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

Dick v Investpac Ltd [2024] PGSC 114; SC2642 (28 August 2024)

SC2642

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM 5 OF 2023

BETWEEN:
BOKE DICK
Appellant

AND:
INVESTPAC LTD
First Respondent

AND:
THE HONOURABLE JOHN ROSSO, in his capacity as Minister for Lands and Physical Planning
Second Respondent

AND:
BENJAMIN SAMSON, in his capacity as Secretary for Lands and Physical Planning
Third Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Logan J, Lindsay J and Kaumi J
2024: 28^th August

ADMINISTRATIVE LAW – where the appellant applied for judicial review of decision to award State lease to other tenderer after s 62 of the Land Act 1996 process – where appellant not given opportunity to be heard during appeal process – where State lease was executed and registered while judicial review proceedings on foot – where no fraud alleged in registration of State lease – whether discretionary judicial review relief should be granted – appeal dismissed

LAND LAW – where State lease registered prior to determination of judicial review proceedings – whether relief could be granted in face of indefeasible title – whether ‘fraud exception’ to indefeasibility enlivened – appeal dismissed

Facts:

The appellant commenced judicial review proceedings in the National Court against the decision of the Governor-General, on advice, under s 62 of the Land Act 1996 (appeal decision). The appeal decision concerned the grant of a State lease over a particular parcel of land. The appellant had been awarded the State lease by the Land Board, but that decision was appealed by the first respondent under s 62.

While the judicial review proceedings were on foot, the State lease to the first respondent was executed by the Minister and registered on the land title register. The appellant did not allege any fraud occurred during this process.

The primary judge dismissed the judicial review proceedings. The appellant complained that the Governor-General, on advice, was unreasonable and biased. The appellant was not given notice or an opportunity to be heard on particular submissions made about him by the first respondent to the Governor-General.

Held:

1. [Logan J, with Lindsay and Kaumi JJ agreeing]: The registration of the State lease registered in favour of the first respondent granted that party indefeasible title.
2. Without showing an exception to indefeasibility, the appellant, despite showing that there was a lack of procedural fairness in the appeal decision, could not be granted any relief.
   

Cases Cited:

Papua New Guinean Cases
Mudge v Secretary for Lands [1985] PNGLR 387
Timothy v Timothy [2022] PGSC 82; SC2282

Overseas Cases
Assets Company Limited v Mere Roihi [1905] UKLawRpAC 11; [1905] AC 176
Waimiha Sawmilling Company Limited (in liquidation) v Waione Timber Company Limited [1926] AC 101

Legislation Cited
Constitution
Land Act 1996
Land Registration Act 1981

Counsel:
Mr. Kiluwe, for the Appellant
Ms. Kogora, for the First Respondent
Mr. Wangi Junior, for the Second to Fourth Respondents

Oral decision delivered on
28^th August 2024

1. LOGAN J: For reasons that follow, this is a very hard case in terms of outcome for Mr. Boke Dick; but that outcome is ordained by the system of title by registration in respect of the State lease in the events which have transpired. Further, that outcome is ordained by a decision of the highest persuasive authority, which has earlier been regarded as authoritative in Papua New Guinea.
   
2. Explaining why that is so requires, first, a recitation of particular background facts, none of which is controversial. The subject land is now described as allotment 81, section 1 in Kiunga Town. That land is now State leasehold land, but that was not always so.
   
3. Before it became State leasehold land and from about 2004 onwards, Mr. Dick invested a good deal of time, money and effort in improving what was once marsh land of no particular worth to the point where it was useful land for commerce. He did that of his own volition, but it is very clear that he did that in the hope that, if the land were converted to State leasehold land, he would become the registered proprietor of the State lease concerned.
   
4. So it was that, in 2015, Mr. Dick approached the Provincial Land Authority to the end of obtaining a State lease over the land.
   
