knowledge and belief there were no native claims to the subject land. Subsequent to the filing of that certificate the Administration claimed entitlement to restoration of an absolute interest in the subject land.

The only evidence of title before the Land Titles Commission was evidence of the assignment to L. of a “granted application for a lease of surveyed lands” over the subject land.

The Land Titles Commission made a final order restoring the claimed absolute interest to the Administration and the above-mentioned leasehold interest to L.

An appeal was brought against the making of the final order by the Director of District Administration on behalf of native land-owning groups who claimed ownership of the land.

Held:

N1>(1)      That leave to amend the proceedings should be granted to enable the appeal to be made by the Director’s successor on behalf of the native land-owning groups on the ground that the latter fell within the expression “a person aggrieved” (as used in s. 38 (1) of the Land Titles Commission Ordinance 1962-1970) as being persons who were really and directly interested in the proceedings, as the effect of the final order was to deprive them of the rights they claimed to ownership and possession.

Day v. Hunter[1964] VicRp 109; , [1964] V.R. 845; Dentry v. Stott[1947] VicLawRp 34; , [1947] V.L.R. 462, applied.

Director of District Administration v. The Administration of the Territory of Papua and New Guinea and the Lutheran Mission Madang (Unreported. Kelly J.—30th September, 1970), followed.

Cases referred to:

Mill v. Scott; Ex parte Mill, [1955] Q.S.R. 210; Re Sidebotham; Ex parte Sidebotham [1880] UKLawRpCh 148; (1880), 14 Ch.D. 458; Re Reed, Bowen & Co. [1887] UKLawRpKQB 92; (1887), 19 Q.B.D. 174; Sevenoaks Urban District Council v. Twynam, [1929] 2 K.B. 440.

N1>(2)      That once a provisional order has been made in respect of a claim to certain land and the procedure under ss. 35 and 36 has been carried out in relation thereto, it is not a requirement of the Restoration Ordinance that if thereafter, before a final order has been made, the Administration exercises its right to make a claim in respect of any interest in that land, a second provisional order should be made in relation thereto.

Dictum of Clarkson J. in Director of District Administration v. The Administration of the Territory of Papua and New Guinea (Re Tol Extended), [1969-70] P. & N.G.L.R. 389, at p. 393, applied.

Semble:

That after a provisional order has been made by the Land Titles Commission, it has no jurisdiction to make a second provisional order.

Cases referred to:

The Administration of the Territory of Papua and New Guinea v. Toilu Mai, [1969-70] P. & N.G.L.R. 319. Director of District Administration v. Administration of the Territory of Papua and New Guinea (Re Tol Foreshore Reserve), [1969-70] P. & N.G.L.R. 381; Director of District Administration v. Dowling, [1969-70] P. & N.G.L.R. 398.

N1>(3)      That as there was no evidence to support any interest in the land held by the Administration or any entitlement to be registered in respect of such an interest nor was there any evidence to support any leasehold interest or agreement to grant such interest or entitlement in the claimant L. such as would show an interest in land or entitlement thereto under ss. 9 and 10 of the New Guinea Land Titles Restoration Ordinance the final order should be quashed and the case remitted for rehearing.

Director of District Administration v. Dowling, [1969-70] P. & N.G.L.R. 398, followed.

Appeal under the Land Titles Commission Ordinance 1962-1970, s. 38.

The facts and arguments of counsel are set out sufficiently in the judgment hereunder. The documents before the Chief Commissioner of the Land Titles Commission when he made the final order are set out below:

N1>1.       A claim made by Patrick Joseph Leahy dated the 10th September, 1953, the nature of the claim being for a leasehold interest in Portion 56, District of Morobe supported by an “assignment dated the 29th January, 1941”.

