Kit Barker, ‘Unjust Enrichment in Australia: Whats Is(n’t) it? Implications for Legal Reasoning and Practice’

This paper provides an up-to date account of the nature and status of the idea of unjust enrichment in Australia, noting recent changes in the composition and attitudes of the High Court and the widespread confusion that exists amongst legal practitioners about the the way in which such claims should be pleaded in practice.

The paper articulates and distinguishes between five different roles that unjust enrichment might play in modern legal reasoning, namely as : (i) a purely moral principle; (ii) a legal principle extrapolating from existing legal rules that can be used to interpret and develop those rules; (iii) a distinct category of private law; (iv) an analytical framework that can be used to understand and structure a variety of restitutionary claims and (v) a dispositive ’cause of action’ that can be pleaded in its own terms without reference to more detailed legal rules.

The piece aims to provide a clearer picture of both what unjust enrichment is and and – equally importantly – what it is not in Australia, the key finding being that the the first and last of the identified roles are clearly ruled out, but that that there is much greater openness to the other possibilities.

A clearer view of the scope and function of the concept in legal reasoning will lead, the piece suggests, to a more confident acceptance, and coherent use, of the idea of unjust enrichment by courts. It also has key implications for the pleading of restitutionary claims, some of which are articulated and explored.

Barker, Kit, Unjust Enrichment in Australia: Whats Is(n’t) it? Implications for Legal Reasoning and Practice (April 24, 2020). (2020) 43(3) Melbourne University Law Review (advance copy).

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