Administration of Papua and New Guinea v Daera Guba

[1973] HCA 59

HIGH COURT OF AUSTRALIA

. Barwick C.J., McTiernan, Menzies, Gibbs and Stephen JJ.

ADMINISTRATION OF PAPUA AND NEW GUINEA v. DAERA GUBA.

(1973) 130 CLR 353

12 December 1973

Papua and New Guinea—Estoppel—Evidence

Papua and New Guinea—Native land—Purchase by Crown in 1886—Validity—Whether accord with native custom—The Land Ordinance of 1899 (British New Guinea), s. XI*—Land Ordinance of 1911 (Papua), s. 9**. Estoppel—By record—Whether limited to courts—Ad hoc tribunal with power to give final decision—Required to act according to equity and good conscience—Identity of parties—Estoppel by conduct. Evidence—Traditional evidence—Conflict—Testing traditional evidence by reference to modern known facts and documents—Search for more probable of competing histories. *(1973) 130CLR353, at p 423 ** Section 9 of the Land Ordinance of 1911 (Papua) provides that: "It shall be lawful for the Lieutenant- Governor by Proclamation in the Gazette to appoint a Board or Boards to decide all questions as to waste and vacant lands or lands alleged to be waste and vacant and all cases of disputed ownership of land in which a Papuan native is claimant. The Board in giving its decision shall be guided by the principles of equity and good conscience and shall not be bound by rules of evidence or legal procedure. An appeal shall lie from the Board to the Central Court. The practices regulating such appeals shall be as laid down in regulations to be made by the Chief Judicial Officer and published in the Gazette."

Decisions

1973, December 12.
The following written judgments were delivered :-
BARWICK C.J. Daera Guba, a Papuan, is the son of Guba Daera, deceased, who in his time was head of the Tubumaga Idibana, a part of a clan of Motu people who in relevant times lived in the area of Port Moresby in New Guinea. Each Motu clan has two sides or iduhu's, in this instance the one known as the Tubumaga Idibana and the other as the Tubumaga Laurina. Daera Guba is now the head man of the Tubumaga Idibana. On behalf of the Tubumaga clan he has laid claim to the ownership of some 42 acres of land in a portion of the town of Port Moresby, which is known as Newtown. The land claimed has been described by a survey plan prepared by an assistant district officer of the Administration of the Territory of Papua and New Guinea at Daera Guba's request, the boundaries there shown having been pointed out to him by Daera Guba as the boundaries of the land which he claims. These boundaries do not join fixed artificial marks at each point but in places the marks are natural features not of a fixed or permanently placed nature. The name Era Taora, which in the Motu language means flat land at Era, Era being a place name, was assigned by the claimant to the area of land claimed as being its traditional name, and I shall so refer to it in these reasons. It is contained within the letters A-K (excepting I) on the plan with which I have prefaced these reasons (1973) 130 CLR 353 at p 367 . For ease of reference to earlier proceedings and events, the land claimed has been divided into seven sections and each section is numbered and shown by means of different kinds of hatching on the prefaced plan. (at p368)

2. Lohia Doriga, a Papuan of the Giakone clan of the Koitapu people, has also laid claim to the same land on behalf of the descendants of Iramo Hada deceased. Apparently Iramo Hada was the leader of the Giakone clan. Lohia Doriga's brother is now the leader of that clan. Lohia Doriga is, as he says, its land controller. The Koitapu people also lived at relevant times in the area of Port Moresby in close association with the Motu people. (at p368)

3. Daera Guba on 7th February 1966 made an application in writing to the Land Titles Commission set up under the Land Titles Commission Ordinance 1962 of the Territory of Papua-New Guinea (the Ordinance) for an order that Era Taora be registered in the names of the descendants of Guba Daera deceased. The application was in due form to comply with the said Ordinance. The descendants of Guba Daera presumably are the Tubumaga Idibana. But at the hearing of this application before the Chief Land Titles Commission, Daera Guba claimed to represent all the Tubumaga people, that is to say, both the Tubumaga Idibana and the Tubumaga Laurina : and his application, without formal amendment, seems so to have been treated by the tribunals of Papua-New Guinea. (at p369)

4. Lohia Doriga made a similar application in writing for Era Taora to be registered in the names of the descendants of Iramo Hada deceased, who apparently constitute the Giakone clan of Koitapu. His application bears date 9th February 1966. (at p369)

5. These applications raised a contest between the two Papuan groups and, as well, a contest between each of them and the Administration of the Territory of Papua-New Guinea, as to the ownership of the land as at the respective dates of the applications. The case set up by each Papuan applicant is that his forbears owned the land at the time Her Majesty's British Government proclaimed a protectorate over the Port Moresby area of New Guinea in 1884 and that neither they nor their descendants at any time parted with that ownership. (at p369)

6. The Administration of Papua-New Guinea claims that officers of the Crown purchased on its behalf in 1886 from the people of the area, approximately 95 acres of land at Port Moresby which included substantially the whole of Era Taora as now claimed and that that land has been in possession of the Crown ever since though the Administration of the Territory has at times allowed Papuans to garden on some portions of it which at the time were not required for use by the Administration. Alternatively, the Administration says that what occurred in relation to the land in 1886 amounted to its acquisition by an act of State. The Administration further says (i) that any part of Era Taora which was not acquired by either method in 1886 became Crown land by virtue of an Order in Council made on 19th August 1901 pursuant to s. XI of the Land Ordinance of 1899 of British New Guinea, and (ii) that the ownership of the land now claimed and in dispute was authoritatively determined as between the Tubumaga and the Giakone people and the Administration by a decision of a Land Board given in 1954, the Board having been set up under s. 9 of the Land Ordinance of the Territory of Papua of 1911 (the Land Ordinance) to decide disputes as to the ownership of land where a Papuan was a claimant. (at p369)

7. The Papuans challenge the fact of a purchase in 1886 ; they deny that the officers of the Crown who are said to have made it were authorized so to do, this challenge involving Her Majesty's capacity in the circumstances to acquire any land from Papuans and, as well, the particular authority of the officers concerned to do so. The Koitapuans appear to concede that the officers of the Crown purported in 1886 to purchase Era Taora but they raise questions as to the capacity of Koitapu people to sell that land and as to their understanding of such a transaction as an outright purchase. Both Papuans raise questions as to the identity of the boundaries of the land purchased in 1886, if it is found that a purchase was made. The validity of the Order in Council is challenged by the Papuans and the identity of the land which was encompassed in its operation is called in question : it is denied that the area Era Taora was included. They also challenge the validity of the appointment of the Land Board in 1954 and assert that, in any case, its decision as to the ownership of the land was no more than an advisory opinion given to the then Lieutenant-Governor presumably for the purposes of s. 8 of the Land Ordinance and therefore not binding on them or the Land Titles Commission. (at p370)

8. The Administration, in its turn, so far as concerns the challenge to the authority to purchase the land in 1886, asserts that the purchase was ratified and adopted by Her Majesty's Government and by the Administration of the Territory of British New Guinea. The Administration has not sought to rest its claim upon its continued occupation of the land over such a considerable period of time but its possession of the land at the time these applications were filed cannot be ignored in the resolution of the dispute between the parties. (at p370)

9. It will thus be seen that the dispute between the parties has ranged over issues of fact and of law. In the proceedings, no living person has spoken of his own knowledge of the events of 1886. No memorandum was made at the time precisely recording the purchase which the Administration claims to have been made, though reference to such a purchase appears in official despatches and reports. The difficulties thus inherent in the nature of the dispute itself have not been reduced by the manner in which it has been dealt with by the primary tribunal in the Territory. (at p370)

10. The Chief Land Titles Commissioner appointed under the Ordinance heard the claims of the Papuans on 19th, 20th, 21st, 22nd and 25th March 1968. He took oral evidence from Papuan witnesses and had available to him a considerable body of official documents connected with the alleged purchase in 1886 and the subsequent dealings with the land. He found that the Tubumaga people owned the land in 1886 and that, with the exception of the portion marked "7" on the prefaced plan (1973) 130 CLR 353 at p 367 , they did not at any time sell any part of it to the Crown. He held that the Giakone clan did not own the land but that they did purport to sell it to the Crown in 1886. He found that the land did not fall within the area covered by the Order in Council of 1901 and that the decision of the Land Board in 1954 was not a decision binding on him nor one which estopped the Tubumaga clan or its members from making or succeeding upon the present claim. His reasons for arriving at these conclusions are quite meagre and uninformative. I shall need to return to them and their insufficiency at a later stage. However, it will be convenient to set them out in full before relating the subsequent curial history of the matter.

"The Land Titles Commission finds as follows :

(1) That at all relevant times the Tubumaga Clan were the owners of the land the subject matter of these Applications and that, subject to the 1956 and 1957 transactions as to part of the land, it was never sold by them.

(2) That, from time to time, members of other clans were permitted to use the said land because they were married into the Tubumaga Clan.

(3) That, the Giakone Clan, as such, had no rights in the said land.

(4) That the Giakone Clan purported to sell the said land to the Administration.

(5) That the Order in Council of 19th August, 1901, does not apply to the said land.

(6) That 'Era Taora', the subject matter of this Application, is native land (other than the parcels included in the 1956 and 1957 transactions which are Administration land). And the Land Titles Commission holds that the decision of the 1954 Land Board (Exhibit 'W') is not a judgment in rem
nor does it estop the Tubumaga Clan or members thereof and further that such decision is not binding on the Land Titles Commission.

And the Land Titles Commission declares that the subject matter of this Application, which is known as 'Era Taora'
and which is delineated in red on the plan attached hereto, is owned by the Tubumaga Clan the present leader of which is Daera Guba of Hanuabada."

