3.06.2010
Friday, May 7, 2010
Chapter-28 Expressio unius est exclusio alterius -
Construction on the principles contained in expressio unius est exclusio alterius Maxim
In Rylands Brothers (Aust) Ltd v Morgan[1] where his Honour noted that the expressio unius maxim “must always be applied with caution and only in appropriate cases”[2] and adopted the reasoning in Colquhoun v Brooks[3]where it was stated that:“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.” In Houssein v Under Secretary, Department of Industrial Relations and Technology (NSW) [4]where the Court observed that the expressio unius maxim.
“...must always be applied with care, for it is not of universal application and applies only where the intention it expresses is discoverable upon the face of the instrument ... It is ‘a valuable servant, but a dangerous master’...” [5]
After reviewing relevant authorities, the authors of Pearce and Geddes, Statutory Interpretation in Australia, 6th ed, said at 4.28
... [T]he application of the expressio unius approach will be largely one of impression. Factors affecting the question will include the precision in the drafting of the legislation and the similarity of the subject matter in the provisions being considered.[6]. Probably, also, it will be relevant to consider whether the Act in which the provisions occur has been amended extensively as this increases the risk of provisions being inconsistent unintentionally. Because of these problems with respect to its use, the expressio unius est exclusio alterius rule is applied by the courts with extreme caution. When it is followed, it is used more often as a bolster to a predetermined interpretation than as a rule that produces a result in itself... [7]
In a case before High Court of Solomon Islands the matter to be considered was if the ‘wild birds’ should be included in the definition of the ‘goods’ Customs Management Regulations 1907 (Cap. 63) The counsel argued, because wild birds are not "goods" as defined in the Act. So that by making the Order prohibiting the export of an item which was not "goods" within the meaning of the Act. Counsel sought to support his argument by comparing the definition of "goods" contained in the preceding legislation which was the Customs Management Regulations 1907 (Cap. 63). Under the 1907 legislation, the word "goods" was defined as -
"'goods' includes any animal, money, bills, notes, bonds or any movable property of any kind whatever."
Pursuant to the powers conferred by section 82 of the 1907 statute, the High Commissioner made an order prohibiting the export of certain enumerated goods such as:
"20. Birds, other than domestic fowls, alive or dead, or their skins or plumage"
The present Customs and Excise Act (Cap. 58) came into force on 1 April 1960 replacing the Customs Management Regulation, 1907 (Cap. 63). By section 2 of the present Act, "goods" is defined as:
"goods' includes all kinds of goods, wares, merchandise and livestock."
Applying the expressio unius exclusio alterius rule says counsel, "wild birds" are excluded from the class of "goods" as defined. Thus counsel says the Minister acted beyond his powers when he made the order prohibiting the export of wild birds.It is interesting to note that the 1907 Customs Management Regulation No. 2 of 1907 (Cap. 63) was enacted -
"to provide for the collection and management of the Revenue of customs."
where the Customs and Excise Act, No. 2 of 1960 (Cap. 58) was enacted to -
"provide for the imposition, collection and management of customs and excise duties, the licensing and control of warehouses and of premises for the manufacture of certain goods, the regulation and control and prohibition of imports and exports and for matters incidental thereto and connected therewith."
It must be obvious that the two statutes were enacted embracing the different policy decisions of the respective government of the day. The fact that in the 1907 statute the word "goods" was defined to include -
"any animal, money, bills, notes, bonds or movable property of any kind whatever."
and in the present status the word "goods" is defined to include -
"all kinds of goods, wares, merchandise and livestock."
clearly expressed the intention of the legislature as to the meaning to be given to the word "goods" in the two statutes. The draftsmen in the two statutes chose to use certain words to define "goods", in the respective statutes. The draftsman in the 1907 Regulation chose to specify those matters to be covered under the definition of "goods". The draftsman of the 1960 Act chose to use words of general character when defining the word "goods". Such a practice is not unusual.But the fact that one Act specifies a particular matter and the other is silent on the point does not necessarily mean that the expressio unius rule should be applied.
The maxim "expressio unius exclusio alterius" is no more than an aid to construction and must be watched since its application to the two contrasting statutes here concerned may well lead to a misconception of the rule. The rule is, however, a valuable tool but one which must be watched. As Wills, J., stated in Colquhoun -v- Brooks[supra]:
"I may observe that the method of construction summarised in the maxim 'expressio unius exlusio alterius' is one that certainly to be watched. ……………………………………………………………"
On appeal to the Court of Appeal Lopes, LJ, said:
"The maxim 'expressio unius exlusio alterius' has been pressed upon us. ………to be applied, leads to inconsistency or injustice."
