Which of the Duties of Directors are Fiduciary?
Title: Which of the Duties of Directors are Fiduciary?
Presenter: John Story AO
Time and date: 1-2pm, Monday 25 October, 2021
Location: Law School Board Room (W353), Level 3, Forgan Smith Building, The University of Queensland, St Lucia (and on zoom).
Abstract
It is an absurdity that there should be continuing uncertainty in Australian law as to which of the duties of directors are fiduciary. In Breen v Williams, the High Court unequivocally held, as a matter of general principle, that fiduciary duties are proscriptive and restricted to the duties of no conflict and no profit. This decision disregarded established precedent concerned specifically with the duties of directors under which the duties of best interests and proper purposes are also fiduciary. The Supreme Court of Western Australia addressed this conflict in the Bell Litigation and chose to follow the approach specific to the duties of directors. Leave to appeal to the High Court was granted, but the appeal did not proceed because the matters in dispute were settled. The reasoning in the judgments in the Bell Litigation was neither consistent nor compelling, and the case does not constitute a satisfactory resolution of the conflict.
This presentation will address the dominant approaches under Australian law to fiduciary classification generally and to that specific to the duties of directors, and the basis of the conflict between the two approaches; explain why it matters that there should be certainty in the law in this area; and propose and justify a modification of the general approach that would resolve the conflict. With the benefit of the modification, the duties of directors that are fiduciary are the duties of no conflict and no profit and the duties of best interests and proper purposes.
About the Speaker
John Story AO is an adjunct professor of the TC Beirne School of law and former distinguished legal practitioner and company director. He is currently a PhD candidate within the School entering the final phases of submitting his thesis on directors’ duties under the principal supervision of Justice James Edelman. He was made an Officer of the Order of Australia in 2015 and was awarded the title of doctor of laws honoris causa in 2017. He was formerly the Chancellor of the University of Queensland between 2009 and 2016.
About Australian Centre for Private Law Events
The mission of the Australian Centre for Private Law is to foster the development and understanding of the private law through advanced theoretical, doctrinal, empirical and historical research, and the dissemination of that research through education and professional outreach. By supporting the work of its Fellows, the ACPL seeks to promote research in all areas of private law and to establish itself as a research centre of national and international importance. The core initiatives of ACPL are:
Research: To advance a deeper understanding of the structure, principles and policies of the private law through advanced theoretical, comparative, and empirical analysis.
Education: To promote, facilitate and disseminate the results of that research for the benefit of Australia’s social and economic fabric.
Professional Outreach: To engage the judiciary and members of the legal profession in discussion about the values, goals and methods of private law and the respective roles of the judiciary, the legal profession and the academy in the interpretation and reform of private law.
The ACPL embraces all branches of private law, including the law of contract, torts, trusts, equity, property, unjust enrichment, including theoretical and jurisprudential dimensions and contextual applications thereof.
Venue
And via Zoom
