Restitution from Government in Australia: Woolwich and its Necessary Boundaries
9 Public Law Review 15-27
25 Pages Posted: 24 Sep 2015
Date Written: 1998
Traditionally, it has been extremely difficult for individuals to obtain restitution from government. The nature of payments made by citizens to the state is such that they will often fall outside the narrow categories of ‘unjustness’ which give rise to unjust enrichment in the law of restitution. However, in the 1993 decision of Woolwich Equitable Building Society v Inland Revenue Commissioners, the House of Lords held that an unlawful extraction of funds by government is unjust in the requisite sense simply because it is unlawful. There is as yet no definitive decision in Australia as to whether that principle will be adopted. Concerns have been raised regarding the constitutionality of such a move, and even greater concerns regarding its effect on the efficient working of government. However, careful examination suggests valid constitutional reasons for following Woolwich. Moreover, a number of restrictions are available to limit the operation of the principle. Some are radical and specific to public bodies, others are established defences not yet applied to government. This paper argues that Australian courts should adopt Woolwich alongside certain justified limitations, a response which will balance the need for certainty in government with the need for fair remedies for private parties.
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