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Somare v Nen [2018] PGSC 81; SC1722 (30 October 2018)

SC1722

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]


SC REV NO. 10 OF 2016

REVIEW PURSUANT TO CONSTITUTION, SECTION 155(2)(b)

BETWEEN:
SIR MICHAEL THOMAS SOMARE, Prime Minister and Chairman
of the National Executive Council
First Applicant

AND:
NATIONAL EXECUTIVE COUNCIL
Second Applicant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Applicant

AND:
YANTA DEVELOPMENT ASSOCIATION INCORPORATED
Fourth Applicant

AND:
HENGAMBU LANDOWNERS ASSOCIATION
Fifth Applicant

AND:
THOMAS NEN - Representative for and on behalf of BABWAF CLAN
First Respondent

AND:
PIU INCORPORATED LAND GROUP
Second Respondent

AND:
ELEVEN OTHER CLAIMANTS IN THE SPECIAL LAND TITLES COMMISSION HEARING INTO THE WAFI/GOLPU MINE PROJECT LAND DISPUTE
Third Respondent

AND:
LAWRENCE B.W. TITIMUR – FORMER SPECIAL LAND TITLES COMMISSIONER
Fourth Respondent
AND:
ROBERT NONGA IRUNG – FORMER SPECIAL LAND TITLES COMMISSIONER
Fifth Respondent


AND:
RICHARD CHERAKE – FORMER SPECIAL LAND TITLES COMMISSIONER
Sixth Respondent


Waigani: Logan, Geita & Shepherd JJ.
2018: 28th August & 30th October


APPEALS AND REVIEWS – Appointment by Governor-General on advice of National Executive Council of Special Land Title Commissioners to resolve dispute as to customary ownership of land – Whether requirements as to manner and form of appointment observed – Whether failure to observe requirements rendered appointments nullities – Whether Commissioners entitled to opportunity to be heard prior to termination – Constitution, s 59 – Land Disputes Settlement Act (Ch No 45), ss 4, 66 - Land Titles Commission Act 1962, s 6(1).


REAL PROPERTY - Ownership of land - Disputed customary interest – Appointment by Governor-General on advice of National Executive Council of Special Land Title Commissioners to resolve dispute – Whether requirements as to manner and form of appointment observed – Validity of appointments – Land Disputes Settlement Act (Ch No 45), ss 4, 66 - Land Titles Commission Act 1962, s 6(1).


STATUTES – Interpretation – Appointment to office made by Governor-General on advice of National Executive Council other than in accordance with method specified by statute - Whether invalid – Whether statute covered the field in relation to such appointments - Mandatory and directory provisions - Purpose-based test.


Legislation:


Constitution ss 59, 116, 116(1)(a), 116(3), 153(2), 155(2)(b)
Land Act 1996 ss 11, 102
Land Dispute Settlement Act 1975 ss 4, 4(1), 4(3), 66
Land Titles Commission Act 1962 ss 6(1), 6(1)(a)(ii)
Interpretation Act 1975 ss 1(1), 87


Cases Cited:
Papua New Guinea Cases


Christian v Namaliu [1996] PGSC 34; SC1583
Isidore Kaseng v Rabbie Namaliu & The Independent State of Papua New Guinea (1995) SC 487; [1995] PNGLR 481
T Nen, for and on behalf of the Babwaf Clan and Ors v M Somare and Ors, OS(JR) No 156 of 2011, (6 November 2015)
Yanta Development Association Inc v Piu Land Group Inc [2005] PGSC 24; SC798


Overseas Cases


Chandler v Alberta Association of Architects [1989] 2 SCR 848
Cinnamon v British Airports Authority [1980] 1 WLR 582
Clayton v Heffron [1960] HCA 92; (1960) 105 CLR 214
Glynn v Keele University [1971] 1 WLR 487
Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780
John v Rees [1970] Ch 345
Marbury v Madison, 5 U.S. [1803] USSC 16; (1 Cranch) 137 (1803)
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 587
Mulloch v Aberdeen University [1971] 1 WLR 1579
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998)194 CLR 355
R v Guraj [2016] UKSC 65; [2016] All ER (D) 74
R v Soneji [2005] UKHL 49; [2006] 1 AC 340
R v Knights [2005] UKHL 50; [2006] 1 AC 368
R v Loxdale [1758] EngR 46; (1758) 1 Burr 445
Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22


