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Colonial Cases

Warden's Court, 1874 NT

Northern Territory Times and Gazette, 16 January 1874, p 2
Wednesday, January, 14.
(Before M. L. Connor, Chief Warden.)
The Warden stated that he had to inform the plaintiffs, defendants, and witnesses in the cases intended to come on that day, that he had been instructed by an order from the Government not to hold the Court at present, and that he held no jurisdiction whatever at this moment, in reference to any claim, title, or right in the Northern Territory. No cases affecting the claims were to be investigated or adjudicated upon until the new Act came into operation on the 1st March, and, therefore, no decision which might affect a title could be given, or the right to any claim be considered in the Northern Territory at the present time. In justice to himself, however, he was bound to point out that the numerous parties attending the Court had not been made fools of by him. They had been brought there under the Act which was in force. But the order which he had now received was peremptory. He was bound to obey. He must either carry out that order or throw up his office. The suitors could not blame him as he was only doing his duty in announcing that the Court was closed. It was not in his power even to adjourn the cases now pending. The Court was simply not open, any more than as though it had never had any existence.
A suitor asked who was to pay defendants' costs in these cases? Would the Government do so?
Mr. W. V. Smith (counsel in some of the cases) addressed the Court, and said it was with something more than astonishment that he had just heard the appalling order which had been received by the Warden from the Government. He would not trouble the Court with arguments to show that the order should not be obeyed, for there appeared no alternative, though he was quite satisfied that the Warden would not value his office a farthing in any case where his honor was concerned. But it would be a matter of regret if the alternative which had been spoken of were forced upon the Warden, for then the last shred of justice would be torn away, and the Courts would be at the mercy of those who wished to trample upon them. The learned gentleman then quoted from Brougham and Hadley on the Law of England to show that Courts of Justice were entirely independent of Governments, and that it was altogether beyond the power of the Crown to interfere with them. The Minister of the Crown in Adelaide, who had now advised His Excellency the Governor to the contrary had acted most flagrantly. Fortunately we had brought the Law of England to this settlement with us; and it was not because we were few in numbers that we were to be set aside and treated with contempt. The Courts of Justice should be held as inviolate here as in other parts of the British realm; yet rumour said that attempts, through the Ministry, had already been made to influence the proceedings and decisions of the Court. It should be remembered that it was a similar state of things-and a similar kind of Ministry-which brought about the appointment of Judge Jeffries, and the judicial murders which followed that appointment. And now that a South Australian Ministry-he would not call them gentlemen-should commit this unheard of act, was a thing which passed his comprehension. It was a thing unheard of in all the colonies. It was with great grief that he saw the justice-seat thus degraded-yes degraded and dragged in the mire, because the Court could not be coerced in its judgments. Is [sic] was sad to see the flag of South Australia trampled upon in this attempt to bring the administration of justice into disrepute. The learned gentleman again read from Brougham to show that there was no legal authority for such a proclamation or order as the Warden had read setting aside the Court; and although his Honor was adopting a proper policy in taking the course which he had now resolved upon, and which might prevent worse consequences from following, yet for his own part he felt humbled that in taking up his abode in this last of the colonies, he should be living under a Minister who could so prostitute his position as to advise the Governor to take this illegal step. It must have been from the basest motives that such a course had been pursued. It was a thing unheard of in the colonies, and he could not speak of those who had advised it as being either Ministers or gentlemen. No such humiliating position had ever fallen to his lot as the one which he now occupied in making these remarks; but he would be a recreant to his clients, and would be just fitted to live under such a Ministry if he were to stand by silently and submit to this gross act of injustice. In conclusion he would suggest that the causes might be called on and postponed to some fixed date. This was clearly allowed by the Act.
The Warden said his orders were peremptory; he had no power to call on the causes.
Mr. Smith said he appeared for the plaintiffs in the following causes: Ifould v. Anthony, Same v. Boucher, Lyons v. Lizar, Rowen and Masters v. Ford, and the Yam Creek Company v. Ford; and also for defendant in the case of Westcott and N.T. Company v. Lowrie and others.
The Court then separated.

