Sorry I got the parties muddled - these 3 party cases are a killer. I
would have thought that a reimbursement claim would run. C

> My thought was a simpler one: whether the employer TRA could claim in
> unjust enrichment against Centrelink, on the basis that TRA had mistakenly
> discharged Centrelink's legal obligations to Ms K, thereby enriching that
> agency?
> L.
>
>
> On 10-10-11 02:54 , "Katy Eloise Barnett" <k.barnett@UNIMELB.EDU.AU>
> wrote:
>
>>Hmm, insofar as I am able to accurately navigate the Byzantine laws of
>>our social security system, it looks like if Ms K had wished to mount a
>>claim against Centrelink, she would have attempted to do so via a special
>>process:
>>http://www.centrelink.gov.au/internet/internet.nsf/legal/compensation.htm
>>
>>Shortly, there is a Scheme for Compensation for Detriment caused by
>>Defective Administration (the CDDA Scheme) under which persons can claim
>>if they believe that a mistaken or wrongful decision by Centrelink caused
>>them loss of some kind. It is expressed in a way that the agencies
>>covered by this scheme owe a duty of care (so more tortious than UE).
>>
>>Still, as you say, it was surely better for her financially that she
>>successfully defended herself from her employer's attempt to utilize UE
>>than for her to recover the value of the mistakenly non-paid entitlements
>>from Centrelink (which were much less valuable to her).
>>
>>Kind regards, Katy
>>
>>-----Original Message-----
>>From: Enrichment - Restitution & Unjust Enrichment Legal Issues
>>[mailto:ENRICHMENT@LISTS.MCGILL.CA] On Behalf Of uctlcm2
>>Sent: Monday, 10 October 2011 8:47 AM
>>To: ENRICHMENT@LISTS.MCGILL.CA
>>Subject: Re: [RDG] Victorian case on restitution and change of position
>>defence
>>
>>Dear Katy and Lionel
>>
>>Perhaps Lionel was speculating as to whether Ms K could have recovered
>> the
>>benefits from Centrelink in UE on the ground that she had failed to claim
>>them by mistake? The English case-law going to the question whether a
>>foregone claim can constitute a recoverable enrichment is murky, and it
>>would be interesting to know if there is any Australian law on this. In
>>Gibb v Maidstone NHS Trust the English CA said obiter that the value of a
>>foregone right to sue for wrongful dismissal could be recovered via a
>>claim for UE, but in Test Claimants in the FII Litigation the English CA
>>wouldn't allow a claim to recover the value of a foregone right to offset
>>tax credits against a tax liability, applying a mysterious 'remoteness'
>>rule that no one really understands (at any rate *I* don't really
>>understand it). It may be, though, that in your case there were anyway
>>statutory provisions governing the situation where social security
>>benefits have gone unclaimed, which might have displaced any common law
>>right of recovery.
>>
>>Best wishes
>>Charles Mitchell
>>
>>> Lionel, yes, I should have been clearer in the original post.
>>> Centrelink
>>> is an Australian Federal government agency which primarily deals with
>>> payment of social security (unemployment benefits, disability pensions
>>> etc). And "but for" the mistaken payment, Ms Kebakoska would have been
>>> entitled to government unemployment benefits from Centrelink such as to
>>> pay her daily expenses. Instead, she had to use her redundancy payment
>>>to
>>> pay for daily expenses during the period in which she was unemployed.
>>>
>>> Perhaps a claim could have been made out in negligence against
>>>Centrelink.
>>> However, I suspect that Centrelink may not have had enough information
>>>to
>>> be held liable for failing to pick up the mistake in the redundancy
>>> payment. It would have had to known of the precise Federal Award under
>>> which the employer had paid the redundancy payment, the terms of the
>>> Federal Award, and the circumstances which rendered Ms K ineligible for
>>> the payment. I am not sure, but I think the information that it would
>>>have
>>> received would simply be that she did receive a redundancy payment and
>>> what its amount was. If anyone else knows more of these matters than I,
>>> any correction gratefully accepted.
>>>
>>> I should note, too, that the writings of our RDG colleagues, James
>>>Edelman
>>> and Elise Bant, get a large guernsey in the discussion on the position
>>>of
>>> estoppel with regard to the change of position defence, and the judge
>>> essentially adopts their position.
>>>
>>> Kind regards, Katy
>>> ________________________________________
>>> From: Lionel Smith, Prof. [lionel.smith@mcgill.ca]
>>> Sent: Monday, October 10, 2011 4:41 AM
>>> To: Katy Eloise Barnett; RDG
>>> Subject: Re: [RDG] Victorian case on restitution and change of position
>>> defence
>>>
>>> An interesting case. Should the plaintiff have a claim against
>>>Centrelink?
>>> I assume it is some kind of government agency that would, but for the
>>> mistaken payment, have been obliged to hand some money over to Ms K?
>>> Lionel
>>>
>>>
>>> From: Katy Eloise Barnett
>>> <k.barnett@UNIMELB.EDU.AU<mailto:k.barnett@UNIMELB.EDU.AU>>
>>> Reply-To: Katy Eloise Barnett
>>> <k.barnett@UNIMELB.EDU.AU<mailto:k.barnett@UNIMELB.EDU.AU>>
>>> Date: Sat, 8 Oct 2011 01:59:52 +0000
>>> To: RDG <ENRICHMENT@LISTS.MCGILL.CA<mailto:ENRICHMENT@LISTS.MCGILL.CA>>
>>> Subject: [RDG] Victorian case on restitution and change of position
>>> defence
>>>
>>> Osborn J of the Victorian Supreme Court recently made a decision
>>> concerning the change of position defence in TRA Global Pty Ltd v
>>> Kebakoska [2011] VSC 480
>>> (http://www.austlii.edu.au/au/cases/vic/VSC/2011/480.html)
