Date: Thu, 16 Nov 2006 21:52:36 +1100

From: Harold Luntz

Subject: More on Magill v Magill

Andrew,

The husband relied on P v B, but it was impliedly rejected. The joint judgment said this:

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). 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.

Gleeson CJ was the only other judge to mention it.

Harold Luntz

At 08:31 PM 16/11/2006, Andrew Dickinson wrote:

See the English case of P v B [2001] 1 FLR 1041 in which it was held that the tort of deceit applied between cohabiting couples, entitling the claimant to seek recovery as damages payments alleged to have been made by him in respect of a child of whom the defendant had fraudulently misrepresented that he was the father.

The judge (Stanley Burnton J) ruled, in particular, that the concept of "intention to enter into legal relations" was inapposite in this context.

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