The High Court's Analysis of Unconscionable Conduct: Thorne v Kennedy

This essay provides a comprehensive analysis of the High Court case of Thorne v Kennedy, focusing on the application of the doctrine of unconscionable conduct. The paper examines the facts of the case, involving a dispute between a woman from a third-world background and a wealthy Australian man, and explores the legal principles of special disadvantage, undue influence, and unconscientious taking. The essay discusses the court's reasoning, including the factors considered in determining unconscionable conduct, such as the imbalance of power and the lack of independent advice. It also contrasts the case with previous jurisprudence, highlighting the challenges of applying the doctrine in cases involving economic disparities and potential motivations. Furthermore, the essay delves into the implications of the court's findings, particularly regarding the narratives constructed by the court and the potential for distorted interpretations of the relationship dynamics. The paper concludes by emphasizing the complexities of the case and the importance of a nuanced understanding of unconscionable conduct in legal practice.

Introduction
The decision of the high court in Thorne V Kennedy is a clear representation of a
departure from some of the recent Australian jurisprudence on the basis of unconscionable
conduct . The case is a challenging one , mainly for the fact that it involved a dispute between a
woman from a third world background and wealthy person from a rich first world country .
According to the doctrine of unconscionable conduct , this was the first case of a senior appellate
to involve conflict between a member of the global poor and member of the global wealthy . This
in particular is a great development particularly for the development for a doctrine that was
created in order to preserve the key interest of the wealthy .Th main objective of this paper is to
offer a greater clarity into the case of Bruce and Victoria and whether there were cases of
unconscionable conducts .This would be of great use to judges , lawyer and academics to
understand the applicability of undue influence and unconscionability.
Discussion
The case of Bruce and Victoria is similar to the first decision of the high court on the
basis of prenuptial agreements in compliance with Family Law Act 1975, but such issues goes
far beyond marriage1. it is important to note both names “Thorne” and “Kennedy” are
pseudonyms .2 Both cases represent the Anglicization of identities of a 36-year-old Woman from
Eastern Europe who was residing in the Middle East and a 67 -year-old Greek Australian man .
With refence to Kennedy first saw Thorne’s profile when he was going through a matrimonial
website . They later met online and shortly Kenney flew to the Midsles East to meet Thorne .
1 Family Law Act 1975. No. 53, 1975.
2 Thorne v Kennedy [2017] HCA 49; (2017) FLC 93-807

It is important to note that , unconscionable conduct in the High court requires a number
of factors in order to be validated . First , there is need for the existence of a special disadvantage
on the side that is considered strong . Second , there is need for comprehensive knowledge of the
disadvantage at hand of the stronger side. Lastly , proper understanding of the unconscientious
taking by the latter . In the cases of Victoria , the judges were heavily reliant upon the
characterization of the parties . This is important given the tenor of the judgement . In addition ,
the judges found that Bruce was powerless and didn’t have any choice but enter the agreement
The trial judge didn’t take time to identify the state of affairs as a special
disadvantage .Nevertheless , the judge based her verdict on a set of factors which in turn were
relied upon by the plurality in order to suggest that Victoria was at a disadvantage . These factors
; lack of financial equality between the parties , lack of permanent Australian status for the
parties and lastly the reliance of one of the parties for all things .3
The plurality in this case ties Bruce’s unconscionable conduct to the urgency around the
agreement between him and Victoria and the lack of offer to assist where necessary .In addition,
the plurality reject the full finding of the case that there has been no unconscionable conduct on
Victoria’s part .Therefore the reasoning of the court can only be based in part upon the
observation that Victoria had been consistent in his representations through the entire
relationship .Bruce was in a vulnerable position even prior to meeting Victoria4 . Therefore , by
leaving the country where he had resided , he might have lost his rights to have a permanent
residence there . In addition , Bruce wouldn’t have had no right to a permanent residence in the
3 Thampapillai, Dilan. "Archetypes of Age and Romance: Unconscionable Conduct and the High Court in Thorne v.
Kennedy." U. Queensland LJ 37 (2018): 299.
4 Sharon Thompson, "Thorne v Kennedy: why Australia's decision on prenups is important for English law." Family
Law 48 (2018): 415-419.

