ADJUDICATION ON THE GOLD FIELDS IN NEW SOUTH WALES AND VICTORIA IN THE 19TH CENTURY John P Hamilton QC, BA, LLB Sydney Macquarie Law School Faculty of Arts Macquarie University 2014 A thesis submitted for examination for the degree of Doctor of Philosophy 1 TABLE OF CONTENTS 1 Introduction and Plan 8 2 History and Social Background 22 3 Origins of System 51 4 Legislative History in New South Wales and Victoria 69 5 The Establishment of Gold Commissioners as 96 Adjudicators 6 The Establishment of Local Courts and Wardens in 126 Victoria and Their Operation until 1858 7 Continued Operation of Commissioners in New 156 South Wales from 1853 to 1866 8 The 1866 Legislation and the New South 186 Wales Royal Commission of 1870-71 9 Continued Operation of Adjudicators in New South 207 Wales from 1867 to 1873 10 The Establishment of the Victorian Courts of Mines 229 and Wardens’ Courts in 1858, Their Operation from 1858 to 1875 and Comparison with the New South Wales System 11 T A Browne and Gulgong 243 12 Browne v Browne 260 13 Wardens’ Courts in New South Wales from 1874 275 14 Jurisprudence in Superior Courts Concerning 288 Adjudication System 15 History of Wardens’ Courts after 1875 322 2 16 Conclusion 328 Appendix I: 353 Record of Cases Determined in Beechworth Local Court Appendix II: 363 Cases From Hill End Bench Book Appendix III: 383 Register of Complaints in Sofala Warden’s Court Bibliography 403 3 SUMMARY The sudden onset of the gold rushes in New South Wales and Victoria in 1851 created an immediate necessity for a system of resolving disputes among gold miners. Despite a large literature on the gold rushes generally, virtually nothing has been written on the adjudication systems. The aim of this thesis is to examine what these systems were, to discover what records of them have survived and to expose samples of those records. The thesis concentrates on the period from 1851 to 1875 when the adjudication systems were at their most active. It records the changing legislative provisions relating to adjudication in that period. The first adjudicative institution created in both New South Wales and Victoria was Gold Fields Commissioners appointed under the Crown Lands Act 1833. In New South Wales the first Commissioner appointed was John Richard Hardy who reached the Western Gold Fields at the beginning of June 1851 and immediately started both issuing licences to mine and settling disputes. The Commissioners operated in Victoria only until 1855. Having been discredited as a result of the events leading up to the Eureka Stockade, they were then replaced by Wardens and Local Courts. However, the Commissioners were successful in New South Wales, in part because of the personal qualities of Hardy, and continued to operate in one form or another until 1874 when they were replaced by Wardens’ Courts. The thesis explores what records survive of adjudications in both Colonies and incorporates samples of them. It examines in some detail the career of Thomas Alexander Browne (who was the 4 novelist Rolf Boldrewood) as the Commissioner at Gulgong in the early 1870s and who, atypically of Gold Fields Commissioners, was at odds with his community. It also examines the reported cases in the Supreme Courts concerning gold fields adjudication. The thesis thus presents, for the first time, an account of these adjudicative systems. After 1875 a system of Mining Wardens’ Courts for determining mining disputes became universal throughout Australia, and widely used beyond, which system, in one form or another, has persisted into the 21st century. 5 STATEMENT BY CANDIDATE This work has not been submitted for a higher degree to any other university or institution. 6 ACKNOWLEDGMENTS I should like to thank my supervisors Professors Peter Radan, Bruce Kercher and Andrew Buck for their encouragement, helpful suggestions and insightful comments throughout the course of my writing this thesis. The thesis involved extensive research at the New South Wales State Archives at Kingswood and I should like to thank the staff, particularly Christine Yeats, for their assistance. I should also like to thank the staff of the Public Record Office of Victoria at North Melbourne and Ballarat for their assistance with research at those sites. I thank Dianne CampbelI of Ballarat and Ben Chen for their assistance in recovering documents. I am grateful to my wife Wendy Robinson for reading the manuscript and particularly for her patience and encouragement throughout the project. 