I post of behalf of Albert Monichino SC of the Victorian Bar:

'The only thing that can be said in favour of the 'new' Australian approach
is that to allow parties to have automatic resort to extrinsic materials in
interpreting a contract (ie. the UK contextual approach) often leads to the
unsatisfactory situation where the court is bombarded with material, often
irrelevant and mostly of only peripheral relevance. That is, the Australian
approach provides a useful filter - only if there is an ambiguity on the
face of the written contract are the parties able to have resort to
extrinsic materials for the purposes of interpreting the contract. The
reality is that it is not difficult to establish an ambiguity (as the Royal
Botanic case illustrates), so that the difference between the Australian and
the UK position may be more theoretical than real.

Personally I found the recent statement by the High Court to be
disappointing. We live in a globalised world where others have no
difficulty in having resort to prior negotiations or subsequent conduct in
interpreting contracts. Indeed, the CISG (adopted in over 70 countries)
permits such an approach (for the interpretation of international contracts
for the sale of goods) and is part of Australian domestic law. In that
context, the 'new' Australian approach appears quite antiquated and out of
step with the rest of the world.'

Best wishes,

Carmine

-----Original Message-----
From: Andrew Dickinson [mailto:andrew.dickinson@sydney.edu.au]
Sent: 04 November 2011 9:37 AM
To: GP McMeel
Cc: Jason Neyers; obligations@uwo.ca
Subject: RE: Contract Interpretation

I owe Gerard the courtesy of spelling his name correctly, and resubmit the
message below:

***

Gerard's last point is highlighted by Thorpe LJ's (rather too frank)
concurring judgment in Rainy Sky, making up the majority overturned by the
SC:

"I find myself in the invidious position of expressing a decisive opinion in
a field that is completely foreign. With considerable trepidation I support
the judgment of Patten LJ. I found that Mr Philipps' submissions had turned
me from my preliminary position that Simon J was right for the reasons he
gave. I would allow the appeal for the reasons stated by Patten LJ."

That's all folks.

Kind regards
Andrew

-----Original Message-----
From: GP McMeel [mailto:Gerard.McMeel@bristol.ac.uk]
Sent: 03 November 2011 11:46
To: David McLauchlan
Cc: Jason Neyers; obligations@uwo.ca
Subject: RE: Contract Interpretation

The news from England and Wales is better. The unanimous and relatively
predictable decision of the UK Supreme Court in Rainy Sky S.A v Kookmin
Bank [2011] UKSC 50 (introduced by Jason below) to reverse the decision of
the Court of Appeal re-affirms a commitment to a more more commercial and
common sense approach, rejecting the more literal (and distinctly
uncommercial) approach of the majority of the Court of Appeal.

Ghosts of the past may linger in that in the lower courts the (former)
Commercial Court judges (Simon J and Sir Simon Tuckey) favoured the more
commercial approach, whereas the principal judge of the majority in the CA
had sat in the Chancery Division (Patten LJ, with Thorpe LJ a former Family
Division judge agreeing) favoured a stricter reading.

Most usefully (at para [20]) Lord Clarke rejected Patten LJ's more
traditional approach at [2010] EWCA Civ 582, para [42].

Formally there is no difference between the legal and equitable approach in
E & W (BCCI v Ali [2002] 1 AC 251), but one does not have to be a fully paid
up legal realist to appreciate that the constitution of the court may affect
the parties' entitlements.