country without the context of his association with Victoria5.Nevertheless, there is nothing in the
judgement that would suggest that Bruce was not aware of the consequences accompanying
Victoria with regard to her rights to a permanent residence elsewhere .In addition, there is also
no reason to believe that Bruce would have had no rights to get back to her country of
citizenship.
What is lacking is the explanation as to why Bruce would take a big risk of pursuing his
relationship with Victoria in the first place . Here lies a double-edged factor . The fact that the
judgement would appear to be unfair to Bruce in term of economic context , this was a
contributing factor to the finding of unconscionable conducts . However, it is important to also
consider that Bruce must have pursued the relationship through economic motivations . For
instance , in the case of Thorne , Nettle J points out that that there is a possibility in his
assessment of Victoria’s conduct . In the scheme of things , it can hardly be presumed that a
young lady as Ms. Victoria would be convinced to leave her life as a homemaker to travel
halfway around the world , enter a relationship with a sexagenarian if , at the outset of the
relationship , she was made aware of the enormity of the arrangements that were proposed to
her . This implies that , If Bruce was aware that any failure in his association with Victoria would
lead to loosing access to his better lifestyle , it is likely that he would not have been drawn to that
relationship. I don’t raise the existence of an economic motivation in order to implement a moral
judgement in this case . His reasons to enter into the relationship might well have been multiple
and varied . Irrespective of whether the relationship was desired by her for purely financial
reason that are not necessarily wrong. Nevertheless , what it does is that it shakes the waters
around victimhood .
5 Dilan Thampapillai, "Archetypes of Age and Romance: Unconscionable Conduct and the High Court in Thorne v.
Kennedy." U. Queensland LJ 37 (2018): 299.

Therefore , it makes it much harder to suggests that she was at a great disadvantage .
Notably, Failure of acknowledging troubling motivations has over the years been a source of
huge controversy with regard to other High court decisions on unconscionable conducts . In her
publications , Du Plessis deeply explored some of the misogynistic intentions of plaintiff in the
case of Louth v Diprose. In this case , the different judges of the high court had cast some
Diprose as a hapless romantic fool while regarding Louth as having developed a false
atmosphere of crisis6. The obscured acts of aggression by Diprose , the economic difference
between the two and his desire to control her through financial means was unacceptable7.
Based on the assumption that the substantive rescission is not tested in this case , the
doctrine of undue influence and unconscionability can be designed to accomplish fairness in
transactions through the offering of remedies to overcome the extent of unfair transactions that
were experienced . As discussed by Felicity Maher in the case of Commercial Bank v Amadio
(1983) 151 CLR 447 at 474.8 It did not require any intent to be shown even though undue
influence or unconscionable conduct under the Australian Law for assets of care arrangement
dictated otherwise9 . According to the Australian Consumer law Section 20(1) an individual must
not , in trade participate in unconscionable conducts within the domains of the written statutes .
A financial penalty might be imposed due to the contravention of this section10. Section 21
restricts unconscionable conducts in relation to the supply or acquisition of goods or services by
or in the form of a person. This is not intended to be limited by the unwritten law related to
6 Du Plessis, Jacques. "Protecting consumers against unconscionable conduct: Section 40 of the Consumer
Protection Act 68 of 2008." THRHR 75 (2012): 26.
7 Diprose v. Louth (No.2) (1990) 54 SASR 450
8 Commercial Bank v Amadio (1983) 151 CLR 447 at 474.
9 Felicity Maher, "Clarity or confusion? Duress, undue influence and unconscionable conduct in the High Court."
Journal of Equity 12, no. 1 (2018): 91-118.
10 Eldridge, John. "LAWFUL-ACT DURESS AND MARITAL AGREEMENTS." The Cambridge Law Journal 77, no. 1
(2018): 32-35.

unconscionable conducts and other relevant factors extended beyond the consideration of
circumstances associated to the formation of a contract to the terms of the contract itself .Section
22 provides a range of factors that might be considered by the courts in this case when
determining whether a conduct is unconscionable.11
If Thorne is given her full autonomy a different picture emerges. This requires permitting
Thorne to assess for herself how the relationship with Kennedy would pan out. Thorne believed
that she would never leave Kennedy12. She never contemplated that he would leave her and given
that the incentive structures within the agreements were designed to keep her in the relationship
this would have made sense at the time she signed the agreements. In this context, her decision to
ignore independent advice is rational, though not prudent. It is undeniable that the agreements in
Thorne were unreasonable. There is no doubt that Thorne would have been in a difficult
situation, but she knew that an agreement preserving Kennedy’s financial interests was always
going to arrive. More to the point, he had been consistent as to the nature of that agreement, if
not its details. The agreement placed Thorne in a position in which she could not achieve her
best.
As suggested earlier , a finding of unconscionable conduct leaves a very little space for
shades of grey. Therefore , there might have been unconscientious and discrimination or
basically the doctrine is not applicable . Jason Fee argues that a doctrine that does not admit any
role for ambiguity within the application of its rules is responsible to the shoe-horning into
preassigned responsibilities13 . This implies that one party ought to the hapless victim and the
11 Rajapakse, Pelma, and Jodi Gardner. "The Unconscionable Conduct and Consumer Protection in Subprime
Lending in Australia." Banking & Finance Law Review 29, no. 3 (2014): 485.
12 John Eldridge, "LAWFUL-ACT DURESS AND MARITAL AGREEMENTS." The Cambridge Law Journal 77, no. 1 (2018):
32-35.
13 Jason Fee, "Undue Influence: Inspirations from Australia." Hong Kong LJ 48 (2018): 375.