5. On 10 April 2017, he made submissions to the Land Board for a State lease in respect of the land.
   
6. On 4 May 2018, he received notice from the Land Board that, after a tender process in which he participated, the Land Board had decided that his application to become registered proprietor was successful. The first respondent, Investpac Ltd, had also been one of the tendering parties for the grant of that State lease.
   
7. As was its right, Investpac instituted an appeal against the Land Board’s decision under section 62 of the Land Act 1996. That section provides:
   

62. APPEALS.

(1) A person aggrieved by a decision of the Land Board may, not later than 28 days after notice is forwarded under Section 58(10), forward a notice of appeal to the Minister.

(2) An appeal shall be accompanied by a deposit of K500.00, which shall, subject to Subsection (3), be refunded when the appeal has been decided.

(3) If the Head of State, acting on advice, thinks that the appeal has been made on frivolous grounds, the Head of State, acting on advice, may reject the appeal and direct that the whole or any portion of the deposit shall be forfeited to the State.

(4) Subject to Subsection (5), the Head of State, acting on advice, shall determine an appeal under this section, and his decision is final.

(5) Where an appeal under this Section is upheld, the Head of State, acting on advice, may refer the matter back to the Land Board for re-hearing.

8. Investpac made a particular submission to the Minister in support of its appeal. It is not necessary to set out in detail the terms of that submission, other than to note that, apart from promoting the merits of Investpac as the person to whom the State lease should be granted, particular allegations were also made by Investpac in relation to Mr. Dick. It is apparent on the evidence that neither the secretary nor the Minister, before advice was given to the Governor-General in respect of the determination of the appeal, afforded any opportunity to Mr. Dick to respond to the allegations which had been made concerning him.
   
9. In the result and by a decision published in the National Gazette No. G371 on 2 November 2020, the Governor-General, on advice, allowed Investpac’s appeal (the appeal decision). Notice of that decision was given to Mr. Dick. Unsurprisingly, he was aggrieved by that decision.
   
10. By a letter dated 13 November 2020 sent by his then lawyers to the department, Mr. Dick sought details of the process which had led to the appeal decision. Later that month, on 30 November 2020, Mr. Dick applied to the National Court for leave to review the appeal decision under section 62 of the Land Act.
    
11. In the meantime, as a sequel to the decision in respect of the appeal, administrative processes to the end of the grant of a State lease in respect of the subject land progressed. The lease that granted the subject land to Investpac was signed on 25 March 2021. The copy of the lease in evidence records that the lease was registered on the register of State leases kept under the Land Act on 13 April 2021. The signing of the lease and the registration occurred in the absence of any order of the National Court staying the implementation of the appeal decision. No such order was made upon the application of Mr. Dick.
    
12. The application for review eventually came on for hearing and was determined on 13 February 2023. The grounds of review agitated before the primary judge were based on an allegation of bias on the part of the Governor-General on advice and unreasonableness.
    
13. Neither of those grounds found favour with the learned primary judge. The question of whether there had been denial of procedural fairness was not expressly agitated before the primary judge, although it did feature in terms of a submission on the appeal. More particularly, no party raised before the primary judge that, even if a ground of review was made out, it was futile as a matter of discretion to grant relief, because registration of the State lease had occurred in the absence of any exception to indefeasibility, and in particular in the absence of any fraud on the part of Investpac.
    
14. The application for review was dismissed. Mr. Dick has now appealed against that order of dismissal. The relief he seeks, apart from the allowing of the appeal, extends to the making of an order removing Investpac from the register. Obviously enough, it would be futile even if we allowed the appeal and sent the case back to the Governor-General to re-determine, on advice and according to law, the s 62 appeal to do that if Investpac remained on the register.
    
