South Australian Railways Commissioner v Egan [1973] HCA 5

High Court of Australia McTiernan, Menzies, Walsh, Gibbs and Stephen JJ. South Australian Railways Commissioner v Egan [1973] HCA 5

ORDER Appeal allowed with costs. Judgment of the Supreme Court of South Australia set aside. In lieu thereof order that the defendant's objection in law raised by par. 9 of the defence be determined by declaring that the plaintiff is not entitled to maintain this action to recover payment for work done and materials supplied, or damages for breach of contract, but is not prevented by the want of a certificate, order or award from the Chief Engineer for Railways from maintaining this action in so far as it relates to the other claims made by the plaintiff in the statement of claim. Costs of and incidental to the argument in the Supreme Court of the objection in law reserved to the judge who ultimately disposes of the action.

Cur. adv. vult.

The following written judgments were delivered:—

1973, March 20 McTiernan J.

The appeal should, in my opinion, be allowed. I agree in the reasons of Gibbs J.

Menzies J.

This appeal is concerned with perhaps the most wordy, obscure and oppressive contract that I have come across. It is the standard form of contract which the South Australian Railways Commissioner requires those executing railway works for him to sign. It was probably compiled a long time ago mainly by putting together, with some incongruity, provisions from other contracts. In the compilation, I am sure that not one oppressive provision which could be found was omitted. The contract is so outrageous that it is surprising that any contractor would undertake work for the Railways Commissioner upon its terms. It is, of course, a contract to which the doctrine of contra proferentem applies. The employment of such a contract tempts judges to go outside their function and attempt to relieve against the harshness of, rather than give effect to, what has been agreed by the parties. Courts search for justice but it is justice according to law; it is still true that hard cases tend to make bad law.