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Article Excerpt
[This article examines the role that amici curiae can play in improving the protection of non-economic interests in Australian fiduciary law. The current lack of protection of non-economic interests in Australian fiduciary law is doctrinally and philosophically problematic. In comparison with Australian fiduciary law cases, amici curiae participate more frequently and play a more significant role in the fiduciary law cases of other jurisdictions where non-economic interests are more readily protected. The increased participation of amici curiae in Australian courts would facilitate a more sensitive development of fiduciary principles in relation to non-economic interests. Furthermore, increased participation of amici curiae is consistent with the general principles and underlying concepts of fiduciary law and equity.]
CONTENTS I Introduction II Non-Economic Interests and Fiduciary Law A The Law B Feminist Critique III Amici Curiae and M(K) A Amici Curiae B Intervention in M(K) 1 Fiduciary Breach 2 Delay IV Rationales for Increased Amicus Participation A Improvement of Fiduciary Law B Consistency with General Principles of Equity V Application to Australian Fiduciary Law: Paramasivam A Fiduciary Breach B Delay VI Conclusion
I INTRODUCTION
The current lack of protection of non-economic interests in Australian fiduciary law is problematic from both doctrinal and policy perspectives. (1) An important feminist objection to this approach is that it systematically disadvantages sexual abuse victims, who are overwhelmingly women. (2) The more expansive Canadian jurisprudence recognises that sexual abuse can be a fiduciary breach even where non-economic interests are involved. (3) A notable feature of the Canadian case law is the frequent participation of interveners or amici curiae, (4) whereas in Australia amicus participation is less frequent. (5)
In this article, I argue that amici may, in some cases, play a facilitative role in the more sensitive development of Canadian fiduciary law in the sexual abuse context. Furthermore, Australian courts should more frequently permit amicus participation because this would contribute to the development of fiduciary principles in relation to non-economic interests which more appropriately recognise women's interests. In Part II, I compare the approach taken in Australian fiduciary law to non-economic interests with that of Canadian courts, and discuss feminist objections to the Australian approach. In Part III, I analyse the case of M(K) v M(H) ('M(K)') (6) and argue that amici can influence the responsive development of fiduciary principles with respect to non-economic interests. In Part IV, I consider in more detail the rationales for increased amicus participation. In Part V, I argue that amicus participation in the leading Australian case of Paramasivam v Flynn ('Paramasivam') (7) could have facilitated an approach that would have been different from and better than the predominant Australian approach.
II NON-ECONOMIC INTERESTS AND FIDUCIARY LAW
A The Law
Outside the presumptive fiduciary relationships, which are not entirely settled, (8) Australian courts predominantly favour the 'undertaking approach' when finding a fact-based fiduciary relationship. (9) In Australia, fiduciary duties are generally proscriptive. (10) Australian courts also tend to view an economic interest as a requirement of a successful fiduciary action; where non-economic interests such as harm to bodily integrity and emotional harm are involved, there is no relevant subject matter to which a fiduciary duty can attach. (11) This may be the case even where the relationship or the alleged misconduct appears to satisfy the elements of a fiduciary action. (12)
Canadian courts, on the other hand, recognise a wider range of presumptive fiduciary relationships. (13) It is likely that this has been influenced by the Canadian tendency to emphasise the requirements of a power--dependency relationship and vulnerability when defining what constitutes a fiduciary relationship. (14) In addition, fiduciary duties tend to be prescriptive (15) and the courts more readily recognise that fiduciary law may protect both economic and 'human and personal interests.' (16)
The different treatment of non-economic interests in Australian and Canadian fiduciary law can be seen in a number of contexts. In the context of protecting the interests of indigenous people, Australian courts, unlike Canadian courts, (17) have been reluctant to apply fiduciary law where the harm claimed is non-economic--for example, the psychological harm and loss of familial and cultural associations claimed in Stolen Generation cases. (18) In relation to the issue of whether a patient has a right to access their medical records, Canadian fiduciary law recognises that a doctor has a fiduciary obligation to provide access in some circumstances, (19) whereas Australian courts are reluctant to recognise that such a fiduciary obligation exists. (20) The different approaches taken by Australian and Canadian courts to fiduciary cases involving non-economic interests may be viewed as an inadequacy of Australian fiduciary jurisprudence. (21) This inadequacy is frequently seen in the context of sexual abuse cases.
