Handbook home
Commercial Restitution (LAWS50115)
Graduate coursework level 5Points: 12.5On Campus (Parkville)
About this subject
- Overview
- Eligibility and requirements
- Assessment
- Dates and times
- Further information
- Timetable(opens in new window)
Contact information
Semester 1
Email: law-aso@unimelb.edu.au
Phone: +61 3 8344 4475
Website: law.unimelb.edu.au
Overview
Availability(Quotas apply) | Semester 1 |
---|---|
Fees | Look up fees |
This subject introduces students to the capstone private law discipline of unjust enrichment and restitution law. Unjust enrichment constitutes a critically important but largely misunderstood source of private law obligation in Australia. Likewise, restitution as a gain-based remedy is all too often confused with other forms of relief, or omitted from the armoury of applicable remedies out of ignorance. This course will 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, 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. The course involves a critical examination of 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.
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 how personal and proprietary restitutionary rights arise in unjust enrichment and are affected by defences;
- 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 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
- 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.
- 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;
- 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 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 roles of intermediate courts and appellate courts in developing 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.
- 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