Tusyn v Tas

[2004] TASSC 50

Supreme Court of Tasmania

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Interrogate

Catchwords

1. Equity
2. › Fiduciary obligations
3. › Guardian and ward
4. › Scope of fiduciary duty
5. › Whether fiduciary duty extends to physical safety of ward
6. › Whether Canadian approach to fiduciary duties should be followed in Australia
1. Limitation of Actions
2. › Postponement of limitation period
3. › Concealed fraud
4. › Non-disclosure as fraudulent concealment
5. › Whether non-disclosure of availability of information that foster parent was dangerous constituted concealment by fraud
6. › Limitation Act 1974 (Tas), s 32(1)(b)
1. Practice and Procedure
2. › Striking out
3. › Summary dismissal
4. › Whether statement of claim discloses reasonable cause of action
5. › Whether unassailable limitation defence justifies dismissal
6. › Supreme Court Rules 2000 (Tas), r 259

Quick Take

In Tasmania, a statutory guardian does not owe a ward a fiduciary duty in relation to the ward's physical safety; the Canadian approach from M (K) v M (H) is not followed. A plea of fraudulent concealment under s 32(1)(b) of the Limitation Act 1974 (Tas) based on non-disclosure requires pleading and proof that the individuals responsible were conscious that non-disclosure was wrongful, or should have been conscious of this; alleging merely a moral obligation to disclose is insufficient.