(i) Inequality Between the Parties

The first requirement is that the claimant was suffering from a special disability or was placed in a special situation of disadvantage as against the defendant, so that there is a reasonable degree of inequality between the parties. The function of this requirement is to identify those cases where, because of the special disadvantage, claimants are unable to exercise an independent and worthwhile judgment as to what is in their interests.[1] It is not possible to draw up a complete list of all situations where there will be a sufficient degree of inequality, since ultimately this is a question of fact. In Blomley v Ryan[2] Fullagar J usefully described the type of disability or disadvantage which is involved:

Among [these situations] are poverty or need of any kind, sickness, age, sex, infirmity of body or mind, drunkenness, illiteracy or lack of education, lack of assistance or explanation where assistance or explanation is necessary. The common characteristic seems to be that they have the effect of placing one party at a serious disadvantage vis-a-vis the other.

To this list may be added those cases where the claimant does not understand English very well,[3] where the claimant is in an emotional state following marriage breakdown,[4] and even where the claimant is infatuated with the defendant.[5] [6] [7]

  • [1] Australian Competition and Consumer Commission v CGBerbatis (2003) 214 CLR51, [12] (Gleeson CJ),[55]—[56] (Gummow and Hayne JJ), [184] (Callinan J).
  • [2] (1956) 99 CLR 362, 405. For analysis of some of these situations, see p 283, below.
  • [3] The Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447.
  • [4] Backhouse v Backhouse [1978] 1 WLR 243. 189 Louth v Diprose [1992] 75 CLR 621.
  • [5] 190 [1985] AC 1000. 191 See Chapter 14. 192 Hart v O’Connor [1985] AC 1000, 1028.
  • [6] 193 Ibid. See also Boustany v Piggott (1993) 69 P and CR 298 (PC).
  • [7] 194 Portman Building Society v Dusangh [2000] EWCA Civ 142, [2000] 2 All ER (Comm) 221; Jones v
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