>>>
>>> The case arose when Ms Kebakoska was made redundant by her employer,
>>> TRA
>>> Global. The company advised her that she was entitled to a redundancy
>>> payment equivalent to 12 weeks' pay under the Federal Award, and paid
>>>her
>>> $27,318.48. However, it later became evident that she was not entitled
>>>to
>>> that money (meaning that it was paid by mistake).
>>>
>>> Ms Kebakoska tried to argue that it was a voluntary submission of an
>>> honest claim pursuant to David Securities, but she failed in that
>>> regard
>>> because there was no evidence that there was a conscious choice on the
>>> part of the company to pay the money regardless of what might be a
>>>mistake
>>> of law.
>>>
>>> However, she succeeded in her claim for good faith change of position.
>>> Essentially, Ms Kebakoska had attempted to get unemployment benefits
>>>when
>>> she did not get a new job soon after being redundant, but Centrelink
>>> advised her that she was not entitled to unemployment benefits because
>>>she
>>> had the 12 week redundancy payment. She then spent the redundancy
>>>payments
>>> on living expenses. At [31] - [32], Osborn J said:
>>>
>>> "In my view, the evidence clearly established a change of position on
>>>the
>>> part of the employee. That change was relevantly comprised of three
>>> interrelated elements:
>>>
>>> (a) the disclosure of the redundancy payments to Centrelink;
>>>
>>> (b) the consequential denial of unemployment benefits to the employee;
>>>and
>>>
>>> (c) the expenditure of redundancy payments on living expenses in these
>>> circumstances.
>>>
>>>
>>> The appellant submits that this is a case where no relevant change of
>>> position occurred because the money received was spent on living
>>>expenses.
>>> In my view, this is not a case where the employee 'simply spent the
>>>money
>>> received on ordinary living expenses.' The employee disclosed receipt
>>> of
>>> the redundancy payment when she applied for unemployment benefits and
>>> suffered a refusal of her application as a result. The employee changed
>>> her position as a result of the mistaken redundancy payment and thereby
>>> suffered a direct financial loss. Each of grounds 1 to 3 contained in
>>>the
>>> notice of appeal fails on the facts..."
>>>
>>>
>>> Osborn J also considered whether estoppel had been displaced in this
>>>area
>>> by COP. The judge found that potentially, estoppel still persisted as a
>>> separate defence to a claim in unjust enrichment. Thus the magistrate
>>> at
>>> first instance had been entitled to find in the alternative that the
>>> employer was estopped from recovering the mistaken payment because Ms
>>> Kebakoska had relied to her detriment on the representation that she
>>> was
>>> entitled to the money.
>>>
>>> Kind regards,
>>>
>>> Katy Barnett
>>> ====
>>>
>>> This message was delivered through the Restitution Discussion Group, an
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>>> of a message to
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>>> is run by Lionel Smith of McGill University,
>>> <lionel.smith@mcgill.ca<mailto:lionel.smith@mcgill.ca>>.
>>>
>>>
>>> ====
>>>
>>> This message was delivered through the Restitution Discussion Group,
>>> an international internet LISTSERV devoted to all aspects of the law
>>> of unjust enrichment. To subscribe, send "subscribe enrichment" in
>>> the body of a message to <listserv@lists.mcgill.ca>. To unsubscribe,
>>> send "signoff enrichment" to the same address. To make a posting to
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>>>
>>
>>====
>>
>>This message was delivered through the Restitution Discussion Group,
>> an international internet LISTSERV devoted to all aspects of the law
>> of unjust enrichment. To subscribe, send "subscribe enrichment" in
>> the body of a message to <listserv@lists.mcgill.ca>. To unsubscribe,
>> send "signoff enrichment" to the same address. To make a posting to
>> all group members, send to <enrichment@lists.mcgill.ca>. The list is
>> run by Lionel Smith of McGill University, <lionel.smith@mcgill.ca>.
>>
>>====
>>
>>This message was delivered through the Restitution Discussion Group,
>> an international internet LISTSERV devoted to all aspects of the law
>> of unjust enrichment. To subscribe, send "subscribe enrichment" in
>> the body of a message to <listserv@lists.mcgill.ca>. To unsubscribe,
>> send "signoff enrichment" to the same address. To make a posting to
>> all group members, send to <enrichment@lists.mcgill.ca>. The list is
>> run by Lionel Smith of McGill University, <lionel.smith@mcgill.ca>.
>
> ====
>
> This message was delivered through the Restitution Discussion Group,
> an international internet LISTSERV devoted to all aspects of the law
> of unjust enrichment. To subscribe, send "subscribe enrichment" in
> the body of a message to <listserv@lists.mcgill.ca>. To unsubscribe,
> send "signoff enrichment" to the same address. To make a posting to
> all group members, send to <enrichment@lists.mcgill.ca>. The list is
> run by Lionel Smith of McGill University, <lionel.smith@mcgill.ca>.
>

====

This message was delivered through the Restitution Discussion Group,
an international internet LISTSERV devoted to all aspects of the law
of unjust enrichment. To subscribe, send "subscribe enrichment" in
the body of a message to <listserv@lists.mcgill.ca>. To unsubscribe,
send "signoff enrichment" to the same address. To make a posting to
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run by Lionel Smith of McGill University, <lionel.smith@mcgill.ca>.