CHAP. XLI

PETTY AND GENERAL SESSIONS

357

But the following cases are expressly excluded from its jurisdiction—

1. Civil cases in which a county court has not cognisance for the same cause.1

2. Cases involving title to land.2

3

Procedure is by information and summons, and the order of the court may be enforced by warrant of distress or commitment issued by a single justice, or by an attachment of debts," except that a warrant of commitment cannot issue to enforce a "civil debt recoverable summarily." " But in all matters involving the payment of a fine of £5 or damages for assault or for trespass by cattle, or involving immediate or contingent imprisonment, an appeal lies from the Court of Petty Sessions to the next practicable court of General Sessions of the Peace." And, after notice of such appeal, by consent of the parties and an order of a judge of the Supreme Court, a case may be stated for the opinion of the Supreme Court, the parties agreeing that a judgment in accordance with such opinion shall subsequently be entered at the sessions. A judge of the Supreme Court may also, on the application of any person injured by a summary conviction or by any order or warrant of a court of petty sessions or a justice, issue an "order to review," calling on the other parties and (if he shall think fit) the justice or justices involved, to show cause why the proceeding should not be reviewed.9 An appeal lies from the refusal of a single judge to the Full Court,1o and, in any case, the return of the order takes place before the Full Court, which may confirm, quash, or vary the proceeding complained of."1 The justices whose decision is questioned may file explanatory affidavits,12

10

c. As a judge or magistrate in General Sessions.

There is

a court of General Sessions of the Peace, which corresponds with Quarter Sessions in England,13 for every bailiwick, and sessions are held at twenty-eight places provided by statute,1 at times directed by the Governor in Council.15 To each court of General Sessions is attached an official, known as the "clerk of the

peace," appointed by the Governor in Council, who issues process, arraigns prisoners, records verdicts, judgments, and proceedings, enters appeals, files convictions, and generally conducts the ministerial business of the court.1

The only essential member of the Court of General Sessions is the chairman, who is a specially qualified official appointed by the Governor in Council; but any one or more ordinary justices having jurisdiction within the bailiwick in which the court is held, may sit with him.2 In civil matters, the court may hear all appeals, and take cognisance of all matters cognisable by the appellate jurisdiction of courts of general and quarter sessions in England.3 In its criminal capacity, it may try all indictable offences within its bailiwick, except about twenty from the more serious classes of crimes. Criminal trials at General Sessions are held before juries of twelve."

Finally, we may notice the special protection extended to magistrates and their officials in the discharge of their duty.

Every action brought against a justice for any act done in the execution of his duty, may be met by a plea of "not guilty by statute," and if, after such a plea, the plaintiff fails to prove that the act was done maliciously and without reasonable and probable cause, judgment must be given for the defendant." But even if the act complained of was irregular, the complainant must first proceed to have it quashed by General Sessions or the Supreme Court, his action must be commenced within six months after the act complained of, and before commencing it he must give one month's notice in writing to the defendant, stating the ground upon which he intends to bring the action. Moreover, such action can only be brought in the Supreme Court, and the defendant may tender amends before action or pay money into court after action commenced, and if the plaintiff does not recover more than the sum tendered or paid in, he is mulcted in costs.1 Similar provisions apply to actions against any officers of General Sessions, except that an action against a clerk of the peace must be commenced within four months after the happening of the cause of action.11

10

These special provisions, moderate as they are, form one

CHAP. XLI SPECIAL PROTECTION TO MAGISTRATES

359

of the most important exceptions to the widely-accepted rule of English Constitutional Law, that a government official is liable for the consequences of his unlawful acts in precisely the same way as a private citizen. They are admitted, doubtless, out of consideration for the honorary character of the office of justice, and the extreme difficulty of mastering the whole of its duties.

OF THE

UNIVERSITY

CHAPTER XLII

COURTS OF MINES

3

"WITHIN and for" every Mining District there is a Court of Mines, which is held at such times and places as are appointed by the Governor in Council.1 Judges of County Courts are ex officio judges of all Courts of Mines in Victoria, and, as a matter of fact, Courts of Mines are generally held on the same days and at the same places as County Courts. Owing to the peculiar wording of the legislation on the subject, it is somewhat difficult to pronounce whether Courts of Mines are strictly local courts, but there can be little doubt that a Court of Mines is primarily intended to confine itself to matters arising within its own district.4 It is, however, expressly provided that a judge of such a Court may sit outside its territorial limits.5

Besides its judge, each Court of Mines has its clerk, with assistant and deputies, who issue process and keep accounts of the court fees, and generally act under the direction of the judge, and also a bailiff and his deputies, who attend the sittings of the Court, and serve and execute its process. Each clerk and bailiff gives security for the performance of his duties, and the functions of clerk and bailiff may not be performed by the same person.7 Clerks and bailiffs of Courts of Mines are protected against vexatious proceedings in the same way as registrars and bailiffs of County Courts.

Apart from the question of locality, the jurisdiction of a Court of Mines extends generally to all questions and disputes

CHAP. XLII JURISDICTION OF COURTS OF MINES

361

of law or equity arising between miners in relation to mining on Crown Lands, and particularly to questions concerning

1. Claims by virtue of miners' rights or licences to the user of Crown Land or the user or sale of water thereon.

2. Trespass to or ouster of such claims.

3. Contracts and partnerships for the conduct of mining operations on Crown Lands.

4. Mortgages or charges of mining property.

5. Boundaries of mining property.1

Moreover, it has jurisdiction to award compensation to owners of private property whose lands have been claimed for mining purposes.2

Within the scope of its jurisdiction, a Court of Mines acts both as a Court of First Instance and as a Court of Appeal from the Warden of the District. But where in an action of debt or contract which could have been brought in the Warden's Court, the plaintiff does not recover more than £100, he cannot recover more than the costs which would have been payable in the Warden's Court, unless the judge of the Court of Mines issues a special certificate.1 Subject to this limitation, however, a Court of Mines has, when acting within its jurisdiction, all the powers of the Supreme Court in analogous cases, including the power to grant a warrant of possession. But the form of proceedings is similar to that in use in the County Court, except that in all cases either of the parties, as well as the judge, may require the trial of any question of fact by a jury of six assessors."

The decree or order of a Court of Mines is enforced by execution against the property, and any person failing to pay money directed by it may be summoned and examined as to his assets, with liability to imprisonment if he fail to attend. Moreover, the Court may grant injunctions, appoint managers of undertakings, and provisional guardians of lunatics against whom it is desired to take proceedings. And bailiffs of Courts of Mines must execute the decisions of Wardens, duly certified to them.10

Finally, an appeal lies from the decision of a Court of

1 Mines Act 1890, § 135.

3 § 254. For the powers of this official, cf. ante, pp. 347, 348.

4 Mines Act 1890, § 218.

5 § 135.