Kenneth Gordon Webber v State of New South Wales & Ors [2003] NSWSC 1263

Kenneth Gordon Webber v State of New South Wales & Ors [2003] NSWSC 1263

The facts alleged by the plaintiff do not disclose a cause of action in breach of fiduciary duty, because the claimed breaches relate to prescriptive (positive) duties regarding care, protection and supervision, which are matters for the common law duty of care (tort), not for equity. Fiduciary duties are confined to cases involving the exercise of power on behalf of another concerning economic or proprietorial interests, are proscriptive and not an alternative for tort or contract claims arising from the same facts.

Jurisdiction
Australia
Judgment Date
06 February 2004
Procedural Posture
Civil / Interlocutory Strike Out Application Decided
Outcome
So much of the Statement of Claim as relates to breaches of fiduciary duty struck out.
Legal Topics
['fiduciary Duty' 'guardian and Ward' 'duty of Care' 'breach of Statutory Duty' 'striking Out Pleading']
['equity' 'torts' 'child Welfare'] ['fiduciary Duty' 'guardian and Ward' 'duty of Care' 'breach of Statutory Duty' 'striking Out Pleading']

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Procedural Posture

Civil / Interlocutory Strike Out Application Decided

Legal Issues

  1. 1 ['Whether the facts alleged in the Statement of Claim can give rise to a cause of action for breach of fiduciary duty for which damages or equitable compensation are recoverable.']

Ratio Decidendi

The facts alleged by the plaintiff do not disclose a cause of action in breach of fiduciary duty, because the claimed breaches relate to prescriptive (positive) duties regarding care, protection and supervision, which are matters for the common law duty of care (tort), not for equity. Fiduciary duties are confined to cases involving the exercise of power on behalf of another concerning economic or proprietorial interests, are proscriptive and not an alternative for tort or contract claims arising from the same facts.

Court Disposition

So much of the Statement of Claim as relates to breaches of fiduciary duty struck out.

Orders

  • ['Paragraphs 15, 16, and 17 of the Fourth Amended Statement of Claim struck out.' "The words 'and fiduciary' struck from paragraph 18 of the Statement of Claim." "The words 'equitable damages' struck from paragraph 70 of the Statement of Claim." 'Costs of the application reserved to final determination.']