(at p371)

11. The Administration appealed against this decision to the Supreme Court of Papua-New Guinea as by s. 38 of the Ordinance it was entitled to do : Lohia Doriga also appealed. That Court at first instance (Clarkson J.) upheld the Administration's appeal and reversed the decision of the Commissioner except as to one small parcel of land about which no contest remains. It is the small almost triangular piece marked "1" on the prefaced plan (1973) 130 CLR 353 at p 367 . Lohia Doriga's appeal was dismissed. (at p371)

12. However, the Papuans appealed to a Full Court of the Supreme Court which, by a majority (Minogue C.J. and Frost J., Prentice J. dissenting) reversed the judge of first instance, reinstated the decision of the Commissioner and dismissed the appeal by Lohia Doriga. The Administration now by its leave appeals to this Court. Lohia Doriga also appeals, seeking a reversal of the Commissioner's order and a rehearing of the claims. (at p372)

13. Clarkson J. was of opinion that the decision of the Land Board that the Administration owned the land now claimed, except the small portion no longer in dispute, was final and binding on both branches of the Tubumaga clan. He also thought that the acquisition of the land by the Crown in 1886 was effective to vest that land, less the now undisputed portion, in the Administration. He was of opinion that the Order in Council of 19th August 1901 was effective to vest in the Crown any part of the area it described which had not been theretofore acquired by the Crown, and that the description was apt to include the land now claimed. (at p372)

14. The Chief Justice held that there was no valid consensual acquisition of the land in 1886 ; that the terms of the Order in Council of 1901 were uncertain and could not be said to embrace the relevant part of the land claimed ; that the Land Board had not been validly appointed in 1954 ; and, further, that in any case its decision was not binding or authoritative. (at p372)

15. Frost J. was of opinion that the Land Titles Commission was entitled to refuse to find a valid purchase of the land in 1886 ; that the Order in Council was void for uncertainty and that the Land Board's decision was merely advisory and not final and binding. Consequently, the majority found no ground for disturbing the findings of the Land Titles Commission. (at p372)

16. Prentice J. held that there was a purchase of land including the claimed land in 1886 ; that the Order in Council was not void for uncertainty and was effective to vest in the Crown land not otherwise in its ownership in the relevant area of Port Moresby and that the Land Board was validly appointed and its decision final and binding. (at p372)

17. All members of the Supreme Court rejected the claim of Lohia Doriga. (at p372)

18. I shall hereafter refer to the land which is still the subject of dispute, that is, the land the subject of the application to the Land Titles Commission less the areas of land marked 1 and 7 on the prefaced plan (1973) 130 CLR 353 at p 367 , the title to which is no longer in dispute, as "the subject land". This land is contained in the areas numbered 2 to 6 inclusive on the prefaced plan. (at p372)

19. It is perfectly clear from the nature of the proceedings and the fact that neither group of claimants at the date of its application was in possession of the land that it rested upon each applicant to establish the title to the land which he claims as at the date of his application to the Land Titles Commission. This involved each of them in establishing both against the other and against the Administration that their forefathers were the proprietors of the land in 1884, whatever the nature of that proprietorship under their native customs might be. No intervening act of acquisition of the subject land by either applicant or the people he represents is suggested. Thus, proprietorship of the land was an issue which arose primarily between the two claimants : it was an issue to which the Chief Commissioner paid attention and which he purported to resolve. He had before him oral evidence of Papuans who had no personal knowledge of the situation in 1886. Precisely how he chose between the two accounts given to him does not appear. There was, to my mind, no "traditional evidence" given on behalf of Daera Guba but such "traditional evidence" as was given on behalf of Lohia Doriga supported the sale of the land to the Administration in 1886. The question of proprietorship of the land must be decided upon evidence in the sense of material produced before or made available to the Land Titles Commission which, though not being limited by the rules of evidence and being entitled to act upon "information" as distinct from evidence technically admissible before it, could range quite widely in the consideration of facts which were relevant to the question. Both the Supreme Court and, seemingly, this Court are similarly placed, each appellate court also being able to receive information additional to that which was before or available to the Commission : s. 38A (2) (aa) of the Ordinance. In fact the Supreme Court at first instance and on appeal and this Court have done so. But, however wide the area of investigation, the title must be the subject of proof. (at p373)

20. Lord Denning, speaking for the Judicial Committee in Twimahene Adjeibi Kojo II v. Opanin Kwadwo Bonsie (1957) 1 WLR 1223, at pp 1226-1227 has afforded guidance which is presently relevant as to the approach to be made in making a decision when conflicting "traditional evidence" is offered. He said, "Where there is a conflict of traditional history, one side or the other must be mistaken, yet both may be honest in their belief. In such a case demeanour" (of witnesses) "is little guide to the truth. The best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of two competing histories is the more probable." (at p374)

21. Here there is a conflict between the accounts, not really of a traditional kind, put forward on both sides by the Papuans. As well, assertion of past history is set up in contesting the Administration's claim to ownership of the land. In resolving these conflicts, it seems to me that that "evidence" and those assertions should be carefully weighed in the light of the probabilities derived from a consideration of the facts of that time as presently known. If the official records are accepted, as in my opinion after perusal and consideration they should be, there are many facts known about the situation at the relevant time in the area of Port Moresby. I might mention here that there is no trace in the reasons for judgment given by the Chief Land Titles Commissioner of his having set the evidence of the Papuans, such as it was, against the probabilities as far as they could be worked out from the known facts of the situation in Port Moresby in 1886. Indeed he has not provided us with any impressions he gained from the contemporary official documents ; or, for that matter, given any indication that he paid heed to them at all in coming to his scantily expressed conclusions. (at p374)

22. I have said that there was no "traditional evidence" given by or on behalf of Daera Guba. By traditional evidence I understand statements of a witness who claims either to have been the repository of the folklore of a primitive community or to have been told relevant facts by some of his forefathers who had an important place in that community, a standing which was likely to have made them knowledgeable in relevant respects. But the evidence for the Tubumaga clan in this case did not rise above mere assertion, without any attribution to any forbear of any information as to the asserted fact. Negation of events to which the official records refer was based upon a statement that the witness had not been told or heard of the event. The high point of the Tubumaga's case in the evidence led on its behalf, in my opinion, was Daera Guba's statement that "as far as he knew, the land belonged to the Tubumaga people", a statement which was no more than an assent to a question put in that form. (at p374)

23. The evidence in support of Lohia Doriga's claim did include some traditional evidence which, as I have said, tended to establish a purchase of Era Taora in 1886 and which seems to have been accepted in that sense by the Chief Commissioner, who found that there had been a purchase of Era Taora by the Administration in 1886 from the Giakone clan. But the Commissioner found that, although presumably on his view the "trade" for the purchase was distributed by the officers of the Crown amongst the Giakone and not the Tubumaga, they did not own the land : it belonged to the Tubumaga. (at p375)

24. It was a ground of appeal from the Land Titles Commission to the Supreme Court that the Commission's finding was against the evidence and the weight of the evidence : s. 38 (2) (aa) of the Ordinance. As the Land Titles Commission in this case could inform itself by referring to records and official documents, the oral evidence for what it was worth must be set against and weighed with the considerable amount of relevant official record: see s. 38 (2A) of the Ordinance. This consists largely of the Annual Reports of the Administration of British New Guinea made in 1886 and in 1888, of despatches and communications of which some are included or referred to in those Annual Reports, and survey plans, the details of which in my opinion have bulked disproportionately in the consideration of the case by the Supreme Court of Papua-New Guinea. (at p375)

25. The first question is whether the findings of the Land Titles Commission are erroneous, including in the possibility of error the making of a finding against the evidence and the weight of the evidence. It will be error if the findings are against the weight of all that "information" included in the official records and despatches of the time. (at p375)

26. The finding of the Commission that the Tubumaga and not the Giakone owned the land can only have been based on the oral evidence before it. Nothing in the official records, in my opinion, touches upon the question whether the land was owned by one group of claimants rather than the other. Certainly nothing supports the claim of the one against the other, not even the presence of Ah-oo-doo, said to be a chief, on the occasion on which the land is claimed to have been purchased, a matter to which I will separately advert. (at p375)

27. No examination seems to have been made by the Chief Commissioner of the basis upon which the particular boundary points forming the curtilage of the claimed land were fixed by Daera Guba. We know no more than that he indicated such points to the officer who prepared the survey to which the application refers. We do not know the basis on which he chose such points. From the history of earlier claims which had been made to the land, we do know that the boundary was not precisely constant throughout the period in which claims have been made to the ownership of the land. (at p376)

28. One matter to be noticed is the assertion of the Tubumaga people that they gardened on the subject land in 1884 and before. This does not seem to be borne out by Mr Cuthbertson's survey to which I shall later refer and which does not show any gardens on the subject land though he does show gardens elsewhere. Further, although if the official records are to be accepted the Papuans were unwilling to sell land on which they had gardens, they were not unwilling to part with the subject land, as well as other lands, e.g. the Badili lands to which later reference will be made. Also, the land was said in the official records to be unsuitable for agriculture though possibly usable as low class grazing land. The portion most in dispute in the case, an area referred to in the case as "the inner rectangle", marked WXYZ in the prefaced plan (1973) 130 CLR 353 at p 367 , was said to contain "stony ridges". True it is that at a later time gardens were made in some undefined and unidentified part of the subject land, but conditions both as to the numbers of the population and as to the availability of other areas had by that time probably changed considerably. Although it may be possible that the subject land at some stage and in some seasons in the past may have been used for the making of gardens, whether it was so used by the Motuans exclusively or by the Motuans with the permission of the Koitapu people as the Giakone claim, or by each of them, the Motuans and Koitapuans, as of mutually conceded right, is not capable of resolution at this remote point of time. The relationship between the Motuans and Koitapuans in relation to the land is quite unclear, the Motuans claiming that the only Giakone who gardened on the land were people who had entered the Motu clan by marriage. The Giakone, on the other hand, say that in the course of time they permitted the Motuans to garden on their land, the land remaining in the proprietorship of the Giakone clan. In any case, the fact of the use of land for gardens ought not readily to be accepted as itself evidence and certainly not conclusive evidence of proprietorship of an interest in the land either of the precise area gardened or some area surrounding the gardens. But, of course, such use of land would be confirmatory of a claim, otherwise evidenced, to proprietorship of land in the proximate area of the gardens. (at p376)

29. Viewed strictly, it would be my opinion that there was no evidence before the Commission that any proprietary interest in the claimed land was exclusively owned in 1884 by the Tubumaga clan, even if one rejected the evidence given on behalf of the Giakone clan accounting for the presence on that land of Motu people, if that be the fact. All the tribunals have rejected the claim of the Giakone. (at p377)

