and went on to discuss some possible examples.

The question is an old one, and to my mind turns largely on what meaning is attributed to the terms used in stating it.

A similar question was considered (in a very different context) by Gummow and Kirby JJ in the High Court of Australia in Commonwealth v Mewett (1997) 146 ALR 299 http://www.austlii.edu.au/ do/disp.pl/au/cases/cth/ high_ct/unrep328.html. Their answer was:

"Where a debtor makes a payment to the creditor without directing that it be paid in reduction of a particular debt, the right of appropriation which thereby devolves upon the creditor may be exercised by application to payment of the time-barred debt rather than to another debt which is still enforceable. A possessory lien may be exercised in respect of a statute-barred debt. Further, where the debtor approaches the court for equitable relief in aid of other rights against the creditor, the debtor will be required to do equity. Thus, a mortgagor seeking equitable relief in a redemption action is obliged to do equity by paying to the mortgagee all arrears of interest from the date of the mortgage, not merely that interest due and owing for less than six years.

These latter considerations may not bear upon the facts of the particular case [being considered by the HCA], being but illustrations of the proposition that the existence of direct curial remedy is not co-extensive with the juridical existence of the right."

Returning, then, to the general debate in re Archer, it does not seem at all surprising to me that D could have the right to have a judgment against it set aside without acquiring the right then to have P repay the proceeds of the judgment that P had received. A legal system could make that choice on the basis of the policy considerations that it found compelling (for example, it may regard the symbolic act of setting the judgment aside as sufficient civil vindication and may provide only criminal sanctions where P obtained the judgment by fraud).

And, with respect to all those who think otherwise, I do not see that debating the matter in terms of the abstractions of the law of restitution is likely to lead to an appropriate choice as to whether or not D should be able to disgorge the proceeds of the judgment. Of course, the existence of a coherent law of restitution for unjust enrichment may be a relevant policy factor in some legal systems. But the contested nature -- some might say 'existence' -- of a coherent law of restitution for unjust enrichment in our legal systems and the extreme pliability of the terms it uses (mistake, absence of consideration/cause, failure of basis) (as demonstrated in the debate to date) makes it almost useless from my point of view in determining whether or not P should repay the proceeds of the judgment.

Please pardon the sceptical nature of this contribution to the debate!

Simon Evans.
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Dr Simon Evans
Faculty of Law
University of Melbourne
VIC 3010
Phone: +61 3 9344 4751
Fax: +61 3 9347 2392
WWW: http://www.law.unimelb.edu.au