Chambers v Mayos [1969–70] PNGLR 46

• Jurisdiction: Papua New Guinea
• Judge: Frost ACJ
• Judgment Date: 30 September 1969
• Citation: [1969–70] PNGLR 46
• Court: Supreme Court
• Year: 1969
• Judgement Number: No540

Full Title: Chambers v Mayos [1969–70] PNGLR 46

Supreme Court: Frost ACJ

Judgment Delivered: 30 September 1969

1 Administrative law; Statutory interpretation

2 Building permit regulations ruled invalid; inconsistent with different, wider provisions of ordinance under which they had been adopted; term "shall remain in force" qualified

STATUTES—Interpretation—Regulation–making power—Regulations made under earlier Act continued in force as though made under later Act—Power in later Act to make Regulations not inconsistent with Act—Inconsistency between later Act and Regulation made under earlier Act—Public Health Act 1932—Building Act 1953–1968, s3(2), s8, s9, s11, s24(1)—Building Regulations, reg12.

The Building Regulations were first made in 1932 under the Public Health Act 1932. The Building Act 1953, s3(2) provided that those Regulations "shall be in force . . . as though made under this Act".

Regulation 12 of the Building Regulations of the Territory of New Guinea which makes it an offence punishable by fine or imprisonment to build a building within a town without a permit from the Building Board is void because it is inconsistent with the different and wider provisions of s11 of the Building Act 1953–1966 which makes it an offence punishable by fine only to build without the Board's approval.

Craven v The City of Richmond [1930] VLR 153; Bird v John Sharp & Sons Pty Ltd (1942) 66 CLR 233; and Brebner v Bruce (1950) 82 CLR 161, referred to.

Appeal from District Court.

On 1st April, 1969 the District Court at Lae struck out an information alleging an offence against reg12(1) of the Building Regulations of The Territory of New Guinea on the two grounds set out in the reasons for judgment. An appeal that both grounds were wrong in law was brought.

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Frost ACJ: This is an appeal against an order of the District Court at Lae on 1st April, 1969, striking out an information that the respondent did partly build an office within the town of Lae without being the holder of a permit to do so given by the Lae Building Board, thereby contravening reg12(1) of the Building Regulations of the Territory of New Guinea. The learned stipendiary magistrate reached his decision on two grounds—that the Lae Building Board was not validly constituted so as to act as informant, and that the informant had no power to lay an information in his own right. The grounds of the appeal are that both grounds are wrong in law.

I have been much assisted by the full and careful reasons for judgment given by the learned stipendiary magistrate upon the two preliminary matters which in fact were raised by the court. He has taken a timely and amply–justified course in drawing attention to the difficulties of this legislation.

The Building Regulations of the Territory of New Guinea were first made in 1932 under the Public Health Act 1932 of that Territory. The Building Act 1953 provided that the Regulations should be in force in the Territory of New Guinea as though made under that Act, s3(2). It will be necessary later to consider this specific provision in relation to the wide power conferred under s24(1) upon the Administrator in Council to make regulations not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act. This power is not cut down by the inclusion of certain particular subject matters.

The Regulations contain building provisions for the siting and construction of buildings, but the Regulations which are relevant to this appeal are Part II—Building Boards, and Part III—Administration and Miscellaneous. Regulation 7(1) provides that, for the purposes of the Regulations, there shall be a Building Board for each of the towns of the Territory. Generally, a Board is constituted of five members, being three ex–officio...