From: Elise Bant
<elise.bant@uwa.edu.au>
Sent: Friday 16 August 2024
04:32
To: Neil Foster;
obligations@uwo.ca
Subject: RE: HCA on unconscionable
conduct and accessory liability
Yes, thanks All. Very interesting!
I thought it might be helpful to draw to the Group s
attention the also-very-interesting (separate) extended discussions of Gordon J
and Edelman J on the topics of corporate attribution, knowledge and intention,
all key issues in the case. Their reasoning should be of widespread interest to
Group members, as it arguably is framed in general terms that go well beyond
the specific unconscionability provisions, to articulate more general theories
of corporate intentionality applicable across civil and criminal law. Their
analyses represent, I think, a striking contribution to the law, consistent
with Australia s longstanding interest in holistic models of corporate
responsibility, but also reflecting and informed by the work of eminent
scholars, from many jurisdictions, across many decades.
As Neil mentioned, Gordon J and Edelman J s analyses
adopt reasoning consistent with (and citing) my holistic model of corporate
responsibility entitled Systems Intentionality : see in particular Gordon J at
[108]-[110], [134] and [143] and Edelman J at [236]-[242] (the latter including
work done with my great friend and collaborator, Jeannie Paterson). My website
below has most of my publications and associated materials, for those who would
like a further look.
In developing his reasoning, Edelman J cites with
approval Rachel Leow s Corporate Attribution in Private Law (at [239])
and, at [240], Eva Micheler s Company Law: A Real Entity Theory. Both
these recently-published works will be deeply familiar to those interested in
corporate responsibility, but if you have not read them, now is the time! They
are outstanding.
Best wishes,
Elise
Dr Elise Bant
FAAL
Professor of
Private Law and Commercial Regulation, UWA Law School
Director,
UWALS Private and Commercial Law Research Cluster
Professorial
Fellow, Melbourne Law School
ARC Future
Fellow https://unravellingcorporatefraud.com/
Consultant, HFW
Australia
UWA Law
School M253, Perth WA 6009 Australia
T +61 8 6488
2740 E elise.bant@uwa.edu.au
The University of Western Australia is situated on the lands of the
Whadjuk Noongar peoples. We pay our respects to their Elders past, present and
future.
From: Eoin.Quill <Eoin.Quill@ul.ie>
Sent: Thursday, August 15, 2024 4:58 PM
To: Neil Foster <neil.foster@newcastle.edu.au>;
obligations@uwo.ca
Subject: RE: HCA on unconscionable conduct and accessory liability
Thanks to all
for an interesting thread; while it s not an area of particular interest for
me, I did spot that the Irish Supreme court referred a matter in this area to
the Court of Justice of the European Union just a couple of weeks ago
The Minister for
Justice & Equality v Coffey, O'Brien & Sparling [2024]
IESC 40
Without laboring
the detail, it is focused on the status of contempt of court findings and how
they affect arrest warrants seeking surrender of persons from Ireland to the
UK. It may be of some interest to those of you more immediately concerned with
civil/criminal classification issues.
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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
CAUTION: This email originated from outside of the University of
Limerick. Do not click on links or open attachments unless you recognize the
sender's email address and know the content is safe.
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
Further details: http://www.newcastle.edu.au/profile/neil-foster
My publications: http://works.bepress.com/neil_foster/ , http://ssrn.com/author=504828
Blog: https://lawandreligionaustralia.blog
The
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