Commercial Law Update - "High degree of moral obloquy" is unhelpful in understanding statutory unconscionability

Commercial Law
Michael Wise Headshot
By

A long, long time ago Spigelman CJ used a quaint but obscure expression to describe what was required to constitute unconscionable conduct under the Trade Practices Act. He said the conduct had to involve a "high degree of moral obloquy": Attorney-General (New South Wales) v World Best Holdings Ltd (2005) 63 NSWLR 557; [2005] NSWCA 261 at [121]. 

Lawyers have ever since been trying to understand what that expression means (and be certain as to its spelling) and whether it is a touchstone of unconscionability. Despite many subsequent cases critical of the use of that expression as either a gateway to relief or as appropriately descriptive of the nature of the conduct, it has simply not passed into legal oblivion.

Hopefully these comments by Beazley P in Ipstar Australia Pty Ltd v APS Satellite Pty Ltd [2018] NSWCA 15 at [278] will see the expression finally laid to rest.

“Moral” is a notoriously imprecise adjective: “someone under a moral obligation” was the example of conceptual uncertainty chosen in Re Baden’s Deed Trusts (No 2) [1973] Ch 9 at 20. When combined with “obloquy”, which is scarcely a word in common parlance, the imprecision is heightened. To insist on the presence of a “high level” of such an imprecise quality does not, in my respectful opinion, assist in the task of giving legal meaning to unconscionable in s 22 of the Australian Consumer Law. But even if the epithet were less imprecise, there would be no warrant to construe s 22 as being subject to some threshold requirement. Instead the statutory language falls to be applied in terms."
Michael Wise Headshot
By

Michael Wise QC practises in commercial law and intellectual property law

Share on