High Court of Australia Judgment
Magill v Magill [2006] HCA 51 (9 November 2006)
http://www.austlii.edu.au/au/cases/cth/high_ct/2006/51.html
Last Updated: 9 November 2006
HIGH COURT OF AUSTRALIA
GLEESON CJ
GUMMOW, KIRBY, HAYNE, HEYDON AND CRENNAN JJ
LIAM NEAL MAGILL APPELLANT
AND
MEREDITH JANE MAGILL RESPONDENT
Magill v Magill
[2006] HCA 51
9 November 2006
M152/2005
ORDER
Appeal dismissed with costs.
On appeal from the Supreme Court of Victoria
Representation
N Lucarelli QC with J C Paterson for the appellant (instructed by Vivien
Mavropoulos & Associates)
H M Symon SC with A J Palmer for the respondent (instructed by Clayton
Utz Lawyers)
D M J Bennett QC, Solicitor-General of the Commonwealth with R M Doyle
intervening on behalf of the Attorney-General of the Commonwealth
(instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Magill v Magill
Tort Deceit Paternity Whether tort of deceit can be applied in
marital context in relation to false representations of paternity −
Where false representations were made by wife in course of marriage
concerning paternity of children born during marriage − Where birth
notification forms completed by wife represented husband to be father −
Where DNA testing after marriage ended revealed two children of the
marriage were not the biological children of the husband − Where husband
claimed damages in deceit for loss of earnings, loss of use of moneys,
personal injury and pain and suffering − Relevance of history of tort of
deceit − Relevance of abolition of inter-spousal immunity in tort by
Family Law Act 1975 (Cth) − Relevance of statutory scheme
intended to minimise role of fault in determining legal rights and
liabilities following breakdown of marriages − Relevance of statutory
regime under
Family Law Act 1975 (Cth) for repayment of moneys wrongly
paid for child support −Relevance of public policy
considerations.
Statute − Statutory construction −
Family Law Act 1975 (Cth) − Whether tort of deceit is
excluded from applying between spouses by the
Family Law Act 1975 (Cth) − Whether ss 119 and 120 of the
Family Law Act 1975 (Cth) expressly or impliedly preclude an
action for deceit by a husband in respect of false representations made
by the wife during the subsistence of the marriage as to the paternity
of children of the marriage.
Words and phrases "deceit", "inter-spousal immunity", "paternity
fraud".
Child Support(Assessment) Act 1989 (Cth), ss 107, 143.
Family Law Act 1975 (Cth), ss 43, 48, 51, 66X, 69P-69X, 119, 120.
Matrimonial Causes Act 1959 (Cth), ss 21, 28, 44, 98.
11 GLEESON CJ. The appellant and the respondent married in April 1988. They separated in November 1992. The marriage was dissolved in February 1998. Between 1988 and 1992, the respondent gave birth to three children: a son born in April 1989, another son born in July 1990, and a daughter born in November 1991. After the separation, following an application by the respondent, the appellant made payments under the Child Support (Assessment) Act 1989 (Cth) in respect of all three children. Such payments continued, although not without interruption, until late 1999. In April 2000, by DNA testing, it was established that the appellant was not the father of either the second child or the third child. Pursuant to s 1433 of the Child Support (Assessment) Act, the appellant became entitled to an adjustment of child support payments to allow for past over-payments, and an extinguishment of arrears. The relevant statutory provisions operated of their own force to deal with the matter of child support liability and payments, and that matter was not the subject of the litigation with which this appeal is concerned.
2 In January 2001, the appellant commenced proceedings against the
respondent in the County Court of Victoria. The cause of action sued
upon was the tort of deceit. The damages claimed were of two kinds.
First, the appellant alleged that he had suffered personal injury, in
the form of anxiety and depression, in consequence of the respondent's
fraudulent misrepresentations. Secondly, he claimed financial loss,
including loss of earning capacity by reason of his mental or
psychological problems, and loss related to the time he had spent with,
and money he had spent on, the children under the mistaken belief that
he was their father. He also claimed exemplary damages. The appellant
succeeded at trial, and was awarded damages of $70,000. This did not
include any amount by way of exemplary damages. The decision of the
trial judge was reversed by the Court of Appeal of the Supreme Court of
Victoria (Ormiston, Callaway and Eames JJA) on the ground that the
appellant had failed to establish the essential elements of the tort of
deceit[1]. The
appellant now appeals to this Court, seeking the restoration of the
original award of damages.
3 By notice of contention, the respondent argues that the action was
misconceived, and that even if, contrary to the opinion of the Court of
Appeal, all elements of the common law tort of deceit otherwise had been
made out, nevertheless the remedy pursued by the appellant was not
available for the following reasons:
1. Section 119 of the Family Law Act 1975 (Cth), which permits one party to a marriage to sue the other in tort, does not apply to the tort of deceit or, alternatively, s 120 of that Act precludes an action for deceit based on a false representation of paternity.
2. The tort of deceit does not extend to claims for damages arising from misrepresentations as to the paternity of children conceived and born during the course of a marriage.
4 For the reasons that follow, I consider that proposition 1 is
without substance. Proposition 2 should not be accepted, although the
scope for the operation of the tort of deceit in the case of
communications within the context of a marital relationship is
influenced, and often limited, by that context.
The appellant's claim and the award of damages
5 At the trial, it was common ground that the father of the respondent's
second and third children was a man with whom she had commenced a sexual
association in September 1989 (that is, about 17 months after her
marriage, and about five months after the birth of her first child).
According to the respondent's evidence, she had sexual intercourse with
that man once every two or three weeks until mid-1990, and less
frequently after the birth of her second child. Her evidence was that
when she became pregnant with her second child, she believed it was
possible that this other man was the father, although when she became
pregnant with the third child she believed her husband was the father.
In August 1995, almost three years after their separation, the appellant
learned that the respondent at least suspected that the second child was
not his child. It was not until April 2000 that DNA tests confirmed that
the appellant was not the father of either the second or the third
child. It was then that the necessary adjustments were made in respect
of past and future child support payments.
6 In September 1999, the appellant sought treatment from a psychiatrist,
Dr Chong. According to the psychiatrist, the appellant presented with
severe depression, from which he had been suffering for a number of
months. In a report written in June 2002, Dr Chong said:
"Mr Magill told me that his depression and anxiety state [sic] started in the setting of on-going stress from the Family Court regarding 'child support', financial difficulty and unreasonable demand [sic] from his ex-wife. He was so stressed by the 'child support agency' that he has had persistent nightmares about them threatening and harassing him. His depression and the accompanied [sic] panic and anxiety symptoms became worse when he found out with DNA testing ... that 2 of his 3 children were not fathered by him. This knowledge had devastated Mr Magill, causing him a lot of emotional turmoil."
7 Without doubt, the appellant's wife deceived him, but the hurtful
deception was in her infidelity, not in her failure to admit it. The
devastation he mentioned resulted from his knowledge of the truth when
finally it was made known to him. That knowledge, in turn, came to him
at a time when he was already distressed by the consequences of the
breakdown of his marriage.
8 When the appellant's lawyers sought to express his complaints in legal
form, in terms of the tort of deceit, they made the following
allegations. (The original complaints made some references to the issue
of child support, but at the trial these were agreed to be immaterial.)
In late 1989, the respondent represented to the appellant that he was
the father of the second child. In early 1991, the respondent
represented to the appellant that he was the father of the third child.
Both representations were false. On the faith of the representations the
appellant believed he was the father, and altered his position to his
detriment. The representations were made fraudulently, with the
respondent either knowing they were false or recklessly not caring
whether they were true or false. At the time of the representations the
respondent intended the appellant to rely on them. As a result of the
representations the appellant suffered loss and damage. The damage
included severe anxiety and depression and loss of earnings.
9 At the trial, much attention was given to the need to particularise
and prove the representations on which the appellant sued. This exposed
a difficulty in fitting the case into the mould of the common law tort
of deceit. From one point of view, the appellant's claim that he was
misled about the paternity of the children may have appeared easy to
establish. The problem was to identify a representation by the wife. It
may be inferred that, while the parties were living together, and at
least for a time thereafter, the respondent, by her conduct, would have
said and done things many times, and in many different ways, that
reinforced the appellant's assumption that he was the father of all
three children. In circumstances where he obviously believed he was the
father, and accepted the responsibilities of fatherhood, her silence
would have contributed to his belief. Yet, in the absence of a legal or
equitable obligation to tell the truth, silence of itself does not
amount to misrepresentation[2].
The trial judge would have appreciated that a finding of a legal or
equitable duty in the respondent to disclose her infidelity would take
him into deep waters. He made no such finding. He put his conclusion as
to the representations of paternity upon a very narrow basis. Soon after
the birth of each of the second child and the third child, the
respondent signed, and gave to the appellant to sign, a form of
Notification of Birth addressed to the Registrar of Births, Deaths and
Marriages. The forms described the appellant as the father and the
respondent as the mother. This conduct of the respondent was found to
constitute, in each case, the representation by the respondent to the
appellant that he was the father of the child. That, in turn, had
consequences for the approach that was taken to the issues of
inducement, and damage.
10 When the appellant was asked in evidence why he believed he was the
father of the two children, he made no reference to the birth
notification forms, or to any other specific words or conduct of his
wife. He said:
"Well, I had no reason not to believe [that I was the father]. I watched all three of the children born. I was present at the hospital when all three children were born ... and I had no reason to believe that any of [the] children weren't mine."
11 Having found that the representations were made, the judge noted
that it was not in dispute that they were false. This was established by
the DNA testing.
12 As to the respondent's state of mind concerning the representations,
the trial judge found:
"I am of the view that the evidence points very strongly in favour of the conclusion that she did know that her husband was not the father of either of the children. Certainly at the very least, in my view, it pointed to the conclusion that when she filled in these forms, if she did not know for a positive fact that Mr Magill was not the father, she at least was being reckless as to the truth of her assertion, that he was and had no genuine belief in it. She intended Mr Magill to rely upon it, as indeed he did, in consenting to the naming of the children Magill."
13 After referring to the medical evidence, the trial judge summed up
his conclusion as to the appellant's condition as follows:
"The opinions seem to me of the three doctors to be fairly close together. They express themselves in different ways, and I think the easiest for a layman to understand is probably Dr Kornan's assessment of the situation, which is that the marriage break up itself on any view of it would be an extremely disturbing thing to befall anybody. And the situation [is] simply made worse when he discovers the truth about the paternity of the children, and discovers that he has been misled over the period of years as to his paternity."
14 That description of the appellant's harm, which accords with the
way he himself expressed his health problems to Dr Chong, amounts to the
proposition that the distress he suffered from the breakdown of his
marriage and the subsequent disputes with his wife was exacerbated by
the discovery that he had been misled about the paternity of two of the
children.
15 The basis of the appellant's claim to have suffered economic harm,
apart from the presently irrelevant matter of the overpayments of child
support, is not clear, either from the record of the trial or the
reasons of the trial judge. The claim appears to have included
consequential loss flowing from the disability that resulted from the
appellant's depression and anxiety, such as some modest loss of earning
capacity. There was also an attempt to quantify "expenses involved in
supporting the two children" and a claim for "compensation for time off
work attending to them at birth". The trial judge was unconvinced by the
attempts to quantify these claims, but considered the appellant was
entitled to something. The appellant was awarded $30,000 "by way of
general damages for pain and suffering, [and] loss of enjoyment of life,
past, present and future", $35,000 for past economic loss, and $5,000
for future economic loss. The judgment was for $70,000.
The tort of deceit
16 In Donoghue v Stevenson[3] Lord Atkin said that "acts or omissions which any moral code would
censure cannot in a practical world be treated so as to give a right to
every person injured by them to demand relief". Various control
mechanisms are adopted by the common law to "limit the range of
complainants and the extent of their remedy"[4].
The most obvious example is the requirement, in the case of the tort of
negligence, of a duty of care.
17 The tort of deceit provides a legal remedy for harm suffered in
consequence of dishonesty, but, as Viscount Haldane explained in Nocton v Lord Ashburton[5],
the concept of "fraud" is wider in some legal contexts than in others.
He said[6]:
"Derry v Peek simply illustrates the principle that honesty in the stricter sense is by our law a duty of universal obligation. This obligation exists independently of contract or of special obligation. If a man intervenes in the affairs of another he must do so honestly, whatever be the character of that intervention. If he does so fraudulently and through that fraud damage arises, he is liable to make good the damage. A common form of dishonesty is a false representation fraudulently made, and it was laid down that it was fraudulently made if the defendant made it knowing it to be false, or recklessly, neither knowing nor caring whether it was false or true. That is fraud in the strict sense." (emphasis added)
18 His Lordship's reference to intervening in the affairs of another,
and through fraud, causing damage, reflects the business context in
which the action on the case for deceit emerged, and in which it had,
and still has, a natural place. The elements of the tort fit comfortably
into such a setting. Pasley v Freeman[7],
in 1789, was an action by a plaintiff who was induced to extend credit
to an insolvent third party on the faith of the defendant's fraudulent
representation that the third party was a person of financial substance.
The action succeeded even though there was no contract of suretyship. It
was the combination of fraud and damage that entitled the plaintiff to
sue. In 1837, in Langridge v Levy[8],
Parke B said that the principle laid down by Pasley v Freeman was
that a "mere naked falsehood" would not give a right of action, but if a
falsehood is told with an intention that it should be acted upon by the
party injured, and that party acts upon it in a way that produces
damages to him, an action will lie.
19 In the Third Edition (1868) of Bullen & Leake's Precedents of
Pleadings[9] there
appear references to a series of cases exemplifying actions for damages
for fraudulent misrepresentation. They are cases in a business context.
Not all claims in deceit, however, have involved cases where loss
resulted from a contractual dealing. In Richardson v Silvester[10],
in 1873, the defendant caused to be published an advertisement to the
effect that a certain farm was available for letting. The plaintiff, at
some expense to himself, inspected the property. It was alleged that the
advertisement was deliberately false. It was held that the plaintiff, on
the facts alleged, had a cause of action to recover, by way of damages,
his wasted expenses.
20 Not all actions said to have been allowed on the principle of Pasley v Freeman were commercial in nature, although Wilkinson v
Downton[11],
decided in 1897, and Janvier v Sweeney[12],
decided in 1919, which were cases of deception causing nervous shock,
would probably now be explained either on the basis of negligence, or
intentional infliction of personal injury[13].
21 Almost 200 years after Pasley v Freeman, the modern common law
began to refine the principles according to which damages may be
recovered for loss resulting from certain kinds of misrepresentation
that were not fraudulent but merely careless. In Hedley Byrne & Co
Ltd v Heller & Partners Ltd[14],
the concept of the duty of care, a control mechanism by which the law
limited the range of complainants, was explored in its application to
determining who might sue in respect of financial harm suffered in
consequence of another person's careless statements. The capacity for
careless advice or information to cause harm is extensive. The search
for a satisfactory exposition of the concept of duty of care in this
context resulted in a division of opinion in the Privy Council in Mutual Life & Citizens' Assurance Co Ltd v Evatt[15].
The actual decision in that case is presently immaterial; what is
significant is the kind of problem it exemplifies. The problem could
well arise in a domestic context. As Dickson CJ pointed out in Frame
v Smith[16],
"[i]t is notorious that free, and not always disinterested and wise
advice abounds in a family setting". So, in some family settings, does
misleading conduct. The duty of care controls potential liability for
carelessness. False representations about paternity could be the result
of carelessness rather than deliberate fraud. FurtherRead More ..in domestic
and other personal relations, in between carelessness and deliberate
fraud there may be conduct which is not easy to classify in simple moral
terms.
22 If, in the area of actionable deceit, there is to be a control
mechanism which, like the duty of care in negligence, limits the range
of complainants, then it is difficult to see, as a matter of legal
principle, as distinct from legislative fiat, how the limitation could
operate by reference to one specific kind of representation. Plainly,
representations about paternity relate to a sensitive issue, but there
are other subjects of representation that could also relate to topics of
sensitivity.
23 False representations of paternity could be made in a variety of
circumstances, some of which might be closely linked to questions of
property, or financial undertakings. They could be made before, during,
or after marriage. They could be made between parties who are
negotiating a pre-nuptial contract, or a separation agreement, or a
divorce settlement. They could be made for the specific purpose of
inducing a certain kind of dealing with property, or a certain kind of
financial commitment. The distinction between business affairs and
domestic affairs is not always clear cut. People, in anticipation of,
during, or after, marriage enter into financial arrangements, and create
rights and obligations which are plainly intended to have legal
consequences. Not all people who cohabit in a domestic relationship
intend to marry. Not all married people cohabit in a domestic
relationship. Some might intend to divorce, but until their marriage is
dissolved by court order they remain married. Some married people
separate without any intention to divorce. Marriage is not merely one of
a number of alternative forms of domestic relationship. Among other
things, it is a matter of legal status. Certain formalities are required
for its formation and its dissolution. It is attended by legal
requirements of exclusivity, and publicity. In Australia, a person may
have only one husband or wife at any one time. Marriages must be
recorded on a public register[17].
Marriage is a context in which the law of deceit, in many circumstances,
may be difficult to apply, but in modern social conditions it is
difficult to mark it out as a zone of special immunity from liability
for one particular kind of tort, or one particular form of deceit.
FurtherRead More ..representations about paternity could be made to a third
party, such as a parent or relative of a putative father, with intent to
induce the making of financial arrangements.
24 There is, however, an aspect of marriage that makes the topic of
representations of paternity to a spouse one to be approached with
particular caution. The
Family Law Act 1975 (Cth), in s 43, speaks of "the need to preserve and protect the institution of
marriage as the union of a man and a woman to the exclusion of all
others voluntarily entered into for life". As Jacobs J explained in Russell v Russell[18],
the institution originated, at least in Western society, partly as a
means of involving males in the nurture and protection of their
offspring. Blackstone, in his Commentaries[19],
described marriage as "built on this natural obligation of the father to
provide for his children". The structure of marriage and the family is
intended to sustain responsibility and obligation. In times of easy and
frequent dissolution of marriage, the emphasis that is placed on the
welfare of the children reflects the same purpose. The appellant, when
asked to explain why he believed he was the father of his wife's
children, said that he had no reason not to believe it. As a married
man, he was living in an environment that was designed to reinforce his
parental role and obligations. There was an artificiality involved in
the search for representations that he was the father of the two
children. His wife had no need to make any such representations. The
circumstances of their relationship constantly conveyed to him, and
reinforced, that message, as they were meant to do. In many marriages,
an express representation of paternity is likely to be made only if
there is some reason for doubt. Few husbands expect, or seek, from their
wives, assurances of paternity. Such assurances, if volunteered, would
often raise, rather than resolve, suspicions. Nevertheless, there could
be cases, even if exceptional, in which such assurances are sought, and
given, in circumstances where there is no reason in principle to deny a
remedy.
Family Law Act 1975 (Cth) ss 119, 120
25 The
Family Law Act provides:
"119. Either party to a marriage may bring proceedings in contract or in tort against the other party.
120. After the commencement of this Act, no action lies for criminal conversation, damages for adultery, or for enticement of a party to a marriage."
26 The legal and historical context of those provisions makes it
plain that they do not have the consequences suggested in the
respondent's notice of contention.
27 Section 119 entirely abolished the old spousal immunity based upon
the concept that, at law, husband and wife are one[20].
The immunity disappeared from the law by degrees. It is unnecessary to
trace the origins of the concept, or the stages by which it was broken
down. With s 119, it went completely. Actions in contract or tort between
spouses, or former spouses, are now commonplace.
28 As was noted above, the status of marriage may exist even when the
parties to it are completely at arm's length. People who are married,
happily or unhappily, may sue one another for the full range of torts.
It is impossible to accept that the legislation, sub silentio,
makes fraud an exception. Such a consequence would be absurd. Why should
a woman, who is about to enter into a separation agreement with her
husband, not have the full extent of the law's protection, including its
protection against fraud? Why she might be able to sue him for negligent
misrepresentation, but not for fraudulent misrepresentation, defies
rational explanation.
29 Section 120 abolishes certain causes of action against third
parties, which had no direct relationship to the tort of deceit. They
reflected a view of the relationship between husbands and wives that is
no longer held. Section 120 might have been in point had the appellant's lawyer
dusted off some old law books and attempted to bring an action against
the father of the two children in question, but it has nothing to do
with the present case.
30 There is therefore no occasion to consider the appellant's challenge
to the constitutional validity of these two sections. They do not stand
in the path of his claim.
Proposition 2 in the notice of contention
31 The respondent's second proposition is similar to an argument that
was considered, and rejected, by Stanley Burnton J in England in 2001.
The case was P v B (Paternity: Damages for Deceit)[21].
32 It is not clear whether the respondent's contention is that
representations as to paternity occupy a unique place in the law of
deceit. If they are only a particular example of a wider class of
representation, it was not made clear what that class is said to be. The
respondent's contention would solve the present case, but if it is only
a particular application of a Read More ..neral principle then that principle
was not stated.
33 The facts of the present case show the difficulties that often will
be involved in attempting to deal with a grievance such as that of the
appellant under the rubric of actionable deceit. Yet it is possible to
imagine cases in which the elements of the tort would be recognisable,
and justice would demand a remedy. The argument in P v B was
expressed in terms of "cohabiting couples". Not all married people fall
within that description. Some, whether or not they intend to divorce,
deal with one another in circumstances where their respective legal
rights and obligations are to the forefront of their concerns. They may
be communicating through lawyers. In such a context, representations may
be sought and given on the clear understanding that they are intended to
be acted upon, perhaps in respect of matters affecting rights of
property or financial obligations. The parties may be as much at arm's
length as people who are dealing in the business context in which the
tort of deceit originated.
34 There are problems involved in inappropriate intrusion by the law of
deceit into the domestic context. However, as a suggested solution to
those problems, the respondent's proposition is both too wide and too
narrow. Whether it is put in terms of representations of paternity, or
widened to cover extra-marital sexual relations, the same question
remains. Why single out that particular kind of representation? There
are many other kinds of representation that may be made in a domestic
context about matters that are regarded by the parties as intimate and
sensitive.
