Federal court of australia

MISCELLANEOUS ISSUES.

503 A number of issues do not arise for determination.

35.The Fiduciary Duty argument

504 The applicant alleged in her pleadings that the Minister owes her a fiduciary duty. It may be inferred from [20]–[22] of the statement of claim that the duties for which she contends are:

(1) a duty not to act otherwise than in her best interests ([20(a)]);

(2) a duty to act in her best interests ([20(b]); and

(3) a duty to procure for her a safe and lawful abortion ([22]).

However, in my judgment, the applicant really only seeks to establish the first two duties with a view to establishing the third and its negative: that the Minister not procure any abortion that is not safe and lawful. There is no call to consider any wider manifestation of those putative duties.

505 I asked senior counsel for the applicant in opening whether this claim was advanced. I was told they were not withdrawn, but that ultimately the applicant “see[s] this as a duty of care case,” so that if the facts necessary to establish a duty of care case were not established, that may mean that neither would be the other claims. Nothing was said on the issue in closing submissions by either party. There is a fair basis for thinking that the claim was not pressed. But if it was pressed, I would have held that no fiduciary duty existed, for reasons that follow.

506 I was not taken to authority recognising the existence of a fiduciary duty as between people in the circumstances of the parties to this proceeding. However, the classes of fiduciary relationships are not closed (Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 68 (Gibbs CJ)), and it is of course open to the applicant to seek to establish the existence of a duty in this case notwithstanding its novelty.

507 For the most part the recognised categories of relationship have a commercial flavour (e.g., lawyer and client, company director and company, partner and partner, agent and principal). But, not always: it is recognised, for example, that the relationship of guardian and ward is fiduciary: Clay v Clay (2001) 202 CLR 410 at 428–430; Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417 at 420–421 (Dixon J); Tusyn v State of Tasmania (2004) 13 Tas R 51 at [10] (Blow J). There may well be a fair argument that the facts of the present case establish a relationship sufficiently analogous to that existing between guardian and ward that the relationship between the applicant and the Minister should also be seen as fiduciary in nature.

508 But that would not suffice for the applicant. As the guardian/ward cases disclose, not every duty arising as between parties to a fiduciary relationship is a fiduciary duty. In Paramasivam v Flynn (1998) 90 FCR 489, the appellant alleged that he had been sexually assaulted by the respondent some years prior, and that those sexual assaults constituted breach of a fiduciary duty owed by the respondent to the appellant. A single judge of the Supreme Court of the Australian Capital Territory had entered judgment against the appellant on the basis that the claim was commenced outside of relevant limitation periods and on the basis that it had not been shown that it was just and reasonable to extend the limitation period. On appeal, Miles, Lehane and Weinberg JJ were called upon to assess whether the primary judge had erred in considering the strength of the equitable claim for breach of fiduciary duty.

509 Their Honours recognised that the guardian/ward relationship may give rise to duties typically characterised as fiduciary—not to allow duty and interest to conflict and not to make an unauthorised profit (at 504). However, the Court continued by noting that the interests that fiduciary doctrines “have hitherto protected are economic interests” (at 504). The appellant’s claim was novel, which did not condemn it but did require that any advance in the law such as to cover the appellant’s claim must be “justifiable in principle.” Their Honours held that the advance put before them was not easily justifiable (at 505):

Here, the conduct complained of is within the purview of the law of tort, which has worked out and elaborated principles according to which various kinds of loss and damage, resulting from intentional or negligent wrongful conduct, are to be compensated. That is not a field on which there is any obvious need for equity to enter and there is no obvious advantage to be gained from equity's entry upon it. And such an extension would, in our view, involve a leap not easily to be justified in terms of conventional legal reasoning.

