Melbourne Law School - Theses
Permanent URI for this collection
Search Results
1 - 2 of 2
-
ItemDo the ‘matter provisions’ really matter? Analysing trends in statutory unconscionability cases which apply s 22 of the Australian Consumer Law or s 12CC of the Australian Securities and Investments Commission Act 2001 (Cth)( 2023)This thesis considers and analyses trends in recent cases applying s 22 of the Australian Consumer Law1 (‘ACL’) or s 12CC of the Australian Securities and Investments Commission Act 2001 (Cth) (‘ASIC Act’) involving the statutory prohibitions on unconscionable conduct. It asks whether those trends reflect the form, structure and intended purpose of those provisions. It is fair to say that the concept of unconscionability wears many different hats under Australian law. Within the equitable jurisdiction alone it bears multiple layers of meaning, not to mention the various statutory adaptations to which the concept has been adopted by way of, among other provisions, s 21 of the ACL and s 12CB of the ASIC Act. In particular, these provisions are accompanied by what are referred to in this thesis as the ‘Matter Provisions’ (a more detailed definition of which appears at paragraph [15]), comprising s 22 of the ACL and s 12CC of the ASIC Act. Broadly speaking, these contain legislative guidance on various matters which inform the meaning of unconscionability for the respective provisions they regard. In light of these various uses of the term ‘unconscionable’, it is little wonder that commentators have expressed the view that ‘[a]bove all other concepts, unconscionability has emerged as an all-pervasive, yet persistently elusive, undercurrent in Australian contract law’. The premise of this thesis is to formulate a comprehensive overview of the practical application of cases concerning statutory unconscionability. This review is couched through the lens of applying the Matter Provisions, which, as this thesis will explain, are foundational to the proper application of statutory unconscionability. From this overview, various trends will be revealed that can be used to paint a portrait of how cases engaging with the Matter Provisions in statutory unconscionability claims are being applied, and the extent to which this application reflects substantive judicial engagement consistent with the structure and intended purpose of those provisions. This overview is founded on a comprehensive analysis of data collected from cases which have considered the Matter Provisions in recent years, enclosed at Appendix 1 to this paper (‘Case Review’). Lying at the heart of this paper, the Case Review is a systematic collation, review and coding of 252 cases which have considered the Matter Provisions from the period of 1 January 2010 to 6 September 2023. This data collection has been undertaken in accordance with the methodology outlined from paragraph [39]. While there may inevitably be some cases which were not captured, the vision for compiling the Case Review was that if a case grapples with the Matter Provisions, it was included, such that as exhaustive a list of cases as reasonably possible was considered. The Case Review takes the form of a spreadsheet with columns for various quantitative and qualitative data points extracted from an individual review of each case. That data is then applied to the statistical analyses outlined in this paper (including by way of graphs, charts and tables).
-
ItemAustralia's new cartel laws : time for a fresh look at compliance(University of Melbourne, 2010)