Supreme Court of Victoria -- Court of Appeal

(1992) 175 CLR 353.

(1994) 182 CLR 51.

With due respect to Lord Goff whose early lectures on the subject I had the privilege of attending as long ago as 1959.

For example, LR 15 and LR 16 are to be found between AR 39 and AR 40, and LR 65 and LR 66 are to be found between AR 166 and AR 167.

(1992) 175 CLR 353.

That is not precisely how the judge expressed it, but having regard to his reference to David Securities, especially at p 371, that is the way I would construe his conclusion.

His Honour described the argument as one of "misdescription" but, as the next sentence referred to there being the absence of any element of "prediction", I see that merely as a typographical error.

At 399.

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.

By the majority (Mason CJ, Deane, Toohey, Gaudron and McHugh JJ) at 378-379.

See also per Mason CJ, Wilson, Deane, Toohey and Gaudron JJ in Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation ( 1988) 164 CLR 662 at 673.

At 378-379. See also per Dawson J at 406.

See at 379.

At 376.

At 376-378.

At 369.

(1943) 59 Law Quarterly Review 327 at p 327.

See also David Securities at 374.

(1994) 182 CLR 51, esp at 83.

At 374 (lines 2-4).

At p 61, last para. of "para." [229]. One may wonder, after referring to the entries as to "voluntariness" in the index, whether this last paragraph was intended to be para [230].

See, eg, P Birks "Modernising the Law of Restitution" (1993) 109 Law Quarterly Rev. 164 at 167, and M. Bryan "Mistaken Payments and the Law of Unjust Enrichment" (1993) 15 Sydney Law Rev. 461 at 475ff, where it is described as "loosely asserted" and "obscure" (see also at p 482).

At 394-398. He specifically rejected the majority's proposal that payments "in satisfaction of an honest claim" should be classified as voluntary: see at 396.

At 373-374.

Ie the passages quoted in full at fnn.20 and 24.

At 374.

The full sentence is quoted in the text at fn 33 below in para [27].

See text at fn 24.

See eg Mason and Carter at [439], but cf at [415]. Compare Goff and Jones : The Law of Restitution ( 3rd ed 1986) at pp 36-38 (and see 105-108), with their more carefully categorised discussion in the 6th ed (2002) at [1-069] and [1-070] (see also [4-030] esp at 202).

Because of its uncertain scope it has also been defined in quite different ways. cf Restatement: Restitution ( 1937) §45(b) p 186 and Stoljar : Law of Quasi-Contract ( 2nd Ed) at p 29.

See text at fn 33.

At 374.

Ibid.

See at 379ff. The expression was clearly intended to cover both (a) and (b) in the passage to be cited from Goff J.

[1980] QB 677 at 695. The case primarily concerned a mistake of fact.

At 373-374.

At 374 (lines 2-4).

At 381.

Ibid.

See at 401ff.

At 403.

At 404. See also generally at 403-404.

Ibid. But, with respect, that appears to confuse the involuntariness of every payment actuated by mistake and the "defence" of voluntary payment.

(1994) 182 CLR 51.

(2001) 208 CLR 516.

At 398-399.

Second edition (1989).

See at pp 28-31.

See eg David Securities at 371, 374.

See Stoljar at pp 31-32.

See Stoljar at pp 32-35.

(1856) 1 H & N 210. (See Stoljar at 32-35).

See para 1-061ff (6th ed 2002).

These words appear in the heading to the relevant paragraphs (1-069 to 1-073) and their insertion seems more consistent with the discussion, as well as with some earlier editions (see, eg 3rd ed at 30, 36).

At 404.

Published 1995: see at [415].

As Mason & Carter have assumed: see para [32].

See at 370ff.

At 372-374. The discussion of the first two of these cases is trenchantly criticised by Bryan: "Mistaken Payments and the Law of Unjust Enrichment": see at fn 22 above, at pp 478-480.

(1938) 59 CLR 150.

(1957) 98 CLR 65.

(1982) 61 FLR 108 ; 41 ALR 539 (Blackburn, Deane and Ellicott JJ).

At 374.

At 376.

At 379ff.

See para [28] above.

At 381.

Paragraphs 1-069 to 1-071 at pp 57-59 and paragraphs 4-030 to 4-032 at pp 200-202.

At pp 17-38.

Confusingly the majority in David Securities ( at 375) refer to a proposal in the 1991 Consultation Paper as a recommendation, but the actual recommendation came three years later: see para 1.3 of the Report.

Law Com. No 227, November 1994.

At paras 2.25 to 2.38.

Contained in a table at 2.38.

At 373-374, quoted in paras [23] and [25] above.