510 Their Honours doubted that a parent/child relationship was rightly described as “fiduciary” (contra M(K) v M(H) (1992) 96 DLR (4th) 289). They discussed the judgment of the High Court in Breen v Williams (1996) 186 CLR 71, which considered whether a doctor owed fiduciary duties to a patient to disclose medical records to that plaintiff. In holding that a doctor did not owe such duties, Dawson and Toohey JJ said this (at 93, 94):

... it is the law of negligence and contract which governs the duty of a doctor towards a patient. This leaves no need, or even room, for the imposition of fiduciary obligations. Of course, fiduciary duties may be superimposed upon contractual obligations and it is conceivable that a doctor may place himself in a position with potential for a conflict of interest—if, for example, the doctor has a financial interest in a hospital or a pathology laboratory—so as to give rise to fiduciary obligations ... But that is not this case.

Gaudron and McHugh JJ said this (at 110):

In our view, there is no basis upon which this Court can hold that Dr Williams owed Ms Breen a fiduciary duty to give her access to the medical records. She seeks to impose fiduciary obligations on a class of relationship which has not traditionally been recognised as fiduciary in nature and which would significantly alter the already existing complex of legal doctrines governing the doctor-patient relationship, particularly in the areas of contract and tort. As Sopinka J remarked in Norberg v Wynrib [[1992] 2 SCR 226 at 312; (1992) 92 DLR (4th) 449 at 481]: 'Fiduciary duties should not be super imposed on these common law duties simply to improve the nature or extent of the remedy.'

511 Those passages, with others from Breen and other cases, were relied upon by the Court in Paramasivam in order to conclude, at 507–508 thus:

… [A] fiduciary claim, such as that made by the plaintiff in this case, is most unlikely to be upheld in Australian courts. Equity, through the principles it has developed about fiduciary duty, protects particular interests which differ from those protected by the law of contract and tort, and protects those interests from a standpoint which is peculiar to those principles.

512 In Cubillo v Commonwealth (2001) 112 FCR 455, one of the issues was whether the Director of Native Affairs or the Commonwealth owed fiduciary obligations to Aboriginal children removed from their families. As in Paramasivam, a finding that fiduciary duties were owed to the appellant was not enough for success. As the Court held at [462], “the fact that one person is in a fiduciary relationship with another does not mean that all aspects of their relationship are necessarily governed by equitable principles”. The Court continued thus (at [463]):

On the appellants’ case, the fiduciary duties owed by the Commonwealth and the Directors were largely co-extensive with the scope of the Commonwealth’s duty of care to the appellants. So, too, the alleged breaches of fiduciary duty were largely co-extensive with the alleged breaches of the Commonwealth’s duty of care. … As the reasoning in Pilmer v Duke Group suggests, Australian law has set its face firmly against the notion that fiduciary duties can be imposed on relationships in a manner that conflicts with established tortious and contractual principles.

513 And, their Honours continued as follows at [465]–[466]:

Insofar as the appellants’ case on fiduciary duties is co-extensive with their case on breach of duty of care, it faces two insurmountable obstacles. … The second obstacle is that, in any event, the appellants’ claims are, to use the language of Paramasivam v Flynn, within the purview of the law of torts. As the High Court has held, there is no room for the superimposition of fiduciary duties on common law duties simply to improve the nature and extent of the remedies available to an aggrieved party. If it had been the case that the removal and detention of the appellants were not authorised by the Ordinances (or otherwise justified by law), those who caused the removal or detention would be guilty of tortious conduct and liable at common law. There would be no occasion to invoke fiduciary principles.

514 Similar statements were made by a Full Court of the Supreme Court of South Australia (Doyle CJ, Duggan and White JJ) in State of South Australia v Lampard-Trevorrow (2010) 106 SASR 331. The appellant sought damages for loss arising from being placed into foster care without the consent of his parents. The Court discussed (at [327]–[330]) Cubillo and Paramasivam. Their Honours quoted (at [332]) passages from Breen and at [331] the following extract from Tusyn at [11]:

However, when the fiduciary relationship of guardian and ward exists, it does not necessarily follow that the guardian owes the ward a fiduciary duty to take reasonable care for the ward's physical safety. One needs to distinguish between moral duties, non-fiduciary duties imposed by law, and fiduciary duties.

