Exploitation rulings reviewed
Print
Australian courts seem to see fairness as optional, but draw the line at outright exploitation.
A new report seeks to clear up a grey area with how courts assess the boundary between legal and illegal commercial behaviour under Australian Consumer Law.
Dr Mark Giancaspro, author of a new study published in the UNSW Law Journal, explores the evaluative methods used by judges to distinguish between merely unfair conduct and legally unconscionable actions in trade and commerce.
Unconscionable conduct, defined as “seriously repugnant or unacceptable commercial conduct”, remains prohibited under the law.
Dr Giancaspro cites examples such as exploiting a vulnerable party, like pressuring an elderly individual into an unfair transaction or using manipulative sales tactics. However, actions deemed merely “unfair” fall outside this legal prohibition.
“There is a spectrum,” Dr Giancaspro explains.
“Unconscionable conduct lies at one end, and unfair or immoral conduct at the other. Courts require more than evidence of unfairness to establish unconscionability.”
His research identifies recurring judicial patterns in assessing these cases, providing much-needed clarity in an area that remains largely opaque.
The study draws on cases where allegations of unconscionability were not proven, examining how judges assess factors such as the bargaining power of parties and the context of the transaction.
“Courts accept that parties may sometimes act unfairly, but there needs to be something more for the conduct to cross the line into illegality,” Dr Giancaspro notes.
The findings have significant implications for businesses, consumers, and legal practitioners.
By shedding light on judicial perceptions of various forms of business conduct, the study offers practical tools to navigate the grey areas of commercial dealings.
Dr Giancaspro also advocates for further research to deepen understanding.
“A broader analysis of cases could create a more representative spectrum of commercial behaviour,” he suggests.
His research also highlights the potential value of exploring consumer and business perceptions to better align them with judicial reasoning.
The study underscores the importance of understanding how morality intersects with legal principles in commercial dealings, providing a roadmap for parties aiming to stay within legal boundaries while promoting fair practices.
