Sims v Commonwealth of Australia

The primary judgment

1. The primary judge (Weber SC DCJ) upheld the Commonwealth's claim in reliance on the Auckland Harbour principle. As a result it was unnecessary to consider the factual circumstances underlying the alternative claim for the recovery of moneys paid under a mistake: Commonwealth of Australia (Royal Australian Navy) v Sims [2021] NSWDC 690 at [10].
2. With respect to the limitation question, the Commonwealth contended that an action brought pursuant to the Auckland Harbour principle "was not a restitutionary claim in the strict sense, but rather was a stand-alone common law cause of action". It was said that if that contention "was correct, then there was no applicable statute of limitations" (J[16]). Considering that contention, his Honour described the claim founded on that principle as not being a "mainstream restitutionary claim" because it did not arise from "any form of unjust enrichment" (J[19]). Nor was it subject to "defences such as estoppel" or "change of position", they being "orthodox defences to restitutionary claims". The primary judge also observed that the absence of the availability of those defences was consistent with the cause of action being "based in public policy, and… not in restitution" (J[20]); cf the discussion of the Auckland Harbour principle in J Edelman and E Bant, Unjust Enrichment in Australia (2006, Oxford University Press) at 301.
3. At J[24], his Honour concluded that the recovery of moneys pursuant to the Auckland Harbour principle "should not be considered to be restitutionary". Having done so, the primary judge nevertheless considered what the position would be if it was treated as a "restitutionary" remedy (J[28]). His Honour accepted the Commonwealth's contention that the expression "quasi contract" was inapt to describe all restitutionary claims (J[30], [32]); and considered the reasoning of Mason P (Spigelman CJ and Campbell JA agreeing) in Coshott v Lenin [2007] NSWCA 153 to confirm the correctness of that contention (J[31]-[32]). It followed in his Honour's view that the Commonwealth's claim for recovery of illegal and ultra vires salary payments was not subject to any limitation period (J[33]).
4. The first premise of this reasoning is that the expression quasi contract refers only to claims or remedies characterised as "restitutionary". His Honour concluded that a claim based on the Auckland Harbour principle did not answer that description. The second premise upon which his Honour's reasoning depends is that quasi contract describes some restitutionary claims or remedies, but does not describe all of the claims that might be so characterised. His Honour concluded that the restitutionary claims within that description do not include a claim based on the Auckland Harbour principle.
5. Neither of these propositions addresses the defining characteristics of the money claims which in 1760 were described by Lord Mansfield as "founded in the equity of the plaintiff's case, as it were upon a contract"; and in 1914 by Viscount Haldane (adopting some of Lord Mansfield's language) as based on a fictitious promise to pay where the law is "ready to imply a debt in such cases arising quasi ex contractu": Moses v Macferlan (1760) 2 Burr 1005 at 1008; 97 ER 676 at 678; and Sinclair v Brougham [1914] AC 398 at 416. Instead, each of these propositions assumes that the broad terms "restitutionary" and "unjust enrichment" inform the character of those money claims as founded in "quasi contract". They do not. As Mason P emphasised in Coshott v Lenin, the adoption of that expression to describe those claims preceded modern restitutionary principles and analysis. The claims answering that description as it is used in the Limitation Act 1969 (NSW) are identified by the forms of action by which they were originally made - principally the action in indebitatus assumpsit for money had and received - and the non-contractual and remedial nature of the payment obligation which the common law imposed.

