MINING JUDGMENTS.

Otago Witness, Issue 2241, 11 February 1897, Page 17

MINING JUDGMENTS.

"We desire to draw attention to a very important decision delivered by his Honor Air District Judge Waiid at Queenstown on the 28th ult. relating -to- appeals from wardens in mining caseß. A report of the case appears elsewhere. It has hitherto been the universal custom amongst mining lawyers to treat the sections in the various Mining Acts giving the right of appeal as conferring on unsuccessful litigants in "Wardens' Courts an absolute right to appeal either on matter of law alone or on matter of fact. Indeed, considerable colour is given to this view by the provisions of section 151 of "The Mines Act, 1877," subsection 1 of section 250 of " The Mining Act, 1886," and subsection 1 of section 287 of " The Mining Act, 1891," each of which enacts when the requisite notice has been given, the deposit paid and certain documents filed, " that thereupon a rehearing of the case shall be heard in the District Court, and the same proceedings shall be had thereat as if the case had been commenced in the original jurisdiction of such last-men-tioned court." It appears by the decision of his Honor that an intending appellant must first of all decide whether the case as presented to the warden is one for appealing on matter of fact or matter of law, and having decided that question he must, if he intends to appeal on matter of fact, further decide what matters of fact are disputed, and which, on the appeal, he intends to contest — very often a difficult as well as an intricate question ; and if it appears that no questions of - fact were in dispute at the trial, the appellant is confined to an appeal on matter of law. Further, it would seem to follow from the decision that the appellant will be bound down to those questions of fact in respect of which he has given notice. This is oontrary to a decision of Mr Justice Chapman in the case of Regina v. Bbbtiiam and another, which has not yet found its way into the law reports, but which was delivered at Dunedin in the month of August, 1872. The learned judge in that case rulSd that once the procedure of an appeal from a warden's decision was in order it reopened the wJwfo case. "Itis a complete rehearing, or new trial, before a competent tribunal, presided over by a professional judge, where the whole law applicable to the case, the facts, and the evidence are gone into and consideivid^" The decision of the district judge was based on a consideration of section 159 and iucceediag sections of " The Magistrates' Courts Acts, 1893,'' which sections have been judicially reviewed in the two recent cases of the Te Aro Loan Company r. Cameron, and Bboojung v. "Wilkins, both reported in *' 14 New Zealand Law Reports." If the decision of the District Court is right — and, until reversed/ it must be accepted as sueh — it is manifest thai appeals on matters of fact from decisions of wardens will stand on very insecure foundations. There is opened up to the lega] fraternity such a wide field for raising exceedingly fine points disputing the A r alidity of such appeals, that very few, if any, will be found to stand the ordeal. • This is unfortunate, because it must be apparent that where officials like wardens have entrusted to fchem such large discretionary powers

the right of appeal from their decisions should not only be speedy, but simple and sure. "We observe that the Government propose next session to introduce an Act to consolidate the goldfields laws of the colony, and we would suggest that whilst that measure is being drafted the right o£ appeal from decisions of wardens on matters of fact should be placed on a sounder footing than apparently is at present the case.