position, “all equitable and legal principles must today operate in a universe
dominated by the star of statute. It would be surprising if the gravitational pull
of statute, felt everywhere else in the law, did not penetrate into the expression
and re-expression of non-statutory rules”.
195
The spirit behind using statutes in
this way was stated by Lord Diplock in Warnink.
196
Essentially when it enacts
legislation parliament it taken to express its views as to “what the public
interest demands in a particular field of law”. This view becomes clearer when
it is reflected in a “steady trend in legislation” over a period of years. In these
circumstances “development of the common law in that part of the same field
which has been left to it
ought to proceed upon a parallel rather than a
diverging course”. In Adelaide Steamship the court put the obligation for
common law in even stronger terms by asserting that a statute had “created an
entirely new setting to which the common law must now adapt itself”.
197
Fiduciary Relationships
The High Court of Australia invoked analogical reasoning to determine whether
a relationship was fiduciary in reasoning from established categories of
relationships that were inherently fiduciary to new cases.
198
Reasoning in this
way the court decided that the relationships between a firm of accountants and
a client, and between a medical practitioner and their patient, were not
inherently fiduciary.
199
Confidential Information
Some background in trust law is necessary to explain the use of analogy in the
case of confidential information. It is clear law that a trustee is in a fiduciary
relationship as regards a beneficiary of the trust. It is also clear that if a trustee
uses trust property in a manner that is in breach of their obligations as trustee
they are liable to the beneficiary for any loss.
In Farah Constructions the dispute concerned the misuse of confidential
information by a fiduciary. There were two possible arguments that would
impose liability on the misuser. First, confidential information constituted
Law and Legislation" |(1908) 21 Harvard Law Review 383
and Patrick Atiyah
"Common Law and Statute Law"
(1985) 48 Modern Law Review
1 (which was the
text of the Chorley Lecture 1984).
195
Pilmer v Duke Group Ltd (In Liq) [2001] HCA 31, paragraph 170 , citing Gray v
Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1 at 12-13 [33], 27 [83],
45-47 [128]-[130]; Esso Australia Resources Ltd v Federal Commissioner of Taxation
[1999] HCA 67; (1999) 201 CLR 49 at 61-62 [23], 89-90 [105]. See also Gunasekara
(1993).
196
Warnink v Townend [1979] AC 731, at p 743
197
Adelaide Steamship Co Ltd v Spalvins (1998) 81 FCR 360, at 373
198
Pilmer v Duke Group Ltd (In Liq) [2001] HCA 31, paragraphs 136
199
Pilmer v Duke Group Ltd (In Liq) [2001] HCA 31, paragraphs 121-123
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