Gerard McMeel

On Thu, November 3, 2011 8:45 am, David McLauchlan wrote:
> Neil
>
>
>
> As a non-Australian, not surprisingly I am unaware of similar
instances.
> What is particularly alarming to me is that the High Court has refused
to
> take an ideal opportunity to clarify the most practically important
area
> of contract and commercial law. In a nutshell, the lower courts have
> simply been instructed yet again - the same message was delivered a
few
> months earlier in Byrnes v Kendle [2011] HCA 26 - to follow Codelfa
until
> they are told otherwise. And, contrary to what is said in the leave
> judgment, the appeal had considerable merit. Indeed, in my not
> particularly respectful view, a substantial miscarriage of justice has
> been done. I am not alone in this view. When I covered the NSWCA
decision
> in an LLM class in Sydney earlier this year, the students were shaking
> their heads in astonishment. Not that everything is rosy with the more
> enlightened UK ICS principles. There are signs in some recent English
> cases of a retreat from those principles to an approach not all that
> different from Codelfa! But that is another story. So too is the much
more
> liberal view of the NZ courts, particularly to receiving evidence of
prior
> negotiations and subsequent conduct. On the surface at least, the law
> relating to the mundane task of contract interpretation is
substantially
> different in each of NZ, Australia and the UK. It should not be so
hard.
>
>
>
> Regards
>
>
>
> David
>
>
>
>
> David McLauchlan
> Professor of Law
> Victoria University of Wellington
> ________________________________
> From: Neil Foster [Neil.Foster@newcastle.edu.au]
> Sent: Thursday, November 03, 2011 6:11 PM
> To: David McLauchlan
> Cc: Jason Neyers; obligations@uwo.ca
> Subject: Re: Contract Interpretation
>
> Dear Colleagues;
> I must say that the approach of the UKSC does seem to commend itself
above
> the approach summarised as still being binding in Australia by the
High
> Court. But I speak of that whereof I do not know, not being across
> contract law.
> What does puzzle me is probably trivial but seems odd- I have not
before
> seen a High Court of Australia decision refusing special leave to
appeal
> with its "own" medium neutral citation reference. In most cases a
decision
> of this sort would have appeared in the HCATrans series- indeed, now
that
> I look I see this one does as well: Western Export Services Inc & Ors
v
> Jireh International Pty Ltd [2011] HCATrans 297 (28 October 2011). So
we
> have the somewhat odd situation that there are two separate electronic
> references to the same decision. (The HCATrans one contains the
comments
> of the court on argument, so one can see what was concerning their
> Honours, one part of which seems to have been the suggestion that
inferior
> courts in Australia should follow decisions in the UK which were
arguable
> contrary to Codelfa.) It seems that the three members of this special
> leave bench decided that this trend to "loose" reading of contractual
> terms was such a potential problem that their decision here needed to
be
> brought to the professions' attention more clearly than an "ordinary"
> refusal of special leave. Is anyone aware of other such examples of
> special leave decisions being highlighted in this way?
> From a precedential point of view, a special leave decision seems
fairly
> clearly not binding (even one that has been "elevated" in this way.)
But
> from a pragmatic perspective I suppose this means that anyone wanting
to
> argue that a more "commercially oriented" view of interpretation
should be
> adopted knows they will have some strong resistance from at least some
> members of the High Court.
> Regards
> Neil
>
> On 03/11/2011, at 7:42 AM, David McLauchlan wrote:
>
> And for an interesting contrast in approaches, see the High Court of
> Australia's refusal to grant leave to appeal from the appalling
decision
> of the NSWCA in Jireh International Pty Ltd v Western Export Services
Inc
> [2011] NSWCA 137:
http://www.austlii.edu.au/au/cases/cth/HCA/2011/45.html
>
>
>
> The traditional "plain meaning" approach is alive and well in
Australia.
> The High Court has ruled that the NSWCA was correct when it held that
a
> court must give effect to "unambiguous" language "unless to do so
would
> give the contract an absurd operation". It is not enough that the
> contract has an uncommercial or unbusinesslike operation. An article
> discussing the NSWCA's decision and other recent developments in
Australia
> will shortly appear in the Journal of Contract Law.
>
>
>
> David
>
>
>
>
> David McLauchlan
> Professor of Law
> Victoria University of Wellington
> ________________________________
> From: Jason Neyers [jneyers@uwo.ca]
> Sent: Thursday, November 03, 2011 6:52 AM
> To: obligations@uwo.ca<mailto:obligations@uwo.ca>
> Subject: ODG: Contract Interpretation
>
> Dear Colleagues:
>
> Those interested in contractual interpretation will be interested in
Rainy
> Sky S.A and others (Appellants) v Kookmin Bank
>
(http://www.supremecourt.gov.uk/docs/UKSC_2010_0127_Judgment.pdf)<http:/
/www.supremecourt.gov.uk/docs/UKSC_2010_0127_Judgment.pdf>
> which deals with the question (or so I am told) of whether when it
comes
> to the interpretation of express terms one should use old fashioned
> literalism, contextualism, or common sense.
>
> Happy Reading,
> <http://www.supremecourt.gov.uk/docs/UKSC_2010_0127_Judgment.pdf>
>
> --
> Jason Neyers
> Associate Professor of Law
> Faculty of Law
> University of Western Ontario
> N6A 3K7
> (519) 661-2111 x. 88435
>
> Neil Foster
> Senior Lecturer
> Newcastle Law School Faculty of Business & Law MC158, McMullin
> Building University of Newcastle Callaghan NSW 2308 AUSTRALIA ph 02
> 4921 7430 fax 02 4921 6931
> http://www.newcastle.edu.au/staff/profile/neil.foster.html
> http://works.bepress.com/neil_foster/
>
>
>
>
>
>
>


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