Magill v Magill [2006] HCATrans 163 (7 April 2006)

Last Updated: 10 April 2006

[2006] HCATrans 163

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M152 of 2005

B e t w e e n -

LIAM NEAL MAGILL

Appellant

and

MEREDITH JANE MAGILL

Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 7 APRIL 2006, AT 10.06 AM

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 appellant. (instructed by Vivien Mavropoulos & Associates)

MS H.M. SYMON, SC: If the Court pleases, I appear with my learned friend, MR A.J. PALMER, for the respondent. (instructed by Clayton Utz)

MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth of Australia: If the Court pleases, I appear with my learned friend, MS R.M. DOYLE, for the Attorney-General of the Commonwealth intervening, substantially in support of the appellant. The parties have agreed that I should make my submissions to the Court after the respondent’s submissions. If the Court pleases. (instructed by Australian Government Solicitor)

GLEESON CJ: Yes, Mr Lucarelli.

MR LUCARELLI: If the Court pleases. We propose to make submissions in short compass in relation to the matters in the following order, namely, first of all, the public policy issues that arise in relation to the action in question; secondly, an analysis of the issues raised by the notice of contention; thirdly, to look at the constitutional issues that may arise out of that notice of contention and how they impact upon it; fourthly, reliance; and lastly, any issues that may arise in connection to causation.

In our submission, as a matter of public policy, this case is a case which is plainly within the law of deceit and it is a case which there is no reason at all for this honourable Court not to allow the action. Much has been said about the case of P v B. All parties, I think, in one way or another, have referred to it. I do not want to trouble the Court for very long about it, but there is one passage at page 1047 in connection with the public policy issue that we wish to emphasise, if it would be convenient to take the Court to that passage. It is at paragraph (28) of his Honour’s reasons:
 

Mr Smail submitted that the law had withdrawn from the domestic context, and I should follow that tendency in the instant case. He referred to the demise of the torts of enticement of a wife . . . and of harbouring . . . But these cases are examples of the law following current morality and social values, and in particular the autonomy of the individual and the equality of the sexes. They do not suggest that dishonesty in a domestic context should be outside the law of tort. The tort of negligence causing personal injury has not been withdrawn from the domestic context: men and women who drive negligently are regularly held liable to their spouses or cohabiting partners. No one could suggest that the tort of trespass to the person should be withdrawn from the domestic context. It may be questionable whether a duty of care in relation to financial loss is assumed or imposed in a domestic context –

referring to Clerk and Lindsell and Chaudry –
 

but liability for deliberately made dishonest statements intended to mislead is very different. It is a tort of intention rather than one of negligence. For the tort of deceit not to apply as between cohabiting partners would be anomalous.
 

We rely upon that passage as our starting point for public policy.

HAYNE J: His Lordship’s statement includes the expression “intended to mislead”.

MR LUCARELLI: Yes, your Honour.

HAYNE J: Does that not mask the problem rather than reveal it, namely that in a domestic relationship statements are made but is there to be imputed an intention that the statements that are made are to have legal as distinct from social consequences?

MR LUCARELLI: Your Honour, in our submission, they are to have legal consequence because of the nature of the statement in the circumstances. It is obvious that not all statements made between cohabitating couples would have some legal consequence. That has to be conceded. That is the way life operates. But there are some matters which go beyond mere social context. Might we also add here, of course, that there is no issue whatsoever about an intention to deceive. That issue is not before the Court. It has been resolved in favour of the appellant.

So that what is said, if we hook the two matters that we are submitting together, we say that having regard to the nature of the statement, coupled with the intention that it be relied upon – and the respondent did give evidence that by giving the form to the appellant she intended to represent to him that he was the father of the child, and it is a serious matter, we would submit, as opposed to who is to take out the rubbish or whether I have collected the milk from the store for tomorrow morning’s breakfast, or whatever the position may be. This is a serious matter, we would submit, in comparison to a normal domestic matter and, given the appellant’s reliance upon that statement of the respondent that by the form she intended that he understand that he was the father, it is a serious matter.

KIRBY J: Could you just explain to me why you put so much emphasis in your case on the form and in the presentation of the case. I can understand that it makes concrete an issue of representation but, as I said on the special leave hearing, arguably the whole course of conduct until the revelation that the children were not DNA matched to the putative father was one of a course of representation; it was not just this form. I just do not understand why you fixed your case and put all your eggs into the basket of the form, if I can mix my metaphors.