30. However, as the parties and the tribunals of Papua-New Guinea have largely focussed their attention on the claim of the Administration to have acquired the subject land, by one means or another, in and since 1886, I would not wish to decide the case now upon the footing that the Tubumaga clan had not established its proprietorship of the subject land though, in my opinion, they did not. A decision upon the claim to ownership by the Administration does not require a decision as to whether all the vendors to the Crown in 1886 were of one clan rather than of another. That aspect of the matter will appear when I come to treat of the probabilities in the light of the known situation in the area of Port Moresby at the time. (at p377)

31. Before turning to consider the probabilities in 1886 in relation to the dispute as to whether or not a transaction then took place which placed in the ownership of the Administration substantially the whole of the subject land, I should make two observations. (at p377)

32. First, the capacity according to their own customs of a Papuan or Papuan clan in the Port Moresby district in 1886 to sell interests in land so as to place it in the perpetual possession of the Administration free of claim by the sellers was disputed by counsel for the Papuans. But there were many such transactions referred to in the proceedings of which the validity or effectiveness has never been challenged, the purchasers having after purchase had the benefit of complete ownership and indefinite undisturbed possession of the land sold. Instances of these transactions occurred both before and after the transaction claimed by the Administration to have taken place in 1886 with respect to the land. Further, both Rev. W.G. Lawes who as at 1884 had had more than ten years' experience of the tribal customs of the people of the Port Moresby area, and his son, who later became resident magistrate of the Colony and knowledgeable of those customs, affirmed that the people of the area according to their customs owned and both individually and collectively sold their claims to the possession of land. For example, the Rev. W.G. Lawes in an article prepared at the request of Sir Peter Scratchley and published in the "Sydney Morning Herald" on 11th March, 1886 said :

"The land on the coast is all owned by families, each member having his own plot. They are accustomed to sell their land occasionally. A man who has but little will beg of one who has plenty. Sometimes they loan it for one crop - a short rental really. Often, however, it is an absolute sale. In this case it does not revert to its original owners on the death of the purchaser, but is the property of his heirs for ever. The land in the interior is probably subject to the same conditions. It is very doubtful if there is any really unowned or waste land; there is certainly none in the neighbourhood of Port Moresby. From the coast range of hills, right away to the Laroge River, all belongs to the Koitapu tribe. The thick forests on the banks of the rivers and creeks, in thinly-populated districts, are the most likely to be unclaimed, as the wood is not used by the people, and is too large to be cleared for cultivation of the soil."

Further, their capacity to sell to the Administration was consistently recognized by the Ordinances of the Territory and restraints placed upon any sale by them to other persons, see Land Ordinance 1899, s. VII, The Land Ordinance of 1906, s. V and Land Ordinance 1911, s.5. Consequently, I am satisfied that it was possible according to the usages of the Papuans of the Port Moresby area as understood by them in 1886 for a stranger to their clans to have acquired land from individuals as well as from groups by outright sale and purchase for value in the form of "trade" mutually agreed. It seems to me, also, that the law which the proclamation of the Protectorate introduced into the Territory, it being my opinion that it did introduce some law, included the recognition of the right and ability of the Papuans to sell their interest in land to the Crown. Commodore Erskine's announcement at the time of proclaiming the Protectorate clearly related to acquisition by persons other than the Crown. (at p378)

33. Further, in my opinion, there is no substance in the suggestion that the people of the area did not understand a transaction of outright sale or that they did not value the "trade" they received for a purchase or that they were unable and did not equate in their own minds the value of that trade with the value to them at the time of the outright loss of possession and proprietorship of the land in the conditions in and under which they then and formerly had used it. By 1886 these people had been in contact not only with the missionaries, but with traders and with the Europeans who in the 1870's had come to and through the district in search of gold. Also, as I have said, bearing in mind the opinions of the Rev. W.G. Lawes and of his son, the material in this case made it quite clear that the Papuans of this area did sell land from time to time. (at p378)

34. Secondly, having read and reread the official documents to which reference has been made in the case, I see no reason to doubt both their general accuracy and the veracity of those who compiled them. Indeed, the more I have read them, the better opinion I have formed of the capacity of those who prepared them and the more convinced I am that they speak of events which actually took place as they are related in the reports and despatches. (at p379)

35. I now turn briefly to describe what I understand to have been the situation in the Port Moresby area in 1886 in order to test by the probabilities the validity of the Chief Commissioner's conclusion that the claimed land was bought in 1886 from a clan which did not own it. The historical facts, most of which are evidenced by the official documents presented in the case, provide the means of assessing that situation. (at p379)

36. For more than a decade before 1886 the Australasian colonies had been pressing the British Government to annex so much of New Guinea as had not been occupied by the Netherlands. The interest of the colonists was, on the one hand, to prevent that area being possessed by one of the great powers, and on the other hand, to obtain the opportunity for settlement and exploration by the colonists themselves. There had been a gold rush in what is now Papua in the 1870's. Neither the parties who had entered at Port Moresby and penetrated inland some distance from the coast nor those who had entered on the eastern tip of the island had had any great success in obtaining gold in commercial quantities. By 1884 almost all had been massacred or had withdrawn from the territories. But the existence of alluvial gold had been established. The only Europeans left in the Port Moresby district by 1884 were the missionaries of the London Missionary Society led by Rev. W.G. Lawes and Dr Chalmers, a storekeeper named Goldie, perhaps the brothers Hunter, and traders who came and went using the port for their purposes. The port was a good deep water harbour, though reefs as yet unbuoyed existed in it. The London Missionary Society had established a mission on the shores of the port in 1874 in proximity to the Papuan villages in an area of land acquired by purchase from the Papuans of the area. Roman Catholic missionaries had established missions at the eastern end of the Territory. The "Argus" newspaper of Melbourne had sponsored an expedition into the Territory in the year 1883 and for this purpose had acquired from the Papuans an area of land on which it had erected a building which was known in 1886 as the "Argus Villa". Mr. Goldie, the storekeeper, had in some fashion purported to obtain rights to this building and the land on which it stood and there conducted his store. (at p379)

37. The coastal area of Port Moresby was inhabited by Motuans and Koitapuans. They dwelt in villages consisting of houses erected on stilts at the margins of the land and extending into and over the tidal flats. Their villages were adjacent to and scarcely separated from one another. Some intermarriage between members of the two groups appears to have taken place. Neither group at any time resided on the land claimed in these proceedings, which would be about forty chains from their villages. (at p380)

38. The general topography of the area was that there was some generally flat land between the sea and the hills behind the port with swamps and jungle in places between the relatively flat land and the beach. Besides the range of hills behind the flat areas there were two hills near the shore known respectively to the Europeans as Mount Goldie and Paga Hill. These two hills separated the "usable" relatively flat areas. The land generally was not suitable for agriculture though it could be used to some extent for grazing of a kind. In particular, the subject land was said to be arid and useful only to be hunted over when wallabies and other game frequented it. (at p380)

39. The Papuans as of that time were singularly savage and given to reprisal raids on one another in which barbarous killings took place, frequently of women and children who were the easiest caught or waylaid. In addition, they suffered either from occasional drought or were at times so terrified of neighbouring groups as to be unwilling to cultivate the gardens from which they derived some of their basic food. Consequently, though the sea provided food, from time to time the villagers were in danger of extinction by slaughter, by starvation or by disease which apparently was rampant. Thus the subject land had significance to the local people either as ground over which to hunt and perhaps as ground on which from time to time to make gardens. (at p380)

40. At least by 1882 the British Government was minded to yield to the pressure of the Australasian colonies for the annexation of at least part of New Guinea, provided the colonies would pay the cost of the administration of the colony when formed. The German occupation of what is now New Guinea was a factor in moving the Government to action. As an interim measure therefore, pending the conclusion of the negotiations with the colonies for suitable financial guarantees in respect of the cost of administration, the British Government in 1884 decided to declare a protectorate over the southern shore of what is now Papua and despatched an expedition in charge of Commodore Erskine to make the proclamation. (at p380)

41. It is very important, in my opinion, in connexion with the consideration of the material available for decision of the questions arising in this appeal, to observe that the policy of the British Government at the time of the declaration of the protectorate was that there should be settlement in New Guinea when the Territory was annexed but that there should be no disturbance of the Papuans in the enjoyment of their use of the land except in so far as the Government might purchase land or acquire it by compulsion for public purposes or supervise any permitted purchase by intending settlers. To anticipate a matter yet to be dealt with, it might here be observed that included in the "public purposes" of the protectorate was undoubtedly, in my opinion, the acquisition of land not only for immediate government use but for later sub-sale to settlers to enable settlement to take place in a controlled fashion and for the colony to develop consistently with government policy. These purposes clearly included the acquisition of land for a township adjacent to the port, itself already in use by traders. By the Crown acquiring land and providing it for settlers the Administration would be able to control the number of settlers and the standards at which they were to live, as well as preventing the exploitation of the natives. Further, it was realized as is evidenced in the documents that it would be necessary for the Administration to sell land as a means of assisting to defray the cost of administering the intended Territory. Port Moresby was to be a, if not the, principal point of entry into the area to be annexed. (at p381)

42. Thus the policy of preserving the use of the land by the Papuans was to be implemented by preventing any persons other than the Crown from purchasing from them any interest in land and by the Crown limiting its compulsory acquisition of land to acquisition for public purposes. From a close perusal of the official documents the position in 1886 was that settlement of the intended colony was contemplated with the abovementioned consequences. (at p381)

