1-266 (Raw)

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This was an action for intrusion brought by the Crown against Robert Cooper who had started to erect buildings for a brewery and distillery on the Paramatta Road at a place called the Blackwater Swamp. The Attorney-General on behalf of the Crown claimed that the land in question had not been ceded to any individual and remained therefore in the possession of the Crown. The defendant, who was represented by Dr. Wardell and William Charles Wentworth, obtained the empanelling of a jury with the consent of the Attorney-General, under the terms of the New South Wales Act, 1823. It was the first jury empanelled in civil proceedings in Australia. The defendant asserted that his occupation of the land had been authorised by the Surveyor-General, although this was disputed by the Crown.
The Chief Justice in his charge to the jury remarked upon the novelty of the case. The information of intrusion is a Crown proceeding. The jury have to try the matters of fact - the law being the province of the court. The law of England must govern this, as well as every other court. To constitute a right to lands there must be a regular grant, with the appendage of the great seal. It is to be regretted that such solemnity has been departed from. The Crown can only make a grant in a formal way, and nothing short of the actual possession of the grant can warrant a defence. Local usages must not derogate from the laws of the land, neither must they derogate from the prerogative of the Crown. No such local custom, as has been stated, can be legally existing. The Governor cannot himself make a valid title, unless in conformity with His Majesty's Instructions. The instructions of the Crown are not to be dispensed with. The court must not adopt the loose practice that has been regarded in this colony.
It did not appear to His Honour that anything like a legal title had been made out for the defendant. In point of fact, the Governor had never given his consent to the bestowment of this ground for the defendant. Neither did it appear that the Surveyor-General had been privy to the transaction. It could not even be looked upon as a licence of occupation, the Governor having refused his sanction. [269] 
His Honour, however, adverted to the extreme hardship under which the defendant laid. He had incurred a heavy expense which must have originated in a mistake of the Assistant Surveyor as to the particular instructions given him by the Surveyor-General. But the court had nothing to do with mistakes - only with right, and the defendant had no right. But the peculiar hardship of the case, the court observed, should not pass unnoticed and therefore was recommended to be kept in sight by the jury. The jury retired for three quarters of an hour. Upon their return the foreman recited the following verdict: "The jury specially find, that Mr Cooper has obtained possession of the land in question, agreeable to the practice hitherto in the colony".
Under all of the circumstances of the case, the jury recommended Mr. Cooper to the favourable consideration of the Colonial Government.
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