Magill v Magill

[2005] HCATrans 974

[2005] HCATrans 974

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M35 of 2005

B e t w e e n -

LIAM NEAL MAGILL

Applicant

and

MEREDITH JANE MAGILL

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 18 NOVEMBER 2005, AT 12.17 PM

Copyright in the High Court of Australia

MR N. LUCARELLI, QC:   If the Court pleases, I appear with my learned friend, MR J.C. PATERSON, for the applicant.  (instructed by Vivien Mavropoulos & Associates)

MS F.M. McLEOD, SC:   If the Court pleases, I appear with my learned friend, MR R.B. ALLEN, for the respondent.  (instructed by Clayton Utz)

GUMMOW J:   Yes, Mr Lucarelli.

MR LUCARELLI:   If the Court pleases, the representation that forms the substratum of the deceit action is common in the community.  It is a representation as to the paternity of a child made by a mother in a birth notification form.  The party who relied upon the representation was the person asserted by the mother to be the father of the child.  The case made by the applicant for special leave relies upon a representation which is no broader than the mother’s representation as to identity of the father contained in the birth notification form.

GUMMOW J:   What was the cause of action?

MR LUCARELLI:   It was an action in deceit, your Honour.

GUMMOW J:   In deceit, yes.

MR LUCARELLI:   Yes, it is.

KIRBY J:   That is a species of fraud, I suppose?

MR LUCARELLI:   It is, your Honour.

KIRBY J:   That was one of the points that the Court of Appeal latched on.  They said in fraud it is traditional in our system that you have to plead, particularise, present and argue the case with high specificity.

MR LUCARELLI:   Yes, your Honour.

KIRBY J:   They felt that you had presented the case with the particularity and specificity of reliance on the hospital registration form.

MR LUCARELLI:   Yes, your Honour.

KIRBY J:   The problem you have to overcome is if you mount your case of a fraud type on that particularity, why should you be allowed to succeed in a more general sense by reference to other evidentiary material or inferences?

MR LUCARELLI:   That is not pursued here, your Honour.  All that is pursued here is based on the representation in the birth notification form and what is said to flow from that is that the applicant in fact relied upon the statement as to paternity in that birth notification form.

KIRBY J:   I just wonder why you confined the case to such a particularity.  I mean, why not the whole circumstances of the relationship, the marriage, the usual ingredients of marriage, assumptions?

MR LUCARELLI:   In a sense they were there, your Honour, in this way.  There had been an admission made by the respondent about the fact that there had been a statement as to pregnancy and there were some particulars that were provided which were not in dispute in the trial at first instance about particulars such as the fact that there had been no statement that the applicant was not the father during the course of the pregnancy, for example.  Those matters were in the particulars and there were other matters in the particulars that did not seem to play a part in the trial at all.

KIRBY J:   Well, true.  To the contrary, as I understand it, the respondent, really quite late in the day, maybe even now, said that she still believed that the third child was his but the DNA evidence goes against that.

MR LUCARELLI:   Yes, that is correct, your Honour.

KIRBY J:   The problem, from a special leave point of view, is the High Court of Australia is just not going to get into a case of such particularity just focusing only on a hospital form.  It is too particular – too narrow a point.

MR LUCARELLI:   But in our respectful position, your Honour, it is the exact opposite.  It is because a form of this kind is so common; it is so widespread throughout the community, where a representation is made by a mother about the paternity of a child.  This is happening not just in this one case but indeed it is because of the very specificity and because of the very power of the representation made about the paternity in such a clear and concise way.

KIRBY J:   Yes, but the respondent said she thought this was just the thing for registering the name of the child and that is what the court said – Justice Callaway - it was redolent with candour and that was accepted by the Court of Appeal.  One problem that I have in that is that there was evidence by the trial judge that he found the credibility of the mother difficult, at page 54.

MR LUCARELLI:   Yes, that is correct, your Honour.

KIRBY J:   That would not normally be jumped over by a Court of Appeal without some very potent reasons.

MR LUCARELLI:   No, your Honour, and Justice Callaway in his reasons for decision jumps to that conclusion, in our submission, but it really is not a matter that could have been got to by his Honour because of the findings made by the judge ‑ ‑ ‑

KIRBY J:   One gets a bit of a feeling in this case from Justice Eames at 59 where he refers to public policy issues.  There is lurking in the background here a general feeling that these sorts of cases are rather uncomfortable for the law to provide remedies in this sort of circumstance because many parents love their children once the child is there, whatever the genetics.