MR LUCARELLI: It appears from reading what did happen before his Honour in the County Court that the view was taken very early by his Honour and imposed on the parties, certainly upon the appellant, that the form was a sufficient representation of paternity in order to make out the representational part or the representational element of the tort.

GLEESON CJ: I would have thought that in most circumstances silence would be a sufficient representation.

MR LUCARELLI: The normal course, your Honour, is that for deceit, as a usual rule, silence is not sufficient unless there be an obligation to speak.

GLEESON CJ: Yes. Why not? In the standard textbook on Fraud and Mistake in the 7th edition the author says:
 

A man who by acts and deeds falsely and fraudulently impresses the mind of another with a certain belief whereby he is misled to his injury is as much guilty of a representation as if he had deliberately asserted a falsehood.

He goes on to point out that when you walk into a fruit shop and order half a dozen apples, you impliedly represent you intend to pay for them. You do not have to say, “I promise to pay the price”.

MR LUCARELLI: Yes. It was the way the case was run. There is nothing to say, of course, that those facts are not present in any event and we have identified in the written submissions - - -

KIRBY J: Except that the case went off on this apparent assumption of the primary judge, either for convenience or for his understanding of the law, that you had to latch onto this document and you have run the case – and there is no notice of contention that suggests there is some other basis for the case and I just wonder if you have not unnecessarily restricted your case because there are a few problems with the form, whereas the course of conduct, and perhaps the silence, and that happening over a long period in a relationship on the face of things seems to be a course of conduct constituting a representation of paternity.

MR LUCARELLI: The facts have been identified, of course, that they were already married at that time and the appellant obviously observed the pregnancy, was at the birth and was not told otherwise, and they are the context in which the form is then presented. But we would urge the Court to look at the matter in this fashion, that is to say, having regard to those matters, coupled with a form being presented where the respondent concedes that the reason for giving the form effectively was to give the appellant to understand that he was the father, not only takes it out of the social context, but also gives it the necessary force that it requires in order for it to be a proper representation that can be relied upon for the purposes of the deceit.

GLEESON CJ: But the emphasis on the form is all a bit artificial, is it not? You have to sign a form like that, have you not? Somebody had to sign it.

MR LUCARELLI: The form has to be signed, but it is not necessary to record that the appellant was the father or, in fact, record any father, and if I could take the Court to the form briefly to demonstrate that that is what the form required. It said, in effect, that if you do not know who the father is, then you can choose the family name of the mother. There was no requirement to actually fill it out in a way which divulged to the authorities that the appellant was the father. The rear of the form explains - - -

KIRBY J: Because there are many people who – and I am not going to use the word “adultery” – knowing of an extramarital relationship and that a child is born to that extramarital relationship, accept the child and become in every full sense the father of the child. I know such people. They exist – large numbers of them.

MR LUCARELLI: Except, your Honour, generally one accepts things like that with full knowledge, or at least some knowledge of what the circumstances are. It is extremely difficult to visit upon a person something of that kind with no knowledge at all that they are not the biological father.

KIRBY J: But there are countervailing considerations, that it is very hard on the children years later, maybe decades later, to have the person they have always regarded as their father suddenly become their non-father. That is why you have to consider where this case leads. It is not just a dispute between your client and the former wife.

MR LUCARELLI: Naturally, we understand that, your Honour. Unfortunately, perhaps it is where science has – sometimes there is the argument that science jumps ahead of the law for a while and then the law needs to work out how it is going to cope with science.

KIRBY J: That is where Mr Solicitor says it should be left to Parliament to work it out – and that is, I assume, what you say – and in the meantime you have to apply the old law of deceit.

MR LUCARELLI: That is, in essence, the submission that is made. Your Honour, we wish to address the issue of the interests of the children when we deal briefly with both Thompson and Doe’s Case which are the North American cases that we refer to.

KIRBY J: Anyway, I have taken you off your course and it may be better for you to stick to that structure of your argument because you will have thought it through.

MR LUCARELLI: Your Honour, may I, while I have the Court considering the form, take the Court to the appeal book at 146 just to understand the structure of what the respondent had by way of options in this case. This is the form in relation to the third of the children, the second of the children in question.