Counsel:


Mr T Kamuta, for the First, Second and Third Applicants
Mr D Kipa, for the Fourth and Fifth Applicants
Mr H Wally, for the Sixth Respondent


30 October, 2018


  1. BY THE COURT: This is yet another case touching on land the subject of the proposed Wafi Gold Mine Project. The following account of its background draws upon that offered in the reasons for judgment of the National Court which, in turn, refer to those set out in an earlier such case in the Supreme Court, Yanta Development Association Inc v Piu Land Group Inc [2005] PGSC 24; SC798 (Yanta Development Association Inc v Piu Land Group Inc).
  2. The proposed project covers an area of 6,240 hectares (project land) in the Watut mountains of Mumeng Local-level Government District, Morobe Province. The project land lies within a larger area of 50,000 hectares of mountainous terrain, described as Portion 8C Milinch of Wasus and Fourmil of Markham, in that Province (Portion 8C). The land within Portion 8C has come to be known as “Piu”.
  3. There have been bitter and protracted disputes, extending back several decades, in relation to the entitlement to customary ownership of land within Portion 8C, including in relation to the project land.
  4. On 7 May 1985, after much litigation in both Local and Provincial Land Courts, the Fourth Applicant, Yanta Development Association Incorporated and the Fifth Applicant, Hengambu Landowners Association were recognized as 50:50 owners of the project land. This was confirmed on subsequent review in the National Court by Los J on 20 October 1989. In a 1982 court decision, the Babwaf Clan, on whose behalf the First Respondent sues, was recognized as the owner of land within Portion 8C known as the Magnese land.
  5. On 26 July 2001, the Second Respondent, the Piu Land Group Inc obtained from a Delegate of the Minister for Lands a Special Agricultural and Business Lease purportedly issued under ss 11 and 102 of the Land Act 1996 (Land Act) over the whole of Portion 8C. According to evidence given in Yanta Development Association Inc v Piu Land Group Inc, none of the other clans recognised as having interests within Portion 8C was aware of the application made by Piu Land Group Inc for this lease. Unsurprisingly, when the grant of the lease became known, they protested strongly about it.
  6. On 18 May 2003, reacting to these protests, the then Minister for Lands revoked the grant of the controversial lease, citing non-compliance with the requirements of the Land Act as the reason for so doing. The Piu Land Group Inc then applied for and, on 19 August 2004, obtained from the National Court an order for certiorari to bringing up and quashing the Minister for Lands’ lease revocation decision. In turn, in Yanta Development Association Inc v Piu Land Group Inc, the Supreme Court held that the order for certiorari had been irregularly made. The Supreme Court set aside that order. The Court also held that no valid leasehold title had passed to the Piu Land Group Inc, because the provisions of the Land Act had not been complied with.
  7. Thereafter, the Babwaf Clan (for whom Mr Thomas Nen sues), the Piu Land Group Inc and eleven other individuals who came in make claims in what became known as the “Wafi/Golpu Mine Project Dispute” and who are now the Third Respondents came to make Ministerial representations. Eventually, these representations culminated in a decision by the National Executive Council to appoint a Special Land Titles Commission “to hear and determine the longstanding customary land ownership dispute” over Portion 8C. The National Executive Council resolved to advise the Head of State to declare that the Land Dispute Settlement Act 1975 (Land Disputes Settlement Act) “does not apply” to that dispute and, pursuant to s 4(1) of that Act, to appoint Messrs Lawrence Titimur, Robert Irung and Richard Cherake, respectively the Fourth, Fifth and Sixth Respondents, as Special Land Titles Commissioners to hear and resolve that dispute. On 6 October 2008, the then Governor-General executed an instrument of appointment by which these gentlemen were so appointed as Special Land Commissioners, “by virtue of the powers conferred by s 6(1)(a)(ii) of the Land Titles Commission Act 1962 (Land Titles Commission Act) and s 4(1) of the Land Disputes Settlement Act and all other powers me enabling”. The making of those appointments was notified in the National Gazette published on 21 October 2008 (Gazette No G190). Significantly, the instrument of their appointment as executed by His Excellency and then gazetted did not also contain a declaration in terms of s 4(1) of the Land Disputes Settlement Act that that Act did not apply to the identified dispute.
  8. These appointments having been so made, conditions of appointment were determined by the Prime Minister and the Special Commissioners embarked on their duties.
  9. In 2010, the National Executive Council had occasion to revisit the subject of the appointment of the Special Commissioners. The view was formed that they had not been lawfully appointed. On 10 December 2010, the National Executive Council resolved to rescind its 2008 advice to the Head of State and, instead, to advise the Head of State to revoke the appointment of the Special Commissioners. In accordance with this advice, the Acting Governor-General revoked their appointments by an instrument of revocation signed on 19 January 2011. That revocation was notified in the National Gazette the following day (Gazette No G14 of 20 January 2011).
  10. It is common ground that the Special Commissioners were not offered an opportunity to be heard prior to the revoking of their appointments.
  11. The Special Commissioners subsequently challenged the legality of their removal in a judicial preview proceeding in the National Court. The absence of the prior offering to them of an opportunity to be heard persuaded the National Court to quash the decision to revoke their appointments: T Nen, for and on behalf of the Babwaf Clan and Ors v M Somare and Ors, OS(JR) No 156 of 2011, (6 November 2015).
  12. On 6 August 2017, the Applicants secured a grant of leave for the review by this Court, under s 155(2)(b) of the Constitution, of the National Court’s decision of 6 November 2015.
  13. As initially presented on behalf of the Applicants, this review application was said to raise large questions of relative predominance as between the constitutionally entrenched obligation to afford natural justice in, materially, administrative acts, found in s 59 of the Constitution and the limitation, found in s 153(2) of the Constitution, in respect of the justicability of decisions of the National Executive Council.
  14. As oral submissions progressed, it became apparent that the resolution of the case turned not on the answering of such questions but rather upon the true construction and application in the circumstances of s 4 of the Land Disputes Settlement Act. Further, it became common ground that, if there existed lawful authority for the appointment of the Special Commissioners, the learned primary judge was correct in his conclusion that they had been denied natural justice prior to the revocation of their appointments, with the consequence that his Honour was correct to direct the quashing of the revocation decision.
  15. In these circumstances, it is not necessary to set out the prolix grounds of review, much less to address them. It is sufficient just to address the question upon which the parties came to accept that the outcome of the review would turn.
  16. It is now necessary to set out s 4 of the Land Disputes Settlement Act:

