Time to Bite the Proverbial Bullet - Unjust Enrichment in Australia

LAWS 5125 UNJUST ENRICHMENT TIME TO BITE THE PROVERBIAL BULLET An analysis of the High Court of Australia’s approach towards the idea of unjust enrichment and whether the idea should be formally accepted. STACEY ANNE FERNANDEZ 42979058

42979058 Stacey Anne Fernandez A. INTRODUCTION The scepticism that the High Court of Australia has directed towards unjust enrichment has been widely documented. One account of the status of unjust enrichment in Australia refers to it as “an alien intruder” that “disrupted the careful development of the common law”.1 Despite recognising unjust enrichment as a “unifying legal concept”, 2 the High Court appears to prefer more traditional forms of action in analysing restitutionary claims.3 The particularly cold reception accorded to the concept of unjust enrichment by individual members of the High Court of Australia in the twenty first century is evidenced in the landmark decisions of Roxborough v Rothmans of Pall Mall Australia Ltd 4 and Farah Constructions Pty Ltd v Say-Dee Pty Ltd. 5 Could the High Court’s approach to unjust enrichment be reflected as “cold but warming”? This writer believes that this description is accurate to a large extent. Although the concept of unjust enrichment continues to be negatively associated with “top-down reasoning”,6 some more recent decisions suggest that the concept may have some positive role with a taxonomical function,7 normative significance and explanatory power.8 Given the High Court’s hostility toward unjust enrichment, it may be said that the concept is yet to be formally part of Australian law. If unjust enrichment is to be formally accepted, the following questions need to be answered: To what extent should the concept be adopted? What role should it play? Should there be any restrictions on its scope and operation?

1

James Edelman, ‘Australian Challenges For The Law Of Unjust Enrichment’ (Speech delivered at the Summer School, University of Western Australia, 24 February 2012)...