Coshott v Lenin

1. Coshott v Lenin concerned a solicitor's claim for remuneration founded either on a contract to perform services which did not stipulate the remuneration to be paid, or an obligation to pay imposed in circumstances where the respondent had freely accepted the services. This Court concluded that Limitation Act s 14(1)(a) applied, its language being satisfied either way the solicitor's quantum meruit claim was put. As Brennan J had observed in Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 at 234; [1987] HCA 5: "… quantum meruit is sometimes used to describe an action to recover a reasonable sum which is due under a contract and sometimes to describe an action to recover a reasonable sum when the obligation to pay it is imposed by law independently of actual contract" (emphasis added). In the former case the action would be founded on contract, and in the latter on quasi contract.
2. At [14]-[16], Mason P (Spigelman CJ and Campbell JA agreeing) said: [14] However packaged, the appellant's belated claim for remuneration is within the statutory time bar. It is either contract or quasi-contract within the meaning of the Limitation Act. [15] Quasi contract was the legal category of reference in 1969 for claims to remuneration litigated at common law that were not based on contract. Pleaders used the common money count for work done, known by the Latin tag of quantum meruit. In Pavey, the High Court held that the quasi-contractual right to recover on a quantum meruit did not depend on the existence of an implied contract but on a claim to restitution or one based on unjust enrichment. The Court was at pains, however, to stress that (in Deane J's words at 256-7) unjust enrichment is a "unifying legal concept which explains why the law recognises, in a variety of distinct categories of case, an obligation on the part of a defendant to make a fair and just restitution for a benefit derived at the expense of a plaintiff". [16] This explanation of the principles underpinning quantum meruit and other recognised causes of action in restitution did not mean that "quasi-contract" ceased to exist as a legal category in the context of the Limitation Act. That Act continues to speak according to its plain intent to claims, however labelled or packaged, and whatever general principles may be perceived to underpin them, which depend on the well-established common law cause of action stemming from quantum meruit. Whether or not it is now passe to use the old language of quasi-contract and whether or not there now exist causes of action "in" unjust enrichment has no bearing on the matter because "a sovereign legislature is not bound to respect legal orthodoxy" (Sharpe v Goodhew (1990) 33 IR 238 at 243 per Pincus J).
3. There is nothing in this reasoning which supports a conclusion that the Commonwealth's claim in the present case was other than quasi-contractual. It was founded on an obligation to pay or repay because, from the perspective of the payer, the payments sought to be recovered were made illegally and without authority. Those payments were also made under a mistake of fact and for no consideration.
4. Under the approach advocated by Lord Mansfield in Moses v Macferlan (at 1012; 681), in such circumstances the law imposed an obligation to pay or refund money, that obligation arising "by the ties of natural justice and equity". Whereas under the implied contract theory subscribed to by Viscount Haldane, that remedial obligation arose from a fictitious promise to pay imposed other than where the substantive law made "the defendant incapable of undertaking contractual liability" (Sinclair v Brougham at 417). In other words, under that theory the fictitious promise to pay was only imposed if a contract containing that term "would be valid if it really existed" (at 415).