Northern Territory Times and Gazette, 23 January 1874, p 3
Mr. V. Smith appeared at the above Court with plaintiff and witnesses in the case Peters and others v. Sebbes (Manager Winn's Claim).
The Warden not being present, we understand Mr. Smith applied to him at his residence to take his seat in Court and adjudicate on his summons in the above case, issued December 31, 1873.
The Warden declined, on the ground that the Government had ordered him not to hold a Court, under threat of suspension from office if he did.
We are further informed that Mr. Smith had on the previous Saturday obtained from the Government Resident a promise that a telegram should be forwarded to the Commissioner of Crown Lands requesting that if it did not suit the Ministers's views to have the cases heard, the Warden might be permitted to observe the alternative compulsory provision contained in the 53rd Section Northern Territory Act, namely, on not "hearing and deciding the plaint" in any summons, to "adjourn to a time and place." The Government Resident informed Mr. Smith this morning that not having received an answer to that telegram, he declined to inform the Warden that he might call on and adjourn the case to a future day.

Northern Territory Times and Gazette, 27 February 1874, p 3
(Before Mr. Connor, Chief Warden.)
The Warden called on four or five cases involving questions of title, and said that he would adjourn all those cases until Tuesday three weeks. The present Act of Parliament would lapse on Saturday next, and the new Act would probably be here about that time. He did not know whether those cases would still be under his jurisdiction as Goldfields' Warden. But in the event of their not being so he would publish a notice in the Gazette, informing the public that they had ceased to be under his jurisdiction. The cases were then called on and adjourned as follows:-Peters v. Sebbes, Nelson v. Ford, Lawrie v. Wescott and Bagot, and Rohan v. Ford.
Sholl v. Lewis.-Mr. Smith appeared for the defendant, and asked for an adjournment until the 1st of March, as defendant and Captain Phillips, an important witness, were both detained up the country.
The Warden could only do so on condition of the money being paid into Court, and the expenses of the plaintiff from the adjournment to the day of hearing being defrayed by the defendant. He felt it necessary to be strict in this matter, as it was very hard upon working men for their employers to keep them out of their wages longer than was possible, especially when the complainants might be preparing to leave the place by the next vessel.
Adjourned till the following day, in order that Mr. Smith might communicate with his client, Mr. Lewis.
The following cases were also adjourned for the same reason:-Wilson v. Lewis, Thompson v. Lewis, Chisholm v. Lewis.
Donavon v. Jones.-Action against the Electric Gold Mining Company for the balance of wages, amounting to £14 10s.
The amount was not disputed, but defendant asked that the agreement might be produced.
Complainant said he had lost his agreement, but it was exactly the same as the agreement held by his mates, who could produce their copies of the document.
Judgment for the amount, with costs.
The Warden said as to the amount of costs, he would not state at the decision of a case what the amount was, but would fix it afterwards, when both parties would still have an opportunity of expressing an opinon.
Keeling v. Jones. - Action for
£75 15s. against the Electric Company on account of wages.
This case was similar to the last.
The amount was not disputed; but it was stated that the agreement with him had been cancelled on one occasion by the Local Court, though he was afterwards taken on again. The Warden said the cancelling did not matter if the complainant was taken on again at the same rate of pay.
Judgment for the amount and costs.
Reed v. Sullivan. - Action for £25 10s. and £15 for wages and breach of contract, due to complainant.
Mr. Smith for the plaintiff.
Defendant admitted the debt, and judgment was given for the amount and costs.