MR LUCARELLI:   Your Honour, regardless of how uncomfortable it may be - of course the applicant in this case has suffered depression, it is said, as a result of the misrepresentation that was made about the paternity of two of the children so that no matter how uncomfortable it may be it is a case which, in our respectful submission, deserves the attention of this Court.

KIRBY J:   What you have to attack then is the Court of Appeal’s decision that the misrepresentation is not to be found in the hospital form because the hospital form is to be interpreted simply as a registration of the name of the child.

MR LUCARELLI:   May I take the Court to the form because - it is in amongst the materials that were sent to the Court yesterday and it is literally one page – because at the end of the day the form does more than just simply register the name of the child.  In our submission, what the form does ‑ ‑ ‑

KIRBY J:   What page?

MR LUCARELLI:   It is at the very back of the materials that were sent to the Court yesterday, if your Honour pleases.  They are not included in the application book.  It is literally the third‑last page of the bundle that your Honour has.

KIRBY J:   Yes.

MR LUCARELLI:   The birth registration form.  It is a notification of birth.  It is common ground that it was filled in by the mother and handed to the father with all the details in it and the father relied upon it and signed it.  What it reveals is that the applicant is named as the father of the child.

KIRBY J:   Look at the very big print at the top.  The very big print is “NOTIFICATION OF BIRTH” so it is definitely that.

MR LUCARELLI:   Yes, it is, your Honour.

KIRBY J:   It is a question of whether it was open to the Court of Appeal to conclude, accepting what the respondent said, that all that she meant by putting this down was that she was the mother and he was the social father and they were notifying the birth and the name.

MR LUCARELLI:   No, your Honour, because the Court of Appeal – Justice Eames goes further than that in his conclusion as to what the actual impact of the representation in the form about the paternity was.  In our submission it goes further than that.  May I take the Court to page 70 of the application book.  At the end of the day the applicant is only making one point, in effect, and it goes to reliance because the applicant says that the rest of the case as to deceit is made out.

It is only as to reliance that there has been an error made and a fundamental error, in our respectful submission, made by the Court of Appeal about reliance, so that all the other matters are not quibbled with in any manner, shape or form.  At page 70 at about line 19 his Honour Justice Eames is dealing with the question of what was intended by the respondent in making the statement in the form to the effect of paternity of the applicant:

it seems to me that his Honour must have concluded that the appellant’s intention went further, and extended to the respondent incurring expenses as the father of the children.  If his Honour did not so conclude then the claim for damages could not have succeeded.

So first and foremost we would submit that there is the requisite intention on the part of the respondent to make the representation as to paternity to be relied upon in the relevant way.  Then, at page 72 is where, in our respectful submission, the majority of the Court of Appeal went wrong and wrong in a very substantial way.  May I take the Court to his Honour at paragraph 83.  It is said:

In my view, therefore, there was no evidence that the respondent acted in reliance on the representations in the forms, save (by inference) with respect to the naming of the children.  Although the matter is not beyond doubt, I accept that it was open to conclude that the respondent relied on the representation contained in the forms for that limited purpose.  It was contended before us that reliance only for the purpose of allowing his surname to be taken by the children could not have been a cause of any of the loss and damage suffered by the respondent.  That would not necessarily be so.  The fact that he agreed to the children taking his name must have carried with it an acknowledgement of his obligation to maintain them –

So far we are in heated agreement with the Court of Appeal on behalf of the applicant.

GUMMOW J:   Was there any exploration at the trial of the proposition that if your client had realised the situation he would have repudiated the child?

MR LUCARELLI:   There is evidence that he would not have supported the child and that is common ground.  There was evidence on his part to that effect.

GUMMOW J:   What would have happened to it?

MR LUCARELLI:   There was no further exploration beyond that.  He was not tested on that evidence but that was ‑ ‑ ‑

KIRBY J:   Is that not a point that the Court of Appeal latched onto, that there was no exploration of the way of thinking of the applicant, that his mental processes and thinking at that time were not really explored?

MR LUCARELLI:   Yes, but in our respectful submission, that amounts to the fact that the evidence given by the applicant was accepted and accepted by his Honour as well.  If the respondent chooses not to press that then that is a matter for the respondent because the way in which it is put for the applicant before this Court is this that the way in which the test for reliance has been applied has put the cart before the horse.

