Trust and commerce in historical perspective
One of the apparent ironies of equity’s regulation of business associations over the last half century is that, in an age of growing aposticism, courts have been increasingly disposed to apply and extend equitable principles grounded in ecclesiastical conceptions of conscience to a range of novel commercial contexts. This paper examines the historical development of equity’s intervention in and regulation of business associations and the way in which, by process of analogy, equity extended the trustee’s obligations of trust and confidence to other fiduciaries in emergent commercial relationships during the eighteenth and nineteenth centuries. The analysis will reveal links with developments over recent decades and demonstrate how the historically derived ethical quality of equity, first imported into English law when the Chancellors were clerics, provides a sound basis for flexible, principled further evolution.
Equity’s attribution rules
Ever since Meridian Global Funds Management v Securities Commission  2 AC 500, it is widely accepted that corporate attribution is a highly context-specific process. Corporate attribution is the process by which acts and states of mind are attributed to companies to establish their rights, duties, and liabilities. While a growing literature has been produced on the attribution rules which apply to statutes and in the common law, very little is known about equity’s attribution rules. This paper examines equity’s attribution rules in three areas: dishonest assistance, knowing receipt, and bona fide purchase. Each routinely requires the attribution of both acts and states of mind. Equity’s rules are then compared with those emerging from the common law cases. The paper concludes that equity’s attribution rules are, perhaps surprisingly, just the same as the common law’s. It also explains why.
Commentator: Mr Robert French AC
Former Chief Justice of the High Court of Australia and Chancellor of the University of Western Australia
Chair: Dr Felicity Maher
Senior Lecturer and Director, Private & Commercial Law Research Cluster, the University of Western Australia, Barrister Quayside Chambers
Systems of misconduct: corporate culpability and unconscionability
This paper considers the suggestion sometimes made that statutory unconscionability relies on some element of intentionality, whether by way of a predatory intent, deliberate advantage-taking or knowledge of disadvantage. These elements are not expressly required under the ACL ss21/22. But courts seem sometimes to treat such markers of culpability as inherent in the idea of behaving ‘unconscionably’. These concepts have proved difficult to apply when the misconduct involves the business system of a corporation, as opposed to a ‘rogue’ trader or individual ‘snake oil merchant’. We ask whether there are ways to attribute corporate responsibility for unconscionable business practices that provide a better fit with the artificial legal personhood of that entity and the likelihood that many corporate processes dealing with consumers are automated.
Speaker: Dr Elise Bant
Professor of Private Law and Commercial Regulation, The University of Western Australia. Professorial Fellow, The University of Melbourne
Dr Jeannie Paterson
Professor of Law and Co-Director, Centre for AI and Digital Ethics, The University of Melbourne
The best interests duty in cases of corporate charities
What does it mean to owe a duty to act in good faith in the best interests of the company when that company is a charity? Conventionally, such a duty is interpreted as meaning to act in the best interests of the members (as a whole) of the company and, possibly, the creditors if the company is close to insolvency. Charities, however, are required to pursue their purposes for the benefit of persons in a capacity other than as members. What, then, does the duty entail? Does it mean to act in the best interests of the charitable purposes of the company? And what meaningful constraints (if any) does that entail for directors?
Statutory duties and ratification: untangling the maze
This paper probes the apparent incoherence created by the fact that breach of the statutory directors’ duties in the Corporations Act 2001 (Cth) cannot be ratified or authorised by shareholders. This was recently affirmed by the Full Federal Court in Cassimatis v Australian Securities and Investments Commission (the Storm Financial case). This contrasts with the equivalent general law duties, breach of which can be ratified or authorised, subject to important limitations. This contrast also raises the issue of the ‘publicness’ of the statutory directors’ duties, which also came to the fore in the Cassimatis litigation. The paper argues that the incoherence is not as significant as it first appears and results to a large extent from Australia’s unique corporate law enforcement regime.