Brown v. State of New South Wales  NSWCA 287 (6 November
The Department of Community Services does not owe a minor under
their control a fiduciary duty the breach of which would otherwise
entitle the minor to equitable compensation. (Note: This does not
necessarily preclude the availability of common law remedies in
Brown alleged that he was sexually abused by employees of DOCS
at a training school where he was detained after being convicted of
criminal offences. He commenced proceedings in the Equity Division
of the Supreme Court seeking equitable compensation for breach of
fiduciary duty. He alleged that DOCS owed him a fiduciary duty,
that this duty had been breached by the sexual abuse by employees
of DOCS and that he was thereby entitled to compensation.
The plaintiff had also commenced common law proceedings in the
District Court which were statute barred and in respect of which he
had been refused leave to proceed out of time. (This aspect of the
case is not dealt with in this case note other than to note that
the plaintiff's appeal against this decision was dismissed).
McCready AsJ, at first instance, had rejected the claim by the
plaintiff for equitable compensation for breach of fiduciary
The court referred to and approved the Supreme Court single
judge decision of Webber v. New South Wales
 NSWSC 1263 and the decision of the Full Court of
the Federal Court of Australia in Paramasibam
v. Flynn  90 FCR 489.
In Paramasibam the court found that no
fiduciary duty existed in a case of alleged sexual assault by a
guardian of a young girl. In Webber the facts had
a close analogy to the facts in the present proceedings.
In Webber the relationship was that of guardian
and ward. The court stated that the fiduciary duty which arises
from such relationship and breach of which gives rise to a right to
are confined to cases where the fiduciary acts for, or
exercises a discretion on behalf of, the other party;
concern economic or proprietary rights only, including possibly
confidential information (which is itself really a form of
are not a substitute or alternative description for breaches of
duty owed in tort or contract arising out of the same facts or
In Paramasibam the court had said that the
concept of fiduciary duty was intended to protect economic
interests so that if a fiduciary makes an unauthorised profit or
takes an unauthorised commercial advantage of the relationship,
then the person to whom the duty is owed has an equitable remedy
Conduct such as that alleged against the respondent can be
described in terms of breach of position of trust or confidence and
allowing personal interest (in the form of self gratification) to
displace a duty to protect the appellant's interests. However,
to describe a breach of duty in these terms does not constitute a
breach of fiduciary duty. To apply an entitlement in such
circumstances would require, and does not justify, "so
radical a departure from underlying principle".
The court concluded that the defendant did not owe the plaintiff
a fiduciary duty, the breach of which would otherwise have entitled
the plaintiff to equitable compensation.
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