Fiduciary Relationships. Associate Professor Cameron Stewart. Fiduciary?.
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Associate Professor Cameron Stewart
Equity intervenes ... not so much to recoup a loss suffered by the plaintiff as to hold the fiduciary to, and vindicate, the high duty owed to the plaintiff ... [T]hose in a fiduciary position who enter into transactions with those to whom they owe fiduciary duties labour under a heavy duty to show the righteousness of the transactions.
Maguire v Makaronis (1997) 188 CLR 449 at 465
The essence of fiduciary obligations is that the fiduciary is precluded from acting in any other way than in the interests of the person to whom the duty to so act is owed. In short, the fiduciary obligation is one of ‘undivided loyalty’: Beach Petroleum NL v Kennedy (1999) 48 NSWLR 46–7.
Breen v Williams at CLR 92; ALR 273, Dawson and Toohey JJ observed that the law has not formulated ‘any precise or comprehensive definition of the circumstances in which a person is constituted a fiduciary in his or her relations with another’
A number of commercial and professional relationships:
[I]t is quite clear that a fiduciary relationship may arise during negotiations for a partnership or, for that matter, a joint venture, before any partnership or joint venture agreement has been finally concluded if the parties have acted upon the proposed agreement as they had in this case. Whilst a concluded agreement may establish a relationship of confidence, it is nevertheless the relationship itself which gives rise to fiduciary obligations. That relationship may arise from the circumstances leading to the final agreement as much as from the fact of the final agreement itself.
The pecuniary dimension of the fiduciary’s concern may take the form of an actual, prospective, or possible profit to be made in, or as a result of, the decision he takes or the transaction he effects. Or it may take the form of an actual, prospective, or possible saving, or a diminution of a personal liability
A broker who is employed to buy shares cannot sell his own shares unless he makes a full disclosure of the fact to his principal, and the principal, with a full knowledge, gives his assent to the changed position of the broker ... [A] broker who secretly sells his own shares is in a wholly false position
Regal (Hastings) Ltd v Gulliver  2 AC 134
The directors of Regal formed a subsidiary company with the intention that Regal own all the shares in the subsidiary company. The directors sought a lease of two cinemas for the subsidiary company. However, the landlord was not prepared to grant the lease unless the subsidiary company had a paid-up capital of £5000. Because Regal did not have the necessary capital to invest £5000 in the subsidiary, the directors decided that Regal would invest £2000 and that they would invest the balance themselves. From the shares issued to them in the subsidiary, the directors made a profit.
The House of Lords unanimously ruled that irrespective of whether or not Regal could have purchased the shares, the directors were liable to Regal for the profit they made:
The point was not whether the directors had a duty to acquire the shares in question for the company and failed in that duty. They had no such duty. We must take it that they entered into the transaction lawfully, in good faith and indeed avowedly in the interests of the company. However, that does not absolve them for accountability for any profit which they made, if it was by reason and in virtue of their fiduciary office as directors that they entered into the transaction
Victoria University of Technology v Wilson  VSC 33, academics working at a university, exploited for themselves an opportunity to develop certain computer programs in circumstances where they were approached, by a former student of the university, for help with such a project whilst employed by the university. The court held that the academics breached fiduciary obligations owed to the university in that they should not have exploited the opportunity for themselves as the opportunity was one presented to the university which the university would have exploited for itself.
Re Agriculturist Cattle Insurance Co (1870) LR 5 Ch App 725, at 733, James LJ said:
The parent need not, as the Court of Appeal suggested in the case at bar, be consciously motivated by a desire for profit or personal advantage; nor does it have to be her own interests, rather than those of a third party, that she puts ahead of the child's. It is rather a question of disloyalty -- of putting someone's interests ahead of the child's in a manner that abuses the child's trust. Negligence, even aggravated negligence, will not ground parental fiduciary liability unless [**53] it is associated with breach of trust in this sense…. Returning to the facts of this case, there is no evidence that the government put its own interests ahead of those of the children or committed acts that harmed the children in a way that amounted to betrayal of trust or disloyalty.
"... it is the law of negligence and contract which governs the duty of a doctor towards a patient. This leaves no need, or even room, for the imposition of fiduciary obligations. Of course, fiduciary duties may be superimposed upon contractual obligations and it is conceivable that a doctor may place himself in a position with potential for a conflict of interest - if, for example, the doctor has a financial interest in a hospital or a pathology laboratory - so as to give rise to fiduciary obligations ... . But that is not this case
Guerin v R (1984) 13 DLR (4th) 321 at 334
The conclusion that the Crown is a fiduciary depends upon the further proposition that the Indian interest in the land is inalienable except upon surrender to the Crown. An Indian band is prohibited from directly transferring its interest to a third party. Any sale or lease of land can only be carried out after a surrender has taken place, with the Crown acting on behalf of the band’s behalf. ... The surrender requirement, and the responsibility it entails, are the source of a distinct fiduciary obligation owed by the Crown to the Indians.
Wewaykum Indian Band v Canada  4 SCR 245 – two bands of the Laich-kwil-tach First Nation claimed Indian reserves granted by Crown under an Act
The nature and importance of the appellant bands' interest in these lands prior to 1938, and the Crown's intervention as the exclusive intermediary to deal with others, including the province, on their behalf, imposed a fiduciary duty on the Crown but there is no persuasive reason to conclude that the obligations of loyalty, good faith and disclosure of relevant information were not fulfilled
R v Sparrow (1990) 70 DLR (4th) 385
Delgamuukw v British Columbia (1997) 153 DLR (4th) 193
R v Marshall (1999) 177 DLR (4th) 513
Mabo v Queensland (No 2) (1992) 175 CLR 1
Toohey J, at 199–205
Wik Peoples v Queensland (1996) 187 CLR 1
.Brennan CJ, in dissent, found that the Crown’s power to extinguish native title did not, by itself, give rise to fiduciary duties
Thorpe v Commonwealth (No 2) (1997) 144 ALR 677
The result is that whether a fiduciary duty is owed by the Crown to the indigenous peoples of Australia remains an open question. This Court has simply not determined it. Certainly, it has not determined it adversely to the proposition. On the other hand, there is no holding endorsing such a fiduciary duty, still less for the generality of the claim asserted in the first declaration in Mr Thorpe's writ.
Bodney v Westralia Airports Corporation Pty Ltd (2000) 180 ALR 91 – Lehane J
In my view, the foregoing discussion leads to two conclusions. One is that the authorities from other jurisdictions do not provide a firm basis for the assertion of a fiduciary duty of the kind for which the second applicants contend. The other is that the tendency of authority in the High Court - including, significantly, Breen - is against the existence of such a duty.
That, of course, does not mean that circumstances will not arise in which the Crown has fiduciary duties, owed to particular indigenous people, in relation to the alienation of land over which they hold native title. Nor does it mean that where, in particular circumstances, a duty of that kind is breached (or a breach is threatened) a constructive trust might not appropriately be imposed. But the second applicants' pleading does not, in my view, allege facts which would establish a fiduciary duty, on the part either of the State or of the Commonwealth, requiring either the State or the Commonwealth not to participate as they did (or in the manner in which they did) in the transactions as a result of which the Commonwealth obtained title to the land incorporating the claim area.