43. The Protectorate was proclaimed on 6th November 1884 at Port Moresby, by Commodore Erskine aboard the H.M.S. "Nelson". In fact, a Deputy Commissioner under the Western Pacific Island Order in Council, Mr Hugh Romilly, had purported to declare the Protectorate some little time earlier. The area of land described in the proclamation by Commodore Erskine was extended by him in a second proclamation. As amended, the area of the Protectorate extended from the boundary at 141 degrees E of the area claimed by the Netherlands to East Cape along the southern shores of New Guinea, including all adjacent islands, the islands in the Goschen Straits, the D'Entrecasteaux group and islands adjacent. The declaration of the Protectorate was effected in the presence of a considerable assembly of Papuans. It had the approval of the missionaries under Rev. W.G. Lawes and the acceptance of the chiefs and leaders of the Papuans who were present. Commodore Erskine, in a despatch of 14th November, said that the "Proceedings" (i.e. the declaration of the Protectorate) "have given pleasure to the natives, who place themselves with confidence under Her Majesty's protection". In his proclamation Erskine, in conformity with the policy I have outlined, proclaimed and declared "that no acquisition of land whensoever or howsoever acquired within the limits of the Protectorate hereby established will be recognized by Her Majesty". On leaving the area, Commodore Erskine left Deputy Commissioner Romilly to administer the Protectorate until the Special Commissioner should arrive. A commission was issued to Major-General Peter Henry Scratchley R.E., C.M.G. on 20th November 1884 to be Her Majesty's Special Commissioner for the Protected Territory of New Guinea. In order to give him judicial authority over British subjects he was appointed a Deputy Commissioner for the area of the Protectorate under the Western Pacific Orders in Council. General Scratchley was not long in the area. He arrived on 28th August 1885 and, having become ill, he left on 29th November 1885. He died at sea while on his way from Cooktown to Townsville on 2nd December 1885. However, before he left the Protectorate he was officially informed of the British Government's intention to annex the area comprised in the Protectorate. As well, in that time, according to the report written by G.S. Fort, his official secretary, certain land was acquired by the Special Commissioner acting under his commission and instructions. The commission authorized and directed him "to take all such measures, and to do all such matters and things in the said Protectorate as in the interest of Our Service you may think expedient . . . " In my opinion, the acquisition of land for government purposes and for settlement was included in such matters. (at p382)

44. Mr. Anthony Musgrave Junior was an Assistant Deputy Commissioner during this time. His reports are the source of much information, though challenges have been made on this occasion to their accuracy. As I have indicated, having considered the various criticisms, I am prepared to accept the reports as substantially accurate. From his reports and a report of Rev. W.G. Lawes, the London Missionary Society missionary, we learn that, though the particular clans had headmen or leaders, there were really no chiefs amongst the Port Moresby Papuans who exercised authority over the tribes or clans or who exacted service from them. But it would seem that amongst the headmen, sometimes referred to as chiefs in the official documents, one was by common consent of the Papuans regarded as the principal or senior. Thus Erskine found Boi Vagi to be the most influential chief in the Port Moresby district and to him he presented a stick mounted with a florin as "an emblem of his authority". Amusingly enough, Erskine found that Boi Vagi "was in the habit of flying a Union Jack" which had been given to him on the occasion of the attempted annexation of the area by the Colony of Queensland in 1883. Erskine apparently felt this inappropriate and, as he says, by the use of "a little diplomacy" obtained it from him, replacing it with a blue flag "on which a 'Bird of Paradise' was represented in all its gorgeous plumage, on a white ground". Though Boi Vagi was described as "a mild-mannered man" - no doubt a comparative description in relation to his fellow Papuans - it was said that "there was . . . no better person to whom" Erskine "could have given" a "'badge of office'". Boi Vagi died on 1st April 1885. On 7th April Aoudou - at times spelt Ao-oo-doo - "was promoted to the position" - i.e. of chief - "owing chiefly to a number of the native villagers having signified their desire that he should be so chosen". He too, at forty years of age, was said to be of "a mild and docile disposition". (at p383)

45. During the time General Scratchley was Special Commissioner, land was acquired from "the Motu and Koitapu people of the villages adjacent to the London Mission Station in the same manner that the representatives of that Mission originally obtained sites for their buildings and gardens". These purchases at least included plots of land for the site of the Government Bungalow and a strip of land about four chains in width for twenty chains along the harbour extending southerly from the "Argus Villa" (see prefaced plan (1973) 130 CLR 353 at p 366 ). For these purchases the Special Commissioner undoubtedly gave express authority to Assistant Deputy Commissioner Musgrave. This written authority, or rather instruction, extended to the purchase of "all desirable sites . . . at a moderate cost ; if any reluctance defer". (at p383)

46. On 26th December 1885 John Douglas, who had given distinguished service in the political life of the Colony of Queensland, was appointed Special Commissioner for the Protectorate in succession to General Scratchley. His commission was in like terms to that issued to the General. In his instructions it was made clear to Douglas that because of the views then entertained by Her Majesty's Government as to the consequences of proclaiming a Protectorate, he was not empowered to make laws to bind persons other than British subjects - a matter which has given rise, in my opinion, to some confusion in this case and to what I think are irrelevant references to the Foreign Jurisdiction Acts, a subject on which I have need to touch later. Douglas took the view, and I think quite rightly, that it was within his duty and authority to prepare the Protectorate for settlement in accordance with what he rightly conceived government policy to be in that connexion. Assistant Deputy Commissioner Musgrave was an officer who had arrived in Port Moresby on 17th June 1885. He first dwelt with Rev. W. G. Lawes at the mission station for a period of some months. During this time he set about preparing himself for his duties in the Administration, moving amongst the villages and acquainting himself with the ways and customs of the Papuans of the Port Moresby area. He was Assistant Deputy Commissioner under General Scratchley and became a Deputy Commissioner under Special Commissioner Douglas. He shows himself in the reports to have been a competent, careful and just officer who had established himself in the confidence, if not indeed in the esteem, of the Papuan population. (at p384)

47. Douglas extended the instructions given to Musgrave by General Scratchley and ordered a town to be laid out and surveyed. He authorized the necessary land to be acquired. To this end Douglas secured the services of a survey team led by Walter R. Cuthbertson, a surveyor who had carried out survey work in North Borneo and Northern Australia. (at p384)

48. The topography of the country dictated the site of the township and required that it have an east and west wing because of the existence of the hills to which I have referred. By the time a native reserve, a public area and government domain were provided, it was quite obvious that the eastern section of the proposed town must be on the relatively flat area of which Era Taora forms a considerable part. That area is encompassed in Mr Cuthbertson's eye-sketch of Granville East, to which reference will later be made. The jungle and swampy land adjacent to the harbour assisted to dictate the position of the town in relation to the harbour and the rising ground towards the mountains on the east determined its inland margin. (at p384)

49. Thus the topography of the area made it quite plain that the only land suitable for a township lay between Paga Hill and Goldie Law to the south-west and between Goldie Law and Government Bungalow to the north. Although no record of them is extant, it is obvious from the official documents seen in connexion with this case that Douglas must have given written instructions to Cuthbertson before July 1886 to design and survey a town in the area with two wings, each rectangular in shape. He had already sought and obtained the assent of Lord Granville to the naming of the town "Granville". The surveyor, having designed the layout of the town and of its principal roads, made what he termed eye-sketches. Of these, two are extant and with the papers in the case. They clearly show the intended shape and the approximate, indeed almost the precise, location of the two sections of the town. On these sketches there was a rectangular area marked "Township Site" lying to the north of Goldie Law and a rectangle, nearer to a square, fronting the sea between Goldie Law and Paga Hill similarly marked. Accordingly, one of the rectangles was to be Granville East and the other Granville West. (at p385)

50. Mr Robert Hunter, who had been a Native Protector under General Scratchley, was by this time a Government Agent. He was one of two brothers who had been in the area quite some time and who had established a considerable rapport with the Papuans. He had been sent by Douglas as a peacemaker between Papuan clans on a number of occasions and had been singularly successful. There is no basis on which it can be suggested that either Musgrave or Hunter set out to cheat the Papuans or the Crown. Rather both appear to have been most responsible officers. Musgrave in particular was extremely conscious that he was laying the foundation of a settlement of which the success must depend so largely on the continued goodwill of the Papuans. They had early experience of negotiating with the Papuans in the purchase of the Badili lands where, incidentally, according to the purchase note, the "trade" was unequally distributed amongst the vending Papuans, evidently in proportion to their claims. I would expect a similar situation to have obtained in a purchase of the land for East Granville, though no similar purchase note was made out in respect of that land. (at p385)

51. Musgrave reported that between 8th July and 8th October 1886 Hunter acquired from the Papuans for the Administration 95 acres for Granville East township and that in all in that time he acquired all the lands required within the surveyed portion of the settlement, newly entitled "Granville". The subject land is, with two relatively minor exceptions to which some reference will need to be made, wholly within a rectangle containing about 96.6 acres and which it is said by the Administration was the land to which Musgrave referred as 95 acres. (at p385)

52. Much time was taken in argument as to the authority of the Administration and its officers to purchase land in 1886. I find little profit in pursuing that matter in any detail for undoubtedly, if a purchase were made for the Crown and those who authorized or effected it lacked antecedent authority, the purchase quite clearly was ratified. Neither the Administration under the Protectorate nor the Administration under the colonial regime disowned the purchase. The subject land was included in the records of the Administration of the Territory after annexation as government property. The Administration occupied the land and dealt with it as its own over a long span of years. (at p386)

53. However, as I will point out later, in my opinion there was ample authority in Douglas and, through him, in Musgrave and Hunter to make a purchase of land for the township of Granville East just as there was authority for the purchase of land for Granville West or for the Badili lands which were firstly acquired. These Badili lands were situated on high ground to the south-east of Goldie Law and to the east of Granville West. They are shown on the prefaced plan. They were acquired before the subject land or the land for Granville West in case the Papuans should refuse to sell land more desirable for a township than the Badili lands. The reluctance of the Papuans was thought to be likely to stem from the encouragement of the Papuans to obstruction of the Administration by beachcombers who had married into the Papuan families. It is interesting to note that the possibility of Papuan reluctance to sell was not placed upon the fact that any garden existed on any of the 95 acres of land of which Musgrave speaks in his report. It is observable that where gardens are known, in fact, to have been in use, the Papuans did refuse to sell. There is a considerable official file in that connexion on the question of the ownership of the springs and the adjacent gardens which lay to the south of the Government House grounds. There is a reference in a report by Musgrave to gardens in the area of Port Moresby but their location is not indicated. The reference could have been to the gardens adjacent to the springs. These would not be located within the subject land. But in any case if there were any gardens on the subject land between 1884 and 1886 both Musgrave and Hunter must have known of that fact and of the identity of the Papuans using those gardens, and whether Motuans or Koitapuans or both. (at p386)

