MINING APPEAL

Otago Witness, Issue 3522, 13 September 1921, Page 22

MINING APPEAL

A QUESTION OF FORFEITURE. Following is a summary of the judgment given by his Honor Air Justice Sim m the Supreme Court in James Archibald Sligo v. George Partridge and others ; an appeal case. The appellant Sligo was the licensee of a special dredging claim on the Clut'na River, the licence for which was issued oil February 10, 1912. The appellant held the claim as trustee for the Ferry Dredging Syndicate, which consisted of the appellant and three other persons. The Syndicate carried on dredging operations on the claim up to the month of March, 1920. Dredging ceased on the lltli of that month, and was not resumed until the 2nd of November, 1920. The claim was not protected during that period, and, prima facie, therefore, a forfeiture had been incurred under tho provisions of “The Mining Act, 1908. ’ His Honor’s judgement stated that the first question to be determined was whether or not the appellant had brought his case within the terms of section 192 of the Act. Tho case set up by the apellant was this: The syndicate dredge had reached a certain point on the claim. The returns not being saisfaotory, it had decided to discontinue operations there, and to shift the dredge to the southern end of the claim. To enable this to be done it became necessary to wait for a rise in the Olutlia River. While waiting for this rise dredging operations were suspended. It was contended that in these ciccumstances the liability to forfeiture had been caused by a “failure of water” within the meaning of clause (c) of section 192. His Honor was satisfied from the evidence of the dredgemasters called by the respondents that the dredge might have been taken down the river in April, 1920, and on other occasions afterwards. But even if that were not so, the syndicate was not justified in suspending dredging operations without obtaining protection. There was virgin ground close to the spot at which the dredge ceased operations, and this coulcl have been worked until a suitable opportunity arrived for shifting the dredge. Assuming, however, that the appellant’s view of the facts could be accepted, the delay on the part of the river to rise to the necessary level was not a “failure of water” wi thin the meaning of section 192. The appellant had failed, therefore, to bring liis case within the terms of that section. The only other question was whether, or not, there were special circumstances which would justify (he court in imposing a fine in lieu of forfeiture. The warden had thought there were no such special circumstances, and lint! decreed a forfeiture. The circumstances of the present case justified the court fit imposing a fine in lieu of forfeiture. The warden apiseared to have thought that when dredgingceased in March, 1920. the syndicate had had np intention of resuming work again. They desired, no doubt, to sell their claim if possible, and negotiations with the Rising Sun were carried on at intervals - from September, 1919, until October, 1920, when a sale was made to that company. But the syndicate had been prepared, if necessary, to resume dredging on their own account. They had been negotiating with Mr N. K. Sligo on the subject, and in July, 1920, had advertised for a dredgemaster and crew. The claim had been sold to the Rising Snii Company in October. That company started dredging on the claim on November 2, and had continued operations until the decree of forfeiture was pronounced in the Warden's Court. It was contended on behalf of ihe respondents that vtie syndicate were not entitled to rely on the work done by the Rising Sun Company. liis Honor could not see any valid reason for saying that they should not. get the benefit of that work. The posh ion, therefore, was that the neglect from March to October had been atoned for by the subsequent diligent work done by the Rising Sun Company, and if that work had been allowed to go on for another two months, i he defa uit on the part of the syndicate would have been wiped out altogether, by virtue of the proviso to seclion 131 of the Act. 'ihe case was one in which the warden would have been justified in granting protection to tho syndicate, and if protection for six months had beau applied for and granted in Anri! it: would have covered praelieatly the whole period in question. It seemed to be the practice, however, nut to apply for protection of dredging claims when work was temporarily stt.sp inled, the reason probably being that the ownership of a dredging claim was not coveted by many people. The application for forfeiture in Ihe present case had been i made by tin: owners of the freehold land included in the claim. 'J hey had-applied for forfeiture, not because they desired to j cany oil mining operations there, but in ! order to put an end to mining on tho land. it might be the ease that tho country would have been much better off to-day if mining on freehold land had not been permitted. But it had been permitted, and effect must be given to the policy of Ihe LriHshmire as embodied in j the Mining Acts. The enterprising persons i in tho present ( use had not received a. penny ; in the shape of di\ idonds in the nine years i during which they liad carried on operations. !

they had lost the bulk of the capital they invested in the concern, and, if forfeiture was not decreed, the purchase money of £503 which was to be paid by the RisingSun Company would help to reduce their loss. 110 thought, therefore, that in these special circumstances a tine should be imposed in lieu of forfeiture. The judgment of the Warden’s Court was varied by imposing, in lieu -of forfeiture, a line of £25 to be paid into tho Warden’s Court by the appellant, together with the costs allowed in that court within 14 clays from the present date ; failing which payment the judgment of the Warden’s Court was to stand. Iho respondents were allowed the costs of the appeal, £25, with an allowance of £l2 12s for the second day of the hearing, and disbursements and witnesses’ expenses to be fixed bv the Registrar. If the costs allowed in the Warden’s Court: and the Supreme Court did not cover the reasonable expenses actually incurred by the respondents, the Warden’s Court might allow to the respondents out of the £25 such further sum as it thought reasonable.