Causation in equity

Lifeplan Australia Friendly Society Ltd v Ancient Order of Foresters in Victoria Friendly Society Limited [2017] FCAFC 74

  1. As can be seen from the analysis of the jurisprudence by the primary judge, the causal relationship between the breach and the profit has been variously expressed: profits made attributable to the breach (Colbeam Palmer 122 CLR at 42-43; approved in Dart v Decor 179 CLR at 120-1); “profits obtained by the infringement” (Dart v Decor 33 FCR at 407, approved in the High Court 179 CLR at 120); “the particular benefits which flowed … in breach of … duty” (Hospital Products 156 CLR at 110 (per Mason J)); “by reason of (the breach)” (Warman 182 CLR at 557); “by reason or by use of (the breach)” (Howard 253 CLR at 107 [62]).
  2. The primary judge’s reasoning is contained in [443] and [444], as follows:

    [443]    I do not think it can be said that Foresters’ participation in the breaches of duty in relation to the BCP and its preparation resulted in the profits earned and to be earned on the Foresters Funeral Fund. The confidential information was not used to generate any of these profits. There is nothing to suggest that the information in Appendix B, the table in section 4.2, the information as to geographical spread or Appendix D were used to generate profits. The use of some of the information in Appendix B by FPA in its Board Reports in early 2011 is not a use that generated profits. The fact that the proposed business would not have gone ahead without the BCP and that the confidential information with respect to which I have found Foresters had knowledge within the relevant legal test, played a part in Foresters’ decision to proceed, is not sufficient to conclude that the profits claimed were attributable to those matters.

    [444]    I can deal with the approach to funeral directors other than Tobins and the preparations for the new business together. Neither Mr Woff nor Mr Corby were subject to restrictive covenants and, other than Tobins, funeral directors did not enter into contracts with fund managers to invest in a particular fund for an agreed period.  It was open to Mr Woff and Mr Corby after they left the employ of Lifeplan to approach funeral directors and seek their business, to prepare disclosure documents and to advise Foresters as to the rules of the Foresters Funeral Fund. In those circumstances, the breaches in which Foresters participated might have led to FPA and Foresters being able to establish the proposed business earlier than might have been the case had there been no breaches, but they did not lead to the profits earned and to be earned in relation to the Foresters Funeral Fund.  As I have said, the applicants have not advanced a case on a headstart basis. There is evidence before the Court of the profits earned and to be earned on policies issued up to a particular date, but that was not advanced as a basis for assessing profits. It is not the traditional way in which profits for a limited period would be assessed as I think counsel for the applicants acknowledged. I am not aware of any authority which would enable me to assess profits on this basis.

    (Emphasis added.)

  1. The refusal to award an account of profits can be seen to flow (at least in [443] above) from the lack of relationship between particular breaches and particular profits generated by activity. Critical to the analysis, however, is the finding that without the BCP (based as it was on dishonest breaches of duty knowingly assisted by Foresters), the proposed business would not have gone ahead. To use the language deployed in argument on appeal, a but-for connection is, it was submitted, not enough; there must, it was submitted, be a link between breach and the generation of particular profits.
  2. The correct approach to questions of causal connection in Equity between an equity and a relevant remedy depends upon the nature and character of the relevant rule of responsibility, and of the remedy sought. As the High Court said in Youyang Pty Ltd v Minter Ellison Morris Fletcher [2003] HCA 15; 212 CLR 484 at 499 [36] speaking of remedies in Equity, “[g]eneralisations may mislead”.
  3. The remedial rules concerning breaches of fiduciary duty are structured to enforce, not undermine, the strictness of the duty. The High Court in Warman 182 CLR at 557 made clear that the “stringent rule that the fiduciary cannot profit from his trust [had] two purposes: … [to] account for what has been acquired at the expense of the trust, and … to ensure that fiduciaries generally conduct themselves ‘at a level higher than that trodden by the crowd’”. This last allusion was to a passage from the enduring judgment of Cardozo CJ in Meinhard v Salmon 249 NY 458 (1928). In discussing trustees and fiduciaries (at 464) Cardozo CJ contrasted the “morals of the market place” (by which, as is clear from the passages in question, he meant “honesty alone”) with “the punctilio of an honor the most sensitive”, the latter being the relevant standard of behaviour. Chief Judge Cardozo wrote in the same paragraph of the tradition developed that is “unbending and inveterate”, and of the “uncompromising rigidity” of the attitude of courts of Equity when faced with exceptions that might be seen to undermine the rule of undivided loyalty. This language accords entirely with the strictness of the rule in Australia: Warman 182 CLR at 557-558. The strictness of the rule of undivided loyalty informs the application of remedy in its factual application, being fashioned to fit the nature of the case and the particular facts: Warman 182 CLR at 559.
  4. In Warman, the relevant expression of the causal connection between the breach and the profit was of a profit obtained by reason of the fiduciary position or by reason of taking advantage of opportunity or knowledge derived from the fiduciary position: Warman 182 CLR at 557. There is nothing narrow in this causal connection. There is no call to require a strict, or direct or proximate relationship between each particular transaction from which the profit in a business is derived and some particular breach. There is no call to generalise about the adequacy or not of the so-called but-for test. The facts should be examined to ascertain the causal relationship between the breaches and the profits to assess whether it is sufficient to conform with the policy of the rule to attribute a liability to account for those profits. This enquiry involves an assessment of whether the rule and its policy would be undermined if the causal connection or relationship were to be adjudged inadequate and a liability to account not attributed.
  5. In Dart v Decor 179 CLR at 111, Mason CJ, Deane, Dawson, and Toohey JJ adopted the expression of Windeyer J in Colbeam Palmer 122 CLR at 34 that the account of profits retains its equitable characteristics in that a defendant is made to account for, and then is stripped of, profits that it has dishonestly made by the infringement, and which it would be unconscionable for it to retain. The proposition that Windeyer J in Colbeam Palmer and the plurality in Dart v Decor then expressed was that an “account of profits is confined to profits actually made” is not any narrow restriction, but an expression of the purpose of the remedy – not punishment but the prevention of unjust enrichment. Likewise, there is no call to over-emphasise the word “particular” used by Mason J in Hospital Products 156 CLR at 110 (see [59] above).