As I have earlier stated that changing circumstances and policy decisions resulted in the change of the states and in particular the provision encompassing the definition of "goods". In Dean -v- Wiesengrund [8] after considering the warning expressed by Wills, J and Lopes, LJ in Colquhoun -v- Brooks went on to say:
"Doubtless there are instances where matters expressly mentioned may be regarded as comprehensive, complete and all-inclusive; but I fail to see that the maxim can be applied to the provisions in the 1917 and 1920 enactments. Decisions of policy might account for the provisions enacted. Furthermore, if the maxim is being considered, I should have thought that it ought to be considered separately in regard to the tenant's position."
In my judgement, the term "goods" must be confined to "goods" as defined in the present Act and must be construed using the words used by the legislature. I do not see any justification for the application of the "expression unius" principle in construing the definition of "goods" in the present Act. To employ the maxim to the definition of goods in the present Act in my view, would lead to uncertain and capricious operation of the law.
The definition of "goods" in the present Act covers "all kinds of goods, wares, merchandise and livestock." and in my judgement that covers all those items specified by the Minister in paragraph (c) of the Order dated 15 June 1992 of the prohibited exports. The Minister has the power to do so and he had not acted ultra vires his powers[9].
[1] Rylands Brothers (Aust) Ltd v Morgan (1927) 27 SR (NSW) 161
[2] Rylands Brothers (Aust) Ltd v Morgan (1927) 27 SR (NSW) 161at 168
[3]Colquhoun v Brooks 19 QBD 400 at 406 per WILLS J
[4]Houssein v Under Secretary, Department of Industrial Relations and Technology (NSW [1982] HCA 2; (1982) 148 CLR 88
[5]Houssein v Under Secretary, Department of Industrial Relations and Technology (NSW [1982] HCA 2; (1982) 148 CLR 88 at 94 as quoted in [2007] AIRC 879 wherein it was stated that:” More importantly, I am not persuaded that the expressio unius approach is properly applicable to the construction of s.458. I am simply not persuaded that the words of s.458, when construed in context, evince an intention by the legislature that parties should be confined to submissions only and should not be permitted to call evidence. The Act is not the finest example of the draftsperson’s art. In my view, this is a case where, to adopt the words of Wills J, it never struck the draftsperson that the thing supposed to be excluded needed specific mention of any kind. It seems to me that the purpose of s.458 is to ensure that, notwithstanding the short timeframe within which the Commission must endeavour to determine applications for ballot orders “Also see Colquhoun v. Brooks (1888) 21 QBD 52, at p 65 . (at p94)
[6]DFCT v Lincoln Industrial Cleaners Pty Ltd (1975) 7 ALR 118; Lyford v Commonwealth Bank of Australia [1995] FCA 1261; (1995) 130 ALR 267 at 270
[7] Quoted from :CFMEU v Hadgkiss [2007] FCAFC 197 (20 December 2007FEDERAL COURT OF AUSTRALIA per NORTH J
[8] Dean -v- Wiesengrund [1955] 2 All E.R. 432, at 443,per MORRIS LJ;see also Re: HARASH LATA RANIGA IRT Reference No. N92/00092 #NUMBER 1236 Number of pages - 10 Preferential Family Visa [1992] IRTA 2582 (1 September 1992); Applicant: Pravin Kumar Raniga Principal: Harash Lata Raniga IRT Reference: N92/00092 #number 1236 [1992] IRTA 1236 (1 September 1992; Stassen Exports Limited v. Brooke Bond (Ceylon) Limited and Another - SLR - 63, Vol 2 of 1990 [1990] LKSC 10; (1990) 2 Sri LR 63 (9 October 1990) ; Epi v Farapo and Electoral Commission [1983] PGSC 1; SC247 (28 March 1983); The Queen v. Cie Imm. BCN Ltée, [1979] 1 S.C.R. 865 ; The Queen v. Cie Imm. BCN Ltée, [1979] 1 S.C.R. 865 ; La Reine c. Cie Imm. BNC Ltée, [1979] 1 R.C.S. 865; Morris v