BOOK IV. MINING JUDICATURE. CHAPTER I. MINING COURTS OF JUSTICE. Commissioners. THE first Mining Act passed in Victoria (a) authorised the Bk. IV. Ch. I. appointment of commissioners of Crown lands, afterwards Goldfields known as Goldfields Commissioners, who were empowered to enquire into all cases of trespass and encroachment, and to determine the same in a summary way, in addition to other powers conferred on them, which, however, were restricted to the requirements of the small claims then permitted to be taken up. These matters of encroachment and trespass, and disputes between adjoining claimholders. as to boundaries, were invariably settled by the Commissioner on the ground in the presence of the parties after personal inspection; the decision of the Commissioner was (a) 15 Vic. No. 15. Bk. IV. Ch. I. final and conclusive, the "court" being held in a rough and ready fashion on the claim itself. Power of justices. Inefficiency of the system. Local courts. goldfields. The judicial powers of the Commissioners were much enlarged and more clearly defined by the next following Goldfields Act (b), and in addition to the powers vested in the Commissioners, two justices were authorised to award damages for encroachment and trespass, and to adjudicate in cases of mining partnerships where the balance did not exceed two hundred pounds. The procedure in these cases was the same as that in an ordinary police court. But as the mining industry extended, this somewhat perfunctory means of settling disputes between miners was found to be altogether inefficient for the purpose of administering justice. It sufficed for the cases of single claimholders, whose claims were mere shallow workings and very limited in area, but when a number of mates banded themselves together and formed partnerships or companies to work leads and the deeper alluvial strata, it was seen that something more was required for the settlement of disputes than the ipse dixit of a Goldfields Commissioner, from which there was no appeal. Accordingly in June, 1855, another Goldfields Act was passed (c), repealing the former Act, and instituting certain tribunals known as local courts, consisting of a chairman appointed by the Governor-in-Council and nine members, each of whom was required to be the holder of a miner's right, and was elected by the general body of miners. These local courts had power to make regulations, known as local court regulations, as to the extent and position of claims, the mode of taking them up, etc., and the local court regulations were the local laws which in many respects answered the purposes of the present by-laws. Wardens of the This Act continued in force until the year 1858, when a further mining Act was passed (d) by which the local courts (b) 17 Vic. No. 4. (c) 18 Vic. No. 37. (d) 21 Vic. No. 32. were swept away, and in their place Wardens were Bk. IV. Ch. I. appointed for the various mining districts established by the Act, with jurisdiction to hear and determine all disputes between miners, as well as suits for encroachment, trespass, forfeiture and abandonment. The Act also erected Courts of Mines for the several mining districts, with an original jurisdiction to adjudicate on mining disputes within their respective districts, and a right of appeal to this court was given from the decision of the Warden, a right of appeal being also established from the Court of Mines to the Supreme Court. In place of the local court regulations By-laws. authority was given for the making of by-laws by an elective body called the mining board to be established for each mining district. In the year 1865 the statute mining law was still further Act No. 291. amended by The Mining Statute (e), which repealed the Act No. 32, and which continued and greatly enlarged the powers and provisions of the repealed Act. By The Mining Appellate court. Statute 1865 a new court was erected, styled the Court of the Chief Judge of Courts of Mines, which was entirely an appellate court. The Warden or the judge of the Court of Mines was empowered to state a special case for the opinion of the Chief Judge on any point of law, and the Act also. established a right of appeal to the Court of the Chief Judge from any decree or order of the Court of Mines, or from the order of any judge thereof. Subsequently, in the year 1872, an amending Act was Act No. 446. passed (ƒ), principally regulating the machinery of appeals from the Warden and from the Court of Mines, and providing for other necessary amendments of the Act No. 291, including authority to either party to a suit before the Warden, or upon the hearing or re-hearing of any appeal from the Warden, to apply to the judge or the Warden to state a special case for the opinion of the Chief Judge. (e) 29 Vic. No. 291. (f) 36 Vic. No. 446. Bk. IV. Ch. 1. The Court of the Chief Judge of Courts of Mines was, The Court of the however, abolished by The Judicature Act 1883 (g), and Chief Judge abolished. Consolidation. Division of the Appeal in the other States. the jurisdiction theretofore vested in that court was transferred to the Supreme Court, except as to business pending at the time the Act came into operation (July 1, 1884). The right of appeal from the Court of Mines, and of stating a case by the judge of that court or by the Warden, given by the Acts No. 291 and No. 446, exists under the present law, except that such appeal is now made to the Full Court (h), and such special case is now stated for the opinion of the Supreme Court instead of for that of the Chief Judge (i). These Acts with others relating to residence areas, drainage of mines, regulation of mines, and mining on private land, have been consolidated in the present Mines Act 1890 (No. 1120), which has been amended, chiefly with respect to. the law of mining on private land and the regulation of mines, by the Mines Act 1897 (No. 1514). Part I of the Mines Act 1890 comprises two divisions, viz. (1) Mining Management, and (2) Courts and Procedure, the former dealing with mining interests in Crown lands under miners' rights and gold-mining leases, and the latter with mining judicature, which will be considered in the following chapters (j). Part II of the Act," Mining on Private Property," and Part III, Division I, “ Regulation and Inspection of Mines and Mining Machinery," have been repealed by the Act No. 1514. In none of the other States is a Court of Mines established identical with that erected under the Victorian Act, although each State is provided with machinery for appeal from the decision of the Warden. In all of them, In all of them, except in 7. (g) 47 Vic. No. 761, secs. 4, 5, 6, (h) Act No. 1120, sec. 210. (j) The Mining Acts of Victoria (No. 1120 and No. 1514) are comprised in the Appendix, post, with comparative references to analogous sections in the Acts of the other States. Tasmania, the Warden holds a "court," as distinguished Bk. IV. Ch. I. from the Victorian procedure, under which all proceedings are taken "before a Warden of the Goldfields." In New N. S. Wales. South Wales the jurisdiction and practice of the Warden's Court are almost identical with the jurisdiction of the Warden and practice before him under the Act No. 1120 (k), and a right of appeal from his decision is authorised to the District Court sitting as a Court of Appeal in its mining. jurisdiction (1), with a further right of appeal from such Court to the Supreme Court; the Warden in this State may also summon assessors to adjudicate with him (m). In New New Zealand. Zealand the powers and procedure are somewhat similar (n), while in Western Australia the appeal from the Warden is Western direct to the Supreme Court in banco (o). The right of appeal given by the Mining Act of Queensland (p) is similar Queensland. to the procedure in New South Wales. In South Australia South Australia. the appeal from the Warden is to the Local Court of Full Jurisdiction (q); and in Tasmania, where the old title of Tasmania. Commissioner of the Goldfields is retained in lieu of the title of Warden, the appeal is to the Supreme Court (r). (k) 37 Vic. No. 13 (N.S. W.), sec. 67, et seq. (1) Ibid, sec. 106. (m) Ibid, sec. 115. (n) 62 Vic. No. 28 (N.Z.), sec. 281, et seq. (0) 59 Vic. No. 40 (W.A.), sec. 86; 62 Vic. No. 16 (W.A.), sec. 22. (q) 56 & 57 Vic. No. 587 (S.A.), (r) 57 Vic. No. 24 (Tas.), sec. 161. Australia. |