Northern Territory Times and Gazette, 6 March 1874, p 2
(Before Mr. Connor, Chief Warden.)
Leighton v. Lewis. - Claim for £38 5s. balance of wages alleged to be due from the Telegraph Mining Company.
Mr. Smith for the defendant.
From the evidence of the plaintiff it appeared that he was discharged by Mr. Phillips at Pine Creek for neglect of duty, on the 21st January, because he had knocked off work, on account of being dissatisfied with the non-payment of £19 10s. to his banking account in Palmerston, where Mr. Lewis was gone to, leaving word with plaintiff that he would pay the money on his arrival. Plaintiff telegraphed to him on the subject, and Mr. Lewis replied that the Bank had refused to take the Companies orders; but he would see that plaintiff's money was all right. As Mr. Phillips could not give any explanation about this plaintiff was dissatisfied, and left off work until he could get some satisfaction, especially as it was understood that Mr. Lewis was going away by the next steamer. Mr. Phillips then discharged plaintiff, and charged him 2s. per meal for every meal he took at the place. Plaintiff therefore came to town and saw Mr. Lewis, who said he had nothing to do with him as he was in Mr. Phillips' employ when discharged. The £19 10s., however, had been paid into the Bank; it was paid in the day he knocked off work; but he did not know this until he arrived in town. He now claimed the amount which would be due to the end of his agreement as he would have continued work if he could have been satisfied about his money. Before Mr. Lewis left Pine Creek he transferred plaintiff over to the care of Mr. Phillips, who discharged him when he refused to work.
Mr. Smith called Alfred Rayner, who was was present when Mr. Phillips spoke to plaintiff and other men. Heard him say to the men that if they would go to work, and give him a few days he would put everything right. But he also said he had nothing to do with Leighton, Clark, and Booth, because they were under another agreement.
Mr. Lewis, on being called, said he did not send up Leighton's cheque because he heard that Leighton was on his way down. The money was paid into the Bank, and now if Leighton would go back and complete his agreement he would be paid his wages as usual to the end of his time.
The Warden gave judgment to the effect that plaintiff should be paid reasonable costs for his journey to Palmerston and back-£4 10s. each way-and also 30s. for expenses since the adjournment last week. He could then go back and work and get the rest of the wages under the agreement.
Plaintiff asked if future payments would be in orders or in cash?
The Warden said that question was not before him. But the men could demand payment of their wages every Saturday night if they liked.
Two other cases, Clark v. Lewis and Booth v. Lewis, were decided in the same way.
Shaw v. Lewis.-Claim for £37 10s. wages, said to be due under agreement with the Telegraph Company.
Mr. Smith for the defendant.
Plaintiff said his case was not exactly like the last, because he had orders which he kept by him until a notice was put up at Pine Creek that "All orders on and after the 12th January would be payable in Palmerston." On seeing this, plaintiff asked Mr. Phillips what was to be done with the orders dated before 12th January; and as Mr. Phillips did not give him satisfactory answers, he knocked off work and carne down to Palmerston, where Mr. Lewis exchanged the orders for a cheque of his own, deducting one pound discount. That cheque was paid at the Bank.
Mr. Lewis said that the inconvenience arose from some mismanagement of the Company in Adelaide, and from the disagreement of the Telegraph Company with the Eleanor Company. This caused the Bank to refuse the orders, and witness therefore cashed them himself.
Judgment the same as before, as the plaintiff left his work on account of the uncertainty about the orders being refused.
The claims of three other men-Chisholm, Wilson, and Thompson, which were very similar to the others, were decided in the same way, excepting that plaintiffs were told that in the event of their not returning to carry out the agreement no expenses would be allowed for travelling up the country.

Northern Territory Times and Gazette, 13 March 1874, p 3
(Before Mr. Connor, Chief Warden.)
This was a suit between Bloomfield Douglas, miner, and Alexander Erskine, miner, brought to cancel an agreement made on November, 1873; and in consequence ot non-fulfilment of conditions on the part of Erskine.
Mr. W. V. Smith for the plaintiff.
Evidence on both sides was taken on the 6th, and on the 7th the Warden gave the following judgment:
"This case has come before me in consequence of Erskine having refused to accept of arbitration, which he had covenanted to do in case of dispute. In agreement sought to be cancelled I find two clauses, one binding Erskine to duly work and develop the the claims; other to endeavor to sell, or float, as it is termed, the said property. To the non-fulfilment of the last condition I attach no penalty. I am well aware that it may have been,-nay, was quite-impossible to do, and no time was fixed when such should have been done. To the working clause, as I term it, I refer my best consideration as to how far Erskine either did develop the claim or endeavor so to do. From the evidence and from Erskine's witness, it was apparent no genuine effort was made. A few men, four, I believe, were there, but they were not, paid men, and were only working in consideration of getting a certain portion of the interest held by Erskine, but finding he did not transfer or give them any satisfaction, they were discontented, and being left short of supplies, were useless to carry out the working of the claim. In fact, the the defendant might as well have sought to hold plaintiff to his agreement if he, Erskine, had merely kept up flags, trenches, and shepherded the ground. I therefore adjudge that the agreement is cancelled for non-fulfilment of the principal condition, that the claims be re-registered in the name of Bloomfield Douglas, solely, and that all right and title of Alexander Erskine absolutely ceases and determines in reference to said claim."
The Warden further observed-If it had been proved that prior to this case and since the agreement was executed, Erskine had legally transferred any portion of his share to other parties. I would have included them in the decision and not allowed them to be losers by his default, but no such thing has been shewn.
The defendant asked if he could be allowed to make a statement?
The Warden said the case was closed.
Defendant-Then I shall appeal: and I now say that I leave this Court owner of the property.
The Warden threatened to commit the defendant instantly.
Court adjourned.

