Western Export Services v Jireh International: Ambiguity as the Gateway to Surrounding Circumstances?

Abstract

In Western Export Services Inc v Jireh International Pty Ltd (2011) 86 ALJR 1; [2011] HCA 45, it was submitted by the applicant that ambiguity was no longer required before a court may have recourse to surrounding circumstances in construing a contract. In refusing special leave to appeal, three members of the High Court said that this would require reconsideration of the position stated by Mason J in Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337, and that judges were bound to follow that decision. This article argues that ambiguity is no longer a precondition to the use of extrinsic evidence and that the statements in Jireh do not alter that position.