The development of a commercial fiduciary jurisprudence in the High Court of Australia : 1903 to 2009
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A commercial fiduciary jurisprudence in the High Court of Australia has developed through the judicial decision making processes of the Justices in cases involving fiduciaries in a commercial setting. Loyalty is established as the core obligation of a fiduciary. Trust and confidence are the generally accepted benchmarks of a fiduciary relationship. The foundation Chief Justice of the High Court, Sir Samuel Griffith, established an accepted methodology of detailed analysis of the ‘circumstances of the case’ to identify any fiduciary characteristics. Rules and constraints developed. The core rule of no conflict/no profit was analysed early in Reid v MacDonald.19 Informed consent, disclosure and the proscriptive/prescriptive dichotomy evolved with the increase in trade and commerce. Categorisation of fiduciary relationships is subject to the detailed analysis of the scope of the relationship with commercial ‘arm’s length’ relationship tending to negative a relationship. The Chief Justices and the Justices have work cohesively together to maintain consistency in the development of a commercial fiduciary jurisprudence. The High Court first referred to its own decisions, in commercial fiduciary matters, in Ngurli’s case in 1953, some 50 years after the establishment of the High Court in 1903.20 The Appellate jurisdiction of the High Court has also allowed the High Court to correct the interpretation of fiduciary law by State and Federal appellate courts, thus contributing to the thesis of a distinctive Australian commercial fiduciary law. The development of a fiduciary jurisprudence and the distinctiveness arises from a number of contributors which are detailed in the Conclusion herein and are generally comprised of the interpretation of precedent case law from within Australia and internationally; the cessation of appeals to the Privy Council;21 the effect of the fusion of law and equity in some jurisdictions; the introduction of consumer protection legislation covering misleading and deceptive conduct,22 the individual and personal judicial decision making methodology of the Justices of the High Court of Australia and a comparison with the commercial fiduciary jurisprudence of Canada and New Zealand.
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