Cedric Flower (Australia, b.1920, d.2000)
oil on board, 30 x 37 cm
Private collection of John Perry Hamilton, Sydney
Photo: Rebecca Shanahan
© Katy Horan, Estate of Nicholas Charles Stapleton
This book deals with the inception and development of adjudication systems on the gold fields in New South Wales and Victoria in the 19th century. The sudden onset of the gold rushes in New South Wales and Victoria in 1851 created an immediate necessity for a system of resolving disputes among gold miners. Despite a large literature on the gold rushes generally, virtually nothing has been written on the adjudication systems.
The aim of this work is to examine what these systems were, to discover what records of them have survived and to expose samples of those records. The work concentrates on the period from 1851 to 1875 when the adjudication systems were at their most active. It records the changing legislative provisions relating to adjudication in that period. It explores and contrasts the success of the early system in New South Wales with its failure in Victoria.
The book explores what records survive of adjudications in both colonies and incorporates samples of them. It examines in some detail the career of Thomas Alexander Browne (who was the novelist Rolf Boldrewood) as the Commissioner at Gulgong in the early 1870s and who, atypically of Gold Fields Commissioners, was at odds with his community. It also examines the reported cases in the Supreme Courts concerning gold fields adjudication. The work thus presents, for the first time, an account of these adjudicative systems.
Foreword by Justice Geoff Lindsay
1. Introduction and Plan
2. History and Social Background
3. Origins of the System
4. Legislative History in New South Wales and Victoria
5. The Establishment of Gold Commissioners as Adjudicators
6. The Establishment of Local Courts and Wardens in Victoria in 1855 and Their Operation until 1858
7. Continued Operation of Commissioners in New South Wales from 1853 to 1866
8. The 1866 Legislation and the New South Wales Royal Commission of 1870-71
9. Continued Operation of Adjudicators in New South Wales from 1867 to 1873
10. The Establishment of the Victorian Courts of Mines and Wardens’ Courts in 1858, Their Operation from 1858 to 1875 and Comparison with the New South Wales System
11. TA Browne and Gulgong
12. Browne v Browne
13. Wardens’ Courts in New South Wales from 1874
14. Jurisprudence in Superior Courts Concerning Adjudication System
15. History of Wardens’ Courts After 1875
Appendix 1. Table of Cases: Record of Cases Determined in Beechworth Local Court
Appendix 2: Cases From Hill End Bench Book
Appendix 3: Register of Complaints in Sofala Warden’s Court
On the gold fields in New South Wales and Victoria in the 19th century, a remarkable system of deciding disputes between miners developed. It was almost entirely oral. The adjudicator would, when notified of a dispute, proceed directly to the location of the parties. Its success depended considerably on the expertise and character of the particular decision makers. For a brief time, as part of the legislative response to the Eureka Stockade, the system included Australia’s only elected courts. The author (a former judge of the Supreme Court of NSW) has expertly marshalled what little written record remains to contribute a valuable work to Australia’s legal history.
It must be borne in mind that this book is, first and foremost, an attempt to grapple with the scant primary sources which illustrate the history of the Gold Commissioners, and, later, Local Courts and Wardens. In service of that aim, it descends into some considerable detail. However, in doing so, it does not lack for readability or, which can sometimes occur, context; the reader is never lost amongst the thickets.
For the modern lawyer, it is impossible not to draw parallels between the rise and fall of the Gold Commissioners, who dispensed prompt, cheap and accessible justice, and the modern trend towards low-cost, informal, specialty tribunals. For a time, the Commissioners were well respected and their decisions almost uniformly accepted by the community in which they worked. Largely, that success was attributable to their expertise in mining matters. When their work was transferred to Justices of the Peace, who lacked such experience, the system degraded to the point that a royal commission found it to be, “… worse than useless”.
This book, in addition to making an important contribution to the historical record, reminds us that systems of adjudication must adhere to the principles of “… expedition, cheapness, simplicity of procedure and effectiveness of decision” in order to promote public confidence in the satisfactory administration of justice.
Queensland Law Reporter – 25 August 2017 –  33 QLR
The heady days of the gold rushes in Victoria and New South Wales in the 1850s created a real problem for the colonial authorities. How were they to resolve the many disputes which could arise on the goldfields for those attracted by the lure of instant riches? How could they create a system of adjudication which protected the Crown’s rights yet provided fairness and justice and avoid the potential for those disputes erupting into violent confrontations?
These issues are explored in this fascinating book. It is based on original research and concentrates on the period 1851-1875, when mining disputes were at their peak. The author examines the adjudicative measures put in place by the legislatures to deal with goldfields disputes. which included trespass. abandonment and encroachment claims.
