F-unconscionable?

Posted on Jul 25, 2018 | 0 comments


This is the third post in 4 months with an “f-word” theme. In part it demonstrates that we have moved on from obscene language in Adelaide in 1979. It is also topical with the Banking Royal Commission in full swing. The use of the “f-word” was one of the matters that led to Beach J finding that Westpac had engaged in unconscionable conduct in his 2539 paragraph judgment in ASIC v Westpac (No 2) [2018] FCA 751.

It was the following recorded comment by the bank’s head of global treasury that caught ASIC’s attention [at 996]: “I knew it was completely wrong but I thought f*** it, I may as well f*** it.  We’ve got so much money on it, we just had to do it, right.  Just had to be done.”

His Honour did (at [937]):

“….say something concerning the vernacular of the traders. And it concerns the use of the “f***” word and its various derivatives. There is little doubt that linguistic Darwinism has favoured the English language. And part of its natural advantage springs not only from its capacity to either create vocabulary or unashamedly appropriate it from elsewhere, but its subsequent diverse and rich deployment. The “f***” word and its use by the traders in the present context is a classic example. It has been used as both a transitive and intransitive verb. It has been used in an active sense and a passive sense. It has been used in the past tense and the future tense. It has been used as an adjective. It has been used as a noun including as a verbal noun. Someone even tried to use it as an adverb. Occasionally it has been deployed not in any context that a formal grammarian would encourage, but simply to reflect an emotional response. Sometimes disappointment or exasperation, sometimes pleasant surprise or even admiration. Sometimes criticism, sometimes positive reinforcement. Even more occasionally, it has been used to indelicately communicate the thought that caution was being thrown to the wind. Clearly, the “f***” word and its derivatives are not terms of art in the finance industry. Nevertheless, their use in otherwise polite conversation appears to have been well understood by the colourful interlocutors.”

There were submissions on what the global treasury head had meant by his comments. His Honour found:

(at [1007]): “….But I am more inclined to the view that he was acknowledging that he was doing something wrong.”;

(at [1010]): “It is contended that his use in this sentence, twice, of “f*** it” was not as an active verb but rather as a statement that he had “no option” but to hedge his exposure to the RBA decision by reducing his risk position. That is, he was saying that he thought he may as well hedge the risk position given its size and the uncertainty of the RBA decision and the words “f*** it” were exclamations reflecting his thought process – as in “to hell with it” or “I may as well take the chance”. Now Westpac accepts that there is no discernible pause between “I may as well” and the second “f*** it”, but it says that grammatically a pause is not necessarily required and, in any event, both Mr XXX and Ms YYY were speaking so rapidly and informally and so much over the top of each other that the absence of one is unremarkable.”; and

(at [1012]) “I disagree with Westpac’s analysis. True it is that Mr XXX’s use of the “f***” word and its derivatives was rich and diverse. He had a sense for every occasion. But it seems to me that on balance the f*** word was being used here with its classic active transitivity.”

So, what does all that mean? That there was unconscionable conduct (obviously, I think).

Creative commons acknowledgment for the photograph

 

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