EXCEPTION OF CERTAIN DISPUTES


(1) Where the Head of State, acting on advice, is of the opinion that special circumstances exist that require a dispute to be settled by means other than those provided by this Act, the Head of State, acting on advice, may, by notice in the National Gazette, declare that this Act does not apply to the dispute.
(2) Without limiting the generality of Subsection (1), the matters that may be taken into account in determining whether special circumstances exist within the meaning of that subsection include the following:–

(a) that the dispute is of long standing and that previous attempts at mediation have failed;

(b) that the dispute has already resulted in serious breaches of the peace;

(c) that there is no possibility of agreement being reached between the parties to the dispute;

(d) that it is in the national interest that the dispute be settled in some other manner.

(3) The Head of State, acting on advice, may, by regulation, determination or order, make provision for the settlement of a dispute to which Subsection (1) applies.
  1. Given the reference to it in the instruments signed by the Governor-General, s 6(1) of the Land Titles Commission Act 1962 should also be set out:

APPOINTMENT AND TENURE OF COMMISSIONERS


(1) The Chief Commissioner and all Deputy Chief Commissioners, Senior Commissioners and Commissioners–
  1. It is also relevant to set out s 66 of the Land Disputes Settlement Act:

JURISDICTION OF LAND TITLES COMMISSION.

