'Kakavas v Crown Melbourne Ltd' Still curbing unconscionability: 'Kakavas' in the High Court of Australia

Abstract

This case note explores the merits, or demerits, of the High Court's recent decision in Kakavas v Crown Melbourne Ltd. That decision appears to be further confirmation of a contemporary judicial tendency in Australia, which is to seriously restrict the ameliorative potential of the Amadio-style 'unconscionable dealing' doctrine, at least in relation to so-called 'arm's-length commercial transactions'. The High Court held that no relief is available for unconscionable dealing - or for 'unconscionable conduct' under s 51AA of the Trade Practices Act 1974 (Cth) (now s 20 of the Australian Consumer Law), which is the selfsame thing-unless the party alleged to have acted unconscionably actually knew of the victim's relative 'special disadvantage' and 'preyed upon' him or her. This note questions whether, in relation to a doctrine that has traditionally been understood to implement a legal policy of protecting the transactionally vulnerable from victimisation, the law relating to unconscionable dealing/conduct in Australia ought to be limited to disciplining nakedly exploitative conduct and nothing less.

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