Chambers v Mayos [1969] PGSC 7; [1969-70] PNGLR 46 (30 September 1969)

Papua New Guinea Law Reports - 1969-70

[1969-70] PNGLR 46 - Chambers v Mayos

[1969-70] PNGLR 46

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

CHAMBERS

V

MAYOS

Port Moresby

Frost ACJ

10 September 1969

30 September 1969

STATUTES - Interpretation - Regulation-making power - Regulations made under earlier Ordinance continued in force as though made under later Ordinance - Power in later Ordinance to make Regulations not inconsistent with Ordinance - Inconsistency between later Ordinance and Regulation made under earlier Ordinance - Public Health Ordinance 1932 - Building Ordinance 1953-1968, ss. 3(2), 8, 9, 11, 24(1) - Building Regulations, reg. 12.[lix]¹

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 s. 11 of the Building Ordinance 1953-1966 which makes it an offence punishable by fine only to build without the Board’s approval.

Craven v. The City of Richmond, [1929] ArgusLawRp 84; [1930] V.L.R. 153; Bird v. John Sharp & Sons Pty. Ltd. [1942] HCA 27; (1942), 66 C.L.R. 233; and Brebner v. Bruce [1950] HCA 36; (1950), 82 C.L.R. 161, referred to.

Appeal from District Court

On 1st April, 1969 the District Court at Lae struck out an information alleging an offence against reg. 12(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.

Counsel

Davenport, for the appellant.

Cur. adv. vult.

30 September 1969

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 reg. 12(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 Ordinance 1932 of that Territory. The Building Ordinance 1953 provided that the Regulations should be in force in the Territory of New Guinea as though made under that Ordinance, s. 3(2). It will be necessary later to consider this specific provision in relation to the wide power conferred under s. 24(1) upon the Administrator in Council to make regulations not inconsistent with the Ordinance, prescribing all matters which by the Ordinance are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Ordinance. 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 members and two other persons appointed by the Administrator, who are to hold office for a term of one year (reg. 8, as amended). A “Board” is defined to mean a Building Board constituted in accordance with the Regulations (s. 3(1)). Regulation 12, under which the information was laid, provides that no person shall build any building within a town unless he is the holder of a permit to do so given by the Board constituted for that town. There is provision for applications for permits, the procedure and information to be supplied (reg. 14); power for the Board to require information to be supplied (reg. 15); the grounds upon which a Board shall refuse a permit (reg. 16); the issue of a permit (reg. 17); notice of completion of buildings to be given to the Board (reg. 18), powers of entry and inspection to be exercised by Building Inspectors to be appointed by the Administrator (regs. 4 and 21); appeals to the Administrator (reg. 27); power for the Board to serve notice requiring alterations to be made in the case of irregularity (reg. 22), and liability for persons aiding and abetting (reg. 28). Thus, upon these matters, the Regulations provide a complete scheme.

The Building Ordinance 1953 is in itself an enactment of twenty-four sections and it will be seen that it covers the same matters as the Regulations. The provisions of the Ordinance apply in townships (s. 5), which is defined to mean the town of Port Moresby or a town declared by the Administrator by notice in the Gazette under s. 7 of the Ordinance to be a township for the purposes of the Ordinance (ss. 4 and 7). The Ordinance then provides, for the purposes of the Ordinance, that there shall be a Building Board for each township (s. 8). The Board is to consist of such members not being less than three as the Administrator, by notice in the Gazette, appoints (s. 9(1), as amended), and such members, other than members appointed by office, are to hold office for a period of three years or such lesser period as specified (s. 9(2), as amended). Section 9 provides for a quorum and meetings of the Board. Instead of provision for permits, as in the Regulations, the Ordinance provides for the prohibition of erection or alteration of buildings unless the Board has approved of the position and the plans and specifications (s. 11); applications for approvals (s. 12); failure to comply with conditions (if any) of the approval, or erection etc., a building etc. otherwise than in the position and in accordance with the plans and specifications so approved is made an offence (s. 14); power to require the owners of buildings erected in contravention of the Ordinance to demolish or alter the building (s. 15); and an appeal is provided to the Administrator by persons dissatisfied by the refusal of an application or a requirement under the Ordinance (s. 21). Unless a contrary intention appears, “Board” means a Building Board established under the Ordinance and, in relation to a building or proposed building, means the Building Board established under the Ordinance for the township in which the building etc. (s. 4) is or is to be situated. Although the “Ordinance” is defined to include the Regulations (s. 4), in my opinion, subject always to a contrary intention being shown, this must mean a Building Board established under the Ordinance proper and not under the Regulations.