N1>2.       An assignment of interest in a granted application for a lease of surveyed lands under the Land Ordinance 1922, dated 29th January, 1941, whereby Michael James Leahy and James Luby Leahy of Upper Watut, miners, being the registered assignees of the rights of an applicant for an agricultural lease of the surveyed land in land, which was described as being agricultural lease No. 14 Morobe and Portion 56, District of Morobe, the application for which had been granted, in consideration of the sum of ś150 paid by Patrick Joseph Leahy of Wau, farmer, the receipt of which sum was acknowledged, assigned and transferred all the right and interest in and under the said application to the said Patrick Joseph Leahy. The assignment was expressed to be subject to the Administrator’s approval which in fact appears by the document to have been given at Rabaul on 21st February, 1941. It is to be noted that the document bears the endorsement, “Registered in Assignment Register, vol. 1, folio 69, on this 21st day of February, 1941 ”.

N1>3.       A provisional order made on 9th November, 1953, in conexion with a claim to re-establish ownership as at the appointed date of registered interest in Portion 56, District of Morobe, whereby it was established that on the appointed date the following registered interest in the said land was owned by the following person—“Lease from the Administrator for the Territory of New Guinea for ninety-nine years from the 1st October, 1936, by Patrick Joseph Leahy and that no native or native community was at the appointed date entitled to any native customary rights in respect of the said land.”

N1>4.       An extract from the Government Gazette dated 23rd November, 1953, of the making of the provisional order.

N1>5.       A certificate under s. 36 (b) of the Restoration Ordinance by the Director of Native Affairs to which I have already referred.

N1>6.       A claim dated 30th November, 1953, by the Administration of the Territory of Papua and New Guinea to a freehold interest to land including the subject land stated to be acquired by purchase from the native owners, and by declaration of waste and vacant land, and further stating that the certificate of title or instrument evidencing title was lost through enemy action.

N1>7.       A claim dated 30th January, 1954, by the Administration of the Territory of Papua and New Guinea to a freehold interest in Portion 56, District of Morobe stated to be acquired by transfer from the native owners and further stating that the certificate of title and other instrument evidencing title was lost through enemy action, and that the sources of knowledge of the facts stated in the claim were the provisional order for leasehold in favour of P. J. Leahy, Gazette 28th December, 1953.

Counsel:

O’Neill, for the appellant.

Tuthill, for the first respondent.

No appearance for the second respondent.

Cur. adv. vult.

6 March 1972

FROST SPJ:  This is an appeal brought by the Director of District Administration against a final order made by the Chief Commissioner of the Land Titles Commission on 29th July, 1965, whereby in connexion with claims to re-establish ownership as at the appointed date under the New Guinea Land Titles Restoration Ordinance of interests in certain land known as Portion 56 of the District of Morobe it was established that, on the appointed date, the interests owned were absolute ownership by the Administration of the said land subject to a lease from the Administrator of the Territory (excluding a public road shown on a map annexed to the order), on the terms and conditions normally applicable to an agricultural lease for ninety-nine years from 1st October, 1936, in favour of Patrick Joseph Leahy, and further that the Administration and the lessee were entitled to be registered as owners of their respective interests in the Register Book and the Register of Administration Leases, and further that no native customary rights were retained on the appointed date by a native or native community in respect of the said land or any part thereof.

At the hearing counsel for the appellant sought leave to amend the proceedings to substitute for the Director of District Administration as the appellant, the First Assistant Secretary, Department of the Administrator, on behalf of the Biangai land-owning groups of Kwembu, Baiawen, Kaisinik, Wandumi, Winima and Wurawura villages. The application was not opposed by counsel for the respondent in so far as it provides for the name of the Director’s successor to be substituted, but he opposed the application in so far as the proposed amendment added a representative capacity. I then gave leave to counsel for the appellant to read affidavits by villagers of four of the afore-mentioned villages of the Biangai land-owning group. These affidavits were in similar terms and deposed that on 8th August, 1965, a certain assistant officer had informed a group of the Biangai land-owning group assembled from those villages that the Land Titles Commission had made a decision that the said Portion 56 was owned by the Administration. In each affidavit the deponent then went on to depose that he had informed the Assistant District Officer that this land was owned by his land-owning group, that the Administration had never paid for the land, and that each had requested that an appeal be lodged against the Land Titles Commission’s decision.