Once the applicant established that he relied upon the statement to the effect that he was the father of the child it was then up to the respondent to either show that the applicant knew that that statement was false or, alternatively, that he did not rely on it in any manner, shape or form, and that is the law.  But, unfortunately, what has happened is that the ‑ ‑ ‑

GUMMOW J:   There is a strong presumption in the law, exemplified by Russell v Russell and other cases, in favour of legitimacy.  There is a reason for that.

MR LUCARELLI:   There is, but it is also based here on ‑ ‑ ‑

GUMMOW J:   Somehow this tort is cutting into it.

MR LUCARELLI:   In our submission, it is not, your Honour.  It is like what was said in the English case of P v B, just because it may seem to be rather unsavoury to have cases of this kind does not mean that there is not an actionable tort and that there is not a tort of deceit.

KIRBY J:   The problem with unsavoury is that we live now in an age of DNA and DNA tests and this is a reality.  I suppose you put the point that this is going to be quite a common element and therefore that is a matter of general concern.

MR LUCARELLI:   Yes, it is, your Honour, but what we are concerned about ‑ ‑ ‑

KIRBY J:   The problem is whether this is a good vehicle, though, because of the way you narrowed your case.  You see, I just do not understand why it was not everything, the relationship, their circumstances, living together, the fact that he was unaware of the relationship of the respondent to another person and ‑ ‑ ‑

MR LUCARELLI:   It appears to have gone off the rails, so to speak.

KIRBY J:   Why put it all on this form?

MR LUCARELLI:   It seems to have gone that way because of the concession that was made by counsel for the respondent at first instance which the Court of Appeal has referred to in which it was accepted and the case then proceeded on the basis that the most direct evidence of the fraudulent misrepresentation was contained in the forms and his Honour then ‑ ‑ ‑

GUMMOW J:   But was there detailed evidence as to how the form came to be signed?

MR LUCARELLI:   Yes, the evidence is that it is common ground and the Court of Appeal says this, that it was filled out by the mother in all its detail and presented to the applicant and the applicant having no – and he signed it.

GUMMOW J:   Whereabouts?  Whereabouts were they when this was happening?

HAYNE J:   Were they still in hospital?

KIRBY J:   In the hospital, I think.

MR LUCARELLI:   There seems to be some – it not as clear as to precisely where that took place.  The forms were presented at the hospital to the mother but whether they were filled in in the hospital or filled in later is not clear, on the evidence.

KIRBY J:   Now, the writing on the form appears to be in the same handwriting of father and mother.  Do you say the evidence showed that the mother presented this form and that is her handwriting and that was not disputed?

MR LUCARELLI:   Yes, that is not disputed.

KIRBY J:   And she presents it just for signature of the applicant?

MR LUCARELLI:   Yes, that is correct, your Honour.  May I go back to the point of reliance which is the key point about which special leave is sought and which, in our respectful submission, is an important point, not just in connection with cases of this kind but also as to the law of deceit and inducement, in particular, and reliance?  May I take the Court back to application book page 72?  This is where it is submitted that the majority of the Court of Appeal went wrong - continuing at about line 22.  I have read up to the point about “obligation to maintain them”.  May I read on:

but there was no evidence that the incurring of financial expenditure was induced by the representation contained in the forms, or that his illness was aggravated by the representation made in the forms as to each child.

In our submission, there are two difficulties with the way in which the Court of Appeal is proceeding there.  First and foremost, having concluded that the applicant did rely upon the form and the representation in the form to the effect that he was the father, he then of course proceeds on that basis and it is a natural presumption that any person would make if that is the case, that you are presented with a statement to the effect that you are the father and you accept that at that point in time, having no reason to believe otherwise.

What should have occurred then is that the onus should have shifted to the respondent in this case to demonstrate that the father either knew that the statement was false, but nevertheless proceeded to sign the statement and accept it as correct, or alternatively, had absolutely no reliance upon it whatsoever.  Two points to be made about that.  First and foremost, the applicant ‑ ‑ ‑

HAYNE J:   Does not that reveal what is underpinning what the Court of Appeal seems to have done, that the more narrowly you identify your misrepresentation, that is, the more you focus on the form to the exclusion of all else, in a familial context where the court would readily conclude that there is a whole lot of other circumstances surrounding it, how do you hang all of these consequences on this single very narrow hook because it is in the middle of a whole wall of events that have occurred over the years?