The common law of quasi contract

1. In the introduction to the second edition of their work (The Law of Restitution (2nd ed, 1978, Sweet & Maxwell) at 3-4), Goff and Jones wrote that quasi contract stems from the common indebitatus assumpsit counts for money had and received and for money paid, and from quantum meruit and quantum valebat claims. To similar effect, Mason and Carter in their work Restitution Law in Australia (4th ed, 2021, LexisNexis) at [112] emphasise that the law of quasi contract emerged during the development and growth of the action in assumpsit.
2. The early forms of personal action at law were either actions upon contracts (ex contractu) or actions for wrongs (ex delicto). The action in assumpsit commenced its life as an action of trespass on the case. As the use of assumpsit evolved, the indebitatus assumpsit counts supported not only actions to recover debts which were founded in contract, but also actions to recover money where the originating debt did not arise from any contractual transaction. In these actions the plaintiff stated that the defendant was "indebted to the plaintiff for money had and received to his use, and being so indebted promised to pay". Unlike the other common counts, the originating obligation was not described in contractual terms: cf the quantum meruit and quantum valebat claims and claims for money paid, where the obligation was described as contractual even where no express promise had been made (M Lobban, "Restitutionary Remedies" in The Oxford History of the Laws of England - 1820-1914: Private Law (2010, Oxford University Press) at 563-565).
3. However, this development of the writs and forms of action was not informed by any "coherent theory of money claims". As Professor Baker points out in his essay "The History of Quasi-Contract in English Law" (in WR Cornish et al (eds), Restitution: Past, Present and Future (1998, Hart Publishing) at 39, the early common lawyers "did not need one. The formulary system required that a plaintiff find an original writ with wording to suit his facts rather than a conceptual pigeonhole in which to put them. And the original writs, even if they reflected the elementary concepts of the time in which they were first devised, had developed piecemeal without much recourse to abstract theorising."
4. In his Lectures on Legal History (1913, Harvard University Press) at 166, Professor Ames (in a passage cited by Viscount Haldane in Sinclair v Brougham at 417) summarised the development of the writ of assumpsit in its various forms: In its origin an action of tort, it was soon transformed into an action of contract, becoming afterwards a remedy where there was neither tort nor contract. Based at first only upon an express promise, it was afterwards supported upon an implied promise, and even upon a fictitious promise. Introduced as a special manifestation of the action on the case, it soon acquired the dignity of a distinct form of action, which superseded debt, became concurrent with account, with case upon a bailment, a warranty, and bills of exchange, and competed with equity in the case of the essentially equitable quasi-contracts growing out of the principle of unjust enrichment.
5. The manner in which the use of the fictitious promise allowed the development of the principal forms of assumpsit to the position as it was in the early 19th century is summarised by Professor Baker at 41-42: The three principal forms of assumpsit which lent themselves to development through fiction were quantum meruit (or more strictly quantum mereret), quantum valebant and indebitatus assumpsit. The first two were used where services were performed, or goods sold, and no certain remuneration or price was agreed upon at the time. The plaintiff alleged a promise to pay what he deserved for the services, or what the goods were worth, and added an averment as to what the appropriate sum was. There is no reason why a person should not make an explicit promise in these terms, but the formula obviously lent itself to fiction, or at least implication, where no promise had been made at all. Indebitatus assumpsit, on the other hand, was used as an alternative to the writ of debt, and rested on the assertion that the defendant, being indebted to the plaintiff in a certain sum, and in consideration of that indebtedness, promised to make payment. In this form of assumpsit, the promise to pay was no doubt almost always fictitious, for it was generally accepted that this was essentially a claim in debt forced into the assumpsit formula by the addition of an imaginary promise. However, it was necessary for the plaintiff to indicate in his count, in general terms, why the defendant was indebted to him: for instance, for "goods sold", for "work done", for "money laid out", or for "money had and received" to his use. These subsidiary formulae were known as the common money-counts. The count for money had and received proved to be the most expansive for restitutionary purposes, since it represented on its face a claim by a beneficiary to enforce a trust of money. It would be extended to cover various cases where money was not expressly or ostensibly received to the plaintiff's use, but a use was implied by law from the circumstances. (footnotes omitted)
6. In Moses v Macferlan (1760), in response to an argument that no claim in indebitatus assumpsit for money had and received to the plaintiff's use lay "except upon an express or implied contract", Lord Mansfield proposed his theory as to the principles underpinning that claim. His answer to that objection was that if "the defendant be under an obligation, from the ties of natural justice, to refund; the law implies a debt, and gives this action, founded in the equity of the plaintiff's case, as it were upon a contract ('quasi ex contractu', as the Roman law expresses it)" (at 1008, 678).