54. The Papuans at the time of the proclamation of the Protectorate were in great need of protection from each other because of the savagery of their reprisal raids and also from foreigners who came to the area. Such protection was included in the avowed purposes of the proclamation of the Protectorate. In the case of some other Papuans, the Doran people, their willingness to sell land to the Administration was recorded as being expressly influenced by the fact that as a consequence of doing so there would be protection for them against the raids of their neighbours. Further, apparently the Papuans stood in great need of and were desirous of obtaining the items which are called "trade" in the documents. (at p387)

55. The situation therefore in 1886 was that there had been a decision made by Douglas that a township was necessary at the port of entry. The employment of the relatively level ground at the location of Granville West and what became Granville East was evidently decided upon as the site for the two wings of the township. The Papuans had reason to accept, if not indeed welcome, the establishment of settled conditions in the area. We know from the eye-sketches what the respective shapes and approximate locations of the two wings of the township were designed to be and to occupy. Cuthbertson in reporting on his work said that he had carried out his survey in accordance with his instructions only making diversions, presumably because of physical features, which he felt were necessary. The eye-sketches which he made are quite evidently in conformity with the instructions which he had. The significant features of his report, to my mind, are these : that he had identified the four corners of the rectangle at Granville East. I do not understand a suggestion that he had not marked or, as it is said, "surveyed" these four corners. They are to be seen on his survey quite distinctly and their bearings precisely stated. He said that, as yet, the area had been sectioned into eight sections of which two had been broken up into allotments. He said that the external roads of the area he had surveyed were of two chain width and internal roads were of one chain width. (at p387)

56. It would seem that the survey was finished before the purchases by Hunter were complete. I cannot doubt that Musgrave's instructions to Hunter were to acquire so much land as would enable a rectangular area to be provided for Granville East in the approximate location shown in the eye-sketches. He could have no reason whatever for not doing so. It was the obvious and practically the only place at which to locate the east wing of the township. Thus, Hunter must have set out to acquire land which would contain, though not necessarily be limited to, a rectangular area located approximately where Cuthbertson ultimately surveyed his rectangle for East Granville. (at p387)

57. It is quite unthinkable that Hunter, dealing with a number of individual owners but in some instances perhaps with a group of owners, purchased over a period and from these owners a precisely rectangular shaped piece of land. It is also unlikely that the boundaries of the land, which the Papuans in totality were prepared to sell, coincided with a rectangle. Indeed, the actual boundaries of their land may in any case have been vague in their own minds, particularly bearing in mind the possibility that it was a usufructuary title which they claimed. When Musgrave speaks as he does in his reports of having acquired land within "the surveyed portion", he cannot in my opinion be taken as saying that he acquired for the purpose of Granville East some area which was less than the rectangle which it seems to me it was Cuthbertson's instructions to survey. He must be saying that sufficient land was acquired to serve the requirements of the intended township. (at p388)

58. Set against these facts and the situation as it was in Port Moresby at the time, I see no reason to doubt that Musgrave and Hunter did purchase the interests of the Papuans in so much land located suitably to provide a rectangular township of Granville East having an approximate area of 95 acres. It is inescapable, in my opinion, that both Motuans and Koitapuans knew of Hunter's activities in this connexion over the period of three months and of the transactions he was entering into with Papuans of the area. Hunter, for his part, by this time an experienced officer, was able to refer to Rev. W.G. Lawes and the missionaries if he were in doubt as to the identity of the person or persons with whom he was dealing. Rev. W.G. Lawes, for his part, was keenly interested in the welfare and entitlements of the Papuans. He must have been aware of Hunter's activities. (at p388)

59. I would conclude that Hunter would be most unlikely not to satisfy himself as to the claims of the persons with whom he was dealing ; the more so, since, as Rev. S. McFarlane, an experienced missionary, said in a public lecture in 1886, it was common experience to have competing claims to land by Papuans at that time. It would be very surprising if Hunter, having regard to his experience in the area, did not satisfy himself that the right of the person to whom he gave the "trade" for the land was acknowledged by his fellow Papuans as the person to receive that "trade". (at p388)

60. I have earlier mentioned the warlike nature, indeed the savage disposition, of these people. I did so having regard to the suggestion that only some Papuans of the area sold land in 1886 and that they were not proprietors of the land they purported to sell. The total number of males of both tribes in the area must at the time have been of the order of not more than five hundred. We are told that there were 800 people in all, men, women and children. The land being dealt with was in proximity to their villages. The transactions were spread over a period of three months. I find it inconceivable that there could have been a peaceful result if the Koitapuans sold Motuan land and received for it trade which was denied to the Motuans. I notice a suggestion of the Chief Justice of Papua-New Guinea that maybe some of the Papuans might have been away trading. No doubt from time to time they did so. Many were away at the time Commodore Erskine raised the flag as he records in his despatches. But, as I have mentioned, this series of purchases was spread over a very substantial period of time. There is no evidence which would make it probable that in that period a substantial number of Papuans would be away from that area. In any case, their relatives and connexions would know of the transactions. Hunter's activities must have been an event of great importance and no doubt so treated by the local inhabitants. I feel quite sure Hunter would have been apprised if there had been an absent claimant to any of the land. According to the references to him in the official documents, Hunter showed himself an officer of such quality that he would be unlikely not to have ensured that the absent owner was consulted or the transaction left over until he returned. Further, Aoudou, to whom I have already referred, accompanied him when making his transactions. (at p389)

61. I find these probabilities much more convincing than anything I have read in the evidence given before the Commissioner by Daera Guba or heard from counsel on this appeal. It is quite unacceptable to my mind that the real claimants to the land or even their relatives or connexions stood by whilst others without claim to it were given coveted items of trade as its price. As I have said, these were belligerent people given to quite savage, at times quite inhuman, acts of revenge or reprisal where it was felt or even imagined that some wrong had been done to themselves or their kinsfolk. I just cannot conceive that a proceeding with respect to the acquisition of land, publicly carried out because of the habit of walking the bounds, could have resulted in other than carnage if the rightful claimants were not satisfied parties to the transactions. Nor can I believe that the missionaries, who appear in the official records to have been highly solicitous for the land interests of the Papuans would not have intervened. With transactions spread over a matter of months, it is quite unlikely tha the missionaries would not have become aware of what was happening to land in sight of the mission station. (at p389)

62. In my opinion, the decision of the Chief Land Titles Commissioner that the land was bought from the wrong clan is insupportable. On the narrowest view, there was, in my opinion, no evidence to support it and on the widest view it was not in accordance with the evidence and is against its weight and significance. There is no need in order to support the conclusion that the claimed land was purchased by the Administration in 1886 to decide which clan was claimant to any specific part of the land purchased. Suffice it to conclude that the people of both clans must have known of and if both were claimants, participated in the transactions. In any case they must have been satisfied with the purchases. (at p390)

63. I would conclude therefore that there was a purchase for value by the agents of the Crown of a total area of at least, but probably more than, 96.6 acres of land which included the whole of the interests in the subject land, Era Taora, from those Papuans of the Port Moresby district who were then the proprietors of the parcels of land making up that total, and that those Papuans then voluntarily sold their interests in the land to the Crown through its agents for items of trade with which they were then content. (at p390)

64. As I have said, it is not to be thought that Hunter in making his sundry purchases from the Papuans would confine himself precisely to a rectangular piece of land, though Cuthbertson had concluded his physical survey by 9th September 1886. There would be little sense in leaving over to the Papuans some small areas on the margins of the rectangle, particularly having regard to the nature of the trade exchanged for the right to the land. If Era Taora was a specified parcel of land in Papuan proprietorship in 1886, then in my opinion it is more than improbable that Hunter would not have acquired the whole of it, though in truth its eastern boundaries did not correspond precisely with the eastern boundary of the rectangle marked out by the four corner pegs set by Cuthbertson. Nor would it be likely that the Papuans would keep such small areas so created. I doubt if that area was suitable at that time for gardens. At any rate, nobody has suggested that it was. (at p390)

65. I turn now to deal with the identity of the purchased land within the surveyed rectangle of East Granville. (at p390)

66. Before doing so, I will digress to deal with a matter to which considerable argument was devoted both in the tribunals of Papua-New Guinea and in this Court, namely, as to the effect of the Foreign Jurisdiction Acts 1843, 1865, 1866, 1875, 1878 upon events in the Protectorate. It seems to me that the submissions based on those Acts were misconceived. The purpose of the Foreign Jurisdiction Acts was to enable the Crown to set up courts and exercise jurisdiction over British subjects in foreign places where the Crown had acquired rights of dominion short of sovereignty. The purchase of land or of interests in land consensually, in my opinion, is not affected by those Acts. Such an acquisition is not an exercise of jurisdiction over any person in any relevant sense : and particularly not an exercise of jurisdiction over British subjects. It seems to me therefore quite unnecessary to discuss the scope of the Foreign Jurisdiction Acts, though it might be remarked that both Major-General Scratchley and Special Commissioner Douglas had their difficulties in dealing with offences by Papuans having been formally given jurisdiction over British subjects only during the time of the Protectorate. (at p391)

67. In the course of discussion of the Foreign Jurisdiction Acts and as part of an argument that the Special Commissioners during the period of the Protectorate had no authority to acquire land for a township, reference was made to the limited authority taken by the proclamation of a Protectorate. It is fairly clear that as of 1884 the view of the Crown advisers was that proclamation of a Protectorate could not give to the Crown any jurisdiction over foreigners or over the indigenous people of the area over which the Protectorate was proclaimed. This, in my opinion, was an erroneous view. It was then and certainly is now. It seems to me that the extent to which the Crown obtains power over British and non-British persons in a Protectorate depends very much on the purposes for which the Protectorate is proclaimed and the situation in the area of the Protectorate, particularly as regards local sovereignty or authority. The Protectorate declared in 1884 is a very good example. The express purpose of establishing the Protectorate was to protect the Papuans, both from foreigners, British subjects and, indeed, from themselves in order that they might enjoy the use of their land in peace. That purpose could not be carried out without exercising authority both over the foreigners and the Papuans as well as over British subjects. The usual purpose of the declaration of a Protectorate was really absent in relation to Port Moresby, that is to say, the purpose of taking charge of external relations of the community occupying the Protectorate. There was little possibility of there being any external relations for Port Moresby beyond the physical exclusion of non-indigenous people who might come either forcibly or deceitfully to take Papuans' land or the Papuans themselves for use as agricultural workers elsewhere. It seems to me that so far as acquisition of authority over the Papuans was concerned, it should have come with the declaration of the Protectorate. (at p391)

