NEW SOUTH WALES, 1871.

G-No. 20.

13

39. The Wardens should have the general local administration of their Districts, with a juris- J diction (upon any Crown Lands of the Colony)* to entertain and, as a Court of first instance, to P adjudicate upon all questions arising upon mining matters of every kind. We have already said that we are of opinion that the nature of the questions likely to arise in mining cases is of so special and peculiar a character that it it is absolutely necessary to have officers of special and peculiar qualifications to deal with them ; and in order to prevent any confusion between the proceedings of ordinary Courts of Petty Sessions, we think it desirable to confer upon the Wardens a special and peculiar jurisdiction. That jurisdiction should, in our opinion, embrace every kind of question likely to arise connected with mining matters, including encroachment and trespass cases, —all breaches of the provisions of the Act and Regulations,—all matters of contract or actionable wrong between shareholders in a claim or lease, the amount of debt or damages to be limited to one hundred pounds,— and all partnership questions of every kind, whether during the continuance of the partnership or after its dissolution. The Wardens should also be invested with powers to grant injunctions,—to appoint Receivers and Managers,—and to make all necessary orders for the working of claims and tho appropriation of the proceeds pending the final settlement of disputes. Under the head of the framing of the Regulations, we have pointed out that it would perhaps be well to give to the Wardens a power to make temporary orders (under the Regulations, and not inconsistent therewith) upon minor matters, as occasion might require. We think that the Wardens should be required, at short, fixed intervals, to hold periodial Courts, to be called " Wardens' Courts," upon all places of : any importance within their districts ; and reasonable notice of these sittings should be published in | the Gazette, and affixed to the various Registrars' Offices throughout the District. It is impossible to attempt in a Report such as this to fix definitely the periods within which these Courts are to be held, but they should be reasonably frequent, and at such intervals as would insure the holding at every place of importance of a Warden's Court at least once a month. The determination of matters of administration such as this would of course be the especial province of the Mining Department. The Warden should also have power to hold a Special Court of Emergency whenever and wherever he thought it necessary. 40. The establishment of uniform procedure must unquestionably tend to the effective working of any judicial system. We think it would be advisable that rules and a schedule of forms should be determined upon as fixing procedure and the process in the Warden's Court. These rules and forms should we think be framed by the Department of Mines, and be subject to the approval^ of the Attorney General for the time being. Upon this point we have had under our consideration the expediency of adopting the forms in the Administration of Justice Acta (commonly known as Jervis's Acts) ; but after patient investigation we have unanimously come to the conclusion that, having regard to the special and peculiar nature of the questions to be adjudicated upon, these forms, while no doubt furnishing a valuable guide in the framing of the Warden's Court Rules, would require such extensive alteration that the simplest and most effective plan would be to have an entirely new set of rules. 41. The question as to the procedure to be adopted in the hearing of cases has engaged our most serious attention. Prior to the passing of the present Act the mode of proceeding in all cases of dispute has been merely this:—The party aggrieved, or considering himself aggrieved, has made a verbal complaint to the Commissioner. Then, at a time fixed by the Commissioner, the complaint has been heard upon the ground,—no evidence taken down in writing,—and the decision of the Commissioner then and there pronounced. Now, a rough-and-ready mode of proceeding such as this does not seem to us to be calculated to lead to satisfactory adjudications. In the first place, in a very large proportion of cases, the party complained of does not really know what complaint he is called upon to meet. It is difficult to give sufficient time to procure the attendance of witnesses. The investigation takes place amongst very many disturbing influences —in the open air, and not unfrequently in tho presence of an excited crowd; and not only is the decision itself very often likely to be wiong, but, through the absence of any written evidence or of any record of the decision or the grounds on which it rested, there are no materials whereon to base an appeal which might set matters right. Moreover, undue facilities are granted for the initiation and prosecution of groundless complaints" and by reason thereof, no expense being incurred even by a losing party, a most vexatious and harassing spirit of litigation is sometimes fostered. The introduction of a system of procedure in Court, crude and insufficient as that system was, was in itself unquestionably a step in the right direction ; but, for reasons upon which we have already dwelt, the beneficial efficacy of this improved plan of adjudication has been entirely nullified by entrusting the hearing of mining disputes to the ordinary unpaid Justices. 42. We have desired to see how we could combine reasonable expedition in the settlement of cases with that amount of regularity and uniformity in procedure which is so essential to the administration of justice. We think, then, that all proceedings should be initiated by the laying of a complaint, written or verbal. Upon thedaying of this complaint, which, for the sake of convenience, and dispatch, might be done before the person acting as Clerk of the Warden's Court, a summons to issue (and this summons again as a mere ministerial act might be issued by the same Clerk), returnable at the earliest Court. Then we would propose that, unless both parties insist upon the * We think the jurisdiction should extend to all the Crown Lands of the Colony, and that it should be a matter of departmental arrangement to assign to each particular Warden particular Districts within which ordinarily to exercise that jurisdiction. 4.

Jurisdiction and lowers of rVardcns.

Holding of " Wardens' Courts."

Procedure.

Hearing of cases. Plan disapproved of.

System recommended.