Skip to Content

Decisions of the Superior Courts of New South Wales, 1788-1899

R v Girard [1831] NSWSupC 39

intrusion - land law, title - customs and usages - Darling, Governor, attitude to Crown law officers - Crown litigation, report on - reception of English law, Crown debts

Supreme Court of New South Wales

Forbes C.J., 22 June 1831

Source: Sydney Gazette, 25 June 1831[1 ]

This was an information of intrusion, brought at the suit of the crown against Francis Girard, for an encroachment on a portion of ground, alleged to be King's land, situate on Woolloomoolloo-hill.  The defendant first pleaded the general issue, which he afterwards withdrew, and then pleaded specially, that he took possession of the land alleged to be in the hands and possession of his Majesty with the privity and sanction of his Excellency the Governor, and that there has been a custom in this Colony for more than a generation of man, by which the defendant in consequence of having so taken possession with such privity and assent, was of right entitled to have a grant, in fee simple, of the same.

Mr. Wentworth stated the case for the defendant in support of his plea of justification, and proceeded to call witnesses in support of it.  The witnesses called were - Colonel Dumaresq, the Hon. the Colonial Secretary, and Major Mitchell, Surveyor-General.

The examination of these gentlemen was to the effect, that a promise of some land was given to Mr. Girard, for the purpose of erecting a spermaceti manufactory, to which his Excellency was disposed to give encouragement, as it was likely to be productive of public benefit.  Accordingly directions were given to the Surveyor-General to make an eligible selection of land for that object.  The selection was made on the South East side of the South Head-road, but Mr. Girard declined to accept of this land, and subsequently made application for a piece of ground on the Woolloomoolloo-hill.  He required fifteen acrees in that direction, but the Surveyor-General reported, that five would be quite sufficient for the purpose.  This portion of ground, however, was never measured or granted to him.  Meanwhile, Mr. Girard purchased a site for the erection of a windmill, and made application for a piece of ground adjoining it to Government.  This application repeated, was refused; and it was for an encroachment on this adjoining portion of ground, of which Mr. Girard took possession, that the present information was filed.  In the examination of Major Mitchell, it appeared that the piece of ground on which the encroachment was made, was not included in any portion of ground which it was at any time intended to give Mr. Girard.

At the close of the examination, a short conference took place between Counsel on both sides, when it was agreed to let the question go to the Jury on the evidence, whether the defendant took possession of the land with the privity and assent of the Governor or not?  And in the event of this point being found for the defendant, the other point might be reserved for argument before the full Court in banco.

The Jury, however, found for the plaintiff, thereby confirming the crown's right of possession of the land.

Counsel for the crown, Mr. Therry, Messrs. C. and D. Chambers; for the defendant, Mr. Wentworth and Mr. Keith.

Notes

[1 ] The Australian, 24 June 1831, commented on this case, noting that the "great question as to how far promise and possession is sufficient title as against the crown, ... was not agitated." See also Sydney Herald, 4 July 1831.

Governor Darling wrote about this case to Under Secretary Hay of the British government on 28 March 1831 (Historical Records of Australia, Series 1, Vol. 16, p. 219-222; and see pp 288-294).  He said that the Attorney General, A.M. Baxter, was utterly incompetent, and that the Solicitor General (Moore) was not inclined to serve the government.  This, Darling said, affected Girard's case.  Girard claimed title to what the governor thought was Crown land and erected a fence there.  Baxter recommended that the fence be taken down, and when it was, Girard successfully sued the government.  Darling claimed that Moore neglected to put in a plea of justification until it was too late.  Girard then fenced in the land again, and now the issue was back in court.  See also Darling to Goderich, 10 October 1831, p. 404.

For a report on litigation involving the Crown, see Darling to Goderich, 21 September 1831,Historical Records of Australia, Series 1, Vol. 16, pp 361-368; and see pp 403-407 on other Crown litigation.  The main topic of the report concerned debts due to the Crown, and it included the following note by Forbes C.J.: ``The Law of England for the recovery of all Debts due to the Crown is the law of New South Wales, and the same legal modes of recovering them are here in force.  Several cases have occurred of Extents at the Suit of the Crown, and one in particular I would call to the attention of the Commissioners, viz., : The Case of Captain Piper, the late Naval Officer, charged with the collection of the Customs as a proof of the celerity with which this mode of recovering a Crown Debt may be carried into effect."  The latter was decided in 1827.

On the background to this case, see BH Fletcher, Ralph Darling: a Man Maligned, Oxford University Press, Melbourne, 1984, 289-290.

Published by the Division of Law, Macquarie University