Graham Virgo: We often say, when we approach equity, that the equity jurisdiction is a jurisdiction
which is based on conscience.
But what does that actually mean?
What do we mean when we talk about conscience and the flipside of unconscionability?
Now sometimes, conscience simply refers to the conscience of the judge;
and this is an idea of vagueness and enabling the judges to get whatever result the judge wants.
I think, however, when you start analyzing what we mean by conscience and unconscionability,
there is more to it than that.
It isn't just turning on the whim of the judge.
Conscience and unconscionability actually refers to standards of behaviour,
that we can apply when we look to assess the defendant's conduct.
Equity is actually triggered by what we determine is unconscionable conduct.
Now that's quite easy to say.
It requires careful unpacking to determine what we actually mean by unconscionability.
Does it turn on what is going on in the defendant's own mind-
a subjective notion of unconscionability?
Or is it more about objective standards? And the objective standards of society,
which determines what unconscionable conduct is.
As you work your way through this book, you're going to find loads of examples of conscience
and unconscionability used.
Sometimes in a subjective sense, sometimes in an objective sense,
and sometimes just using conscience and unconscionability
almost as a conclusion; where a judge applies the law
and then says—as if to bolster the result that they've reached,
“Oh! And this means the conduct is unconscionable
or the defendant’s conscience has been affected.”
Now, as you work your way through the law, think carefully
about which sense of conscience and unconscionability is being used;
and also then reflect on whether you are satisfied with the interpretation
that's being adopted, and if not, how it should be improved.