Edie Creek Pty Ltd v Symes [1929] HCA 37

Sec. 1038 of the Mining Ordinance 1922-1926 (N.G.), as inserted by sec. 18 of the Mining Ordinance (No, 2) 1926, provides that on the hearing of an appeal from the Warden's Court to the Central Court 'the Central Court may make an order reversing or varying the decision of the Warden's Court, or dismissing the appeal, and all such orders shall be final and conclusive on the parties."

Held, by the whole Court, that as such orders are "final and conclusive " leave to appeal therefrom to the High Court cannot be granted under sec, 24 of the Judiciary Ordinance 1921-1927 (N.G.).

*The Judiciary Ordinance 1921-1927 (Territory of New Guinea) by sec. 24 provides : - '(1) The Full Court of the High Court of Australia, consisting of at least two Judges, may grant leave to appeal to the High Court of Australia from any conviction, sentence, judg- ment, decree or order of the Central Court. . . . (3) The High Court sitting as a Full Court (constituted by at least two Judges) may hear the appeal, and may make such order therein as it thinks just. (4) If the High Court sees

fit to permit it, an appeal under this section may be by case stated, with the legal argument (if any) attached thereto in writing, and in that case it shall not be necessary for the parties to appear on the hearing of the appeal either per- sonally or by counsel, (5) The order of the Court on appeal shall have effect in the Territory as if it were a judgment of the Central Court of the 'Territory, and may be enforced by the Central Court accordingly."

H.C. or A. Appear from the Central Court of New Guinea. Rees In October 1927 one W. D. Morris was the owner of a ce Ep - gold-mining claim situate at Edie Creek in the Territory of N

a Guinea. It was agreed between Morris and John Pearson Living-

Sou. stone, manager for the Edie Creek Pty. Ltd., that the Company

• should purchase the claim from Morris for the sum of £200, whidl was duly paid. The arrangement was a verbal one between the parties, and no particulars of the sale nor a transfer were registered. At that time the respondent, Matthew Symes, was a foreman in the employ of the Company, and Livingstone asked him to peg claim out under his (Symes's) miner's right until, to use Livingston own words as given in evidence, "such time as I could get it guarded otherwise," and agreed to give him £10 for doing Symes pegged out the claim and it was registered in his name It was thereafter worked for the benefit of the Company until 10th October 1928, when Symes was discharged from the Company's service. The Company then claimed possession of the claim, whic Symes refused to give. A complaint was then made to the Warden's Court at Edie Creek that Symes was trespassing on the claim, and an application was also made to that Court for an injunction to restrain Symes from selling or working the claim. The Warden dismissed both the complaint and the application, giving no reasons

• for his decision as to the injunction, but holding, in respect to trespass, that the agreement between Symes and Livingstone was illegal as being contrary to reg. 9 of the Mining Regulations, which provides that "no person shall be entitled by virtue of a miner's tight to hold at the same time more than one claim." An appea to the Central Court of the Territory of New Guinea as to whether Symes held the claim merely as trustee for the Company or whether he was entitled to it as absolute beneficial owner was dismissed in favour of Symes. When announcing his decision the Chief Judge said that " the fact that Symes effected the registration of the claim in his own name and for an undisclosed principal made him none the less the agent and servant of the Company. By the regulati such a transaction was forbidden and therefore the Company could not succeed. . . . In dismissing the appeal I do so on my own

view of the Ordinance and Regulations. . . . In the Australi

States there are decisions to the effect that claims may be held in H- ©. or A-

trust. In the absence of the legislation dealing with the cases and the authorities themselves I cannot say whether they may not possibly apply here. It is a matter of importance to the mining community of the Territory to have the question definitely settled, and an appeal to the High Court is the obvious method of arriving at that settlement."

From that decision the Edie Creek Pty. Ltd. now, by special leave, appealed to the High Court.