Federated Liquor and Allied Industries Employees' Union of Australia [1978] FCA 35; (1978) 35 FLR 60 (13 September 1978)wherein the standard quote of LORD HERSCHELL was stated as :” Colquhoun v. Brooks: "It is beyond dispute, too, that we are entitled and indeed bound when construing the terms of any provision found in a statute to consider any other parts of the Act which throw light on the intention of the legislature and which may serve to shew that the particular provision ought not to be construed as it would be if considered alone and apart from the rest of the Act" (1889) 14 App Cas 493, at p 506 . (at p68)”; Attorney General (Que.) v. Stonehouse, [1978] 2 S.C.R. 1015; Murray Bay Motor Co. Ltd.. c. Belair Insurance Company, [1975] 1 R.C.S. 68; Jarvis v. Associated Medical Services Inc., [1964] S.C.R. 497; TATA IRON AND STEEL CO. LTD. V. THE STATE OF BIHAR [1962] INSC 260 (24 September 1962); Benning v Sydney City Council [1958] HCA 48; (1958) 100 CLR 177 (29 October 1958); Federal Commissioner of Taxation v French [1957] HCA 73; (1957) 98 CLR 398 (18 November 1957); THE BENGAL IMMUNITY COMPANY LIMITED V. THE STATE OF BIHAR & ORS [1954] INSC 120 (4 December 1954) ; ALLIANCE DES PROFESSEURS CATHOLIQUES DE MONTRÉAL v. LABOUR RELATIONS BOARD, [1953] 2 S.C.R. 140; George v Federal Commissioner of Taxation [1952] HCA 21; (1952) 86 CLR 183 (3 November 1952); Commissioner of Inland Revenue v Morris, Hedstrom Ltd [1937] FJSC 1; [1937] 3 FLR 224 (3 December 1937; Robertson v Federal Commissioner of Taxation [1937] HCA 32; (1937) 57 CLR 147 (26 July 1937) ; Maye v Colonial Mutual Life Assurance Society Ltd [1924] HCA 26; (1924) 35 CLR 14 (27 June 1924); Mount Morgan Gold Mining Co Ltd v Commissioner of Income Tax (Qld) [1923] HCA 37; (1923) 33 CLR 76 (16 August 1923); Williams v Singer [1920] UKHL 2 (17 May 1920) URL: http://www.bailii.org/uk/cases/UKHL/1920/2.html ,Cite as: [1921] 1 AC 65, [1920] UKHL 2
[9]Regina v Perfili [1992] SBHC 12; HC-CRC 032 of 1992 (3 November 1992) per MURIA ACJ
Chapter-27 Ejudem Generis-Maxim for Interpretive exercise
Construction on Maxim of Ejudem Generis
It is presumed that a statute will be interpreted so as to be internally consistent. A particular section of the statute shall not be divorced from the rest of the act. The ejusdem generis (Latin for "of the same kind") rule applies to resolve the problem of giving meaning to groups of words where one of the words is ambiguous or inherently unclear. The rule results that where "general words follow enumerations of particular classes or persons or things, the general words shall be construed as applicable only to persons or things of the same general nature or kind as those enumerated.[1]" Thus, in a statute forbidding the concealment on one's person of "pistols, revolvers, derringers, or other dangerous weapons," the term "dangerous weapons" may be construed to comprehend only dangerous weapons of the kind enumerated, i.e., firearms, or perhaps more narrowly still, handguns. Here, the term "dangerous weapons" must be given a meaning of the "same kind" as the word of established meaning.
A statute shall not be interpreted so as to be inconsistent with other statutes. Where there is an inconsistency, the judiciary will attempt to provide a harmonious interpretation[2].
Stating about the principle of noscitur a sociis it has been stated that: “This general principle of the law of interpretation has a number of specific sub-principles, including the ejusdem generis rule. The relevant sub-principle for present purposes is the maxim propounded by LORD BACON: copulatio verborum indicat acceptationem in eodem sensu – the linking of words indicates that they should be understood in the same sense. As LORD KENYON CJ once put it, where a word “stands with” other words it “must mean something analogous to them”[3].
