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The obligation is a creation of the law, just as much as an obligation in tort. The obligation belongs to a third class, distinct from either contract or tort, though it resembles contract rather than tort.

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This statement of Lord Mansfield has been the basis of the modern law of quasi-contract, notwithstanding the criticisms which have been launched against it. Like all large generalizations, it has needed and received qualifications in practice. There is, for instance, the qualification that an action for money had and received does not lie for money paid under an erroneous judgment or for moneys paid under an illegal or excessive distress. The law has provided other remedies as being more convenient. The standard of what is against conscience in this context has become more or less canalized or defined, but in substance the juristic concept remains as Lord Mansfield left it.

Brougham closed the door to any theory of unjust enrichment in English law. I do not understand why or how. It would indeed be a reduction ad absurdum of the doctrine of precedents. In fact, the common law still employs the action for money had and received as a practical and useful, if not complete or ideally perfect, instrument to prevent unjust enrichment, aided by the various methods of technical equity which are also available, as they were found to be in Sinclair v.

It is clear that any civilized system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is to prevent a man from retaining the money of or some benefit derived from another which it is against conscience that he should keep. Such remedies in English law are generically different from remedies in contract or in tort, and are now recognized to fall within a third category of the common law which has been called quasi-contract or restitution.

The authors placed unjust enrichment as a legal concept, a unifying legal concept explaining why the law recognises an obligation to make restitution. Before his untimely death at 62 in , he had mapped and remapped the law of restitution entering the lists to do battle of a theoretical and taxonomical kind with those who would oppose the re-ordering or re-classification of the law of obligations with restitution and unjust enrichment at its centre. He was an inspiring teacher who was unafraid to reconsider this view.

His views rejected the equitable influence implicit in the language of Moses v Macferlan and taken up in the United States and Australia. He preferred a structure based on strict liability, subject to specific defences articulated without a penumbra of discretion. Birks' influence has been strong in England, but the High Court has preferred a more flexible approach influenced by equitable principles.

Nevertheless, together with Goff and Jones, Birks was one of the modern British pioneers in this scholarship. He influenced the first great Australian work on the subject: Mason and Carter: Restitution Law in Australia published in To appreciate the force and clarity of the change in , one should appreciate that only nine years previously, in , Lord Diplock had denied in Orakpo v Manson Investment Ltd [95] the separate existence of a doctrine of unjust enrichment.

Before turning to that Australian development a digression is necessary to see how the law had developed in the United States; and to reflect on the place of Equity in all this. That influence of Maine extended to the Indian Contract Act which reflected this sentiment. Maine was a member of the Governor's Council in India.

The source of the language and structure was from the work of Ames, and Ames' use of unjust retention:. It focused on Keener's third species: unjust enrichment. The Supreme Court, in a number of cases in the 20 th century, recognised that the origin and function of the action was in equitable conceptions, [] even if the action was strictly at law. In one of those Supreme Court cases, [] the Court set out with approval the expression of the matter in by the Supreme Judicial Court of Massachusetts in Claflin v Godfrey. The action is assumpsit for money had and received by the defendant to the plaintiff's use, and for money paid by the plaintiff for the defendant's benefit.

This is often called an equitable action and is less restricted and fettered by technical rules and formalities than any other form of action.


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It aims at the abstract justice of the case, and looks solely to the inquiry, whether the defendant holds money, which ex aequo et bono belongs to the plaintiff. It was encouraged and, to a great extent, brought into use by that great and just judge, Lord Mansfield, and from his day to the present, has been constantly resorted to in all cases coming within its broad principles. It approaches nearer to a bill of equity than any other common law action. The claimant to prevail must show that the money was received in such circumstances that the possessor will give offense to equity and good conscience if permitted to retain it.

The work whose reporters were Professors Seavey and Scott, was comprehensive in its scope, dealing in part 1 with the right to restitution, in quasi-contract and kindred equitable relief, and in part 2, with constructive trusts and analogous equitable remedies. It was marked, as Lord Wright said, [] by "elaborate organisation" and "exact analysis".

A person who has been unjustly enriched at the expense of another is required to make restitution to the other. I do, however, wish to make some remarks on the place of Equity that was recognised by the Restatement. Aspects of Equity's jurisdiction can be seen as coherently founded on the remedying of unjust enrichment: the reconveyance of property conveyed by mistake or pursuant to fraud or duress or oppression, often, but not always concerned with land; [] the development of the resulting trust when property was purchased with funds of another or conveyed without consideration or after the disposition of only a legal interest; [] breach of confidence or duty in holding funds as agent; [] the restoration of property where the purpose for its transfer had failed; [] relief against undue influence and unconscionable bargains; contribution, subrogation and marshalling.