After hearing argument I granted leave to amend in accordance with the application for reasons which I then gave, and which it is convenient to set out in this judgment. At the outset I should state that the final order was made without a hearing being held pursuant to s. 42 (2) of the Restoration Ordinance. From the certificate made by the Director of Native Affairs on 31st October, 1956, pursuant to s. 36 (b) of the Restoration Ordinance, it appears that subsequently to the provisional order the Director of Native Affairs (the Director’s predecessor) had certified that, to the best of his knowledge and belief, no native or native community was, or asserted that he or it was, on the appointed date, entitled to any customary rights in respect of the land in question. That certificate could only have been given following the notices given of the provisional order pursuant to s. 35 of the Restoration Ordinance and the inquiries which the Director was bound to make also under that section. Thus, when the claims came before the Chief Commissioner it is to be assumed in favour of the respondent that due notice had been given that any native or native community asserting that he or it was at the appointed date entitled to native customary rights in respect of the land, might lodge with the Director particulars of those customary rights, that the necessary inquiries had been made but that no claims had been brought to the attention of the Director.

The argument submitted by counsel for the respondent was that the Director’s successor neither in his own right nor in any representative capacity was a “person aggrieved” within the meaning of s. 38 (1) of the Land Titles Commission Ordinance, which provides that a person aggrieved by a decision of the Commission may appeal to the Supreme Court within the time stated. Counsel relied upon Mill v. Scott; Ex parte Mill[cdxci]⁸, and the English authorities therein referred to. In that case the Full Court of the Supreme Court of Queensland held that a complainant in proceedings under the Justices Act of Queensland was a person aggrieved under that legislation and therefore competent to appeal by way of order to review. The first question is whether the expression “person aggrieved” is to be restricted to a party to the proceedings. In Re Sidebotham; Ex parte Sidebotham[cdxcii]⁹, Lord James stated that for the purposes of the English Bankruptcy Act, 1869 and an appeal thereunder: “A ‘person aggrieved’ must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him something or wrongfully affected his title to something.” It is plain that this definition does not limit the persons included in the expression to parties. In the same case Bramwell L.J. said, “certainly the general rule is that an appeal must be by the party who has endeavoured to maintain the contrary of that which has taken place”. In a later case Re Reed, Bowen & Co.[cdxciii]¹⁰, the meaning of “person aggrieved” was again considered under the Bankruptcy Act, 1883. Lord Esher M.R. referred to the judgment of James L.J. (supra), and then went on: “This is not an exhaustive definition, but it is an affirmative definition of a person who may appeal, and at all events it includes a person who has asked for a decision for which he had a right to ask, and has been wrongfully refused.” He then went on to approve the statement by Bramwell L.J. that the general rule is that the appeal must be by a party.