Ejusdem Generis is a Latin term which means "of the same kind," it is used to interpret loosely written statutes.According to the Black's Law Dictionary (8th edition, 2004) the principle of Ejusdem Generis is where general words follow an enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned. it is a canon of statutory construction, where general words follow the enumeration of particular classes of things, the general words will be construed as applying only to things of the same general class as those enumerated. The tendency of the more modern authorities is to attenuate the application of the ejusdem generis rule.[4] In the case referred to by ASQUITH J in Allen v. Emmerson, (Anderson v. Anderson) RIGBY LJ said (at p. 755) :-
“In modern times I think greater care has been taken in the application of the doctrine [of ejusdem generis ] but the doctrine itself as laid down by great judges from time to time has never been varied; it has been one doctrine throughout. The main principle upon which you must proceed is, to give all the words their common meaning; you are not just fled in taking away from them their common meaning, unless you can find something reasonably plain upon the face of the document itself to show that they are not used with that meaning, and the mere fact that general words follow specific words is certainly not enough.[5]”
The expression Ejusdem Generis means of the same kind. Normally, general words should be given their natural meaning like all other words unless the context requires otherwise But when a general word follows specific words of a distinct category, the general word may be given a restricted meaning of the same category. The general expression takes it's meaning from the preceding particular expressions because the legislature by using the particular words of a distinct genus has shown its intention to that effect. This principle is limited in its application to general word following less general word only. If the specific words do not belong to a distinct. Genus, this rule is inapplicable. Consequently, if a general word follows only one particular word, that single particular word does not constitute a distinct genus and, therefore, Ejusdem Generis rule cannot be applied in such a case. Exceptional stray instances are, however, available where one word genus has been created by the courts and the general word following such a genus given a restricted meaning. If the particular words exhaust the whole genus, the general word following these particular words is construed as embracing a larger genus. The principle of Ejusdem Generis is not a universal application. If the context of legislation rules out the applicability of this rule, it has no part to play in the interpretation of general words. The basis of the principle of Ejusdem Generis is that if the legislature intended general words to be used in unrestricted sense, it would not have bothered to use particular words at all.
Holding that the High Court had erred in law in applying the ejusdem generis rule to the construction of the words "…theatre or other place of public entertainment". the court held that the application of the rule had led the High Court to "…adopt what is clearly an unnecessarily restrictive view of the expression 'other place of public entertainment'. Specifically, it is quite clear that a place to which the public are admitted on payment of an appropriate charge - it may be even without charge - and where activities are carried on which could be broadly described as 'entertaining' is entitled to be described as a 'place of public entertainment'. To confine it to premises which resemble theatres in having designated seating areas for the accommodation of audiences who view particular spectacles over a limited period of time, usually a few hours, would only be appropriate if one were applying the ejusdem generis rule. Thus, exhibitions featuring particular trades or activities, whether it be motor cars, tourism or whatever, to which the public are admitted can appropriately be described as "entertainments": common sense suggests that they are attended by many members of the public who have no intention of buying any of the products or services on offer, but who find it a pleasantly diverting way of spending a few hours.That conclusion is unaffected by the fact that the premises may also be capable of being used for purposes which could not be described as 'entertainment'[6]."
‘But where there are general words following particular or specific words the general words should be confined to things of the same kind as those specified. This "rule of construction is subordinate to the real intention of the parties, and does not control it; that is to say, that the canon of construction is but the instrument for getting at the meaning of the parties, and that the parties, if they use language intimating such intention, may exclude the operation of this or, I suppose, any other canon of construction"[7]And HAMILTON J. in that case also said that he saw "no reason why either the nature of the instrument or the language used might not cause the general words to be referred to the specific words either collectively or in groups or individually according to the intention of the parties[8]"