These were some of the core areas of Equity. The 19 th century saw the development, not always coherently, of implied, resulting and constructive trusts, and rules of tracing, often dealing with claims for restitution or payment or disgorgement that had similar or analogous remedies at law. Its separate maritime, international and civilian sources were and are important for its doctrinal coherence.

Concepts of general average and salvage familiar to maritime law had as a significant informing principle the prevention of unjust enrichment. A brief outline is, however, necessary. The Court emphasised that the requirement for injustice did not involve judicial discretion.

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First, the notion of unjust enrichment is not the statement of a premise or principle of recovery, rather it is an informing principle or unifying or organising concept. The defences to an order that may prima facie lie from the existence of a vitiating or unjust factor reflect that development. A broad defence of change of position on the faith of the receipt has been developed []. The defence of the recipient being a purchaser for value, such as the discharge of an existing debt, can be made out in some circumstances [].

Whether that defence has the width that it has in the United States is an open question []. Equitable principles and notions inform the law of restitution; but the extent to which the concept of unjust enrichment is to be equated with good conscience [] and how that affects equitable principles and remedies based on unconscionability or other related equitable notions remains to be seen. In light of such changes, it is difficult to maintain, as a proposition that is universally defensible, that principles of common law and equity must, at all times, remain as separate streams in separate river beds.

It always assists. It has been invaluable in constructing this paper. Its thematic conceptual approach illuminates underlying principles and moving forces with great clarity. For a general introduction to quasi-contract and restitution, see the early editions of Goff and Jones The Law of Restitution Sweet and Maxwell authored by those scholars. Somewhat curiously, the recent authors do not see the need for any historical analysis.

As an essential foundation, see Holdsworth History of English Law "HEL" vol 3 at ; vol 6 at ; vol 8 at ; and Fifoot History and Sources of the Common Law ; Greenwood Press at , , ; and the other sources mentioned herein. That procedure and the practical exigencies of vindicating rights have a subtle, but real, influence upon the form and expression of substantive law should be recognised, not just as an historical phenomenon, but as a contemporary one, though it is not often the subject of discussion.

Ames' two articles on the history of assumpsit in 2 Harvard Law Review 1 and 53, remain rewarding and, on this topic, essential reading of a truly great lawyer and legal historian. Fairbairn Lawson Combe Barbour, Ld. Accessibility Links Skip to main navigation Skip to sub navigation Skip to main content. Search Field.

Powers of a Registrar. Email Updates Register to receive daily court lists by email soon after they are published. Judges' Speeches Including Welcome and Farewell ceremonies. What is a Notice to Produce? Guides Electronic litigation Videoconferencing Preparing documents for the Court. Judges' Speeches By former Judges. Annual Reports. In one text it was said: [3] For this by nature is equitable, that no one be made richer through another's loss.

The importance of procedure at this time to the development of the substantive law was expressed by Sir Henry Maine when he said: [5] That substantive law has first the look of being gradually secreted in the interstices of procedure. As Holdsworth beautifully put it: [14] The manner in which at different periods the common law has treated these various obligations has tended to obscure their real nature. Thus, in Slade's Case it was stated: [22] …every contract executory imports in itself an assumpsit , for when one agrees to pay money, or to deliver any thing, thereby he assumes or promises to pay, or deliver it, and therefore when one sells any goods to another, and agrees to deliver them at a day to come, and the other in consideration thereof agrees to pay so much money at such a day, in that case both parties may have an action of debt, or an action on the case on assumpsit , for the mutual executory agreement of both parties imports in itself reciprocal actions upon the case, as well as actions of debt, ….

In Starke v Cheeseman [29] he said: The notion of promises in law was a metaphysical notion, for the law makes no promise, but where there is a promise of the party. Blackstone attempted to rationalise the agreement as a societal one [34] : …an implied original contract to submit to the rules of the community whereof we are members. As Holt CJ had said in Starke v Cheeseman [35] , the notion of promises in law was metaphysical; and as he said in City of York v Toun : [36] How can there be any privity or assent implied when a fine is imposed on a man against his will?

In Clarke v Shee [39] , Sadler v Evans [40] and Jestons v Brooke [41] Lord Mansfield described the action as respectively: A liberal action in the nature of a bill in equity; and if, under the circumstances of the case, it appears that the defendant cannot in conscience retain what is the subject-matter of it, the plaintiff may well support this action.

The notion of "equity" was to be understood, he said, as describing the width of the common law action: [58] There is now no ground left for suggesting as a recognisable "equity" the right to recover money in personam merely because it would be the right and fair thing that it should be refunded to the payer.

8. Australian remedies: misappropriation and other defaults

A general defence of change of position was rejected and Hamilton LJ, speaking of Lord Mansfield, said: [59] Whatever may have been the case years ago, we are now not free in the twentieth century to administer that vague jurisprudence which is sometimes attractively styled "justice between man and man. Then, in June , in the depths of the war, Lord Wright in Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd [80] , speaking in the context of the remedy available upon frustration, was lucidly defiant about the value of what Lord Mansfield had said in Moses v Macferlan : Lord Mansfield does not say that the law implies a promise.