(1) Where a Local Land Court is established under Section 21 in and for a province, the Land Titles Commission–
(2) Subsection (1) does not apply to or in relation to applications under Section 9 of the Land Act 1996
(3) Where a Local Land Court is established under Section 21 in and for a province, Local Courts cease to have jurisdiction under Section 15A of the Land Titles Commission Act 1962 (Adopted), in relation to land to which this Act applies in the province.
(4) The Provincial Land Court may request a Land Mediator to mediate any dispute notified to it under Subsection (1)(b) in accordance with this Act.
  1. As the earlier court outcomes attest, both a Local Land Court and, for Morobe Province, a Provincial Land Court have been established. Save where a declaration is made under s 4(1) of the Land Disputes Settlement Act that that Act does not apply to a given dispute and subject to a presently immaterial exception, the effect of s 66 of that Act is that these courts have jurisdiction in respect of disputes in relation to customary ownership of and interests in Portion 8C to the exclusion of the Land Titles Commission.
  2. Thus, one basis upon which it might be said that the Special Commissioners were never lawfully appointed is that the Head of State did not, in terms, as s 4(1) of the Land Disputes Settlement Act apparently required, make a declaration that that Act did not apply to the identified dispute. It was never sufficient just for the National Executive Council to so resolve. The Land Disputes Settlement Act required the Head of State to make a declaration, acting on the advice of the National Executive Council. True it is that the instrument signed by His Excellency made reference to s 4(1) of the Land Disputes Settlement Act, but the occasion for that reference was not specified. As a matter of first impression, a subject as important as the ouster of the jurisdiction of a Local Land Court and a Provincial Land Court by a declaration rendering their governing Act inapplicable is not one to be consigned to indirect inference. Nor, for the same reason and as a matter of first impression, is the requirement for a declaration other than imperative.
  3. An impression as to that importance is engendered by reading the Land Disputes Settlement Act and the earlier Land Titles Commission Act together and understanding the different regimes for the resolution of customary land ownership disputes for which they provide.
  4. The Land Titles Commission Act is a pre-Independence statute of continued application in Papua New Guinea. Reflecting the different stage of development and related administration of the then Australian Territory of Papua New Guinea, it makes provision for a form of inquisitorial investigation and related ascertainment of customary land ownership by Special Commissioners appointed by the Executive. In contrast, reflecting Parliament’s different, post-Independence aspirations, the Land Disputes Settlement Act, enacted in 1975, the year of Independence, makes provision for the gradual establishment of specialist courts, Local Land Courts and Provincial Land Courts, exercising the judicial power of a newly independent nation, to determine customary land ownership disputes and any subsequent appeals. As s 66 of the Land Disputes Settlement Act makes plain, Parliament’s intention is that, as Local Land Courts for a particular province are progressively established, the jurisdiction of the pre-Independence era conceived Land Titles Commission is to cease in relation to land to which that Act applies in that province. In the interim, until a comprehensive system of Local Land Courts is established throughout the country, the jurisdiction of the Land Titles Commission is preserved, thereby ensuring that, for each province, there is at least some formal means whereby, ordinarily, customary land ownerships disputes can be resolved.
  5. Against this background, s 4 of the Land Disputes Settlement Act can be seen to provide for what one might term a fail-safe mechanism, inserted in that Act by Parliament out of an abundance of caution to cater for special circumstances, the future nature, extent and duration of which might be unpredictable, which might render the contemplated, progressive assumption of the resolution of customary land ownership disputes by an exercise of judicial, rather than Executive, power impractical. It is not difficult to see how such a measure might have commended itself to the Parliament of a recently independent, developing country. But resort to s 4 represents a departure from the ordinary, orderly transition to judicial determination by specialist land courts of customary land ownership disputes contemplated by Parliament; hence the importance of express adherence to its terms.
  6. As it happens, answering the question which emerged in the course of submissions renders it unnecessary for a conclusion to be reached as to the correctness of that first impression in relation to the absence of lawful authority for the appointment of the Special Commissioners on the basis of the absence of an explicit declaration in the instrument as gazetted.
  7. It is obvious both from the reasons for judgment of the learned primary judge and the written submissions filed on the review that the parties hitherto proceeded on the basis that the resolution of the National Executive Council was sufficient compliance with the requirement of s 4(1) of the Land Disputes Settlement Act in respect of a declaration that that Act did not apply to the identified dispute. It seems then to have been assumed that there were no formal requirements necessary other than the execution and gazettal of an instrument of appointment of the Special Commissioners by the Governor-General. Put another way and again on the assumption that there had been compliance with s 4(1), the view seems to have been taken that no other statutory requirements flowing from the Land Disputes Settlement Act attended a lawful appointment of the Special Commissioners.
  8. If s 4(1) of the Land Disputes Settlement Act were to be read in isolation (and putting aside the absence of an explicit declaration), there would be much to be said in favour of that view. But reading a subsection of an Act in isolation is impermissible. It is necessary not only to read s 4 of the Land Disputes Settlement Act as a whole but also in the context of that Act as a whole and with regard to its subject matter, scope and purpose. Necessarily, that requires attention to be given to the meaning and effect of s 4(3) of the Land Disputes Settlement Act.
  9. The consequential question as to that meaning and effect might once have been framed as whether s 4(3) imposed a mandatory or directory requirement? But to frame the question thus may not be in keeping with contemporary approaches to statutory construction. In R v Guraj [2016] UKSC 65; [2016] All ER (D) 74, Lord Hughes (with whom Lord Neuberger, Lord Mance, Lord Reed and Sir Declan Morgan agreed), referring, at [15], to the earlier decisions of the House of Lords in R v Soneji [2005] UKHL 49; [2006] 1 AC 340 and R v Knights [2005] UKHL 50; [2006] 1 AC 368, observed that in these cases, “The House held that statutory provisions ought no longer to be classified as either mandatory or directory, but rather that attention should focus on what Parliament intended to be the consequences of failure to comply with them.”
  10. A similar approach is evident in the following passage in the joint judgment of McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998)194 CLR 355, at [93]:

A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to the language of the relevant provision and the scope and object of the whole statute.


  1. Such approaches to statutory construction are said to differ from the longstanding, earlier approach, of which the following observation made by Lord Mansfield CJ in R v Loxdale [1758] EngR 46; (1758) 1 Burr 445 at 447 [97 ER 394 at 395] is an exemplar, “[t]here is a known distinction between circumstances which are of the essence of a thing required to be done by an Act of Parliament, and clauses merely directory”.
  2. As to the place of a mandatory/directory classification, we are respectfully inclined to agree with an observation made by Gageler and Keane JJ in Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22 at [25] and their adoption of an explanation given in Clayton v Heffron [1960] HCA 92; (1960) 105 CLR 214 at 247:

[T]here remains utility in maintaining the traditional terminological distinction between an “imperative” (or “mandatory”) duty on the one hand, and a “directory” duty on the other hand, for the purpose of describing whether or not a material breach of an antecedent statutory duty results in an invalid exercise of a decision-making power. That distinction was explained in Clayton v Heffron when it was said:


“Lawyers speak of statutory provisions as imperative when any want of strict compliance with them means that the resulting act, be it a statute, a contract or what you will, is null and void. They speak of them as directory when they mean that although they are legal requirements which it is unlawful to disregard, yet failure to fulfil them does not mean that the resulting act is wholly ineffective, is null and void.”


