A conceptual divide, while not necessarily consistent with the distinction between common law and civil law, exists between systems based on an “unjust factor” approach and systems based on an unfounded approach. The previous authority of the High Court was established in 1987 when the High Court decided in Pavey & Matthews v Paul [1987] 162 CLR 221. This decision was groundbreaking because it recognized that unjust enrichment included the obligation of a defendant to return just and equitably an advantage obtained at the expense of a plaintiff. In order to determine whether the defendant`s enrichment to the plaintiff`s detriment was unjustified, it is necessary to take into account the defined categories of unjust enrichment recognized in previous cases. The most common form of unjust enrichment is erroneous payment or money paid for failed consideration. Cases of unjust (or unjust) enrichment can be investigated in the following ways: Unlike other equitable actions, liability after unjust enrichment has been established is strict and independent of the defendant`s fault, and is therefore a liquidated claim.10 as Birks understood. There is good reason to say that Justice Gummow`s analysis of the fairness of the claim was not part of the ratio decidendi of the decision. One would have expected the other majority to have expressly agreed with this part of his judgment if it truly reflected the views of each. Judge Gummow`s analysis of the action ultimately goes to the foundations of unjust enrichment in Australia and should therefore not be concealed.
It may therefore reasonably be inferred from the absence of a direct examination of that question by the other judgments that those judges did not intend to take account of an argument which was not necessary for the outcome of the dispute. In general, the mere use of one service by another is not reprehensible and has no legal consequences. An exception applies if this acceptance is “unfair” or “unjustified”. Both the civil and common law legal systems have remedies to reverse this enrichment. [Professor Peter Birks has made significant contributions to the development of private law in Australia. This article traces Birks` reflections on unjust enrichment through notable High Court decisions, including Pavey and Roxborough. This is done from the perspective of Birks` own ideas on the subject as they have evolved over the years. This article concludes that Australian private law is not the dark and undifferentiated law of injustice – based on unscrupulous conduct and no special place for unjust enrichment – that Birks proposed. Rather, it is partly thanks to Birks` contributions that Australian law is better structured than he perceived.] Given the special role that justice plays in Australian private law and the established tradition of the science of fairness, it was foreseeable that Birks` views would encounter strong disagreement. It was also likely that the reaction would be vigorous, especially since he expressed his ideas energetically and often combatively. Less predictably, the Supreme Court decision, which would trigger debate about the just nature of unjust enrichment, would be a common law decision on the return of money. The North Dakota Supreme Court ruled that five elements must be demonstrated to prove unjust enrichment:[24] The High Court`s decision in Pavey recognized the concept of unjust enrichment as a uniform legal concept across Australia.
[16] The case can also be seen as a weather vane for changes in Birks` views on how to understand unjust enrichment. The decision was warmly welcomed in the revised edition of An Introduction to the Law of Restitution, where Birks stated: Birks had a keen interest in Australian private law. Australian colleagues and students at Oxford have drawn his attention to the cases and developments, as have his many friends. However, his interest was largely self-generated. Supreme Court decisions on unjust enrichment have been greeted with enthusiasm or treated with anger at various times, but they have always been carefully dissected. They were never received with indifference. Pavy`s successive reanalyses provide a good example of Birks` intellectual anxiety in trying to find more satisfactory explanations for cases where calmer writers would not have been inclined to question the orthodox explanation. For Birks, a good presentation of the law was never enough if a better one could be found. It is doubtful whether Pavy`s recent rationalization will be accepted with regard to the re-terminability of the construction contract. It is based on a model of unjust enrichment based on the “lack of foundation”[29] of enrichment that common law jurisdictions, including Australia, have not adopted, regardless of their attraction to civil justice. [30] The explanation also revolves around a fact, namely the resiliability of the construction contract, which was never directly examined by the High Court.
Moreover, for better or worse, “free acceptance” may be too deeply entrenched in Australian law as a basis for reimbursement of services requested to be replaced by other explanations. It is doubtful whether the High Court has embarked on a policy of innovation in restitution law that goes beyond eliminating well-known cobwebs such as the “error of law” rule. But in any event, any illusion that the Court would take the initiative to remove doctrinal obstacles to the recognition of a coherent right to unjust enrichment was quickly dispelled. Baltic Shipping Co v Dillon[39] confirmed the survival of what the perpetrators of unjust enrichment considered two relics of the pre-unfair enrichment for money action. A more difficult method of balancing the claims of the payer and the payee, where both have benefited from a defective transaction or terminated contract, is to award the claimant a partial non-consideration refund, offset by a counter-reimbursement to the defendant for the benefits granted to the claimant. [46] This article is not intended to supplement the obituaries[3] or to assess Birks` influence on the development of private law. Suffice it to say that Birks` influence on the science of private law has been immense. In particular, through his writings and lectures, he has demonstrated ways of thinking about jurisprudence that have been applied by many who disagree with his opinions and those who agree with them. Nevertheless, it is still too early to measure the influence of his writings on the development of jurisprudence.
This article pursues the more modest objective of tracing the evolution of his private law thinking on the basis of the relevant decisions of the High Court on unjust enrichment. It seeks to examine unjust enrichment from the perspective of Birks` own ideas on the subject, as they have evolved over the years. Alternative analyses of unjust enrichment (which are not lacking in Australia or elsewhere) are only relevant to the extent that they persuaded Birks to modify, refine or formulate his views more forcefully in response. Birks` image of private law in Australia as an undifferentiated right of injustice, based on unscrupulous conduct and no particular place for unjust enrichment, is exaggerated. Fair and legal protection against various types of unscrupulous conduct contributes to private law, but does not exclude claims, for example those arising from contract and restitution, which are manifestly non-tortious in nature. If the law of obligations in Australia is better structured and perhaps even more boring than he thought, it can be credited with some of the credit for this state of affairs. Birks took the organization of private law seriously and, by his example, encouraged judges and writers to do the same. However, it is clear from the recent High Court decision in Farah Constructions Pty Ltd -v- Say-Dee Pty Ltd [2007] HCA 22 that the categories of unjust enrichment cannot be extended to acts which could subjectively be regarded as unjust or unscrupulous. The High Court`s decision made it clear to all lower courts that the reasoning of the Court of Appeal of the Supreme Court of New South Wales was flawed and should not be applied in subsequent cases. To this author, who was not familiar with him, it always seemed that Birks did not know whether Australian cases of unjust enrichment should be incorporated into his preferred engagement model or considered the kind of law his model opposed.
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