Observations on Construing a Commercial Contract as a Whole

Speech delivered by the Honourable Justice Colvin, Judge of the Federal Court of Australia, to the Western Australian Bar Association and Francis Burt Chambers Civil Litigation Skills Course on 30 July 2024.

Justice Colvin delves into the “essence of construction of commercial contracts”. In his opening remarks, his Honour exhorts the audience (of mainly Barristers) to think more carefully about the result they are trying to achieve by moving beyond the mindset of, for example searching for particular sentences in a judgment to support a presupposed position in support of their client’s preferred outcome, to instead striving to understand the “way the law should mediate or resolve the outcome”. Having made these general observations, His Honour then turns to consider the approach taken to construction of commercial contracts. In particular, his Honour focuses on the meaning of the proposition that “in order to properly construe the language of a commercial contract it is necessary to have regard to the contract as a whole”. As his Honour observes, it is a notion “worth focussing upon because the notion of the contract as a whole lies at the heart of the construction task”.

The full text of his Honour’s speech is available here.