State Rail Authority (NSW) v Codelfa Construction Pty Ltd [1982] HCA 51

High Court of Australia Mason, Wilson and Brennan JJ. State Rail Authority (NSW) v Codelfa Construction Pty Ltd [1982] HCA 51

ORDER Application dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Sept. 15 Mason and Wilson JJ.

This is an application by the State Rail Authority of New South Wales ("the Authority") for an order vacating certain of the orders made by this Court in a judgment delivered on 11 May 1982 (Codelfa Construction Pty. Ltd. v. State Rail Authority of New South Wales [1] ). The orders in question were made in part determination of appeals from two decisions of the Court of Appeal of the Supreme Court of New South Wales. One appeal related to the determination of questions raised by an Award of the Arbitrator stated in the form of a case stated, proceedings which in this Court are numbered 71 of 1981 ("the Arbitration proceedings"). The second appeal related to proceedings commenced in the Supreme Court of New South Wales and heard in the first instance before Ash J. who stated a case for decision of the Court of Appeal. In this Court these proceedings are numbered 72 of 1981 ("the frustration proceedings").

1. (1982) 149 C.L.R. 337.

The orders which the applicant seeks to have vacated are the following:

In the Arbitration proceedings —

3. Remit the Award to the Arbitrator —

(a) to make a decision on the frustration claim,

(b)

(c) in the event of a finding that the contract was frustrated to resolve the claims of the parties in relation to work performed subsequently to that frustration.

In the frustration proceedings —

1. Set aside the order of Ash J. and the order of the Court of Appeal.

2. Strike out the action for want of jurisdiction.

The litigation to which this application relates, described elsewhere as an "ocean of litigious controversy" (see Codelfa [2] ), arose generally out of a contract wherein the respondent ("Codelfa") agreed to construct for the Authority a segment of the mass transit railway in Sydney known as the Eastern Suburbs Railway. Codelfa began work under the contract in 1972. It was contemplated by the contract that certain of the work would be performed by a continuous three shift a day operation six days a week. However, on 28 June 1972, the Supreme Court of New South Wales (Street J., as he then was) held that such an operation constituted a nuisance at law and Codelfa was restrained from working more than two shifts each day. Further injunctions followed in the ensuing months. A description of the manner in which the construction of the works then proceeded and of the subsequent history of the contract is contained in the reasons for judgment of Brennan J. in Codelfa . It suffices to say, for the purposes of providing the background to this application, that when arbitration proceedings were instituted in 1976 Codelfa in its points of claim raised both the question of an implied term or alternatively of frustration in an effort to protect itself from the adverse economic effect of the injunctions on the performance of the works. Declaratory proceedings were undertaken in the Supreme Court directed to clarifying the course of the arbitration. One outcome of those proceedings was a declaration by Yeldham J. to the effect that the Arbitrator did not have jurisdiction to entertain a claim that the contract was frustrated and that he did not have power to consider a claim by Codelfa for remuneration on a quantum meruit basis in respect of work performed subsequently to the alleged frustrating event. That decision of Yeldham J. was not the subject of any appeal; indeed, both at the time of the hearing of the appeals in this Court last November and at the time of delivery of judgment in May 1982 no order had been extracted and the decision remained to be perfected.