68. However, it is quite proper, in my opinion, when construing the instructions given to Major-General Scratchley and Special Commissioner Douglas, to remember that the then current view was to the contrary : and the instructions denied the Special Commissioner the authority which, in my opinion, the declaration of the Protectorate of the area of Port Moresby could have warranted : hence the attraction of judicial authority for the Special Commissioners through appointments under the Western Pacific Order in Council. (at p392)

69. But even so, bearing in mind what I have already said as to the intention with which the Protectorate was established, those instructions were, in my opinion, quite ample to warrant the purchase of land from the Papuans. The purchases which took place were, in my opinion, within the direction "to take all such measures, and to do all such matters and things in the said Protectorate as in the interest of Our Service you may think expedient". The acquisition of land for a township was clearly, in my opinion, in the interest of the service of the Crown. (at p392)

70. During the period of the acquisition of such land, there was an interchange of correspondence by and with Rev. W.G. Lawes and Special Commissioner Douglas as to the acquisition of land compulsorily from Papuans. But the objection raised by the missionary was to wholesale compulsory acquisition with a view to sub-sale to settlers and to the encouragement of large-scale settlement. Though the British Government in its communications with Douglas required a standstill so far as compulsory acquisition was concerned, there was certainly no attempt to interfere with his purchases of land consensually. Further, it does not appear that Rev. Lawes pursued the matter beyond the stage which the correspondence represents. I do not know whether Rev. Lawes saw Musgrave's report upon his, Rev. Lawes', letter but, for my part, that report adequately answers the criticism which the Rev. Lawes sought to make, even allowing for some antipathy which may have existed between the officers and the missionaries. But, as I have said elsewhere, the question of authority to acquire consensually is really not worth pursuing because of the adoption by the Government and the Administration of the purchases by numerous subsequent Acts. (at p392)

71. It was submitted that the omission to cause an instrument conforming to the requirements of s. XVIII of the Crown Lands Ordinance 1890 of British New Guinea to be recorded in the office of the Registrar-General destroyed any title to the subject land which the Crown may have had before the passing of that Ordinance. The Ordinance was passed on 12th November 1890. Part II of that Crown Lands Ordinance provided that :

"Where the fee-simple in land in respect of which no Crown Grant has ever been issued is acquired by the Crown from the owners of such land the acquisition by and the transfer to the Crown of such land shall be taken in the name of Her Majesty and shall be attested by an instrument in writing under the hand of the Administrator and the Seal of the Possession which shall be recorded in the office of the Registrar-General as hereinafter directed." (s. XVIII)

By s. XX of that Ordinance the provisions of s. XVIII were made to apply to all purchases of land "made on behalf of the Crown by any officer of the Crown at any time prior to the passing of" that Ordinance, including the period of the Protectorate.

But little need be said of the submission. Part II of the Ordinance is not directed to the granting or confirmation of title to land. Expressed in mandatory terms it is concerned with the recording of land transactions. It is not in terms or intention privative. How far, if at all, the local administration could validly bind the British Crown in such a matter as the title to land which had been acquired by the Crown need not be considered, for the submission clearly lacks substance.

I turn now to the question of the identity of the land purchased. Here the contention is that only the land marked out by Cuthbertson as sections on his survey was acquired. The foundation of much of the argument in support of this claim is the circumstance that in his final survey Cuthbertson laid out only eight sections of the intended township, or possibly eight full sections and two half sections. Emphasis is thus placed on the U-shaped area which is not subdivided at all, called in argument the "inner rectangle". (at p393)

72. A great deal of time and effort has been employed by the officers of the Administration and the tribunals of Papua-New Guinea both in connexion with the present claim and in connexion with earlier claims, in an endeavour to find precise correspondence between areas mentioned in reports and despatches and the survey made of the Port Moresby area by Cuthbertson. I have already indicated the complete improbability that the land acquired corresponded precisely with the rectangular plan of East Granville, or with the actual area included in the four external survey pegs of that rectangle. It is probable to the point of certainty in my mind that the area acquired exceeded the boundaries of that rectangle, e.g. area 5 on the prefaced plan if in truth it ever formed portion of Era Taora. But, as the additional areas beyond the content of that rectangle were likely to be small and insignificant for the purposes of the Crown and as undoubtedly these were not indicated by any fixed points of survey or identification, it sufficed the purpose of the officers of the Crown to speak of the content of the rectangle as the area of land acquired. It will be noticed in this connexion from the material in the case that the boundaries of the Badili lands walked with the vending Papuans enclosed a larger area than that ultimately surveyed. But it is a proper inference, as I have said, that the whole of Era Taora, as now described by Daera Guba, was purchased in 1886. That means that the small areas marked 1 and 7 on the prefaced plan (1973) 130 CLR 353, at p 367 as well as the area marked 5 were acquired, though as now claimed they are outside the boundaries of the rectangle constituting Granville East. It may well be that on this footing the small area no. 1 on the prefaced plan, which is now no longer in dispute, might have been claimed by the Administration and that an area between the boundaries of the rectangle and that small area (area no. 7) need not have been purchased as in fact it was. But so to say is not to criticize the caution exercised by officers of the Administration in times of uncertainty. (at p394)

73. Bearing in mind the eye-sketch, the decision to create the township, and the availability of the land, I cannot conclude that Musgrave and Hunter would purchase only enough land to provide a U-shaped township, if indeed that shape could have been thought in the least to be practical. These men, judged by the reports and despatches, had that farsightedness which was at times displayed by those entrusted with the creation of colonies. A U-shaped township with indigenous use of land as of right in the "inner rectangle" would, to my mind, have been anathema to them. (at p394)

74. Further, one could scarcely expect any precise correspondence in accounts of areas acquired when in any case they were estimates. They should not be approached at this remove of time as if they were surveyor's calculations. But, having listened to the arguments of counsel and read what has been written by officers such as Mr Champion and by the judges of the Supreme Court, I find no such inconsistency in the accounts and estimates given and referred to in the reports and despatches as would convince me that I should conclude that insufficient land was purchased to provide land for a township of Granville East, rectangular in shape and placed between the four survey pegs placed by Cuthbertson at the four corners of the surveyed rectangle. The fact that the Badili lands were acquired against the possibility that the Papuans would refuse to sell the desired land and that the Badili lands were not used for a township eloquently confirms Musgrave's account of Hunter's acquisition of all the necessary land within the surveyed area which, in my opinion, cannot be confined to the U-shaped area on which so much store has been set by the applicant's counsel. (at p394)

75. It must be borne in mind that Cuthbertson was short of time to do his work of surveying, he had had inclement weather and he had suffered some physical inhibitions. It is observable from his contours that the area within the U-shape on the survey is the beginning of a slope or hillside marked as stony ridges, a part which no doubt could be left till last in the development of the town. He said in his report that the external roads of his surveyed area were of two chains width and internal roads of one chain width. That statement can only be true, in my opinion, of a complete rectangle constituting Granville East, although in his plan he did not carry the external road on the east right through from north to south of the rectangle. External roads of that area are not two chains in width and, indeed, there is no external road along the half sections shown in Cuthbertson's survey or, if the half sections are ignored there is only a one chain road along the eastern boundaries of sections of IV and V. As I have already mentioned, too much emphasis, in my opinion, has been placed on the fact that Cuthbertson did not complete the subdivision of the entire rectangle, so much so that the other obvious and convincing factors to which I have referred have been overlooked or their importance neglected. Indeed, Cuthbertson himself observed in his report that what he had done would enable the sub-division to be completed by merely chaining off from the surveyed marks he had put in place. (at p395)

76. It is apparent to me that the officers of the Administration over the years have been undecided as to the exact position in law of the title to the claimed land. Also, the decision of the British Government not to dispossess the Papuans of the use of their land upon annexation apparently has created considerable difficulty in administration because of the uncertainty of the extent and nature of the claims of Papuans, the identification of land to which any Papuan claims related and of the effect of occupation or settlement of the country by the British. The various attempts by ordinance to provide for the resolution of these titles is sufficient evidence of this concern on the part of the Administration. (at p395)

77. Indeed, this uncertainty has led in my opinion to a number of incidents in connexion with the claimed land. In the first place the small area marked 1 on the prefaced plan (1973) 130 CLR 353 at p 367 has not been treated as covered by the purchase, as in my opinion it was, if it formed part of Era Taora in 1886. Secondly, an area along the external boundaries of the rectangle, the area marked 7 on the prefaced plan (1973) 130 CLR 353 at p 367 , was purchased in 1956 and 1957 from the Papuans whereas again, in my opinion, if it formed part of Era Taora in 1886 it was included in the purchase and, thirdly, a lease was taken in 1931 from Daera Guba and other Papuans of land surrounding a well, evidently in my opinion by an Administration which was unsure of the result of the purchase in 1886. (at p396)

78. I might at this point, having mentioned the lease of the land surrounding the well, relate the brief circumstances of this lease. (at p396)

79. A lease of an area of about 15 acres was granted by the Administrator in the year 1928 to Port Moresby Golf Club for a golf course. Within the area there was a well near which Papuans gardened. The Administrator took a lease of an area of about .875 acres which included the well from a group of Papuans which included Daera Guba for the term of thirty years at a yearly rental of $2 per year payable in cash in full on the execution of the lease. The lessors, eleven in all, were described as of the village of Poreporena situated at Port Moresby harbour. No satisfactory identification of the actual position of this well now seems possible. But the fact of the taking of this lease was much relied upon as indicating a continuing title in the Motu inhabitants. But, in my opinion, the lease was erroneously taken by an official or officials who were unaware of the real state of the title to the land. (at p396)

80. It is known from the material in the case, including evidence given by Papuans, that the Administration had allowed Papuans to garden on lands of the Crown not in use by it, including some parts of the land acquired for East Granville. Doubtless the lack of any memorandum made of the purchase of the 96.6 acres and failure to prepare an acknowledgment of the acquisition by the Crown as required by the Ordinances contributed to the official uncertainty as to the state of the title to the claimed land or parts of it. But, in my opinion, the taking of the lease for this small area of land mistakenly, as I think, conceding a title to it in the Papuans affords no ground to doubt the conclusion to which I have come as to the agreed purchase in 1886. (at p396)

