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

O'Connell v. Bell (1839) 1 Legge 117; [1839] NSWSupC 74

O'Connell v. Williams

R. v. O'Connell

land law, title, Bligh, governor, estate of - injunction - land law, Crown land - Parramatta - ejectment, against Crown - Female Factory

Supreme Court of New South Wales

Dowling C.J., Willis and Stephen JJ, 21 September 1839

Source: Sydney Herald, 20 September 1839[1]

O'Connell and others v. Bell -- O'Connell and others v. Williams, &c. &c.  The Attorney-General said that although it was unnecessary to file a bill to restrain the plaintiff from proceeding in these cases, as he might have come at once upon Her Majesty's prerogative, as there had not been a case of this kind for many years, and the practice was not very clearly defined, for more abundant caution he had thought it right to file a bill in the Revenue Exchequer jurisdiction of the Court.  The bill which had been filed, set forth that Her Majesty was seized of one hundred and five acres of land at Parramatta, and certain edifices and appurtenances thereon, a great part of which is in the possession of Her Majesty by the hands of her bailiffs, and the other part in possession of parties holding under grants from the Queen or her Royal ancestors, and yet that Sir Maurice O'Connell, and Mary, his wife, and others, pretend that they have a title to the said land, and have commenced various actions.  The affidavit of the Crown Solicitor set forth that several actions had been commenced against parties who are Her Majesty's b[a]iliffs; that Thomas Bell is the Superintendent and Storekeeper of the Factory, and has no possession of the land, except as Her Majesty's servant; that John Williams is a constable stationed at the domain gate, Parramatta, and has no other possession; that the Reverend J. Troughton is residing in the King's School, Parramatta; and that the land claimed from H. J. Richardson, is part of Her Majesty's domain, and is in possession of Sir G. Gipps, as Her Majesty's representative.  The learned gentleman cited several cases to shew that it is a clear principle of law that no action of ejectment can be brought again[s]t the Crown.

Mr. Foster and Mr. Windeyer argued that the motion could not be made without four days' notice which had not been given.  It was denied that the land claimed is actually in possession of the Crown, and they complained generally of being taken by surprise.  After considerable argument it was ordered by the Court that the case shall be argued on Friday next.

 

Dowling C.J., Willis and Stephen JJ, 12 October 1839

Source: Sydney Herald, 14 October 1839[2] 

 

The Queen v. O'Connell -- This was an application by the Attorney-General, for a special injunction to restrain Sir Maurice O'Connell from prosecuting certain actions of ejectment to recover possession of certain land at Parramatta, upon the ground that it is in possession of the Queen by her bailiffs.  The case had been pos[t]poned for a fortnight in order to allow the defendant to prepare his answer.

Mr. Manning now appeared to oppose the granting of the injunction.  He read the affidavit of Sir M. O'Connell, which stated that in the year 1806 the land in question was granted to Captain Bligh, who remained in possession of it until he left the Colony, when he constituted Sir M. O'Connell his agent, who remained in possession until he left the Colony, when he left an agent, but in 1819 the Governor declared the grant to be cancelled, and took possession of the land.  The affidavit of H. J. Richardson stated that the land which he claims by lease is not part of the Government Domain, but outside the fence and is vacant.  The affidavit of Joseph Allen, of Port Macquarie, stated that he arrived in this Colony with Governor Bligh, and a few days afterwards was directed to go to Parramatta to look at some land; that the next day Governors Bligh and King, and Mr. Grimes, the Surveyor-General, arrived at Parramatta, and Mr. Grimes measured the land in question, of which Bligh took possession; that deponent cleared forty acres of the land, fenced it in, and remained in possession of it as a homestead until Bligh's cattle were removed to the Hawkesbury and the land was not required as a homestead, when it was suffered to go into decay; that after the proclamation of Governor Macquarie, deponent saw a man digging a foundation on the land, and warned him that it belonged to the heirs of Admiral Bligh.  The learned gentleman contended, that if the Court granted this injunction Sir Maurice O'Connell would be entirely without remedy, for the petition of right is a remedy which cannot be considered applicable to the Colony, and therefore the Governor of the Colony will have nothing to do but disseize any person of his land, and if the party attempts to bring an action of ejectment the Attorney-General can come into Court and say that the Crown holds the land by the hands of its bailiff, and the Court will stop the action, and the party will have no remedy.  The Crown having once granted the land cannot resume possession except by matter of record, and the proclamation of Governor Macquarie can be considered as only so much waste paper.  In Magna Charta it is expressly stated that no man shall be disseized of his land by the Crown, except by the judgment of his equals or the law of the land, but if the Court granted this injunction they would in fact declare that the Crown can disseize a party contrary to the principles of Magna Charta.  If the Court held that the Crown was in possession, he was aware of the principle that the Crown cannot be ousted by an action of ejectment, but there is also another principle that the subject can undergo no wrong for which there is no corresponding remedy, and if these two principles clashed he was sure the Court would not, if it could possibly be avoid it, give effect to the former position as it would in fact declare that Sir Maurice was to have no remedy.

Mr. Darvall followed on the same side.

The Court without calling on the Attorney-General for a reply granted the injunction, on the ground that the land is actually in possession of the Queen by Her Representative the Governor and his bailiffs.

 

Notes

[1]  See also Australian, 24 September 1839; Sydney Gazette, 24 September 1839; and see Doe dem. O'Connell v. Pye, 1839.  This is one of few cases in this period to appear in the law reports.  See (1839) 1 Legge 117 (under the name R. v. O'Connell, reporting the judgment of 12 October 1839, as to which see below).

[2]  See also Australian, 15 October 1839.

Published by the Division of Law, Macquarie University