Circumscribing lawful act duress in Australia: Edelman's disproportionality, Hodge’s unconscionability and Burrows’ bad faith working paper
Abstract: The High Court of Australia is yet to recognise a doctrine of lawful act duress, but this development seems likely to be only a matter of time. This article looks to the future and seeks to determine the appropriate lens through which cases of lawful act duress should be analysed, considering three models recently proposed by distinguished judges. It argues that, as and when lawful act duress is recognised, the test for illegitimate pressure in the context of lawful threats should be whether the defendant’s behaviour renders enforcement of the relevant transaction unconscionable. This standard of unconscionability, I suggest, provides a better explanation for the recognised examples of lawful act duress than the alternatives (disproportionality and bad faith), and is also not too uncertain. Courts regularly apply tests of unconscionability, and more specific rules will develop over time.
About the Speaker: William Garske holds degrees in Law and Economics from the University of Queensland. He worked as a Research Assistant to Dr Ryan Catterwell throughout his studies, receiving acknowledgements in the Law Quarterly Review, Oxford Journal of Legal Studies, and Hart Studies in Private Law Series. Will's first piece of academic writing, which discusses a judgment of the Court of Appeal of England and Wales, was recently published in Lloyd’s Maritime & Commercial Law Quarterly. He is currently working as the Associate to the Honourable Justice Ian Jackman at the Federal Court of Australia in Sydney.
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About Australian Centre for Private Law Events
The mission of the Australian Centre for Private Law is to foster the development and understanding of the private law through advanced theoretical, doctrinal, empirical and historical research, and the dissemination of that research through education and professional outreach. By supporting the work of its Fellows, the ACPL seeks to promote research in all areas of private law and to establish itself as a research centre of national and international importance. The core initiatives of ACPL are:
Research: To advance a deeper understanding of the structure, principles and policies of the private law through advanced theoretical, comparative, and empirical analysis.
Education: To promote, facilitate and disseminate the results of that research for the benefit of Australia’s social and economic fabric.
Professional Outreach: To engage the judiciary and members of the legal profession in discussion about the values, goals and methods of private law and the respective roles of the judiciary, the legal profession and the academy in the interpretation and reform of private law.
The ACPL embraces all branches of private law, including the law of contract, torts, trusts, equity, property, unjust enrichment, including theoretical and jurisprudential dimensions and contextual applications thereof.
