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

Jones v. Hunter (1843) NSW Sel Cas (Dowling) 904; [1843] NSWSupC 14

new trial, squatting, trespass

Supreme Court of New South Wales

Dowling C.J., Burton and Stephen JJ, November 1843

Source: Dowling, Select Cases, New Series, Vol. 1, S.R.N.S.W. 2/3467, p. 71.

A new trial was ordered on a limited issue where a letter was read to the jury in the course of an address by counsel, but was not proved, erroneously, or was taken for granted would be proved, which may have influenced the jury's decision.*

This was an action of trespass for breaking and entering certain closes in the County of Bligh beyond the limits of location. The defendant, as Commissioner of Crown Lands, pleaded not guilty and the act of Council, 2 Vic. No. 27 (1839) sections 10 and 24 . At the trial before his Honor Mr Justice Burton and a special jury at the last Bathurst Circuit Court the case in substance was this.

The plaintiff had taken charge on terms of certain sheep and the station on which they were running belonging to a Mr Maughan beyond the limits of location, during the intended absence of the latter from the Colony, the plaintiff undertaking at the end of a certain term to deliver up the sheep and the stations on which they were running. Mr Maughan left the Colony but before his return, the plaintiff was obliged to abandon the stations in consequence of the encroachments of other flock masters sought out and took up these on his own account and obtained the usual depasturing licence in his own name and removed the sheep. On the return of Mr Maughan to the Colony he claimed to have the new runs taken up by the plaintiff. Disputes arose as to his right to have them in lieu of those which had been abandoned, and it was agreed to refer the matter to arbitration, and an award was made against the plaintiff, who being dissatisfied with the manner in which the reference was conducted, being made upon written statements behind his back, he refused to obey the award. After this Mr Maughan made some representation about the matter, without the knowledge of the plaintiff to the defendant, being Commissioner of Crown Lands for the district and the defendant wrote to the plaintiff that he must give up the disputed stations. At this time no complaint in writing appearing to have been made, to found the jurisdiction of the defendant as Commissioner, he on the 14th July 1842 wrote to the plaintiff in the following terms:


Mr Maughan, of "District Bligh", having a complaint to lodge against you regarding a disputed run in this district, I have to inform you that I am here now ready to hear the case, and to request you will appear here and defend the case tomorrow the 15th inst. on penalty of the case being given against you. I am &c.

The plaintiff's dwelling at this time was about 12 miles from the place where this letter was dated. There was no proof by whom and at what time it was sent, on the day it bore date. The plaintiff did not attend on the next day the 15th and on the 16th the defendant wrote to the plaintiff, intimating his decision that he must immediately give up all claim to the stations in favour of Mr Maughan. On the 20th July the plaintiff wrote to the defendant on the subject, but a copy of this letter only being produced, and although read by Counsel to the jury was not regularly proved.

Matters thus stood until the 15th September 1842 when the plaintiff wrote to the defendant, referring to his letters of the 14th and 16th July, and after echoing their contents, begged to state that he only received his letter of the 14th July on the 16th July the day after that which he had fixed for his hearing, and the day after that on which by his letter of the 16th July he appeared to have decided without a hearing. He assured the defendant that it was no want of respect to him, which occasioned his non attendance, but that Mr Forbes by whom his communication was conveyed, delivered it to him the day after the 15th July. He therefore begged the appointment of another day of which Mr Maughan and himself might have notice, and that he (defendant) would then review his decision. He then entered into a statement of the reasons why he could not abide by the defendant's decision. The defendant without noticing this letter wrote to the plaintiff on the 13th October 1842 as follows:

District Bligh

Commissioner of Crown Lands Office

October 13th 1842


I have received your letter of the 15th October stating that you refuse to abide by my decision as to the occupancy of the stations called (naming them) in the district. I now send parties to enforce my instructions, and to inform you that should anything further take place in your not abiding by what is done by the Commissioner of the District steps must immediately be taken to remove you from the district altogether &c.

Accordingly on the 13th October, the plaintiff, was forcibly turned off, the runs with the assistance of two mounted policemen, and one of the huts was set fire to, and part of the fences destroyed by which the plaintiffs sheep escaped and Mr Maughan's overseer was put into possession.

The case of the plaintiff rested upon the question whether, assuming the defendant to have jurisdiction in the matter upon which he had determined, he had given time and opportunity to the plaintiff to appear and make his defence; for if he had not, then he must be considered a trespasser ab initio, and liable for the wrong done. It was contended that there was no evidence of his having been served with a notice to appear and that it must be presumed that he had not from what was stated in his letter of the 15th September and not denied to be true in the defendant's letter of the 13th October.