The difficulty which is at once apparent is that under both Regulations and Ordinance, Building Boards are set up differently constituted and with differently defined functions. This difficulty does not arise in the case of the Building Regulations of Papua, which were also continued in force, for the Board referred to therein was defined to mean the Building Board constituted under the Ordinance (reg. 3(1)). In my opinion, the solution is to be found in the words used in s. 3(2) of the Ordinance that such Regulations “shall be in force in the Territory of New Guinea as though made under this Ordinance”, read with the limitation of power conferred upon the Administrator in Council to make Regulations “not inconsistent with this Ordinance” under s. 24(1). Mr. Davenport relied on Craven v. City of Richmond[lx]² and Bird v. John Sharp & Sons Pty. Ltd.[lxi]³ . In the former case, the Court had to consider the effect of a provision that by-laws in force under a repealed Act should be “deemed to be made” under the repealing Act, and it was held that the effect of the provision was to make the validity of such by-laws dependent upon the by-law-making provisions of the latter Act. In Bird v. John Sharp & Sons Pty. Ltd. (2), the High Court had to consider a provision that:

“. . . orders made under the repealed Regulations which were in force at the commencement of these Regulations, shall, except so far as they are inconsistent with these Regulations, be deemed to have been made . . . under these Regulations”[lxii]⁴ .

Latham C.J. held that the effect of the provision was that orders were in future to depend for their authority upon the order-making power contained in the new provision, and not upon any other power. Those members of the Court (Latham C.J., Starke and Williams JJ.) who referred to Craven v. The City of Richmond[lxiii]⁵, accepted the reasoning of that decision as correct. In both cases, it was pointed out that the result would have been different if the later statutory provision had provided that the by-laws should “remain in force”[lxiv]⁶. The Australian cases may perhaps be distinguished in two respects. First, in s. 3(2) of the Territory Ordinance, that latter expression—“shall remain in force”—is indeed used, but, in my opinion, the addition of the qualifying words “as though made under the Ordinance” nullifies the absolute force of those words. Secondly, in the Australian cases, the earlier foundation for the by-laws and orders in question had disappeared by reason of the repeal of the provisions under which they were made, whilst, in the present case, the Public Health Ordinance, under which the Building Regulations were made, remained in force. But, in my judgment, the reasoning of Latham C.J.[lxv]⁷ is applicable and the relevant provision in s. 3(2) of the Building Ordinance has the same effect as the words used in the Australian cases. The foundation for the Regulations is changed from the Public Health Ordinance to the Building Ordinance. To adapt the words of Latham C.J.[lxvi]⁸, the provision contained in s. 3(2) makes sense only if it is interpreted to mean that the Regulations shall be in force under that section of the Ordinance which authorizes the making of Regulations—i.e., under s. 24(1). Thus, as the Building Regulations of New Guinea now depend for their authority upon s. 24(1), only such of those Regulations as fall within the regulation-making power of s. 24(1) and are not inconsistent with the Ordinance remain in force, and provisions in the Regulations which are inconsistent with the Ordinance are void.

