THOMSON'S BULLOCK CREEK

GOLD DREDGING SC. COMPANY (LIMITED) AND ANOTHER. THOMSON IN BANCO. AND OTHERS.

Mining Law-Warden's Court-Jurisdiction—Action for Deceit-Action to set aside Contract for Misrepresentation—l'ontract relating to Mining Claim -"The Mining Act, 1898," Sections 5, 254, 274, 294-"The Mining Act Amendment Act, 1900," Section 14.

An action claiming (a) damages for false and fraudulent representations in regard to the auriferous qualities of a mining claim, and fraudulent "salting" of the claim, or (b), in the alternative, that a contract with respect to the claim should be set aside on the ground that it was obtained by material misrepresentations in regard to its auriferous qualities, is not an action concerning a contract, tort, question, or dispute of any kind relating to mining privileges or operations, within the meaning of subsection 13 of section 254 of The Mining Act, 1898," and is not, therefore, within the jurisdiction of the Warden's Court. The jurisdiction of the Supreme Court is therefore not ousted in such a case by section 294 of that Act.

THIS

was a motion by the defendants, under section 14 of "The Mining Act Amendment Act, 1900," for the removal of an action brought in the Supreme Court into the Warden's Court. The facts of the case are fully stated in the judgment.

M. Myers, in support of the motion :

Under section 265 of "The Mining Act, 1891," the jurisdiction of the Supreme Court was expressly ousted in all matters under that section. That section has been the subject of decision in McConnochie v. Ewing(1). Section 265 was not expressly re-enacted in the Act of 1898, but sections 253. 254, 274, and 294 in effect re-enact it by necessary inference. It was so held, in effect, in Hesson v. Spain(2). What has to be proved is misrepresentation in regard to a mining claim. The plaintiffs will have to prove that the claim is not auri(1) 13 N.Z. L.R. 719. (2) 18 N.Z. L.R. 679, 683; 2 Gaz,

VOL XX.-15.

L.R. 264.

WELLINGTON.

1901

May 10, 14.

EDWARDS, J.

S.C.

1901. THOMSON'S

BULLOCK
CREEK

GOLD

DREDGING
COMPANY

v.

THOMSON.

ferous. They will also have to prove the alleged "salting." The case comes within subsections 3, 6, 7, and 13 of section 254.

[Skerrett, for the plaintiff.--The words "arise within the "district" are the controlling part of the section. The representation was made in Wellington.]

The contract was not executed wholly in Wellington: as to the first, agreement, one signature was obtained at Okarito, in the Westland Mining District; the second agreement was executed by all of the defendants in Greymouth. The contract provides for the prospecting of a mining claim, and for the right to surrender a mining claim and take up another in lieu thereof. The whole agreement has reference to mining claims of one kind or another. Wells v. Carew(1) decided that if the whole cause of action arose outside of the Warden's district prohibition will go. There the contract was wholly made, and the money paid, in Dunedin, outside the district; here the contract was partly made in Wellington and partly in the mining district, and the money was paid in the mining district. The real contest is as to whether or not the claim, which is in the mining district, is in fact auriferous. Cooke v. Gill(2) and Read v. Brown (3) show that part of the cause of action arose within the mining district. The Warden's Court has therefore jurisdiction, and the jurisdiction of this Court is ousted.

Section 254 does not give the Warden's Court jurisdiction where any part of the cause of action arises within the district. The substance and gist of it must arise within the dístrict: Wells v. Carew(1). Any other construction would cause grave inconvenience. There would be two Courts, both having jurisdiction. Here the gist and substance of the action arose in Wellington. It is an action, first, for damages for deceit, and, secondly, to set aside a contract for material misrepresentation. In either case the representation, whether fraudulent or not, was made in Wellington. The only cause of action urged is that possibly Thomson signed the contract (2) L.R. 8 C.P. 107. (3) 22 Q.B.D. 128, 131.

(1) 19 N.Z. L.R. 349; 2 Gaz. L.R.

414.

in the Westland District, and that it concerns mining privileges in that district.

[EDWARDS, J.-And that the money was paid there.]

S.C.

1901. THOMSON'S BULLOCK

CREEK

GOLD

COMPANY

V.

It is admitted that the representation was made in Wellington, and that the agreement was made in Wellington, having DREDGING been drawn up and signed by the plaintiffs in Wellington. All that the plaintiffs have to prove is that they became bound THOMSON. in Wellington. The signature of the defendants was not necessary to bind them. The subsequent exercise of the option was in Wellington. It is immaterial that the deceit charged was in reference to a property in the mining district. The other questions, as to the payment of the £200, the prospecting, &c., go only to the extent of the relief, the extent of the damage. That does not prevent the cause of action arising in Wellington.

