Dear Colleagues;

The decision of Murphy J in Prygodicz v Commonwealth of Australia (No 2) [2021] FCA 634 (11 June 2021) https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2021/2021fca0634 approves a final settlement by the Commonwealth of its liabilities where the government had disgracefully extracted debts from social security recipients through an automated process (“Robodebt” as it has become known here) whereby alleged obligations were calculated by taking into account annual declared income for people known to be in irregular and casual receipt of income. Of interest for private law purposes, while approving the final settlement Murphy J briefly addressed the legal principles under which the litigants involved in the class action would have succeeded (or not) if the matter had gone to a final trial.

The discussion of unjust enrichment as a cause of action (with reference to the work of Bant and Edelman) is at [140]-[154], and is I think summed up here:

145    In my view the applicants and group members have good prospects of making out the money had and received claim on the basis that the Asserted Overpayment Debts were recovered from the applicants and group members ultra vires and unlawfully, as there was no lawful basis for the Commonwealth to raise and recover them, or, alternatively, on the basis of a mistake of law. Essentially that is because, at least in respect of the ultra vires claim, it is likely that the Court would hold that the reformulation of the law in WoolwichEquitable Building Society v Inland Revenue Commissioners [1993] AC 70; [1992] 3 All ER 737 applies in Australia.

There is also a brief discussion of a possible claim in negligence, where it is concluded (correctly I think) that it would have been difficult to find a common law duty of care in these circumstances: see [172]-[183].

Regards

Neil