THE COMMONWEALTH OF AUSTRALIA V. A.E. GOODWIN LIMITED

IN THE HIGH COURT OF AUSTRALIA

LHS

Vv.

REASONS FOR JUDGMENT

ORIGINAL

Judgment delivered at:

'A. G. Brooks, Governoent Printer, Melbourne 0.7639/00

oe

THE COMMONWEALTH OF AUSTRALIA Ve

A. E. GOODWIN LIMITED

ORDER

Judgment for the plaintiff for £26,726 11s. Od.

and costs.

THE COMMONWEALTH OF AUSTRALIA Ve

A. E. GOODWIN LIMITED

JUDGMENT MENZIES J.

THE COMMONWEALTH OF AUSTRALIA ve

A. E. GOODWIN LIMITED

When the trial of this action began, it appeared that there were three issues: (1) whether there was a contract between the parties for the manufacture by the defendant of 154 railway goods wagon bogies at the price of £698 each;

(2) whether the defendant had repudiated that contract; and

(3) if so, whether the Commonwealth's claim for £26,726 11s. Od. damages was excessive. In the course of the trial, counsel for the defendant, in the face of the strength of the plaintiff's ease, abandoned the first and third matters, leaving for decision the one question whether it had been shown that the defendant had repudiated the contract.

Whether there was repudiation may be considered (i) having regard to clause 23(1)(C) of the General Conditions of Tender and Contract - a document forming part of the contract ~ and (ii) independently of that provision.

It was argued for the defendant that no regard can be had to clause 23(1)(C) because it constitutes an unlawful attempt to oust the jurisdiction of the courts. That argument I reject. My reason for doing so will become apparent from my statement of my understanding of the effect of the provision itself.

Not every breach of a contract amounts to the repudiation of that contract. A breach, to be so regarded, must be one going to the root of the contract. But the parties to a contract may, if they wish, stipulate that a particular breach should be regarded as amounting to the repudiation of the whole contract. See the statement of law by Jordan C.J. in