Greg Weeks, ‘The Public Law of Restitution’

Restitution as the response to unjust enrichment has been available for a long time. As a body of law, it has mainly related to transactions between private entities. The decision of the House of Lords in Woolwich Equitable Building Society v Inland Revenue Commissioners [1993] AC 70 changed the law of restitution as it had developed in the UK up to that point. It did this by holding that an unlawful demand for a payment of tax which was not due was an unjust factor capable of making out unjust enrichment and enabling the claimant to obtain restitution of the money paid and interest. This government-only unjust factor operates in a fashion which is distinct from unjust factors which focus on the intention of the claimant to transfer wealth. Instead it asks whether the transfer of money was consequent on an unlawful demand. Woolwich has not as yet been adopted in Australia, but this article argues that it should be, albeit not as a direct constitutional claim. It further discusses the importance of Woolwich as a basis for restitution consequent on the use of soft law, which is a pervasive and highly effective means of regulation which otherwise results in almost no legal consequences.

Weeks, Greg, The Public Law of Restitution (May 4, 2014). Melbourne University Law Review (2014) 38(2), Forthcoming; UNSW Law Research Paper No 2014-11.

First posted 2014-05-06 06:23:19

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