The High Court’s recent decision in Thorne v Kennedy raises difficult and troubling questions about the doctrine of unconscionable conduct. Thorne involved a dispute over a pre-nuptial agreement between a 67 year old multimillionaire and his much younger bride. Thorne is one of the few unconscionable conduct cases to feature a dispute between a member of the global elite and a member of the global poor.
The decision represents a significant shift in the direction of unconscionable conduct doctrine. Scholars such as Bigwood have characterised the High Court’s decision in Kakavas v Crown Melbourne Pty Ltd as limiting the doctrine to ‘nakedly exploitative’ conduct, but after Thorne it is now unclear as to whether the doctrine now applies to conduct that falls somewhat short of that standard. The doctrinal retreat that began with ACCC v CG Berbatis Pty Ltd appears to have ended. Yet, in its wake troubling questions have now emerged. Is the doctrine one that relies upon archetypes to justify its outcomes thereby distorting the true nature of the parties’ relationships? Should the doctrine make some accommodation for pre-existing substantive inequality? How can Thorne now be synthesized with recent cases like Wu v Ling or Mackintosh v Johnson?
This talk will be of interest to practising lawyers, academics and graduate law students.