See at 374.

175 CLR at 373-374, set out in para [25] above.

Ibid.

(1870) LR 5 QB 449.

(1973) 47 ALJR 586 ; 1 ALR 497.

[1895] 1 QB 399.

Though even this is not necessarily impossible, for one can put forward by way of hypothesis the case of a donation (how more voluntary a transaction could one imagine?), but a principal actuating factor might well be its deductibility for tax purposes. The question would then be one of causation, although it is hard to believe that the courts would permit the recovery of such a payment, but would that be because the payment was "voluntary"? Recovery of gifts made on a mistaken factual basis has been allowed: see Lady Hood v Mackinnon [ 1909] 1 Ch 476 and Mason and Carter para [417].

At 374.

Ibid (see above at [23]).

Of course payments resulting from duress, other forces of compulsion, undue influence, necessity and the like are not voluntary and, if in any way they were, then they could not be recovered, but the Court was considering voluntariness as an answer to mistake.

See the passage already cited at 374.

At 373-374.

At 393.

Ibid.

See Werrin at 159 per Latham CJ , J & S Holdings at 123 and Kiriri Cotton Co Ltd v Dewani [ 1960] AC 192 at 204 per Lord Denning.

At 394.

At 396.

At 396.

Ibid.

At 398.

At 399.

164 CLR 670 at 672, cited in David Securities at 377. Interestingly, the same passage is cited in largely the same form in the judgment of Brennan J at 395, though for a different purpose.

At 378.

See also the principle expressed in similar terms at 376.4 and 379.6.

At 378-379.

See at 379ff.

See at 398.

See at 399.

See at 396-400.

See, eg, para 4.7 of the Law Commission Report.

[1999] 2 AC 349 at 412-413.

182 CLR at 89.

See at 103.

It is, however, not referred to at all (so far as I can see) in Mason & Carter, despite the fact that work was published later.

At 89.

175 CLR at 399.

The former title of the Commissioner.

At 90-92.

See 182 CLR at 66-68, referring in particular to David Securities at 378.

Not all categories of payments were held to be recoverable under the law of restitution, Brennan J confining his observations as set out above to what were called items (i) and (ii)(b) which were clearly enough paid over by mistake.

(1996) 22 Monash Univ. LR 209 esp at pp 231-233.

(1996) at 117 esp at pp 120-121 and 127-128.

Also in Restitution: Developments in Unjust Enrichment at 131 esp at pp 133-134.

(1995) 18 Univ. of Qld LJ 318 esp at 325. Doubtless there are other articles and comments on these cases to like effect, but there have been so many articles and the like dealing with these cases that it is impossible for practical purposes to trace through them all.

182 CLR at 54-59.

At 378-379. See argument: 182 CLR at 59.

In David Securities at 398-399, his Honour had said: "The principle will therefore be invoked to rebut a prima facie right to restitution."

At 398-399.

(1949) 80 CLR 11, esp at 63 per Dixon J.

(1st reprint, revised 1989) at pp 147-148.

(1996) 22 Monash Univ LR 209 at 218-222.

See paras [228] and [415].

[2002] 1 All ER (Comm.) 193 at [29].

See also the discussion below as to the effect of AR 172 at [65]-[67].

An appeal ground denying that the Rules of Racing had no contractual effect was abandoned.

(1977) 18 ALR 77.

It seems likely that (the otherwise irrelevant) LR 1 was inelegantly placed between the general definitions and the interpretation provisions of AR 1, but that is by no means clear from reading the relevant part of the document: see p 14 thereof.

One ought fairly to assume that the "rules" in question are those constituted by the Australian Rules and the Local Rules, as published by the first respondent. Unfortunately, there are four definitions of "rules", plus a local interpretation rule, in LR 1. In the definition rule AR 1 there are definitions of "These Rules", meaning the Australian Rules of Racing, and of "the Rules" which confusingly means "these Rules together with the Local Rules of the Principal Club concerned". At the same time there appears to be a Local Rule definition inserted of the word "Rules" which perhaps by way of confirmation are said to mean "the Australian Rules and the Local Rules" for the time being in each case, "read, interpreted and construed together". There is also an earlier local definition of "Australian Rules of Racing" which is said to mean "the Rules made by the Australian Racing Board and herein printed and numbered in black type ...", as amended. The interpretation clause LR 1(2) adds a provision that if there is any inconsistency between the Australian Rules and a Local Rule, the Australian Rule shall prevail.

(1956) 95 CLR 420.

At 426-427.

(1992) 172 CLR 353 at 384-385.

At 384.

At 378.

At 379

At 399.

At 379.

At 386.