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I wonder whether those judges have read Unjust Enrichment beyond the preface from which the High Court quotes.

We know that Peter Birks changed his mind more than once, but to the best of my knowledge he never proposed that a claimant had to show an unjust factor such as mistake, and additionally prove "unjustness".

Unjust Enrichment shifts from the former to the latter approach, rather than combining the two.

My impression of the second edition of Unjust Enrichment is also that it refines the first edition and answers to some criticisms (in particular relating to gain-based damages), but does not propose "even further changes". The fundamentals stay in place.

Season's greetings to the list subscribers
Gerhard Dannemann

Jonathon Moore wrote:

Thanks to Michael for this.

I thought Ormiston JA's treatment of Professor Birks in para [18] was unfair and / or inaccurate. His Honour said:

The concepts behind the respondents' claim in restitution are by no means fully worked out, whether one goes to authorities binding on this Court or to the works of the many text writers who have attempted to expound the principles applicable in this new "field" of the law. Relevant principles are none the clearer when one knows that a respected writer, such as Professor Birks, published his original work on the subject under the title An Introduction to the Law of Restitution (in 1985), but wrote his final work on the subject in 2003, shortly before his untimely death, calling it Unjust Enrichment, at the same time stating[1] in his preface to the latter work that, "Almost everything of mine now needs calling back for burning". To add to the theoretical difficulties, what Professor Birks ultimately saw as a new and preferable insight into these problems, the existence of a basic, overriding principle of unjust enrichment, was effectively rejected by the High Court in David Securities.[2] As was there stated by the majority, the "submission that the [plaintiff] must independently prove 'unjustness' over and above the mistake cannot therefore be sustained", for, if a payment has been caused by mistake, that is "sufficient to give rise to the prima facie obligation on the part of the [defendant] to make restitution". The burden then rests on the defendant to point to circumstances which the law will recognise as making such an order for restitution unjust.[3]

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[1] See p.xiv of the preface (1st ed). A second, posthumous edition has been published this year with even further changes in approach. His reasons for preferring the expression "unjust enrichment" appear succinctly also in his chapter (together with Charles Mitchell) on that subject in vol. II of English Private Law (Oxford 2000): see paras.15.01 to 15.10.

[2] By the majority (Mason, C.J., Deane, Toohey, Gaudron and McHugh, JJ.) at 378-379.

[3] See also per Mason, C.J., Wilson, Deane, Toohey and Gaudron, JJ. in Australia and New Zealand Banking Group Ltd. v. Westpac Banking Corporation (1988) 164 C.L.R. 662 at 673.

My gripe is three-fold. First, it was obviously a gross exaggeration, borne of modesty, for Professor Birks to say that "Almost everything of mine now needs calling back for burning". To isolate that passage for citation, as if it were literally true, is unwarranted.

Secondly, and more importantly, I think it is quite wrong for Ormiston JA to say "what Professor Birks ultimately saw as a new and preferable insight into these problems, the existence of a basic, overriding principle of unjust enrichment, was effectively rejected by the High Court in David Securities. The suggestion seems to be that Professor Birks had said that, pursuant to an "overriding principle of unjust enrichment", it was necessary for the plaintiff to "independently prove 'unjustness' over and above the mistake". Professor Birks never said anything of the sort.

Thirdly, I doubt the accuracy of the suggestion that the second edition of Unjust Enrichment published this year contained "even further changes in approach". Others will know better than I, but my impression was that nothing of great moment changed between the first and second editions.