14. Fiduciary Obligations

2019 ◽  
pp. 668-722
Author(s):  
Paul S Davies ◽  
Graham Virgo
Keyword(s):  
Best Interests ◽  
High Court ◽  
Fiduciary Obligations ◽  
Duty Of Loyalty ◽  
Fiduciary Relationships ◽  
Definition Of ◽  
High Court Of Australia ◽  
The Relationship ◽  
Academic Debate

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter begins with a definition of fiduciary relationships as presented by a retired judge of the High Court of Australia, Sir Anthony Mason. According to Mason, the relationship is a ‘concept in search of a principle’. Fiduciary relationships are voluntary, and some relationships, such as solicitor–client, are well recognized as fiduciary in nature. However, fiduciary relationships can arise in a wide variety of situations. A fiduciary owes a duty of loyalty to his or her principal, always acting in the best interests of said principal. Fiduciary obligations are strict, and any profits made by the fiduciary in breach must be disgorged to his or her principal. Where the profits are made from property that rightfully belonged to the trust, a constructive trust may be imposed upon the profits.

Fiduciary Law and Moral Norms

2019 ◽  
pp. 779-796
Author(s):  
James Penner
Keyword(s):  
Decision Making ◽  
Good Faith ◽  
Best Interests ◽  
Test Case ◽  
Moral Norms ◽  
Bad Faith ◽  
Employee Loyalty ◽  
Natural Justice ◽  
Duty Of Loyalty ◽  
Fiduciary Relationships

This chapter explores the connection between fiduciary relationships and moral norms or standards. It first considers the distinctions between employee “loyalty,” obligations of good faith, and the duty to act in the principal’s best interests. It then examines the two moral norms covered by the fiduciary’s duty of loyalty: the “bad faith breach” norm and the “necessary fiduciary norm.” The “bad faith breach” norm prohibits the fiduciary from taking advantage of his or her position by breaching, in bad faith, a duty owed to his or her principal. This norm applies to others who are not fiduciaries, such as employees and parents. The chapter explains how the “bad faith breach” norm relates to “breach of trust” or breach of faith and how the necessary fiduciary norm is associated with the norm of natural justice, which prohibits bias in decision-making. Finally, it reviews a test case that illustrates what sort of “duty of loyalty” arises in familial relationships.

Sex, Slavery and the High Court of Australia: The Contribution of R v. Tang to International Jurisprudence

2010 ◽  
Vol 10 (3) ◽  
pp. 403-423 ◽  
Author(s):  
Stephen Tully
Keyword(s):  
Human Rights ◽  
International Law ◽  
Significant Contribution ◽  
High Court ◽  
Sex Slavery ◽  
Definition Of ◽  
The Right ◽  
High Court Of Australia ◽  
Conceptual Integrity

AbstractThe judgment of the High Court of Australia in R v. Tang is a significant contribution to jurisprudence on the definition of slavery under international law. This case considered whether the intention of the perpetrator was a necessary element for the prosecution of that offence under Australian law. The High Court also preserved the conceptual integrity of slavery, evaluated the decisions in Kunarac and Siliadin, identified the powers attaching to the right of ownership as that expression appears in the 1926 and 1956 Slavery Conventions and employed a human rights orientation to contemporary manifestations of slavery. Although considerable practical challenges remain for enforcing the prohibition against slavery in Australia, R v. Tang marks a significant precedent likely to influence future international jurisprudence on the topic.

Fiduciary Law and Equity

2019 ◽  
pp. 743-762
Author(s):  
Henry E. Smith
Keyword(s):  
Contract Law ◽  
Higher Order ◽  
High Variability ◽  
Second Order ◽  
Fiduciary Duty ◽  
Private Law ◽  
Duty Of Loyalty ◽  
Fiduciary Relationships ◽  
The Relationship

This chapter explores the relationship between fiduciary law and equity, focusing on an idea that largely determines the place of fiduciary law in private law: that fiduciary law is equitable. In this regard, the term “equitable” implies that fiduciary law serves a characteristic equitable function, a function that solves problems of high variability and uncertainty through higher-order or metalaw. The prominent role played by second-order law in general and the equitable function in particular is what makes fiduciary law special among areas of private law. This chapter first identifies problems addressed by second-order law, and shows how the fiduciary relationships are equitably second order, especially for trustees, other categorical fiduciaries, and fact-specific fiduciaries. It then considers the duty of loyalty as a second-order duty equitably regulating the performance of primary duties and how fiduciary remedies for breach of fiduciary duty (for example, disgorgement) are equitably second order in a way that many prototypically private law remedies are not. Finally, it examines constructive trusts as a second-order aspect of fiduciary remedies and fiduciary law’s relation to contract law.

