This case, and the recent dicta of the High Court in Woodside, are just yet further chapters in the sorry history of inconsistent and mixed messages concerning the principles of contract interpretation that have emanated from the Australian courts over the past 50 years or so. At heart, Leeming JA says the same as the NSWCA said in Franklins v Metcash, yet the court was rapped over the knuckles in the Jireh special leave decision for not following Codelfa, in particular, Mason J’s “true” plain meaning rule. It cannot be said that Australian law is settled until the High Court explicitly lays the latter rule to rest. The dicta in Woodside said nothing new. They repeated what the Court had said in several pre-Jireh decisions. Incomprehensibly, the judges in Jireh said that they could not see anything in the earlier cases that was inconsistent with the Codelfa true rule.

Hector is correct that the plain meaning rule arguably lingers in the UK. See, eg Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900 at [23] where Lord Clarke said that “[w]here the parties have used unambiguous language, the court must apply it”. The mixed messages in the latter case are discussed by Matthew Lees and me in (2012) 29 JCL 97.


David McLauchlan
________________________________________
From: Hector MacQueen [hector.macqueen@ed.ac.uk]
Sent: Saturday, June 07, 2014 1:46 AM
To: Peter Radan
Cc: obligations@uwo.ca
Subject: Re: Contractual Interpretation (in Australia)

I'm not sure that the courts in the UK have unambiguously rid
themselves of the need to find ambiguity first before they can
consider context, despite the best efforts of Lord Hoffmann to lead
them to the light. Leeming JA seems however to be on the case, and I
hope that his UK counterparts follow suit soon. Otherwise I may have
to recommend that at least the Scottish ones do when the Scottish Law
Commission reports on interpretation in due course.

--
Hector L MacQueen
Scottish Law Commissioner; Professor of Private Law
Edinburgh Law School
University of Edinburgh
Edinburgh EH8 9YL
UK

SSRN http://ssrn.com/author=463210

Currently working at the Scottish Law Commission tel: (UK-0)131-662-5222


Quoting Peter Radan <peter.radan@mq.edu.au> on Fri, 06 Jun 2014
23:29:40 +1000:

> Colleagues,
>
> The NSW Court of Appeal today handed down its decision today in *Mainteck
> Services Pty Ltd v Stein Heurtey SA* [2014] NSWCA 184 (at
> http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=171932).
>
> This case will be of particular interest to Australian lawyers who are very
> familiar with the controversy that has surrounded the issue of the extent
> to which context/surrounding circumstances are used in construing
> commercial contracts.
>
> The Court's decision was given by Leeming JA.
>
> It appears to me that his Honour states that the Australian approach to
> construction is now the same as that of the UK. His Honour's judgment, as I
> read it, is based upon a single paragraph of the recent High Court decision
> in *Electricity Generation Corporation v Woodside Energy Ltd* [2014] HCA 7.
>
> As one who at times struggles to keep up with the issue, I would welcome
> the views of colleagues as to whether they agree on my summation of Leeming
> JA's judgment. One only has to read paragraphs [69]-[84] of the judgment.
>
> Peter Radan
>
> --
> Professor Peter Radan
> Macquarie Law School
> Faculty of Arts
> Macquarie University NSW 2109
> AUSTRALIA
>
> Tel: +61 (0)2 9850-7091
> Fax: +61 (0)2 9850-7686
> Email: peter.radan@mq.edu.au
>



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