Australia: directors' duties, de facto directorship and remedies for fiduciary wrongdoing

The Federal Court of Australia (Full Court) gave judgment earlier this week in Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6 (on appeal from [2010] FCA 1129). There is much of interest in this important decision concerning de facto directorship, directors' duties and the remedies available where a fiduciary accepts a bribe or secret commission. The differences between English and Australian law are a recurring theme in the decision. For example, with regard to the remedies available in respect of bribes and secret commissions, the Federal Court observed:

Whatever may be the reasons for English law’s continuing adherence to Lister [most recently in Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd [2011] EWCA Civ 347 and Cadogan Petroleum Plc v Tolley [2011] EWHC 2286 (Ch)], the weight of High Court decision and expressions of judicial opinion across the twentieth century preordain our rejection of it ... We simply note that in the result Australian law matches that of New Zealand (Reid), Singapore (Sumitomo Bank), United States jurisdictions (Carter) and Canada in accepting a proprietary remedy for bribes and secret commissions".