35 One of the obvious difficulties about the topic of paternity, or the
wider topic of sexual infidelity, (a difficulty that is not peculiar to
those topics), is the danger of creating something very close to a legal
duty to disclose facts in circumstances where there could be a serious
question about the existence of a corresponding ethical obligation. With
hindsight, we know that the marriage of the parties to the present
proceedings later broke down. Suppose it had not broken down. Suppose
that, partly in consequence of the respondent's failure to disclose her
infidelity, the marriage had remained intact. Would the respondent at
some point have been under an obligation to reveal the truth? It may be
one thing to say that, when the respondent claimed that the appellant
was legally bound to make child support payments, she ought to have told
him that he was not the father of two of her three children. Yet the
appellant's case implies that, when she handed him the notification of
birth forms to sign, at a time when the marriage was intact, she had a
duty to tell him. The
Family Law Act declares the need to preserve and protect the
institution of marriage. That is a legislative expression of public
policy. The imposition of a legal duty of disclosure of infidelity
would, in the practical circumstances of many cases, be contrary to that
policy. There is no foundation, either in principle or authority, for
the recognition of a general duty of that kind. That, however, is not to
deny that such a duty could exist in particular circumstances.
36 Finally, there is a difficulty about proposition 2, once it is
accepted (as it should be) that s 119 of the
Family Law Act applies to all forms of tort. Since Parliament
has abrogated, in general terms, spousal immunity, judicial creation of
a new form of immunity, applicable to spouses but limited in its
operation to a certain kind of tort, or a certain kind of
representation, is inconsistent with the legislation. Of course, the
legislative reference to tort picks up developments in the common law as
they occur from time to time. Yet the creation of an inflexible
exception to the general right given by s 119, by reference to a certain kind of deceit, regardless of the
circumstances of the individual case, contradicts s 119.
The elements of actionable deceit as applied to the appellant's claim
37 The elements of the tort of deceit were stated by Viscount Maugham,
in Bradford Third Equitable Benefit Building Society v Borders[22],
as follows (omitting his Lordship's citation of authority):
"First, there must be a representation of fact made by words, or, it may be, by conduct. The phrase will include a case where the defendant has manifestly approved and adopted a representation made by some third person. On the other hand, mere silence, however morally wrong, will not support an action of deceit. Secondly, the representation must be made with a knowledge that it is false. It must be wilfully false, or at least made in the absence of any genuine belief that it is true. Thirdly, it must be made with the intention that it should be acted upon by the plaintiff, or by a class of persons which will include the plaintiff, in the manner which resulted in damage to him. If, however, fraud be established, it is immaterial that there was no intention to cheat or injure the person to whom the false statement was made. Fourthly, it must be proved that the plaintiff has acted upon the false statement and has sustained damage by so doing."
38 His Lordship's reference to "mere silence" contemplates, by way of
contrast, the possibility of a case where there is a legal or equitable
duty to speak and disclose the true facts.
39 The courts have also insisted on specificity and particularly in
pleading allegations of fraud. In Lawrance v Norreys[23],
Lord Watson quoted the rule expressed by Earl Selborne in Wallingford
v Mutual Society: "General allegations, however strong may be the
words in which they are stated, are insufficient to amount to an
averment of fraud of which any Court ought to take notice." Lord Watson
added: "There must be a probable, if not necessary, connection between
the fraud averred and the injurious consequences which the plaintiff
attributes to it; and if that connection is not sufficiently apparent
from the particulars stated, it cannot be supplied by general
averments."
40 The author of McGregor on Damages[24] points out that, reflecting the tort of deceit's close connection with
contractual situations, most claims for damages in this area are for
pecuniary loss resulting from acting in reliance on a misrepresentation
by entering into a contract with the defendant or a third party.
However, possible forms of pecuniary loss are not limited to such
circumstances. Lord Atkin, in Clark v Urquhart[25],
said:
"I find it difficult to suppose that there is any difference in the measure of damages in an action of deceit depending upon the nature of the transaction into which the plaintiff is fraudulently induced to enter. Whether he buys shares or buys sugar, whether he subscribes for shares, or agrees to enter into a partnership, or in any other way alters his position to his detriment, in principle, the measure of damages should be the same, and whether estimated by a jury or a judge. I should have thought it would be based on the actual damagedirectly flowing from the fraudulent inducement". (emphasis added)
41 Harm may result from a course of action induced by a fraudulent
misrepresentation, even though it has nothing to do with questions of
contract or with inducement to undertake financial obligations. An
example is Mafo v Adams[26] where the plaintiff was fraudulently induced to undertake an unpleasant
journey, and was awarded compensation for the inconvenience and
discomfort. (The case of Richardson v Silvester[27],
earlier mentioned, was a case where a plaintiff was compensated for the
expense of a fraudulently induced journey.) There is no reason in
principle why the harm for which the tort may provide compensation
should not include personal injury, or why personal injury should not
include psychiatric injury, but the harm for which damages are awarded
is the "actual damage directly flowing from the fraudulent inducement",
that is to say, the damage directly flowing from the alteration of the
plaintiff's position which occurred as a result of the inducement.
Distress, disappointment, frustration and anger may all be natural
responses to discovery of deception, but the tort of deceit does not set
out to compensate people for wounded pride or dignity, or for the pain
that results from broken illusions.
42 As the Victorian Court of Appeal held, in a number of respects the
appellant's case, as accepted by the trial judge, failed to establish
the elements of the tort of deceit. These deficiencies are all
significant, but they reveal a deeper problem with the appellant's case.
It will be necessary to return to that problem after having measured the
appellant's case against the generally accepted requirements of the
tort. The appellant was attempting to press into service, in support of
a private and domestic complaint, a cause of action that was unsuited
for the purpose. This is not because marital relations are a tort-free
zone, or because actionable deceit can never occur between cohabiting
parties or in respect of questions of paternity or marital or
extra-marital relations. It is because the law of tort, like the law of
contract, is concerned with "duties and rights which can be dealt with
by a court of justice"[28],
and the appellant's case was difficult to accommodate to that setting.
43 First, as to the representations found by the trial judge, reference
has already been made to the narrow and artificial basis upon which the
appellant's case was accepted. The respondent simply handed to the
appellant, for signature, routine administrative forms notifying the
public authorities of the birth of each child, and conferring on them
the surname of Magill. In his evidence, the appellant did not seek to
relate his belief in his paternity to the signing of the birth
notification forms, or to any other particular words or conduct on the
part of the respondent. It was the failure to disclose her extra-marital
relations and their possible connection with her pregnancies that was
the critical element in the deception. Yet, unless it can be said that
there was then (that is, in effect, when the children were born) a legal
or equitable duty to disclose the truth, her silence did not amount to a
representation. After the marriage had broken down, and when the matter
of child support payments arose, there may have been a duty of
disclosure; but the appellant was not claiming to recover the child
support payments, and the trial judge made no finding on that basis.
44 Although there was no direct challenge in this Court to the trial
judge's conclusion as to fraudulent intent at the time of the signing of
the birth notification forms, it may be remarked, in passing, that the
evidence raised some serious questions, which were not the subject of
detailed findings, about that issue. Indeed, it is not entirely clear
what was found to be the respondent's state of belief, at the times when
the forms were signed, concerning the paternity of each child. Even some
years later, according to the evidence, she was referring in a diary to
suspicions. At the trial, she said that she thought the man with whom
she had been having extra-marital relations might have been the father
of the second child, but she did not think he was the father of the
third child. Because the matter was not raised as an issue between the
parties until some years later, the respondent might not have attempted
to resolve the question in her own mind, at the time of the signing of
the birth notification forms. Her state of mind on the question of
paternity, and the wisdom of revealing it, at the time of the birth of
each child, may have been Read More ..mplex than the reasons of the trial
judge acknowledge. However, that is a topic that was not considered in
any detail in argument in this Court.
45 Secondly, once it became clear that the making of the child support
payments was not an aspect of the appellant's claim, the course of
conduct, or change of position, in which he was induced to engage by
reason of the (assumed) false representations of paternity made soon
after the children were born appears to be that he remained in the
marriage and accepted his wife's second and third children as his own.
Although it was not made explicit, presumably underlying the appellant's
claim is the suggestion that if, at the time of the birth of the second
child, he had been made aware of his wife's infidelity and of the
possibility that another man was the father of the child, he would have
acted differently. In what way he would have acted differently is not
clear.
46 Thirdly, there is the related question of damage. The appellant
claimed, and was awarded, damages for two kinds of harm: personal
injury, and pecuniary loss. Accepting that the evidence established
recognisable psychiatric injury in the form of depression and anxiety,
the explanation given by the appellant, and the finding made by the
trial judge, as to the cause of that harm does not identify damage
directly flowing from an alteration of the appellant's position
occurring as a result of the inducement. His depression resulted from
the distressing circumstances surrounding the breakdown of the marriage;
distress that was exacerbated by his later discovery of the truth
concerning his wife's extra-marital relations and the paternity of two
of her three children. The appellant's claim for pecuniary loss took two
forms. The first was consequential, and dependent, upon the claim for
damages for personal injury. The second seems to have involved an
attempt to show that, as a result of being misled into treating the
second and third children as his own, the appellant devoted time to them
that could have been used for Read More ..munerative purposes, and outlaid
moneys for their food, clothing and other necessities. Acting, at least
for a few years, as the father of the two children cost the appellant
money. The amount of the loss was not shown with any degree of cogency,
and it is not possible, from the reasons of the trial judge, to see the
extent to which it was reflected in the amount of $70,000 awarded by way
of damages.
47 The Court of Appeal was right to conclude that the elements of
actionable deceit were not made out. The case, however, was Read More ..
fundamentally flawed, and the difficulties in relating the appellant's
claim to the cause of action on which he sued were symptomatic of a Read More ..
general problem which is likely to affect many such claims.
The bounds of the legal remedy
48 It has already been pointed out that, if a husband were to claim that
he had suffered injury in consequence of careless misrepresentations
made to him by his wife, whether they were representations about
intimate matters, or whether they took the form of bad investment
advice, the law would undertake a close examination of the circumstances
in which the representations were made in order to see whether there was
a legal duty of care. That is because, underlying the law of negligence,
there is a conception of legal responsibility, based upon the idea of
reasonableness, which reflects social conditions and standards[29].
Just as there are circumstances in which it is not reasonable to expect
people to act under the threat of legal responsibility for carelessness,
so there are circumstances in which personal relations are governed by
ethical principles that do not contemplate, and may be incompatible
with, legal responsibility and the risk of legal sanction. The law of
tort imposes obligations, often regardless of any intention of the
parties to enter into legal relations with one another. If a motorist
injures a pedestrian, the motorist will not have intended to enter into
legal relations with the pedestrian. Yet the act of driving a car on a
public road is one that is generally understood to be attended with
possible legal consequences, and the nature of the motorist's duty
usually is uncomplicated by conflicting responsibilities. Underlying the
legal remedy for deceit there is a duty of honesty, perhaps Read More ..neral
in its ordinary application than a duty to take care to avoid harming
others. Yet the ethical content of the duty is never measured without
regard to the context in which a party acts, and community standards do
not require the imposition of legal consequences regardless of such
context. For example, finding a false representation, made with
fraudulent intent, in a marital context, or in the context of some other
personal relationships, in certain circumstances may impute an
obligation of disclosure, regardless of other interests and
consequences, where none exists.
49 The matters which an individual party to a marriage might properly
regard as intimate and private are not limited to questions of paternity
of children of the marriage, or sexual fidelity, or to events that
occurred during the marriage. Finding a duty to disclose the truth about
some matters would be inconsistent with the ethical context in which
such a judgment must be made. FurtherRead More ..the problem goes beyond
questions of disclosure. Imposing legal consequences upon behaviour in
such a relationship also may be inconsistent with the subjective
contemplation of the parties and with public policy as reflected in
legislation. In that connection, the extensive scheme of regulation of
the legal incidents of the marriage relationship contained in the
Family Law Act, based as it is largely upon a policy of minimising the
importance of questions of "fault", forms an important part of the
setting in which judgments about dishonesty, and actionable damage, must
be made. The application of the common law of deceit to marital
relations is not impossible, and there are no rigidly defined zones of
exclusion, but attempts to construct legal rights and obligations in an
unsuitable environment should fail, as did this attempt.
Conclusion
50 The appeal should be dismissed with costs.
51 GUMMOW, KIRBY AND CRENNAN JJ. The Victorian Court of Appeal[30] allowed an appeal brought by the respondent in this Court, Meredith Jane Magill, against a judgment in the County Court of Victoria awarding damages against her at the suit of her former husband, Liam Neal Magill, the appellant in this Court. His claim was in deceit for false representations made by her as to the paternity of the second and third children born during the course of their marriage.
The background
52 The issues of principle debated on the appeal to this Court require
consideration of the proper scope in the common law of Australia for the
tort of deceit in domestic relations, in particular where the dispute is
between spouses and respects the paternity of a child apparently born of
their marriage. In that sense, the issues here lie at the frontiers of
tortious liability, as they did in Tame v New South Wales[31], Cattanach v Melchior[32] and Harriton (by her Tutor George Harriton) v Stephens[33].
The treatment by this Court of the issues presented on those appeals
illustrates the wisdom, when placed at a frontier, of taking a vantage
point to look back to the commencement of the legal journey and to what
developed thereafter.
53 The tort of deceit in its modern form first appeared in England at
the end of the 18th century. At that time, an action in tort of the
nature of that between the present appellant and respondent would have
been unthinkable for various reasons. First, no act committed by one
spouse against the other during marriage could be a tort: the reason,
affirmed as late as 1876, was the fundamental and general principle of
the common law that spouses "are one person"[34].
In his dissenting judgment in Wright v Cedzich[35],
Isaacs J spoke with evident approval of Bentham's criticism of the use
of such a "quibble" as the "nonsensical reason" for legal propositions
respecting the matrimonial condition.
54 Secondly, there was the long-standing common law presumption of
legitimacy, of great importance at a time before modern legislation such
as s 3 of the
Status of Children Act 1974 (Vic)[36],
and when legal rights, particularly of inheritance, depended upon the
status of legitimacy. Lord Mansfield, when explaining in Goodright v
Moss[37] why a
parent could not give evidence the effect of which would be to
bastardize a child, said[38]:
"As to the time of the birth, the father and mother are the most proper witnesses to prove it. But it is a rule, founded in decency, morality, and policy, that they shall not be permitted to say after marriage, that they have had no connection, and therefore that the offspring is spurious; Read More ..pecially the mother, who is the offending party."
55 Statute has intervened. That part of the law of evidence is no
Read More ..up>[39]. Nor is the
common law principle respecting the single legal personality of spouses.
Hence, it might be thought that there had been an expansion in the area
for the operation of the tort of deceit beyond that which it occupied
when it emerged in its modern form in Pasley v Freeman[40].
56 However, other things have remained constant. The law respecting
domestic relations was heavily influenced in England by the
ecclesiastical courts before 1857 and by the courts of equity. In both
courts, much emphasis has been placed upon the importance of the trust
and confidence between spouses and the delicacy of the married
relationship[41], and
Read More ..cently, courts of equity and courts Read More ..nerally have also
considered other adult, long-term, intimate, personal and sexual
relationships[42].
57 The tort of deceit has had quite different origins and applications.
The position is explained by Professor Fleming[43]:
"Deceit, as an independent and general cause of action in tort, is of relatively novel origin, although traces of it are encountered as early as the 13th century when a writ of that name became available against misuse of legal procedure for the purpose of swindling others[44]. Later this remedy expanded and played a modest part in developing the incipient law of contract, principally in connection with false warranties[45]. Its scope, however, remained confined to direct transactions between the parties until in 1789, in Pasley v Freeman[46], it was freed from this link with contractual relations and held to lie whenever one person, by a knowingly false statement, intentionally induced another to act upon it to his detriment. There, the plaintiff had made an inquiry from the defendant concerning the financial standing of a merchant with whom he was negotiating for the sale of 16 bags of cochineal and received the assurance that he could safely extend credit, although the defendant well knew the party to be insolvent. Despite the want of any contractual bargain with the plaintiff, the defendant was held to answer for the loss in an action for deceit. At about the same time, the remedy for breach of warranty was absorbed by the action of assumpsit and henceforth regarded as purely contractual[47]. Thereafter, the two theories of misrepresentation began to diverge and are now quite distinct. The tort action for deceit requires proof of fraudulent intent, while breach of contractual warranty became independent of any intention to mislead or other fault."
58 The significance of the foregoing for the issues that arise on
this appeal is apparent from the further observations by that learned
author[48]:
"Nevertheless, the close association of deceit with bargaining transactions has inevitably coloured the elements of the action, which largely reflect the ethical and moral standards of the market place as they relate to permissible methods of obtaining contractual or other economic benefits and of inflicting pecuniary loss through reliance on false statements. Not that the action is inapplicable to personal injuries or harm to tangible property,[49] but such instances are rare, and the typical cases in which the action is enlisted involve pecuniary loss."
59 An uncontroversial modern statement of the elements to be proved
in an action in deceit is that appearing as follows in the latest
edition of Clerk & Lindsell On Torts[50]:
"Where a defendant makes a false representation, knowing it to be untrue, or being reckless as whether it is true, and intends that the claimant should act in reliance on it, then in so far as the latter does so and suffers loss the defendant is liable for that loss."
60 That formulation no doubt was derived from the body of case law
which followed Pasley v Freeman[51] and was of the character described by Professor Fleming. How well it
applies at the frontier of liability with which this appeal is concerned
is for the consideration which will follow in these reasons.
61 However, something Read More ..rst should be said of the facts and the
conduct of the litigation.
The facts and the trial
62 The damages claimed by the husband included loss of earnings, loss of
use of monies, damages for personal injury, namely severe anxiety and
depression, and exemplary damages. The trial judge[52] found in favour of the husband and awarded him $70,000 in damages:
$30,000 for general pain and suffering; $35,000 for past economic loss;
and $5,000 for future economic loss.
63 The facts are dealt with comprehensively by Eames JA in the reasons
of the Court of Appeal[53] and for present purposes they can be summarised. The husband and wife
were married in 1988. During the time they were married the wife gave
birth to three children. The first child, a boy, was born on
7 April 1989 ("the first son"). The second child, also a boy, was born
on 30 July 1990 ("the second son"). On 27 November 1991, the wife gave
birth to a girl ("the daughter").
64 The husband and wife separated in November 1992. Following the
separation, the three children lived with the wife, and the husband was
able to spend time with them on certain weekends, according to a
mutually agreed access arrangement. The wife made an application for
child support from the husband in late 1992 under the
Child Support (Assessment) Act 1989 (Cth) ("the Child Support Act"). The husband generally made
payments in accordance with the child support schedule, save for certain
periods in 1996 and 1997.
65 Unbeknown to the husband, the wife had commenced an extra-marital
sexual relationship in September 1989. Contraception was not used. The
wife had had suspicions concerning the paternity of the second son, and
in 1993 these were strengthened as a result of her seeing a photograph
of a child of the man with whom she had had the extra-marital sexual
relationship; the child bore a physical resemblance to the second son.
66 In 1995, after suffering a nervous breakdown, the wife informed the
husband of her suspicion. DNA testing conducted by consent in 2000
established that the husband was neither the biological father of the
second son, nor of the daughter.
67 After the paternity of the second son and the daughter had been
determined, child support arrangements were adjusted, so that payments
were calculated, and due, only in respect of the first son. As the
husband had sufficient outstanding debt in respect of the first son as a
result of his failure to meet payments in 1996 and 1997, he was not able
to recover any amounts he had paid in respect of the second son and the
daughter[54].
68 The husband commenced an action in deceit against the wife, in the
County Court of Victoria in January 2001. The trial took place in
November 2004, and the reasons of the trial judge were delivered, and
the orders made, shortly after the conclusion of the hearing. The trial
judge determined that the wife had made false statements about
paternity, either knowing that they were false or without any belief in
their truth, or recklessly, without caring whether they were true or
not, and therefore without any genuine belief in their truth. Further,
according to the trial judge, the husband had established that the wife
intended the husband to rely on the false statements, that the husband
actually did rely on them, and that he suffered damage as a result.
69 According to the husband, the representations that he was the father
of the second son and the daughter were "partly written, partly oral and
partly to be implied". The husband claimed the written representations
were constituted, inter alia, by the completion and presentation of
birth notification forms by the wife naming the husband as the father of
the second son and the daughter. The husband submitted that oral
representations were constituted by conversations between him and his
wife, with respect to each child, to the effect that she was pregnant,
and that he was the father of the unborn child. The husband further
claimed that the representations were to be implied, given that the wife
failed to disclose her extra-marital sexual relationship, and failed to
correct his apprehension that he was the biological father of the second
son and the daughter.
70 However the trial judge's reasons referred only to the written
representations in the completed birth notification forms presented to
the husband for signature by the wife soon after the birth of each
child. Evidence relating to the oral or implied representations was not
explicitly advanced as proof of separate and discrete instances of
making or repeating the false representations[55].
The birth notification forms
71 In each of the birth notification forms in evidence, the name of the
child was entered by the wife, and in the section entitled "FATHER" the
wife entered the husband's name. Further down the page was a section
entitled "PARENTS PREVIOUS CHILDREN". In the notification form for the
second son, the name of the first son was entered in this section; and
in the notification form for the daughter, the names of the first and
second sons were entered.
72 At the bottom of the form for the daughter was a section entitled
"DECLARATION BY MOTHER / INFORMANT". It was completed by the wife in the
following way:
"I, Meredith Jane Magill request that the child be registered with the family name of Magill and certify that the above information is correct for the purpose of being inserted in the Register of Births and am aware that persons wilfully making or causing to be made a false statement concerning the particulars required to be registered shall on conviction be liable to the penalties of perjury."
73 Below this was a section entitled "DECLARATION BY FATHER", which,
upon presentation by the wife to him, was signed by the husband below
the words:
"I agree to be registered as the father of the child and that the family name of the child be Magill."
74 On the reverse of the form, the following Notes appear:
"NOTE 1 CHILD
Family Name: (i) If a person is registered as the father of the child, the family name of the child should be entered as the same family name as the father ...
NOTE 4 FATHER
Where the parents are not married to each other, do not enter particulars of the father unless the form is being signed by both parents ...
NOTE 5 PARENTS PREVIOUS CHILDREN
Enter only details of children born to or adopted by both parents of the child being registered ..." (emphasis in original)
A form in similar terms was completed in relation to the second son
after his birth.