Counsel for the appellant cited the case of Sevenoaks Urban District Council v. Twynam[cdxciv]¹¹, in which Lord Hewart C.J. had occasion to consider the meaning of the words “person aggrieved” under the Public Health Act, 1925 of England, for his Lordship’s view that, “there is often little utility in seeking to interpret particular expressions in one statute by reference to the decisions given upon similar expressions in different statutes which have been enacted alio intuitu”. Despite this useful reminder, counsel then went on to refer to Day v. Hunter[cdxcv]¹², a judgment of the Full Court of the Supreme Court of Victoria upon the meaning of the words “any person who feels aggrieved” in relation to proceedings by way of order to review under the Justices Act 1958 of Victoria. Under s. 155(4) of that statute the expression “any person who feels aggrieved” is defined to include as well as a defendant, any informant to an information charging an indictable offence or one punishable upon summary conviction who is dissatisfied in respect of any order or determination, etc. In the course of considering whether an applicant for an order to review had sufficiently shown himself to be a “person who feels aggrieved”, the judgment of the Full Court shows that it fully recognized that someone who was not a party to the proceedings in the court of petty sessions might be included in that expression, and thus entitled to proceed by way of order to review. The Full Court then referred to the case of a person not a party to the proceedings seeking to review a decision, and said: “Whether he can bring himself within these words depends on the facts of the case, and whether he is able to show that he is really and directly interested in the proceedings: see Dentry v. Stott[cdxcvi]¹³ where Fullagar J. (at that time a judge of the Supreme Court of Victoria) applying this test held a person, who was not a party to proceedings in the Court of Petty Sessions, to be a person who ‘felt aggrieved’ by the order complained of”: op. cit. at pp. 848-849. Accordingly I propose to refer to Dentry v. Stott. That case was concerned with an application pursuant to the National Security (War Service Moratorium) Regulations to a court of petty sessions for a warrant authorizing and requiring the delivery to the applicant, Hugh Dentry, of possession of a dwelling house on the ground that he was a protected person within the meaning of the regulations, and the dwelling house was about to become unoccupied. The owner of the dwelling house, Mary Stott, who was made respondent to such application, was served with notice of the application but as the dwelling house had already been let to one Phillip Murray she did not contest the application, and the Court made the order asked for. Subsequently Murray learnt of the making of this order and as the time had expired in relation to the first order, at his instance Mary Stott applied to a court of petty sessions, pursuant to s. 66 of the Justices Act for an order setting aside the order in favour of Dentry, and for a rehearing of the application. The Court refused both applications and Murray then obtained an order nisi to review the later decision. Fullagar J. held that Murray was a person aggrieved by that decision under s. 150 of the Justices Act 1928, and stated that, in his opinion, he was also a person aggrieved by the first order. Fullagar J. propounded the test set out above and then went on to hold that a person in the position of Murray, the person in occupation of the dwelling and claiming to continue to remain in occupation, was a person really and directly interested. In my opinion, the words of the Victorian legislation containing the definition of a “person who feels aggrieved” is not sufficiently different to prevent the meaning given by Fullagar J. to that expression being applied to the words “person aggrieved” in the Land Titles Commission Ordinance. Further, the facts of the present case are analogous to the facts of Dentry v. Stott (supra) and, in my opinion, the villagers in this case fall within the expression “a person aggrieved” as being persons who are really and directly interested in the proceedings, as the effect of the final order was to deprive them of the rights they claimed to ownership and possession.

Counsel for the appellant also relied upon the decision of my brother Kelly J. in Director of District Administration v. The Administration of the Territory of Papua and New Guinea and The Lutheran Mission Madang[cdxcvii]¹⁴. In that case his Honour, referring to the expression “person aggrieved”, said: “In the scheme of the New Guinea Land Titles Restoration Ordinance and of the Land Titles Commission Ordinance I do not consider that these words should be so narrowly construed as to include only a person who has, in a sense, been a party before the Commission. Rather it seems to be that any person who has a claim to have a right which he alleges has been infringed by an order of the Commission is a ‘person aggrieved’. Whilst normally it might be expected that such a right would already have been the subject of a reference under s. 35 of the Restoration Ordinance, there could be a situation where this had not happened, for example, because of a failure to comply with some procedural requirement whereby the making of such a reference had been precluded. A person who is thus, as it were, shut out from having a reference made on his behalf would I consider be a ‘person aggrieved’.”

For the reasons I have given I agree with that decision. Accordingly I gave leave to counsel for the appellant to make the amendments sought.

[His Honour then referred to the documents before the Chief Commissioner of the Land Titles Commission when he made the final order and continued:]