The author shows that the initial reaction in both colonies was the creation of goldfields commissioners who decided dispute so rally and on the spot, sometimes with large numbers of other miners present. He states that this system largely worked in NSW because of the person chosen as the first commissioner.
However, the dissatisfaction with the system of commissioners in Victoria which resulted in the events at Eureka, saw the system change to a more formal process of adjudication, which was later adopted in NSW.
The author shows that the adjudication systems as developed led to a peaceable resolution of the goldfields disputes and a general satisfaction with the system by those involved.
The book will appeal to a wide range of readers including lawyers and those interested in the social history of Australia. It is highly recommended.
Scott Whitechurch, InPrint, Law Institute Journal Victoria, December 2016
In Adjudication on the Gold Fields, John Hamilton provides the first detailed history of judicial functions on the New South Wales and Victorian gold fields. A retired judge, Hamilton provides a careful, authoritative, although largely descriptive, account of the provision of justice on the gold fields over more than half a century. He shows how a tradition of single-person dispute resolution grew up – involving variously the magistracy, the Crown Lands Commissioners, the Gold Fields Commissioners, Justices of the Peace – followed and accompanied by the development of special mining courts. …
One of the virtues of the book is its concise and comprehensive setting out of the legislative history of the establishment of these courts, noting in each case the paths available for appeals.
David Goodman, Labour History, November 2016
The title of this book forebodes a treatment as dry as the dust that must have swirled around the gold diggings of eastern Australia 150 years ago. But as we all know, titles can be deceptive. Drawing on records not hitherto subjected to systematic analysis and supplementing earlier work that earned him a PhD at Macquarie University, the author has produced an eminently readable account of not only administrative and judicial processes for quelling mining disputes but also the social fabric of Henry Lawson’s “Roaring Days”.
The reader expecting a discussion of the history of mining legislation and regulation will not be disappointed – but may be surprised to read that a Scot named Scobie was kicked to death outside the Eureka Hotel in October 1854 or that the commissioner on the Gulgong fields in the 1870s became much better known to later generations by his pen name, Rolf Boldrewood. The detailed account of legal events and developments is leavened by such revelations.
… In his foreword to the book, Justice Geoff Lindsay aptly says: “It is a triumph in versatile storytelling. It can be read as a novel, studied as a judgment, or consulted as an expert’s report, according to the purpose and mood of the reader.”
R I Barrett, Australian Law Journal, September 2016
I, for one, had never consciously wondered how
justice was dispensed on the gold fields. I knew
that there were Commissioners, later known as
Mining Wardens, who sat to decide disputes but I
did not know that, particularly in New South Wales, these people were quite hands on. They did not sit in a court as such but resolved the early cases by actually visiting the gold field. One of them is said to have worked himself to death! … As I read this book, it was easy to put myself back into the 19th Century.
This book moves me to ask why there is not more emphasis on Australia’s history for there are some fascinating experiences from which to learn by reading books such as this.
Adjudication on the Gold Fields is easy to read, is replete with Appendices, including a register of complaints from various Mining Courts and some transcripts of various of the cases, where the evidence or the nature of the claims was actually recorded in writing.
This is a thoroughly interesting book.
Brian Morgan, Hearsay, August 2016, 76
The mid nineteenth century gold
rush period produced an unrivalled population explosion in Australia. … An unexpected administrative crisis arose from the sudden onset of the fledging gold mining pursuits in the colony. Disputes frequently broke out on the gold fields. … There was a rush to establish a system of laws and processes to govern life on the gold fields and to promote order among a potentially revolutionary and demographically diverse community of mostly transient opportunists.
While there is considerable historical writing about life on the gold fields, particularly the rebellion of the Eureka Stockade, this book cures a long lasting lacuna of historical literature on the adjudication systems of the gold fields.
It is a triumph of literary form. It is novel-like as well as a study and a subject matter authority. It contains both social history, colonial jurisprudence and personal stories. It really is a golden addition to any historical library, particularly one focussing on Australian history or legal history.
Talitha Fishburn, Bar News, NSW Bar Association, Winter 2016
John Hamilton is a lawyer, a former member of the New South Wales Supreme Court. His short and effective work is not a romance but a necessary record of the role of adjudication in the early years of our local gold fields. … This book is an historical monograph in the most valuable sense, something which focuses upon a hitherto unexploited aspect of a wider and more generally understood period and at the same time throws new and refreshing light on that understanding.
David Ash, Francis Forbes Society Newsletter, 33, Autumn 2016