7 Chapter One: Introduction and Plan 101 The subject matter of this thesis is the origins, development and nature of the distinctive system of adjudication of mining disputes that grew up on the gold fields of New South Wales and Victoria in the mid nineteenth century. It has spread throughout Australia and beyond and persisted in some form until today. The context in which this project arose is the novel body of Australian mining law which originated on the gold fields of New South Wales and Victoria in the gold rush days of the early 1850s. 102 There were two distinctive features of this system. The first was a way of managing titles whereby mining was carried out under a totally different regime from that which prevailed in England or in the United States. The system developed in a fairly uniform fashion across all the States and Territories of Australia, and was exported to New Zealand, to Papua New Guinea when it was an Australian territory and to at least two Canadian provinces and four states of Malaya. The system originated in possessory claims held under a licence, subsequently called a miner’s right, to take and keep the gold of the Crown in Crown lands. The gold was owned by the Crown under the Crown prerogative in respect of royal minerals and royal mines: The Case of Mines.1 Subsequently a system of leasing Crown lands to permit mining was developed so that larger areas and longer 1 (1568) 1 Plowden 310; 75 ER 472 adopted in Australia by Millar v Wildish (1863) 2 W&W E37 and Woolley v The Attorney General of Victoria (1877) 2 App Cas 163, see Paragraphs 1420 and 1450 below. 8 term titles could, as operations became more sophisticated and required the devotion of greater capital sums, be granted in return for payment of rent and a royalty. Ultimately in all jurisdictions the system expanded to permit the Crown to grant titles over privately owned lands to recover Crown minerals and, in the end, to recover also privately owned minerals, so that those minerals could not, from a public point of view, remain locked up and unexploited at the whim of the owner. In the case of privately owned minerals, the royalty was charged by and paid to the Crown, but the bulk of the royalty was subsequently returned to the owner of the privately owned mineral: Cadia Holdings Pty Ltd v State of New South Wales.2 103 Along with this original and distinctive system of titles to recover minerals, there grew up a distinctive and original adjudicative system for the settlement of disputes among miners on the field. These disputes commonly concerned the entitlement of particular persons to particular pieces of ground or complaints that one person was encroaching on or taking gold from ground to which another person was entitled. Equally, where more than one person was involved in a claim or lease, there were disputes concerning questions of entitlement as between co-owners or alleged co-owners, or, where there was a partnership, what the entitlements were under that partnership. It was obviously 2 [2008] NSWSC 528; [2009] NSWCA 174, (2009) 257 ALR 528; [2010] HCA 27, (2010) 242 CLR 195. 9 important that these disputes should be determined locally, quickly and cheaply. 104 Initially the power of adjudication was vested in Gold Fields Commissioners. But the typical system that ultimately grew up and was adopted in some form throughout Australia was for the local Magistrate to be appointed as a Mining Warden and to be invested with jurisdiction to determine these disputes. This was instituted in Victoria in 1858, but the Gold Fields Commissioners in New South Wales retained the jurisdiction until 1874.3 The jurisdiction that was ultimately invested in Wardens’ Courts was jurisdiction that was coterminous with, although not exclusive of, the common law and equitable jurisdictions of the Supreme Court of the Colony (subsequently the State) in mining disputes, and this without any limitation of subject matter, whether by amount or otherwise. Wardens’ Courts ultimately existed in every State. In Victoria alone there was a second level of courts called Courts of Mines corresponding with the County Courts. In two States, South Australia and Western Australia, Wardens’ Courts retain their jurisdiction. In the other four States and the Northern Territory, Wardens’ Courts have been abolished, in New South Wales as recently as 2008,4 but the jurisdiction has been transferred to other tribunals. In Victoria in 1969 the jurisdictions of the Courts of Mines and the Wardens’ Courts were respectively transferred to the County Courts and the Magistrates 3 See Paragraph 114 below. 4 Courts and Crimes Legislation Further Amendment Act 2008 (NSW). 10 Courts5 and in New South Wales in 2008 the jurisdiction of the Wardens’ Courts was transferred to the Land and Environment Court. Like the title system, this unique and distinctive adjudicative system was exported to overseas jurisdictions.6 105 There has been a good deal of historical writing about life on the gold fields.7 On some aspects, particularly the rebellion of the Eureka Stockade, there has been a considerable literature.8 But although there have been short accounts of the process of adjudication before Commissioners,9 there has been no detailed writing on the institutions and operation of the process of adjudication other than in respect of the narrowaspect of the elective Victorian Local Courts that existed from 1855 to 1858.10 The works recorded in fn 10 do give details of the establishment 5 Mines (Abolition of Courts) Act 1969 (Vic).