Which of the Duties of Directors are Fiduciary

Presented by John Story

Advisors: Prof Chris Barker, Prof James Edelman

Date: 14 October 2020

Time: 10.30am

Venue: UQ School of Law; Level 3, Forgan Smith Building; Board Room (W353)

Abstract  

There is conflict under Australian law between the approach to the fiduciary classification of duties generally and the approach to the fiduciary classification specific to the duties of directors. The position under the general approach is that fiduciary duties are proscriptive and limited to the conflict and profit duties. The position under the approach specific to the duties of directors is that there are two additional fiduciary duties: the best interests and proper purposes duties. This is notwithstanding that those duties are commonly expressed prescriptively.

While this issue was addressed in the Bell Litigation, the reasoning is not a satisfactory resolution. The presentation will provide an analysis of each approach, highlight the nature of the conflict, discuss why it matters and propose a variation to resolve it. The conclusion is that, with the benefit of the variation, the duties of directors which are fiduciary are the duties of conflict and profit and the duties of best interests and proper purposes.