75 The following exchange regarding the birth notification forms took
place between the husband and his counsel at trial:
"Did she show you a birth certificate? - - - All three children were born in Sea Lake Hospital and at each birth upon discharge there's a form that is filled out regarding the birth of the particular child and that was done on all three occasions of the birth of our children.
Did you see that form? - - - Yes.
Who showed it to you? - - - Well, it was shown to both of us. [The wife] filled the form out on each occasion and naming me as the father and I had no reason to believe otherwise so I signed the particular form."
76 When asked about whether her husband would consider each form (as
filled in by her showing him as father) as an assertion of the truth,
the wife replied,
"I don't think I really thought too hard about it at all, it was a birth registration."
77 In his reasons, the trial judge described the birth notification
forms as the "most direct evidence" of the making of the alleged
representations. His Honour stated:
"It seems to me to be impossible to conclude that [the wife] could have had any real belief in the assertion that she made, and in my view she must have known that [the husband] was not the father ... At the very least, she has just been so reckless as to not have any genuine belief in the truth of the assertion at all, but nevertheless made it, intending it to be relied upon."
78 In awarding damages, the trial judge referred to the evidence of
three doctors who had treated the husband for psychiatric disorders,
which included depression and anxiety, which followed from the
revelation of the "painful knowledge that two of his three children
[for] whom he cares and loves ... have turned out not to be his".
79 Of the wife's situation, his Honour said:
"[The wife] found herself in a position [in] which she [had] a choice between endeavouring to save her marriage or face the enormous uproar which undoubtedly would follow upon her making a truthful statement concerning her beliefs as to the paternity of her children. This solution to the problem of course is no solution at all, that is to lie about it, but I am not so much lacking in comprehension of human frailty that I would ignore and push past an understanding of the extreme difficulty which faced [the wife] when presented with the form to fill in concerning notification."
The Court of Appeal
80 In allowing the wife's appeal from the decision of the trial judge,
both Ormiston and Callaway JJA noted that this was an "unusual case",
fought on very narrow grounds[56],
as the only representations to which the trial judge explicitly referred
and which he tested against the elements of the cause of action in
deceit were those representations described in the birth notification
forms[57].
81 All members of the Court of Appeal assumed that the claim in deceit
had been brought appropriately[58] and concentrated upon whether, on the facts of the case, the elements of
the cause of action in deceit had been established.
82 Callaway JA found that there was no evidence on which the trial judge
could find that the wife intended the husband to rely on the birth
notification forms for any purpose other than signing them and agreeing
that the children should be registered with the family name of Magill[59].
Eames JA (with whom Ormiston JA agreed) determined that the only finding
made by the trial judge concerned the representations in the birth
notification forms[60] and further stated[61]:
"The [husband] did not give evidence that the completion of the forms induced him to do anything. Rather, his evidence was that it was his belief that he was the father that caused him to provide the financial and emotional support for the children, and that his belief in that respect was based on the whole situation of being in a marriage and his ignorance that his wife was conducting an affair. He said that had he known their paternity he would not have maintained the two children, but that evidence was not related to reliance by him on the contents of the forms.
In my view, therefore, there was no evidence that the [husband] acted in reliance on the representations in the forms, save (by inference) with respect to the naming of the children."
83 The Court of Appeal noted that of the $35,000 awarded by the trial
judge for the husband's economic losses, the trial judge had awarded
$10,000 for time taken off work after the births of each of the two
children, and $25,000 was for "expenses incurred for the two children
over the many years before their paternity was resolved"[62].
It was also noted that the trial judge had expressly stated that he was
not, in effect, refunding or adjusting child support payments[63].
The appeal to this Court
84 In this Court, by her Notice of Contention, the wife submitted that
the Court of Appeal erred in concluding that the tort of deceit extended
to claims for damages arising from false representations as to the
paternity of children conceived and born during the course of a
marriage.
85 Arguments regarding the scope and constitutionality of ss 119 (abolishing spousal immunity in tort) and 120 (abolishing actions for "damages for adultery") of the
Family Law Act 1975 (Cth) ("the Family Law Act") were also raised in that context. The
Attorney-General of the Commonwealth intervened and submitted that ss 119 and 120 were valid and supported the interpretation of the sections
advanced by the husband, which will be considered in Read More ..tail later.
86 In the reasons which follow, the conclusions will be reached that an
action for deceit between spouses is not excluded by the provisions of ss 119 and 120 of the Family Law Act and that, while an action for deceit may be
maintainable between spouses or former spouses in certain circumstances[64],
the tort does not apply to false representations made during the course
of a marriage about an extra-marital sexual relationship or paternity.
87 This is for two reasons. First, speaking broadly, the Parliament has
passed legislation governing the dissolution of marriage in which the
determination of fault between spouses, including inquiry into their
extra-marital sexual conduct, is no longer the province of the law. At
the same time, in step with scientific developments, the relevant
legislation facilitates accurate determination of paternity and permits
the recovery of amounts wrongly paid for child support. The legislation
is federal and thus applies throughout the Commonwealth. The common law
of Australia in a field appropriate for further development after that
legislation ought not to proceed on a divergent course[65].
88 Secondly, conduct which constitutes a breach of promise of sexual
fidelity and any consequential false representation about paternity,
occurring within a continuing sexual relationship, which is personal,
private and intimate, cannot be justly or appropriately assessed by
reference to bargaining transactions, with which the tort of deceit is
typically associated.
89 These conclusions will result in the dismissal of the appeal and make
it unnecessary to determine other matters which were the subject of
submissions.
Submissions
90 In argument, both parties dealt with the question in terms of whether
or not there should be "an exception" to the application of the law of
deceit, in the circumstances of this case. That treatment of the
question reflected the course of the argument in an English case, P v
B (Paternity: Damages for Deceit)[66].
However, what has already been said in these reasons shows that what is
at stake is not the creation of "an exception" to the established
principles or of a "control mechanism" upon their operation. Rather, the
appeal calls for a decision as to whether the action for deceit should
run at all in circumstances where in previous times it could not have
done so.
91 The husband submitted that there should be no exclusion, or
non-application, of the law of deceit in respect of the wife's liability
based on the fact that the false representations concerned the paternity
of two children born during their marriage were made during the course
of the marriage, and he relied on P v B (Paternity: Damages for
Deceit), which has been characterised as confirming the general
application of the principle encapsulated by the tort[67].
He relied also on the plain and literal meaning of ss 119 and 120 of the Family Law Act, the text of which shall be referred to later in
these reasons. Calling in aid examples of judicial reasoning from other
jurisdictions, the husband argued that public policy considerations
which were animated by concern for the welfare of children should not
bar his action.
92 The wife submitted that a cause of action in deceit was generally
relied on when a remedy was sought in respect of pecuniary losses
arising from inducement to lay out money or enter a contract. It was
conceded that examples could be found where deceit founded a remedy in a
context which was not commercial[68] including where deceit caused physical injury, specifically nervous
shock[69]. It was
next submitted that a false representation made during the course of a
marriage should be treated differently from a false representation made
in a commercial context, just as agreements between spouses were not
normally treated as creating legal relations[70].
The wife also contended that an action for deceit was not apt in a
continuing marital relationship because of the difficulty of
establishing the requisite elements, as happened here with the element
of reliance, a matter to which these reasons will return.
93 Further the wife questioned the social utility of allowing such an
action when that course is weighed against the potential for damage to
families and children. She also submitted that the family law regime
provided for the recovery of maintenance that has been paid without
legal obligation, and that it does so without allocating blame, so it
was unnecessary to rely on the tort of deceit to do justice between the
parties[71]. Then it
was argued that the novel reliance on an action for deceit, as here,
would not have been within contemplation when s 119 of the Family Law Act was drafted; that s 119 should be read down to exclude deceit of the kind alleged
here; and that ss 119 and 120, read together, exclude tortious claims inconsistent with the
exercise of jurisdiction and powers provided for in the Family Law Act. The wife also relied on public policy
considerations, telling against recognising an action for deceit as
sought here, as adverted to in a number of decisions elsewhere; these
decisions will be considered later in these reasons. It is convenient to
start with a consideration of the arguments concerning ss 119 and 120 of the Family Law Act.
Sections 119 and 120 of the Family Law Act
94 Section 119 provides:
"Either party to a marriage may bring proceedings in contract or in tort against the other party."
95 The effect of s 119 is to abrogate rules applied at common law which flowed from
the common law premise that husband and wife were one, to which
reference has been made earlier in these reasons. The premise included a
claim for a tort committed by one spouse against the other during or
before the marriage. This spousal immunity from tortious claims has been
progressively abrogated in Australia[72] (following earlier legislation enacted in the United Kingdom[73]).
The Commonwealth submitted that there is nothing on the face of s 119 (or to be found in the relevant extrinsic material) which
suggests there is a continuing spousal immunity in relation to some
torts, specifically deceit, and not others. This submission is correct
and must be accepted. The plain terms of the section would permit
actions brought in respect of disparate intentional torts, for example
trespass to the person, or deceit in the context of contractual
negotiations. However, the conclusion that s 119 allows the possibility that an action for deceit now lies
between spouses is inconclusive of the outcome in this case. Section 119 does not compel any conclusion that the common law must
now be developed to permit recovery by the appellant in the novel way he
claims.
96 Section 120 of the Family Law Act states:
"After the commencement of this Act, no action lies for criminal conversation, damages for adultery, or for enticement of a party to a marriage."
97 The wife submitted that s 120 prevented the husband's claim because the phrase "damages for
adultery" encompassed the deceit relied on in this case; the husband
rejected this construction. The Commonwealth supported the husband's
construction and submitted that each of the three causes of action
abolished by s 120 were once brought by an injured party against third parties,
and in particular "damages for adultery" refers to a former statutory
cause of action against a co-respondent[74].
These submissions are also plainly correct and must be accepted.
98 However, s 120 does not stand in isolation. It is consonant with the entire
thrust, theoretical underpinning and overall legislative purpose, of the Family Law Act, which constituted a radical alteration to the basis
of family law legislation as previously enacted. The goal was to remove
provisions for divorce based on fault which involved the allocation of
blame and "indignity and humiliation to the parties because of the
inquiry into fault"[75].
It was for that reason that the 14 grounds for divorce contained in the
preceding Matrimonial Causes Act 1959 (Cth) (which included
adultery[76]) and the
four grounds of voidability (which included the wife being pregnant by a
person other than the husband[77]),
were all reduced to a single ground for the dissolution of marriage,
namely "that the marriage has broken down irretrievably"[78].
It can be noted in passing that decrees of nullity can be obtained if a
marriage is void[79].
99 Further, the principles to be applied under the current legislation
premised on "no-fault" divorce are set out in s 43 of the Family Law Act as follows:
"The Family Court shall, in the exercise of its jurisdiction under this Act, and any other court exercising jurisdiction under this Act shall, in the exercise of that jurisdiction, have regard to:
(a) the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life;
(b) the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children[[80]];
(c) the need to protect the rights of children and to promote their welfare;
(ca) the need to ensure safety from family violence; and
(d) the means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and to their children."
100 The differences between the current family law provisions dealing
with family breakdown and earlier provisions reflect profound social
changes. No longer does a paterfamilias hold a "commanding
position"[81],
husbands and wives are treated as equal, divorce is not dependent on
findings of marital fault, and actions for any solace in respect of
sexual infidelity have been abrogated.
101 Divorce is now not uncommon, and many children are part of families
which include step-parents and half-siblings. Further, reflecting the
language and principles of the United Nation's Convention on the Rights
of the Child[82],
Pt VII, Div 1 of the Family Law Act states principles which underlie the provisions
directed to the proper parenting of children. By way of example, s 60B(2)(a) of the Family Law Act provides that, subject to a child's best interests,
children have "the right to know and be cared for by both their
parents". It can also be noted that child maintenance orders dealt with
in Pt VII, Div 7 relate to children whose parents are their biological
parents, step-parents, adoptive parents, or (as defined in the Family Law Act) parents as a result of artificial conception
procedures. It is sufficient for present purposes to note that the
retreat by the legislature from regulating private sexual conduct
between spouses, evidenced in part by s 120, has been accompanied by a correlative increase in regulation
of matters affecting the welfare of children, one of which is the issue
of identity.
102 While s 120 does not encompass, or expressly or impliedly forbid, the
husband's action for deceit, the terms of s 120 support the argument that such an action would not seem
consistent with the overall thrust, theoretical basis, and general
legislative purpose of the comprehensive legislation of which s 120 is a part. This is relevant to the issue raised as to whether
the common law of tort of deceit should be found by this Court to apply,
in the novel way claimed, in the circumstances revealed by the evidence
in this case.
103 The conclusion that ss 119 and 120 (whether considered individually or collectively) do not
expressly or impliedly prohibit an action in deceit between spouses
makes it unnecessary to consider an alternative argument of the
husband's (if the wife's construction of ss 119 and 120 were accepted) that the provisions were unconstitutional, as
beyond the powers in ss 51(xxi) and 51(xxii) of the Constitution.
Question
104 The question then becomes whether the common law action of deceit
covers or should cover false representations of paternity made during
the course of a marriage.
Applicable legislation
105 In the Family Law Act and the Child Support Act, Australia has a
comprehensive statutory framework for dealing with marital breakdown and
collateral issues affecting children. An action in deceit, as pursued
here, cuts across specific provisions in the Family Law Act establishing a single ground for divorce, which
excludes fault, abolishing specific actions including an action for
"damages for adultery", dealing with presumptions of parentage, and
providing for the rebuttal of those presumptions (particularly by
determination of paternity by scientific testing), as well as further
provisions in both the Family Law Act and the Child Support Act allowing for the recovery
of amounts paid, or property transferred or settled, under maintenance
orders, in respect of a child who is not the biological child of the
father.
106 Turning to the presumptions of parentage[83],
relevantly, a child born to a woman during a marriage is presumed under
the Family Law Act to be her husband's child (s 69P) and a presumption
of parentage arises from the registration of a birth (s 69R). The Family
Court may make orders compelling the production or giving of evidence
relevant to parentage (s 69V) and it may compel parentage testing
(ss 69W and 69X) and make consequential declarations (s 69VA).
107 Reference has been made earlier in these reasons to the common law
presumption respecting legitimacy and to the view on the subject of
Lord Mansfield, expressed shortly before Pasley v Freeman[84]launched the modern tort of deceit.
108 Until the development of medical knowledge and technology for
objectively determining paternity, the presumption of legitimacy
remained strong[85] as demonstrated by Russell v Russell[86],
where as late as 1924 Lord Mansfield's rule operated to preclude the
reception of evidence of adultery in divorce proceedings. However, the
strength of the common law presumption declined over time to the point
where it was held in 1970 that it "merely determines the onus of proof"[87] in proceedings. In any event, in Australia, Lord Mansfield's rule was
abrogated by statute[88].
What lay behind the deconstruction of the rule was not only changed
preconceptions of "decency and morality" in respect of illegitimacy and
adultery, but also advances in medical knowledge. The capacity to
exclude paternity by blood testing of a child and its parents, which
emerged before World War II, was seen as a technological development of
particular relevance to affiliation proceedings[89].
It was inevitable that this would lead to greater emphasis on the
biological or genetic connection between parent and child in the context
of the dissolution of marriage and consequential orders for the
maintenance and support of children[90].
That development has been followed Read More ..cently by the ability to
determine paternity with a greater degree of probability than was
possible with blood tests, by testing based on analysis of DNA
(deoxyribonucleic acid), the molecule which contains the genetic
information inherited by children from their parents. The position has
now been reached that the statutory presumptions for determining a
child's parentage, as a matter of law (ss 69P-69T) may be rebutted (s
69U) by determining parentage scientifically through DNA testing
(s 69W-69X).[91]
109 The conduct of the wife in this case, both in relation to the birth
notification forms (and her continuing silence, until 1995, about her
extra-marital sexual relationship during the marriage) was not
inconsistent with Lord Mansfield's rule once flowing from the
presumption of legitimacy. However, it is the availability of Read More ..
reliable DNA testing of paternity which has given rise to the husband's
novel application to rely on an action for deceit in his particular
circumstances.
110 Further, under s 143(1) of the Child Support Act[92] payments can be recovered where child support has been paid by a person
who is not liable, or who subsequently becomes not liable. A court has a
discretionary power to make such orders as it considers just and
equitable for the purposes of adjusting or giving effect to the rights
of the parties and the child concerned[93]. Section 66X of the Family Law Act also contains provisions enabling orders for the
repayment of child maintenance which has been paid by a person who is
not a parent or step-parent of the child[94].
In this manner, the legislature has evinced an intention to deal with
the economic loss caused by a wife to a husband, after the breakdown of
their marriage, in circumstances such as those arising here, namely
payments for child support or maintenance. It can be noted that these
amounts are not coterminous with the damages for economic losses awarded
by the trial judge as described earlier in these reasons.
Development of the tort of deceit
111 Significant developments of the tort of deceit in the last quarter
of the 19th century arose out of the increased use of companies as
suitable vehicles for the conduct of commercial activity, and
representations to be commonly found in prospectuses and like documents.
112 In the Court of Appeal below, both Callaway JA[95] and Eames JA[96] referred to the familiar passage in Lord Selborne's reasons in Smith
v Chadwick[97]:
"... I conceive that in an action of deceit ... it is the duty of the plaintiff to establish two things; first, actual fraud, which is to be judged of by the nature and character of the representations made, considered with reference to the object for which they were made, the knowledge or means of knowledge of the person making them, and the intention which the law justly imputes to every man to produce those consequences which are the natural result of his acts: and, secondly, he must establish that this fraud was an inducing cause to the contract; for which purpose it must be material, and it must have produced in his mind an erroneous belief, influencing his conduct."
113 This passage was subsequently extracted in the reasons of Lord Herschell in Derry v Peek[98], after which his Lordship went on to explain[99]:
"First, in order to sustain an action of deceit, there must be proof of fraud, and nothing short of that will suffice. Secondly, fraud is proved when it is shewn that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false. Although I have treated the second and third as distinct cases, I think the third is but an instance of the second, for one who makes a statement under such circumstances can have no real belief in the truth of what he states. To prevent a false statement being fraudulent, there must, I think, always be an honest belief in its truth. And this probably covers the whole ground, for one who knowingly alleges that which is false, has obviously no such honest belief. Thirdly, if fraud be proved, the motive of the person guilty of it is immaterial. It matters not that there was no intention to cheat or injure the person to whom the statement was made."
114 The modern tort of deceit will be established where a plaintiff
can show five elements: first, that the defendant made a false
representation[100];
secondly, that the defendant made the representation with the knowledge
that it was false, or that the defendant was reckless or careless as to
whether the representation was false or not[101];
thirdly, that the defendant made the representation with the intention
that it be relied upon by the plaintiff[102];
fourthly, that the plaintiff acted in reliance on the false
representation[103];
and fifthly, that the plaintiff suffered damage which was caused by
reliance on the false representation[104].
Generally, the elements of the tort have been found to exist in cases
which concern pecuniary loss flowing from a false inducement and the
need to satisfy each element has always been strictly enforced, because
fraud is such a serious allegation.
115 Not only do the cases themselves show that an action for deceit has
historically been associated with commercial and economic matters, and
particularly with inducing contractual relations, but the method by
which damages in deceit may be assessed also reflects this link[105].
Where a person makes a fraudulent representation to a purchaser about
the value or nature of a product or property, which representation
induces the purchaser to buy the product or property, damages can be
quantified by reference to the difference between the price paid, and
the actual value of the product or property[106].
In Gould v Vaggelas[107],
this Court quantified damages in deceit as those representing the loss
suffered by the purchaser as a consequence of reliance on the fraudulent
representation.
116 In 1974, the common law action in tort for deceit in Australia was
eclipsed in part by Pt 5 of the
Trade Practices Act 1974 (Cth) ("the Trade Practices Act") and cognate provisions under State legislation[108].
The consumer protection regime embodied in that legislation prohibits
both conduct that is misleading or deceptive, or likely to mislead or
deceive[109], and
the making of false or misleading representations[110].
117 The current position is that whilst the tort of deceit involves a
"perfectly general principle"[111],
as contended by the husband, applications outside a commercial or
economic setting are rare and the action is mainly associated with
pecuniary loss. However, two older cases in which damages for personal
injury arose out of a claim of deceit deserve mention. Wilkinson v
Downton[112] concerned a claim for damages in respect of nervous shock resulting from
a false representation intended as a practical joke. While it was argued
that the claim was one of fraud, falling within principles established
in Pasley v Freeman[113],
Wright J doubted that the conduct complained of did fall within that
authority and preferred to recognise the cause of action as arising from
an imputed intention to cause another physical harm[114].
Likewise false words and threats uttered with a similar imputed
intention to cause physical harm, including nervous shock, were held
actionable in Janvier v Sweeney[115].
Subsequent developments in Anglo-Australian law recognise these cases as
early examples of recovery for nervous shock, by reference to an imputed
intention to cause physical harm, a cause of action later subsumed under
the unintentional tort of negligence[116].
118 In Smythe v Reardon[117],
Stanley J held that the false statement by the defendant that he was a
bachelor and free to marry the plaintiff was not calculated to cause the
degree of illness required by Wilkinson v Downton[118].
However, his Honour did allow recovery in deceit for moneys provided by
the plaintiff during their cohabitation to assist the defendant in his
business as a baker[119].
119 The question of whether an action for deceit should run in
circumstances such as those of the present case has been considered
elsewhere.
Decisions in other jurisdictions
120 The English case P v B (Paternity: Damages for Deceit)[120] concerned a man's claim that he had been fraudulently deceived by a
woman, with whom he had lived for many years, into believing he was the
father of her child. In deciding a preliminary question of whether the
tort of deceit applied in the context of domestic relations, in a brief
judgment, Stanley Burnton J determined that it could be maintained as
between a cohabiting couple chiefly because torts of negligence and
trespass to the person applied in a domestic context and he considered
it would be anomalous to except deceit[121].
He recognised that it would not be appropriate to award damages for the
tort if to do so conflicted with orders made in the Family Division of
the High Court of Justice[122].
121 From about 1930[123],
a number of jurisdictions in the United States of America have come to
recognise actions in tort for the intentional infliction of emotional
distress[124], as a
further development of the approach in Wilkinson v Downton[125]and Janvier v Sweeney[126].
