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Colonial Cases

Milner, 1874

[mining lease]



Mining Commission
Scott, Price and Conner, 15 September 1874
Source: Northern Territory Times and Gazette, 19 September 1874, pp 2-3


Mining Commission.
Tuesday, September 15.
Present-G. B. Scott (President), Mr. Price, and Mr. Conner.

Ralph Millner.-Applicant for No. 2 south, Union Reef.

W. McMinn appeared for applicant.

Mr. Smith was instructed to shew that Mr. Millner had no right to apply for a lease. No opposition had been entered, but he was still entitled to be heard when asking for enquiry into the applicant's claim. His own client, Walter Peters, was absolute owner of the land, under registration and miner's right. He would now quote from Dwarris on Statues to show the Commission how they were to read Statutes; and how they were to construe that portion of the Act under which he (Mr. Smith) now claimed the right to appear, notwithstanding that no opposition had been entered (Quotations from Dwarris and from Broom read and commented upon). The legal holder had as much right to appear here, he would submit, as the owner of a horse had a right to appear if his horse had been stolen; with notice or without notice, it was true the Mining Act spoke of 42 days notice of opposition. But the 12 days notice was not obligatory. The Act said "may" give notice it did not say "must" or "shall.'' The giving of notice was intended to meet such cases as disputes between partners interested in claims (though even then it was not obligatory).

But in a case like the present one the legal holder could always appear without any notice of opposition whatever. The Act evidently contemplated this, and the Commission were bound to consider the intentions of the Act. In this case Ralph Millner was not entitled to apply at all, and. therefore, no notice of opposition was necessary, especially as the present objector (Mr. Peters) had undeniable evidence from the Warden's Court, showing that he was the only holder of the claim in question. Besides Peters could show that Millner had no miner's right if he were allowed to do so; and without a miner's right an applicant had no standing whatever before the Commission. Peters, on the other hand, not only possessed a miner's right, dated 28th May, 1874; he also made application for this claim on 4th June, and obtained a certificate of registration on the 14th of July.

Mr. Frampton had given a decision in favor of Walter Peters.

Mr. Price doubted whether that decision was legal.

Mr. Smith was quite willing to try that in the Court of Appeal.

The President thought that the Commission had nothing to do with the previous decision. The question was whether Peters was entitled to be heard at present.

Mr. Conner thought he was so entitled. The Commission was bound to take evidence if offered.

Mr. Smith went over the arguments again to show that notice of opposition was not necessary in this case, because Peters was the legal holder.

The President thought that the Act undoubtedly required notice of opposition to be given; and in this case it had not been given.

Mr. Smith said that Peters, as the absolute owner, was not required to give notice. With regard to Millner, he had not complied with the regulations, and, therefore, had no right to apply for a title. The Warden-who had power to deal with all lands-had given possession to Peters, and his title was irrefragable; but, of course, he would not stand silently by, and allow Millner to make this application without objection being raised. His title was from a competent Court of Record, and was as good as a title under the Real Property Act.

The Commission decided that Mr. Smith was not entitled to be heard; but his client could attend and offer any evidence which he might have in his possession.

Mr. Smith offered to give evidence himself.

Mr. McMinn asked that the case be adjourned till after the hearing of the appeal at the next Court of Full Jurisdiction. Had taken all the necessary steps, and lodged the £20 required by the Act. Had also given the proper notices; and intended to proceed with the appeal.

Case adjourned to 13th of October.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School