15. On the hearing of the appeal, the Court drew to the attention of the parties a judgment of the Judicial Committee of the Privy Council, Waimiha Sawmilling Company Limited (in liquidation) v Waione Timber Company Limited [1926] AC 101 and the judgment of the Supreme Court in Timothy v Timothy [2022] PGSC 82; SC 2282 (1 September 2022), wherein, in the joint judgment of Justice Batari and me, that Privy Council judgment, along with others concerning the nature of the fraud exception to indefeasibility under Torrens system of title, was cited with approval and regarded as applicable in Papua New Guinea.
16. It is helpful in terms of understanding the outcome in the present appeal, in my view, to recite from the headnote in Waimiha the factual background to that case. In that case which came from New Zealand, the proprietor of land, registered under New Zealand’s equivalent of the Torrens system, agreed in 1916 to grant a right to cut timber on the land to the appellants. The appellants registered a caveat under New Zealand legislation in respect of the agreement. In 1920, the proprietor who had granted that right to cut timber sold the land to the respondents to the appeal. In June 1921, those respondents became the registered proprietors of the land.
    
17. As at the date of that registration, the New Zealand court had declared that the right to cut timber had been validly terminated by the vendor of the land to the respondents. However, to the knowledge of all parties, an appeal against that court determination was pending. An order had been made on the strength of the court determination discharging the caveat. From that order discharging the caveat, there had been no appeal. The registration of the respondents, as registered proprietors in succession to the vendor, had been carried out hastily as it was thought by those respondents that there might possibly be an injunction sought.
    
18. In July 1921, New Zealand’s Court of Appeal declared that the respondents had no valid ground for determining the agreement to cut timber. The appellants then claimed that the respondent’s title was subject to their rights under the agreement. New Zealand’s Torrens system legislation provided materially that except in the case of fraud, a registered proprietor held free from any claim not appearing on the register, subject to some exceptions that were not material in that case. There was also a provision that knowledge of an unregistered interest should not be imputed as fraud.
    
19. In the Judicial Committee, it was held that the circumstances in which the respondents had obtained registration did not constitute fraud within the meaning of the exception to indefeasibility in the New Zealand’s legislation. The result of that was that the respondent’s title was not affected by the dependency of the litigation with regard to the appellant’s rights under the agreement.
    
20. In so doing, the Judicial Committee followed an earlier judgment of the Judicial Committee in another appeal which had come from New Zealand, Assets Company Limited v Mere Roihi [1905] UKLawRpAC 11; [1905] AC 176.
    
21. Both Waimiha and Mere Roihi were each regarded in Timothy as containing authoritative statements of principle in relation to the fraud exception in respect of indefeasibility under Papua New Guinea’s equivalent Torrens system. The pertinent authorities, both overseas and in Papua New Guinea, are collected in the judgment of Justice Batari and me in Timothy (see [39]-[50]).
22. It is fair to say that, in respect of the fraud exception in s 33(1)(a) of the Land Registration Act 1981, the root authority in Papua New Guinea is this Court’s judgment in Mudge v Secretary for Lands [1985] PNGLR 387. That judgment is approving of cases which in other jurisdictions have held fraud means actual fraud.
    
23. That said, since then, there has developed another view in Papua New Guinea that fraud means not just actual but also constructive fraud. That view is contrary to overwhelming authority concerning the nature of the fraud exception in the Torrens system, as recognized in Mudge.
    
24. What follows is that the facts of the present case are uncannily similar to those in Waimiha. Here, there was a process which led to registration as a sequel to be allowing of Investpac’s appeal. A challenge to that appeal by way of an application for judicial review was on foot but there was no stay of the operation of the appeal decision. All that the Registrar of Titles did was to give effect to the apparent outcome, as gazette, of that appeal under s 62; there was no impediment in law, as would have occurred had there been a stay, to the Registrar of Titles proceeding in that way.
    
25. There is no evidence whatsoever of any actual fraud on the part of Investpac, the secretary or the Minister in tendering advice to the Governor-General. That being so, had the point been raised before the primary judge, even if his Honour had found merit in the grounds of review which were agitated, it would have been pointless granting relief because registration had occurred in the absence of any proven exception to indefeasibility.
    
