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

Commercial Law

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."

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