By Joanna Bloore
The forthcoming case of Thorne v Kennedy will provide the High Court with a rare opportunity to consider and clarify the nature of the doctrines of undue influence, duress, and unconscionable dealing, and the relationships between them. It is increasingly argued that undue influence, like duress, is a vitiating factor within the law of unjust enrichment. By contrast, unconscionable dealing is generally accepted to constitute an equitable wrong, operating independently of the law of unjust enrichment. The three doctrines often suggest themselves from the same set of facts, and the appearance of the language of ‘unconscionability’ in unjust enrichment cases has introduced further confusion. There are, however, important distinctions between the three forms of claim. The body of this post examines the doctrines of duress, undue influence, and unconscionable dealing. The nature of each doctrine, and the relationships between them, are explored through their potential application to the facts of Thorne v Kennedy.
The dispute is set to be heard in the High Court on appeal from the Full Family Court in Kennedy v Thorne  FamCAFC 189. Mr Kennedy was an Australian property developer with assets valued at $18 million. Ms Thorne lived overseas, and occupied a position of relative disadvantage (with poor English skills, relative poverty, and fragile immigration status). The two met through an online dating site. After meeting in person, they decided to get married and Ms Thorne accompanied Mr Kennedy back to Australia on a tourist visa. About a week before the wedding, and after Ms Thorne’s family had travelled from overseas to attend, Mr Kennedy insisted on the signing of a prenuptial agreement as a condition of their marriage. His aim was to preserve the economic wellbeing of his children. Ms Thorne received independent legal advice that the agreement was ‘no good’, but she signed it nonetheless. Four years later, the parties divorced, and Ms Thorne sought to set aside the prenuptial agreement. Continue reading
The recent resignations of Senators Ludlam and Waters mean that the following provision of Australia’s constitution is having a moment:
44 Any person who: (i) is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power… shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.
Despite some comments to the contrary, the issue is not one of foreign ‘allegiance’ – no-one seriously thinks the two ex-Senators owed, much less acknowledged, an ‘allegiance, obedience or adherence’ to New Zealand and Canada. Rather, the issue is their foreign citizenship. Both Ludlam and Waters are foreign citizens by birth, despite moving to Australia as very young children and quickly obtaining Australian citizenship. Their resignations have prompted some debate about the appropriateness of s44(i). For instance, it is startling that both Senators could now readily become MPs in the parliaments of their respective birthplaces without relinquishing their Australian citizenship.
While the media discussion of s44(i) has centred around its text and the slim possibility of a referendum, Australia’s High Court has also played a key role in the lead up to this situation. Continue reading
Melbourne-based readers of the blog may be interested to know that the Victorian Supreme Court will be opening the Melbourne Old High Court building on 30 July from 10am to 4pm as part of the Open House Melbourne Festival. In addition from 2 – 2:30pm, there will be a talk on the architecture and history of the building by Robin Grow, an expert in Art Deco architecture, and Joanne Boyd, the Supreme Court Archives and Records Manager. This post outlines some of the significance of the building, with a quick dip into significant constitutional cases for those who have an interest in such matters. [Update: for a fascinating personal insight into his role in ensuring the Supreme Court made use of the Old High Court and the decision-making process with regard to the crossover between the Supreme Court and the Old High Court see Hon. Philip Mandie’s comment on the post.]
Image taken by Heather Turk
The High Court has handed down two important cases on rectification of building works, each of which suggest that the court places a high value on rectification. However, as discussed below, I could not have guessed that the High Court’s passion with regard to building rectification may have stemmed from its own experience. [Post corrected below]
By Dan Meagher
Aubrey v The Queen Case Page
If a person passes a sexually transmitted disease to their partner, do they ‘inflict’ harm on that other person? In Aubrey v The Queen  HCA 18, the High Court opted to read the word ‘inflicts’ in a NSW statute in light of the way twenty-first century readers would understand the link between sex and disease, rejecting an earlier, more limited reading by nineteenth century judges. This choice of statutory approaches left Michael Aubrey to serve a five year prison term for recklessly passing HIV to his unwitting lover in 2004.
Are Australian Statutes ‘Always Speaking’ …?
In Aubrey, the High Court applied the ‘always speaking’ approach to statutory interpretation to s 35(1)(b) of the Crimes Act 1900 (NSW). As a consequence, it was held that a person having sexual intercourse with another causing them to contract a grievous bodily disease could amount to the infliction of grievous bodily harm. In doing so the Court overturned the settled understanding of what constituted the ‘infliction of grievous bodily harm’ within the meaning of s 35(1)(b). That statutory meaning — which had stood for more than a century — was ‘that the “uncertain and delayed operation of the act by which infection is communicated” does not constitute the infliction of grievous bodily harm’ (Bell J, at ). As was noted in the joint judgment of Kiefel CJ, Keane, Nettle and Edelman JJ, ‘until this case, Clarence [the 1888 authority for that settled statutory meaning] had not been distinguished or judicially doubted in New South Wales’ (at ).
The joint judgment offered nine reasons why Clarence should no longer be followed. A central plank of that reasoning — and the focus of this brief comment — was the endorsement and application of the ‘always speaking’ approach Continue reading