5. Passing off

2017 ◽  
Author(s):  
Tanya Aplin ◽  
Jennifer Davis
Keyword(s):  
Unfair Competition ◽  
Trade Marks ◽  
Passing Off ◽  
Concurrent Use ◽  
Bona Fide ◽  
The Law ◽  
Definition Of ◽  
Own Name ◽  
The Relationship ◽  
Academic Debate

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter discusses the protection which the law affords to unregistered trade marks through the tort of passing off. It covers the definition of passing off; the relationship between passing off and unfair competition; the elements of passing off; and defences to passing off (delay or acquiescence, bona fide use of the defendant’s own name, and concurrent use).

THE NATIVE TITLES ACT 1993—THE PETROLEUM INDUSTRY AND THE FUTURE

1994 ◽  
Vol 34 (2) ◽  
pp. 174
Author(s):  
Frank M. Hooke
Keyword(s):  
Oil And Gas ◽  
Petroleum Industry ◽  
Land Law ◽  
High Court ◽  
Native Title ◽  
Oil And Gas Exploration ◽  
Exploration And Production ◽  
High Court Of Australia ◽  
Relationship Of ◽  
The Relationship

The judgement of the High Court of Australia in 1992 in Mabo v. Queensland has had a major impact on land law in Australia.The Native Titles Act, 1993, is the first of what will be many steps in a long, complex legislative program to integrate 'native title', into Australia's land law.Those drafting the Native Title Act seemed to have concentrated on dealing with 'native title' issues in isolation and to have ignored or put to one side the need for it to mesh with other aspects of land law. This has created uncertainty for many users of land and will require review.Although the contrary was intended, the Act creates, in practical terms, significant uncertainty for renewal of existing oil and gas exploration and production titles. It also has implications for applicants for new titles and in due course for farmouts and assignments.Eventually additional legislation will be required to clarify the relationship of native title with the other areas of land law.

scholarly journals Gard and Yates v. GOSH, the Guardian and the United Kingdom: Reflections on the legal process and the legal principles

2017 ◽  
Vol 17 (4) ◽  
pp. 285-302
Author(s):  
Jo Bridgeman
Keyword(s):  
Medical Treatment ◽  
Best Interests ◽  
Legal Process ◽  
High Court ◽  
Legal Principles ◽  
The United Kingdom ◽  
European Court ◽  
Appeal Process ◽  
The Guardian ◽  
The Relationship

In this commentary, I examine the litigation over the medical treatment of Charlie Gard from the High Court in April 2017 to the European Court of Human Rights and back to the High Court in July 2017. As is usual in cases of conflict between parents and clinicians over a child’s medical treatment, referred to court for determination, at the heart of the dispute were sincerely and strongly held differences of opinion as to what was best for Charlie. The process of trying to convince Charlie’s parents of the futility of their hope was prolonged by the legal process as the case proceeded through the appeal stages with the view of the treating clinicians agreed by the judge prevailing each time. In the July hearing, after the appeal process had been exhausted, Francis J made great efforts to resolve the dispute and mediate the conflict, while retaining judicial authority, but by this time the relationship between the parents and hospital was irretrievably broken. The protracted legal process was traumatic for Charlie’s parents, stressful for Charlie’s clinicians and nurses and required the judiciary to authorize his continued ventilation when it had been concluded that this was contrary to Charlie’s best interests. I argue that this case demonstrates clearer than any before that a comprehensive review is required of the principles and processes applicable to disputes over children’s medical treatment.