81. Finally, in connexion with the identity of the land purchased, I should perhaps observe that we do not certainly know if all the land suitable for an eastern section of the town of Granville was claimed in 1886 to be owned by the Papuans. It is said, however, by Rev. Lawes that there was little if any land in the Port Moresby district which could be said to be ownerless. But there is, as I have said, insufficient evidence given by or on behalf of the Papuan claimants to establish their title to or any right to the subject land. No doubt Musgrave and Hunter assumed that there were such claims to ownership of all the land in question in the Port Moresby district and dealt with the clansmen, whether Motuans or Koitapuans, accordingly. I have made the same assumption in what I have written. I have also assumed, without deciding that the declaration of the Protectorate or the annexation by the British Government did not vest in the Crown the ultimate title to all the land in Papua subject only to any usufructuary or other rights of the Papuans, these to be determined by native custom. Whatever the traditional view in this connexion (as to which see generally Milirrpum v. Nabalco Pty. Ltd. (1971) 17 FLR 141 , and more recently Calder v. Attorney-General (British Columbia) (1973) SCR 313 in the Supreme Court of Canada), the title of the Papuans whatever its nature according to native custom was confirmed in them expressly by legislative acts from time to time on the part of the Territorial Administration. I find no need to detail these or to discuss further that matter. (at p397)

82. It is enough for present purposes that from the inception the law applicable in the Territory by virtue of the Protectorate and of the Colony, recognised a right in the Papuans to sell or surrender to the Crown whatever right they had communally or individually in the land. Commodore Erskine by his proclamation of the Protectorate announced that no acquisition of land from Papuans would be recognized by Her Majesty, referring, of course, to acquisitions by others than Her Majesty or by persons on her behalf. Early ordinances prevented the acquisition of land from Papuans and they were forbidden to sell land except to the Administration. (at p397)

and hereditary property of natives or native communities by native customary right ; and

(b) the natives or native communities by whom and the shares in which that land is owned."

The power given to the Commission extended to a case of disputed ownership - see s. 14 - and the Commission had power to give a decision on the dispute - s. 15. By s. 18 it was provided that the Commission was not to be bound to observe strict legal procedure or apply technical rules of evidence but that it might inform itself by the best evidence which it was able to obtain. This provision was relied upon in the submission of the applicants as it was said that it indicated that the Commission was to apply different criteria from those which would have been applied by a Board acting under s. 9. It was submitted that the Native Land Registration Ordinance, in conferring a jurisdiction of this kind on the Commission, was inconsistent with s. 9 which conferred a similar jurisdiction on the Board. (at p451)

71. It is not readily concluded that an earlier statute is impliedly repealed by a later statute which does not expressly refer to it : R. v. Connell ; Ex parte Hetton Bellbird Collieries Ltd. (1944) 69 CLR 407, at p 418 . The question is whether "the provisions of a later enactment are so inconsistent with or repugnant to the provisions of an earlier one, that the two cannot stand together" or, in other words, whether the two enactments "are so plainly repugnant to each other, that effect cannot be given to both at the same time": Hack v. Minister for Lands (N.S.W.) (1905) 3 CLR 10, at pp 23-24 . In my opinion the two Ordinances now under consideration are not inconsistent in this way. The jurisdiction given to the Board by s. 9 of the earlier Ordinance was wider than that given to the Commission under s. 8 of the later. For example, the Board might decide questions as to waste and vacant lands in which natives claimed no interest, whereas although the Commission might decide such questions incidentally (s. 37) it seems to have had no jurisdiction to do so directly - see s. 8. Further, whereas the Board could decide a dispute between a native, on the one hand, and the Administration or a European, on the other, it appears doubtful whether the Commission had a similar power. It appears from ss. 10, 12, 13, 16 and 22 of the Native Land Registration Ordinance that only a native could make application to the Commission, and certainly only a native had a right to appeal (s. 33). Although the jurisdiction of the Board in part depended on the fact that a Papuan native was a claimant to the land whose ownership was disputed, it did not follow that only a Papuan native might apply to the Board to resolve such a dispute, and the right of appeal from the Board was not restricted to natives. Although there was some duplication of function between the Commission and the Board both bodies could have operated at the same time. In my opinion there was not such an inconsistency or repugnancy between the two enactments as to require it to be held that the Native Land Registration Ordinance 1952 impliedly repealed s. 9 of the Land Ordinance 1911-1953. (at p452)

72. It follows, therefore, that in my opinion the Board was validly appointed and that its decision was not a nullity. (at p452)

73. On behalf of the applicants a number of submissions were urged in support of the contention that even if the Board were validly constituted its decision did not create an estoppel. In the course of these submissions, two misconceptions became manifest. In the first place, some of the applicants' arguments rested on the supposition that the Administration in the present case is endeavouring to set up an issue estoppel. The contention of the Administration is that the Board decided one of the very questions that falls for decision in the present case - whether the Administration is the owner of areas nos. 2, 3 and 4 on plan "J" (1973) 130 CLR 353, at p 367 - and not that the Board's decision estops the Tubumaga from relitigating issues which were necessarily determined in reaching that decision. In other words, the present case is one of cause of action estoppel, not issue estoppel. Secondly, much attention was directed to authorities that deal with the nature of judicial power, for example in relation to Ch. III of the Constitution. In many of the authorities that discuss this form of estoppel, it is said that the estoppel is brought about by a judicial decision, pronounced by a judicial tribunal. Thus in a recent case, Carl Zeiss Stiftung v. Rayner &Keeler Ltd. (No. 2) (1967) 1 AC 853, at p 933 , Lord Guest said :

"The rule of estoppel by res judicata, which is a rule of evidence, is that where a final decision has been pronounced by a judicial tribunal of competent jurisdiction over the parties to and the subject-matter of the litigation, any party or privy to such litigation as against any other party or privy is estopped in any subsequent litigation from disputing or questioning such decision on the merits (Spencer Bower on Res Judicata, p. 3)."

The use of the phrase "judicial tribunal" in this context is convenient as indicating that an estoppel of this kind does not result from a mere administrative decision, but the question whether such an estoppel is raised is not answered by inquiring to what extent the tribunal exercises judicial functions, or whether its status is judicial or administrative : see Caffoor v. Commissioner of Income Tax, Colombo, per Lord Radcliffe (1961) AC 584, at pp 597-599 . A fairly obvious example is the case of a court-martial, whose sentence might in some circumstances be pleaded as an estoppel (Hannaford v. Hunn (1825) 2 C &P 148, at p 155 (172 ER 68, at p 71) ), although not made in the exercise of judicial power (cf. R. v. Bevan ; Ex parte Elias and Gordon (1942) 66 CLR 452, at pp 466-468 ; R. v. Cox; Ex parte Smith (1945) 71 CLR 1, at p 23 ). The doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties, even if it is not called a court, and its jurisdiction is derived from statute or from the submission of parties, and it only has temporary authority to decide a matter ad hoc: see Halsbury's Laws of England, 3rd ed., vol. 15, pp. 212-214 ; Spencer Bower &Turner on Res Judicata, 2nd ed. (1969), pp. 21-28. It will accordingly not be necessary to canvass the authorities to which we were referred, and which deal either with issue estoppel or with the nature of judicial power. (at p453)

74. In Carl Zeiss Stiftung v. Rayner &Keeler Ltd. (No. 2) (1967) 1 AC, at pp 909-910 , Lord Reid said that it "is clear that the earlier judgment relied on must have been a final judgment, and that there must be identity of parties and of subject matter in the former and in the present litigation". The Board had power under s. 9 of the Land Ordinance 1911-1953 to determine finally and conclusively the case of disputed ownership of land that came before it. Under the section, the Board was appointed to "decide" the case, and to give a "decision", and these words, prima facie, and in the absence of any indication to the contrary, import that the Board was to make a binding determination - see Spackman v. Plumstead District Board of Works (1885) 10 App Cas 229, at p 235 . The fact that an appeal lay from the decision did not make it any the less final - see Wakefield Corporation v. Cooke (1904) AC 31, at p 36 ; Marchioness of Huntly v. Gaskell (1905) 2 Ch 656, at p 667 . (at p454)

75. There was identity of subject matter in the two proceedings. It is true that the land claimed before the Board included some areas not part of the land claimed before the Commission, and vice versa, but there was some land - areas nos. 2, 3, 4 and 6 on plan "4" (1973) 130 CLR 353, at p 367 - whose ownership fell to be determined by both tribunals. The Board, however, said that it was not concerned with area no. 6, and in the view that I have taken it is unnecessary to consider whether its decision operated to estop the Tubumaga from asserting that they owned that area of land. The native claimants before the Board abandoned their claim to area no. 4 and did not press their claim to area no. 3, but the decision in relation to both these areas gave rise to an estoppel. The decision in relation to the area the claim to which was abandoned was, at lowest, a decision by default, and such a decision can give rise to an estoppel, although only for what must "necessarily and with complete precision" have thereby been determined : New Brunswick Railway Company v. British and French Trust Corporation Ltd. (1939) AC 1, at pp 21, 38 ; Kok Hoong v. Leong Cheong Kweng Mines Ltd. (1964) AC 993, at p 1012 . In the present case, the Board necessarily and with complete precision upheld the claim of the Administration to area no. 4. If the decision in relation to area no. 3 is treated as also going by default, the same result follows ; if it is regarded as a decision which was conceded by admission, it none the less can raise an estoppel : Society of Medical Officers of Health v. Hope (Valuation Officer) (1960) AC, at p 566 . The Board directly decided the very question that areas nos. 2, 3 and 4 were not native land but were owned by the Administration, and (subject to the other questions to be discussed) that decision will operate as an estoppel, notwithstanding that the Board decided other matters as well, and that other matters also arise for decision in the present case. (at p455)

