ABSTRACT
There is no comprehensive definition of a fiduciary relationship. Indeed, Mason CJ has asserted that the fiduciary is a ‘concept in search of a principle’ (Finn, PD (ed), Essays in Equity, 1985). An influential description is given by Mason J in Hospital Products Ltd v United States Surgical Corp (1984):
In its rudimentary form, a fiduciary relationship represents a protective shield – it protects those parties within a relationship that are deemed needy of such protection without seeking to alter the fundamental objective of the relationship. Hence, in one sense, the fiduciary relationship is a supervisory mechanism: it monitors the functioning of given relationships with the primary aim of blocking prospective equitable breaches, and relieving any that may have already occurred. In the words of La Forest J in Hodgkinson v Simms (1994):
There are many hallmark features which may indicate the existence of a fiduciary status within a relationship. Common features include: the existence of an undertaking such that one party undertakes to act in the interests of another and assumes power over the other; one party entrusting another party with some duty, information, property or some other obligation; one party in a vulnerable and disadvantaged position and being at the ‘mercy’ of the other party; reliance, mutual reciprocity and confidence between parties to a relationship; and the existence of a discretionary power in one party which may adversely affect the interests or proprietary rights of the other party.