7. Before the Common Law Procedure Act 1852 (UK) it was necessary to specify in the writ the particular form of action relied on. When framed in indebitatus assumpsit the declaration in the writ pleaded the alleged basis for the money claim (indebitatus), and the breach of the promise (assumpsit) to pay it. In a claim in quasi-contract that promise was implied and fictitious, and was not required to be proved as a fact. The 1852 Act removed the requirement to specify any form of action (s 3); permitted different causes of action to be joined in the same suit (s 41); abolished the need for the pleading of promises that were not required to be proved, such as those in indebitatus counts (s 49); and provided that the common indebitatus counts could be sufficiently pleaded by adopting shortened forms including for goods sold and delivered, work done, money had and received, and money paid (ss 91 and Schedule B).
8. These shortened forms of action continued to be referred to as the indebitatus counts, money counts or common counts. The 3rd edition of Bullen and Leake (Precedents of Pleadings in Personal Actions in the Superior Courts of Common Law (1868, Stevens and Sons) at 35) noted that although the quantum meruit and quantum valebat counts had been adopted where there was no fixed price for work done or goods sold, ultimately they had been superseded by the general application of the indebitatus counts.
9. Thus as early as the mid-18th century a cause of action founded on quasi contract described a claim to enforce an obligation to pay money imposed by law which arose "upon the circumstances of the plaintiff's case" and was founded on "the ties of natural justice and equity"; and independently of any actual contract (Moses v Macferlan at 1012, 681; see also Pavey & Matthews at 234 per Brennan J). Those circumstances included a qualifying or vitiating factor such as mistake, duress or illegality (David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 at 379; [1992] HCA 48). In Moses v Macferlan (at 1012, 681), Lord Mansfield had described those underlying circumstances as including "money paid by mistake; or upon a consideration which happens to fail; or for money got through imposition, (express, or implied); or extortion; or oppression; or undue advantage taken of the plaintiff's situation, contrary to laws made for the protection of persons under those circumstances".
10. That is a sufficient description of the defining characteristics of a cause of action founded on quasi contract for the purposes of applying s 14(1)(a) in this case. That description does not adopt any reference to restitutionary principles. The fact that the basis for those causes of action might now be described by reference to notions of unjust enrichment is not to the point.
11. The controversy as to the principled basis which explains the development of the quasi-contractual money counts no longer rages. In 1978, Goff and Jones said of that debate in their introductory summary "The Legacy of History: The Implied Contract Theory" (at 8): … the fictitious promise which lay [at the root of indebitatus assumpsit] has left a legacy of confusion which has seriously hindered the development of a law of restitution. Lord Mansfield, at least, had no doubts about the status of this so-called promise. … While the forms of action continued in existence, it is not surprising that lip-service should have continued to be paid to the notion of "implied contract", for it was only through that fiction that quasi-contractual claims were enforceable at all in indebitatus assumpsit.
12. Mason CJ later noted in Baltic Shipping Co v Dillon (1993) 176 CLR 344 at 356-357; [1993] HCA 4: The abolition of the forms of action inspired an analysis of the sources of obligation in the common law in terms of a rigid dichotomy between contract and tort. In that context, there was little room for restitutionary obligation imposed by law except as a "quasi-contractual" appendix to the law of contract. As a result, until recently, restitutionary claims were disallowed when a promise could not be implied in fact.
13. The ultimate rejection of the implied contract theory in favour of restitutionary principles is considered in some detail in Allsop CJ's extra-judicial writing "Restitution: Some Historical Remarks" (2016) 90 ALJ 561 at 570-575. As his Honour observes, the speech of Viscount Haldane in Sinclair v Brougham (at 416-417) contains a clear statement of the implied contract theory.
14. In Pavey & Matthews, the High Court rejected that theory as explaining quasi-contractual claims. In doing so the Court concluded, in relation to the action on a quantum meruit with which that case was concerned, that it "rests, not on implied contract, but on a claim to restitution or one based on unjust enrichment, arising from the respondent's acceptance of the benefits accruing to the respondent from the appellant's performance of the unenforceable oral contract" (at 227 per Mason and Wilson JJ).
15. Subsequently, in David Securities the Court expressly affirmed the statement of Deane J in Pavey & Matthews (at 256-257) that to identify the basis of actions such as for money paid under a mistake of fact or law "as restitution and not genuine agreement is not to assert a judicial discretion to do whatever idiosyncratic notions of what is fair and just might dictate". Instead, as the Court had emphasised in David Securities (at 379), "recovery depends upon the existence of a qualifying or vitiating factor such as mistake, duress or illegality".