KIRBY J: There is a provision in the Convention on the Rights of the Child – it is Article 3 – which says that every court and every administrative body and every government official dealing with a matter is bound by that Convention – and it is the most widely subscribed to Convention in the world – to take as the starting point that in any problem that comes before a court the best interests of the children. That is international law and Australia has subscribed to it and Teoh said that people in this country have a legitimate expectation that that will be accorded by the law.

MR LUCARELLI: Accepting that, your Honour, interestingly, the provision on custody – parental orders, I think, is the way that they are properly described in the Family Law Act – does refer to the best interests of the children but it does not put it as the foremost consideration. I am not seeking to derogate from what your Honour says, but it is interesting and I can take the Court to the section that I have mind at a convenient point.

KIRBY J: You do that in your own due time, but take it from me that as far as I am concerned it will be foremost in my mind in resolving the rights as between the adult parties to the action in this Court.

MR LUCARELLI: We will seek to do our best to persuade your Honour that all of this will still allow for that. May I go to the appeal book at page 146. This is the rear of the form. The front of the form is at 145. We know that it was filled in by the respondent and handed to the appellant for him to sign and that he read it and he signed it. I think we have made that point. The back:
 

NOTE 1 – CHILD

Family Name: (i) if a person is registered as the father of the

child, the family name of the child should be entered as the same family name as the father (see also Note 4) –

I might go to Note 4 to complete the picture:
 

Where the parents are not married to each other, do not enter particulars of the father unless the form is being signed by both parents –
 

“not married” and “both parents”, the operative words of those are underlined –
 

or by the father with the consent in writing of the mother, or by the father where the Registrar has dispensed with the mother’s consent, or by either parent where they are able to produce a declaration of paternity.
 

So plainly the form draws a distinction between the biological parents in a marriage and the biological parents that are not married. If we then go back to point (ii) under Note 1, it says:
 

If no person is registered as the father of the child, the family name of the child should be entered as the same family name as the mother –
 

So that what we submit here – and this goes to another issue a little later which deals with the disclosure that indeed in filling out one of these forms a mother is faced with the invidious position of having to disclose the extramarital relationship. Indeed, Mrs Magill’s family name, so to speak, is filled in by her as Magill and therefore it could easily have been that if the details of the father had not been filled in as the form provides, then the child’s name would still have been Magill, with perhaps none of the complications that one might have expected if the form asked that the family name of the child in those circumstances, for example, be – and may I use perhaps an antiquated word – the maiden or the premarital name of the mother. Point (iii) then says:
 

HOWEVER, IF BOTH PARENTS AGREE, the family name of the child may be entered –
 

and there is a series of options that are given.

The important emphasis that we seek to place on what the respondent had by way of options is that there was no requirement to actually record that the appellant was the father of the child. She need not have recorded any person as the father of the child. So, in those circumstances, once again it heightens the nature of the representation from an ordinary social context to something of some severity, we would submit – in fact of some seriousness and importance – and to present the form in those circumstances is not, if I may – I do not seek to belittle it in any way, shape or form but it is not like presenting a shopping list for what needs to be purchased or, for that matter, even something a little more serious. It would be akin in a lot of ways to a husband presenting to a wife a guarantee, for example, for signature to secure, let us say, the liability either of the husband or, alternatively, the liability of a company that the husband or even the husband and the wife may both have an interest in. It raises the action of presenting the form and the representation in it well beyond the normal social context, would be our submission.

GUMMOW J: What is the Victorian legislation under which this regulation is made?

MR LUCARELLI: It is the Births, Deaths and Marriages Act 1958 as amended, your Honour. Also the consequences of making a statement of this kind again distinguishes it from the ordinary social context because it has been well understood in our civilisation, not even in our legal system, the importance of the proper identification of a father in all sorts of ways which our law in particular, our legal system, recognises the importance of that. We only need think of wills and trusts in a perhaps unrelated context that make provision in ways that, for example, discretionary powers might be exercised in favour of children of the marriage or children of a particular man or even children of a particular woman. So that not only the law but society fundamental to its roots has placed some very great importance and continues to place some very great importance about fathers as well as in the social context of the marriage as well as outside the marriage.

GUMMOW J: But there was a rule of law, was there not?