As the tort has not been recognised in Australia[127],
and as differing decisions have been arrived at in different American
States in respect of the availability of the tort in respect of
circumstances such as here, depending often on the terms of differing
State legislation[128],
the decisions are of limited assistance in determining the content of
the Australian common law in question here. However, two matters are
worth noting. The lack of consensus about the availability of the tort
in respect of false representations concerning an extra-marital sexual
relationship and paternity during marriage stems, at least in part, from
the adjectival definition of the tort[129].
Secondly, a cautious approach has been taken by a number of American
courts when dealing with tortious actions for deceit in a family
context, particularly where public policy considerations come into play[130].
In 1980 in Stephen K v Roni L[131](a case concerning deceit in respect of contraception) it was
stated:
"Broadly speaking, the word 'tort,' means a civil wrong ... for which the law will provide a remedy in the form of an action for damages ... [but it] does not lie within the power of any judicial system, however, to remedy all human wrongs. There are many wrongs which in themselves are flagrant. For instance, such wrongs as betrayal, brutal words, and heartless disregard of the feelings of others are beyond any effective legal remedy and any practical administration of law."
122 It was also acknowledged that it was not the business of the
court to "supervise the promises made between two consenting adults as
to the circumstances of their private sexual conduct"[132].
In a Read More ..cent case also involving an action for deceit in respect of
misrepresentations concerning contraception, one member of the Court of
Appeals of New Mexico stated[133]:
"If we recognize a claim based on intentional misrepresentation, we have started down the road towards establishing standards of conduct in reproductive relationships one of the most important and private forms of interpersonal relations. In the absence of a clear balance favoring the imposition of legal duties of disclosure in reproductive relations between competent adult sex partners, candour in reproductive matters should be left to the ethics of the participants."
Similar reservations have been expressed in Canada[134],
regarding the "undesirability of provoking suits within the family
circle"[135].
123 By way of contrast, the husband relied on two United States
authorities in which appeal courts permitted claims for deceit, similar
to the husband's, to be maintained on the grounds that public policy
considerations, premised on the "best interests of the child", do not
constitute a bar to such actions being brought[136].
124 The division of opinion in other jurisdictions, including
differences on public policy issues demonstrates the need to consider
the elements of the tort of deceit with an eye to testing its
application to a false representation of paternity made during a
continuing marital relationship. In principle, the same need for close
scrutiny would appear to arise in respect of any attempt to invoke the
tort of deceit in other intimate person relationships, especially
instances of "reproductive relations between competent adult sex
partners"[137].
Application of deceit to the facts
125 That the representations made in connection with the birth
notification forms were false was not in contest at the trial. However,
the wife submitted in this Court that the most she knew at the time of
the completion of the birth notification forms was that there was an
inevitable doubt in her mind about the truth of the representations
because of her extra-marital sexual relationship. As already noted, the
representations were not inconsistent with the long-standing presumption
of legitimacy or the statutory presumption of parentage in the Family Law Act, nevertheless they were capable of being demonstrated
to be false by DNA testing.
126 There was no evidence before this Court of whether the wife could
have undergone DNA testing during pregnancy without risk to herself or
her children so as to establish the truth and in any event the trial
judge recognised the difficulty for the wife in trying to investigate
her position, while simultaneously trying to maintain her marriage and
her family.
127 All judges in the Court of Appeal found that the evidence of the
wife's intention in respect of the birth notification forms was of an
intention to register the two children under her married name. They also
found that the husband was not induced by the birth notification forms
to support the children financially and emotionally, essentially because
his wife's continuing silence about her extra-marital sexual
relationship is what actually led him to assume such obligations[138].
128 This reasoning highlights the most problematic distinction between
this case and orthodox claims of deceit. Marriage is a relationship of
trust and confidence. Representations made within such a relationship
would have to be assessed with that reality in mind.
129 In general terms, silence will only constitute a misrepresentation
if there is a legal or equitable duty to disclose something[139].
However, numerous authorities recognise a duty of care on one spouse to
disclose to the other any matter which will cause physical injury, such
as one spouse having a sexually transmitted disease[140].
The law has also long recognised that a false representation, for
example as to being unmarried, can vitiate the consent of the other
party to a marriage[141].
The tort of deceit also applies between spouses when a false
representation by one induces the other spouse to take some commercial
or contractual step resulting in damage[142].
All three classes of cases are distinguishable from the question under
consideration here.
130 There is currently no recognised legal or equitable obligation, or
duty of care, on a spouse to disclose an extra-marital sexual
relationship to the other spouse during the course of a marriage[143].
There is a mantle of privacy over such conduct which protects it from
scrutiny by the law. However, that mantle does not cover conduct between
spouses involving duties recognised by the law such as the duty of
disclosure in certain contractual negotiations or a duty of care. The
rationale for that position is easily appreciated by comparing
commercial transactions which are the province of the law, with the
private aspects of a relationship such as marriage which are not the
province of the law.
131 In a commercial context, it has been stated that once an intention
to induce a person to rely on a false statement has been made out,
motive is irrelevant[144].
However, motive may be relevant to proof of intention[145].
132 In considering whether the tort of deceit applies to the
circumstances of this case, it is appropriate to consider the
possibility of Read More ..mprehensive evidence of the wife's intention than
was provided. A person in the position of the wife in the present case
may be impelled by a congery of motives. An important consideration at
the time of completing the birth notification forms (or remaining silent
about an extra-marital sexual relationship) may be the welfare and
status of any new child and the continuing welfare of any other children
of the marriage. Another consideration may be a desire to avoid an
irretrievable breakdown of the marriage. A further consideration may be
the avoidance of grief and distress, to the husband and to others such
as grandparents, and avoiding the wife's own humiliation.
133 These considerations are not raised so as to introduce
considerations of moral blame or judgment concerning the conduct of such
a person, but to show that the imposition of a justly imputed intention[146] to mislead or induce which may be as straightforward as "the state of [a
man's] digestion"[147] in a commercial setting, is likely to prove far Read More ..oblematic in
circumstances such as those here, where a representation (or a silence)
is but one act (or omission) in a voluntary complex and private
relationship of trust and confidence. In such a relationship matters of
intention and inducement could only arise if the impugned conduct was
intended to give rise to legal consequences[148].
Private matters of adult sexual conduct and a false representation of
paternity during a marriage are not amenable to assessment by the
established rules and elements of deceit. In terms of principle, this
would appear to apply to other relationships such as "long term and
publicly declared relationships short of marriage"[149] although that question does not fall to be determined in this case. In
the absence of a clear need for the common law to impose a legal or
equitable duty of disclosure of such matters they should be left, as
they are now, to the morality of the spouses, encouraged by the
legislature's support for truthfulness about paternity in the various
provisions of the Family Law Act which have been mentioned.
Pain and suffering
134 There is one further consideration. The husband's claim included
damages for economic loss and damages for pain and suffering. The
legislative provisions enabling the recovery of economic loss arising
from the payment of child support wrongly obtained have been dealt with
above. In an action such as this it will always be difficult to
establish whether the pain and suffering alleged by the husband is truly
caused by a false representation or is a compound reaction to the
distress occasioned by the discovery of what is felt as betrayal and the
breakdown of the marriage that it has occasioned. Acknowledging this is
to recognise the inherent difficulty of establishing reliance (and
causation) in such cases. Further, the utility of permitting a person
such as the husband to pursue a claim for such damages at common law is
outweighed by the capacity of such an action for adverse effects,
financial, emotional and psychological, on the wife and all three
children, and adverse emotional and psychological effects on the
husband. The determination of some courts to put aside such public
policy issues and allow the tort to be maintained in cases[150] which were relied upon by the husband are not persuasive in the
Australian context.
Conclusions
135 For the reasons set out above, false representations concerning an
extra-marital sexual relationship or its consequences made by one spouse
to another during the course of a marriage (ie excluding circumstances
involving either a duty of care or a duty of disclosure) are not
actionable in deceit. Nevertheless, a husband is entitled under the
family law regime in Australia to seek an order for the repayment of any
moneys wrongly paid for child support[151],
or child maintenance[152],
in reliance on such representations.
Order
136 The appeal should be dismissed with costs.
137 HAYNE J. The facts and circumstances giving rise to this appeal are set out in the joint reasons of Gummow, Kirby and Crennan JJ. I need repeat few of those matters. I agree with their Honours' conclusions, and the reasons given for those conclusions, about the application and validity of ss 119 and 120 of the Family Law Act (1975) Cth.
138 I agree that the appeal should be dismissed with costs but I would
express the applicable principle differently.
139 I would not state the principle that leads to the dismissal of this
appeal by reference to an absolute rule that is tied to the
subject-matter of the asserted misrepresentation, whether that is
identified as "the paternity of a child" or, Read More ..nerally, as "sexual
fidelity". That is, I do not consider that those subjects are to
be treated as producing some special rule. I would identify the relevant
principle as being one which is not confined to questions of sexual
fidelity or the consequences of infidelity. And I would identify the
relevant principle as one that may admit of exception.
140 The relevant principle that should be adopted is analogous, and of
generally similar content, to that concerning contracts and family
relations[153].
That is, save in exceptional cases, representations made by one party to
a marriage to another about the relationship between them (including,
but not limited to, questions of paternity of children and sexual
fidelity) are not intended by the parties to give rise, and are not to
be treated by the law as giving rise, to consequences enforceable by an
action for deceit. The cases in which a court could conclude that the
party making the representation, and the party to whom it was made, both
intended at the time of the representation that legal consequences
should attach to the veracity of what was said or written would be rare
indeed. Unless both parties are shown to have intended that what was
said or done should give rise to legally enforceable consequences, the
action for deceit will not lie. Misrepresentations about matters of
health and physical well-being (like misrepresentations about
transmissible diseases) raise other considerations than those that need
to be considered in this matter. Nothing that is said here should be
understood as foreclosing the determination of those issues.
141 There are several reasons for identifying the relevant principle in
the way described. Each is closely related to the other and there is,
therefore, some artificiality in describing them as separate reasons,
but it is as well to expose the reasoning in this way.
142 The first set of reasons can be illustrated by the facts of the
present case, and can be described as the difficulty of identifying the
elements of the tort of deceit in the continuing relationship between
parties to a marriage. In particular, it will generally not be easy to
identify what is later said to have been a misrepresentation upon which
the opposite party relied to his or her detriment. Those elements, of
misrepresentation and reliance, are not easily identified because what
is said or done between parties to a marriage takes its meaning and its
significance from the whole of the shared experience between them. To
look at a single statement made or act done by one of the partners to a
marriage, without a full understanding of that context, would be very
likely to yield unjust results. And in the context of the action for
deceit, it will be very likely to lead (as here) to the attempt to
isolate one or Read More ..rticular statements or events from an otherwise
undifferentiated course of conduct, and the elevation of that statement
or that conduct into a misrepresentation upon which the other party
claims to have relied to his or her detriment.
143 In the present matter, the appellant alleged that the respondent had
falsely represented to him that he was the father of each of the second
and third child. The particulars he gave of those representations
fastened specially upon "the completion and presentation by [the
respondent] to [the appellant] of a birth registration application" in
respect of each child. The "birth registration application" was a form
of Notification of Birth prescribed under the Registration of Births,
Deaths and Marriages Regulations made under the then provisions of the Registration of Births Deaths and Marriages Act 1959 (Vic). He
signed each as "father".
144 As the appellant's case was conducted at trial, it was the
presentation of each of these forms to him, and their completion by him,
which was proffered as the specific representation by the respondent
that was said to be false and upon which he relied to his detriment. But
the presentation and completion of these forms could not be considered
as separate and discrete events standing outside the context in which
they were presented and completed.
145 At the time the forms were presented to, and completed by, the
appellant, he and his then wife were living together in a relationship
of trust and confidence founded in the premises provided by the sharing
of their lives (as their lives had been shared in the past, were being
shared then, and would be shared in the future). So far as the evidence
revealed, the trust and confidence between them had not then been
overtly challenged. The intimate relationship which the respondent had
then formed with another man was unknown to the appellant. In those
circumstances, from the appellant's perspective, it went without saying
that the children conceived by, carried by, and born to the mother were
the children of their union. So far as the appellant was concerned,
nothing had occurred, and nothing had been said or done, to displace
that assumption. And the assumption continued for some time after the
birth of the third child.
146 His actions after the births of the second and third children are
thus to be explained by the continuance of that assumption, not any
reliance upon the accuracy of what was said or done in connection with
registering their births. Only when the respondent was taken ill in
1995, well after the parties had begun to live separately, and the
appellant read in the respondent's private diary of her doubts about the
paternity of one of the children, was there any occasion for the
appellant to question what, until then, was and always had been, the
conventional basis of his relationship with his wife and all three
children.
147 It is to be inferred that this assumption about paternity, which
formed the conventional basis of the parties' relationship, was created
and maintained in many different ways. There can be no doubt that during
the marriage, the parties acted and spoke one to another, and dealt with
third parties, on the basis that all three children were children of the
marriage. Presumably the assumption was sometimes made explicit (whether
by reference to the appellant as father or otherwise) but the assumption
pervaded all that the parties did or said in relation to the children.
As the appellant rightly said in his evidence at trial: "I had no reason
to believe that any of my children weren't mine."
148 In these circumstances, it is altogether unreal to single out from
an otherwise undifferentiated course of conduct and statements, in which
the appellant's paternity of the children was assumed, one kind of event
(the completion of a form necessary to register the birth of a child) as
constituting a distinct representation upon which the appellant relied
in ordering his future conduct.
149 The second set of considerations can be seen as lying behind the
first. It can be identified as the law's insistence upon identifying a
particular misrepresentation as founding the action for deceit. To
explain the point, it is desirable to begin from some fundamental
aspects of the modern law of deceit, and then to relate the point to the
particular facts of this case.
150 The modern law of deceit is sometimes treated as if it had its
origins in the late nineteenth century decision of the House of Lords in Derry v Peek[154].
There is no doubt that Lord Herschell's speech in that case has been of
particular importance in the development of the tort, especially his
recognition[155] that:
"First, in order to sustain an action of deceit, there must be proof of fraud, and nothing short of that will suffice. Secondly, fraud is proved when it is shewn that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false."
But it is important to recognise that the tort was not then, and is
not now, confined to cases in which the parties make, or intend to make,
a contract, and that the origins of the tort as an independent cause of
action are to be traced well beyond the late nineteenth century. In
particular, in 1789, in Pasley v Freeman[156],
an action in the nature of a writ of deceit was held to lie even if
there was no privity of contract between the parties. Nonetheless, as
Fleming was later to point out[157]:
"[T]he close association of deceit with bargaining transactions has inevitably coloured the elements of the action, which largely reflect the ethical and moral standards of the market place as they relate to permissible methods of obtaining contractual or other economic benefits and of inflicting pecuniary loss through reliance on false statements."
151 This close connection with the marketplace, coupled with the
moral opprobrium attending a finding of fraud, has led to great emphasis
being given by the courts to the accurate specification by a plaintiff
of the representation said to be false[158].
This emphasis is no matter of mere form or pleading practice. It is
founded in basic considerations of fairness. A party alleged to have
deliberately misled another must know precisely how the misleading is
said to have occurred.
152 The connection between the law of deceit and bargaining transactions
may also be understood as supporting the proposition, commonly stated as
being an element of the tort of deceit, that the representation must be
one which the defendant intended should be acted upon by the
plaintiff[159]. But
whether that latter proposition is accurate, or complete, is a question
that need not be decided here.
153 It is not possible to conclude in the present case that there was a
particular statement made by the respondent, about the paternity of
either child, which was a misrepresentation upon which the appellant
relied to his detriment. There was a course of events that could be
traced back to when the parties met, in which things were said and done,
and not said and not done, which together led him to form and maintain
the belief he held from the first moment of revelation of his wife's
pregnancy, that he was the father of the child she carried and later
bore. And this will be so in very many cases in which misrepresentations
are said to have been made about the paternity of a child. It is at
least difficult, perhaps even impossible, to force the facts of a
relationship in which a conventional basis of that relationship is later
falsified into the mould of the tort of deceit.
154 More over, to single out one particular element of the course of
events occurring in a marriage (in the present case by focusing upon the
presentation and completion of a Notification of Birth form) by
suggesting that it should be treated as standing apart from the general
course of events, suggests, even assumes, that one party to the marriage
(here, the respondent) was duty bound at that particular point of their
relationship to inform the other (the appellant) of doubts about the
child's paternity. Yet the appellant, correctly, stopped short of
contending that the respondent had been under such a duty when the forms
were presented to the appellant for signature as father, or at some
other point in their relationship.
155 It is this question of duty to speak which yields the third of the
considerations that supports the adoption of the principle stated in
these reasons.
156 There are cases, particularly commercial cases, in which a failure
to speak conveys a falsehood as clearly as would the direct telling of a
lie. But there can be no unthinking transposition of such principles
from a commercial setting into the radically different context provided
by the publicly proclaimed commitment of marriage and its necessary
underpinning assumptions of trust and confidence. Effect cannot be given
to those necessary assumptions of trust and confidence, nor their
vitality maintained, by the law supplying rules about the subjects in
relation to which, or about the occasions on which, one partner should
speak or may stay silent. The trust and confidence required between
marriage partners must be supplied by them; it cannot be provided by
legal norms and duties in the same way as those norms and duties may
regulate commercial interactions.
157 That the law cannot supply a rule which would oblige a marriage
partner to reveal doubts entertained about the paternity of a child is
demonstrated by considering what content that rule would have, and how
that rule could apply to the infinite variety of circumstances that may
confront a married couple. Would it be a rule that always, and in every
circumstance, obliged the revelation of infidelity regardless of the
prospect of pregnancy? Upon what basis could a rule be devised that
confined the duty to requiring revelation of infidelity only when a
pregnancy ensued or a child was born and its birth was to be registered?
And why would the rule be confined to questions of sexual infidelity?
There are many other matters that may affect the degree of trust and
confidence the parties to a marriage have in each other. How would those
matters be identified? Would some objective criteria be established or
would the inquiry be subjective? What could be said to be the relevant
objective criteria? And if a subjective inquiry is suggested, would the
duty extend to revealing any and every departure from the bases that the
particular parties to a marriage identify as supporting their mutual
trust and confidence?
158 The law cannot satisfactorily prescribe how a relationship that
depends entirely upon matters wholly personal and private to the parties
to it is to be maintained. The trust and confidence between marriage
partners is based in much more than considerations of sexual fidelity;
it is based in complex and subtle considerations of human relationships.
These are not amenable to the external application of duties of the kind
described.
159 The fourth set of considerations that point to the adoption of the
principle stated in these reasons concerns the nature of the
relationship of trust and confidence that is to be identified as
underpinning the relationship of marriage.
160 Because the relationship of trust and confidence, upon which a
marriage is and must remain founded, extends well beyond matters of
sexual fidelity and questions about the paternity of children, there is
an evident difficulty in stating the principle that should be applied in
the present case in a way that is confined to representations about
particular subject-matters. It is the nature of the relationship between
husband and wife that leads to the conclusion that the tort of deceit
should find no application in the present case. And that is why the
relevant principle should be identified, not by reference to the
subject-matter of the particular misrepresentation that is alleged, but
by reference to the consequences that flow from the nature of the
relationship within which the misrepresentation is made.
161 It is well-established that a consequence of the trust and
confidence that must underpin the relationship of marriage is that, save
in exceptional circumstances, the parties to the marriage are not to be
understood as contemplating resort to an action for breach of contract,
as the means for establishing the content of certain obligations between
them, or as the means for remedying what are said to be the consequences
of the breach of those obligations. A like rule should apply as a limit
to the availability of an action for deceit for misrepresentations made
in the course of a marriage about matters concerning the basis of
marital trust and confidence, including, but not limited to, matters of
sexual fidelity and the paternity of children.
162 The fifth set of matters that must be considered are matters that
might be said to tend against applying to the tort of deceit a rule
whose content is evidently taken from the radically different context of
the law of contract (the rule regarding intention to create legal
relations), and matters that might be said to tend against the adoption
of any special rule for claims in deceit that are made between
spouses or former spouses. Two different kinds of question are
identified - one concerns the application of legal principles devised in
one context to another legal context; the other concerns the Read More ..
general question of why a party who has been wronged should not have a
remedy. But it is convenient to deal with them together because the same
answer must be given to both questions.
163 That the same answer should be given to both questions becomes
apparent when each question is restated in terms that are related Read More ..
closely to the issues that must be decided. The first question can be
restated as: "Why should a rule devised to reflect the assumed
intentions of parties to a marriage (or other family relationship) in
respect of voluntarily assumed obligations be applied in the
altogether different field of legally imposed tortious
obligations between such parties?" Is there not a discordance and
incongruity in applying a rule based in mutual intention to
circumstances where, by hypothesis, one person has misled another? The
second question can be restated as: "Should not the law provide a remedy
where, as in this matter, one party to a marriage will look back at all
that was said and done during the marriage and rightly conclude that the
other party misled and deceived him or her?" Why should it matter
whether the deceived party can fix upon a particular event as the point
at which the deception occurred or the point at which it began?
Hindsight demonstrates that the appellant was misled.
164 The answers to these questions lie in the nature of the relationship
within which and from which the questions arise. The apparent difficulty
or incongruity in applying a rule devised in one field of legal
discourse (contract) to another and radically different field (deceit)
is much reduced, even eliminated, when it is recalled that the rule that
is applied is a rule which is devised to reflect the nature and
incidents of the larger, pre-existing, relationship between the parties
within which the particular event said to give rise to legal liability
has occurred. And because that larger, pre-existing, relationship is one
in which a deception takes its significance from the degree to which
there is a departure from the commitment of one to the other in mutual
trust and confidence, the law of deceit finds no satisfactory
application. It finds no satisfactory application because it depends
upon the application of objective and generalised standards of conduct
to a very particular and personal relationship in which it is the
parties themselves who do, and must, mould the way in which their
relationship is ordered and conducted.
165 Finally, the present case concerns parties who, at the relevant
times, were married. It is, therefore, neither necessary nor appropriate
to decide any wider question about the application of a similar rule to
domestic relationships in which the parties are not married. I would not
wish to be taken, however, as excluding the possibility that a rule of
generally similar content may properly find application in other
domestic relationships. Whether that is so must await a case in which
the question properly arises.