B Feminist Critique
The failure of Australian fiduciary claims based on non-economic interests systematically removes certain advantages of bringing a fiduciary claim from the reach of sexual abuse victims, who are overwhelmingly women. (22) For example, while delay in bringing a tort action may result in the action being statutorily barred, a statutory limitation period does not generally apply to fiduciary actions. (23) Although the defence of laches may bar fiduciary relief, its application to fiduciary claims tends to be more generous when compared with actions to which limitation statutes apply. (24) The inability of sexual abuse victims to access this advantage of fiduciary claims is problematic because such plaintiffs typically suppress their memories of the abuse and do not realise their symptoms are related to the abuse until well after the expiry of the statutory limitation period. (25)
The conceptual advantage of a fiduciary action based on sexual abuse is also denied to plaintiffs when the courts refuse protection of non-economic interests in fiduciary law. In some cases, fiduciary law better captures particular aspects of the wrong compared with tort or contract law. (26) For example, while some aspects of childhood sexual abuse are adequately captured by tort law through sexual assault and battery, (27) other aspects of the abuse, in particular situations, are better captured by fiduciary law. (28) All instances of such abuse are heinous wrongs. (29) This observation is not diluted by recognising that certain aspects of sexual exploitation by a parent or guardian of their child are different from the violation of a child by a stranger. (30) However, incest typically has distinct features. For example, the abuse occurs over a long period of time, the parent manipulates and gradually sexualises almost all aspects of their relationship with the child, and, as the child becomes aware of the wrongfulness of the conduct, the parent ensures the child's silence, for example, through inducements and threats. (31) Unlike a parent or guardian, a stranger is not in the same position of trust and does not have the same ability to access and manipulate the child. (32) Thus, in general, the wrong of sexual abuse committed by a stranger is adequately captured by tort--it does not usually involve the additional fiduciary dimensions of sexual exploitation in a parent-child or guardian-child relationship. In the latter context, concurrent liability in tort and fiduciary law is preferable. (33) This would facilitate a more comprehensive recognition of the dimensions of the wrong and, as a result, assist sexual abuse victims to better access the therapeutic benefits of bringing proceedings against their abuser. (34) Inadequate recognition of the harm, through denial of its fiduciary dimension, may reinforce the victim's feelings of exploitation by people in positions of authority. (35)
The use of 'gender neutral' principles to confine fiduciary actions to cases involving economic interests tends to conceal the possibility that women plaintiffs may be systematically disadvantaged. (36) The courts often give inadequate recognition to the social and policy contexts which influence the construction of facts and legal issues. (37) For example, insufficient attention is given to the gendered nature of sexual violence when the legal inquiry is concerned with whether there is any 'subject matter' to which fiduciary duties can attach. (38) A further example may be found in Paramasivam, where the possibility of a fiduciary action based on non-economic interests was positioned as the 'other' novel action, (39) while actions based on economic interests fell within 'conventional legal reasoning' and were legitimate. (40) Neutral language and principles, utilised in cases such as Paramasivam, subordinate the need to consider the impact of courts' decisions on the overwhelmingly female victims of sexual assault. (41) The admirable rhetoric--that fiduciary principles protect the vulnerable by preventing the fiduciary from self-interestedly using its position of trust (42)--further diverts attention away from the difficulties experienced by women plaintiffs.
The presentation of the 'facts of the case' and 'the law' as absolute truths often excludes women's perspectives. (43) By deconstructing the factual and legal narratives in fiduciary law decisions, it is possible to reveal stereotypical assumptions about women. (44) This was exemplified in Norberg v Wynrib ('Norberg'), in which the majority held there was no fiduciary breach. (45) In particular, aspects of the narrative of Sopinka J were similar to the 'stock story' in Louth v Diprose ('Louth'), (46) in which the woman was characterised as a femme fatale who manipulated and exploited the feelings of infatuation suffered by the powerless man. (47) This factual construction silenced an alternative narrative of continued sexual harassment of a woman, who was struggling financially, by a well-educated and wealthy man. The woman had also suffered depression due to the breakdown of her marriage and as a result of a brutal rape. (48) Similar to the dominant narrative in Louth, Sopinka J presented the claimant as the seducer and manipulator. For example, Sopinka J found that the patient played on the loneliness of the doctor to get what she wanted, that the doctor was impotent and never used any physical force, and that the patient consented to the sexual acts. (49)
In contrast, the minority judges, who found there was a fiduciary breach, emphasised that the doctor was a professional, well-educated man who had exploited his younger and less knowledgeable patient. (50) The patient was ill with an uncontrollable addiction and had 'begged' him for help. (51)
III AMICI CURIAE AND M(K)
A Amici Curiae
Amici curiae may play a valuable role in appropriately responding to the practical and conceptual difficulties created by the lack of protection of non-economic interests by Australian fiduciary law. Under the traditional view of adversarial litigation, (52) an amicus is viewed as an impartial individual who advises on the interpretation and status of the law in the interests of justice, rather than as an advocate for any party to the proceedings. (53) In Australia, unlike interveners, (54) amici do not formally join proceedings as parties. (55) Amici are restricted to addressing the court on an issue on which the court will be assisted and it is doubtful that amici can tender evidence, call witnesses or cross-examine them. (56) An amicus may be heard whenever the court thinks it is proper and in the interests of justice. (57) Furthermore, the extent of their participation in proceedings is within the discretion of the court. (58) In practice, amici are not frequently included in Australian litigation. (59)
In Canada, 'intervener' is often used as a broad term which includes amici curiae. (60) Intervention is allowed for the purpose of rendering assistance to the court by way of argument. (61) As in Australia, the court has a broad discretion to decide whether to appoint an intervener and the extent of its participation in proceedings. (62) Compared with Australia, interveners play a more frequent and significant role in Canadian courts, (63) including where societal interests are central to the case. (64) For example, in Canada the Women's Legal Education and Action Fund ('LEAF') is readily permitted to intervene on behalf of women in litigation. (65) Important aims of LEAF are 'to participate in litigation that promotes equality for women and to educate the public about this litigation and its relationship to women's equality.' (66)
B Intervention in M(K)
1 Fiduciary Breach
The intervener in M(K) influenced both the conclusion that there was a fiduciary breach based on the sexual abuse by the parent of his child and the Court's sophisticated approach to the relevance of the appellant's delay in instituting proceedings. LEAF was permitted to intervene because it brought 'a special perspective' to the proceedings. (67) LEAF was also allowed to file material comprising studies and expert reports. (68) Relying on much of this material, La Forest...
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