the beneficiary reposes this trust and confidence, the relationship is at arm's
length. Whereas negligence and contributory negligence function on the basis
that both plaintiff and defendant are expected to take reasonable care for the
plaintiff’s safety, fiduciary and trust relationships, as their label implies, involve
the would be plaintiff putting themselves in the care of the trustee or fiduciary.
Consequently, there is no basis in equity for the notion that “a beneficiary is
bound to protect himself against his fiduciary”.
206
Given this, there is no
rational basis for inventing in the law of equity a concept of contributing fault
by analogy with the common law doctrine of contributory negligence.
207
Legal Professional Privilege
Sections 118 and 119 of the Evidence Act 1977 (Qld) established a dominant
purpose test for claims of legal professional privilege. A client of a lawyer can
object successfully to an attempt by a person to adduce in evidence a
document or a communication if the dominant purpose for which the
document or communication was prepared or made was to provide the client
with professional legal advice (s118) or legal services (s119). A party argued
to the court that in Queensland, at least, the common law rules for legal
professional privilege should be modified to incorporate the statutory
definitions of privilege in the Evidence Act. The High Court rejected the
argument on the basis that to change the common law for the whole of
Australia it needed widespread if not Australia wide legislative indorsement of
the statutory rule that was to be adopted as the common law rule.
208
Miscellaneous Examples
There are some miscellaneous examples of analogy. (i) Exemplary Damages.
In England
209
and Canada
210
claims for exemplary damages do not need to be
pleaded. In relation to this, the High Court of Australia said that “by analogy”
the same rules should apply to “aggravated damages” because these also fall
within a claim for compensatory damages that is expressed in general terms.
211
(ii) Restitution. In David Securities the court extended the principles of
restitution beyond cases of mistake of fact to circumstances where there has
___________________
206
K Handley "Reduction of Damages Awards" in P Finn (ed), Essays on
Damages (1992) 113 at 127. This was cited by Justice Kirby in Pilmer v Duke Group
Ltd (In Liq) [2001] HCA 31 at paragraph [172].
207
Pilmer v Duke Group Ltd (In Liq)
[2001] HCA 31,
paragraphs 167, 169, 171,
(2001) 207 CLR 165
208
Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67
par [25]; (1999) 201 CLR 49
209
Broome v Cassell & Co [1972] UKHL 3; [1972] AC 1027 at 1083
210
Starkman v Delhi Court Ltd (1961) 28 DLR (2d) 269 at 274; Paragon Properties
Ltd v Magna Envestments Ltd (1972) 24 DLR (3d) 156 at 163-164
211
Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1 at [33] 12-
13, [83] 27, [128]-[130] 45-47
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