Collard v WA [No 4]

[2013] WASC 455

Supreme Court of Western Australia

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Interrogate

Catchwords

1. Equity
2. › Fiduciary Duties
3. › Nature and indicia of fiduciary relationship
4. › Whether State as guardian of Aboriginal children owed fiduciary duties
5. › Whether duty to act in best interests is a fiduciary duty
6. › Whether duty to obtain legal advice is a fiduciary duty
7. › Distinction between fiduciary and non-fiduciary duties of a guardian
8. › Child Welfare Act 1947 (WA)
9. › Native Welfare Act 1963 (WA)
1. Equity
2. › Fiduciary Duties
3. › Scope and content
4. › Whether fiduciary duties require performance to a particular standard of care
5. › Whether Wednesbury unreasonableness standard applies to fiduciary duties
6. › Distinction between proscriptive and prescriptive duties
1. Equity
2. › Fiduciary Duties
3. › State as fiduciary
4. › Whether State owes fiduciary duties to Aboriginal people generally
5. › Whether guardianship under child welfare legislation creates fiduciary relationship
6. › Relevance of foreign jurisprudence on Crown-indigenous fiduciary relationships
1. Practice and Procedure
2. › Crown proceedings
3. › Compliance with statutory preconditions to suit
4. › Whether failure to comply with notice requirements bars action
5. › Crown Suits Act 1947 (WA), s 6(1)

Quick Take

The State of Western Australia does not owe fiduciary duties to Aboriginal children made wards under child welfare legislation merely by reason of the guardianship relationship. The duties alleged — to act in the best interests of the children, to maintain family connections, and to provide legal advice — are prescriptive in nature and are not properly characterised as fiduciary duties. Foreign jurisprudence recognising Crown-indigenous fiduciary relationships (from the US, Canada, and New Zealand) does not apply in Australia, where the High Court has not recognised such a general fiduciary duty. Compliance with the Crown Suits Act 1947 (WA) notice requirements remains a precondition to suit against the State.