MR LUCARELLI:   Because in a sense it is the only statement of any pertinence to the whole case and that is that you are the father.  It would not matter in what forum it was made or in what way it was made, if that statement was made intending to be relied upon, which it is submitted as being established as a statement to that effect then it ‑ ‑ ‑

KIRBY J:   Your point is it might have been a mistake at trial to have confined the representation so narrowly, but it is enough.

MR LUCARELLI:   It is enough, yes.

KIRBY J:   It is powerful and it is a statement that she wrote out and presented to him and therefore it is the clearest evidence that this is her representation to him which he accepted knowing no else.

MR LUCARELLI:   You almost could not get a better form of it without dispute as to what might have been said on particular occasions.  This is absolutely clear black and white and also it is happening across the community.  It is not just a matter of relevance to this case.

KIRBY J:   Why would one not read the statement against at least a background of marriage, the normal incidence of marriage, a young couple and so on and the fact that one child was undoubtedly genetically related to them?

MR LUCARELLI:   But those matters are effectively agreed.  They were married.  There is no dispute.  There was a representation made that she was pregnant but before the form ‑ ‑ ‑

KIRBY J:   But the Court of Appeal seemed to take a point that you would have to raise a notice of contention on those issues and they were embarrassed that that was a rather technical way to approach it but they seem to have taken quite a technical approach.

MR LUCARELLI:   Yes, that is our submission.

KIRBY J:   That is why I say that underlying it may be this feeling of distaste or disquiet about actions of this kind.

MR LUCARELLI:   And as P v B says in England ‑ ‑ ‑

KIRBY J:   Which I can understand, I might say.

MR LUCARELLI:   But that must not, in our respectful submission, distract the Court from the justice of the situation which is that if there has been a deceit which has caused damage then there ought to be appropriate compensation and because of the media coverage that this case has received and because DNA evidence is now available it has changed the landscape and so it is an opportunity, in our submission, for this honourable Court to not only rectify the error that has been made about reliance but also to give the imprimatur, which effectively the Court of Appeal has already given, that these sorts of cases may be brought within the law of deceit.

KIRBY J:   The question is, is this the opportunity or is it better to have a case where there has not been such a narrowing of the focus at trial?

MR LUCARELLI:   We would submit, your Honour, that that is the strength of this case, that it is absolutely black and white, so to speak, that there is a representation as to paternity about which ‑ ‑ ‑

KIRBY J:   What was the point of difference of Justice Callaway?  Was there a point?  You referred to the majority in the Court of Appeal.  I did not read his Honour’s reason to be very different.

MR LUCARELLI:   In the end his Honour was in agreement with the other two.  It is just that Justice Ormiston agreed almost totally with the reasons of Justice Eames and Justice Callaway delivered ‑ ‑ ‑

KIRBY J:   That is right.  I do not think there is any difference between their Honours, is there?

MR LUCARELLI:   In the end there is no difference except that his Honour Justice Callaway did proceed on the assumption that the applicant had been completely frank in the way in which he had approached the evidence at trial, which we would submit is not a matter of relevance, but at the end of the day on the point of reliance all three justices did in effect go the same way although Justice Callaway does not give any reasons as to why the reliance placed by the applicant upon the statement made was not sufficient in the circumstances.

We now have a Court of Appeal decision which is contrary to the decision in Gould v Vaggelas about the law as to reliance, where once in the natural course of events reliance is made out then it is for the defendant to actually show.  The onus probandi, as it is called in some of the old English cases, shifts to the respondent to demonstrate either that there was knowledge of the falsity, alternatively, that there was no reliance placed on it at all.

In our respectful submission, the Court of Appeal at that very point, and it is only that one point because then of course it flows into causation, but it is at that one point at the end of paragraph 83 of his Honour’s reasons, that having found that there was an inducement that that was not sufficient, in the circumstances.  It is just simply turning the law of reliance in actions for deceit on its heel and it is inconsistent with the body of case law that we have put before the Court in support of the proposition that once there is a natural course of events, the statement made ‑ ‑ ‑

GUMMOW J:   Yes.  We know those old cases.  What bearing is there on this case of the decision in P v B [2001] 1 FLR?