MR LUCARELLI: Many moons ago, one may say, your Honour, that they were the one – is that what your Honour has in mind?

GUMMOW J: No, that neither a husband nor a wife is permitted to give evidence of non-intercourse after marriage to bastardise a child: Russell v Russell [1924] AC 687. That was a policy in the law.

MR LUCARELLI: But again, the importance of it is to get to the bottom of precisely who the father is.

HAYNE J: On the contrary.

GUMMOW J: It does not get to the bottom – the opposite.

MR LUCARELLI: Well, in a sense yes, but in a sense no. It is still important to clear the deck, so to speak, to work out where the - - -

HAYNE J: No, it is precisely the opposite. The old rule was the child born in marriage, there was an irrebuttable presumption of fatherhood by the father, regardless of the facts. It might be rebutted I think ultimately on proof of non-access, but these issues were taken outside legal dispute.

GUMMOW J: And you now have section 69P of the Family Law Act and it starts with a presumption, does it not?

MR LUCARELLI: Yes, it does, but that heightens the importance of the representation, we would say.

HAYNE J: That in a relationship one of the conventional bases of the relationship will extend to and include the accepted basis by both parties of parentage of the children is a proposition that I do not find difficult to embrace.

MR LUCARELLI: No, your Honour.

HAYNE J: But the question then becomes whether the law is to apply if that conventional basis is proved – or how the law is to apply if that conventional basis is later demonstrated to be untrue.

MR LUCARELLI: Well, we would submit that the law of deceit is not impacted by that; that it should apply in that situation. Otherwise it would leave no remedy at all, because even negligence, for example, would also be impacted in the same way, and that would seem to be an odd result, in our submission.

HAYNE J: But for many years in the law there was no remedy by the operation of at least two elements: (1) this presumption about legitimacy; and (2) the rule, the fiction, the whatever it was, husband and wife are one and one cannot sue the other.

MR LUCARELLI: Naturally we have moved well away from that.

HAYNE J: I understand that.

MR LUCARELLI: We are light years from where we were in the 1850s, arguably.

HAYNE J: I will not debate that with you.

MR LUCARELLI: No, I understand, your Honour, but at the end of the day plainly the legislature has seen fit to change that in many ways since the 1850s, and dramatically so, now to the early 2000s in the sense that husbands and wives are no longer in some special position that the rest of the community is not. It seems that many of these sorts of presumptions cannot operate in that context, otherwise it would make it very odd that, for example, in section 119 of the Family Law Act the legislature was prepared to permit husbands and wives to take action against each other in the context of both contract and tort, but in effectively permitting that sort of reform - the other difficulty, of course, is that cases such as Russell v Russell that I have been referred to were, as I put it, before, science – and I do not mean this in any disrespect – but science sometimes does jump ahead of the law.

Some would argue that it is ahead of the law a lot of the time, and it is not a criticism because of the manner in which the common law moves, first and foremost, and even Parliament itself; it moves in incremental fashion to meet the needs of new issues arising because science moves ahead. So a case such as Russell v Russell would need to be looked at much more favourably, in our submission, in favour of the appellant’s case, given the way science has gone, that there is now a very clear method of establishing paternity that just would not have been the case back in 1924 or earlier when the presumption obviously operated. So, in our submission, a case such as that cannot be viewed in the context of 2006 or 1999 when these events were occurring, but it needs to be looked at - - -

KIRBY J: There are two big developments since Russell v Russell. One is the technology that you mention and the other is the very great increase in the availability of and exercise of the availability of divorce.

MR LUCARELLI: Yes.

KIRBY J: So they are both social and technological developments to which one would think the exposition of the law has to adapt.

MR LUCARELLI: Equally, sections 119 and 120 are in a sense reflective of the modern world of litigation where it appears that there is obviously a tendency towards permitting greater rights of litigation, rather than lessening them, and that was the purpose of section 119. As Mr Hamer said in introducing the Act in 1968 in Victoria, it seems anomalous that a husband and wife cannot sue each other just simply because of that fact, having regard to what the rest of the community is able to do, and given the reforms that were in place in the 1960s and 1970s, both in England and in Australia, it is very easy to see if you are going to remove a lot of the old restrictions about how marriage is to be dealt with once it comes to a point of dissolution, an unfortunate point of dissolution - - -

KIRBY J: Was the idea behind Russell v Russell an idea of protecting the interests of the children of a marriage or was it a paternal - - -

HAYNE J: Justice McHugh would have said in protecting property, I think, if he were here.