166 HEYDON J. This appeal should be dismissed for the following reasons.
Reliance
167 The crucial point in the Court of Appeal. "A worse vehicle
could not be imagined for deciding the scope of the tort of deceit." So
spoke Callaway JA of this case[160].
It is hard to disagree. The representations originally pleaded in the
statement of claim dated 31 January 2001 were allegedly made when the
wife announced her pregnancies to the husband. These representations
were not referred to in the reasons of the trial judge. It must be
presumed that they were rejected. The representation on which the
husband did succeed at trial was the presentation to the husband by the
wife of birth notification forms naming the husband as father. That
representation was not alleged until it appeared in amended further and
better particulars supplied the day after the trial began, 11 November
2002. All the members of the Court of Appeal found that one integer of
the tort of deceit was not made out on the facts. Two found that Read More ..
than one was not. In those circumstances Callaway JA rightly saw as a
sufficient reason for dismissing the husband's claim a reason identified
by Eames JA, with which Ormiston JA also agreed. That reason is that the
husband did not rely on the notification of birth forms for any purpose
other than the registration of the children's name as "Magill"[161].
That is a conclusion based on factual considerations relating to the
evidence or the lack of evidence on that subject. They can be
summarised thus.
168 Justification for the Court of Appeal's conclusion. The
husband gave no evidence that he relied on the representations in the
forms. He gave evidence that the wife "filled the form out on each
occasion and naming me as the father and I had no reason to believe
otherwise so I signed the particular form". A little later he said that
until he separated from the wife he "believed that I was the father of
all three of my children". When he stated the basis of his belief, he
did not mention the forms, but rather said:
"I had no reason not to believe it, I watched all three of the children born. I was present at the hospital when all three children were born ... and I had no reason to believe that any of my children weren't mine ...".
The Court of Appeal accepted that evidence[162].
The Court of Appeal concluded that it was the absence of any reason for
the husband to believe that he was not the father, coupled with "the
whole situation of being in a marriage and his ignorance that his wife
was conducting an affair"[163],
which caused him to believe that he was the father, not the wife's
statement in the forms that he was the father. That was a circumstantial
inference which was open to the Court of Appeal. It has not been shown
that the Court erred in drawing it, although the notice of appeal
challenged it and the husband endeavoured to demonstrate error in it in
various ways.
169 Erroneous inference? The husband argued that the Court of
Appeal were wrong to draw the inference for various reasons. Apart from
the statements in the forms, the husband had never been told by the wife
that he was the father. The wife voluntarily made clear unequivocal
written statements that he was the father in the forms. The wife
believed that in filling in the forms as she did she gave the husband to
understand that he was the father. The husband's signing of the forms
was extremely important, because that act caused a presumption of
paternity to arise by reason of s 69T of the
Family Law Act 1975 (Cth) ("the Family Law Act"). These points do not invalidate the Court of Appeal's
conclusion, because they do not meet squarely the problem of reliance.
That the wife had never told the husband he was the father except on the
forms does not negate the view that his belief in paternity arose from
circumstances other than the forms, however clear the statement of
paternity in the forms and however much the wife believed she was
communicating that statement to the husband. The husband's evidence is
consistent with the conclusion that the representation was not, in
context, seen as having any materiality. The request for the husband's
signature did not call for him to make a particular decision leading to
a significant change of circumstances on his part. It would not have
appeared to him to be a representation made in order to obtain some
advantage. To him the form must have seemed to be no more than a routine
administrative document of the kind which parents have to fill in on
many occasions in life.
170 A single inducement? The husband also submitted that a
fraudulent misrepresentation need not be the only inducement: it
sufficed if it was one inducement, even though the husband was also
partly influenced "by his own mistake"[164].
However, the Court of Appeal did not identify two groups of factors
operating on the husband the representations on the forms and his own
mistaken beliefs derived from other sources. Instead their conclusion
was that the latter group of factors were the only material ones. The
husband has not shown that this conclusion was false.
171 Onus on wife? The husband further argued that representations
by the wife to the husband that he was the father of a child born to her
would naturally operate on his mind in considering whether or not he was
the father[165];
that after the representations the husband believed he was the father;
and that in the circumstances an onus lay on the wife to show that the
husband had not relied on her representations[166].
The husband relied on the following statement in Gould v Vaggelas[167]:
"Where a plaintiff shows that a defendant has made false statements to him intending thereby to induce him to enter into a contract and those statements are of such a nature as would be likely to provide such inducement and the plaintiff did in fact enter into that contract and thereby suffered damage and nothing Read More ..pears, common sense would demand the conclusion that the false representations played at least some part in inducing the plaintiff to enter into the contract."
The wife, it was submitted, in not cross-examining the husband about
reliance, had treated reliance as not having been in issue, and
certainly had not discharged the onus referred to.
172 However, the present case is not a case of contract. There is no
analogy between a case where, after negotiations between two strangers,
one, after receiving a representation, changes position by entering a
contract, and a case like the present, where a wife makes a
representation of fact already believed by the husband. The wife was not
intending to induce the husband to enter a contract, the representations
were not likely to induce him to enter a contract, the spouses in fact
entered no contract, and the husband did not change his position in any
other way. The onus referred to in the statement quoted from Gould v
Vaggelas was only an "evidentiary onus"; it was made plain that the
legal burden of proving reliance remained on the plaintiff[168].
Nor was the present a case where "nothing Read More ..pears": there was ample
reason for the husband to believe that he was the father apart from the
statements in the forms.
Other issues
173 That is sufficient to dispose of the criticisms made by the husband
in support of his notice of appeal. It is therefore not a necessary step
towards dismissing the appeal to consider the attempts by the wife to
support the Court of Appeal's orders by reference to the three
propositions stated in her notice of contention. The parties, however,
examined in considerable detail the merits of the second proposition,
namely that "the tort of deceit does not extend to claims for damages
arising from the paternity of children conceived and born during the
course of a marriage". They also examined the first and third
propositions, which relate to ss 119 and 120 of the Family Law Act[169].
The first was that "'tort' in section 119 ... does not comprehend a
claim of deceit arising from the paternity of children conceived and
born during the course of a marriage". The third was that s 120 "applied to prevent the appellant's claim". In view of the
attention paid by the parties to these important issues, it is desirable
to say something about them. It is convenient to begin with ss 119 and 120.
Sections 119 and 120: construction
174 The wife's submissions. In the event that the debate analysed
below[170] about
whether under the general law, and independently of the effect of ss 119 and 120, an action in deceit may be brought by one spouse against
another by reason of the latter's fraudulent representations about
paternity was resolved against the wife's arguments that no such action
lay, the wife put the following submissions about ss 119 and 120.
175 First, instances of the tort of deceit outside a commercial context
are "at best" anomalous. The husband's attempt to rely on the tort in
the present proceedings was unique in Australia. Accordingly, Parliament
cannot have intended that s 119 would apply to claims in tort in relation to the paternity of
children conceived and born during the course of a marriage.
176 A second and alternative submission a true alternative, since it
is inconsistent with the first submission was that the abolition by s 120 of actions for criminal conversation, adultery and enticement
of a party to a marriage necessarily also entailed the abolition of
actions in deceit about the fact of adultery or its consequences.
177 Thirdly, s 119 was to be read down to extend only to torts which can occur as
much between spouses as between a spouse and a stranger. So read, it did
not extend to an action for deceit arising out of a false representation
about the paternity of children, which, if it could be brought at all,
could only be brought by one spouse against another.
178 Finally, the wife submitted that it would be anomalous if s 120 were to be construed as prohibiting claims for damages for
adultery while permitting recovery of damages for suffering caused by
misrepresentations about the consequences of adultery; and if the latter
damages were recoverable, damages should also be recoverable in any case
where a spouse is able to show that he or she suffered damage in relying
on a false denial of adultery.
179 Difficulties with the wife's submissions. The fundamental
obstacle which causes these submissions of the wife to founder is the
clear and intractable character of the statutory language.
180
Section 119.
Section 119 was directed to one particular issue whether one
spouse has the capacity to sue another in contract or tort. It permits
either party to a marriage to bring legal proceedings against the other
in tort all torts, not all torts other than deceit, and not all
torts other than one particular form of deceit. There is no basis on
which to read down the word "tort" in s 119 to exclude the tort of "deceit arising from the paternity of
children conceived and born during the course of a marriage". Nor is
there any basis on which to read an exception into s 119 for that form of the tort. The quoted language was no doubt
carefully crafted to ensure that a spouse can sue the other spouse for
frauds in proprietary and contractual matters, and to provide some
ammunition with which to repel the husband's constitutional challenge[171].
But its very precision is inconsistent with the universality of s 119.
181
Section 120. Nor can the wife's construction of s 120 be accepted. Section 120 deals with three wrongs that had existed at different
times before 1975. The action for criminal conversation was an action by
a husband for loss of consortium by reason of his wife's adultery with a
third party. Consortium included his wife's "comfort and society"[172] and her assistance in "the conduct of the household and the education of
his children"[173].
The action in enticement was also an action by a husband for loss of his
wife's consortium[174].
The action for criminal conversation was abolished in England by s 59 of
the Matrimonial Causes Act 1857 ("the 1857 Act"). However, s 33
of that Act permitted recovery of damages by a husband against a person
who had committed adultery with a petitioner's wife on the same
principles as applied to criminal conversation, but only on a petition
for judicial separation or dissolution of marriage. A permissible
ingredient in those damages was damages for loss of consortium[175],
though by 1966, if not earlier, the recoverable quantum at least in
England was only "a modest conventional figure"[176].
182 In Australia the legislation of the Colonies and then the States
followed similar principles. Thus, in Victoria, legislation between the
enactment in 1861 of An Act to amend the Law relating to Divorce and
Matrimonial Causes (Vic) ("the Victorian Act of 1861")[177] and the time when ss 98 and 99 of the
Marriage Act 1958 (Vic) ceased to be operative[178] has contained provisions corresponding to ss 33 and 59 of the 1857 Act
as described in the Table set out below[179].
183 Section 44(5) of the Matrimonial Causes Act 1959 (Cth) ("the
1959 Act") provided that "[n]o action for criminal conversation lies,
whether under this Act or otherwise". Instead, provision was made by s
44(1)-(3), as it had been made (at least to the advantage of husbands)
in the earlier Victorian legislation, for an action for damages by one
party to a marriage against a stranger to the marriage for adultery. It
lay only on a petition for a decree of dissolution of the marriage on
the ground of adultery, only if a decree of dissolution on that ground
was made, only where the adultery had not been condoned, and only if the
adultery had been committed less than three years before the date of the
petition. Section 44 created "a statutory cause of action different from
the old action for criminal conversation"[180].
Australian judges differed on the extent to which loss of consortium
justified recovery of damages under s 44. Some considered that it was
necessary to find "some tangible injury beyond mere loss of consortium
or feelings of hurt to one's ego before an award of damages is
justified"[181].
Others thought that s 44 of the 1959 Act continued the pre-1959 law[182].
184 Of these three wrongs, the two common law wrongs rested in part on
ideas involving husbands having quasi-proprietary rights in the
consortium of their wives but not vice versa[183].
The third wrong the statutory wrong rested in part on notions of
consortium as well, although the 1959 Act made it available to wives as
well as husbands. The abolition of these three wrongs by s 120 is
matched by a general statutory rejection, or a general obsolescence, of
causes of action involving similar ideas such as the action per quod
consortium amisit and the father's action for seduction, enticement and
harbouring in relation to the loss of his daughter's domestic services[184].
The fundamental concepts underlying recovery of damages for criminal
conversation, adultery and enticement of a party to a marriage have
little in common with those underlying the tort of deceit, either
generally, or in its potential operation between spouses. Those three
causes of action give one party to a marriage rights against a third
party. The tort of deceit between spouses gives one spouse rights
against the other. The statutory cause of action for damages for
adultery depended on dissolution of the marriage on the ground of
adultery; deceit does not. Although s 120 in terms abolished that
statutory cause of action, its abolition was an inevitable consequence
of the abolition of adultery as a ground for divorce, with all other
fault-based grounds for divorce, effected by the Family Law Act[185]; there
is no equivalent connection between deceit and the grounds for divorce.
The gist of the three wrongs referred to in s 120, unlike deceit, does not lie in deceitful words or conduct; it
lies in different acts having particular results. The abolition by s 120 of the three causes of action specific to marriage does not
entail the exclusion of a general tort like deceit from its application
to marriage, particularly in view of s 119.
185 Finally, the wife's appeal to the absurdity of reading s 120 as not extending to deceit about the paternity of children on
the ground that, if it did, a spouse could recover damages for deceitful
denials of adultery on the part of the other spouse, must be rejected.
The proposition that one spouse can recover damages for the other's
denials of adultery which satisfy the requirements of the tort of deceit
may have difficulties and may be open to objections, but it is not
absurd.
186 Conclusion. Sections 119 and 120 do not have the effect of preventing one spouse suing another
for deceit, and in particular for paternity fraud, if that action
otherwise lies.
Sections 119 and 120: constitutional validity
187 In view of the conclusion that neither s 119 nor s 120 affects the right of one spouse to sue another in deceit, it
is not necessary to deal with the husband's argument that, if either
section did, it would be beyond constitutional power.
Does the tort of deceit extend to deceit in relation to the paternity
of children conceived and born during the course of a marriage?
188 The wife advanced two groups of arguments against the availability
of an action in deceit for damages arising from the paternity of
children conceived and born during the course of a marriage. The first
relied on what were called "public policy" reasons. The second centred
on the contention that the availability of such actions would undermine
the statutory regimes for dealing with disputes arising out of marriage
and divorce, and that those statutory regimes by implication prevented
those actions being available. The statutory regimes were those in the Family Law Act and the
Child Support (Assessment) Act 1989 (Cth) ("the Child Support
Act").
Preliminary matters of background
189 There are two preliminary matters of background to be borne in mind.
190 History of deceit. The wife's arguments tended to stress the
narrowness and youth of the tort of deceit. They contended that normally
deceit was only relevant in inducing contracts, and that beyond that
field it was limited to commercial contexts. However, the majority
judges in Pasley v Freeman[186],
the case said to have created the tort of deceit, engaged in some
discussion of old authority which satisfied them that they were not
innovating. Thus Ashhurst J said[187]:
"Where cases are new in their principle, there I admit that it is necessary to have recourse to legislative interposition in order to remedy the grievance: but where the case is only new in the instance, and the only question is upon the application of a principle recognized in the law to such new case, it will be just as competent to Courts of Justice to apply the principle to any case which may arise two centuries hence as it was two centuries ago; if it were not, we ought to blot out of our law books one fourth part of the cases that are to be found in them."
That view that there was nothing novel in the decision has also been
taken by Milsom[188]:
"Not until 1789 in Pasley v Freeman was a liability for deceit clearly established as an entity in its own right, neither necessarily associated with contract nor excluded by it; and this resurrection of an ancient and elementary liability has been treated by modern writers as an example of the rare 'invention' of a new tort."
His view was that the former reach of the tort of deceit was
pre-empted by the development of contractual actions, and for a time
equivalents to it survived only in Star Chamber and Chancery. He also
stated[189]:
"But even in the common law the realisation that deceit was itself a proper basis of liability probably never quite died. Cheating at dice or cards, for example, may have been actionable in the late fifteenth century, though the matter was still not beyond argument in the early seventeenth century[190]. Late in the sixteenth century money had been paid to the plaintiff to pay over to a named third party; and the defendant, who got it by pretending to be that third party, was held liable in an action on the case for the deceit[191]. But claims of this nature were at least rare, perhaps because those who go in for such deceptions are not often worth suing."
191 Accordingly the approach adopted by the wife, of starting with a
narrow tort of deceit and inquiring whether it should, in 2006, be
unprecedently expanded, is questionable.
192 Two common law bars to paternity fraud actions. This appeal
arose from a dispute between a couple resident in Victoria. The husband
sued in the County Court of Victoria. He invoked a general rule of the
common law of Australia applicable in Victoria. The wife relies on the
impact on that general rule both of the circumstances in which the
conduct of the kind she engaged in takes place and of federal
legislation. In assessing that impact, it is desirable to remember some
background history. Before 1882 it was a rule of the common law applying
in the Australian Colonies including Victoria, subject to various
exceptions[192],
that one spouse could not sue another in tort. The first significant
inroad on this doctrine of interspousal immunity was made by s 12 of the Married Women's Property Act 1882 (UK), which relevantly provided[193]:
"Every woman, whether married before or after this Act, shall have in her own name against all persons whomsoever, including her husband, the same civil remedies ... for the protection and security of her own separate property, as if such property belonged to her as feme sole, but, except as aforesaid, no husband or wife shall be entitled to sue the other for a tort."
The legislature of Victoria enacted successive statutes based on this
model from 1884[194],
which continued in force until 1968[195].
The other Australian jurisdictions took a similar course[196].
193 This legislation left in place very substantial interspousal
immunity from actions in tort. By 1930 this state of affairs came to be
justified not on the old fiction that husband and wife "were one flesh"[197] but on the ground that litigation between spouses was "unseemly,
distressing and embittering"[198].
194 In 1959 the English Law Reform Committee was asked to consider
whether any changes in the law relating to the liability in tort of one
spouse to the other were called for. They rejected the idea that spouses
should have complete freedom to sue each other in tort because it would
be disruptive to the marriage[199].
They considered whether a precondition to a spousal action in tort
should be the leave of the court. However, they decided that it would be
sufficient if the court were given the power to stay the proceedings.
Subject to that qualification, they recommended that spouses should be
able to sue each other as if they were unmarried[200].
That recommendation was implemented in the Law Reform (Husband and
Wife) Act 1962 (UK), s 1. That model was followed in 1965, 1968 and
1972 by Tasmania, Queensland and South Australia respectively[201].
In 1968 Victoria[202] and the Australian Capital Territory[203],
and in 1969 the Northern Territory[204],
abolished the interspousal immunity without any qualification about a
stay. In 1964 New South Wales legislation[205] permitted spouses to sue each other only in relation to the protection
of property, or bodily injury or death arising out of the use of a motor
vehicle. However, in 1996 New South Wales in substance adopted the
Victorian position[206],
and in 2003 Western Australia did so as well[207].
195 The enactment of s 119 of the
Family Law Act in 1975 thus came after most of the States and
both the Territories had made a legislative choice some following the
United Kingdom model, some going further, one not going so far. These
Australian enactments plainly rejected the modern justification for
interspousal immunity, which had already been largely abandoned by the
Law Reform Committee, namely that interspousal litigation was "unseemly,
distressing and embittering". It is true, however, that the English Law
Reform Committee and the legislatures did not refer specifically to
fraud or paternity fraud.
196 That body of legislation by degrees removed one bar to actions by
husbands against wives for paternity fraud. Another bar had been removed
in Victoria in 1958 by the enactment of the
Evidence Act 1958, s 31[208],
which abolished the rule[209] preventing spouses from giving evidence of non-intercourse after
marriage, thereby making the presumption of legitimacy of any children
of the marriage very difficult to rebut[210].
197 It has become clear that various torts other than deceit may be the
subject of litigation between spouses since the abolition of
interspousal immunity. Spouses can sue each other for negligent driving.
They can also sue for assault and battery[211].
Unless some sound reason can be identified, it would be anomalous if
they could not sue for deceit.
The extent of deceit independently of statute: the wife's arguments
198 The wife's first argument was that there was little support in
authority for the husband's cause of action. She submitted that cases in
which deceit was established in a domestic (ie non-commercial) context
were limited to the following categories. One comprises instances, in
England and Canada, of women who became pregnant after being deceived
into entering a void marriage by married men who untruthfully said they
were single[212].
In Australia, a claim of that kind once succeeded before a single judge[213].
In another case, she said, it failed before a single judge[214].
The wife called the cases in which the claim succeeded "exceptional" and
"anomalous"; she went further in calling the case in which she said it
failed correct. Another comprises cases in which damage was caused by a
knowingly false statement[215],
but which are in truth to be explained, according to the wife, not as
deceit cases but as forerunners of other tortious causes of action such
as intentional infliction of mental harm[216] or as precursors to the recognition of recovery for negligently
inflicted mental trauma[217].
199 The wife accepted that there was United States[218] and Canadian[219] authority supporting the cause of action for deceit in relation to the
paternity of children of a marriage, but pointed to various other
decisions to the contrary.
200 The wife also accepted that in England a single judge of the Queen's
Bench Division had decided a preliminary issue of whether a de facto
husband could sue his de facto wife in deceit for telling him he was the
father of her child favourably to the de facto husband[220].
201 The wife agreed that it was often possible, although she said it
could be difficult, to analyse disputes arising from false statements
about paternity in such a way as to satisfy the discrete elements of the
tort of deceit. However, she submitted that the following arguments
which those United States courts denying relief had accepted ought to be
accepted here.
202 Intrusion of a blunt commercial tort into complex non-commercial
relationships. First, the wife submitted that intimate relationships
frequently involve deceit, betrayal and emotional distress. A person may
profess love to gain sexual favours, or deny an affair in order to
preserve a marriage, or lie about contraception or fertility. The law
does not treat agreements between spouses in the same way as it treats
commercial dealings[221].
By the same token, it ought not to treat fraud between spouses in the
same way as it treats commercial fraud. Deceit actions are an
appropriate means of remedying commercial fraud, but not paternity
fraud. The tort of deceit is limited to mendacious attempts to obtain a
commercial advantage. It cannot be transposed to marital relationships,
where a wife who has a doubt about the paternity of her child may be
faced with a difficult choice between lying to save her marriage and
telling the truth at the risk of what the wife in argument called, using
a phrase employed by the trial judge, "enormous uproar". Further, the
law is incapable of remedying the suffering caused by betrayal[222].
This point was expanded upon in Douglas R v Suzanne M[223]:
"The judiciary should not attempt to regulate all aspects of the human condition. Relationships may take varied forms and beget complications and entanglements which defy reason. Wrongs which occur in this context admit of no simple remedy. It is doubtful whether the court could fashion an order which would effectively resolve all the issues and make the parties whole."
Hence it is undesirable to seek to apply to complex human
relationships so blunt an instrument as an action for damages for
deceit.
