AN IMPORTANT MINING CASE.

Otago Witness, Issue 2170, 26 September 1895, Page 17

AN IMPORTANT MINING CASE.

la the Supreme Court in Chambers on Friday (before Mr Justice Williams) an important point as to mining law wag decided. The cue was that of M'Counochie v. Kwing— a summons to strike out count. r claim. Mr F. It. Chapman appeared for the plaintiff, and Mr Sim for the defendant Section 265 of "The Mining Act 1891 " provides that " every action, suit, or other proceeding whatsoever relatiug to any matter arisiDC in any district, and which is within the jurisdiction of a Warden's Court or a District Court under this act, shall be brought, commenced, and proccoded with in such Warden's Couit or District Court, as the c&*o may be, and not in the Supreme C mrt." The plaintiff sued the defendant on a pr misrory note overdue for a long time, and the defendant, by way of defence, counter-claimed in respect of mattcis arising in a gold fit-Ids district, and within the jur^dictlon of the Warden's Court. Mr Chapman, in support of the summons, contended that as a counter claim was substantially a separate action, a defence which could not be raised as an independent action could not be raised by way of counter claim in au action. Mr Shu contended (1) that the «ection was not ! compulsory, but for the benefit of Ihe defenHant, and consequently that the defendant could waive the benefit of it ; (2) tbat although the defendant might be unable to rase the subject matter of the I counter claim at a separate action, vet he could rase it as a defence to an action brought ; (3) th*t the l hiutiff, in any case, had waived bis | rlcht to r.bject by pleading to the counter claim. | His Honor delivered judgment as follows : -No i doubt the genei-Al rule is that the jurisdiction of i the Supreme Court is not to be ou^trd except by ! express language or express inferencs from some act of Parliament. I do not see, however, how the Legislature could very well have used stronger language th&u they have used in section 26.5 for tho purposo of taking away tho jurisdiction of the Supreme Court. Not only does the section provide that ai>y actiou, aid do on, ariuiug in any district which is within the jurisdiction of a Warden's Court or a District Court shall be brought, commenced, and proceeded with in such Warden's < ourt or District Court ; but it expressly says that such action, &c, i=» not to be brought in the Supreme Court. The section thu3 contains express negative language. That being so, I see no roason for trying t« fritter away such language in the way suggested by Mr Sim, nor to suppose that the section is not compulsory, but merely optional, on the part of litigi»uts. If, therefore, the subject matter of the couuter claim had carried the subject of au independent actio", the court would not h^ve had jurisdiction to entertain it. Does tbe fnct of it beingembodied in a counrer claim take it out of the scope of the section ? It has been suggest d that the words "action, suit, or other procteding" meau an action, suit, or proceeding in whi h a Us is instituted, and the observaiions of the l u *med j'idge iv a case lelating to the provisions of the MtCiried Woman's Property Act were quoted to fchow that thia waß so. No doubt, although the subject mntter of the present action is different fiom that of an action brought under the Married Woman's Property Act, it is not unreasonable that the words should receive a similar interpretation. It we look at the counter claim in the present case, however, we see that a Us has in effect been instituted by it. The statement of claim is for money, and is wholly independent < f the subject matter of the counter claim Th< counter cliim does not deal with the subject matter of the claim, nor doe 3it in any way arihe out of t>uch subject matter, but seti up entirely different circumstances, and asks for ( relief in respect of them, which in a separate actk-n could only be given iv the Warden's Court. That being so, I have no doubt whatever that the counter claim in tho present case comeß within the words "action, suit-, or other proceeding" mentioned in section 205. It is certainly a proceeding in tbe nature of an action, and as it ' could only be determined if brought as ah action in the Warden's Court, I fail to pee how because it is in the form of a counter claim this court can acquire jurisdiction. On the subject of waiver it beems to me cUar, looking at the purview of section 2r>s, that the obj' ction is not one that is waivable, but evn if it had been I have great doubt whether the filing of the defence, where on the face of the statement of defence the objection itself is made manifest, would amount to waiver.