Skip to Content

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

Wiseman v. Ogilvie (1843) NSW Sel Cas (Dowling) 723; [1843] NSWSupC 22

squatting, trespass

Supreme Court of New South Wales

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

Source: Dowling, Select Cases, Vol. 7, S.R.N.S.W. 2/3465, p.139.

Where a trespass was alleged on crown lands beyond the limits allotted to settlers for location; held that the action could not proceed until the case had been heard by the Commissioner of Crown Lands as provided by 5 Vic. No. 1 (1841).*

This was an action of trespass for breaking and entering the plaintiff's closes at Myall Creek on 1 February 1841. Plea, that the closes were crown lands beyond the limits allotted to settlers for location, to which in the district of Liverpool Plains and within the meaning of description of the lands mentioned in the acts of Council, 2 Vic. No. 27 (1839) and 5 Vic. No. 1 (1841), and that the alleged trespassers where committed after the passing of those Acts and the plaintiff's complaints in respect thereof had not been heard and determined by the Commissioner of the district in the manner provided for by those Acts, before the commencement of this suit. Replication, that the trespasses complained of were committed before the passing of the Act, 5 Vic. No. 1, and issue thereon. At the trial before Burton J. and a special jury at the last Maitland Circuit Court, the plaintiff had a verdict with damages for £25.

 

Dowling C.J. This case was reserved for consideration from last term, a motion having been made to arrest the judgment on the ground that the plaintiff's replication raised an immaterial issue.

The merits of the case may have been with the plaintiffs, but on that count we are not called upon to give any opinion. The only question for us to determine is whether it was material that the alleged trespass was committed before or after the passing of the local Act. The plaintiff's replication admits that the loci in quibus were beyond the limits of location, that the lands were within the meaning of the description of the lands mentioned in the local Act pleaded, i.e. were occupied by license or sufferance from the crown, and that the trespass had not been heard and determined by the Commissioner of Crown Lands for which the district in which the trespasses were committed. The only point he relies upon is that they were committed before the passing of 5 Vic. No. 1. Was it or was it not material that they were committed before that Act was passed, or in other words has the a retrospective operation, so as to suspend the jurisdiction of this Court until the matter of the plaintiff's compliant had been heard and determined by the Commissioner.

The trespass occurred on 1 January 1841 . By 5 Vic. No. 1, passed on 23 June 1841, entitled "An act to amend and continue for five years, an act entitled 'An act further to restrain the unauthorized occupation of crown land and to provide the means of defraying the expense of a police force.'" It is by s. 2 enacted that "no action at law that be brought in the Supreme Court or any Circuit Court of the Colony for any trespass at any time committed, or alleged to have been committed by any person having encroached upon the station or run of any party in the occupation of crown lands, beyond the limits allotted for location, whether such occupation was merely on sufferance prior to the passing of the said Act (29 March 1839) or by virtue of a license granted either before or after the passing of this Act, until the case shall have been heard and determined by the Commissioner of the district in the manner provided by the said recited Act; if any such action shall be brought in the Supreme Court or any Circuit Court in the foresaid, after such hearing and determination and the verdict of the jury or assessors as the case may be, shall affirm the decision of the Commissioner, the judge shall certify to that effect, and the party in whose favor such certificate shall be granted shall be entitled to treble costs".

It appears to us that this Act is retrospective as well as prospective in its operation. It was clearly immaterial therefore whether the trespasses were committed before or after the passing thereof. An immaterial issue has been raised and the defendant is entitled to have the judgment arrested. We are of the opinion that this action was not maintainable on the issue raised, although the merits of the case may have been with the plaintiff.

Judgment arrested.

Published by the Division of Law, Macquarie University