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Från: Neil Foster
Skickat: den 16 november 2006 03:16
Ämne: ODG: [Spam?] More on Magill v Magill
Dear
Colleagues;
I
have had more time to read the High Court of Australia decision
in Magill
v Magill [2006] HCA 51 now and thought I would offer a
few comments.
The
decision is very interesting from a number of perspectives, and
it raises squarely the issue of whether or not the law of torts
should operate in a different way within the context of a marriage
(or presumably other "domestic" relationships) from the
way it operates between "strangers" or in a "commercial"
context. Indeed, one of the underlying issues the court wrestles
with is whether, if there are to be different rules between husband
and wife, the relevant thing is their "status" as spouses
or family members, or the nature of the alleged transaction (commercial,
domestic, personal, sexual or some other description).
For
those who may not recall: the case involved an action in deceit
by Mr Magill against Mrs Magill, his former wife, based on the fact
that the second and third of the three children born during their
marriage turned out to be not his children, but the children of
another man with whom his wife was sleeping during the marriage.
The
issue of child support payments as such was not involved; I won't
go into the details (partly because I don't understand the system
very well!) but it seems that he had been adjudged liable to pay
child support under a statutory scheme, and once his paternity was
disproved he was entitled to a "credit" for payments previously
made in relation to the later 2 children (but this didn't give him
cash in the hand because he was behind in payments for the first
child, who was his, so in effect all that happened there was that
his payments for the other children discharged his liability for
the first.) See para [67].
But
what Mr Magill was claiming was damages for deceit based on personal
injury in the form of depression suffered after hearing the news,
and some financial loss based on time and money he had spent supporting
the two younger children believing he was their father, along with
exemplary damages. A fairly tacky list of claims to some extent,
and no doubt most people would think his action was primarily motivated
by hurt feelings and a desire for revenge.
While
he received damages from a trial judge, the Victorian CA overturned
the award on the basis that specific elements of the tort of deceit
were not made out. The elements of the tort are set out (see [37]
and [59]) as being (1) a representation (which may in some cases
be by silence where there is a duty to speak); (2) made knowing
that it was false (including some cases of wilful failure to check);
(3) intending that it be acted on; (4) which has been acted and
(5) has produced damage. It was found by the Victorian CA (and the
HC all agreed) that (1) was not satisfied as there was no specific
representation that the children were the father's [with some doubt
about how to treat the application for birth certificate which the
wife gave the husband to sign]; and also that in any case (4) was
in grave doubt as the father did not, in treating the children as
his, "act on" the birth certificate, but did so on the
basis of various assumptions he made about the wife's faithfulness,
etc. See Gleeson CJ at [43]-[45]. Even Heydon J, who came closest
to finding for the father, agreed that there had been no relevant
"reliance"- [167]-[172].
But
should he have been able to bring the claim at all? Or should matters
of sexual relations between the parties be regarded as a '"no-go"
zone for the law? That was the issue that saw at least 4 different
answers offered by the 6 members of the court who sat on the case.
(I have no idea why Callinan J did not sit; maybe just administrative
reasons.) The spectrum of views seems to go roughly in this order,
from "no-go" zone to "apply the law equally to spouses
as to everyone else".
(1)
The one joint judgement, of Gummow, Kirby and Crennan JJ, concludes
at [88] that "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". The judgement refers
in general terms to Australia's "no-fault" Family Law
Act 1975 to justify the law "butting out" of relationships
between parties to a marriage in this area.
{They
also refer in passing to Wilkinson v Downton and a possible
tort of "intention to cause emotional harm", but say in
[117] that these torts have been "subsumed" into negligence.
I think the disappearance of Wilkinson v Downton would
be a surprise to most Australian torts lawyers, especially since
it was examined and applied with some care by Ashley J in the Supreme
Court of Victoria in McFadzean v CFMEU [2004] VSC 289,
and has been referred to with approval by the High Court on a number
of occasions.}
(2)
The judgement of Hayne J carves out a zone where deceit should not
apply, but the zone is I think a little narrower than the above.
At least it is differently formulated. At para [140] his Honour
says: "The relevant principle that should be adopted is analogous,
and of generally similar content, to that concerning contracts and
family relations. (fn to Cohen v Cohen (1929) 42 CLR 91)
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."
Note
the explicit parallel being drawn between the rule in contract law
that some promises are not intended to give rise to a legal relationship
within a family context, and the area of tort law. I must say I
find this curious. I can understand saying that parties who choose
to make promises may be deemed not to intend those promises to be
legally actionable within a family (or social) context. But would
most people also say "I understand that members of my family
may lie to me at any time with no legal consequences"? There
does indeed seem a gap here, between promising and lying.
(3)
The judgement of Gleeson CJ is a bit hard to follow here, and seems
(with respect) to want to have a foot in both camps. On the one
hand his Honour says that representations should not be excluded
from the law of deceit simply because of their "subject matter"
- [22]. Nor, he says, are "marital relations a tort-free zone",
nor is deceit never to be applied "between cohabiting parties
or in respect of questions of paternity or marital or extra-marital
relations" - [42]. Yet, he says, the "deeper problem"
with the husband's case was not just that he failed to establish
some of the elements of deceit, but that "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' (fn to Rose and Frank),
and the appellant's case was difficult to accommodate to that setting"
- [42]. His concluding comments in paras [48]-[49] are along similar
lines, which frankly I can't quite penetrate.
(4)
Heydon J, at least, is clear. While the husband failed in this case,
there are no areas of life where obligations created by tort law
may not be dealt with. Indeed, he is at pains to point out that
the agreement of all members of the Court that the husband failed
to establish all the elements of deceit means that other comments
made by the Court on the availability of deceit are in effect obiter
dicta - see [173] ("not a necessary step towards dismissing
the appeal"). Still, he is obliged to offer his views since
other members of the Court have done so. He reviews some history
and notes that in general tort litigation between spouses is an
accepted part of the law - [197]. He notes that it is generally
accepted that "honesty is a duty of universal obligation",
quoting Viscount Haldane LC in Nocton v Lord Ashburton
- [207]. Policy reasons as to why deceit should not be available
between spouses on these sort of matters are not convincing - there
are numerous cases where deceit has been relevant to financial dealings
between spouses.
Conceding
that in many cases plaintiffs will find it difficult to make a case
is no reason to conclude the tort should not be available in an
appropriate case- [211]. And he specifically rejects the "intention
to create legal relations" analogy; if there is a link between
this rule of contract and the law of tort, it is the element of
the tort which requires that "the defendant intend that the
plaintiff should act in reliance on the relevant representation".
He
concludes (and I can't do his arguments justice here, of course)
that there is no good reason for excluding the tort from this sort
of case. Indeed, when it is considered what sort of consequences
may follow from a person believing that someone is his 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" - [218].
It
will be obvious that I think Heydon J's is the most convincing of
the judgements.
I
have omitted from this summary stuff which is relevant only to Australians
- the significance of ss 119, 120 of the Family Law Act 1975, for
example, which all the members of the court generally agree do not
of themselves preclude the possibility of the action.
I
know that some here will roll their eyes at the number of words
and footnotes the HC has used to deal with this topic. But in fact
it is a very complex area, there are things to be said for and against
the issues from a number of points of view, and while I don't agree
with all that they have said, I think it is not a bad system where
the complexities can be aired and given a fair treatment.
(And
no, I don't get paid by the word for these either!!)
