ABSTRACT
‘The lawyer who deals in “unconscionable behavior” is rather like the ornithologist who is content with “small brown bird”‘, so said the late Professor Peter Birks. The conundrum that the concept of unconscionability is of little utility to a lawyer could be ameliorated, it has been suggested, ‘as analogies and comparisons emerged by application of the principles and values underlying the statute’. The upshot is that given the slippery and fluid nature of the notion of ‘unconscionable conduct’, one must be astute to the (statutory) context in which such concept is articulated. Such a context-specific approach guides the court’s inquiry into how consumers’ transactional autonomy should be measured, which in turn directs the court’s readiness to intervene in the relevant business practices which it believes to be ‘unconscionable’. The court’s ability to navigate these troubled waters was put to test in the recent decision of the High Court of Australia Australian Securities and Investments Commission v Kobelt.
Sin, Ivan Cheuk Him, Statutory Unconscionability in the High Court of Australia: The Curious Case of the Anagu People (March 16, 2020). Lloyd’s Maritime and Commercial Law Quarterly, forthcoming.
First posted 2020-04-11 08:21:06
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