Projects per year
Abstract
This article considers the role of intentionality in establishing unconscionable
conduct contrary to statute. Sections 21 and 22 of the Australian Consumer
Law do not expressly require proof of predatory intention, deliberate
advantage-taking or knowledge of disadvantage. Nonetheless, courts tend to
treat such markers of culpability as inherent in the idea of behaving
‘unconscionably’. These concepts have proved difficult to apply when the
misconduct involves the business system of a corporation, as opposed to a
‘rogue’ trader or individual ‘snake oil merchant’. We argue that courts
applying the statutory prohibition have begun to develop a powerful concept
of ‘systems unconscionability’, which recognises intentionality, and thus
culpability, expressed through purposive systems. This profound insight has
significance not only for statutory unconscionability, and its equitable relation,
but for the effective regulation of broader corporate and commercial
misconduct.
conduct contrary to statute. Sections 21 and 22 of the Australian Consumer
Law do not expressly require proof of predatory intention, deliberate
advantage-taking or knowledge of disadvantage. Nonetheless, courts tend to
treat such markers of culpability as inherent in the idea of behaving
‘unconscionably’. These concepts have proved difficult to apply when the
misconduct involves the business system of a corporation, as opposed to a
‘rogue’ trader or individual ‘snake oil merchant’. We argue that courts
applying the statutory prohibition have begun to develop a powerful concept
of ‘systems unconscionability’, which recognises intentionality, and thus
culpability, expressed through purposive systems. This profound insight has
significance not only for statutory unconscionability, and its equitable relation,
but for the effective regulation of broader corporate and commercial
misconduct.
Original language | English |
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Pages (from-to) | 63-91 |
Journal | Journal of Equity |
Volume | 15 |
Issue number | 1 |
Publication status | Published - 2021 |
Fingerprint
Dive into the research topics of 'Systems of misconduct: Corporate culpability and statutory unconscionability'. Together they form a unique fingerprint.Projects
- 2 Finished
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Unravelling Corporate Fraud: re-purposing ancient laws for modern times
ARC Australian Research Council
8/05/20 → 12/05/24
Project: Research
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Developing a Rational Law of Misleading Conduct
Paterson, J. & Bant, E.
ARC Australian Research Council
1/01/18 → 31/12/21
Project: Research
Press/Media
Activities
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Productivity Partners Pty Ltd v Australian Competition and Consumer Commission [2024] HCA 27 [108]-[110], [134] and [143] (Gordon J, Steward J and Beech-Jones J relevantly agreeing) and [236]-[242] (Edelman J).
Elise Bant (Consultant)
14 Aug 2024Activity: Industry and government engagement/consultancy › Citation in a court case
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Monash Network
Elise Bant (Participant) & Rebecca Faugno (Participant)
4 Sept 2023Activity: Conferences and workshops › Contribution or participation in a conference
File -
Politics, Policy and Private Law
Elise Bant (Keynote speaker/Invited speaker)
27 Mar 2023Activity: Conferences and workshops › Contribution or participation in a conference
File