Charlie [2025] FCAFC 55, KP [2025] NSWCA 69
These cases illustrate the caution necessary when applying the Anthony Hordern principle – that an express power subject to conditions excludes reliance on a general power over the same subject matter7. Charlie (at [52-55]) says that the ambit of the express power must be wholly within or subsumed by the general power8. The statute must be seen to confer only one power to take the action in question.
KP (at [63-67]) says the principle must be weighed with other interpretation principles9. In particular, it must be consistent with application of the normal ‘text > context > purpose’ protocol. iTip – Anthony Hordern is more nuanced than it may first appear.
This principle is from Episode 121 of interpretation NOW!
Footnotes:
7 Pearce 10th ed [4.66-4.72], BDM (275-277), Herzfeld & Prince [6.150-6.160].
8 Nystrom [2006] HCA 50 [59] quoted, cf Leon Fink (1979) 141 CLR 672 (678).
9Stradford [2025] HCA 3 [64] quoted, cf Plaintiff M70 [2011] HCA 32 [50].