26. In respect of the appeal to this Court, there is nothing to be said in terms of the conclusion reached as to an absence of any bias.
    
27. It sometimes said of grounds of review that they can run together, so that there can be an overlap. For example, between a denial of procedural fairness and a decision that is unreasonable. If we were to take an expansive view of the embrace of the allegation of unreasonableness, so as to include a denial of procedural fairness, it is quite clear on the evidence that Mr. Dick was not given an opportunity to be heard in respect of the appeal under s 62 of the Land Act. The nature of that decision affecting, as it did, Mr. Dick’s rights and interests, as the favourable grantee in the Land Board level determination, should have led to him being given an opportunity to be heard. Section 59 of the Constitution required that.
    
28. It should not therefore be thought that I am insensitive to a wrong that was done to Mr. Dick in the way in which the secretary and the Minister went about providing advice to the Governor-General about the determination of the appeal.
29. Even accepting that, however, there is just no actual fraud, on the evidence, that was perpetrated. The outcome is very similar to what looks to have been a legitimate grievance exposed in Waimiha. But in the absence of fraud, it would be pointless to send the case back for a re-determination of the appeal under s 62 of the Land Act.
    
30. Remedies on judicial review are discretionary. So that, even if we were to find that there had been a denial of procedural fairness in the exercise of discretion, it would be pointless to send the case back for an appeal hearing afresh, because nothing could undo the outcome and consequence of registration of the State lease. In the absence of the fraud exception being shown, Investpac has indefeasible title to that State lease.
    
31. For these reasons, I would dismiss the appeal.
    
32. In respect of costs, a prima facie way in which a costs discretion would be exercised would be that costs follow the event, with the event here being the dismissal of the appeal; that would see Mr. Dick have an order for costs made against him.
    
33. However, the basis upon which the appeal has been dismissed was a basis which the Court raised with the parties, although that was embraced by the respondents, namely, the consequences of registration and the absence of fraud and its ramification in terms of the utility, or rather futility, of sending the s 62 appeal back for re-determination. In effect, that means that the event has been dictated not by an absence of merit in a contention that the Court below should have found jurisdictional error, but just on the basis of a point raised by the Court rather than the parties concerning the discretion to grant relief.
    
34. In those circumstances, particularly given it was apparent to the Court that the s 62 process had entailed a denial of procedural fairness to Mr. Dick, my view is that there should be no order as to costs in respect of the appeal.
    
35. Further, whilst I would otherwise dismiss the appeal, I am persuaded that the order for costs in respect of the National Court should be set aside. This is because the case was one where, because the procedural fairness requirement in s 59 of the Constitution is of great importance and was always apparent (and it was also apparent on the facts that there had been a denial), it was just that, had the respondents raised the question of registration in the absence of fraud, the Court below should have dismissed the judicial review application.
    
36. So, the view that I have is that, while the judicial review application should always have been dismissed, it should always have been dismissed for reasons other than those which were given by the primary judge, who in turn was not given the benefit in submissions of the consequence of indefeasibility of title having occurred. Hence, my view is that the order for costs in the National Court should be set aside, such that there be no order as to costs in respect of that proceeding.
    
37. LINDSAY J: I have heard the reasons for judgment by the president of the coram. I agree with the reasons. I have nothing further to add.
    
38. KAUMI J: I have heard the President, Justice Logan’s decision and I concur with it. I have nothing further to add to it.
    

Orders

1. Subject to this order, the appeal be dismissed.
2. There be no order as to costs in respect of the appeal.
3. The orders of the National Court made on 13 February 2023 be varied so as to set aside the order for costs made against the plaintiff (now appellant). In lieu thereof, there be no order as to costs in the National Court.

__________________________________________________________________
Palem Onom Lawyers: Lawyers for the Appellant
Holingu Lawyers: Lawyers for the First Respondent
Office of the Solicitor General: Lawyers for the Second to Fourth Respondents