The Evolution of Unjust Enrichment and Restitution Law in the High Court of Australia

This article identifies four distinctive periods that mark the evolution of unjust enrichment jurisprudence in the High Court of Australia: the Mason period, the Gummow period, the French period and, most recently, the Kiefel period. It argues that at each of the first three stages unjust enrichment law in Australia has been influenced by three broad factors: first, the distinctive (and countervailing) intellectual leadership within the Court itself that revealed divergent attitudes to legal method and reasoning; second, and relatedly, the evolving and contentious role of Australia's state supreme and federal courts in developing the law; and third, the institutional tensions and divergences within the Australian federation that have fostered distinct strands or schools of Australian equitable jurisprudence. These considerations combine to make some sense of Australia's chequered pattern of development in this field and are suggestive of potential for renewed engagement with unjust enrichment analysis by the current High Court.