The Tale of the short-changed surveyor

By The Hon John McKechnie KC

One morning long ago, someone woke up with a bright idea. The British army in India needed horses but there were difficulties in breeding them there. Australia had plenty of land. Why not breed horses in Australia and ship them to India?

And so, the Western Australia Land Company was formed in Britain. Subscribers included Sir James Stirling, a former Governor, and Elizabeth Fry, prison reformer. Where would the new venture be established? The new convict free settlement based on the Swan River. What to call it? Seems obvious really. The combination of the names of the two countries –Australind.

The venture proceeded apace. Subscriptions were sought for would be settlers. Plans were displayed showing a thriving township with churches, gardens, stores. These plans were premature to say the least because there was nothing surveyed, yet alone built.

In January 1841, Rev John Smithies described the venture as ‘one of the greatest puffs there has been for some time”. He urged fellow Methodists not to join.

To build a town, first you need a surveyor. And here our story begins.

James Gardner Austin, an architect and engineer, was engaged by the Company as surveyor at 400 pounds per annum. With his wife and 2 sons, Robert and James, accompanied by other members of the surveying party, he arrived in Western Australia on the schooner Island Lady in December 1840.

They soon set about mapping the 103,000 acres of land the company had acquired. Work was long and hard, but his team were loyal.In March 1841, the first group of settlers arrived. The appointed leader or Chief Commissioner was Marshall Waller Clifton.

Mr Austin was already busy with his party of surveyors, including Robert.

His men would later give evidence of his hard work and competence.

However, relations between Austin and Clifton soon soured. On 3 August 1841, Mr Austin was fired.After pointing out that he had wanted the directors to remove Mr Austin for a while, Mr Clifton came to the point:

…You have conducted yourself in a disobedient and disrespectful manner to me, your superior and on this day acted in a most disrespectful insulting manner to me in the presence of several of the workmen and labourers.”.

He was terminated with immediate effect and directed to return all unused rations and equipment.

Mr Clifton reported immediately to the directors in London and received a prompt response. Well prompt is perhaps relative. Mail was carried by sailing ship to and from England. Email was some distance in the future. Seamail was the go.

On the 23 April 1842 the directors responded to Clifton’s letter of 5 August 1841, noting that Austin’s behaviour had been highly reprehensible, and that Clifton had shown greater forbearance than he deserved.

But events had moved on. Mr Austin had issued a writ against Clifton claiming 6 months wages, 200 pounds, for wrongful dismissal.

The action was heard before Civil Commissioner Mackie in the Civil court on 7 December 1841 (a propitious date 100 years later). The Defendant took a technical point first. There was no evidence that the signature on the letter of appointment was that of Mr Buckton a company official. After some argument and evidence, the Commissioner accepted the evidence of the appointment.

The only other point raised was that the defendant should be the company, not Mr Clifton personally.

The Commissioner intimated a ruling at law that the Defendant was liable, whereupon Mr Scholes for Clifton indicated that no defence would be offered on the merits.

Judgment was duly entered for Mr Austin so, in time honoured fashion, Mr Scholes asserted he would appeal to the Governor in Council and Mr Nash, for Mr Austin responded that his client was being harassed by that threat, and if Mr Clifton did appeal, Mr Austin would appeal to the Privy Council in London.

Mr Clifton does not appear to be the forgiving kind. A few weeks after the judgment he wrote:

The increase of population in this neighbourhood, and with it the occasion and inclination to go to law frequently, seem to me to call for some means of trying civil causes in the district. Alas, despite best efforts by everyone, the project failed. The Company ran out of funds, as its increasingly despairing letters in response to Clifton’s requests, attest. By 1843, most of the settlers had taken up other land in the colony more conducive to farming and horse breeding.

The township so carefully surveyed, was never built. What happened to the participants? Mr Clifton stayed in the colony, prospered and went into politics.

In 1851, Mr Austin was appointed Superintendent of Works for the colony resigning in 1853 to return to England. He was succeeded by Richard Roach Jewell. Robert Austin became a surveyor, and mapped the Murchison Gascoyne district, he and his party nearly dying of thirst in the process.

And Australind? One hundred and fifty years on, it has become a thriving settlement as an outlier to its one-time rival Bunbury. The next time you drive down the Forrest Highway, turn off at the scenic drive which will lead you to the Leschenault Estuary. By its banks you will find a memorial with an etched diagram of the town that might have been.

Adapted from Austin v Clifton [1841] WASupC 29.