I propose now to refer to the amended grounds of appeal. The first main ground based on the fact that the Administration’s claim was made after the provisional order, is that the Land Titles Commission exceeded its jurisdiction in that it made a final order upholding the Administration’s claim to a freehold interest without having made a provisional order in respect of that claim. Counsel for the appellant submitted that the scheme of the legislation provided for a provisional order to be made as a condition precedent to a final order, and that a provisional order was to be made in respect of every claim. He relied upon s. 33 of the Restoration Ordinance, which provides that the Commission shall, after considering the claims and any other evidence which is available to it, but without being bound to hear any person, make a provisional order in respect thereof. Section 34 then provides as the next step in proceedings under the Restoration Ordinance, that the Commission shall each month cause to be published in the Gazette a notice in the prescribed form containing a list of all provisional orders made during the preceding month, and specifying a date as the date by which objections to the provisional order may be lodged. The section goes on to provide for the service by registered post of a copy of the notice upon the various persons including the occupier of the land, and also contiguous land. Under s. 35 it is provided that where the Director is served with a copy of the relevant portion of the notice he is to post up at the district office in which the land is situate a notice stating that he has been so served, and that any native or native community asserting any claim to native customary rights may lodge particulars of those customary rights. He is also to cause to be made any inquiries which he thinks necessary. Under s. 36 of the Ordinance he is required either to refer to the Commission the question of native customary rights, or certify to the Commission by writing under his hand that to the best of his knowledge and belief no native community was or asserts that it was at the appointed date entitled to any customary rights in respect of the land. Upon these provisions counsel for the appellant submitted that the provision for the making of a provisional order following a claim was mandatory so that, in so far as the final order established any interest in the Administration, it was made without jurisdiction. He relied upon the decision of O’Loghlen A.J. in Administration of the Territory of Papua and New Guinea v. Toilu Mai[cdxcviii]¹⁵, in which his Honour held that in his opinion, “the whole scheme of the Restoration Ordinance is mandatory”. However, this was not the view of Clarkson J. expressed in Director of District Administration v. The Administration of the Territory of Papua and New Guinea (Re Tol Extended)[cdxcix]¹⁶. In that case also the Administration’s claim was not made until after the provisional order was made. There was a claim for a registered Administration agricultural lease for ninety-nine years followed by a provisional order establishing as the registered interests, absolute ownership by the Administration and a lease by the Administration for ninety-nine years to the original claimant. The appellant’s argument was that the claim by the lessee could not support the provisional order in favour of both respondents and that the provisional order being invalid could not support the final order. His Honour held that: “the failure by the Administration to file a claim until after the making of the provisional order was an irregularity of procedure which did not prejudice the appellant or anyone else and did not invalidate the final order when made.”

To decide this question it is necessary to give more detailed consideration to the Restoration Ordinance. The Administration’s claim seems to have been made under s. 14 which provides as follows:

“Notwithstanding the expiration of any time prescribed by this Ordinance in which claims, objections or applications are to be made or notices given, the Administration may make a claim, objection or application, or give notice in respect of any interest, at any time before a final order has been made in respect of the land concerned.”

This section does not appear to have been cited in the two cases I have referred to, and it was not referred to by counsel before me.

It follows, in my opinion, from the wide words of this provision that the Administration may make a claim after a provisional order has been made so long as it is made before the final order has been made. The question then is whether s. 33 is applicable so as to require the Commission to make a second provisional order in respect of the Administration’s claim. Counsel for the appellant submitted that the protection of native rights was paramount and required this result. In reaching a conclusion upon this point, it is to be noted that, as the effect of the notice, to be given under s. 35 (a) is that any native or native community asserting native customary rights in respect of the land might lodge with the District Commissioner particulars of those customary rights, the particulars to be lodged were thus independent of and unrelated to the interest established under the provisional order. Similarly under s. 36 of the Restoration Ordinance it is merely the question of native customary rights which the Director is to refer to the Commission or as to which he is to certify, which is a matter also unrelated to the nature of the interest established by the provisional order. Accordingly so far as those two sections are concerned the making of a second provisional order would appear to serve no useful purpose. On the whole I have come to the conclusion that s. 14 is the overriding provision and that, in the absence of any express requirement that a further provisional order should be made, once a provisional order has been made in respect of a claim to certain land and the procedure under ss. 35 and 36 has been carried out in relation thereto, it is not a requirement of the Restoration Ordinance that, if thereafter, before a final order has been made the Administration exercises its right to make a claim in respect of any interest in that land, a second provisional order should be made in relation thereto. Accordingly, in my opinion, the grounds of appeal based upon the Administration’s claim being made after the provisional order fails.