BE. M. Mitchell K.C. (with him Badham), for the appellant. Since the granting of the special leave to appeal it has been found that by see. 18 of the Mining Ordinance (No. 2) 1926 (N.G.) a new section, 103n, has been introduced into the principal Mining Ordinance of the Territory of New Guinea, which provides that decisions of the Central Court in respect of appeals from the Warden's Court shall be " final and conclusive."

H. V. Evatt K.C. (with him C. Evatt), for the respondent. The Mining Ordinance does not give any right of appeal other than from the Warden's Court to the Central Court; it does not confer a right of appeal to the High Court. The appeal in this matter was granted under sec. 24 of the Judiciary Ordinance 1921-1927 of the Territory of New Guinea, but a fair construction of that section is that the power to grant leave to appeal applies to decisions of the Central Court on matters of original jurisdiction and appellate matters from the District Courts, but not in respect of appeals from the Warden's Court. The use of the words " final and conclu- sive" in sec. 1038 as inserted in the principal Mining Ordinance by Mining Ordinance (No. 2) 1926, sec. 18, precludes any appeal from the decision of the Central Court in this matter except an appeal to the Judicial Committee as of grace.

E. M. Mitchell K.C., in reply. It is entirely a matter of construc- tion as to whether the words "final and conclusive" in sec. 103B of the Mining Ordinance are sufliciently clear to constitute an

H.C. or A. exception to sec. 24 of the Judiciary Ordinance 1921-1927 (Co

wealth v. Limerick Steamship Co. and Kidman (1) ). The word "final and conclusive " as appearing in sec. 1038, in their contes mean no more than " conclusive." In the circumstances the meaning of the words used must be clear, distinct and unmistakable.

Kyox ©.J. In this case leave to appeal was granted in Brisbane relying on the provisions of sec. 24 of the Judiciary Ordinas 1921-1927 of the Territory of New Guinea, and the appeal is no before us in pursuance of the leave so granted. It now appears that since the making of that Ordinance, Mining Ordinance (No. 1926 for the same Territory has been made, by sec. 18 of which sec. 103B is introduced into the principal Mining Ordinance Sec. 1038 provides that "Upon the hearing of the appeal" (ie., from the Warden) "the Central Court may make an order reversing or varying the decision of the Warden's Court, or disn

the appeal, and all such orders shall be final and conclusive on the parties and the Judge shall (if necessary) order payment of money - or the delivery of the possession of any land, mining tenement, water, gold, mineral, or other property to the person who was the complainant before the Warden's Court, or restitution of any land, mining tenement, water, gold, mineral, or other property, as the case may require, and may make such order with respect to the costs of the appeal, and of the proceeding appealed from, as the Court thinks fit." This alteration of the law was not brought under the notice of this Court when leave to appeal was granted. The present appeal is from an order of the Central Court of New Guinea dismissing an appeal from the decision of the Warden's Court, and it now appears that, whatever was the position before the passing of sec. 103B, the right of appeal in such a case from - the Central Court to this Court has been taken away by that section. It follows that the leave purported to have been granted under sec. 24 of the Judiciary Ordinance 1921-1927 in this case is ineffective. It may be urged that power to grant leave to appeal from a decision - of the Central Court is contained in the general provisions of sec. 73 f of the Constitution, but that contention fails because the Central

Court is not a Federal Court within the meaning of that section, and, if it were, it is not properly constituted, the Judge not having the necessary tenure of office. For these reasons the appeal is incompetent and the leave to appeal ought to be rescinded.

Isaacs J. Iagree. I base my decision on the words " final and

conclusive " as appearing in sec. 1038 of the Mining Ordinance (No. 2) 1926.

Srarke J. I agree that the leave to appeal should be rescinded because, by the Mining Ordinance which is in force in the Territory of New Guinea, the order of the Central Court in this matter is " final and. conclusive."

Solicitors for the appellant, Fred. C. Emanuel & Pearce. Solicitors for the respondent, John Williamson & Son. J.B.