Quasi contract and the Limitation Act 1969 (NSW)

1. That the foregoing analysis describes the sense in which the expression "quasi contract" is used in s 14(1)(a) is made clear by the Report on the Limitation of Actions of the New South Wales Law Reform Commission, (October 1967) at [103]: 103. In section 14 (1) (a), the words about quasi contract stem from section 5 (1) (a) of the Victorian Limitation of Actions Act 1958. The Victorian Act largely follows the Imperial Act of 1939 but, in the relevant passage, speaks of "actions founded on simple contract (including contract implied in law)". In Franks on the Limitation of Actions (1959). at pp. 166, 167, the author says - "although quasi-contract is today well recognized, its scope and the basis on which it rests have still to be precisely defined. For present purposes it may be accepted that in certain cases the common law implies an obligation (not a contract, for that is misleading) to pay or repay money, which is based on the broad requirements of justice. For limitation purposes actions based on quasi-contractual obligations must be treated as actions founded upon simple contract, though the relevant wording of the 1939 Act cannot be regarded as felicitous. The limitation period will therefore be six years from the accrual of the cause of action." Although "quasi contract" is an unhappy name, we think that it has a clearer meaning than "contract implied in law" and we have therefore adopted "quasi contract".
2. It is convenient at this point to pursue the reference to the Limitation Act 1939, 2&3 Geo 6, c 21, which provided by s 2(1) that the limitation period for "actions founded on simple contract or on tort" was 6 years from the date on which the cause of action accrued. Although not obvious from that language, the obligations treated as founded upon simple contract for limitation purposes included liabilities in quasi contract (M Franks, Limitation of Actions (1959, Sweet & Maxwell) at 87-88, and 166-167, the latter passage extracted in the Law Reform Commission Report at [103]). In support of that proposition, Franks cites the decision in In re Diplock; Diplock v Wintle [1948] Ch 465 at 514, where the Court of Appeal (Lord Greene MR, Wrottesley and Evershed LJJ) said: We assume in Mr. Upjohn's favour that the words "action founded on simple contract" must be taken to cover actions for money had and received, formerly actions on the case, and, as such, covered in express terms by the Statute of James I. The assumption must we think be made though the words used cannot be regarded as felicitous.
3. The reference to the Statute of James I is to the Limitation Act 1623, 21 Ja 1, c 16. Section 3 of that Act imposed a six-year limitation period for actions on the case, sometimes called trespass on the case, which included assumpsit.
4. Observations to the same effect are made by GH Newsom and L Abel-Smith in Preston and Newsom on Limitation of Actions (3rd ed, 1953, Solicitors' Law Stationery Society). The expression 'simple contract' "also seems to embrace those actions which are based upon an obligation arising neither from agreement nor from wrong-doing, sometimes referred to as quasi-contract; they were formerly actions of assumpsit" (at 25). Having noted of the claims brought in assumpsit that "none of them was based on contract in the strict sense, and some of them could only with difficulty be considered as based on implied contract" (at 34), the authors conclude (at 35): … it seems that the miscellaneous actions here discussed, all of which were formerly actions of assumpsit, must be subject to that period of limitation.

