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Commercial Restitution (LAWS50115)

Graduate coursework level 5Points: 12.5Not available in 2020

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Overview

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This subject introduces students to the private law discipline of unjust enrichment and restitution law. Unjust enrichment constitutes an important source of private law obligation in Australia as in other common law systems, although common law systems have been relatively slow to recognise unjust enrichment as an independent source of obligation ranking alongside contract, tort, and equitable obligations. There has also been some confusion between restitution as a gain-based remedy and other forms of relief. This subject seeks to enable students to develop a specialist understanding of the law of unjust enrichment and restitution and in so doing, enable them to obtain an advanced and integrated command of the private law as a whole.

Although the primary focus is on the Australian law, as Edelman and Bant (Unjust Enrichment, 2nd ed., 3-4) observe, the discipline is necessarily comparative, drawing upon the law of many comparative common law and civilian jurisdictions. The subject develops and integrates legal knowledge from across many sub-disciplinary fields (e.g. contracts, torts, property and trusts), engages with a variety of sources of legal obligation (common law, equitable and statutory) and utilises both doctrinal and jurisprudential modes of legal reasoning to build an understanding of the complex interactions that define the law of unjust enrichment and restitution. Because the subject’s development is relatively recent, there are many areas which still have to be worked out by courts. The subject will examine the historical and substantive development of a law of unjust enrichment, its development and disintegration under the stewardship of successive Australian High Courts, its role in the private law as the third dominant source of private law obligations, its elements and defences, personal and proprietary remedies and the forensic, theoretical and practical advantages and disadvantages of unjust enrichment and restitution jurisprudence. It will consider developments from other jurisdictions, in particular England and Canada, where they can be of assistance to Australian law.

Intended learning outcomes

A student who has successfully completed this subject will have:

An advanced and integrated understanding of the Australian private law as a whole and in particular:

  • Students will learn to integrate their knowledge of contract, property, torts, trusts and other common law and equitable private law obligations to identify inconsistencies in the law of unjust enrichment and restitution;
  • Students will learn how personal and proprietary restitutionary rights arise in unjust enrichment and are affected by defences;
  • Students will develop an integrated mental map of the private law that will enable them to analyse diverse and complex legal scenarios within unjust enrichment and restitution law, but also to appreciate alternative analysis available throughout the private law.
  • Students will learn to 'feed back' their knowledge of unjust enrichment and restitution law into their foundational private law subjects, to develop a deep and incisive understanding of the full range of the private law; and

A sophisticated appreciation of, and ability to engage in, the complex theoretical, policy-based and practical debates taking place domestically and internationally in relation to unjust enrichment law, including:

  • The roles of intermediate courts and appellate courts in developing unjust enrichment and restitution law and the private law as a whole;
  • The balance to be struck between 'top down' and 'bottom up' modes of legal reasoning in unjust enrichment and restitution law and the private law as a whole;
  • The interactions between and balances to be struck between unjust enrichment and other sources of legal rights, such as contract; and
  • The role, ramifications and limitations of restitution as a gains-based remedy and its distinction from other forms of relief.

They will further have:

  • An advanced capacity to compare and critically analyse the legal framework applicable to unjust enrichment and restitution law across Australian and overseas jurisdictions, as relevant, and to consider recommendations for judicial and legislative reform of aspects of the Australian approaches in light of those comparisons;
  • Specialised skills in self-directed legal research and in the autonomous and creative production of legal writing that is thoroughly researched, tightly edited and that develops arguments in a highly structured, supported and referenced way, with a high degree of original content; and
  • Sophisticated communication skills that enable them to link, integrate and convey complex legal principles, theories and frameworks concerning unjust enrichment law and its relationship to the private law as a whole to expert and non-expert legal audiences.

Generic skills

On completion of the subject, students should have developed their skills in the following areas:

  • Cognitive skills demonstrating mastery of the law of unjust enrichment and restitution in Australia and its relationship to the private law as a whole;
  • Specialist understanding, interpretation, critical reflection, synthesis and comparison of case law relating to unjust enrichment and restitution law from the various Australian jurisdictions and overseas;
  • Specialist understanding, analysing, comparing and reflecting critically on scholarly commentary from the various Australian jurisdictions and overseas;
  • Generating and evaluating original proposals for judicial or legislative reform of Australian unjust enrichment and restitution law having regard to interstate and international experience;
  • Expert cognitive skills in conducting original research of, reflecting on and synthesising primary case law from the various Australian and comparator jurisdictions; and
  • Expert technical skills in interpreting and transmitting knowledge and ideas to specialist and non-specialist legal audiences.

Last updated: 3 November 2022