Date: Thu, 9 Nov 2006 14:27:30 -0500

From: Jason Neyers

Subject: High Court of Australia on action for deceit re paternity

I wonder if the result might be explained on the grounds that for many transgressions (which I am not sure) the parties have already agreed to the remedy which is dissolution of the marriage.

Neil Foster wrote:

Dear Colleagues;

Perhaps not surprisingly the High Court of Australia has ruled that there can be no actionable claim in the tort of deceit based on a wife's failure to tell her husband that some of the children that have been born during their marriage were not actually his: Magill v Magill [2006] HCA 51 (9 November 2006).

I have only skimmed the judgement so far but there seems to be a division within the Court as to whether a general rule ought to be adopted precluding actionable deceit in relation to paternity or sexual matters within a marriage, or whether the action was in some circumstances possible but the plaintiff did not manage to prove all the requisite elements. I think Gleeson CJ's judgement is fairly persuasive - he would not adopt a general rule precluding deceit claims between spouses, but says that there are limits to what the law can require as a duty of honesty between parties! There are also some interesting hints in the case that perhaps in the law of deceit the courts ought to adopt similar rules to those used in the law of contracts in determining "intention to create legal relations". Presumably, that some statements between spouses should be able to be classified as never intended to be the basis for legal action. How you would identify the relevant class of statements opens a whole new can of worms, I would think!

--
Jason Neyers
January Term Director
Associate Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435

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