I come now to Mr. Davenport’s submission that there was a validly-appointed Building Board for Lae for the purposes of reg. 12. Mr. Davenport referred me to a notice in the Government Gazette of 6th January, 1955, declaring Lae and other major towns of the Territory to be townships for the purposes of the Ordinance, and he accordingly submitted that the appointment of the members of the Lae Building Board made on 14th July, 1966 and gazetted on 21st July, 1966, was validly made under ss. 8 and 9 of the Ordinance. But for this submission to be effective, it must be shown that the reference to a Board in reg. 12 means a Board constituted under ss. 8 and 9 of the Ordinance. The learned stipendiary magistrate considered Part II of the Regulations ultra vires s. 24(1) as there was provision for a Building Board under the Ordinance. But this view does not take into account that the operation of the Ordinance is dependent upon the declaration of a township, so that the Regulations are capable of operation pending such a declaration. However, I consider that the effect of Mr. Davenport’s basic submission, which I have upheld, is that, certainly as from the declaration of a town as a township under s. 7, Part II of the Regulations setting up a Board for that town is inconsistent with ss. 8 and 9, for the Legislature must have intended to constitute only one Board responsible for the administration of the Ordinance and Regulations, and therefore void. Having thus got rid of Part II of the Regulations, Mr. Davenport then argued that “Board” in reg. 12 means a Board constituted under ss. 8 and 9, but having regard to the express reference in reg. 12 to “the Board constituted for that town” and also the express provision in the Regulations that “Board” means a Building Board constituted in accordance with the Regulations, in my opinion, a contrary intention is shown excluding the statutory definition of “Board” constituted under ss. 8 and 9 as applicable to reg. 12. The result of this reasoning which is that reg. 12 becomes incapable of operation cannot alter the conclusion that “Board” in reg. 12 means a Board constituted under the Regulations.

Thus, when the information was heard by the learned stipendiary magistrate, it would not have been possible for the informant to establish one of the elements of the offence, that is, that no permit had been given by a validly constituted Board, within the meaning of that Regulation. But it is unnecessary to take the matter further because Mr. Davenport, with commendable frankness, conceded and, in my opinion, properly conceded that, as a further consequence of his main submission that Regulations inconsistent with the Ordinance were not continued in force, reg. 12 itself became void because it was inconsistent with the different and wider provisions of s. 11, which make it an offence to build etc. without the Board’s approval, punishable by fine only, and not as in reg. 12 by fine or imprisonment. In towns declared to be townships under s. 7, the procedure of approvals superseded the permit procedure, offences being punishable under s. 11 and 14.

Accordingly, I have reached the conclusion that the information was properly struck out. Mr. Davenport was concerned that I should decide the other ground of appeal, that is, whether a private person could prosecute and whether the learned stipendiary magistrate properly applied the statement of the law laid down by Fullagar J. in Brebner v. Bruce[lxvii]⁹ . However, as that question becomes purely hypothetical, it would not be proper to consider it.

I would, however, draw the attention of the proper authority to the unsatisfactory state of the legislation. A simple amendment to the New Guinea Regulations, removing Part II and substituting the provision contained in the Building Regulations of Papua that, in the Regulations, “Board” means the Building Board constituted under the Ordinance, would give valid operation to one sort of provision, an example of which is reg. 33; but to fill the gaps caused by plainly inconsistent and therefore void regulations, particularly those contained in Part III of the Regulations, and also to enact provisions necessary to be prescribed for ss. 11 to 21 of the Ordinance to become fully operative, would seem to require a major legislative amendment. The Building Regulations of Papua may also require amendment in the light of the above considerations.

The appeal will accordingly be dismissed and the order of the District Court affirmed.

Order accordingly.

Solicitor for the appellant: P. J. Clay, Acting Crown Solicitor.

[lix]The Building Regulations were first made in 1932 under the Public Health Ordinance 1932. The Building Ordinance 1953, s. 3(2) provided that those Regulations “shall be in force . . . as though made under this Ordinance”.

[lx][1929] ArgusLawRp 84; [1930] V.L.R. 153.

[lxi][1942] HCA 27; (1942) 66 C.L.R. 233, per Latham C.J., pp. 238-240.

[lxii](1942) 66 C.L.R., at p. 238.

[lxiii][1930] V.L.R. 153.

[lxiv][1942] HCA 27; (1942) 66 C.L.R. 233, per Latham C.J., pp. 238-240.

[lxv](1942) 66 C.L.R., at pp. 238-240.

[lxvi](1942) 66 C.L.R., at p. 239.

[lxvii][1950] HCA 36; (1950) 82 C.L.R. 161, at pp. 172-174.