The reasons for this conclusion are twofold. First the possibility that the Administration might exercise its right to make a claim under s. 14 in respect of any interest in land the subject of a provisional order, is a matter which all persons, including the Director and the persons to whom notice was to be given under s. 34 (2), are required to take into account. (The same consideration would seem to apply to late claims permitted under s. 25 (4).) Whether any claim was made by the Administration after the making of the provisional order might be ascertained by searching the Register of Claims and Objections which the Commission is required to keep under s. 27. See also s. 29 which provides for the giving of notice, if the Commission thought fit, of an amended claim. Further, under s. 39 (3) the Commission has power, if in its opinion it is just and equitable so to do, at any time before a final order is made, to grant permission to a person to make an objection, notwithstanding that the specified time has expired, and an objector might be directed by the Commission to withdraw his objection and make a claim under s. 40. Note also the reference to claims which “relate to” a final order under s. 42 (1).

Now the only purpose which counsel for the appellant argued required the making of a second provisional order after a claim made thereafter by the Administration, was the giving of notice to natives under s. 35 and also to the persons mentioned in s. 34 (2). But in view of the provisions to which I have referred, no person could be said to be prejudiced by the Administration making a claim after a provisional order, and, in my opinion, as the effect of those provisions is to make special provision for due notice of all claims, including those made after the provisional order, upon the proper construction of the Ordinance the Commission was not required to make a second provisional order.

Secondly, whilst I do not consider that I should go so far as to express a concluded opinion upon this matter as it was not argued, I consider that there is much to be said for the view that the claims which the Commission is to consider before making a provisional order under s. 33, are all the claims made in respect of the land prior to the date specified under s. 25 (1) as the date not later than which claims must be made, and in view of the provisions for the keeping of the Register of Claims and Objections which any person might search to ascertain any claims or objections made after the provisional order pursuant to ss. 14, 24 (4) or 39 (3) of the Restoration Ordinance, the Commission was functus officio under s. 33 once a provisional order was made, so that it has no jurisdiction to make a second provisional order. I note that Clarkson J. in Re Tol Extended[d]¹⁷, suggested in the circumstances of that case the making of a second provisional order, but the provisions I have referred to do not appear to have been mentioned before him.

Accordingly, in my opinion, the grounds of appeal based upon the Administration’s claim being made after the provisional order fail.

The other main ground of appeal was either that there was no evidence to support the final order, which would be, of course, an error of law within the meaning of the Land Titles Commission Ordinance, s. 38 (2) (c), or, alternatively, the final order was against the weight of the evidence pursuant to s. 38 (2) (aa). Counsel for the respondent submitted that a final order made without a hearing, as in this case, under s. 42 (2) could not be challenged upon the above grounds by reason of the Commission’s jurisdiction thereunder to make an order in such terms as it thinks just. This was a point raised before me in Re Tol Foreshore Reserve[di]¹⁸, but, in view of the grounds of appeal being made applicable generally to the decisions of the Commission, I consider the submission untenable.

Taking first the claim by Mr. P. J. Leahy, counsel for the respondent conceded that the final order could be supported only under ss. 9 and 10 of the Restoration Ordinance, so that the question was whether the appellant has shown that there was insufficient evidence in law to show that that claimant had an interest in the land and was entitled to be registered as the owner of or entitled to that interest. An interest in land is defined under s. 4 to mean a proprietary right, title or estate in land, whether corporeal or incorporeal and whether legal or equitable. The relevant portion of s. 10 is sub-par. (c) which provides that, for the purposes of s. 9, a person shall be deemed to have been entitled to be registered as the person entitled to an interest in land but for the failure of some person to execute a document which the first-mentioned person is in equity entitled to have executed.