Application of s 14(1)(a)

1. The Commonwealth's claim is to recover from the appellant moneys drawn from Treasury by the Department of Defence without lawful appropriation. In those circumstances the common law imposes a remedial obligation which operates to restore to the Commonwealth what was illegally and without authority transferred from it to the appellant (Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516; [2001] HCA 68 at [26]). That obligation does not arise in contract or in tort or by virtue of any statute. It arises out of the circumstances in which the money was paid and received to the use of the appellant. In the language of the common money counts, the Commonwealth's claim would have been formulated as being for money had and received; and in a taxonomy which adhered to a rigid dichotomy between personal actions founded in contract and tort, the claim would have been treated as founded in quasi contract as that term is used in s 14(1)(a) of the Limitation Act. It follows that grounds 1(a) and (b) should be upheld.

Remaining issues in the appeal

1. I have had the benefit of reading the judgment of the Chief Justice in draft. I agree with his Honour's reasons for rejecting the Commonwealth's contention that if the Limitation Act otherwise applied the applicable six-year period should be postponed pursuant to s 56. I also agree for the reasons his Honour gives that the two subsidiary questions to which I have referred above should be resolved as his Honour proposes.
2. WHITE JA: I agree with the reasons of Bell CJ and Meagher JA.
3. I would add the following observations on the main issue in the appeal, namely, whether a claim by the government to recover moneys paid without statutory authority based on Auckland Harbour Board v The King [1924] AC 318 was a cause of action in quasi-contract within the meaning of s 14(1)(a) of the Limitation Act 1969 (NSW).
4. The Commonwealth submitted that at the time of the enactment of s 14(1)(a) in 1969 an Auckland Harbour type claim had never been recognised "taxonomically speaking" as lying within the territory of quasi-contract. Reliance was placed on the absence of any mention of the claim in the first edition of Professor Stoljar's The Law of Quasi-Contract (1964) or in Bullen and Leake's Precedents of Pleadings, 3rd ed (1868) or any subsequent edition.
5. As the reasons of the Chief Justice and Meagher JA show, an Auckland Harbour Board claim falls squarely within the principles on which a claim for money had and received could be brought. It has subsequently been treated as a restitutionary claim. The report of the NSW Law Reform Committee quoted by the Chief Justice at [56] stated that actions in quasi-contract encompassed cases where the common law implied an obligation (not a contract in fact) to pay or repay money. (See also Holdsworth's History of English Law Vol 8 p 96).
6. The likely reason such claims are not addressed in Bullen and Leake's Precedents of Pleadings is that the claims would have been brought in the Court of Exchequer and not the Courts of King's Bench or Common Pleas. (The Earl of Devonshire's Case was referred to the judges of the Court of King's Bench by the King and the report contains no reference to a writ containing a form of action).
7. In the Court of Exchequer the Crown had many procedural advantages. The most common remedy sought by the Crown was for the recovery of a debt due to the Crown, which claim was brought by information (Holdsworth, op cit Vol 10, p 344; Vol 13 p 588). Dodington's Case (1653) Cro Eliz 545; 78 ER 791 was brought by information in the Court of Exchequer.
8. Under s 64 of the Judiciary Act 1903 (Cth) in a suit to which the Commonwealth is a party, the rights of the parties shall, as nearly as possible, be the same as in a suit between subject and subject.
9. Considered as a claim between subject and subject the Commonwealth's claim based on the Auckland Harbour Board principle falls squarely within a claim for money had and received, but to which a defence of change of position is not available. It is therefore a claim in quasi-contract to which s 14(1)(a) applies.
10. I agree with the orders proposed by the Chief Justice.

