Law: Magill V Magill Hca

Introduction:

Magill v Magill was an appeal to the High Court of Australia in the Tort of Deceit. There had been no precedence on the Tort of Deceit in terms of paternity fraud in Australian jurisdiction, and questions were raised regarding the imposition of law and legislation in a marital context and whether the tort of deceit extends beyond the commercial context. The appeal was unanimously dismissed, and the decision became legally binding in all other Australian courts.

Material Facts:

Liam and Meredith Magill married in April 1988 and separated in November 1992, finally divorcing in 1998. They had three children throughout the course of their marriage. At the birth of each child, Mrs. Magill presented birth registration applications to Mr. Magill who then signed them as the father. After separation Mr. Magill paid child support for all three children. In April 2000, DNA testing established that Mr. Magill was not the biological father to the second or third children.

In January 2001, Mr. Magill commenced proceedings against his estranged wife in the Victorian County Court for deceit. He claimed damages for personal injury in the form of anxiety and depression resulting from Mrs. Magill's fraudulent misrepresentations. He also claimed financial loss, including loss of earning capacity by reason of his psychiatric problems and expenditure on the children under the mistaken belief he was their father. He was awarded damages of $70,000. The County Court found Mrs. Magill's presentation of the birth registration forms to Mr Magill constituted the representation by Mrs. Magill that he was the father. The Victorian Court of Appeal reversed that decision on the grounds that Mr. Magill had failed to establish the essential elements of the tort of deceit. An appeal against this decision then commenced in the High Court of Australia.

Legal Issues:

Whether Court of Appeal erred in finding Appellant did not satisfy the elements for Tort of Deceit.

All judges agreed that the Court of Appeal did not err in finding the Appellant had not adequately satisfied the elements for Tort of Deceit. The respondent submitted there was no legal duty of disclosure that compelled her to inform her husband of any extra-marital relationship. Justice Gleeson contended that her failure to disclose her infidelity was a result of "carelessness rather than deliberate fraud, " her silence did not constitute deceit. The Appellant's submission that reliance was based on the birth notification forms as false representation was rejected by all judges noting the forms were a presumption of paternity during marriage, as Heydon J held the "three children were children of the marriage ". Justice Heydon aptly held that the law could not distinguish his signing of the forms as "an otherwise undifferentiated course of conducts and statements " Furthermore, the wife made no explicit representation nor needed to for children "of the marriage" and Mr Magill did not rely on those representations for he had "no reason not to believe" they were his children.

The Joint judgment of Kirby, Gummow and Crennan JJ likewise argued that representations within the marital context are not taken by the law to have legal consequences , concluding that under s 69T of the Family Law Act (1975) the birth notification forms was not a legal representation but a "presumption of paternity ". The presentation of the forms by the Respondent did not significantly change the circumstances on the Appellant's part .

Therefore two of the five of the requirements for Tort of Deceit outlined by Lord Herschell were not satisfied, and "nothing short of that will suffice ".

Finally the Joint Judgment rejects the Appellant's claim for personal injury and loss payments for child support or maintenance are not "conterminous" with the damages awarded by trial judge. Justice Gleeson agrees, noting any personal injury was sustained during the breakdown of marriage, exacerbated but not born out of the revelation of the children's identity; hence the appellant cannot seek 'dependent'.

Whether ss119, ss120 of the Family Law Act (1975) preclude an action for deceit by husband in respect of false representations made by wife during the marriage as to the paternity of children.

All judges firmly disagree that ss119 or ss120 preclude an action for deceit. Justice Gleeson adopted a Literalist approach rejecting the Respondent's contention that interspousal immunity may protect her from the action, citing that ss119 abolished all, and not just to a degree, interspousal immunity . Heydon J goes further in a formalist approach to rely on the "clear and intractable... statutory language ", contending that the interpretation of ss119 by the Respondent would counter s 51(xxi) and (xxii) of the Constitution .

The Respondent submitted that damages could not be claimed arising from misrepresentations as to the paternity of children conceived and born during marriage, nor claim for damages arising from adultery. With support from the Commonwealth, the Joint judgment concluded that ss120 referred to actions prompted by an injured party against third parties. As this was not within the circumstances of this case it held no application. Although all judges agree that ss120 does not forbid the Appellant's action for deceit, the Joint Judgment correlatively forwards such an action would defy the "legislative purpose" of the Family Law Act (1975) . The purpose of ss120 was to remove the provisions for divorce based on fault such as adultery, and should not imply the regulation of sexual conduct between spouses . Heydon J adds that the action for the tort of deceit is quite separate to that of recovery of damages for adultery .

Whether tort of deceit extends to claims for damages arising from false representation as to the paternity of children during marriage.

The joint judgment held no action could lie for representations about paternity made between spouses, however Gleeson, Heydon and Hayne JJ disagree in that there could be circumstances in which such an action might succeed, but they were exceptional and not present in this case. The Respondent submitted that the action undermined the statutory legislation dealing with disputes arising out of marriage and divorce and Torts was limited to contractual inducements within the commercial context.

Justice Gleeson raised that representations within the marital context may hold rights of "financial obligations",