76. At this point it is convenient to note a submission of the applicants, which was partly directed to show that the Board was not exercising judicial power, but was also advanced in support of the contention that the Board did not decide the very question that now falls for decision. This was that the provision in s. 9 of the Land Ordinance 1911-1953 that "The Board in giving its decision shall be guided by the principles of equity and good conscience and shall not be bound by rules of evidence or legal procedure" exonerated the Board from the duty of deciding the question in accordance with law and allowed it to base its decision on criteria that were not exclusively legal. Reliance was placed on Moses v. Parker (1896) AC 245 , but there the statute went on to provide that the court should not be "bound by the strict rules of law and equity in any case . . . ", important words which have no counterpart in s. 9. It is clear that words in the form of those quoted from s. 9 must be regarded as dealing only with procedure, and not as excluding the application of rules of substantive law : see Peacock v. Newtown Marrickville and General Co-operative Building Society No. 4 Ltd. (1943) 67 CLR, at pp 36, 46, 55 , and cases there cited. Moreover, the fact that an appeal lay to the Central Court (then the superior court of the territory) supports the view that the Board was required to make its decision in accordance with legal rules, for otherwise the propriety of its decision could not have been tested on appeal - see Moses v. Parker (1896) AC, at p 248 . (at p455)

77. Finally, the applicants denied that there was an identity of parties before the Board and the Commission. The native claimants before the Board included the Tubumaga Idibana and the Tubumaga Laurina, but it was the former branch of the iduhu that claimed Era Taora. The application to the Commission was made by Daera Guba on behalf of the descendants of Guba Daera but it emerged at the hearing that Daera Guba was representing both branches of the Tubumaga iduhu. It was submitted that the relevant party before the Board was the Tubumaga Idibana - a communal group - whereas before the Commission the applicants were a number of individuals, represented by Daera Guba, and that if the individuals were members of the group, they were nevertheless proceeding in a different capacity, and that a decision given against them by the Board in one capacity would not estop them in the other. Of course, neither tribunal had any strict rules of pleading, and before the Commission there was some disconformity between the application, which described the persons represented by Daera Guba as the descendants of Guba Daera, and the statement made by Daera Guba that he was representing the whole clan, but there is not the least doubt, when the evidence is regarded, that his case before the Commission was advanced on the basis that he was representing the whole Tubumaga people - both branches of the iduhu. However, it was then submitted that the decision of the Board could not estop the Tubumaga Laurina, since that branch of the iduhu had laid no claim before the Board to Era Taora. In fact both branches of the iduhu were represented before the Board, and by the same counsel. In my opinion, if there was not an estoppel per rem judicatam between the Tubumaga Laurina and the Administration, the former were estopped by their conduct from relitigating the issue of the ownership of the subject land. The Tubumaga Laurina, being a party, and knowing that the Board was required to decide who was the owner of the land in question, stood by, and allowed the Tubumaga Idibana, the other branch of the iduhu, alone to assert its claim against the Administration. In those circumstances, justice and common sense would require the Tubumaga Laurina to be bound by the result : the case is within the general principle on which the decision in Nana Ofori Atta II. v. Nana Abu Bonsra II. (1958) AC 95 rests, although not within the precise formulation of that principle in Wytcherley v. Andrews (1871) LR 2 P &D 327, at pp 328-329 which was cited in Nana Ofori Atta II. v. Nana Abu Bonsra II. (1958) AC, at p 102 . (at p456)

78. A final argument put by the applicants was that the Commission could not be estopped from carrying out its duty, under s. 15 of the Land Titles Commission Ordinance 1962 (as amended), to hear and determine the dispute before it. Section 44 of that Ordinance provides that "the Commission shall accept findings of the Native Land Commission under the Native Land Registration Ordinances 1952, subject to any appeal under that Ordinance", and it was said that this provision indicates that it was not intended that the Commission should "accept" the decision of any other tribunal, and in particular of the Board. It was further said that the only case in which the discretion of the Commission to inquire into and determine the existence of native custom relating to land is limited to that mentioned in s. 42 (1) (c), which has no present relevance. I am quite unable to accept that if the Commission held that a native claimant before it was estopped from asserting his claim it would thereby be refraining from carrying out any duty imposed on it by statute, or would otherwise be going in the face of a statute. Its duty is to determine the dispute and in doing so it should give effect to the ordinary principles governing res judicata, unless some statutory provision overrides them. There is no provision which has that effect. Section 44 does not touch the doctrine of estoppel ; it requires the Commission to accept the findings to which it refers whether or not they would otherwise operate as an estoppel, and it is impossible to find in that section any indication of an intention that the decision of another tribunal, which in accordance with general principles would bring about an estoppel, should not be allowed that effect. Section 42 seems to me to have no relevance to the question whether the parties to a hearing before the Commission should be precluded from disputing an earlier decision of the same question. The Commission can carry out its statutory duty to hear and determine a dispute, notwithstanding that it makes its determination on the ground that the matter in dispute is res judicata. It is no less desirable that there should be an end to litigation in respect of the ownership of land in Papua and New Guinea than in relation to any other issue arising elsewhere, and it is not necessarily conducive to justice to allow disputes as to whether land is or is not native land, once finally decided, to be reopened many years later, when memories may have faded or become distorted and evidence has become more stale. It would require words very much clearer than those contained in the Land Titles Commission Ordinance 1962 (as amended) to satisfy me that it was intended to preclude the Commission from giving effect to the doctrine of res judicata. (at p457)

79. I therefore hold that the decision of the Board estopped the members of the Tubumaga iduhu from asserting that they are the owners of areas nos. 2, 3 and 4 on plan "J" (1973) 130 CLR 353, at p 367 . (at p457)

80. It appears from the report of the Board that notice of the hearing had been given to all villages in the Port Moresby area, and the Giakone were aware of the proceedings before the Board, as the evidence given by Lohia Doriga before the Commission showed. However, the Giakone were not parties to the proceedings before the Board, and the Tubumaga were of course not acting in their interest. It is unnecessary to consider whether the Giakone would be estopped by their conduct from asserting a claim to the land which the Board held was the property of the Administration. The Commission rejected the claim of the Giakone, and it is impossible to hold on the present evidence that it was wrong in doing so. Having regard to the belated nature of the Giakone claim, and to their failure to take advantage of the opportunity afforded them in the Full Court to adduce further material or explanation in support of an application for a new trial, it is equally impossible to hold that they should now be granted a further hearing before the Commission. (at p458)

81. The final submission on behalf of the Giakone was that the Administration had no locus standi either before the Commission or on appeal. The Commission in the exercise of its jurisdiction under s. 15 of the Land Titles Commission Ordinance 1962 (as amended) had to determine whether the subject land is or is not native land. A dispute as to whether land is or is not native land will necessarily involve two disputants, one of whom is not a native and will usually, or at least often, be the Administration. There is nothing in the Land Titles Commission Ordinance that would suggest that any person who is a party to the dispute should be denied the right to be heard before the Commission. The Administration, which claimed that the land was not native land, clearly, in my opinion, did have a right to be heard. A right of appeal is given by s. 38 of the Land Titles Commission Ordinance to "a person aggrieved by a decision of the Commission". The words "person aggrieved" have been the subject of discussion in many authorities, but it is sufficient to refer to Ex parte Sidebotham (1880) 14 Ch D 458, at p 465 , in which James L.J. said, in a passage which has frequently been cited with approval :

"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."

The decision of the Commission wrongfully affected the title of the Administration to the subject land and the Administration had a right to appeal from that decision. (at p458)

82. The present case is unlike some that have arisen out of claims by natives to rights or interests in land in other places. The law of the Territory of Papua and New Guinea affords clear recognition of native interests in land, whether those interests are communal and usufructuary or individual and proprietary. However, questions may arise, as they did in the present case, as to whether the claimants to particular land have shown that they have an interest in that land, and whether an interest which they formerly had has been lawfully extinguished. The appeal in the present case has been argued with the utmost thoroughness, and nothing that could have been said in favour of the claims of the applicants has been omitted. However, for the reasons I have given, I am satisfied that the Commission was in error in holding that any of the subject land (except area no. 1 on plan "J" (1973) 130 CLR 353, at p 367 ) was native land. It should have held that areas nos. 4 and 6 became the property of the Administration in 1886, and that area no. 5 became the property of the Administration on 31st March 1902. I am not satisfied, on the evidence now available, that the acquisition in 1886 extended to areas nos. 2 and 3, although it probably included parts of those areas at least, but it was not open to the Commission to decide that those areas belonged to the Tubumaga, who were estopped by the adverse decision given by the Board about fourteen years earlier, and not appealed against, from relitigating that issue. The decision of the Commission that those areas did not belong to the Giakone has not been shown to be wrong in any respect. (at p459)

83. In my opinion the appeal of the Administration should be allowed, the appeal of Lohia Doriga should be dismissed, and the judgment of Clarkson J. should be restored. (at p459)

STEPHEN J. In considering this appeal I have been fortunate in having had available to me the reasons for judgment of the Chief Justice and of my brother Gibbs. (at p459)

2. To their statements of the facts and enunciations of applicable principles of law there is nothing that I would wish to add. I agree that purchases of land from the indigenous inhabitants were made in 1886, that those purchases on behalf of the Government were within the authority of those making them, were effective, in accordance with native customary law, so as to vest in the Administration ownership of the purchased lands, and were so regarded by the vendors. (at p459)

3. The precise identification of the lands purchased is no easy matter on the material now available ; I have, in the end, formed the same view as has the Chief Justice, namely, that at least the whole of the area within the rectangle bounded by Lawes Street, Spring Garden Road, Castlereagh Street and Pullen Street was the subject of purchases in 1886 by Hunter on behalf of the Administration ; I have done so substantially for the reasons stated in his judgment. To the extent that those portions of the lands in dispute across and to the west of Lawes Street were not comprised in the purchases in 1886 of land sufficient to provide the site of the rectangle of Granville East I adopt, with respect, the conclusions flowing from the very careful examination to which my brother Gibbs has subjected the Order in Council of 19th August 1901. (at p460)

4. Were it necessary for it to do so I consider that the Administration might, in the case of such parts of the disputed lands as were the subject of the decision of the Board which, pursuant to s. 9 of the Land Ordinance 1911-1953, determined questions of ownership in 1954, support its title thereto by virtue of an estoppel arising from that decision ; I adopt in this respect the reasoning of my brother Gibbs. (at p460)

5. I would allow this appeal and would restore the judgment of Clarkson J. (at p460)

Orders

Appeal allowed. Order of the Full Court of the Supreme Court of the Territory of Papua and New Guinea set aside and in lieu thereof order that appeal to that Court be dismissed.