other party of the villain. Basically, by reviewing the claims in the case of Victoria and Bruce ,
the court ought to fit both parties into a narrative structure that is compelled by the doctrine . The
risk is that the reality of the relationship between relationship and the bargain may be distorted .
This is the same narrative choice made in the judicial telling in the case Thorne v Kennedy 14.
The collective impact of denying Victoria her independence , fails to consider that she
might have had some financial motivations to seek a better life , and interpreting any ambiguity
in the case against Kennedy. All adding up to the distortion of the facts of what developed
between the parties . Another telling of Bruce and Victoria is that Thorne was reckless in a
manner that she pursued her association with Kennedy. Victoria closed her eyes to the risks
entrenched in the agreement with Bruce and not because of the fact that she was powerless , but
because her desire to enjoy the lifestyle and status that allowed her to be in the relationship. For
his part Bruce can be considered not as an opportunist predator15 . However , he went too far in
trying to preserve himself within the relationship. As a result, he was not accountable for fairness
towards Victoria in the event of the split . This is not unconscionable conduct . It is something
different , it is a narrative of both love and romance as well as wealth disparity.
Conclusion
Based on the case , unconscionable conduct necessitates a court to carry out a power
relationship between the involved parties This is something that requires a generally acceptable
telling of what developed between the involved parties in in order to ensure that equity’s
intervention is felt and justified . As a result, the courts are invited to a polarized characterization
of the involved parties Both cases of Thorne v Kennedy and Louth v Diprose share similar
14 Ryan Thomas. "Financial agreements under the family law act: Tips for Practitioner's Post Thorne v Kennedy."
Bulletin (Law Society of South Australia) 40, no. 10 (2018): 14.
15 Felicity Maher, "Clarity or confusion? Duress, undue influence and unconscionable conduct in the High Court."
Journal of Equity 12, no. 1 (2018): 91-118.

aspects as the case of Bruce and Victoria where the judges opted for a sympathetic standpoint of
one party and harsh verdict on the other. As a result, the High court mainly accepts the narrative
provided by the judge even though there were gaps in it. The results is a case that fall between
the two doctrines . the results of the case may be right , but the way in which the story has been
presented was not entirely right. Bruce and Victoria is a challenging case that ask complex
questions regarding the doctrine of unconscionable conduct . Even though it might be beyond the
immediate scope for this paper , the example cases of Thorne v Kennedy and Louth v Diprose
are explicit departure from KaKavas and Wu .Arguably , Thorne is a case where Bruce honesty
revolves around the intentions as well as the nature of the association may even deprive the key
dealings of any significant form of exploitation .The doctrine of unconscionable conduct is well
developed in a manner that it captures predatory conducts The concept of unconscionable
conduct is well-designed to show predatory conducts which speaks to a high level of moral
obloquy.
Bibliography
Du Plessis, Jacques. "Protecting consumers against unconscionable conduct: Section 40 of the
Consumer Protection Act 68 of 2008." THRHR 75 (2012): 26.
Eldridge, John. "LAWFUL-ACT DURESS AND MARITAL AGREEMENTS." The Cambridge
Law Journal 77, no. 1 (2018): 32-35.

Fee, Jason. "Undue Influence: Inspirations from Australia." Hong Kong LJ 48 (2018): 375.
Maher, Felicity. "Clarity or confusion? Duress, undue influence and unconscionable conduct in
the High Court." Journal of Equity 12, no. 1 (2018): 91-118.
Thampapillai, Dilan. "Archetypes of Age and Romance: Unconscionable Conduct and the High
Court in Thorne v. Kennedy." U. Queensland LJ 37 (2018): 299.
Thomas, Ryan. "Financial agreements under the family law act: Tips for Practitioner's Post
Thorne v Kennedy." Bulletin (Law Society of South Australia) 40, no. 10 (2018): 14.
Thompson, Sharon. "Thorne v Kennedy: why Australia's decision on prenups is important for
English law." Family Law 48 (2018): 415-419.
Rajapakse, Pelma, and Jodi Gardner. "The Unconscionable Conduct and Consumer Protection in
Subprime Lending in Australia." Banking & Finance Law Review 29, no. 3 (2014): 485.
Cases
Thorne v Kennedy [2017] HCA 49; (2017) FLC 93-807
Commercial Bank v Amadio (1983) 151 CLR 447 at 474.
Diprose v. Louth (No.2) (1990) 54 SASR 450,
Act
Australian Consumer Laws (ACL)
Family Law Act 1975. No. 53, 1975.