The autochthonous development and evolving approach to unjust enrichment by the High Court in Australia

Abstract

Although the High Court had once been lauded by English unjust enrichment scholars for its percipience in its early willingness to recognise the concept of unjust enrichment in 1987, its development and treatment of unjust enrichment has since been the subject of academic and legal controversy. This paper attempts to navigate and interrogate those controversies. It traces, examines and evaluates the evolving approach to unjust enrichment by the High Court from 1987 until today. In so doing, it proffers two observations. First, the High Court has developed and emphasised a conscience-based approach towards restitution, which has not been without contention. Second, despite the common refrain that the Australian and English courts have departed in almost incompatible ways with respect to their jurisprudential understanding and judicial methodology towards unjust enrichment, there is ostensibly greater substantive consistency between the two jurisdictions today than has been hitherto claimed.