  1. This type of “terminological distinction” is evident in earlier decisions of this Court in relation to the construction of provisions in the Constitution: see Isidore Kaseng v Rabbie Namaliu & The Independent State of Papua New Guinea (1995) SC 487; [1995] PNGLR 481 and Christian v Namaliu [1996] PGSC 34; SC1583. Of course the descriptions “mandatory” and “directory” have a conclusive quality about them but those descriptions remain useful as a means of categorising the end result of a process of construction which looks to the text of the provision in question in the context in which it appears and asks whether, having regard to subject matter, scope and purpose, Parliament intended that non-compliance with that provision in making a decision be attended with invalidity?
  2. Approaching the construction of s 4 in this way, the position which emerges is that, if the Head of State, acting on the advice of the National Executive Council, declares, pursuant to s 4(1), that the Act does not apply, s 4(3) requires that the Head of State, acting on that same advice, must “by regulation, determination or order”, make provision for the settlement of the identified dispute.
  3. The word, “may” in s 4(3) is empowering, not indicative of a discretion. The occasion for the exercise of the power is triggered by the making of a declaration under s 4(1). The exercise of the power conferred by s 4(3) is the legislatively ordained way in which particularity is given to the “means other than those provided by this Act”, referred to in s 4(1). Given the presence of s 4(3) and the express reference in that subsection to making, “provision for the settlement of a dispute to which Subsection (1) applies”, it would be a most unlikely construction of s 4(1), and one which we reject, to construe that section as leaving just to general executive power the specification of how the dispute is to be resolved and by whom. It would be distinctly odd, if not absurd, to construe s 4 as having the effect that, once a declaration under s 4(1) of the Land Disputes Settlement Act had been made, s 4(3) became inapplicable.
  4. It is inferentially obvious from the reference to s 6 of the Land Titles Commission Act that the appointment advice upon which the Governor General acted proceeded upon the assumption, erroneous for the reasons just given in relation to s 4(3) of the Land Disputes Settlement Act, that, if there were a s 4(1) declaration as to the inapplicability of that Act, the Land Titles Commission Act automatically applied. That erroneous assumption would though explain the later fixing of the remuneration of the Special Commissioners by the Prime Minister, as s 6(1)(e) of the Land Titles Commission Act would authorise, if it were applicable.
  5. For the Land Titles Commission Act to have applied without particular provision, the specification in s 4(3) of the Land Disputes Settlement Act for provision of a means of settling the dispute by “regulation, determination or order” would have to be regarded as directory, rather than mandatory. If it were but directory, non-observance of the requirements found in s 4(3) would merely mean that s 4(1) declaration that the Land Disputes Settlement Act did not apply rendered, materially, s 66 of that Act inapplicable such that the Land Titles Commission Act ordained method for determining customary landownership applied in the absence of there being any other method for that determination in respect of particular land (because the Land Disputes Settlement Act had been declared inapplicable).
  6. This is an unlikely construction of s 4(3) of the Land Disputes Settlement Act when read in context and having regard to the evident purpose of s 4 of that Act. We have already described the purpose of transition to the use of judicial power evident from reading the Land Disputes Settlement Act and the Land Titles Commission Act together. We have also described s 4 of the Land Disputes Settlement Act as a “fail safe” provision in the overall statutory scheme. The construction of s 4(3) of the Land Disputes Settlement Act better in keeping with this evident statutory purpose is that the Head of State must make particular, express provision in a particular, statutorily ordained way in respect of a dispute the special circumstances relating to which have persuaded the Head of State to declare the ordinary processes of the Land Disputes Settlement Act inapplicable. In short, there must be particular provision for dispute resolution responsive to the declaration concerning a particular dispute.
  7. That response may or may not be to take up the methods offered by the Land Titles Commission Act. It would have been very easy just to have made the Land Titles Commission Act apply by default once a declaration had been made. Subsection 4(3) does not do this but instead allows the Head of State, acting on advice, a large degree of flexibility to ordain a dispute resolution method considered apt for the circumstances of a particular dispute. To construe as merely directory a provision conceding such flexibility to the Head of State would be subversive of the fail safe purpose of s 4. Instead, it would impose a “one size fits all” outcome in relation to a dispute the very nature of which has moved the Head of State, on advice, to regard as special and thus warranting some specially related response. We therefore conclude that it was imperative that the Head of State comply with the requirements of s 4(3) of the Land Disputes Settlement Act.
  8. The prescription in s 4(3) of the Land Disputes Settlement Act is that the means of settlement of the dispute be provided for by “regulation, determination or order”. That means that the next question to be answered is whether the instrument signed by His Excellency and notified in the National Gazette published on 21 October 2008 (Gazette No G190) made provision for dispute resolution by “regulation, determination or order”?
  9. The statutory prescription, “regulation, determination or order” is hardly happenstance. It corresponds with particular types of instruments included in the definition of “legislative instrument” in s 1(1) of the Interpretation Act 1975 (Interpretation Act) (Ch 2). Such legislative instruments are particular types of subordinate legislative enactments (see definitions of “subordinate legislative enactment”, “subordinate enactment” and “subordinate legislation” in s 1(1) of the Interpretation Act). One material effect in the circumstances of the Interpretation Act therefore is that at least the making of the “regulation, determination or order” for which s 4(3) of the Land Disputes settlement Act provides must be notified in the National Gazette: s 87, Interpretation Act.
