R P. Austin


[extract] The issues which arise out of an apparent collision between representational and fiduciary duties are most acute in the corporate context, because of the commercial setting. It does not often happen that other fiduciaries occupy their positions as nominees outside the corporate sphere. But occasionally the problem crops up - for example, employee representatives might be appointed to the governing body of a statutory board, or to the board of trustees of a superannuation fund. Indeed, the tension between fiduciary and representational duties is cemented into the Superannuation Industry (Supervision) Act 1993 (Cth), as we shall see.

The purpose of this paper is to see whether light can be shed on these problems by revisiting the company law cases in the context of a broader inquiry into the equitable duties of a person appointed to a fiduciary position in a representative capacity.