Case: Anthony Hordern and Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9 ; (1932) 47 CLR 1
Outcome: referred to
The Commission relies on the principle of construction expounded by Gavan Duffy CJ and Dixon J in Anthony Hordern and Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9 ; (1932) 47 CLR 1 at 7: "When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied for the same power." The principle of construction was framed slightly differently by Dixon J in R v Wallis; Ex Parte Employers Association of Wool Selling Brokers [1949] HCA 30 ; (1949) 78 CLR 529 at 550 where his Honour said: "an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course." 31 In the absence of any clear identification of the legislative purpose intended to be served by the words appearing in parenthesis in s 360(1)(iii), the case would seem to be one in which it is necessary to focus on, and give effect to, the literal words chosen by the legislature. The observations of Kirby P in Avel Pty Ltd v Attorney-General (NSW) (1987) 11 NSWLR 126 at 127 are apposite: "This conclusion suggests that the only safe approach to the construction of the web of applicable legislation is an attention to the literal words of the legislation. A "purposive" approach founders in the shallows of a multitude of obscure, uncertain and even apparently conflicting purposes." The adoption of what Kirby P regarded as the "safe approach" is warranted where a Court, called on to construe legislation, is unable to discern with any clarity the legislature's purpose in enacting a provision. A Court should not speculate about the legislature's intention. As Griffith CJ said in Richardson v Austin [1911] HCA 28 ; (1911) 12 CLR 463 at 470: "... as to the argument from the assumed intention of the legislature, there is nothing more dangerous and fallacious in interpreting a Statute than first of all to assume that the legislature had a particular intention, and then, having made up one's mind what that intention was, to conclude that that intention must necessarily be expressed in a Statute, and then proceed to find it." Here, the language of the paragraph is clear. A party to a petition who wishes to obtain access to relevant documents in the possession of the electoral authorities may apply to the Court of Disputed Returns for leave to inspect and take extracts from those documents. The Court may, in its discretion, grant that leave in respect of all or any relevant documents other than ballot-papers. The maxim expressum facit cessare tacitum , to which Gavan Duffy CJ and Dixon J gave effect in the Anthony Hordern case, applies. The power to grant access to documents is provided, subject to the relevant limitation, by s 360(1)(iii). Reliance on other, more general provisions in the Act or subordinate legislation which might otherwise support a discovery order is excluded by the more specific grant of power and the restrictions imposed on its exercise.