KIRBY J: I was going to ask the second – was it a “paternalistic” view made by male judges protective of the interests of males, husbands, from being sued?

GLEESON CJ: I think the origin of the proposition that husband and wife are one you will find in the Book of Genesis. It has been around for a long time.

MR LUCARELLI: If your Honour pleases.

KIRBY J: There is a lot in Genesis and elsewhere that has been around a long time but it does not necessarily reflect our law.

MR LUCARELLI: Nor the current moral and social attitudes of the community that the law, with the greatest respect to this honourable Court, serves. So that at the end of the day the law needs to be reflective of those moral and social attitudes and if - - -

HAYNE J: Now, you have taken us to 119.

MR LUCARELLI: Yes, your Honour.

HAYNE J: Section 119 must be read together with 120.

MR LUCARELLI: Yes, your Honour, we accept that.

HAYNE J: Thus does it follow from 120 that a deceitful statement made and relied on with financial consequences or other consequences concerning adultery would be actionable or no?

MR LUCARELLI: Other consequences other than deceit as to paternity, is that what your Honour is asking?

HAYNE J: No, no child involved; simply financial or psychiatric consequences.

MR LUCARELLI: We would submit no, in the sense that damages for adultery – well, yes and no. May I answer it this way. First of all, no, because damages for adultery appears to have a wide import – I should say yes, because damages for adultery appears to be having a wide import. No, because damages for adultery, as it may have been understood in 1975 when section 120 was introduced, of course, had been confined to section 44 of the Matrimonial Causes Act and the reforms in England from the 1850s through to, and also in Australia, through to the 1960s had confined damages for adultery to be an action against the person engaged in the adulterous affair – with the spouse involved in the extra marital affair.

HAYNE J: Hence the third party.

MR LUCARELLI: The third party, if your Honour pleases. So that it had been confined; therefore, it is difficult to answer the question whether, for example, if a husband suffers because of the adulterous affair, that that would be caught by the words “damages for adultery”. That is why, unfortunately, it needs to be answered yes and no in that context. Probably at the end of the day the words are to be given the widest import in the sense that it is the damages that flow from the actual extramarital affair itself that are caught is a prospect.

We would say that this honourable Court ought to construe those words as limited to what was the position in section 44 of the Matrimonial Causes Act, that is that it is limited to the type of action against a third party rather than what might eventuate between spouses. But, naturally, we would submit that we do not get to that point of needing to pin our colours to one particular mast or another as to whether it would be open or not in the way that your Honour Justice Hayne has put the question to me. I do not know whether I have answered your Honour’s question.

GUMMOW J: What is the significance of this form you took us to when read with section 69T of the Family Law Act?

MR LUCARELLI: Would your Honour just pardon me a moment while I locate that. At times it begins to resemble a much bigger Act that - - -

GUMMOW J: It is about to get worse, I think.

MR LUCARELLI: Yes. We are always complaining about the taxation legislation. I have it.

GUMMOW J: That seemed to create a presumption for the law generally.

MR LUCARELLI: In the form.

GUMMOW J: Yes. Then there is a procedure for rebuttal under 69U.

MR LUCARELLI: Yes, your Honour.

GUMMOW J: There is a provision in 69VA for a declaration, that “that is conclusive . . . for the purposes of all the laws of the Commonwealth”.” What might those laws be, do you know?

MR LUCARELLI: Probably the Family Law Act first and foremost, your Honour.

GUMMOW J: Yes, apart from that.

MR LUCARELLI: I would have to think about that and have a look, your Honour. We cannot submit on that point.

GUMMOW J: Because we have to consider this common law question in the light of this rather complex statutory regime. That is the way the Canadians would look at it I think.

MR LUCARELLI: We do want to make some submissions about that in terms of Thompson and the case that was referred to the parties in the form of Frame, but our submission in relation to 69T is that it strengthens the position of the representation and makes it an extremely important representation, particularly in the form, because of the consequences that flow from 69T. If the appellant here had not been asked to sign the form or to make a statement in the form effectively by his signature that he is the father, then we would submit that the consequences of 69T would not have been the same. So it is an extremely important form as recognised in a sense by section 69T and again takes it out of the social context in a very important way.