MR LUCARELLI:   That is an English decision in which an action for deceit was brought by a father who had had a representation made to the effect that he was the father in circumstances where DNA evidence proved to the contrary.

GUMMOW J:   What was the nature of the representation in that case?

MR LUCARELLI:   The actual basis of the representation in that case, I would need to go back to it, if the Court pleases.

GUMMOW J:   It seems to be the only case on point, does it not, in the Anglo‑Australian situation?

MR LUCARELLI:   Certainly in Anglo‑Australian.  There is Canadian authority and a lot of American authority about paternity cases and there is a case in Perth, we understand, in the District Court in Western Australia which is also a case to do with so-called paternity deceit, but it is awaiting judgment, as we understand the matter.

GUMMOW J:   Yes.

MR LUCARELLI:   I understand the time is up, if the Court pleases.

GUMMOW J:   No, it is important to get the answer to this question.  What was the nature of the representation in the English case?

MR LUCARELLI:   It was an oral representation that had been made by the mother to the effect that the person bringing the action was the father of the child.  It was not in wedlock.  It was a representation made in a de facto relationship.

GUMMOW J:   The case did not actually – this is not a trial, is it?

MR LUCARELLI:   No, it is not.

GUMMOW J:   It is a preliminary point.

MR LUCARELLI:   It was a summary judgment application, in effect, to determine whether or not the cause of action in deceit existed at all in the context of that type of case.

KIRBY J:   So your argument is that this is a form filled in by the mother against the background of a marriage and in circumstances of an earlier child who is genetically the child of both parents?

MR LUCARELLI:   Yes, your Honour.

KIRBY J:   Of the couple.

MR LUCARELLI:   Yes, with no disclosure ‑ ‑ ‑

KIRBY J:   Therefore you would say this is a fortiori to P v B.

MR LUCARELLI:   Yes.  If your Honour pleases, there is almost not a clearer case in a lot of senses.  Because of the very clear representation that is made it does not carry a lot of baggage of other representations that may or may not have been accepted.  Only one representation is necessary, in the circumstances, to establish the tort in this case which is that you are the father of this child in circumstances where that turns out to be false.

GUMMOW J:   I notice in the case note of the Law Quarterly Review 117, page 571 there is a reference on page 574 to Wilkinson v Downton [1897] 2 QB 57. That seems to be the area of discussion, does it not? Is that referred to in this case, the Wilkinson case?

MR LUCARELLI:   No, it was not.  It was referred to in the Court of Appeal in passing in the sense that there was debate about whether or not the cause of action existed in this type of case.  In the end the respondent effectively agreed that there really was not any basis for disputing that there was an action for deceit available in this type of case, relying probably on P v B.  There was certainly debate about P v B and the respondent started by saying that there should be at least some look at whether or not the action for deceit was available but ultimately that was not the question before the Court of Appeal.  The Court of Appeal accepted that in cases such as Wilkinson v Downton – established that deceit can apply in non‑contractual cases.

GUMMOW J:   Yes.  Justice Hayne draws attention to paragraph (20) of the English case in the judgment there, the reference to Wilkinson vDownton.

HAYNE J:   And in paragraph (23) Wilkinson v Downton is understood as a species of the genus “deceit”.

MR LUCARELLI:   Yes, your Honour, because of course there there was no contract.  What had happened was – I always get it confused between Wilkinson and Janvier but the one where the person turned up at the door and said ‑ ‑ ‑

HAYNE J:   “Your husband has got two broken legs.”

MR LUCARELLI:   Yes, has been in an accident and the lady suffers nervous shock and the Court of Appeal said that obviously amounts to deceit, a fraudulent statement made knowing that it would induce the person.  The person was so induced and suffered loss and damage, so that deceit certainly has been accepted as existing out of contractual cases.

GUMMOW J:   Yes, thank you.

MR LUCARELLI:   If the Court pleases.

GUMMOW J:   Yes, Ms McLeod.  You have heard what is on our mind.

MS McLEOD:   Yes, I have, your Honour.  Your Honours, we refer, of course, to our written submissions.  We say in this case that there is no question of general importance or principle arising.  There is no suggestion that the use of the form in every birth as is mandated, as I believe, in Australia, or in every case in fact where the form may be used for any purpose -is used for any purpose beyond registration.

