rather than whether the innocent party actually had their will overborne”, that
submission is too narrow. Again, ACM18 (No 2) provides a good illustration, where in
upholding the coercion claim, Griffiths J plainly had regard to the effects of the pressure
brought to bear on the debtors, including their subjective feeling of negation of choice:
ACM18 (No 2) at [272]. In McCaskey at [51], French J referred to “the manner or
circumstances of a demand or communication, including the language used, the time
and place at which it is made and the person to whom it is communicated”. This reflects
that the characteristics of the consumer, and the effect on them, in the circumstances in
which the communication was made, are relevant to the assessment of whether the
conduct undertaken amounted to coercion. That said, the question of the effect of the
conduct on the consumer is only one of a number of relevant considerations. It does not
change the nature of the inquiry. As the analysis in ACM18 (No 2) reflects, attention
must be directed on the conduct of the person making the representations, in the
circumstances and in the context in which that conduct occurred. As apparent from
[272] of ACM18 (No 2) (recited above), Griffiths J concluded, having considered the six
points raised, that the representations, considered in context, constituted coercion.
365. ASIC, in support of its submission as to the scope of coercion, sought to draw an analogy
between coercion and duress, noting that duress has moved beyond the idea of a
physical threat or act and, for example, there is now a well-recognised category of
economic duress. It was submitted that there is an analogy between duress and coercion
in that some illegitimate act has negated the free will of the consumer and, in
considering that issue, it is necessary to understand how the consumer felt in the context
of the transaction. ASIC contended that it can involve some other “illegitimate means of
persuasion”. To put it another way, it was said that duress, like coercion, can occur in a
number of ways (and is not confined to a physical threat). If that is the extent of the
reliance on the analogy, so much may be accepted. However, it is unnecessary to
consider that submission in any more detail as it was used to support the conclusions
already contended for by ASIC, relying on ACM18 (No 2), amongst others. As will be
apparent from the below paragraphs, those conclusions do not rely on ASIC’s
submission that there is an analogy with the concept of duress. That said, it is
appropriate to make four brief observations on this topic. First, care must necessarily be
taken with reliance on any analogy as this application involves the statutory concept of
coercion in the ASIC Act, not the common law notion of duress in the context of
contracts. As illustrated in Quantum, attention must be directed to the statute. The term
coercion is used, where this is one of a number of provisions in a suite of provisions
which address or provide for a statutory norm of corporate behavior. As the Defendants
submitted, the analogy is not precise. Second, following on from that, duress in the law
of contract is focused on whether it is unconscionable for a party who issued the threat
(or undertook the impugned conduct) to take benefit from the contract: Seddon N,
th
Cheshire and Fifoot Law of Contract (11 ed, Lexis Nexis Butterworths, 2017) at [13.5].
Its effect is to relieve the innocent party of being bound to the contract. That is different
from the purpose of s 12DJ. Third, in that context, care must also be taken of the
authorities relied on by ASIC, for example: Barton v Armstrong [1976] AC 104, Universe
Tankships Inc of Monrovia v International Transport Workers Federation [1983] 1 AC
366, Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19
NSWLR 40 and Westpac Banking Corporation v Cockerill [1998] FCA 43; (1998) 152
ALR 267 (Cockerill). Moreover, the passages referred to must be read in their proper
context. It is one thing to suggest that they illustrate that the courts recognised, in
respect to duress, acts of pressure encompassing a broader concept than a physical
threat. It is another thing to rely on them to change the approach to coercion in its
statutory form. I take from ASIC’s oral submission that it relied on them for the first
point, referred to above at [357], only. In so far as ASIC relies on the passage highlighted
in its written submissions from Cockerill which goes further than that, it was not
elaborated on in oral submissions. No such approach is referred to by ASIC as having
been applied in the statutory context of coercion. Finally, it must be remembered that
the statutory concept has been interpreted to involve compulsion. That concept of itself
requires there be some conduct, which is capable of compelling a person or applying
pressure to act in a particular way.
366. As ASIC correctly submitted, by reference to ACM18 (No 2), coercion can be established
by a combination of circumstances. The assessment of whether or not particular conduct
is coercive will depend on an overall impression or evaluative judgment, considered in
light of the surrounding circumstances. Those surrounding circumstances, as illustrated