I have referred to Thompson v Thompson which is the Canadian decision of Justice Murray. I understand that copies have now been made available. We found it difficult to get a copy of this in the reported decisions and it was provided, I understand, by the Registry of the Court in Alberta. I do notice that in reading the case there are some spelling errors that are quite odd and I am not quite sure, so we obviously hand it to the Court in the best form that we were able to obtain it. For example, the word “movies” is used several times which is meant to be a reference to moneys. Unless movies are extremely expensive in Canada, it would not make any sense. The reason that we wish to go to Thompson v Thompson is because the facts of Thompson v Thompson are – the legislative scheme is not but the facts of Thompson v Thompson are very, very close to the facts of this case.

KIRBY J: Would you tell me where you are slotting this into the structure of your argument.

MR LUCARELLI: It is in public policy, your Honour, and it is seeking to deal with what his Honour Justice Gummow was touching upon a moment ago, which is that all of these issues need to be considered in the family law context and we cannot resile from the fact that naturally the Family Law Act needs to be considered. We submit that first, as I have already said, Thompson is a case based on similar facts to the facts of this case.

However, unlike Frame, Thompson was based on the tort of deceit among others, but the tort of deceit was central to his Honour’s consideration and it was deceit for paternity fraud. Frame of course was based on other torts, importantly conspiracy. The action in Frame was taken against both the wife and a third party, including for conspiracy, and in a very important way not for deceit, for paternity fraud. In Thompson his Honour found that the tort of deceit for paternity fraud was available. If I may take the Court to paragraph 30 – you will need to rely on paragraphs because there are no page numbers in this version.

GUMMOW J: One starts at 22, does not one?

MR LUCARELLI: Yes, your Honour is correct. His Honour’s consideration of Frame starts at 22 under the heading “Tort Remedies in the Family Law Context” and his Honour opens with Frame and looks at carefully the dissenting judgment of her Honour, I think it is her Lordship - - -

GUMMOW J: Her Ladyship.

MR LUCARELLI: Your Honour, I am indebted. Madam Justice Wilson his Honour describes her as, intermittently as her Ladyship as well, so I am a little confused, but nevertheless. Then his Honour progresses through both the minority decision and the majority decision in Frame. At about paragraph 26 there is a reference to Frame at page 114 which is part of the passage that the Court has directed the parties’ attention to. This is at the top of the page that also has paragraph 27 and there is a paragraph where they are quoting from the majority:
 

The spectacle of parents not only suing their former spouses but also the grandparents, and aunts and uncles of their children, to say nothing of close family friends, for interfering with rights of access –

and we emphasise those words –
 

is one that invites one to pause. The disruption of the familial and social environment so important to a child’s welfare may well have been considered reason enough for the law’s inaction, though there are others.
 

Then his Honour also looks at further, at pages 116 and 117, distinguishing - - -

KIRBY J: No, this is Justice La Forest, I think.

MR LUCARELLI: Yes, it is, your Honour, in the majority. Finally, his Honour dealing with this issue at paragraph 30, having surveyed Frame’s Case at 28, for example:
 

Certainly the focus of the majority was on issues of custody and access and at the end of the day their reasoning was that any judicial initiative in respect of family breakdowns and in particular custody and access issues had been overtaken by legislative action. Also, there are certainly policy arguments as identified by the Court against the utilization of certain torts as a cause of action in many family matters.

29. The position taken by the Defendants is that torts can only be used in the family law context in a limited number of areas such as assault and sexual assault.
 

In a sense, not dissimilar to what the respondent is inferentially submitting here, that the cases that have been identified as allowing, for example, for the recovery of damages for battered wives, if I may use that, or for sexual or battery cases for wives, are, in a sense an exception, so that the respondent is making a very similar point that those cases are an exception and not really a tort of the kind that should be allowed.
 

Counsel for Thompson referred to a number of cases involving various torts which the courts have dealt with such as defamation, fraud relating to improper financial disclosure and civil conspiracy involving fraudulent conveyances of matrimonial property designed to defeat a matrimonial property claim . . . Counsel for Hale –
 

who was the wife in this case –
 

distinguishes these cases primarily on the basis that the defamation related to a false allegation of sexual assault in M.(M.J.) and the cases of Miller and Helmy both involve property and not support.

