Footscray v Maize Products Pty Ltd [1943] HCA 15

itn

67 C.L.R.] OF AUSTRALIA.

THE MAYOR, COUNCILLORS AND CITIZENS

(HIGH COURT OF AUSTRALIA.]

OF THE CITY OF FOOTSCRAY a ee

RESPONDENT,

AND

MAIZE PRODUCTS PROPRIETARY LIMITED Resronpent.

APPLICANT,

ON APPEAL FROM THE SUPREME COURT OF VICTORIA.

By-lav—Validity—* Suppressing nuisances" —Prohibition of use of pulverized fuel H.C, or A,

in furnaces unless 80 constructed as to make escape of dust, grit or ash impossible —Local Government Act 1928 (Vict.) (No. 3720), s. 197 (1) (x).

A municipal by-law provided :—"No person shall, in" a defined area within the municipality, "use or permit to be used any pulverized fuel in any furnace unless such furnace is so designed and constructed or is fitted with such appliances or devices or has attached to it a chimney.or flue of such design and construction as to make it impossible for any dust, grit~or ash arising from the process of combustion in such furnace to escape or be discharged into the air either from such furnace or any appliance or device fitted thereto or from any chimney or flue attached thereto." From evidence adduced on the hearing of an application to have the by-law quashed it appeared that there was no known appliance which would entirely prevent the escape of dust, grit or ash from furnaces using pulverized fuel, though there were appliances which would so reduce the escape as to render it innocuous.

Held, by Rich and Starke JJ. (Latham C.J. dissenting), that the by-law was a valid exercise of the power conferred by s. 197 (1) (x) of the Local Government Act 1928 (Vict.) to make by-laws for " suppressing nuisances."

Decision of the Supreme Court of Victoria (Macfarlan J.): Maize Products Ply, Ltd. v. Oity of Footscray, (1942) V.L.R. 218, reversed.

APPEAL.

The municipality of the City of Footscray made a by-law, expressed

to be made under s. 197 of the Local Government Act 1928 (Vict.)