The learned Judge left the jury to determine, as matter of evidence for them upon the whole case, whether in fact the plaintiff had been summoned and had an opportunity of appearing before the Commissioner to make defence. If the defendant had jurisdiction in the matter of inquiry before him, and exercised it in a lawful manner, the righteousness of his decision could not be called into question; but it was contrary to the first principles of law and natural justice to decide against a party without his having an opportunity of being heard in his defence. He told them that if they were satisfied that the plaintiff had had the opportunity of being heard, but neglected it, their verdict must be for the defendant. On the other hand if they were satisfied that the plaintiff had not been summoned, and no opportunity afforded him of being heard, the defendant must be considered as a trespasser ab initio and without the protection of the act of Council on which he relied, and the plaintiff entitled to a verdict. If the plaintiff was summoned the verdict must be for the defendant, if not, it must be for the plaintiff with such damages as the jury were satisfied he had suffered. The jury found for the plaintiff damages £200.

Last term a motion was made for a new trial on a variety of grounds: first, that the defendant had had no notice of action: second, that in the alleged trespass the defendant acted judicially: third, that it lay on the plaintiff to shew that the defendant had exceeded his authority; fourth, that it must be presumed that the defendant had acted legally until the contrary was shewn; fifth, that the action was not maintainable by the 5 Vic. No.1 (1841); sixth, that the defendant being bailiff of the crown he had a right to act as he had done; seventh, that the act was done with the leave and license of the plaintiff; eight, that the former award against the plaintiff should have been received in evidence in reduction of damages; ninth, that the verdict was against evidence; and tenth upon the points reserved by the Judge.

Dowling C.J. These grounds were very fully discussed, but after all it appears to us that the whole case really resolved itself into the question whether there was any proof that the plaintiff had received notice to attend the hearing of Mr Maughan's complaint before the defendant pronounced his decision. It now appears that the copy of a letter of the 20th July written by the plaintiff on this subject, was read to the jury in the course of the address of the plaintiff's counsel, but which was not proved or was taken for granted would be proved, and which in all probability partly influenced the decision of the jury on this point. It seems also that the learned Judge in summing up the case, had assumed that the letter alluded to had been put in, in connexion with the plaintiff's letter of the 15th September and the defendant's of the 13th of October.

Agreeing in the general principle that everything is to be presumed in favour of the proper exercise of the authority vested by law in Magistrates or others acting judicially, yet as the foundation of the plaintiff's case was that in fact he had received no summons or notice, and had had no opportunity of appearing and defending himself in the matter on which the defendant had adjudicated, thereby maintaining that the defendant was in law a trespasser ab initio, it lay upon the defendant to rebut the prima facie case launched by the plaintiff in his letter of the 15th September and the reply thereto of the defendant of the 13th October. But for the production of those letters by the plaintiff, it is probable that he must have been nonsuited upon the general presumption of law that the defendant had acted within the scope of his authority, and had done everything which the formalities of the law and natural justice required in adjudicating upon the matter submitted to his determination.

We agree that the silence of the defendant's letter in reference to the plaintiff's assertion that he had not received any notice of hearing until the day after the decision is not to be taken as conclusive acquiescence to the truth of the assertion, but still it was a circumstance in the absence of any other proof that the plaintiff had received notice time enough to appear, to go the jury coupled with the plaintiffs other letter of the 20th July which it now appears was erroneously assumed to have been proved. We think upon the whole that there ought to be a new trial upon the single issue, whether in fact the plaintiff had notice of the hearing before the defendant decided the case which has given rise to the action. The parties must be tied down to that point, which we have authority to do by the Act for the advancement of justice.

The questions whether the defendant had notice of action - whether the trespass was committed, whether the action would lie by law against him, and the other questions incidentally raised on the argument before us, must now be considered as settled. The issue on the new trial will be confined to the one simple question of fact, whether the plaintiff had notice to appear and defend himself at the hearing of Mr Maughan's complaint before the defendant on the 15 July 1842. If the jury shall be of opinion that he had no notice, the present verdict must stand with the same amount of damages; but if on the contrary they shall find that he had notice, then the present verdict must be set aside and a verdict entered for the defendant.

New trial granted.

Published by the Division of Law, Macquarie University