515 In the end, the Court held that the Aborigines Protection Board did not owe to the appellant fiduciary duties as alleged. As is apparent from [337], significant in that reasoning was that the putative duties “[were] not proscriptive duties, which such duties usually are, but duties of affirmative action, which fiduciary duties usually are not”. The Court relied upon Breen at 113, whereat Gaudron and McHugh JJ said the following, in distinguishing the Canadian position (citations omitted):

… Australian courts only recognise proscriptive fiduciary duties. … In this country, fiduciary obligations arise because a person has come under an obligation to act in another's interests. As a result, equity imposes on the fiduciary proscriptive obligations—not to obtain any unauthorised benefit from the relationship and not to be in a position of conflict. If these obligations are breached, the fiduciary must account for any profits and make good any losses arising from the breach. But the law of this country does not otherwise impose positive legal duties on the fiduciary to act in the interests of the person to whom the duty is owed.

516 The final case that I mention in this connection is Webber v New South Wales (2003) 31 Fam LR 425. The plaintiff alleged that, while a state ward in the care of the defendant, he had been sexually and physically assaulted. He advanced a negligence claim and also sought equitable damages for breach of fiduciary duty. The defendant sought to strike out the latter claim. Dunford J granted the application. His Honour noted (at [25]) that in Hospital Products Mason J identified the “critical feature” of fiduciary relationships as being that the fiduciary “undertakes or agrees to act for or on behalf of or in the interest of another person in the exercise of a power or discretion which will affect the interest of that other person in a legal or practical sense.” On the other hand, said Dunford J (at [29]), “a parent or guardian does not act on behalf of, or exercise a power or discretion affecting the interests of, a child or ward in a legal or practical sense,” except with certain irrelevant exceptions. In particular, “he or she does not exercise a power or discretion affecting the interests of that other person when failing to provide proper care, nurture or supervision of the child or ward”. At [34], Dunford J identified that no conflict of interest or unauthorised profit-making was alleged, and that instead that the plaintiff alleged “simply a failure to take reasonable care.” That, his Honour held, enlivened tortious principles, not equitable ones. Summarising, at [47], his Honour said this:

… I am satisfied that even if one person stands in a fiduciary relationship to another, such as guardian and ward, the fiduciary duties which arise from such relationship and breach of which gives rise to a right to equitable compensation:

a) are confined to cases where the fiduciary acts for, or exercises a discretion on behalf of, the other party;

b) concern economic or proprietorial rights only, including possible confidential information (which is itself really a form of property);

c) are proscriptive and not prescriptive; and

d) are not a substitute or alternative description for breaches of duty owed in tort or contract arising out of the same facts or circumstances.

517 The latter two principles, and in particular the final one (which has really been the focus of my discussion above), are enough, in my judgment, to dispose of the applicant’s fiduciary duty argument. What is alleged is that the Minister would expose the applicant to risk of harm in failing to discharge a duty that he assumed to procure for her a safe and lawful abortion. Allegations of that kind are in the purview of the law of tort. As in Paramasivam, there is not obvious advantage to be gained from the superimposition of equitable duties.

518 It seems to me that Paramasivam and Cubillo are sufficiently analogous to the present case that, if the applicant were able to establish a fiduciary duty by reference to the similarity of a guardian/ward relationship to the relationship she has with the Minister, the limitations on fiduciary duties arising therefrom would nevertheless defeat this aspect of her claim.

36.Legal unreasonableness

519 At [23]–[26] of her amended statement of claim, the applicant pleaded that on 14 April 2016, she had applied to the Minister for an exercise of power under s 198AHA or s 198B such that she was brought to Australia for the purpose of enabling her to receive a safe and lawful abortion. It was pleaded that it would be legally unreasonable for the Minister to refuse that application, and that any decision to that effect would be invalid. The applicant also sought that the following decisions should be set aside as legally unreasonable:

(i) the Minister’s decision that the applicant should go to Papua New Guinea rather than Australia for an abortion; and

(ii) the Minister’s decision on 26 April 2016 that he would not follow IHMS’s Third RMM (which recommended Australia as the location of her treatment), and would instead continue to procure for her an abortion at PIH.

