In that capacity, Mr Rickus provided documents relating to the
Trustee to the Australian Prudential Regulation Authority (APRA) in
response to a notice to produce. He gave the board of the Trustee a
schedule listing those documents, but declined to provide the board
with a copy of some of the documents, because he considered the
documents were confidential and did not want them being made
available to directors whom he considered had a conflict of
The Principal Executive Officer of the Trustee considered that
APRA may have reached adverse conclusions about the operations,
functioning and governance of the Trustee, based at least in part
on documents provided by Mr Rickus.
The court held that Mr Rickus was under a duty to provide a copy
of the documents that had been given to APRA to the Trustee. This
duty arose because of the following circumstances:
APRA was undertaking a review of the Trustee and had requested
documents in that context
Mr Rickus was a director when he provided the documents to
the Trustee needed to be informed as to the documents provided
to APRA so it could properly respond
the Trustee had committed to use the documents, if produced,
only for the purposes of its dealings with APRA.
The court noted that fiduciary duties are usually proscriptive
rather than prescriptive, and accordingly rejected a general
submission that it was part of the fiduciary duty owed by a
director to make full disclosure. However, the court found a duty
to produce a copy of the documents to the Trustee on these facts,
at least where a request to do so was made of Mr Rickus by the
Trustee, as this was in the best interests of the Trustee. His duty
was to respond to a request properly made of him by the Trustee to
place the board in a position where it could respond to an
investigation being pursued by a statutory regulator (including
responding to information provided to the regulator by Mr
It is not clear whether Rickus will be taken to
establish a general principle that a director's fiduciary duty
to act in the best interests of the company requires the director
to respond to any reasonable request for information by the board,
or whether a future court will confine Rickus to its
The wider principle sits uneasily with the notion of purely
proscriptive duties laid down by the High Court in Breen v
Williams. Having said that, there is some merit in the
proposition that a director should be obliged not to withhold
information from a company if the company needs it in order to
determine whether or not to take a proposed course of action.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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