The source of the language and structure was from the work of Ames, and Ames' use of unjust retention: …fundamental principle of justice that no-one ought unjustly to enrich himself at the expense of another. Ames' two articles on the history of assumpsit in 2 Harvard Law Review 1 and 53, remain rewarding and, on this topic, essential reading of a truly great lawyer and legal historian [8] What follows owes much to Maitland, The Forms of Action at Common Law ; Cambridge University Press ; and Holdsworth A History of English Law Sweet and Maxwell vol 3 5 th Ed ch 3, vol 8 2 nd Ed ch 3, and vol 12 at Sub pages By former Judges.

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The period covered is to — from Federation and the creation of the Commonwealth on 1 January to shortly after the Second World War in The opinions include significant advices signed by the Attorneys-General in this period, beginning with Alfred Deakin , the Commonwealth's first Attorney-General from —03 and second Prime Minister , and ending with Herbert Evatt , Attorney-General from — Apart from their legal value and significance, they throw light on the development of the Australian nation over this period.

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The following is a list of highly regarded textbooks on Australian law compiled by lawyers attending a conference to commemorate the 80th publication year of the Australian Law Journal. The list was to be expanded and then finalised with an announcement of the top ten later in , however, this is yet to be completed:. A brief overview of the origins of the journal ranking, including a breakdown of certain specialist law journal rankings may be viewed online: Specialist Law Journal Ranking, Part Three: Specialist Law Journal Ranking.

A free listing of journals and, where available, the full text of their articles may be found on the AustLII site together with Law Journals and Legal Scholarship associated with the Colonial Period. Currently there are 25 periodicals available on the site and additional titles are being added to the site progressively.

8. Australian remedies: misappropriation and other defaults | ALRC

Informit offers both a full text service and a separate abstract service. In August version 1. The National Library Trove provides access to over Newly digitised articles are added daily. Digitised newspapers and more on Trove includes newspapers from each state and territory and from the earliest published newspaper in , to the midth century, including some community language newspapers.

Many of these historical newspapers are a vital source of information for legal historians. The National Library Australia - Trove - an online search service, which enables you to search across the combined catalogues of Australian libraries - national, state, public, university, TAFE and government - with one search. It stands for Commonwealth, indicating that law is valid and applicable in the entire Commonwealth of Australia. Table of Contents 1. Introduction 2. Parliament of Australia 3. The Executive Government 4.

The Judiciary 5.

Cheshire & Fifoot Law of Contract, 11th Australian edition

Courts and Judgments 6. It can have implications in terms of customary law. Under Australian law betrothed parties cannot be forced together in marriage. Traditional law does not support such force either. But Indigenous Australians who practice customary law need to have a clear understanding of what constitutes consent under Australian law, including the age of consent. Consent messages continue to be an important component of school curricula.


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  5. These messages are necessary for all Australians, not just Indigenous Australians. But we need to be sure that these same messages are being appropriately transmitted right across Australia in a language and a format that is understood by diverse Indigenous communities. Societies change and different norms evolve over time, and this is precisely why the common law system is designed to reflect changing societal customs and norms.

    The same is true with customary law. Telecommunications is bringing new cultural messages to places that did not have access to this form of information ten or fifteen years ago.

    Scouts Australia Consultation - Principles, Promise & Law

    In some instances young people are rejecting the customary way of life. This too must be respected and brought into balance at the community level. We need to make clear that the different legal systems are not at cross purposes. One can, and must, support the other. I have put my hat in the ring to provide this form of education. I have made various proposals to the federal government for human rights education to be conducted in collaboration with Indigenous peoples. Unfortunately these bids have not been funded to date. I plan to keep putting forward these proposals because this kind of human rights education is a vital part of an educative process to bring systems of knowledge together.

    I believe that there is limited, if any, information reaching Indigenous communities about the Australian legal justice system and about individual civil rights as defined by human rights standards. In many cases, the only information that Indigenous people have about the Australian legal system is when they come into contact with it as offenders, or as the families of offenders. I have been doing human rights education work in other contexts. While the parallel is not exact - As part of my responsibility as national Race Discrimination Commissioner I put in a successful funding submission to develop human rights resources for Muslim communities.

    Part of the purpose for this project is to overcome discrimination in Muslim communities. It is disappointing that while some human rights projects have been funded with the understanding that they promote cohesion and reciprocal understanding across the cultural divide, similar projects have not been funded for Indigenous peoples and communities. The bridge needs to be formed between black and white, urban and remote, and between young and older generations.

