A MINING CASE

Otago Daily Times, Issue 18556, 17 May 1922, Page 2

A MINING CASE

APPEAL DISMISSED H ia Honor Mr Justice Sim gave judgment this morning in the appeal case' John Jelley Holliday (Mr Hay) v. Ellen M!ary Gibson and James Ritchie (Mr Dalian) and James Horn (Mr Keddell). His Honor, in hie judgment said; x

Tlie appellant/a application was- fox a special alluvial, claim of 100 acres, andl the case, therefore,’ was one in which a survey was necessary under section 107 of “The Mining Act, 1908.” The hearing on March 22, 1922, obviouely was intended to be ‘ a preliminary inquiry under subsection (b) of that section, and that is how it ought to be treated. The following is the minute of the warden’s decision; —“Application referred to Mr' Patterson for survey, and after survey to be recommended on usual conditions, and .with such special conditions that mining operations should bo carried out or on in euch manner as to prevent injury to the surface of the land. Liberty to .apply.” The warden also allowed certain coats to the respondents, who objected to the grant (A the application. The appellant has brought an appeal on fact and law from this decision, and the question to be determined ie whether or not it is a final decision within the meaning of section 336 uf “The Mining Act, 1908.” If the warden., in exercise of the discretion, given by subsection (d) of section 167 of the Act, bad decided that the application should not be granted that would have been a final decision for the purpose® of section 336. It was contended on behalf tr f the appellant that the warden had decided that the application should be granted subject to the specified condition as to the mode of working. This, it was argued, was a final decision on this question, and, as the appellant objected to this condition, he was entitled to appeal under section 336. It is impossible, I think, to treat the wardens decision in this way. All that he had power to decide, if he did not dismiss the application, was that on the date of the preliminary inquiry, no valid objection appeared to exist to the granting of the application. -It is true that he indicated his opinion as to the conditions on which, subject to the consent of the Minister, the application ought ultimately to be granted. But that indication of opinion cannot ho treated, I think, as a decision on the subject and does not bind the warden in any way. It will bo his duty, on the final hearing of the application, to consider tho report of the surveyor with regard to the matters specified in paragraph 1 of regulation 86. It will he his duty, also, to bear and consider any objections which the original objectors may rely on as arising out of the survey. °r as based on. public grounds, and also to hear and consider any objections which may be made by objectors who comply with the terms of sub-section (e) of section 167 of the Act. It will be open for the warden, on the final hoaxing, to-refuse the anplication altogether, or, subject to _ the consent of the Minister, to grant it, subject to any special conditions as to the mode oi working, or without any such conditions. I think, therefore that there was no final decision on March 22, 1922, and theJ appeal is dismissed accordingly, with costs (£lO 10s) to Mr Oallan’s clients, and £lO 10s to Mr Keddell’s client. \ —^