520 On 27 April 2016 I caused an email to be sent to the parties saying that I wished to hear submissions as to whether, in the light of s 476A of the Act, this Court had jurisdiction to deal with that part of the applicant’s case that raises whether it is legally unreasonable for the respondents to refuse (or have refused) to exercise powers under s 198AHA or s 198B of the Act. The Minister submitted that, because of s 476A, there was no jurisdiction. As to the possibility of s 44 of the Judiciary Act 1903 (Cth) being a source of jurisdiction, the Minister said as follows:

The judicial review aspects of the Applicant’s claim were not a part of the Applicant’s case in the High Court. They were only added when the statement of claim was filed in this Court. It is possible that s 44(2) of the Judiciary Act 1903 (Cth) might overcome part of this problem, if it is taken that the Federal Court, on remitter, is exercising the same jurisdiction as the High Court (Plaintiff P1/2003 v Ruddock (2007) 157 FCR 518 at [98], [108]–[109]). However, the difficulty with that argument is that, if the judicial review claim had been part of the Applicant’s case in the High Court, it could not have been remitted to this Court: s 476B(2). Further, s 476B, like s 494AB, is expressed to have effect despite any other law, and expressly overrides s 44 of the Judiciary Act. In the face of these provisions, remitter cannot create a power to add further claims which are beyond this Court’s jurisdiction and which could not themselves have been part of a remitted matter. It is submitted that the reasoning in Plaintiff P1/2003 does not apply directly in those circumstances and the limits on jurisdiction outlined above render the Applicant’s claims in paragraphs [23]-[27] of the statement of claim, and the prayer for relief in paragraph F, incompetent.

521 The reference to “F” of the relief was to the applicant’s original statement of claim. In the amended statement of claim, the reference would be to paragraph “H”.

522 The applicant did not make submissions against the proposition that I had no jurisdiction. In the course of hearing some suggestion was made that the applicant might commence a proceeding alleging legal unreasonableness in the Federal Circuit Court and then seek to have it transferred to this Court and joined with this proceeding. However, I was advised on 2 May 2016 that the applicant no longer intended to take that course.

523 I regard the legal unreasonableness claims as not pressed. In the absence of argument on the s 44 Judiciary Act point, I decline to express a view.

37.Exceeding limits of power

524 At [12(b)], the applicant pleaded that for the Minister to fail to procure for her a safe and lawful abortion would constitute an excess by him of the limits of the power conferred by s 198AHA of the Act and s 61 of the Constitution.

525 Very little was said on the question in the applicant’s written submissions. The essence is at [146], namely that “the Commonwealth will exceed its power if it purports to engage in the commission of a tort or a breach of the [Papua New Guinean] Criminal Code”. Nothing was said to the point in oral submissions. I am in no position to make a finding that the Minister’s conduct breached the criminal law of another country. Thus, this claim rises or falls with the tort claim. Putting aside the Criminal Code, if there was no tort then (on the applicant’s submissions) there is no excess of power. If there is a tort, then the excess of power argument might succeed but ex hypothesi the applicant is already entitled to relief due to the tort. The relief would be the same: an injunction restraining the commission of the tort.

526 In the circumstances, I propose to say nothing further on the issue.

38.Issues associated with mandatory injunctions

527 The Minister made two submissions concerning mandatory injunctions. The first can be summarised by saying that the test for mandatory injunctions is strict (c.f. Redland Bricks), that such injunctions are rare, and that the test is in this case unfulfilled. The second can be summarised by saying that the Court would not issue a mandatory injunction where mandamus would not lie (c.f. Plaintiff M168/10 v Commonwealth (2011) 85 ALJR 790 at [37]).

528 I do not propose to issue a mandatory injunction. The applicant’s case was that she apprehended a tort, constituted by the failure by the Minister to exercise due care in discharging the responsibility that he assumed to procure for her a safe and lawful abortion. I am satisfied that the apprehended tort should be restrained. My relief will restrain the Minister from failing to discharge his duty.

529 In that light, it is not necessary to consider the Minister’s submissions that I outlined at [527] above.

I certify that the preceding five hundred and twenty-nine (529) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.

Associate:

Dated: 6 May 2016