Merri Creek Quarry Pty Ltd v Foletta [1951] HCA 12

High Court of Australia Latham C.J. Dixon, McTiernan, Williams and Webb JJ. Merri Creek Quarry Pty Ltd v Foletta [1951] HCA 12

ORDER Appeal allowed with costs. Order of Supreme Court set aside. In lieu thereof order that order nisi be discharged with costs. Order of magistrate restored.

Cur. adv. vult.

The following written judgments were delivered:—

April 16 Latham C.J.

Appeal by special leave from an order of the Supreme Court of Victoria (Barry J.) directing a court of petty sessions to convict the appellant company of an offence against a by-law of the City of Brunswick. The by-law, so far as relevant, is in the following terms:—"Except with the written consent of the Council no person shall within the City of Brunswick carry on any quarrying or blasting operations provided that the provisions of this paragraph shall not apply to quarrying or blasting operations in connection with—(a) works commenced before the 4th day of January 1911 and (b) foundations for buildings." This by-law was made under the powers conferred upon the council by s. 197 (1) (xviii) of the Local Government Act 1928, which provided that by-laws might be made for the following purposes:—"(xviii) Prohibiting regulating or controlling quarrying or blasting operations, provided that any by-law prohibiting such operations shall not be made without the approval of the Governor in Council, and shall not apply to any such operations in connection with works commenced before the fourth day of January One thousand nine hundred and eleven."

It was proved before the court of petty sessions that the company carried on quarrying operations on certain land at Brunswick without the written consent of the council. The company contended that the quarrying operations were operations in connection with works commenced before 4th January 1911.