Breen v Williams: A lost opportunity or a welcome conservatism?

Julie Brebner *


Published version: ‘Breen v Williams: A lost opportunity or a welcome conservatism?’ (1996) 3 Deakin Law Review 237 (published 1998)

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1. Introduction

The recent case of Breen v. Williams provided the High Court with an opportunity to re-evaluate the fiduciary law of this country to bring it into line with that of the Canadian jurisdiction. Canadian courts have a history of imposing positive obligations on fiduciaries in novel situations, most recently in respect of doctor-patient relationships. Such relationships, it held, were fiduciary in nature and, by virtue of this, the doctor was said to be burdened with a positive obligation to act with 'utmost good faith and loyalty' towards the patient, an incident of which was to allow patients access to their medical records. However, in a clear rejection of Canadian developments, the High Court unanimously refused to expand the nature and scope of Australian fiduciary law in such a way as to impose upon doctors such an obligation.