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FIDUCIARY DUTIES IN A COMMERCIAL CONTEXT: COMPARING ENGLISH AND AUSTRALIAN APPROACHES

Lloyd's Maritime and Commercial Law Quarterly

FIDUCIARY DUTIES IN A COMMERCIAL CONTEXT: COMPARING ENGLISH AND AUSTRALIAN APPROACHES

Ashley Black *

The development of fiduciary principles in each of England and Wales and Australia has been influenced by case law and academic writings in the other jurisdiction. This article addresses some commonalities and divergences in the application of fiduciary principles to commercial dealings in the two jurisdictions, including when fiduciary duties are established; issues in partnerships, joint ventures and other commercial arrangements; the question whether fiduciary duties can have a positive character; and the limitation and exclusion of fiduciary duties by contract.

INTRODUCTION

In this article, I will focus on the extent of commonalities and differences in the treatment of fiduciary duties in a commercial setting in the law of England and Wales on the one hand and Australia on the other. I will largely put aside remedial questions, despite their obvious significance. It would not be particularly surprising if there were divergences between the approaches in the two jurisdictions, since their law has diverged in other areas, at least since the abolition of appeals from Australian courts to the Privy Council between 1966 and 1986.1 Some of those divergences have emerged in equity, including the greater weight given to an organising principle of unconscionability in Australian law in the 1980s, the different approaches to accessorial liability to a breach of fiduciary duty and the differing approaches to whether the imposition of a constructive trust properly involves an exercise of judicial discretion.2 Writing in 2013, Professor Paul Finn had hinted at a difference in the approach of English and Australian courts to commercial matters, noting a willingness in English law to accept “a degree of self-seeking and ruthless behaviour” in

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