- 1926-1976 (Creation)
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In accordance with Section 67 of the Mining Act, 1874 (37 Vic. No.13), the Albury Warden's Court was established by proclamation on 12 May 1874, and was to be held at the Albury Court House. (1)
An Act to make better provision for the regulation of Mining, 1874 (37 Vic. No.13) provided for the establishment of Warden’s Courts at places the Governor determined. (2) The Courts were Courts of Record and the Wardens had the power to issue summonses and warrants. (3)
The Courts had original jurisdiction over the claims concerning a) the possession or occupation of Crown Land by virtue of a miner’s right or mineral lease of license; b) recovery of land, race, drain. dam or reservoir abandoned or forfeited under an Act or regulation and the right to any profits; c) the use, enjoyment and sale of water due to holding a miner’s right or mineral lease or license; d) trespass or damage to property, unlawful abstraction of water and the exclusion of any person from use and enjoyment of water; e) debt or damages consequent to any contract or agreement relating to gold or mineral mining; f) claims to gold and minerals mined; g) contracts and partnerships formed to mine gold or minerals; h) contributions to working expenses or mines; mortgages or assignments of land used for mining purposes i) boundaries of mining leases; j) possession and occupation of mining leases; and any other disputes arising out of the right to mine on Crown Land. (4) The decision of a Warden’s Court was final if the sum in dispute was £50 or less.
The hearings of the Warden’s Court commenced with a summons being issued to the defendant. The summons was to clearly describe the matter in dispute. The case was heard in the presence of all interested parties. (5) Either party could request that two Mining Assessors be present at the hearing or the Warden could recommend this prior to the hearing. A fee was required to be paid for the attendance of the Assessors. (6) The Warden could, on the request of either party hold a matter aside in order to forward a question in the form of a ‘special case’ to the Supreme Court of New South Wales. (7)
Defendants could pay the amount in dispute in addition to the fee for the lodgement of the complaint prior to the matter coming to court and the hearing could be dispensed with. (8) If the case did not concern a demand for money or damages at the discretion of the Warden and with the consent of the parties it could be heard summarily (without formal proceedings). The decision of the Warden in these cases was final. (9)
Each Warden was to maintain a Register of Complaints listing all of the matters which came before him. The entries were to be arranged in order of appearance and to be numbered consecutively. The Register was to include the names of the parties with their last known address, a summary of the dispute including amount if money was sought. Cases heard summarily were to be included in the Register. A minute recording the decision of the Court was entered into the Register whether a full hearing was conducted or the case was held summarily. (10)
If either party to the dispute was order to pay money to the services of bailiffs, police and other law enforcement officers could be used to enforce payment. (11) Appeal was available from decisions of the Warden’s Court (other than those for which Warden’s decision was final) to the District Courts in its Mining jurisdiction. In order to gather evidence and to ensure that justice was done the Warden could seize gold, minerals or earth, enter an adjacent claim, make an injunction or order the deposit of gold. (12)
An Act to legalise mining on Private Lands, 1894 (57 Vic. No.32) extended the jurisdiction, powers and authorities of Mining Wardens beyond Crown Land. (13) In particular Wardens could authorise those in possession of miners’ rights or mineral leases to examine the surfaces of privately owned land. (14) The Wardens heard claims relating to the compensation of the owners or occupants of property if they were unsatisfied with the amount determined by Mining Appraisers. (15)
The Mining Laws Amendment Act, 1896 (60 Vic. No.40) further enunciated the responsibilities of the Warden to include determining whether the land entered for mining purposes was suitable for the mineral concerned; (16) discretion to set a fee payable to the owner for entry to property; (17) conducting inquiries to assess the extent of surface damage and the amount of compensation to be paid prior to the commencement of mining operations; (18) assessing the market value of land resumed for mining purposes. (19)
The Justices Act, 1902 (Act No.27, 1902) set up a process for appeal to the Supreme Court against the decisions of a Warden’s Court when a party believed that there was a mistake in interpretation of law. (20)
Appeal against the assessment of resumed land could be made to the Supreme Court where the appellate court consisted of a Supreme Court Judge and two assessors one appointed by the Minister and the other by the owner of the land. (21)
The Mining Act 1973 (Act No.42, 1973) added to the powers of the rulings of Wardens including the right to rule that any money be paid in instalments (22) and for the Warden to ensure that the rulings of the court be put into effect including that property is delivered to the rightful owner; the party at fault ceases using water and similar instructions. (23)
The Mining (Amendment) Act, 1976 (Act No.27, 1976) gave the Warden the extra responsibility of determining the legitimacy of claims by holding an inquiry and reporting to the Mining registrar. (24)
The Mining (Amendment) Act, 1980 (Act No.81, 1980) substituted the word ‘property’ for ‘race, drain, dam, reservoir, water, machinery or easement’ the terminology which had been use in the various Mining Acts since 1874. (25)
The office of Mining Warden was continued by the Mining Act, 1992 (Act No.29, 1992).
The office of Mining Warden was usually held in conjunction with other offices including Police Magistrate or Clerk of Petty Sessions, but the court was a separate legal identity.
On 7 April 2009, all of the Warden’s Courts were abolished under the Court and Crimes Legislation Further Amendment Act 2008 (Act No.107, 2008). (26) The jurisdiction conferred on the Warden’s Courts and the Wardens by the Mining Act 1992 (Act No.29, 1992) was transferred to the Land and Environment Court. (27)
(1) NSW Government Gazette No.112, 12 May 1874, pp.1460-1461.
(2) Mining Regulation Act, 1874 s.67.
(3) Ibid. s.68.
(4) Ibid. s.69.
(5) Ibid. s.70
(6) Ibid. s.76.
(7) Ibid. s.79.
(8) Ibid. s.73.
(9) Ibid. s.71.
(10) Ibid. s.72.
(11) Ibid. s.84.
(12) Ibid. ss.85-89.
(13) Mining on Private Lands Act, 1894 s.36.
(14) Ibid. s.8.
(15) Ibid. ss.16-17 and 20.
(16) Mining Laws Amendment Act, 1896 s.2(a).
(17) Ibid. s.2 (b).
(18 Ibid. s.2 (d).
(19) Ibid. s.4.
(20) Justices Act, 1902 s.101.
(21) Mining Act, 1906 s.159.
(22) Mining Act, 1973 s.141.
(23) Ibid. s.142.
(24) Mining (Amendment) Act, 1976 Schedule 7 (2) New Section 178a of the Mining Act, 1973.
(25) Mining (Amendment) Act, 1980 Schedule 8 (1) (a) Amending Section 144 (1) of the Mining Act, 1973.
(26) Courts and Crimes Legislation Further Amendment Act, 2008 Schedule 19 (54) Amending Schedule 6 of the Mining Act 1992; Commencement Proclamation under the Courts and Crimes Legislation Further Amendment Act 2008 (Act No.107, 2008), published NSW Legislation Website (2009-112), 3 April 2009, Explanatory note.
(27) Ibid. Commencement proclamation, Explanatory note.
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Parish maps, land division maps and district fossicking maps.
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Access to plans of colliery workings is RESTRICTED under sections 35 (6) and 39 (2) of the Coal Mines Regulation Act of 1912 as amended. All other records are OPEN to public access.
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