Thursday, 9 July 2020

Australian Business Law Review, Vol 48, Part 2

Very excited about the upcoming Special ABLR COVID-19 Edition. Thanks to Dr Victoria Lambropoulos for suggesting the idea of a Special Edition and for agreeing to be the Guest Editor. Also, thanks to all the authors for their exceptional articles:

* COVID-19, JobKeeper & Stand Down under the Fair Work Act 2009 (Cth): A Review of the Law – Victoria Lambropoulos

* The Contractual Impact of COVID-19 on Corporate & Financial Transactions – Andrew Godwin

* The Challenges of Navigating the COVID-19 Pandemic for Australia’s Franchise Sector – Jenny Buchan & Rob Nicholls

* Courts, Mediation & COVID-19 – Tania Sourdin & John Zeleznikow

* Commercial Litigation and COVID-19 – the Role and Limits of Technology – Michael Legg & Anthony Song

* Frustratingly Unclear? The Interplay Between Common Law, Statute and the ACL in Assessing Consumer Rights in a Time of Crisis – Alex Jane & Jeannie Marie Paterson

* Prepayments, the ACL & the ASIC Act – Philip H Clarke

* COVID Collaboration & Competition Policy: Authorisation vs Forbearance as Crisis Responses – David Howarth & Harriet Alexander

* Transport, Drones and Regulatory Challenges: Risk Accountability Meets COVID Fast Tracking of a Critical Industry – J Tarr, A Tarr & K Paynter


Quantum Housing decision appealed over unconscionable conduct

The ACCC was right to appeal this decision. I think Justice Colvin has misinterpreted Kobelt. While a couple of the High Court judges in Kobelt seem to have endorsed special disadvantage, this was clearly not the decision of the court.

Rather the test identified by the High Court in Kobelt seems to be that conduct which is seen as well outside the bounds of moral, right or acceptable commercial behaviour according to prevailing norms and standards will be found to be unconscionable.

The other significant issue coming out of Kobelt is the long overdue rejection of "moral obloquy" as being in any way relevant to a finding that conduct is unconscionable.