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I agree with Gerhard's sentiments in his first and third paragraphs, but I am not sure that it is right to say that Peter Birks shifted to an approach requiring proof of "unjustness". What he shifted from was an unjust factors approach (mistake, duress, ignorance etc) to an absence of basis approach (no explanatory basis for the receipt of the enrichment).

Most importantly, Peter Birks' absence of basis approach was most certainly not, contrary to Ormiston JA's suggestion in Hookway v Racing Victoria Limited [2005] VSCA 310 at [18], an approach that required the plaintiff to "independently prove 'unjustness' over and above the mistake". Peter Birks never said that. In fact, he said the opposite time and again.

Jonathon

---------- Forwarded message ----------
From: Gerhard Dannemann
Date: 20-Dec-2005 22:50
Subject: Re: [RDG] Mistake of Law

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.