The precept allowing of the restraint of a general expression to a class of things ejusdem generis with particular expressions preceding it may be regarded as a subordinate rule forming part of the larger principle stated by Sir Benson Maxwell. In Larsen v. Sylvester & Co[9], Lord Robertson spoke of the soundness of what is called the ejusdem-generis rule of construction because, as he said, it seemed to him that both in law and also as a matter of literary criticism it is perfectly sound. But, according to Asquith L.J., "the tendency of the more modern authorities is to attenuate the application of the ejusdem generis rule[10]". If this be so, it is but the result of the greater freedom with which courts now use all rules and admonitions as to the interpretation of written instruments. In the modern search for a real intention covering each particular situation litigated, however much help and guidance may be obtained from the principles and rules of construction, their controlling force in determining the conclusion is likely to be confined to cases where the real meaning is undiscoverable or where the court of construction, sceptical of the foresight of the draftsman or of his appreciation of the situation presented, is better content to supply the meaning by a legal presumption than subjectively. It may be for some such reason that in Thorman v. Dowgate Steamship Co. Ltd[11], Lord Sumner left unanswered the question "whether the presumption of law is that general words are general until they can be shown to be particular, or whether general words are ejusdem generis with the particular words until they can be shown to be general without any limitation"[12]
Giving guidance on the matter as to how the principle /Maxim should be applied it was stated by DIXON J that:”Even if the canon for an ejusdem-generis construction were applied in the most mechanical and rigid way it would not justify such a restriction. For the purposes of that canon you must first find in your particular instances which precede the general words some common attributes or characteristics which enable you to formulate a category or description. I shall not go through the nine paragraphs of s. 3 in detail. It is enough to point out that in the first paragraph you have dealings between buyer and seller of goods in contravention of price control; in the second the like dealings between the supplier and recipient of services; in the third unauthorized dealings in rationed goods or services; in the fourth the disposal or acquisition of the property in or possession or custody of goods where that is prohibited, restricted or made subject to conditions; in the fifth delivery of goods upon premises where it is prohibited; in the sixth production, manufacture or treatment of goods contrary to regulations restricting it or imposing conditions and in the seventh the disposal of property in or possession of goods belonging to the Commonwealth.[13]”
In an application pursuant to Section 273GA(2) of the Customs Act 1901 ("the Act") for review of a decision of the Collector of Customs to demand from the applicant duty at a rate of 15% in respect of certain consignments of soy milk manufactured in Japan and imported into Australia from that country by the applicant on 17 April, 19 May, 21 June, 17 July and 2 August, 1985, Administrative Appeals Tribunal of Australia stated that:” ‘Bearing in mind what we have said above as to the meaning of "beverage", we consider that it is, in this case, desirable to look to the context in which that word appears in order to determine the meaning which it is intended to bear, as the Federal Court did with the word "permanent" in FCT v Applegate [14], on the basis that it was a word capable of many shades of meaning. Interpretation by reference to the context is here assisted by the fact that the context is such as to enable the application of the eiusdem generis rule, by which, as SANKAY J said in Attorney-General v Brown[15] at 797:".. general words coming after particular words are restricted to and controlled by the meaning of the particular words.[16]"
[1] 49 F. Supp. 846, 859
[2] Source:wikipedia
[3] (Evans v Stevens (1791) 4 TR 224; 100 ER 986 at 987 See also W J Byrne (ed) Broomes Legal Maxims (9th ed) Sweet & Maxwell London (1924) pp373-374.) This principle was recently applied by this Court in Lend Lease Real Estate Investments Limited v G P T Re Limited [2006] NSWCA 207 at 30-31 and see National Roads & Motorists’ Association v Whitlam [2007] NSWCA 81 at [63]
[4] cf Anderson v. Anderson [1895] 1 QB 749
[5]Royal Dublin Society v. Revenue Commissioners [1999] IESC 45; [2000] 1 IR 270 (19th May, 1999)
URL: http://www.bailii.org/ie/cases/IESC/1999/45.html
Cite as: [1999] IESC 45, [2000] 1 IR 270 [Supreme Court of Ireleand Decision]
[6] Supreme Court (Keane. J) in Royal Dublin Society v. Revenue Commissioners (Supra) In that case the court adopted, with approval, the principles laid down in Allen v. Emmerson [1944] K.B. 362 in relation to the construction of virtually identical statutory provisions. See all the cases: Royal Dublin Society v. Revenue Commissioners (Supra), Point Exhibition Company Limited v. Revenue Commissioners [1993] 2 I.R. 551, Allen v. Emerson and Ors. [1944] K.B. 362
[7] Thorman v. Dowgate Steamship Co. Ltd (1910) 1 K.B. 410, at p. 419.
[8]Thorman v. Dowgate Steamship Co. Ltd (1910) 1 K.B., at p. 422.
[9] Larsen v. Sylvester & Co (1908) A.C. 295, at p. 297
[10]Allen v. Emmerson (1944) 1 K.B. 362, at p. 367
[11] Thorman v. Dowgate Steamship Co. Ltd (1910) 1 K.B. 410
[12] (1910) 1 K.B., at p. 420
[13] Cody v. J.H. [supra] per DIXON J
[14] FCT v Applegate (1979) 27 ALR 114
[15] Attorney-General v Brown [1920] 1 KB 773 at 797
[16] Ceres Natural Foods Pty Ltd and Collector of Customs [1986] AATA 505 (24 June 1986) Administrative Appeals Tribunal of Australia