Ryan v Central Norseman Gold Corporation [1964] HCA 52

High Court of Australia Barwick C.J. Kitto, Menzies, Windeyer, and Owen JJ. Ryan v Central Norseman Gold Corporation [1964] HCA 52

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Sept. 11 Barwick C.J.

I have had the advantage of reading the judgments to be delivered by Kitto J. and Owen J. I agree with their Honours' reasons for dismissing this appeal.

The qualification of reg. 106 (1) which is effected by the second limb of reg. 4 makes the applicability of that regulation to the mine in question depend on the opinion of the inspector as to the practicality of such application. This combined operation of regs. 4 and 106 (1) distinguishes this case so far as the onus of proof is concerned from such cases as Duff v. Lake George Mines Pty. Ltd. [1] , and Sherman v. Nymboida Collieries Pty. Ltd. [2] , which were decided in relation to a regulation in which practicality as to the operation as distinct from applicability was to be decided objectively.

1. [1960] S.R. (N.S.W.) 83; (1959) 76 W.N. 683. 2. [1962] S.R. (N.S.W.) 757; (1960) 79 W.N. 786.

The appeal should be dismissed.

Kitto J.

I agree in the judgment of Owen J. and I shall add only a few words.

The principal argument of the appellant appeared to assume that the sole source of power for the making of reg. 4 as a whole is to be found in sub-s. (4) of s. 61. It is true that that sub-section, while enabling any regulations to be declared general rules, confers no power to qualify in any way the operation of a regulation which is so declared. But by making a set of regulations which contains reg. 4 the Executive has achieved at one stroke two quite separate results. One is to exercise the power conferred by sub-s. (1) of s. 61 to make regulations having the force of law in respect of a long list of matters connected with the regulation of mines. The other is to exercise the very different power conferred by sub-s. (4), not to alter in any way the law relating to the regulation of mines, but to select out of the regulations made under sub-s. (1) those which, under the designation "general rules", are to be posted up at or near each mine. The former is a power of subordinate legislation; and by virtue of sub-s. (2) it is a power in the exercise of which regulations may be so made as to apply either generally to all mines in the State, or to mines in a particular district, or to particular mines.