Northern Territory Times and Gazette, 13 March 1874, p 3
(Before Mr. Connor.)
Miller v. Paul.-Claim for £16 17s. 2d, Mr. V. Smith for plaintiff; and Dr. Kaufmann for defendant.
In this case the plaintiff, an engineer, had received an order from defendant's Company for wages, and had found, on presenting it at the Bank, that it could not be cashed in Palmerston, but was payable in Adelaide. He therefore sued for the amount, as he had understood that the order was to be cashed in Palmerston.
After cross-examinations and addresses from counsel, the case was dismissed, with costs.
Parker v. Heslop.-Claim for £35 5s. 6d. Mr. V. Smith for the plaintiff, and Mr. Joshua Jones for the defendant. The latter, on the part of his client, raised a point of law as to whether the Warden had any authority to deal with wages cases, as the word "wages"was nowhere made use of in the Mining Act.
The Court overruled the objection; and after a very long enquiry, gave a verdict for the defendant, £25 7s. 8d., and £2 10s. costs.
Hogan v. Bowles.-Claim for £23 5s. 8d. Mr. Smith for the plaintiff, and Dr. Kauffmann for the defendant.
Verdict for the plaintiff, £16 0s. 4d.

Northern Territory Times and Gazette, 1 August 1874, p 3
Up-Country Jottings.
(From our own Correspondent.)
Sandy Creek, July 26.
A jumping case was heard here on Friday last before Acting Warden Melville. From the evidence adduced it appears that Messrs. Polson and Nash seeing a piece of ground which was not occupied proceeded to peg it out. They first ascertained where the other boundary pegs were, and then went to get some pegs. While they were gone Mr. Mackie made his appearance and pegged the ground. The others claimed the ground, and put their pegs inside Mackie's, so the Warden was called to settle the case, and he ruled that as Mackie's pegs were in first he was entitled to the ground. Messrs. Polson and Nash gave notice of appeal on the ground that Mackie had not pegged the ground properly.
The excitement lately caused by the Warden's resignation, closing of the Court, &c, has subsided; although, I believe, a telegram is to forwarded to Adelaide, expressing the diggers' high appreciation of Mr. Frampton's conduct while in office, and begging that he might be reinstated. The memorial is signed by nearly, if not quite, all the diggers residing here.
Acting Warden Melville arrived at the Shackle on Tuesday last, and immediately declared the office open for business.

Northern Territory Times and Gazette, 12 September 1874, p 3


Tuesday, September 1.
(Before the Chief Warden, Mr. Conner.)
[We have been furnished with the following report.]
Five cases connected with claims on Union and Lady Alice lines of reef came before the Chief Warden; four of them were adjourned cases from the Court held by Warden Frampton. They presented matter of no unusual interest, as four of them were cases laid by original peggers in November last against the persons who had in June taken possession of the ground as abandoned.
In these cases the plaintiffs (defendants?) not appearing, the Chief Warden examined the claimants and their witnesses on the question of abandonment, which was clearly proved; and on the manner in which they had taken possession according to the requirements of the Act.
Verdict for the claimants; and registration with possession granted.
In remaining case objection was raised-not on ground of abandonment, but on false registration; the plaintiff (J. S. Wescott) proving by two witnesses that at the time when defendant stated to Warden in his application notice that he had taken possession he had not been on the ground.
This manifest breach of the laws, and evasion by an indirect fraud, caused the Chief Warden to remark publicly that in such cases the law was most clear, and gave a verdict for plaintiff, putting him in possession of the ground known as No. 6 north, Lady Alice, In this case the Chief Warden granted costs, to mark his sense of the gross impropriety of such proceedings.

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