The Honourable Justice Peter Applegarth AM recently delivered the 2020 W A Lee Equity Lecture on the topic ‘Credit and Unconscionability – The Rise and Fall of Statutes.’
Now in its 21st year, the W A Lee Equity Lecture is a calendar highlight for many members of Brisbane’s legal community. This year, due to COVID-19 restrictions, the lecture was presented to a small audience in the Banco Court and livestreamed as a webinar with over 400 online registrations.
The QUT Faculty of Law would like to thank the Honourable Chief Justice Catherine Holmes AC for chairing the evening and the Honourable Margaret McMurdo AC, Chair of the Queensland Community Foundation Board of Governors, for her kind vote of thanks.
Justice Applegarth BA, LLB (Hons I), BCL (Oxon) practised as a barrister from 1986 until 2008, when he was appointed to the Supreme Court of Queensland. He is a Fellow of the Australian Academy of Law, a Council Member of the Australasian Institute of Judicial Administration and Chair of the Queensland Law Reform Commission. In 2020 he was appointed a Member of the Order of Australia for his significant service to the law, judiciary and social justice.
His Honour explored how equity interacts with high-cost, short term credit. He examined how statutes like the Moneylenders Acts once regulated unconscionable lenders, but in recent times, legislation has incorporated the “unwritten law” that is Equity and then extended this to prohibit “unconscionable conduct”, more broadly defined.
Justice Applegarth identified some of the shortcomings of using legal remedies for unconscionable conduct to rectify what are, in essence, social problems of poverty, which demand a whole of society solution. He drew upon legal history and the work of Professor Patrick Atiyah about the tension between freedom of contract and the urge to protect, either in the form of equitable remedies against unconscionable conduct or statutory protections.
He also praised the work of a Cambridge-based scholar, Dr Jodi Gardner, who encourages us to think beyond freedom and protection to a third concept – the provision of welfare and a social minimum
His Honour ultimately concluded that:
“Removing social disadvantage, providing individuals and communities with the work, social safety nets and opportunities which they need to flourish is the task of governments and legislatures. Courts will not be called upon so often to rescue the poor and disadvantaged from improvident high-cost loans if the other arms of government provide a social minimum. That is a task beyond the power or the legitimate aspirations of even the most powerful court.”
The W A Lee Equity Lecture is held each year in honour of foremost equity and trusts academic and author, Honorary Professor W A ‘Tony’ Lee. Tony is the co-author of Principles of the Law of Trusts and was Commissioner for Law Reform Queensland between 1990 and 1996.
“It was exciting to host the 21st W A Lee Equity Lecture both in-person and online via the livestream. Although our guest of honour Honorary Professor Tony Lee could only join us virtually this year, he continues to be an integral part of the lecture series by selecting the lecture speakers,” said Professor Dan Hunter, Executive Dean of the QUT Faculty of Law.
Thank you to this year’s event supporters, the Queensland Law Society, Queensland Community Foundation, Bar Association of Queensland, Society of Trust and Estate Practitioners and QUT Faculty of Law.
Past lectures can be accessed in the QUT Law Review, the Faculty of Law’s open access journal.
The webinar is available below or via QUTube.