The object of the section was to give the Warden exclusive jurisdiction in all matters relating to mining or mining privileges as to which any part of the cause of action arises within his district. A suit for specific performance would have had to be brought in the Warden's Court, or for non-performance by the plaintiffs.

EDWARDS, J.:

Cur, adv. vult.

This is a motion by the defendants, under section 14 of "The Mining Act Amendment Act, 1900," to remove an action brought in this Court into the Warden's Court of the Westland Mining District.

The substantial matters alleged in the statement of claim are that the plaintiff Hume was, by false and fraudulent representations made at Wellington by the defendants to him, induced to enter into an agreement, dated the 30th of January, 1900, which provided for the examination and testing by him of certain property over which the defendants, or some of them, held mining privileges. The agreement also provided that if the plaintiff Hume should be satisfied with the result of such examination he should take steps to incorporate a limited company under "The Companies Act,

S.C.

1901.

THOMSON'S

BULLOCK

GOLD

COMPANY

THOMSON.

1882"; and that, if he did so, and so required the defendants, they should transfer to such company the mining privileges in question for the consideration provided by the agreeCREEK ment. The statement of claim further alleges that the DREDGING plaintiff Hume procured one John Howat to examine and test the ground; that the defendants fraudulently deceived Howat by the fraud known as "salting" the ground, and thereby procured him to send a written report to the plaintiff Hume as to the nature of the ground which, though he believed it to be true, was in fact altogether erroneous and misleading; that the defendants themselves, on the 29th of March, 1900, made a false and fraudulent report as to the nature of the ground to the plaintiff Hume; and that in consequence of the frauds he procured the plaintiff company to be incorporated. The statement of claim further alleges that thereupon the defendants and the plaintiff Hume entered into an agreement, dated the 6th of July, 1900, whereby the plaintiff company ratified and adopted the agreement between the plaintiff Hume and the defendants. It also alleges that in the month of July, 1900, the plaintiff company caused a further examination of the ground to be made by one Bishop, and that the defendants, as with Howat, fraudulently deceived him, and procured him to send to the plaintiff company an erroneous and misleading report, and that, in consequence, the plaintiff company paid to the defendant Thomson the sum of £200, as provided by the agreement. The statement of claim then avers that the plaintiffs have been put to great expense in the survey, inspection, and examination of the property, and in brokerage, legal and other expenses, in the formation and flotation of the plaintiff company, and in carrying on the plaintiff company. The plaintiffs claim the sum of £1,100 as damages, and that the agreement of the 6th of July, 1900, shall be set aside, with the usual general prayer, or, in the alternative, that the agreement of the 6th of July, 1900, may be set aside, and that the defendants may be ordered to repay to the plaintiffs the sum of £200 paid under it, with the usual general prayer.

Counsel for the defendants contends that the action is one which comes within section 254 of "The Mining Act, 1898," and that by virtue of that section and the later sections 274 and 294, the Warden's Court has exclusive jurisdiction with respect to the matter.

Section 274 gives to the Warden's Court all the powers of the Supreme Court with respect to matters within the jurisdiction of the Warden's Court. Section 294 provides that all proceedings in any matter coming within the jurisdiction of the Warden's Court or the District Court under the Act shall be brought in such Court alone. The sole question therefore is whether or not the Warden's Court has jurisdiction in the matter. If so, the jurisdiction of this Court is ousted, and the Warden's Court has exclusive jurisdiction.

66

66

Section 254 provides that "the Warden's Court shall have "jurisdiction to hear and determine all such actions, suits, and other proceedings cognisable by Courts of civil or criminal jurisdiction as arise within the district concerning the following matters: 1, Area, dimensions, and boundaries of mining privileges; 2, forfeiture of mining privileges or "of surplus ground; 3, title to and ownership or possession of mining privileges or the products of mining operations; “4, questions or disputes relating to water or water-rights; ** 5, encroachments upon, infringement of, or injuries to mining privileges; 6, specific performance of contracts relating to mining privileges or operations; 7, transfers and **other dispositions of mining privileges; 8, trusts relating to "mining privileges or operations; 9, mining partnerships, and "formation and dissolution thereof, the taking of accounts "connected therewith, and the determination of all questions arising between the partners; 10, encroachments upon or “injury to land by reason of mining operations, whether held under the provisions of this Act or otherwise howsoever; "11, breaches of this Act or of the regulations thereunder "punishable by summary conviction; 12, encroachments upon or injuries to, and the determination of all questions concerning, roads, tramways, railroads, or fences constructed, "held, or occupied under this Act or any former Mining Act;

66