There is no suggestion that the case opens up the opportunity to examine the discomfort that a social father may feel on discovering that he is not the biological parent.  This case is simply decided on the narrow facts that there was no reliance upon ‑ ‑ ‑

KIRBY J:   But the narrow facts are of a form which was filled in by your client and presented to her husband by whom she had had a previous child.

MS McLEOD:   Yes.

KIRBY J:   In those circumstances why is that not enough to be a representation that he is the father?

MS McLEOD:   It was conceded below that it was a sufficient basis for the representation, your Honour, and we do not argue that it was not.  Whatever one might say about ‑ ‑ ‑

KIRBY J:   Where is the chain severed to the consequences that are then said to have flowed:  (a) the payment of moneys for the upkeep of the child and, (b) the mental stress and so on that was found by the trial judge to have been suffered by the father when he discovered that they were not his children, the depression that that caused?

MS McLEOD:   There was no evidence to support the argument that he had relied on the representation contained in the forms in following that particular course of conduct other than ‑ ‑ ‑

KIRBY J:   But common sense and the sequence of events tends to support the notion that he would just accept what the wife had said.

MS McLEOD:   The common sense argument, your Honour, does not change the ultimate onus of proof.  It may raise an evidentiary burden for the defendant to discharge.  Nevertheless as Gould v Vaggelas decided - and there is no departure from this principle by the Court of Appeal – the onus of proof ultimately rests with the plaintiff in showing that he relied upon the representations ‑ ‑ ‑

KIRBY J:   But what more can he produce than a form which is filled out by the opponent, his former wife, which writes out his name as father?

MS McLEOD:   Yes.  Well, he could say, for example, “When I read the form I took it as confirmation that I was the father” or, that “I assumed through the course of the ‑ ‑ ‑

KIRBY J:   But did not the facts speak larger than any words he could use?  He supported the child.

MS McLEOD:   Not because of the way the case was confined, your Honour.  The submissions and the evidence that was led before the trial judge were confined because of the so-called concession made below.

GUMMOW J:   What was the concession?

MS McLEOD:   The concession was that the notification in the birth forms constituted a false representation of fact and paternity.  That was the concession.  The way that the argument and the evidence was confined thereafter was to suggest that no doubt the applicant’s counsel assumed that he was over that hurdle, therefore he did not need to call evidence about anything else.  Apart from a general assertion that there was evidence and that he had met the burden of proof, there was no evidence led that he had actually relied upon that or that the damage that flowed from that was causally linked to his discovery that the representations in the forms was false.

GUMMOW J:   Yes, but this is a different sort of case to representations about takings in a milk bar or between a vendor and purchaser.

MS McLEOD:   It is a different case from the ordinary cases in which the tort of deceit is applied.  We appreciate that, your Honour, but the Court of Appeal did not seek to extend it.

GUMMOW J:   What is involved here is fundamental social relations.

MS McLEOD:   Yes.

GUMMOW J:   You just cannot read out Gould v Vaggelas and say that is it.  That is the problem.

MS McLEOD:   There is no departure, then, from the principle enunciated in P v B, your Honour.

GUMMOW J:   That is why I think it is important – it was important to grapple with what was said in the English case in the Law Quarterly Review.

MS McLEOD:   In which case, I am sorry, your Honour?

GUMMOW J:   P v B.

KIRBY J:   Grapple with the English case.

MS McLEOD:   Yes.  There is no departure by the Court of Appeal ‑ ‑ ‑

GUMMOW J:   It is not a run‑of‑the‑mill deceit case.

MS McLEOD:   This Court in taking on this case, to enunciate a statement of principle would not necessarily depart from decided cases.  There is no uncertainty in the law, in our submission, that says the tort of deceit does not apply.

HAYNE J:   But is that not the point, whether there is some special rule that applies in these family cases?

MS McLEOD:   None is sought to be advanced by the respondent in this case, your Honour.

GUMMOW J:   There is a doctrine in contract – there is a case in this Court called Cohen v Cohen where Sir Owen Dixon said in family dealings you do not ordinarily apply principles of contract, animus contrahendi and so on.  People do not act that way.  This is a similar sort of problem in tort.

MS McLEOD:   The point is, your Honour, that in this case and on these facts the evidence of reliance was not established.

HAYNE J:   You are not going to get the man saying, “Gee, I was waiting until the form and not until the form hit my deck did I say, right, I will reach for the cheque book”.