  10. Further, the prescription corresponds with the types of instruments which fall within the definition of “subordinate legislative enactment” in Sch 1.2(1) of the Constitution. In turn that means that Parliament has contemplated that the means of settling the dispute will be via that type of instrument which may be subject to disallowance by Parliament in accordance with s 116 of the Constitution. Once again, that such an instrument is contemplated corresponds with a legislative purpose in making provision in s 4 of the Land Disputes Settlement Act for a “fail safe” mechanism in to be adopted circumstances that commend themselves to the Head of State on advice of the National Executive Council as “special”. That the means of settling a particular dispute must be fixed by a type of instrument, which may be subject to parliamentary disallowance, is consistent with a parliamentary purpose revealed by the text of s 4(3) and the context in which it appears, of ensuring that there is scope for Parliament to question and check moves by the Executive to remove the resolution of particular customary ownership of land disputes from the ordinary process of an exercise of judicial power where the requisite specialist court has been established (or at least from the ordinary processes under the Land Titles Commission Act where no such court has been relevantly established).
  11. That failure to comply with a consequential tabling in Parliament requirement would not, of itself, make the “regulation, determination or order” concerned invalid (Constitution, ss 116(1)(a) and 116(3)) is no reason at all to construe s 4(3) of the Land Disputes Settlement Act in a way that would relieve the Head of State, acting on advice, from an obligation at least to make provision by a means which may be subject to parliamentary disallowance. With all of the potential for individual and collective pressures (or worse) to be brought to bear on a responsible Minister by some protagonists in an apparently intractable customary land ownership dispute, it would be subversive of an evident purpose of s 4(3) that the Executive might nonetheless permissibly act in some informal manner not amenable to parliamentary disallowance.
  12. In these circumstances, it would be an unlikely construction of s 4(3) of the Land Disputes Settlement Act to construe its prescription that the means of dispute resolution be by a “regulation, determination or order” as anything other than an imperative requirement non-observance of which resulted in invalidity. Accordingly, this supplies a further reason why we construe s 4(3) as intended to have the effect that the adoption by the Head of State of any other means other than a “regulation, determination or order” is not authorised by the Land Disputes Settlement Act and invalid.
  13. The next question becomes, does the instrument signed by the Governor General and gazetted amount to one or the other of a “regulation, determination or order”? It was that question that came to be addressed by the parties in the course of their oral submissions.
  14. Suffice it to say, as to this question the applicants made the understandable and relevant submission that the instrument as made and gazetted did not purport on its face to be either a regulation, a determination or an order. The contradicting submission was that, at least in substance, it was one or the other of these.
  15. The applicant’s submission as to what is revealed on the face of the instrument is correct. It is but a bare instrument of appointment in respect of settling a nominated dispute. But the submission that the question is to be judged by substance, not form alone, has merit, too, at least in the abstract.
  16. The difficulty is that, in substance, this instrument does not provide for how the nominated land dispute is to be settled and, having so done, appoint particular persons to undertake the task for which provision has been made. Instead, all is uncritically conflated or, alternatively, left to assumption as to exactly what provision has been made. There is no specification that the special commissioners mentioned are to hold office, be remunerated and exercise powers as if appointed under the Land Titles Commission Act. The latter Act did not, we reiterate, apply by default if a s 4(1) declaration were made. The procedures contained in the Land Titles Commission Act might, permissibly, supply one means by reference to which provision might be made for the settlement of a particular dispute but to comply with the imperative in s 4(3) of the Land Disputes Settlement Act, express provision to that effect was necessary.
  17. It bears repeating that the purpose of the imperative that provision be made by “regulation, determination or order” is to ensure that there exists a disallowable instrument for Parliament to consider and, if so disposed, to disallow. What may be the subject of disallowance is not necessarily the appointment of particular individuals but the particular provision for how the dispute is to be resolved to the exclusion of the usual means. Thus, the want of form in this instrument provides the signpost to the deficiency of substance in this instance. There was neither a regulation, nor a determination nor an order making provision for settlement of the dispute, only a bare instrument of appointment, bereft of the necessary supporting provision for the making of such appointment.
  18. It necessarily follows that the appointment of the Special Commissioners was, indeed, invalid.
  19. Does it make any difference to this conclusion that the Special Commissioners were not offered any opportunity by the National executive Council to make a submission in relation to the validity of their appointment prior to the tendering of advice to the Governor-General to revoke their appointment?
  20. One answer to this question is supplied by cases such as Glynn v Keele University [1971] 1 WLR 487; Mulloch v Aberdeen University [1971] 1 WLR 1579; and Cinnamon v British Airports Authority [1980] 1 WLR 582, which stand for the proposition that, if the result could have been no different if the opportunity to be heard had been extended, a right to relief on judicial review by way of a quashing or other order will be refused.
