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35 Bond L. Rev. 1 (2023)

handle is hein.journals/bondlr35 and id is 1 raw text is: Still Jammed! Lingering Questions About the Statutory Unconscionability Doctrine Post Stubbings v Jams 2 Pty Ltd (2022) 399 ALR 409 MARK GIANCASPRO* Abstract The High Court of Australia recently delivered its highly anticipated judgment in Stubbings v Jams 2 Pty Ltd (2022) 399 ALR 409 ('Stubbings (HCA)'). The case represents the most recent examination of the unsettled statutory doctrine of unconscionability in the land's highest judicial forum. Regrettably, the High Court spurned the opportunity to clarify several lingering questions that continue to plague the doctrine. These questions concern matters ranging from the proper distinction between the various unconscionability provisions in the consumer law to the requirements needed under each. This article extrapolates what it can from Stubbings (HCA) and other leading cases to try and add clarity to the frequently litigated but poorly understood statutory unconscionability doctrine. I Introduction The High Court of Australia in Stubbings v Jams 2 Pty Ltd' had a glorious opportunity. The case provided the perfect chance to clear up some of the confusion burdening the maligned doctrine of unconscionability as enshrined in the Australian Consumer Law ('ACL') and the Australian Securities and Investments Commission Act2001 (Cth) ('ASICAcf). Unfortunately for practitioners, scholars, and consumers alike, the chance was, respectfully, spurned. As a result, despite arising on the facts and through the parties' submissions, a variety of lingering questions about the scope, content and application of the doctrine remain. This article identifies some of these questions and attempts to offer guidance as to the ostensible status quo regarding each. Part II provides important context as to how the equitable concept of unconscionability came to be, before Part III traces the doctrine's long and tortured entrance into the statutory regime governing * LLB (Hons.), LP, PhD. Senior Lecturer, Law School, University of Adelaide. 1 (2022) 399 ALR 409 ('Stubbings (HCA)').

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