MS McLEOD:   But what you do have, your Honour, is his assertion that he did not pay much attention to it.

KIRBY J:   He would not, would be, because he was in a relationship with a wife who had borne him a child and who he had no reason to believe was having an affair, as I understand the facts.

MS McLEOD:   Yes.  That is the very difficulty that our learned friends face, your Honour, because if they had conducted the trial below upon the concession, if I can call it that, being made about the false representations, if they had conducted the trial to say, “At least, we have established that.  We have also established these other aspects, the assertion in the course of marriage, the assumptions that he made and so on” then they might have a valid point.  That was exhaustively examined by Justice Eames in the Court of Appeal and he determined that they had not run the case that way.

KIRBY J:   I understand that point and essentially that is what led the Court of Appeal to their conclusion but even they felt obliged to apologise that it seemed a very technical conclusion and it does seem a very technical conclusion, yet Justice Eames then refers to what he calls public policy questions.  They may not be strictly that but they may be the type of thing that Justice Gummow has raised as to why one feels a sense of unease about having these type of disputes in the general courts.

MS McLEOD:   There is another component, too, your Honour.  There was the evidence of the disclosure of paternity or the disclosure of doubts in 1995 when the respondent had her collapse in hospital.

KIRBY J:   That is a little point of evidence.  That is not relevant to whether this is a case that deserves the attention of this Court and the principle argument is that the evidence is clear and small and strong and there are English cases and commentaries on it and they were not really given proper or any consideration and it is a matter of general importance in the age of DNA and therefore suitable for the attention of this Court.

MS McLEOD:   Excepting that, your Honour, there has been no departure from previously decided cases.  The Canadian cases or the English cases where the tort has been applied outside the commercial or contractual areas include the case that your Honour mentioned, Wilkinson, the practical joke upon the wife; the case of the French maid who was frightened by detectives turning up and making statements about her colluding with German spies, the tort has been applied outside the commercial context.  This case does not say it should not be.  That is why it is not an appropriate vehicle, your Honour, apart from the narrow facts in this case.

GUMMOW J:   If special leave were granted you might want to put on a notice of contention about some of these matters.  That is why we are exploring them.

MS McLEOD:   Yes, indeed, your Honour.

GUMMOW J:   Very well.

KIRBY J:   There is something to be considered in what Justice Eames says at page 59 and following about what he says may be public policy questions.  I do not think they were fully explored.  There may be no such questions but ‑ ‑ ‑

MS McLEOD:   There was extensive exploration, your Honour, of the arguments that the tort should not apply in the context of marriage because of the operation and the regime of the Family Law Act and Child Support Act.

GUMMOW J:   They do not seem to be reflected in the judgments.  That is why we are a little bit worried.

KIRBY J:   That is what I meant by saying one feels disquiet of having these sorts of issues in the general courts when disputes between parties to a marriage, including their financial dispute, are ironed out normally under the federal Family Law Act.

MS McLEOD:   Yes, indeed.

KIRBY J:   There may be a constitutional or there may be, at least, an intersection of federal law here.

MS McLEOD:   If your Honour Justice Gummow pleases, there was specific reference to those discussions, pages 57 and 58 of the ruling of Justice Eames.  Those matters were specifically addressed and some considerable time spent in argument on them before the Court of Appeal.

KIRBY J:   Paragraph 58 seems to have Lord Herschell.  What would he know about the Family Law Act of Australia?  With all respect to that distinguished and ancient Law Lord, nothing.  That is Derry v Peek.

MS McLEOD:   It is 57 of the application book, your Honour, which is page 19 of the judgment.

KIRBY J:   I am sorry.

GUMMOW J:   Yes, we see that.  Nevertheless ‑ ‑ ‑

MS McLEOD:   We submit those matters were adequately addressed and fully argued before the Court of Appeal and that this case does not invite, and the respondent does not invite the conclusion in an appeal on this case that the Family Law regime confines the tort.  If your Honours please.

GUMMOW J:   There will be a grant of leave in this matter.  We do not need to call on you in reply, Mr Lucarelli.

MR LUCARELLI:   If your Honour pleases.

GUMMOW J:   What we have said about the broader issues of the possibility of notice of contention no doubt will be taken into account.

The Court will adjourn until 2.00 pm.

AT 12.55 PM THE MATTER WAS CONCLUDED