Bradshaw v Gilbert's (Australasian) Agency (Vic) Pty Ltd [1952] HCA 58

H.C. or A. 1952. nH

GEORGE Vv. FrpEeraL Commis- SIONER OF TAXATION.

Dixon C.J. McTiernan J. Williams J. Webb J. Fullagar J.

HIGH COURT (1952.

purposes of the statute. To infer from the presence of s. 10 (2) in the statute that the wide words of s. 12 (1) are to be read as excluding a power or function if according to the express terms of a provision of the statute it requires, or depends upon an exercise of discretion or judgment would be to defeat the administration of the Act. There may be matters depending upon the opinion, belief or state of mind of the commissioner and second commis- sioner which because of their character do not fairly fall within the description " power or function " ins. 12 (1). But it seems obvious that these words were intended to bear their wide natural meaning unrestricted by any inference from s. 10 (2) of the kind suggested by the rule of interpretation, ewpressio unius est exclusio alterius. Of this rule Wills J. in a judgment upheld in the House of Lords (Colquhoun v. Brooks (1) ) said :—'' I may observe that the method of construction summarised in the maxim ' Expressio unius exclusio alterius ' is one that certainly requires to be watched. Perhaps few so-called rules of interpretation have been more frequently misapplied and stretched beyond their due limits. The failure to make the ' expressio" complete very often arises from accident, very often from the fact that it never struck the draftsman that the thing supposed to be excluded needed specific mention of any kind ; and the application of this and every other technical rule of con- struction varies so much under differing circumstances, and is open to so many qualifications and exceptions, that it is rarely that such rules help one to arrive at what is meant."

In the present case we are concerned with the function of assess- ing taxpayers. It has already been pointed out that s. 166 and s. 167 are not independent, but together give the directions which the assessing officer must pursue. The discretion or judgment involved in s. 167 forms a practically inseparable part of that function. It seems to be clearly within the contemplation of s. 12 (1) that such a discretion or judgment should be included in the delegation of the duty of assessing taxpayers. Any other view would make it impossible to carry on the work of the Depart- ment of Taxation. But in any case the question whether the right officer has applied his mind to the question whether the taxpayer's returns are satisfactory within s. 167 () is not a question left open by s. 177. As already has been said, ss. 166 and 167 are together concerned with the process of ascertaining the taxpayer's taxable income and the consequent tax. The clear policy of s. 177 is to distinguish between the procedure or mechanism by which the taxable income and tax is ascertained or assessed on