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Australian law has experience with many of the issues of liability after judgments are overturned.

In Australian law, the claim for monies paid pursuant to a judgment later reversed can exist as a 'procedural claim' or a claim based in unjust enrichment. There is a lot of case law to support this. This would stand directly against Lewison J's statement that the claim for restitution of monies paid pursuant to a judgment overturned on appeal is "not the same as a restitutionary claim".

Separate from this, but somewhat related, is a defence or justification for acts done pursuant to a judgment. These are 'protected acts' as they are done in the 'execution of justice'. It is this defence which permits a person who benefits from an interim injunction to rely on the judgment awarding the injunction and say to the other party "but you must respect judgments of the courts until they are set aside and a party who respects that judgment until it is set aside can not be attacked for doing so". A classic example is the award of land to one litigant, who uses it prior to appeal, and the inability of the other party to sue for trespass once they take back that land following an appeal: MacIntosh v Lobel (1993) 30 NSWLR 441. As our High Court said in Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220 at 225, acts done pursuant to a judgment overturned are protected if executed, but not protected if executory (that is, still be done). One case I had something to do with is Easterday v The State of Western Australia [2005] WASCA 105. The discussion at [45]-[46] is on point. Australian law would agree with what Lewison J decided on with regards to the injunction.

The relationship between declaring a judgment void ab initio and ordering restitution on the one hand with, on the other hand, protecting litigants for things done pursuant to the judgment which are done in the execution of justice, is an interesting one. In my paper, I have canvassed many of these issues as they exist in Australian law (See: "What are the Juridical Bases of Reversal of Judgment Restitution?" (2004) 25 (3) Australian Bar Review 268).

For additional reference, I would recommend D M Gordon QC "Effect of reversal of judgment on acts done between pronouncement and reversal" (1958) 74 LQR 517 and (1959) 75 LQR 85. Ben McFarlane "The Recovery of Money Paid Under Judgments Later Reversed" [2001] 9 RLR 1 also speaks of many of these issues, but I have disagreed with the author's juridical basis for the right to restitution. Ben's discussion of the American injunction cases is of interest following Lewison J's recent decision.

Regards,

Anthony

Anthony J Papamatheos

Student, University of Western Australia

Mobile: 0408 924 113
Home: 08 9332 4173
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----- Original Message -----
From: Daniel Friedmann
Sent: Wednesday, July 27, 2005 6:38 PM
Subject: Re: [RDG]

The Supreme Court of Israel reached a different result in Palimport Ltd. v. Ciba Geigi Ltd. (1975) 29(1) P.D. 597. I discussed this case in my article: Restitution of Benefits Obtained Through the Appropriation of Property or the Commission of a Wrong (1980) 80 Columbia L.R. 504, 537-538. I believe that the issue is also discussed in Mason and Carter, Restitution Law in Australia.