AGY-597 | Windeyer Warden’s Court [I]

Full description

In accordance with Section 67 of the Mining Act, 1874 (37 Vic. No.13), the Windeyer Warden’s Court [I] was established by proclamation on 12 May 1874, and was to be held at the Windeyer Temporary Court Room. (1)

The role and function of the Warden’s Court
An Act to make better provision for the regulation of Mining, 1874 (37 Vic. No.13) provided for the establishment of Warden’s Courts at places the Governor determined. (2) The Courts were Courts of Record and the Wardens had the power to issue summonses and warrants. (3) The Courts had original jurisdiction over the claims concerning a) the possession or occupation of Crown Land by virtue of a miner’s right or mineral lease of license; b) recovery of land, race, drain. dam or reservoir abandoned or forfeited under an Act or regulation and the right to any profits; c) the use, enjoyment and sale of water due to holding a miner’s right or mineral lease or license; d) trespass or damage to property, unlawful abstraction of water and the exclusion of any person from use and enjoyment of water; e) debt or damages consequent to any contract or agreement relating to gold or mineral mining; f) claims to gold and minerals mined; g) contracts and partnerships formed to mine gold or minerals; h) contributions to working expenses or mines; mortgages or assignments of land used for mining purposes i) boundaries of mining leases; j) possession and occupation of mining leases; and any other disputes arising out of the right to mine on Crown Land. (4) The decision of a Warden’s Court was final if the sum in dispute was £50 or less.

The hearings of the Warden’s Court commenced with a summons being issued to the defendant. The summons was to clearly describe the matter in dispute. The case was heard in the presence of all interested parties. (5) Either party could request that two Mining Assessors be present at the hearing or the Warden could recommend this prior to the hearing. A fee was required to be paid for the attendance of the Assessors. (6) The Warden could, on the request of either party hold a matter aside in order to forward a question in the form of a ‘special case’ to the Supreme Court of New South Wales. (7)

Defendants could pay the amount in dispute in addition to the fee for the lodgement of the complaint prior to the matter coming to court and the hearing could be dispensed with. (8)

If the case did not concern a demand for money or damages at the discretion of the Warden and with the consent of the parties it could be heard summarily (without formal proceedings). The decision of the Warden in these cases was final. (9)

Each Warden was to maintain a Register of Complaints listing all of the matters which came before him. The entries were to be arranged in order of appearance and to be numbered consecutively. The Register was to include the names of the parties with their last known address, a summary of the dispute including amount if money was sought. Cases heard summarily were to be included in the Register. A minute recording the decision of the Court was entered into the Register whether a full hearing was conducted or the case was held summarily. (10)

If either party to the dispute was order to pay money to the services of bailiffs, police and other law enforcement officers could be used to enforce payment. (11)

Appeal was available from decisions of the Warden’s Court (other than those for which Warden’s decision was final) to the District Courts in its Mining jurisdiction.

In order to gather evidence and to ensure that justice was done the Warden could seize gold, minerals or earth, enter an adjacent claim, make an injunction or order the deposit of gold. (12)

The office of Mining Warden was usually held in conjunction with other offices including Police Magistrate or Clerk of Petty Sessions, but the court was a separate legal identity.

The Windeyer Warden’s Court [I] appears to have been abolished sometime after December 1874. The Windeyer Warden Court [II] (Agency No. 6366) was subsequently established in 1878. (13)

Endnotes
(1) NSW Government Gazette No.112, 12 May 1874, pp.1460-1461.
(2) Mining Regulation Act, 1874 s.67.
(3) Ibid. s.68.
(4) Ibid. s.69.
(5) Ibid. s.70.
(6) Ibid. s.76.
(7) Ibid. s.79.
(8) Ibid. s.73.
(9) Ibid. s.71.
(10) Ibid. s.72.
(11) Ibid. s.84.
(12) Ibid. ss.85-89.
(13) NSW Government Gazette No.232, 2 August 1878, p.3015.