Lloyd's Maritime and Commercial Law Quarterly
STATUTORY UNCONSCIONABILITY IN THE HIGH COURT OF AUSTRALIA: THE CURIOUS CASE OF THE ANAGU PEOPLE
Ivan Sin*
ASIC v Kobelt
“The lawyer who deals in ‘unconscionable behaviour’ is rather like the ornithologist who is content with ‘small brown bird’.” So said the late Professor Peter Birks.1 The conundrum that the concept of unconscionability is of little utility to a lawyer could be ameliorated, it has been suggested,2 “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.3
Facts and issues
The appeal brings to light a rather unusual set of facts, involving book-up credit transactions between Mr Kobelt, the storekeeper, and a certain Aboriginal community located in rural and remote Australia known as the Anagu Pitjantjatjara Yankunythatjara Lands. Under such arrangement, Mr Kobelt provided credit to his consumers, the Anagu people, on the condition that they give him the debit card (keycard) linked to the bank account to
* City University of Hong Kong. I thank the anonymous referee for comment.
1. P Birks, “Equity in the Modern Law: An Exercise in Taxonomy” (1996) 26 UWAL Rev 1, 16.
2. Commercial Bank of Australia v Kojic (2016) 249 FCR 421, [86–87], per Edelman J.
3. [2019] HCA 18 (“Kobelt”).
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