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It is only in the last few years that 'It is obvious that ...' and 'It is fair that ...' have made a bid to become respectable arguments among lawyers. The only thing that is obvious to me is that different people and generations have different views on the self-evident, that many self-evident truths have turned out to be false, and some, as we now think, not only false but wicked: 'It is obvious that the sun goes round the earth.' 'It is obvious that no woman can enter a learned profession.' 'It is obvious that no jew is fit to hold a chair in a university.' It is both puzzling and disheartening that a senior member of Newton's university should rely, militantly, on an argument of this kind.

In the only modern case that I know in which the matter of repayment of sums paid under a judgment subsequently reversed was discussed, the liability to repay when the reversing court had made no order for repayment was contested all the way to the HCA: Commonwealth v. McCormack (1984) 155 C.L.R. 273. Someone evidently thought the conclusion less than obvious.

Peter B H Birks, QC, DCL, FBA
Regius Professor of Civil Law
All Souls College Oxford OX1 4 AL
Tel: 44 - (0)1865-279338
Fax: 44 - (0)1865 279299

Home: Oak Trees, Sandy Lane,
Boars Hill. Oxford OX1 4AL
Tel: 44 - (0)1865-735625