203 Artificiality of, and difficulties in, applying tort of deceit. Secondly, the wife submitted that that course is undesirable for the
further reason that it is very difficult to apply the tort to those
relationships. The precise elements of the tort of deceit are highly
artificial when considered against the daily events affecting,
conversations between and assumptions of parties to, a personal
relationship. It is therefore difficult to isolate from those events,
conversations and assumptions the key elements of the tort, particularly
representation and reliance. It is also difficult to prove the integers
of deceit in cases involving private conversations between the parties,
where often it will be only oath against oath[224].
Hence a further reason why the law should not intervene is to be found
in the fact that it is technically difficult, from the forensic point of
view, to do so.
204 Ill-directed nature of tort of deceit. Thirdly, the wife
submitted that although the tort of deceit is directed at particular
untruthful statements, the conduct complained of in relation to
paternity fraud is not really any particular untruthful statement. It is
rather the commission of the particular act leading to the birth and the
failure either to abstain from it or to disclose it. But if a duty of
disclosure were imposed under cover of potential recovery for paternity
fraud, it could cause Read More ..cial damage than its imposition would
justify[225]. It
could destabilise marriages and divide families. It could harm children.
"[T]he possibility exists that judicial intervention will exacerbate the
initial wrong in some unanticipated way."[226]
205 Damage caused by introducing tort of deceit. Fourthly, the
wife submitted that even if there is no duty of disclosure, litigation
for paternity fraud will create the undesirable consequences just
referred to.
206 Child support as damage. Finally, the wife submitted that it
is wrong to treat as a form of compensable damage the birth of, and need
to support, a child. Litigation to recover damages on that ground "would
indeed be strong evidence of parental rejection, which could only be
emotionally detrimental to the child"[227].
A man who develops a close relationship with a child falsely represented
as his cannot be said to suffer "damage" compensable at law[228].
The extent of deceit independently of statute: conclusion
207 A background point. The tort of deceit gives a remedy where
damage is caused by reason of the plaintiff having relied on fraudulent
misrepresentation. In Nocton v Lord Ashburton, Viscount Haldane
LC said[229]:
"Derry v Peek[230]simply illustrates the principle that honesty in the stricter sense is by our law a duty of universal obligation. This obligation exists independently of contract or of special obligation. If a man intervenes in the affairs of another he must do so honestly, whatever be the character of that intervention."
Viscount Haldane LC was not considering anything in the nature of
paternity fraud. But in that celebrated speech he was attempting to
survey authoritatively the relationship between fraud at law and fraud
in equity. It is true that in 1914 a husband could not sue a wife for
paternity fraud, because in general no action in tort lay between
spouses, and no evidence tending to bastardise the child of a marriage
was admissible. Nonetheless, Viscount Haldane LC's language admits of no
exceptions to or limitations on the general principle that honesty is a
duty of universal obligation. It was not his custom to speak
loosely. And language of equivalent breadth was used two centuries
earlier by Sir John Comyns LCB: "An action upon the case for a deceit
lies when a man does any deceit to the damage of another". Those words
were approvingly quoted by Lord Kenyon CJ in Pasley v Freeman[231].
208 Against that background, the points made by the wife do not negate
the application of the tort of deceit to statements by a wife to a
husband about the paternity of a child conceived and born within the
marriage.
209 Intrusion of commercial tort into complex non-commercial
relationships. It is commonly accepted that the general law,
including the tort of deceit, applies to such matters as the
procurement, including the fraudulent procurement, by husbands of the
consent of their wives to guarantees, the consent of their wives to
decisions affecting family companies or family trusts, and the consent
of their wives, or their wives' relatives, to engage in particular
proprietary dispositions or contractual steps. Despite the commercial or
proprietary character of these dealings, they can be closely related to
the events, emotions and assumptions of the matrimonial life being
shared by the spouses. The distinctions which the wife in this appeal
wishes to draw between fraud in relation to the paternity of children
conceived and born in marriage and other forms of fraud between husband
and wife (or between fraud as to the paternity of children born to
couples in a "continuing relationship", and other forms of fraud), are
too crude. The facts underlying actions in deceit arising out of
paternity fraud are distressing and embittering. But the same is true of
the facts underlying other actions based on deceit setting aside
guarantees, other contracts or proprietary dispositions. Matrimonial
discord can be as acute if it is caused by proprietary fraud as it is
when caused by paternity fraud. Trouble in the property aspects of
marriage can affect its emotional aspects, and vice versa. Both have an
impact on the relations between the two families whom the marriage has
joined. In marriage there remains even now, as there was in former
times, "far Read More .. stake than gratification of momentary infatuations"[232].
The relatives of marrying couples have not only an emotional concern,
but often to some extent a financial concern, for the parties and their
children, and sometimes they make financial arrangements on that basis.
Both commercial fraud and paternity fraud disrupt the financial and
emotional expectations so created.
210 Artificiality of, and difficulties in, applying tort of deceit. The law often develops doctrines which are useful tools of analysis in
standard instances, even though they are difficult to employ in other
instances. An illustration is the doctrine of offer and acceptance in
relation to contract formation. That works in many factual
circumstances. The fact that it does not work well, and can only be
applied with some artificiality, in other sets of circumstances, has not
been seen as a reason for its wholesale abandonment[233].
211 The wife contended that the husband could not succeed in this case
without eroding the requirement of reliance to nothing. That may be a
sound submission on the present facts, but to conclude that the tort of
deceit applies to paternity fraud does not entail any erosion of its
integers: it merely entails the result that plaintiffs may not easily
succeed. That is true of the tort of deceit in many other areas. In its
very nature it is not a tort which it is easy to establish in any
circumstances. However common fraud is, it is rarer than some other
forms of tortious misconduct; and the seriousness of a finding of fraud
has influenced courts to call for precise pleading and strict proof[234].
The application of a cause of action is not necessarily to be negated
merely on the ground that its application, and in particular its proof,
is difficult, or on the ground that the courts will not lightly hold
that it has been made out. It is for plaintiffs to make their cases. It
is they who must suffer the consequences of difficulties that arise as
they seek to shoulder that burden. That courts may experience
difficulties in applying a rule of law is not a reason for not accepting
its existence. And nor is the fact that plaintiffs frequently will not
succeed in a cause of action.
212 It may be that it is often not possible to prove that statements
made in domestic circumstances which are knowingly untrue were made with
an intention to affect legal relations or to be attended with legal
consequences. These are requirements for the enforceability of promises
as to future conduct or warranties of present fact under the law of
contract. They are not, however, in terms necessary conditions of the
tort of deceitfully making false representations of present fact. It is
true that some statements of fact made, for example, in jest, or on some
purely social occasions, are not capable of being the subject of actions
in deceit. But that is because they do not satisfy that integer of the
tort which requires that the defendant intend that the plaintiff should
act in reliance on the relevant representation. It follows that the
non-commercial context in which paternity fraud takes place is not of
itself a bar to recovery. If all the ingredients of the tort are made
out, actions will lie for paternity fraud.
213 Ill-directed nature of tort of deceit. The husband's case did
not depend on creating a duty of disclosure. He sued on an express
written representation of fact, not on any duty to break silence. There
are difficulties in the way the husband chose to put his case, but that
case did not depend on a contention that they be overcome by the
creation of a new duty of disclosure. The problems that might flow from
doing so may be put on one side.
214 Damage caused by introducing tort of deceit. The damage which
the wife contended could be caused by allowing actions for paternity
fraud is of two broad kinds. One is the destabilisation of marriage and
the division of families into partisans of either husband or wife. The
other is harm to the children of the marriage. It is hard to view either
kind of damage as being caused, as distinct from being accompanied, by
proceedings in deceit. As Stanley Burnton J has observed[235]:
"Actions for deceit between couples will in practice be commenced only when their relationship has broken down. An action in deceit will not cause the breakdown of the relationship: more likely, the breakdown in the relationship will be the consequence of the fraud."
At least from the time when a husband discovers that paternity fraud
has taken place, if not earlier, it is probable that the marriage either
is unhappy or is likely to become unhappy, and, as a direct consequence
of the discovery, the child is less likely to receive from at least one
spouse the love a natural parent usually bears a child[236].
In short, it is the knowingly false representation, and the conduct
which rendered the representation false, which cause the familial harm,
not the enforcement of a legal remedy through the action for deceit[237].
The same potentiality for harm would exist even if actions in deceit of
this kind were legislatively proscribed.
215 Further, although interspousal immunity was once justified on the
ground that litigation between spouses was "unseemly, distressing and
embittering", that justification has ceased to appeal to legislatures.
For courts to revive the proposition as a justification for not
recognising the tort of deceit in relation to paternity between spouses
is to substitute their view of public policy for that acted on by
legislatures.
216 Turning to the issue of damage to the children in particular, a
majority of this Court in Cattanach v Melchior[238] permitted recovery of damages for the upbringing of a child
notwithstanding the fact that recovery related to complex human
relationships operating in a domestic context. It did so in the face of
arguments that there was potentiality for an adverse impact on the child
if it ever discovered that it was not wanted at the moment of its
conception. In the view of the majority, it was necessary to make "hard
choices", and not simply repeat "broad statements"[239] involving "speculation as to possible psychological harm to children"[240] which were "unconvincing"[241] or trivial: "there are many harsher truths which children have to
confront in growing up"[242].
Arguments based on damage to children having failed in that case, it is
difficult to see how they can be accepted in this appeal.
217 Child support as damage. The wife argued that to permit a
father to recover damages from a mother by reason of her deceit about
the paternity of her child is unacceptably to treat the birth of a child
as a form of damage. That is an appeal to some of the minority reasoning
in Cattanach v Melchior[243].
The fundamental difficulty in the argument is, again, that the majority
rejected the minority view. The minority reasoning cannot in these
circumstances be followed.
218 Loss of opportunity to make a crucial choice. In some
respects the family context, and the complexities of the relationships
involved, point Read More ..wards the desirability of tortious liability
applying than against it. A husband who thinks he is a father does Read More ..
than provide material support for the child: typically he endeavours to
love it, to build an emotional bond with it, to ready it for life in the
years ahead in a hostile world in the way he judges best because it is his child. A husband may behave in the same way towards a child
of his wife's whom he does not believe he fathered, but he has a choice
whether or not to do so. If a lie affects the choice a husband makes to
support a child born to his wife financially and in every other way, he
has lost the chance to make an informed choice about his own role in
relation to the child. Provided the husband can prove damage and the
other elements of deceit, it is not startling that the law should attach
adverse financial consequences to the conduct of a person responsible
for a lie which can so radically affect the husband's life.
219 American cases: constitutional right of privacy. The American
authorities frequently cite Stephen K v Roni L[244].
In that case a man alleged that in reliance on the mother's
representation that she was taking contraceptive pills he engaged in
intercourse with her, resulting in the birth of a child. The action was
held not maintainable: the claim arose from conduct of so "highly
intimate" a nature and "so intensely private that the courts should not
be asked to nor attempt to resolve such claims"[245].
To allow it "would encourage unwarranted governmental intrusion into
matters affecting the individual's right to privacy"[246].
This reliance on constitutional doctrines not known to Australian law
casts a shadow over the applicability in Australia of the reasoning in
the American cases generally.
220 American cases: recovery by women for sexual deceit. The wife
in this appeal was evidently prepared to allow for the possibility of
some actions in deceit in relation to intimate sexual matters; certainly
the notice of contention did, since the restriction stated in it was
limited to "damages arising from the paternity of children". It was
acknowledged that there have been cases in which actions in deceit have
been approved. One authority approved an action in deceit by a woman who
alleged that her attorney, to whom she was not married, had rendered her
pregnant after intercourse in reliance on his knowingly false
representation that he was sterile, with the woman suffering an ectopic
pregnancy and being forced to undergo surgery to save her life. Another
approved an action in deceit by a woman who contracted a venereal
disease after having intercourse with a man in reliance on his
misrepresentation that he was free of venereal disease. These cases have
been distinguished on the basis that they both involved the plaintiff
suffering personal injury and that the litigation had no potential for
harming children[247];
the wife in this appeal placed reliance on the case drawing this
distinction. While a distinction between recovering for "physical"
injury and non-recovery for hurt feelings caused by betrayal is
intelligible, a distinction between "physical" injury and mental
disorder caused by deceit is much less sound[248].
Further, if in each case the parties were married with children, there
would, on the wife's general approach, be a risk of harm to the
children; would that risk in these circumstances debar the plaintiffs
from relief?
221 Anomalies and injustices. The wife's contention that the tort
of deceit does not extend to claims for damages by husbands against
wives arising from the paternity of children conceived and born during
the marriage stops short of considering whether other forms of paternity
fraud are actionable. The wife submitted that the Court should confine
itself to deciding the law for the particular category of circumstances
illustrated by this case. Often submissions of that kind are powerful.
However, the present controversy is an example of controversies which
are difficult to decide without considering related, though different,
factual circumstances.
222 What if a child is conceived, not during the marriage, but before
marriage, and the marriage takes place on the knowingly false
representation of the mother that the husband is the father? There is
American authority that the husband has a good cause of action in deceit[249].
There is no reason to doubt that that is so in Australian law too, and
the wife accepted this. Yet if the action lies, it lies in the face of
many of the difficulties said to prevent actions between spouses based
on fraudulent representations about the paternity of children conceived
and born during their marriage. There are complex human relationships
involved; proof depends on a contest of oath and oath; arguably the
interests of the child may be injured when it learns of the litigation.
What if a child is conceived before the marriage, and after the marriage
takes place or after it is terminated the wife commits paternity
fraud? The circumstances fall outside the wife's second proposition in
the notice of contention. It would be bizarre if the wife were liable in
those circumstances but not in the circumstances of this case. It is
hard to see why a wife should not be liable for post-marriage paternity
fraud: the complex human relationships are over; if children are to be
injured, they will already have been injured.
223 If a husband's female friend gives birth to a child and falsely
represents to the wife that the husband is not the father in such a way
that the ingredients of deceit are made out, why does an action not lie
for that tort by the wife against the female friend? If it does, similar
difficulties to those relied on by the wife in this case exist.
224 If an action by the wife lies against the female friend, why would
an action by the wife not lie against the husband if it were he who made
the fraudulent misrepresentation?
225 If an unmarried woman living with a man gives birth to a child and
falsely tells him he is the father, will an action lie? There is no
policy inhibition to be inferred from the now-abolished common law rule
against spouses giving evidence bastardising children or the
now-abolished common law rule of interspousal immunity. It is hard to
see why the action should not lie; again, if it does, it lies despite
the factors supposedly pointing against interspousal litigation for
paternity fraud. The wife contended that no action for paternity fraud
lay in any "continuing relationship"[250],
but did not deal with how that expression might be defined.
226 If an unmarried woman gives birth to a child and falsely tells a man
with whom she had a single casual sexual encounter that he is the
father, will an action lie?
227 Assume that a grandfather, on being told that his son and
daughter-in-law cannot pay for the education of their child, agrees to
pay for the education on the faith of a knowingly false representation
by either the son or the daughter-in-law that the son is the father.
Does an action in deceit lie?
228 If a stranger to the marriage says that the wife's children were not
fathered by her husband, can she sue him in defamation? If so, can the
stranger justify? If the husband says that the wife's children were not
fathered by him, can the wife sue him in defamation?
229 If there are legal principles preventing actions for paternity fraud
between spouses, they may apply to prevent actions for paternity fraud
between unmarried men and women, and indeed fraud of all kinds other
than paternity fraud between unmarried men and women even between
non-heterosexual couples.
230 To accept the wife's submissions in this case, but to limit the
refusal of the law to allow paternity fraud litigation to the narrow
area of litigation between husband and wife about the paternity of
children conceived and born during the marriage, would create
innumerable anomalies. On the other hand, to accept the wife's
submissions, but to extend them to many other kinds of paternity fraud,
and non-paternity fraud, would create innumerable injustices.
231 Conclusion. The tort of deceit may have had a limited range
of practical applications in the past, but it has long been stated in
general terms as, in the words of Viscount Haldane LC, a duty of
universal obligation. The common law rule that no spouse could give
evidence bastardising the child of a marriage remained until legislation
abolished it. But the common law rule was a prohibition on a particular
type of testimony: it did not alter the duties created by the
substantive law. Similarly, although no spouse could sue another spouse
until legislation abolished that incapacity, the incapacity was an
immunity from suit, not an immunity from duty. As Cardozo CJ said[251]:
"A trespass, negligent or willful, upon the person of a wife, does not
cease to be an unlawful act though the law exempts the husband from
liability for the damage. Others may not hide behind the skirts of his
immunity." The immunity of a negligent driver from being sued for damage
he caused his wife, a passenger, could not be relied on by the owner for
whom the husband was acting as servant or agent[252].
The immunity of a negligent employee from being sued for damage he
caused to his wife, a co-employee, could not be relied on by the
employer[253]. The
testimonial prohibition and the immunity from suit having been removed,
an action for the tort of deceit, like an action for any other tort, is
available to one spouse to the natural extent of the language in which
the tort has traditionally been expressed.
Inconsistency of deceit with legislative regime: the wife's
submissions
232 The wife then put various submissions on the assumption that, but
for the Family Law Act and the Child Support Act, an action of deceit for
paternity fraud could lie. She submitted that the availability of
actions for deceit for paternity fraud would so undermine those
statutory regimes that Parliament cannot have intended to permit the
survival of the tort. She submitted that it was not necessary to extend
the tort of deceit to paternity fraud because justice between the
parties was better achieved under those Acts, which were both fully
capable of dealing with false representations about paternity. She
submitted that because the tort of deceit "focuses on an isolated act or
incident within the context of the entirety of a marriage relationship
with all its complexities and rights and wrongs it is unlikely to do
justice between the parties in the way that the multi-factored approach
required by the [Family Law Act] can."
233 The wife drew attention to four aspects of the legislation those
relating to property orders, spousal maintenance orders, financial
agreements and child support.
234 Property orders. Section 79(1) of the Family Law Act gives the court power to make orders altering the
property interests of spouses. Section 79(4) requires various factors to be considered, including
any child support provided or to be provided under the Child Support
Act; the "contribution" of the parties; and matters listed in s 75(2). Among the matters listed in s 75(2) are matters relating to child support, and "any fact or
circumstance which, in the opinion of the court, the justice of the case
requires to be taken into account": s 75(2)(o). The wife submitted that the birth of a child whose
father was a man other than the husband could be a negative
"contribution" under s 79(4) or a "fact or circumstance" under s 75(2)(o) relevant to an adjustment of the property distribution in
favour of the husband. And if the true paternity was discovered after s 79 orders were made, they could be set aside or varied under s 79A(1)(a) if the court is satisfied that "there has been a
miscarriage of justice by reason of fraud, duress, suppression of
evidence (including failure to disclose relevant information), the
giving of false evidence or any other circumstance".
235 Spousal maintenance orders. Section 72(1) provides that a party to a marriage is liable to
maintain the other party, to the extent to which the first party is
reasonably able to do so, if, and only if, that other party is unable to
support himself or herself adequately for one of three reasons, of which
the third is "any other adequate reason", having regard to any relevant
matter referred to in s 75(2). Several of the matters referred to in s 75(2) relate to child support, and the terms of s 75(2)(o) have already been quoted. The wife submitted that if the
husband were not the father of his spouse's child that could be taken
into account under s 75(2). The wife also submitted that even if the actual paternity
of a child were not known until after a spousal maintenance order had
been made, the order could be modified (s 83(1)) by reason of a change
of circumstances (s 83(2)(a)) or by reason of the fact that "material
facts were withheld from the court that made the order or from a court
that varied the order or material evidence previously given before such
a court was false": s 83(2)(c).
236 Financial agreements. Section 90D provides that the parties to a former marriage may
determine questions of property and maintenance by making a "financial
agreement". Section 90K permits the court to set aside a financial agreement if
the court is satisfied of one of various matters. One is that "the
agreement was obtained by fraud (including non-disclosure of a material
matter)": s 90K(1)(a). Another is that there has been "a material change in
circumstances ... relating to the care, welfare and development of a
child of the marriage": s 90K(1)(d). Another is that "in respect of the making of a
financial agreement a party to the agreement engaged in conduct that
was, in all the circumstances, unconscionable": s 90K(1)(e). The wife submitted that this language was sufficiently
broad to permit a court to set aside a financial agreement made in
circumstances where the true paternity of a child had been known but not
disclosed.
237 Child support. The wife submitted that the Child Support Act
lays down a comprehensive scheme for the payment of child support by a
biological parent. It also provides for the cessation of payments by a
man who thought he was, but in fact was not, the father; and for the
recovery of payments already made by that man in a court of competent
jurisdiction (s 143).
238 General. The wife concluded by making the following two
submissions. First, depending on the size of the asset pool to be
divided between the spouses, allowing an action for deceit might produce
a radically different result from that achieved under the Family Law Act. Secondly, a husband dissatisfied with the outcome
under the Family Law Act might seek to do better by commencing an action in
deceit for paternity fraud, and re-litigating issues already litigated
under the Family Law Act. If successful, that could lead to a shifting of
resources away from the mother, who will have the care of children for
whom the husband will have no financial responsibility under the Child
Support Act. That would in turn be damaging to the interests of the
children.
Inconsistency of deceit with legislative regime? Conclusions
239 The present controversy is unconnected with any concrete dispute
about the operation of the Family Law Act or the Child Support Act. It is therefore not
desirable to decide whether the arguments advanced by the wife rest on
sound assumptions about the meaning of the legislation. The argument of
inconsistency is to be rejected on the following grounds.
240 Self-contradiction. There was an element of
self-contradiction in these submissions. Either the Family Law Act regime is capable of accommodating fully the
complaints of a husband who has been the victim of paternity fraud, or
it is not. If it is, it is difficult to see how it can be said that
allowing an action for deceit will produce a radically different result
from that which is achievable under the Family Law Act. If it is not, then the contention that the Family Law Act regime renders an action of deceit unnecessary is
baseless, and the contention that the statutory regime would be
"undermined" if a husband could sue in deceit would be met by the retort
that undermining would be a consequence to be accepted with equanimity,
provided that the legislation did not actually forbid the action. In
truth, the financial obligations which may arise between parties to a
marriage under the Family Law Act are narrower than those which may arise in
consequence of the tort of deceit in at least one respect: damages for
that tort may extend to a wider range of loss and damage.
