From: Neil Foster <neil.foster@newcastle.edu.au>

Sent: Wednesday 14 August 2024 03:03

To: obligations@uwo.ca

Subject: ODG: HCA on unconscionable conduct and accessory liability

Dear Colleagues;

I thought some might be interested in this decision from the High Court of Australia today: Productivity Partners Pty Ltd v Australian Competition and Consumer Commission; Wills v Australian Competition and Consumer Commission [2024] HCA 27 (14 August 2024) http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2024/27.html .

The issues concern a statutory prohibition on unconscionable conduct (s 21 of the Australian Consumer Law("ACL") provides that persons must not, in trade or commerce, in connection with supply of services, "engage in conduct that is, in all the circumstances, unconscionable"), and the accessory liability of a director/manager where a company is found to have engaged in such conduct. The facts involve an education provider in effect deliberately taking on students who it knew would probably not succeed, for the purpose of getting funding for those students.

There are a number of different decisions from members of the court on these issues (apart from a joint judgment from Gageler CJ and Jagot J, all the other 5 members of the court write separately), which range over how to define unconscionable in terms of social norms, to the extent of the knowledge required for a company officer to be an accessory, and issues around how a system may be unconscionable. The work of colleague Elise Bant is extensively cited, and other ODG colleagues Rachel Leow and Jeannie-Marie Paterson also are mentioned.

For my part I found of particular interest the reference of Steward J to the historical origins of equity s standards in the background of Christianity see para [297], while acknowledging of course that religious-based concepts of conscience have since the seventeenth century been

replaced with particular written rules, based on precedent ([300]). I discuss the background of the Western legal system in the Christian world-view in my course on Law and Religion .

That to one side, there are lots of interesting things in the judgments about how to apply a statutory standard of unconscionability in the modern world.

Regards

Neil

NEIL FOSTER

Associate Professor, School of Law and Justice

College of Human and Social Futures,

University of Newcastle, NSW

T: +61 2 49217430

E: neil.foster@newcastle.edu.au

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Blog: https://lawandreligionaustralia.blog

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