Endnotes

1. [1924] AC 318.
2. Commonwealth of Australia (Royal Australian Navy) v Sims [2021] NSWDC 690 (PJ) at [9].
3. (1981) 36 ALR 567 at 580.
4. See Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23.
5. PJ at [19].
6. (1992) 175 CLR 353; [1992] HCA 48.
7. [1971] VR 825.
8. [1977] 1 NSWLR 406.
9. PJ at [20].
10. PJ at [22].
11. (1987) 162 CLR 221; [1987] HCA 5.
12. [2007] NSWCA 153.
13. Ibid at [15]-[16].
14. PJ at [43]-[44].
15. PJ at [45].
16. [1924] AC 318 at 326-7.
17. (1653) Cro Eliz 545; 78 ER 791.
18. [1993] AC 70 at 177.
19. R Goff and G Jones, The Law of Restitution, ed G Jones (4th ed, 1993, Sweet & Maxwell) at 160, fn 36.
20. [1971] VR 825 at 828.
21. "He appears to mean that it must be apparent who received the money": P Birks, Restitution: The Future (1992, Federation Press) at 63.
22. A Burrows, The Law of Restitution (1993, Butterworths) at 331.
23. R Goff and G Jones, Goff & Jones' The Law of Unjust Enrichment, ed C Mitchell, P Mitchell and S Watterson (9th ed, 2016, Sweet & Maxwell) at [23-30].
24. (1988) 164 CLR 662 at 673; [1988] HCA 17.
25. (1977) 139 CLR 362 at 388; [1977] HCA 63.
26. [1977] 1 NSWLR 406 at 410 per Hutley JA.
27. Ibid at 413.
28. (1981) 36 ALR 567 at 580.
29. Holt v Markham [1923] 1 KB 504.
30. (1989) 89 ALR 213 at 229-230.
31. (2012) 248 CLR 156; [2012] HCA 23 at [116].
32. [2013] ACTSC 146; (2013) 282 FLR 1 at [250], [1728]-[1763].
33. [2021] FCA 1635; (2021) 399 ALR 68 at [77].
34. Charles Terence Estates Ltd v Cornwall Council [2011] EWHC 2542 at [97]. Although this decision was reversed on appeal (Charles Terence Estates Ltd v Cornwall Council [2012] EWCA Civ 1439), the primary judge's conclusion about the change of position defence was not challenged.
35. [1970] SCR 175.
36. Ibid at 181.
37. Ibid at 201.
38. RM Jackson, The History of Quasi-Contract in English Law (1936, Cambridge University Press).
39. PH Winfield, The Law of Quasi-Contract (1952, Sweet & Maxwell).
40. SJ Stoljar, The Law of Quasi-Contract (1964, Law Book Company of Australasia) (Stoljar).
41. P Birks, An Introduction to the Law of Restitution (1985, Oxford University Press) (Birks). See also R Goff and G Jones, The Law of Restitution (1966, Sweet & Maxwell). This text changed its title to The Law of Unjust Enrichment in its 8th edition in 2014.
42. (2014) 253 CLR 560; [2014] HCA 14 at [14]-[16].
43. Ibid at [78].
44. K Mason, JW Carter and GJ Tolhurst, Mason & Carter's Restitution Law in Australia (4th ed, 2021, LexisNexis) at [123].
45. See, for example, IM Jackman, The Varieties of Restitution (2nd ed, 2017, Federation Press) at 98; K Mason, JW Carter and GJ Tolhurst, Mason & Carter's Restitution Law in Australia (4th ed, 2021, LexisNexis) at [2103]-[2108]; J Edelman and E Bant, Unjust Enrichment in Australia (2nd ed, 2016, Hart Publishing) at 313.
46. K Mason, "Money Claims by and against the State" in P Finn (ed), Essays on Law and Government, Volume 2: the Citizen and the State in the Courts (1996, Law Book Co) 101 at 104.
47. Parliament of New South Wales, Law Reform Commission, First Report on the Limitation of Actions (October 1967).
48. Ibid at [103].
49. 2 & 3 Geo 6, c 21.
50. Westdeutsche Landesbank Girozentrale v Islington Borough Council [1994] 4 All ER 890 at 943.
51. 21 Ja 1, c 16.
52. United Kingdom, Law Revision Committee, Fifth Interim Report (Statutes of Limitation) (December 1936) at 7.
53. Ibid at 42.
54. J Unger, "Limitation Act 1939" (1940) 4(1) Modern Law Review 45 at 46.
55. [1948] 1 Ch 465 at 514.
56. GH Newsom and L Abel-Smith (3rd ed, 1953, Solicitors' Law Stationery Society) (Preston & Newsom).
57. Ibid at 33-34.
58. (1890) 44 Ch D 94.
59. Ibid at 105.
60. Ibid at 107.
61. Preston & Newsom at 34. The step was not taken in English law until Lipkin Gorman v Karpnale Ltd [1991] 2 AC 548; see also Westdeutsche Bank Girozentrale v Islington London Borough Council [1996] AC 669 at 710E; Kleinwort Benson Ltd v Glasgow City Council [1999] 1 AC 153.
62. [1914] AC 398 at 415.
63. (1760) 2 Burr 1005; 97 ER 676.
64. Sinclair v Brougham [1914] AC 398 at 416.
65. Ibid at 416-417.
66. Stoljar (1964, Law Book Company of Australasia) at 1.
67. Ibid at 17.
68. Goff & Jones (1966, Sweet & Maxwell) at 3-4.
69. Stoljar (2nd ed,1989, Law Book Company) at 28; Goff & Jones, (2nd ed, 1978, Sweet & Maxwell) at 103.
70. (1657) 2 Sid 4.
71. AWB Simpson, A History of the Common Law of Contract (1975, Clarendon Press) (Simpson) at 495.
72. Ibid at 493.
73. Ibid at 494.
74. Ibid at 505.
75. [1943] AC 32 at 63; [1942] 2 All ER 122.
76. (1993) 176 CLR 344 at 356; [1993] HCA 4.
77. (1964) 80 Law Quarterly Review 203 especially at 216.
78. (1677) 2 Mod 260 at 262; 86 ER 1060.
79. SJ Stoljar (above at fn 77) at 216.
80. (1690) 1 Show KB 156 at 157; 89 ER 509.
81. SJ Stoljar (above at fn 77) at 217. There is a useful description of this procedural evolution by Judge Manousaridis in "The Common Law Courts: Origins, Writs and Procedure" in JT Gleeson, JA Watson and RCA Higgins (eds) Historical Foundations of Australian Law (2013, Federation Press) at 44-47.
82. (1733) 2 Com 481; 92 ER 1169 at 1174
83. (1606) 11 Co Rep 89; 77 ER 1266.
84. Ibid at 1270. See also GS Robertson The Law and Practice of Civil Proceedings by and against The Crown (1908, Stevens and Sons) at 144-145.
85. See [23] above.
86. [2007] NSWCA 153 at [15].
87. [2012] NSWSC 426 at [104]-[107].
88. Ibid at [106]-[107].
89. Omitting transcript references.
90. [1971] VR 825 at 828.
91. (1975) 134 CLR 338 at 392; [1975] HCA 52.
92. (1990) 169 CLR 195 at 208; [1990] HCA 7.
93. Ibid at 205.
94. Cf Combet v Commonwealth (2005) 224 CLR 494; [2005] HCA 61 at [235] per Kirby J, see also at [44] per McHugh J.
95. (1939) 62 CLR 339 at 362; [1939] HCA 9; [1939] HCA 9.
96. See also Antill Ranger & Co Pty Ltd v Commissioner for Motor Transport (1955) 93 CLR 83 at 99; [1955] HCA 25.
97. Sir Owen Dixon "The Common Law as an Ultimate Constitutional Foundation", (1957) 31 Australian Law Journal 240 at 245, cited in Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 126-127; [1994] HCA 46.
98. As to which, see for example J Kirk, "Constitutional Implications (I): Nature, Legitimacy, Classification, Examples" (2000) 24(3) Melbourne University Law Review 645.
99. Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 134; [1992] HCA 45. See also Melbourne Corporation v Commonwealth (1947) 74 CLR 31 at 82; [1947] HCA 26.
100. See [24] above DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 October 2022