241 Recovery of payments by non-father. That last point is
illustrated by the provision which the legislation makes for recovery of
payments made by a non-father. A husband who is not the biological or
adoptive father has no obligations under the Child Support Act; by
reason of s 143, he has only rights to be repaid whatever he ought not
to have paid. And s 66X of the Family Law Act permits recovery by a man (inter alia) who has
complied with an order under s 66P(1)(a)-(b) to pay money by way of child maintenance, or an
order under s 66P(1)(c) to make a transfer of property by way of child
maintenance of what has been paid or transferred, if a court has
determined that the man is not the parent of the child. To these
provisions may be added the provisions to which the wife's submissions
pointed, if they are sound, as permitting variations of property orders,
spousal maintenance orders and financial agreements made on the
erroneous assumption that the husband was the biological father of the
child. But these provisions deal only with adjustments in the light of
monies paid or promised to be paid, or property transferred or promised
to be transferred in order to allow for the maintenance of children
not with damages beyond that.
242 An imperfect analogy. One of the authorities relied on by the
wife in support of the proposition that an action in deceit for
paternity fraud is inconsistent with the legislative regime was a
decision of the Court of Appeals of New Mexico denying the claim of a de
facto husband to relief against the de facto wife for the costs of
rearing a child which, he alleged, would not have been born but for her
deceitful representation that she was using contraceptive pills. One
reason was that it would be "difficult to harmonize the legislative
concerns for the child, reflected in the immutable duty of parental
support"[254], with
the father's attempt to shift financial responsibility solely to the
mother. The reasoning related to that problem is distinguishable from
the present case. In each case the question is what impact legislation
compelling fathers to support their children has on a common law claim
by a de jure or de facto husband in deceit. But in the New Mexico case
the common law claim is by a father; in the present case the common law
claim is by a non-father. Legislation about the duty of fathers to
support their children does not of itself speak to the question of what
rights a non-father has.
243 The terms of the legislation and the tort relied on. The
wife's arguments relied on an analogy with a decision of the Supreme
Court of Canada, Frame v Smith[255].
That Court declined the invitation of a former husband to recognise a
new tort of interference with his legal right of access to his children,
and to extend the tort of conspiracy into a new field the conduct of
the former wife and her present husband in preventing the plaintiff from
exercising his legal rights to access. The Court took these approaches
largely because it saw the matter as being dealt with in a comprehensive
fashion by a particular statute, and held that so far as there were
relevant remedies at common law they had been abolished by other
legislation[256].
Further, the Court considered that the tort of conspiracy was so
anomalous as not to justify its extension to family law[257].
The conclusions to be drawn from this kind of analysis depend,
obviously, both on the legislation to be construed and the torts which
it is said to limit. Reasoning which may be sound in dealing with very
specific legislation about access to children, to which no existing tort
applied, is not necessarily sound in dealing with less specific
legislation that says nothing about a well-established general tort such
as deceit. Similarly, reasoning which declines to create or extend torts
which are relied on in order to enforce court orders for post-divorce
access made in reliance on legislation is not necessarily applicable to
the question whether, without the plaintiff having to rely on any
legislation, a well-established general tort such as deceit applies to
the pre-divorce conduct of the parties.
244 Second bite at the cherry? It is hard to criticise a husband,
who was unaware of the fact of paternity fraud until after Family Law Act proceedings in relation to maintenance and property
are over and who has been damaged, from wishing to claim compensation
for that damage when he does learn of the fraud. Those are not
circumstances pointing towards a statutory limitation on the tort of
deceit. That this is so is supported by the fact that so far as the Family Law Act permits orders to be reopened, on the wife's
arguments of construction, if they are sound, there are avenues in that
Act for use by such a husband. On the other hand, a husband who was
aware of the fact that he had a cause of action in deceit but who failed
to raise it in the divorce proceedings either in its own right or in one
of the ways which, according to the wife, the Family Law Act permits, would not deserve sympathy. Any proceeding
by a husband in that position attempting a second bite at the cherry
would be open to dismissal as an abuse of process[258].
The possibility of such an attempt is not an argument against husbands
who are not engaged in such an attempt being able to sue.
245 Compatibility of legislative regime with common law. While
courts must obviously give full effect to legislation which abolishes
common law rules, or which, to avoid doubt, provides that they do not
exist, and while some statutory schemes have the effect of abolishing
common law rules because of their nature and structure, normally
legislation, even complex legislation, will be treated as co-existing
with earlier rules of the general law. No-one contends that the tort of
deceit does not apply to trade or commerce on the ground that many
provisions of the
Trade Practices Act 1974 (Cth), and the Fair Trading Acts of
all the States and Territories, attract wide-ranging remedies, and to
some extent criminal sanctions, for conduct in trade or commerce which
is misleading or deceptive and for many different categories of
misrepresentations. No-one doubts that the general law duties of company
directors survive, and operate congruently with, companies legislation
like the
Corporations Act 2001 (Cth). No-one doubts that the general
law of tort in relation to driving cars, or running factories, or
operating mines, coexists with statutory enactments about those
activities. The same is true of the application of the general law of
tort to trade union officials, despite legislation about industrial
relations. In all these instances, and similar instances, statute law
can modify the general law, but in the absence of clear language doing
so, the two bodies of law operate in tandem. The wife pointed to no
particular language modifying the law relating to deceit in its
application to paternity fraud, nor to any particular language
suggesting that the legislation covered the field. Beneath the surface
of the wife's submissions there perhaps lay a suggestion that there was
inconsistency between a legislative regime permitting couples to divorce
without "fault" being proved, and the survival of a common law rule
permitting recovery of damages where the integers of deceit, one of
which requires proof of a type of fault, are established. There is no
inconsistency. The legislative regime produces one result without any
need to prove any "fault" or tort; the common law rule produces another,
not inconsistent, result for conduct which is tortious and which
requires, inter alia, both a type of "fault" and consequential damage.
246 Superiority of legislative remedial armoury. It may be true
that complex statutory regimes like the Family Law Act, giving the courts powers Read More ..tensive than they
have under the general law, may be Read More ..pable of achieving a just
outcome in disputes between the parties just as may be the case in
relation to trade practices legislation and companies legislation, for
example. But it does not follow from the fact that common law relief has
greater bluntness that it does not exist.
247 Adverse to interests of children? The wife argued that
paternity fraud actions would be adverse to the best interests of the
children on the ground that the greater the husband's recovery, the
fewer the assets the wife will have to bring the children up on. Among
the typical factual circumstances postulated by the wife's argument are
that the wife has borne a child not fathered by the husband, that that
child, being incapable of supporting itself, is dependent on its mother,
and that in consequence the mother is incapable of supporting herself
adequately. Either these factual circumstances can be taken fully into
account in assessing the maintenance orders to be made in favour of the
wife or they cannot. If they can, rather than paternity fraud actions
being financially injurious to the children, it is probably the case
that paternity fraud actions are likely to be deterred by the fact that
the greater the recovery for the husband, the greater may be his
liability to adverse orders under the Family Law Act. If they cannot, the position is no different from
that which applies in general litigation where the fact that success for
the plaintiff may damage the economic capacity of the defendant to
nurture the defendant's children is irrelevant.
248 Changes in the legislation. If the tort of deceit applied in
Victoria to paternity fraud by wives or husbands in the sense that
before 1968 there was a duty to abstain from that type of fraud, subject
to an immunity from action for breach of the duty, and the enactment of
a provision effecting the removal of that immunity in 1968 permitted the
tort to be sued on, it was a tort which predated the introduction in
1975 of an equivalent Commonwealth provision effecting the removal of
the immunity, namely s 119 of the Family Law Act. On that basis the inquiry would be into whether the Family Law Act, or the Child Support Act, abolished that tort, and
if so when. The position is complicated by the fact that many of the
provisions relied on by the wife wholly or partly post-dated 1975. Thus ss 72, 74, 75 and 79 of the Family Law Act were not in their present form in 1975. Section 79A was introduced in 1976 and has been much amended. Section 90D was not introduced until 2000. The Child Support Act was
not introduced until 1989. Other provisions of the Family Law Act which were discussed in argument were also introduced well after
1975 s 66P (introduced in 1987, repealed and substituted in 1995 and
amended in 1999), s 66X (2005), s 69P (1995), s 69R (1995), ss 69U-69V (1995), s 69VA (2000), and ss 69W-69X (1995). Some of those provisions were introduced after a time when proof
of paternity became easier. The fact that paternity is now easier to
prove and the fact that legislation has been introduced to reflect this
(all of it post-dating the proffering of the forms said to constitute
the wife's torts in this case, in 1990 and 1992) does not establish a
general legislative regime or a specific legislative intention
inconsistent with the application of the tort of deceit to paternity
fraud. But, quite apart from that point, the wife's argument did not
devote attention to the question whether the application of the tort of
deceit to paternity fraud was to be denied because of the condition of
the legislation in 1975, or at some later date.
249 Absence of precise provisions. However, the fundamental
difficulty is a difficulty raised by the statutory language. In ss 119 and 120 Parliament showed that it was capable of dealing clearly and
decisively with problems arising out of the interrelationship of tort
law and family dealings. Had it been desired to abolish actions for
paternity fraud, or to make it plain that they must not arise, it would
have been easy to do so. In these circumstances it is difficult to
extract a legislative intention to proscribe actions for paternity fraud
by reason merely of the general structure of the Family Law Act and the Child Support Act.
Conclusion
250 The husband's attack on the Court of Appeal's conclusion that he did
not rely on the fraudulent representation found by the trial judge
fails, and for that reason the appeal should be dismissed with costs.
251 The arguments advanced in support of the wife's notice of contention
that:
(a) the tort of deceit does not extend to claims for damages arising from the paternity of children conceived and born during the course of a marriage;
(b) even if it did:
(i) s 119 of the Family Law Act does not comprehend those claims;
(ii) s 120 prevents them; and
(c) those claims so undermine the Family Law Act and the Child Support Act that parliament cannot have intended to allow them,
must be rejected.
Orders
252 The appeal should be dismissed with costs.
[1] [2005] Aust Torts Reports 81-783; (2005) 33 Fam LR 193.
[2]Kerr on Fraud and Mistake, 7th ed (1952) at 50-51.
[3] [1932] AC 562 at 580.
[4] [1932] AC 562 at 580 per Lord Atkin.
[5] [1914] AC 932 at 950-955.
[6] [1914] AC 932 at 954.
[7] (1789) 3 TR 51 [100 ER 450].
[8] (1837) 2 M & W 519 at 531 [150 ER 863 at 868].
[9] At 333-337.
[10]Richardson v Silvester (1873) LR 9 QB 34.
[11] [1897] 2 QB 57.
[12] [1919] 2 KB 316.
[13] See Lord Hoffmann's discussion of the cases in Wainwright v Home Office [2004] 2 AC 406 at 425.
[14] [1964] AC 465.
[15] [1971] AC 793.
[16] [1987] 2 SCR 99 at 110.
[17] eg Births, Deaths and Marriages Registration Act 1996 (Vic) s 31.
[18] (1976) 134 CLR 495 at 548-549.
[19]Blackstone's Commentaries, 15th ed (1809), vol 1 at 447.
[20]Chant v Read [1939] 2 KB 346; Corcoran v Corcoran [1974] VR 164.
[21] [2001] 1 FLR 1041; see also Bagshaw, "Deceit Within Couples" (2001) 117 Law Quarterly Review 571.
[22] (1941) 2 All ER 205 at 211.
[23] (1890) 15 App Cas 210 at 221.
[24] 17th ed (2003) at 1488.
[25] [1930] AC 28 at 67-68.
[26] [1970] 1 QB 548.
[27] (1873) LR 9 QB 34.
[28]Rose and Frank Co v J R Crompton and Bros Ltd [1923] 2 KB 261 at 289 per Scrutton LJ, quoting Pollock, Principles of Contract, 9th ed (1921) at 3.
[29]Donoghue v Stevenson [1932] AC 562 at 619 per Lord Macmillan.
[30]Magill v Magill [2005] Aust Torts Reports 81-783. Eames JA delivered the leading judgment of the Court of Appeal, with Ormiston and Callaway JJA agreeing on the determinative issues.
[31] (2002) 211 CLR 317.
[33] (2006) 80 ALJR 791; 226 ALR 391.
[34]Phillips v Barnet (1876) 1 QBD 436 at 438, 440, 441.
[35] (1930) 43 CLR 493 at 501.
[36] This provides for the relationship between children and their parents to be determined irrespective of any marriage between them, and for all other relationships to be determined accordingly. See also Status of Children Act 1974 (Tas), s 3; Family Relationships Act 1975 (SA), s 6; Children (Equality of Status) Act 1976 (NSW), s 6; Status of Children Act 1978 (Q), s 3; Status of Children Act 1978 (NT), s 4; Parentage Act 2004 (ACT), s 38.
[37] (1777) 2 Cowp 591 [98 ER 1257].
[38] (1777) 2 Cowp 591 at 594 [98 ER 1257 at 1258].
[39] Heydon, Cross on Evidence, 7th Aust ed (2004) at 25190.
[40] (1789) 3 TR 51 [100 ER 450].
[41] See the judgment of Brennan J in R v L (1991) 174 CLR 379 at 391-393.
[42]Garcia v National Australia Bank Ltd (1998) 194 CLR 395 at 404 [21]-[22] per Gaudron, McHugh, Gummow and Hayne JJ, 432-433 [76] per Kirby J. See also Barclays Bank Plc v O'Brien [1994] 1 AC 180 at 198 and Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27 at 38, 43, 50, 54.
[43]The Law of Torts, 9th ed (1998) at 694-695. See also Prosser and Keeton on the Law of Torts, 5th ed (1984) at 727-729; Balkin and Davis, Law of Torts, 3rd ed (2004) at 23.14; Ames, "The History of Assumpsit", (1888) 2 Harvard Law Review 1 at 8-9.
[44] See Winfield, History of Conspiracy (1921) at Ch 2.
[45] Holdsworth, History of English Law, 5th ed (1942), vol 3 at 428ff.
[46] (1789) 3 TR 51 [100 ER 450].
[47]Stuart v Wilkins (1778) 1 Doug 18 [99 ER 15].
[48] Fleming, The Law of Torts, 9th ed (1998) at 695. See also Winfield and Jolowicz on Tort, 16th ed (2002) at 368.
[49]Langridge v Levy (1837) 2 M & W 519 [150 ER 863], affirmed 4 M & W 337 [150 ER 1459]; Burrows v Rhodes [1899] 1 QB 816; Nicholls v Taylor [1939] VLR 119.
[50] 19th ed (2006) at 1081 [18-01] (footnote omitted).
[51] (1789) 3 TR 51 [100 ER 450].
[52]Magill v Magill, unreported, County Court of Victoria, 22 November 2002.
[53] [2005] Aust Torts Reports 81-783 at 67,249ff.
[54] Section 66X of the Family Law Act 1975 (Cth) provides for recovery of amounts paid under maintenance orders in circumstances such as the husband's here and applies retrospectively. This amendment commenced operation on 3 August 2005 and followed changes to parentage testing procedures. The child support arrangements for the three Magill children fell within the Child Support Act (ss 20 and 21) which contains a power for the Registrar to amend assessments (s 75) and a power for a court to make "such orders as it considers just and equitable" to effect the rights of the parties and the child (s 143(3)), and to recover payments of child support in respect of which there was no liability to pay (s 143(1)).
[55] [2005] Aust Torts Reports 81-783 at 67,253 [32].
[56] [2005] Aust Torts Reports 81-783 at 67,247 [1].
[57] [2005] Aust Torts Reports 81-783 at 67,248 [3].
[58] See, for example, [2005] Aust Torts Reports 81-783 at 67,257 [50] per Eames JA.
[59] [2005] Aust Torts Reports 81-783 at 67,248 [6].
[60] [2005] Aust Torts Reports 81-783 at 67,255 [39].
[61] [2005] Aust Torts Reports 81-783 at 67,262 [82]-[83].
[62] [2005] Aust Torts Reports 81-783 at 67,264 [100].
[63] [2005] Aust Torts Reports 81-783 at 67,264 [100].
[64] For example, where one spouse has induced another by fraud to enter a contract or dispose of property.
[65]Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 at 62-63 [24]-[25]; cf at 89-90 [105].
[66] [2001] 1 FLR 1041.
[67]Clerk & Lindsell On Torts, 19th ed (2006) at 1081 [18-01].
[68] See, for example, Burrows v Rhodes [1899] 1 QB 816.
[69]Wilkinson v Downton [1897] 2 QB 57; Janvier v Sweeney [1919] 2 KB 316.
[70]Balfour v Balfour [1919] 2 KB 571; Cohen v Cohen (1929) 42 CLR 91; Jones v Padavatton [1969] 1 WLR 328; [1969] 2 All ER 616.
[71] Child Support Act, s 143(3).
[72] See Married Persons (Equality of Status) Act 1996 (NSW); Law Reform (Husband and Wife) Act 1968 (Q); Statutes Amendment (Law of Property and Wrongs) Act 1972 (SA); Married Women's Property Act 1965 (Tas); Marriage (Liability in Tort) Act 1968 (Vic); Law Reform (Miscellaneous Provisions) Act 1941 (WA); Married Persons (Torts) Ordinance (ACT); Married Persons (Torts) Ordinance (NT). Finally, see s 119 of the Family Law Act.
[73]Law Reform (Husband and Wife) Act 1962 (UK).
[74]Matrimonial Causes Act 1959 (Cth), s 44.
[75] See the Second Reading Speech for the Family Law Bill 1974: Australia, Senate, Parliamentary Debates (Hansard) 3 April 1974 at 641. See also the Second Reading Speech for the Family Law Bill 1973: Australia, Senate, Parliamentary Debates (Hansard) 13 December 1973 at 2827-2833.
[76]Matrimonial Causes Act 1959 (Cth), s 28(a). The Divorce and Matrimonial Causes Act 1857 (UK) which first permitted the dissolution of marriage on the basis of fault, contained the grounds of adultery, cruelty or desertion without cause (s 16).
[77]Matrimonial Causes Act 1959 (Cth), s 21(1)(d).
[78] Family Law Act, s 48(1).
[79] See Family Law Act, s 51, read in conjunction with the Marriage Act 1961 (Cth), as amended, s 23.
[80] This provision derives from Art 23 of the International Covenant on Civil and Political Rights. See also Australia, Senate, Parliamentary Debates (Hansard), 3 April 1974 at 640-641.
[81] Fleming, The Law of Torts, 9th ed (1998) at 718.
[82] Articles 2, 3 and 7-9.
[83] Family Law Act, Pt VII, Div 12, subdiv D.
[84] (1789) 3 TR 51 [100 ER 450].
[85] For a brief account see Re F; Ex parte F (1986) 161 CLR 376 at 393-394 per Mason and Deane JJ.
[86] [1924] AC 687 at 697-700 per the Earl of Birkenhead, 706-716 per Viscount Finlay.
[87]S v S [1972] AC 24 at 41 per Lord Reid.
[88]Matrimonial Causes Act 1959 (Cth), s 98.
[89] This development was first debated in 1939: see United Kingdom, House of Lords, Parliamentary Debates (Hansard) 8 February 1939 at 686-712; and also Harley, Medico-Legal Blood Group Determination (1944). The topic re-emerged in United Kingdom, Law Commission, Blood Tests and the Proof of Paternity in Civil Proceedings, Report No 16, (1968). Similar work was undertaken in Australia: see for example Law Reform Commission of Western Australia, Final Report on Affiliation Proceedings, Report No 13, (1970).
[90]G v H (1994) 181 CLR 387 at 391 per Brennan and McHugh JJ.
[91] These developments have been considered in the Australian Law Reform Commission, Essentially Yours: The Protection of Human Genetic Information in Australia, Report No 96, (2003) at Ch 35.
[92] Section 143(1) relevantly provides:
"Where:
(a) an amount of child support is paid by a person to another person; and
(b) the person is not liable, or subsequently becomes not liable, to pay the amount to the other person;
this amount may be recovered in a court having jurisdiction under this Act."
See also s 107 which provides that a court may make a declaration to the effect that an applicant is not entitled to an assessment of child support.
[93] Section 143(3). These provisions distinguish the situation here from that in P v B (Paternity: Damages for Deceit) [2001] 1 FLR 1041.
[94] Section 66X(1) provides that repayment can be ordered if:
"(a) ... a court has at any time purported to make an order ... requiring a person ... to pay an amount, or to transfer or settle property, by way of maintenance for a child; and
(b) the maintenance provider has:
(i) paid another person an amount or amounts; or
(ii) transferred or settled property;
in compliance, or partial compliance, with the purported order; and
(c) a court has determined that the maintenance provider is not a parent or step-parent of the child."
[95] [2005] Aust Torts Reports 81-783 at 67,248 [7].
[96] [2005] Aust Torts Reports 81-783 at 67,256 [42].
[97] (1884) 9 App Cas 187 at 190.
[98] (1889) 14 App Cas 337 at 373.
[99] (1889) 14 App Cas 337 at 374.
[100]Edgington v Fitzmaurice (1885) 29 Ch D 459 at 483 per Bowen LJ.
[101]Derry v Peek (1889) 14 App Cas 337 at 374 per Lord Herschell.
[102]Bradford Third Equitable Benefit Building Society v Borders [1941] 2 All ER 205 at 211 per Viscount Maugham.
[103]Redgrave v Hurd (1881) 20 Ch D 1 at 21 per Jessel MR; Edgington v Fitzmaurice (1885) 29 Ch D 459 at 483 per Bowen LJ; Arnison v Smith (1889) 41 Ch D 348 at 369 per Lord Halsbury LC.
[104]Pasley v Freeman (1789) 3 TR 51 at 56 [100 ER 450 at 453] per Buller J, 64 [457] per Lord Kenyon CJ; Smith v Chadwick (1884) 9 App Cas 187 at 196 per Lord Blackburn; Bradford Third Equitable Benefit Building Society v Borders [1941] 2 All ER 205 at 211 per Viscount Maugham. That "damage" is the gist of the action reflects the development of deceit as an action on the case.
[105] See for example, the decision in Sibley v Grosvenor (1916) 21 CLR 469, involving related but independent actions in contract and deceit.