    In some communities the younger generations are being informed about the Australian legal systems and their civil rights through school education while the older members of communities do not have the same access to formal education. A disjunction in knowledge and information-access is emerging between the generations. This means that there are different levels of understanding within communities. As we know from our own experience — you have to know the law in order to be able to comply with its rules and obligations. With regard to the Australian legal system, I also want to make the point that it has its own checks and balances.

    Public prosecutors have consistently appealed cases where inadequate weight was given in sentencing with regard to the seriousness of the offence. This was the case in the GJ case, in which the initial sentence was increased in severity due to the view of the full court that the original sentence was manifestly inadequate and that the incorrect balancing act had been made.

    In my view, what really needs to occur in terms of bail and sentencing decisions is thorough education of the judiciary and the wider public about the true nature of customary law. The Law Council of Australia outlines the context for considering custom in sentencing. In the context of an Indigenous offender, it is relevant to consider whether the offender observes a traditional lifestyle and lives according to the customary laws of his or her community.

    In some cases, evidence of the customary background of the offender may mitigate the severity of the offence, and corresponding punishment. It may in some circumstances also be a relevant consideration that the offender has undergone traditional punishment in accordance with customary law. Culture and context are important aspects of mitigation. By ignoring payback, Indigenous offenders can be put in a situation of double jeopardy. These matters are balanced against community concerns such as the importance of protecting vulnerable members of the community and providing a reasonable deterrent against such behaviour.

    First, I observe that many communities operate despite the existence of the non-Indigenous legal system or effective policing of any kind. I note that earlier this month, Minister Brough initiated a review into the policing levels in remote communities. What I do know is that out of 40 Indigenous communities across central Australia, only eight have some sort of police presence.

    Four of these communities do not have a police station in the community, only one close-by. Some police stations are at least a two-hour drive away. Certainly, if there is one thing that the statistics on family violence and child abuse in communities highlights to date, it is the failure of the non-Indigenous legal system to effectively support communities requiring intervention.

    Second, while it has been open season on customary law, few commentators have chosen to reflect on the failures of the criminal justice system in its relationship with Indigenous people. There is cause to reflect on this, particularly this year, the 15th anniversary of the Report of the Royal Commission into Aboriginal Deaths in Custody. This report highlighted deficiencies across a non-Indigenous legal system that was literally killing too many of the Indigenous people who came into contact with it; and a report for which far too few of its recommendations have been implemented.

    In fact little has changed in the fifteen years since the report was published. Indigenous women and young people are being incarcerated at record rates, and the rates are growing alarmingly, and the number of Indigenous deaths in custody has actually increased over the period to As has so often been observed, the separation between Indigenous 'victims' and 'offenders' is not clear. In reality many Indigenous people in the criminal justice system are both offenders and victims, just as - tragically - much of the violence perpetrated against Indigenous people is by other Indigenous people; many of whom have been victims too.

    According to the Australian Bureau of Statistics, there were 5, Indigenous people in jails across Australia in the December quarter, This constitutes a rate of 2, per , of the adult Indigenous population. By comparison, the average daily imprisonment rate for all Australians is prisoners per , of the adult population. Approximately 22 percent of prisoners in Australia today are Indigenous [11] while in when the Royal Commission reported; Indigenous peoples comprised 14 percent of the prison population.

    There is obviously a debate that needs to be had to address the complex issues regarding Indigenous justice and law, but complex issues require well thought out solutions. The best solutions in cross cultural settings are multi-faceted. They do not favour one system to the exclusion of the other. In terms of law and order issues in communities, one cannot neatly separate out what are the causes and what is the effect. What we can do however, is look to what has worked, and look to examples where here have been positive outcomes.

    We have to take the guess work out of approaches. There is too much at stake. There is an urgent need for well evaluated data that tells us what we can expect under certain preconditions. In my view they are evolving, though I think there are some good examples that we can look to. In the Northern Territory government took steps to address deficiencies surrounding the introduction of customary law into the criminal justice system through the introduction of a formal mechanism for raising issues relating to customary law in sentencing Aboriginal offenders.

    The laws provided that the court could only receive such information if the party that wishes to present the information gives notice to each other party and each of the other parties has an opportunity to provide a response.


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    Further, the customary law information is then presented in the form of evidence on oath, an affidavit or a statutory declaration. Its intention was to prevent the introduction — by non-Indigenous lawyers in the main — of information to the courts that was ill-informed or incorrect in terms of customary law.

    Almost all Australian jurisdictions now have some process for the engagement of Indigenous communities in sentencing. This is an encouraging development, as is the broader acceptance of restorative justice processes and the increased focus on diversionary schemes for Indigenous young people in particular. In NSW and Victoria there is data supporting reduced rates of recidivism in comparison with recidivism rates through other court systems. Here in Western Australia the Attorney General is developing a model court to address family violence in Geraldton. One of the aims of the court is to identify systemic or patterned issues with family violence and propose solutions.