Derrida on Pornography: Putting (It) Up for Sale

Derrida Today ◽  
2013 ◽  
Vol 6 (1) ◽  
pp. 97-114 ◽  
Author(s):  
Christopher Morris
Keyword(s):  
Cultural Studies ◽  
English Translation ◽  
The Body ◽  
The Past ◽  
French Original ◽  
Definition Of ◽  
Critical Discourses ◽  
Academic Debate

Over the past thirty years, academic debate over pornography in the discourses of feminism and cultural studies has foundered on questions of the performative and of the word's definition. In the polylogue of Droit de regards, pornography is defined as la mise en vente that is taking place in the act of exegesis in progress. (Wills's idiomatic English translation includes an ‘it’ that is absent in the French original). The definition in Droit de regards alludes to the word's etymology (writing by or about prostitutes) but leaves the referent of the ‘sale’ suspended. Pornography as la mise en vente boldly restates the necessary iterability of the sign and anticipates two of Derrida's late arguments: that there is no ‘the’ body and that performatives may be powerless. Deriving a definition of pornography from a truncated etymology exemplifies the prosthesis of origin and challenges other critical discourses to explain how pornography can be understood as anything more than ‘putting (it) up for sale’.

ADMINISTRATIVE AND LEGAL STATUS OF THE CAPITAL OF UKRAINE - THE HERO CITY OF KYIV AS A GUARANTEE OF THE RIGHTS OF CITIZENS OF UKRAINE AND THE TERRITORIAL COMMUNITY OF THE CITY

2017 ◽  
Author(s):  
Oleksii Chepov ◽  
Keyword(s):  
Legal Status ◽  
Modern World ◽  
Legal Regime ◽  
Legal Doctrine ◽  
City Councils ◽  
The Social ◽  
District Management ◽  
Definition Of ◽  
The Relationship ◽  
The City

The qualitative and clear definition of the legal regime of the capital of Ukraine, the hero city of Kyiv, is influenced by its legislative enshrinement, however, it should be noted that discussions are ongoing and one of the reasons for the unclear legal status of the capital is the ambiguity of current legislation in this area. Separation of the functions of the city of Kyiv, which are carried out to ensure the rights of citizens of Ukraine and the functions that guarantee the rights of the territorial community of the city of Kyiv. In the modern world, in legal doctrine and practice, the capital is understood as the capital of the country, which at the legislative level received this status and, accordingly, is the administrative and political center of the state, which houses the main state bodies and diplomatic missions of other states. It is the identification of the boundaries of the relationship between the competencies of state administrations and local self-government, in practice, often raises questions about their delimitation and ways of regulatory solution. Peculiarities of local self-government in Kyiv city districts are defined in the provisions of the Law on the Capital, which reveal the norms of the Constitution in these legal relations, according to which the issue of organizing district management in cities belongs to city councils. Likewise, it is unregulated by law to lose the particularity of the legal status of the territory of the city. It should be emphasized that the subject of administrative-legal relations is not a certain administrative-territorial entity, but the social group is designated - the territorial community of the city of Kiev, kiyani. Thus, the provisions on the city of Kyiv partially ignore the potential of the territorial community.

Search for Principle - The Government's Liability in Negligence for the Careless Exercise of its Statutory Powers

2000 ◽  
Vol 31 (3) ◽  
pp. 629
Author(s):  
Thomas Geuther
Keyword(s):  
New Zealand ◽  
Public Law ◽  
Public Authority ◽  
Special Treatment ◽  
Duty Of Care ◽  
Supreme Court Of Canada ◽  
Public Authorities ◽  
High Court ◽  
The Supreme Court ◽  
High Court Of Australia

For many years the English courts have struggled to develop a principled approach for determining when a public authority can owe a duty of care in respect of the exercise of its statutory powers. Initially, public authorities received no special treatment. Then the courts conferred an almost complete immunity on them, requiring public law irrationality to be established before considering whether a duty could arise. The English approach has not been adopted elsewhere in the Commonwealth. The High Court of Australia and the Supreme Court of Canada have developed different tests, and the New Zealand courts, while never explicitly rejecting the English position, have never followed it. This paper argues that a modified version of the Canadian Supreme Court's approach should be adopted in New Zealand. It proposes that irrationality be a precondition to the existence of a duty of care only where policy considerations are proved to have influenced the decisions of a public authority in exercising its statutory powers.

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