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

In re Harris [1833] NSWSupC 65

architecture - Crown immunity

Supreme Court of New South Wales

Dowling and Burton JJ, 28 June 1833

Source: Sydney Herald, 1 July 1833[1 ]

Mr. Unwin observed, that he had a motion to make to the Court, for which he could not find a precedent since the time of William and Mary.  The motion was made on the petition of right of Lawrence Standish Harris, under the following circumstances.  In 1822 Mr. Harris was engaged by Major Goulburn, the then Colonial Secretary, as Civil Architect, at the salary of £100 per annum; this being considered an inadequate remuneration he was also allowed 10 per cent. commission upon the value of all works in which he should be engaged.  After the erection of the New Jail Wall a dispute arose as the value of the work, the Government valuing it at £4,000, that being merely the value of the rations issued to the men engaged on the work, while others had valued the work itself at £9,000, on which Mr. Harris contended he had a right to have his commission paid; this however, the Government refused, only paying the £400, being the commission on their valuation of the work.  In Sir Thomas Brisbane's Government he could obtain no redress, in consequence he sent home a representation of the case to the  King, through the Secretary of State.  Mr. Harris had since received a letter from the Colonial Secretary, to the effect that Lord Goderich had found his case surrounded with so many difficulties that he declined entertaining it being one purely for a Court of Law; and that he had better bring the matter before the Tribunals of the Colony.  The agreement under which Mr. Harris acted was signed by Major Goulburn, as an Officer of the Government, they could not proceed against him, he would therefore be remediless unless they were to proceed against the King in the equitable Jurisdiction of the Court, but until the endorsement of the King was obtained the Court had no Jurisdiction, there was the difficulty, perhaps the Court would order the Chief Clerk to endorse the King's name, as in the case of Common Writs.[2 ]

Judge Burton.  I'm afraid it would hang him, Mr. Unwin.  The course in such cases at the Cape of Good Hope is to sue by consent of the Government the Colonial Treasurer; you had better apply to the Colonial Government for leave to bring the action against one of its officers.

 

Notes

[1 ] See also Dowling, Proceedings of the Supreme Court, Vol. 83, State Records of New South Wales, 2/3266, p. 126.

[2 ] According to the Australian, 1 July 1833, Unwin argued that the case was without precedent in New South Wales, and very rare in England.  The last recorded instance was the Bankers case, in the 1691, the second year of the reign of William and Mary.

Published by the Division of Law, Macquarie University