  21. This proposition is not without its critics, notably, Sir William Wade, who has referred to “the dubious doctrine that a hearing would make no difference” (Administrative Law (6th Edn, 1988), p 573). Where the administrative decision concerned turned on a matter of factual evaluation it would be a rare case in the exercise of judicial power to leave it stand in circumstances where the constitutional obligation (Constitution, s 59) to comply with principles of natural justice had not been observed. It would be enough to warrant a grant of relief that the affording of an opportunity to be heard might (not must) make a difference to the outcome: Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141; and see, latterly, Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780. One reason for that was memorably supplied by Megarry J in John v Rees [1970] Ch 345, 402 when observing that experience showed that that which is confidently expected is by no means always that which happens. A more fundamental reason is that, if the evaluation of facts is consigned by statute to an administrator in the discharge of an administrative decision-making power, it is no part of the role of the judicial branch to make or to second guess the result of that factual evaluation. In this regard, the judicial branch of government is concerned with the legality of the administrative decision, not with its factual merits: Marbury v Madison, 5 U.S. [1803] USSC 16; (1 Cranch) 137 (1803).
  22. But where the flaw in the administrative decision is one of law in circumstances where the background facts are an uncontroversial given it is difficult to see why the proposition that relief in respect of a denial of natural justice should be withheld if the result could be no different should not be accepted. Further and in any event, the Special Commissioners (and those of the other parties concerned to uphold the validity of their appointment) have, by virtue of this review proceeding, been afforded an opportunity to make submissions on the subject of the legality of their appointment.
  23. Another answer to the question posed may be that it was always within the remit of the Governor-General, acting on advice, to revoke the appointment decision upon realising that the earlier appointment decision had been made without lawful authority: Chandler v Alberta Association of Architects [1989] 2 SCR 848 at 861-862; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 587, at [52]. However, because this particular answer was not explored in depth in submissions, it is neither necessary nor appropriate to examine its correctness in depth. It is enough that the result could have been no different if the opportunity to be heard had been extended.
  24. What follows then is that the application for the review, pursuant to s 155(2)(b) of the Constitution, of the order of the National Court made on 6 November 2015 must be upheld. The order of that court quashing the decision revoking the appointment of the Special Commissioners must itself be quashed such that the revocation of their appointment remains in effect.
  25. Finally and lest it be thought that it has escaped our attention, we add that, even if the appointment of the Special Commissioners had been valid, it could never lawfully have been within their remit to determine any question as to the customary ownership of any land the ownership of which had already been the subject of a final judicial determination under the Land Disputes Settlement Act prior to their appointment.
  26. The point on which this case has come to turn emerged only in the course of oral submissions. It was not raised before the learned primary judge. Even so, the point having been raised, it was not conceded. On the basis on which the case was contested in the National Court, the result in that court was unremarkable. Before concluding the hearing of the review, we raised with the parties for submissions the proposition that, in these circumstances, the applicants ought not to have the benefit of an order for costs in this Court and in the court below. Taking into account the resultant submissions, we consider that the just result in respect of costs is to give the applicants their costs in this Court but to leave the costs order made by the National Court undisturbed.
  27. For these reasons, the following orders should be made:
    1. The order made by the National Court in proceeding OS (JR) N. 156 of 2011 on 6 November 2015 (National Court order) whereby:
      • (1) The application for judicial review was upheld.
      • (2) An order in the nature of certiorari was made bringing up and quashing the decision of the first and second defendants in that court of 11 January 2011 to advise the Head of State to revoke the appointment of the fourth, fifth and sixth plaintiffs in that court as Commissioners of the Special Land Titles Commission hearing the long standing customary landownership dispute in relation to the land known as “PIU” and identified as Portion 8C, Milinch of Wasus, Fourmil of Markham, Morobe Province.
      • (3) An order in the nature of mandamus was made compelling the first, second and third defendants in that court to facilitate the reinstatement of the fourth, fifth and sixth plaintiffs in that court as Commissioners of the Special Land Titles Commission to hear and determine the customary landownership dispute in relation to the land known as “PIU” and identified as Portion 8C, Milinch of Wasus, Fourmil of Markham, Morobe Province.
      • (4) It was ordered that the first, second and third defendants in that court shall pay damages for loss of salaries and allowance, if any, to the fourth, fifth and sixth plaintiffs in that court up to the date of the subject decision of 19 January 2011.
      • (5) It was further ordered that the defendants in that court pay the costs of the proceeding in that court to be taxed if not agreed.

be removed into this Court.


  1. Save in respect of its provision by paragraph 5 in respect of costs, the National Court order be quashed.
  2. The respondents pay the applicants’ costs of and incidental to the application, including reserved costs, to be taxed if not agreed.

_________________________________________________________________
Kamuta Lawyers: Lawyer for the First, Second and Third Applicants
Twivey Lawyers: Lawyer for the Fourth and Fifth Applicants
HBEST Wally Lawyers: Lawyer for the Respondent


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