Now there was no evidence before the Commission that any lease upon which Mr. P. J. Leahy could rely as an assignee, had been executed in favour of any person, so that the only way that claimant could have supported his claim was by proof of an agreement by the owner of the land to grant a lease for the term referred to in the granted application, viz., ninety-nine years, upon terms certain, which would have conferred a proprietary right upon him to the land in equity, and also a right to the execution of an instrument of lease. The assignment of the interest in the granted application for a lease of surveyed lands, which was the only evidence before the Commission, depends for its effect upon the provisions contained in Pt. IV of the Land (New Guinea) Ordinance 1922-1941, all of which are set out in the judgment of Minogue C.J. in Director of District Administration v. Dowling[dii]¹⁹. In that case the learned Chief Justice held that a granted application for a lease under the provisions of the Land Ordinance 1922-1941, s. 17, does not constitute an “interest in land” as defined in the Restoration Ordinance, so that the holder of such a granted application at the appointed date cannot, without further evidence, bring his case within the provisions of s. 9. Upon the facts of that case the application was granted in respect of unsurveyed lands but it is clear that his Honour did not restrict his statement of the law to granted applications of unsurveyed land. With great respect I agree with the learned Chief Justice’s reasoning. Under s. 17 (1) of the Land Ordinance, there was in this case a granted application, which appears to have been validly assigned to Mr. P. J. Leahy, concerning a lease of the subject land, which was surveyed, but the lease for some reason (not related to survey) could not immediately issue in accordance with such application. (The fact that the assignment was endorsed with a notice to the effect that it was registered in the Assignment Register with a stated volume and folio number and date cannot give the assignment any greater weight.)

Next it is to be noted that s. 17 (2) of the Land Ordinance provided that the granting of an application should not be held to guarantee, inter alia, the title of the Administration, and the granting of the application should be taken to be for such part only of the land as was Administration land. The reason for that express reservation is to be found in reg. 9 of the Land Regulations, which provides that an application for a lease of native land could not be considered by the Land Board unless accompanied by a certificate signed by the district officer of the district in which the land was situated, certifying that the native owners were willing to transfer the land to the Administration and that the transfer would not be detrimental to native interests. It follows that the Land Board had jurisdiction to grant an application prior to the acquisition of title in the land by the Administration. These provisions govern the position of both the Administration and the claimant for a lease. It follows that the hypothesis was equally open on the evidence that the land the subject of the claim was native land still subject to negotiation by a district officer for purchase upon the appointed date, which would explain the fact that a lease had not issued, as that the land had in fact been purchased before the appointed date, and the former hypothesis was not excluded.

In fact there was no evidence of title in the Administration apart from the assertion in the claim that the land was either purchased from native owners or by declaration of waste and vacant land, and the fact that the claim was supported by affidavit and thus verified cannot remedy the lack of evidence of any such purchase or declaration. Accordingly, in my opinion, there is no evidence to support any interest in the land held by the Administration or any entitlement to be registered in respect of such an interest. It also follows that there was nothing to support any leasehold interest or agreement to grant such an interest, or entitlement to registration of any such interest in the claimant, Mr. P. J. Leahy.

For these reasons the appeal succeeds and the final order must be quashed. The question then arises as to whether I should order that the case be remitted to the Commission for rehearing. I have decided that for two reasons I should so order. First, in proceeding under s. 42 (2) the learned Chief Commissioner did not, in my opinion, investigate the claims which were before him, which was an obligation from which he was not absolved if he decided to proceed without a hearing under s. 42 (2). Secondly, although the Commission is given the power under s. 42 (2), without a hearing, to make a final order in the terms of the provisional order or in such other terms as the Commission thinks just, in my opinion, the Commission’s jurisdiction is limited by the provisions of s. 16 (2), which provides that where no objection is made to a provisional order, the Commission may make a final order substantially in terms of the provisional order without a hearing. In so far as under the final order the claim of the Administration to an interest in the land was upheld, in my opinion, it could not be said that the final order was substantially in terms of the provisional order. I thus consider that both claimants should have an opportunity to support their claims at a rehearing. I assume that the Commission will grant permission to the Director to make an objection pursuant to s. 39 (3) of the Restoration Ordinance. Accordingly the case will be remitted to the Commission for rehearing.

Order that appeal be allowed, the final order quashed and the case remitted to the Land Titles Commission for rehearing.

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

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