[106] The authorities for that proposition were collected by Gibbs CJ in Gould v Vaggelas (1985) 157 CLR 215 at 220. See further HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640 at 656-657 [35] per Gleeson CJ, McHugh, Gummow, Kirby and Heydon JJ.
[107] (1983) 157 CLR 215.
[108] See Fair Trading Act 1987 (NSW), ss 42 and 44; Fair Trading Act 1989 (Q), ss 38 and 40; Fair Trading Act 1987 (SA), ss 56 and 58; Fair Trading Act 1990 (Tas), ss 14 and 16; Fair Trading Act 1999 (Vic), ss 9 and 12; Fair Trading Act 1987 (WA), ss 10 and 12; Fair Trading Act 1992 (ACT), ss 12 and 14; Consumer Affairs and Fair Trading Act (NT), ss 42 and 44.
[109] Trade Practices Act, s 52.
[110] Trade Practices Act, s 53.
[111]Clerk & Lindsell On Torts, 19th ed (2006) at 1081 [18-01].
[112] [1897] 2 QB 57.
[113] (1789) 3 TR 51 [100 ER 450].
[114] [1897] 2 QB 57 at 58-59.
[115] [1919] 2 KB 316.
[116]Tame v New South Wales (2002) 211 CLR 317 at 376 [179] per Gummow and Kirby JJ.
[117] [1949] St R Qd 74 at 79.
[118] [1897] 2 QB 57.
[119] [1949] St R Qd 74 at 79-80.
[120] [2001] 1 FLR 1041.
[121] [2001] 1 FLR 1041 at 1047 [28].
[122] [2001] 1 FLR 1041 at 1048 [33].
[123]Prosser and Keeton on the Law of Torts, 5th ed (1984) at 60.
[124] See Doe v Doe 712 A 2d 132 (1998). See also Richard P v Gerald B 249 Cal Rptr 246 (1988); Pickering v Pickering 434 NW 2d 758 (1988); Nagy v Nagy 258 Cal Rptr 787 (1989).
[125] [1897] 2 QB 57.
[126] [1919] 2 KB 316.
[127] See Tame v New South Wales (2002) 211 CLR 317 at 374-375 [171]-[175] per Gummow and Kirby JJ, 402-403 [251] per Hayne J. See also at 338-339 [44] per Gaudron J.
[128] Berger, "Lies Between Mommy and Daddy: The case for recognizing spousal emotional distress claims based on domestic deceit that interferes with parent-child relationships", (2000) 33 Loyola of Los Angeles Law Review 449 at 459ff.
[129]Restatement of the Law (Second), Torts 2d, published in 1965, of which Professor Prosser was Reporter, describes in 46(1) intentional infliction of emotional distress as follows:
"One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm." (emphasis added)
[130] See, for example, Day v Heller 653 NW 2d 475 (2002); Wallis v Smith 22 P 3d 682 (2001); Nagy v Nagy 258 Cal Rptr 787 (1989); Richard P v Gerald B 249 Cal Rptr 246 (1988); Pickering v Pickering 434 NW 2d 758 (1988); Perry v Atkinson 240 Cal Rptr 618 (1987); Douglas R v Suzanne M 127 Misc 2d 745 (1985); Stephen K v Roni L 164 Cal Rptr 618 (1980). Such cases have been distinguished where paternity or parental responsibilities to children are not in issue: Kathleen K v Robert B 198 Cal Rptr 273 (1984); Barbara A v John G 193 Cal Rptr 422 (1983).
[131] 164 Cal Rptr 618 at 619 (1980). See also Douglas R v Suzanne M 127 Misc 2d 745 (1985).
[132] 164 Cal Rptr 618 at 620 (1980).
[133]Wallis v Smith 22 P 3d 682 at 688 (2001) per Alarid J.
[134]Fleming v Fleming (2001)19 RFL (5th) 274; D (DR) v G (SE) (2001) 14 RFL (5th) 279; S (F) v H (C) (1994) 120 DLR (4th) 432, affirmed (1994) 133 DLR (4th) 767.
[135]Frame v Smith [1987] 2 SCR 99 at 110 per La Forest J; cf Thompson v Thompson,unreported, Alberta Court of Queen's Bench, 15 September 2003.
[136]Doe v Doe 712 A 2d 132 (1998); GAW v DMW 596 NW 2d 284 (1999).
[137]Wallis v Smith 22 P 3d 682 at 688 (2001) per Alarid J.
[138] [2005] Aust Torts Reports 81-783 at 67,248 [6] per Callaway JA, 67,261 [75] and 67,265 [106] per Eames JA, with whom Ormiston JA agreed.
[139] Kerr, On the Law of Fraud and Mistake, 7th ed, (1952) at 47; Cartwright, Misrepresentation, (2002) at 337-339.
[140]Kathleen K v Robert B 198 Cal Rptr 273 (1984). See also Beaulne v Ricketts (1979) 96 DLR (3d) 550 and Barbara A v John G 193 Cal Rptr 422 (1983).
[141]Marriage Act 1961 (Cth), as amended, s 23.
[142] In Ennis v Butterly [1996] 1 IR 426 an action in deceit between de facto spouses in these circumstances was allowed to proceed to trial; see also Smythe v Reardon [1949] St R Qd 74.
[143] See Wallis v Smith 22 P 3d 682 at 688 (2001) per Alarid J.
[144]Derry v Peek (1889) 14 App Cas 337 at 374 per Lord Herschell.
[145] See, for example, Tackey v McBain [1912] AC 186.
[146]Smith v Chadwick (1884) 9 App Cas 187 at 190 per Lord Selborne.
[147]Edgington v Fitzmaurice (1885) 29 Ch D 459 at 483 per Bowen LJ.
[148]Cohen v Cohen (1929) 42 CLR 91 at 96 per Dixon J.
[149]Garcia v National Australia Bank Ltd (1998) 194 CLR 395 at 404 [22] per Gaudron, McHugh, Gummow and Hayne JJ, 432 [76] per Kirby J.
[150] cf Doe v Doe 712 A 2d 132 (1998); GAW v DMW 596 NW 2d 284 (1999).
[151] Child Support Act, s 143(1).
[153]Cohen v Cohen (1929) 42 CLR 91.
[154] (1889) 14 App Cas 337.
[155] (1889) 14 App Cas 337 at 374.
[156] (1789) 3 TR 51 [100 ER 450].
[157] Fleming, The Law of Torts, 9th ed (1998) at 695.
[158] cf Banque Commerciale SA en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 285; Middleton v O'Neill (1943) 43 SR (NSW) 178 at 184; Wallingford v Mutual Society (1880) 5 App Cas 685 at 701.
[159] cf Spencer Bower, Turner and Handley, Actionable Misrepresentation, 4th ed (2000) at 69-70 [117]; O'Doherty v Birrell (2001) 3 VR 147 at 169 [54]-[55].
[160]Magill v Magill [2005] Aust Torts Reports 81-783 at 67,247 [2]. It is certainly an entirely unsatisfactory vehicle for deciding what heads of damage may be recovered, and nothing will be said about this subject, to which, appropriately, very little attention was directed in argument.
[161]Magill v Magill [2005] Aust Torts Reports 81-783 at 67,247-67,248 [1]-[2] and 67,262-67,263 [83]-[85]. There were concurrent findings on this point.
[162]Magill v Magill [2005] Aust Torts Reports 81,783 at 67,262 [82] per Eames JA (Ormiston JA concurring).
[163]Magill v Magill [2005] Aust Torts Reports 81,783 at 67,262 [82] per Eames JA (Ormiston JA concurring).
[164]Edgington v Fitzmaurice (1885) 29 Ch D 459 at 483 per Bowen LJ.
[165]Sibley v Grosvenor (1916) 21 CLR 469 at 473 per Griffith CJ.
[166] Reliance was placed on Redgrave v Hurd (1881) 20 Ch D 1 at 21 per Sir George Jessel MR, 24 per Lush LJ; Smith v Chadwick (1882) 20 Ch D 27 at 44 per Sir George Jessel MR; Allan v Gotch (1883) 9 VLR (L) 371 at 376-377; Power v Kenny [1960] WAR 57 at 64 per Wolff CJ.
[167] (1985) 157 CLR 215 at 238 per Wilson J.
[168]Gould v Vaggelas (1985) 157 CLR 215 at 237, 238-239 per Wilson J, 250-251 per Brennan J.
[169] They are set out by Gleeson CJ at [25].
[170] See [188]-[231].
[171] That challenge was based on the proposition that if s 119 were construed in the manner urged by the wife, it would not be supported by s 51(xxi) and (xxii) of the Constitution. Section 51 provides that the Commonwealth Parliament may legislate with respect to "marriage" (xxi) and "divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants" (xxii).
[172]Weedon v Timbrell (1793) 5 TR 357 at 360 per Lord Kenyon CJ [101 ER 199 at 201].
[173]Wright v Cedzich (1930) 43 CLR 493 at 498 per Knox CJ and Gavan Duffy J.
[174]Wright v Cedzich (1930) 43 CLR 493. In England this action was extended to permit wives to sue as well: Gray v Gee (1923) 39 TLR 429; Newton v Hardy (1933) 49 TLR 522.
[175]Butterworth v Butterworth [1920] P 126 at 142.
[176]Pritchard v Pritchard [1967] P 195 at 212 per Diplock LJ.
[177] 25 Vict No 125.
[178] Sections 98 and 99 were repealed by s 13 of the Registration of Births Deaths and Marriages (Amendment) Act 1962 (Vic). They must have already ceased to have force by reason of s 109 of the Constitution on the coming into force of s 44 of the Matrimonial Causes Act 1959 (Cth) on 1 February 1961: see s 2 and Commonwealth of Australia Gazette, No 81, 1 December 1960 at 4245.
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Act
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Recovery of damages for adultery
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Abolition of action for criminal conversation
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The 1857 Act
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Section 33
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Section 59
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The Victorian Act of 1861
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Section 20
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Section 40
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Marriage and Matrimonial Causes Statute 1874
(Vic) (28 Vict No 268)
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Section 76
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Section 75
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Marriage Act 1890 (Vic)
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Section 93
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Section 92
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Marriage Act 1915 (Vic)
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Section 147
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Section 146
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Marriage Act 1928 (Vic)
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Section 101
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Section 100
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Marriage Act 1958 (Vic)
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Section 99
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Section 98
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[180]Yule v Junek (1978) 139 CLR 1 at 11 per Mason J.
[181]Forsyth v Forsyth (1970) 16 FLR 248 at 264 per Carmichael J; Woodman v Woodman [1972] 2 NSWLR 451 at 460 per Jenkyn J.
[182]Moore v Moore [1976] 1 NSWLR 635 at 637 per Hutley JA, Moffitt P and Reynolds JA concurring.
[183] In Locksley Hall, Tennyson described the mentality thus:
"He will hold thee, when his passion shall have spent its novel force,
Something better than his dog, a little dearer than his horse."
[184] See CSR Ltd v Eddy (2005) 80 ALJR 59 at 73 [44] per Gleeson CJ, Gummow and Heydon JJ; 222 ALR 1 at 15-16.
[185]Yule v Junek (1978) 139 CLR 1 at 17 per Jacobs J.
[186] (1789) 3 TR 51 [100 ER 450].
[187] (1789) 3 TR 51 at 63 [100 ER 450 at 456].
[188]Historical Foundations of the Common Law, 2nd ed (1981) at 366 (footnote omitted).
[189]Historical Foundations of the Common Law, 2nd ed (1981) at 363-364 (including author's footnotes).
[190] Fitzherbert, Natura Brevium, f 95D; Baxter v Woodyard and Orbet (1605) Moore KB 776 [72 ER 899]; Anon (1633), Rolle's Abridgement, vol 1, at 100, no 9.
[191]Thomson v Gardner (1597) Moore KB 538 [72 ER 743]. Cf Baily v Merrell (1615) 3 Bulstrode 94 [81 ER 81] (harm to horses resulting from misstatement of load; opinion unfavourable to action).
[192]Gottliffe v Edelston [1930] 2 KB 378 at 385-387 per McCardie J.
[193] 45 & 46 Vict c 75.
[194]Married Women's Property Act 1884 (Vic), s 15.
[195]Married Women's Property Act 1890, s 15; Married Women's Property Act 1915, s 15; Married Women's Property Act 1928, s 15; Marriage (Property) Act 1956, s 6; Marriage Act 1958, s 160.
[196]Married Women's Property Act 1893 (NSW), s 15; Married Women's Property Act 1890 (Q), s 15; Married Women's Property Act 1883-4 (SA), s 12; Married Women's Property Act 1883 (Tas), s 10; Married Women's Property Act 1892 (WA), s 12.
[197] Winfield, A Text-Book of the Law of Tort, 5th ed (1950) at 100.
[198]Gottliffe v Edelston [1930] 2 KB 378 at 392 per McCardie J.
[199] Great Britain, Law Reform Committee, Ninth Report, Liability in Tort between Husband and Wife, (1961), Cmnd 1268, par 9.
[200] Great Britain, Law Reform Committee, Ninth Report, Liability in Tort between Husband and Wife, (1961), Cmnd 1268, pars 11 and 13.
[201]Married Women's Property Act 1965 (Tas), s 4, inserted s 7A into the Married Women's Property Act 1935 (Tas) (still in force); Law Reform (Husband and Wife) Act 1968 (Q) (now replaced by Law Reform Act 1995 (Q), s 18, giving rights of action without any qualification about stay); Statutes Amendment (Law of Property and Wrongs) Act 1972 (SA), inserting a new s 32 into the Wrongs Act 1936 (SA) (still in force as Civil Liability Act 1936 (SA), s 64).
[202] The Marriage (Liability in Tort) Act 1968 (Vic) substituted a new s 160(1) in the Marriage Act 1958 (Vic).
[203] Married Persons (Torts) Ordinance 1968.
[204] Married Persons (Torts) Ordinance 1969.
[205]Law Reform (Married Persons) Act 1964 (NSW), substituting s 16 and inserting ss 16A and 16B into the Married Women's Property Act 1901 (NSW).
[206] Married Persons (Equality of Status) Act 1996 (NSW), ss 4 and 5.
[207] Acts Amendment (Equality of Status) Act 2003 (WA) inserted ss 2 and 3(2) into the Law Reform Miscellaneous Provisions Act 1941 (WA).
[208] See also Evidence Act 1898, s 14D (NSW) (introduced by the Evidence (Amendment) Act 1954 (NSW), s 12(c)); Evidence Act 1977 (Q), s 12; Evidence Act 1929 (SA), s 34H; Evidence Act 1910 (Tas), s 95A (introduced by the Evidence Act 1943 (Tas)); Evidence Act 1906 (WA), s 19; Evidence Act 1971 (ACT), s 55; Evidence Act (NT), s 8. The Evidence Act 1995 (Cth), and its equivalents in New South Wales and Tasmania, have the effect of preserving the abolition by s 56(1), notwithstanding the repeals of the former legislation in those States and the Australian Capital Territory.
[209] The rule was stated in Goodright v Moss (1777) 2 Cowp 591 [98 ER 1257]; Russell v Russell [1924] AC 687.
[210] The 1959 Act, s 98, had adopted an intermediate position: in proceedings under that Act the parties to a marriage were competent but not compellable to give evidence showing that a child born to the wife during the marriage was illegitimate.
[211]In the Marriage of PG & BJ Marsh (1993) 17 Fam LR 289; In the Marriage of Kennon (1997) 139 FLR 118.
[212]Beyers v Green [1936] 1 All ER 613 (jury verdict); Graham v Saville [1945] 2 DLR 489; Beaulne v Ricketts (1979) 96 DLR (3d) 550.
[213]Garnaut v Rowse (1941) 43 WALR 29 (no pregnancy).
[214]Smythe v Reardon [1949] St R Qd 74 (no pregnancy). In fact the plaintiff did not entirely fail. Stanley J did not deny the availability of deceit, but he declined to broaden the damages recoverable by analogy to those recoverable in assault, and he found that no general damages were recoverable (because there was no evidence of illness, pain and suffering, and damage suffered by reason of the plaintiff's having adopted a child was too remote). He gave judgment for the plaintiff for 76.10s damages for monies lent to the defendant or paid on a guarantee of his debt. It is not clear whether the 76.10s was recovered in deceit or otherwise.
[215] The parties referred to Wilkinson v Downton [1897] 2 QB 57 (defendant practical joker told a wife that her husband had broken both legs in an accident); Janvier v Sweeney [1919] 2 KB 316 (private detective in 1917 accused a French woman whose fianc was German of having "been corresponding with a German spy"). See also Dulieu v White & Sons [1901] 2 KB 669 at 682-683 per PhilliRead More ..
[216] In Wilkinson v Downton [1897] 2 QB 57 itself, at 58-59 Wright J preferred to base the outcome not on deceit but on the fact that the defendant had infringed the plaintiff's legal right to personal safety by wilfully doing an act calculated to cause physical harm to the plaintiff. See Northern Territory v Mengel (1995) 185 CLR 307 at 347 per Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ and Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 255 [123] per Gummow and Hayne JJ.
[217]Tame v New South Wales (2002) 211 CLR 317 at 376 [179] per Gummow and Kirby JJ.
[218]Koelle v Zwiren 672 NE 2d 868 (Ill App, 1 Dist, 1996) (paternity fraud by mother in relation to two casual acts of intercourse with father); Doe v Doe 712 A 2d 132 (Md Ct Spec App, 1998); GAW v DMW 596 NW 2d 284 (CA Minn, 1999).
[219]Thompson v Thompson, unreported, Alberta Court of Queen's Bench, 15 September 2003.
[220]P v B [2001] 1 FLR 1041.
[221]Balfour v Balfour [1919] 2 KB 571; Cohen v Cohen (1929) 42 CLR 91; Jones v Padavatton [1969] 1 WLR 328; [1969] 2 All ER 616.
[222]Richard P v Gerald B 202 Cal App 3d 1089 at 1093-1094; 249 Cal Rptr 246 at 249 (Cal App 1 Dist, 1988).
[223] 127 Misc 2d 745 at 747; 487 NYS 2d 244 at 245-246 (SCNY, 1985).
[224]Douglas R v Suzanne M 127 Misc 2d 745 at 747; 487 NYS 2d 244 at 245 (SCNY, 1985).
[225]Richard P v Gerald B 202 Cal App 3d 1089 at 1093-1094; 249 Cal Rptr 246 at 249 (Cal App 1 Dist, 1988); Pickering v Pickering 434 NW 2d 758 at 761-762 (SCSD, 1989).
[226]Douglas R v Suzanne M 127 Misc 2d 745 at 747; 487 NYS 2d 244 at 246 (SCNY, 1985).
[227]Barbara A v John G 145 Cal App 3d 369 at 379; 193 Cal Rptr 422 at 429 (Cal App 1 Dist, 1983); Day v Heller 653 NW 2d 475 (SC Neb, 2002).
[228]Nagy v Nagy 210 Cal App 3d 1262 at 1269-1270; 258 Cal Rptr 787 at 791 (Cal App 2 Dist, 1989).
[229] [1914] AC 932 at 954. The whole passage is set out by Gleeson CJ at [17].
[230] (1889) 14 App Cas 337.
[231] (1789) 3 TR 51 at 64 [100 ER 450 at 457].
[232] Thompson, English Landed Society in the Nineteenth Century, (1963) at 19.
[233]Vroon BV v Foster's Brewing Group Ltd [1994] 2 VR 32 at 79-83 per Ormiston J.
[234]Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 per Dixon J.
[235]P v B [2001] 1 FLR 1041 at 1047 [29].
[236]Wallis v Smith 22 P 3d 682 (NMCA, 2001).
[237]Doe v Doe 712 A 2d 132 at 147-148 (Md App, 1998). Great Britain, Law Reform Committee, Ninth Report, Liability in Tort between Husband and Wife, (1961), Cmnd 1268, par 8, recorded: "We are told that in several foreign countries whose social standards are similar to our own the law imposes no bar on proceedings between spouses and that there is no reason to believe that marriages have been put in jeopardy in consequence."
[239]Cattanach v Melchior (2003) 215 CLR 1 at 28 [56] per McHugh and Gummow JJ.
[240]Cattanach v Melchior (2003) 215 CLR 1 at 36 [79] per McHugh and Gummow JJ.
[241]Cattanach v Melchior (2003) 215 CLR 1 at 56 [145] per Kirby J.
[242]Cattanach v Melchior (2003) 215 CLR 1 at 108 [301] per Callinan J.
[244] 105 Cal App 3d 640; 164 Cal Rptr 618 (Cal App 2 Dist, 1980).
[245] 105 Cal App 3d 640 at 643; 164 Cal Rptr 618 at 619 (Cal App 2 Dist, 1980).
[246] 105 Cal App 3d 640 at 645; 164 Cal Rptr 618 at 620 (Cal App 2 Dist, 1980).
[247]Richard P v Gerald B 202 Cal App 3d 1089 at 1094-1095; 249 Cal Rptr 246 at 250 (Cal App 1 Dist, 1988).
[248] See generally Tame v New South Wales (2002) 211 CLR 317.
[249]Miller v Miller 956 P 2d 887 (SC Okla, 1998).
[250] The wife put no argument that any such action would be inconsistent with State and Territorial statutory schemes which operate when de facto relationships break down corresponding with the arguments she put, considered below at [232]-[238], that actions for paternity fraud undermine the Family Law Act and the Child Support Act.
[251]Schubert v August Schubert Wagon Co 249 NY 253 at 256-257 (NYCA, 1928).
[252]Waugh v Waugh (1950) 50 SR (NSW) 210.
[253]Broom v Morgan [1953] 1 QB 597 at 604, 607 per Singleton LJ, 609-610 per Denning LJ.
[254]Wallis v Smith 22 P 3d 682 at 684 (NMCA, 2001). See also Douglas R v Suzanne M 127 Misc 2d 745; 487 NYS 2d 244 (SCNY, 1985).
[255] [1987] 2 SCR 99.
[256] [1987] 2 SCR 99 at 111-114 per Dickson CJ, Beetz, McIntyre, Lamer and La Forest JJ.
[257] [1987] 2 SCR 99 at 109 per Dickson CJ, Beetz, McIntyre, Lamer and La Forest JJ, 123-127 per Wilson J.
[258]Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