30. Other than the conspiracy claim, in this case we are not dealing with any of the torts dealt with in Frame v. Smith –
 

and we would submit that that is precisely the position here. We are not dealing with conspiracy or intentional infliction of emotional or physical harm, which were two of the primary torts in Frame. His Honour continues:
 

but rather we are dealing with a specific and clearly defined tort of deceit. This tort is not subject to some of the restrictions placed on the ill-defined or anomalous torts alleged and rejected in Frame v. Smith. The alleged deceit placed Thompson –
 

who is the equivalent of the appellant here –
 

in a situation where he was unaware that another person might be liable to contribute to child support and unable to take steps to seek that contribution. As will be discussed, neither Hale nor Johnston –
 

who is the third party –
 

have shown that there is a statutory remedy available to Thompson by which to obtain retroactive contribution from Johnston respecting support which he has paid for Matthew –
 

who is the child in question –
 

or to recover spousal support paid to Hale which he may not have been required to pay had the truth been known. I find it difficult to imagine that the Supreme Court of Canada in Frame v. Smith intended to prohibit an action based on deceit in the family context. To do so would be tantamount to the Court directing that fraud be condoned in this type of circumstance. Also, this action in large part is about mo[n]ies paid by reason of the wrongful act or acts of others. We are not here concerned with remedies such as custody and access which are unique to family relationships nor are we dealing with the amount of support payable for Matthew, but rather with a question of fraud which may or may not have induced Thompson to pay such support, as well as with what rights Thompson has to recover mo[n]ies so paid from Johnston and from Hale insofar as the spousal support is concerned.

We rely on that paragraph naturally because of the direct symmetry that it has with the submissions that are made on behalf of the appellant.

GLEESON CJ: Can I just take you back to that expression “in the family context”?

MR LUCARELLI: Yes, your Honour.

GLEESON CJ: Can a child sue its parents for negligence in upbringing?

MR LUCARELLI: I do not know of any case where that has been done is the first way to answer that question, your Honour. If I may venture, it would depend on the context. If, for example, the child had been – your Honour has used negligence and that does make my examples very difficult.

GLEESON CJ: Yes, I cannot think of a clearer example of what would ordinarily be regarded as a situation involving a duty of care, in one sense.

MR LUCARELLI: It is a fiduciary obligation first and foremost but, yes, your Honour, it would be difficult not to see that there would be a duty of care because of the vulnerability, if nothing else.

GLEESON CJ: Could a child say, “I’m unhealthy because I wasn’t given a proper diet. You didn’t look after me properly”?

KIRBY J: Too many chips.

GLEESON CJ: If a child cannot sue a parent for negligence in upbringing, why not, unless it has something to do with what is there referred to as the “family context”?

MR LUCARELLI: In our submission, what his Honour is referring to is the family context in terms of the legislative scheme, we would submit, rather than the family context in the broad form, because his Honour is there dealing with the way in which Frame had addressed the remedies that were available for the failure to grant access, which is what was the foundation stone of the Frame Case. In our submission, those words ought not be interpreted as your Honour is doing so, which is to say the family context generally, because it needs to be read fairly in light of what his Honour is seeking to grapple with.

KIRBY J: There is absolutely no doubt that a child can sue a parent in negligence and we see many, many cases where that happens in motor vehicle accidents.

MR LUCARELLI: Yes.

KIRBY J: Now, what is the point of distinction between those cases and the case of poor upbringing, lack of religious instruction or giving religious instruction which later the child thought should not have been given?

GLEESON CJ: Or lack of proper education.

MR LUCARELLI: Yes, one can imagine thousands of examples, and that is readily conceded.

GLEESON CJ: You do not have to have much imagination to think of complaints that children might make to the effect that they were not properly taken care of.

KIRBY J: And this might fall outside the personal injuries litigation limiting actions.

MR LUCARELLI: Yes, it may well, your Honour. I do not think the legislature has sat down and thought about that.

KIRBY J: It might be a new growth area.

MR LUCARELLI: It might be a new jurisdiction, your Honour, but may I answer the questions that have been put this way. Negligence, as this Court has said on many, many occasions, including in Cattanach by your Honour the Chief Justice, is that naturally negligence needs to move in incremental manner very carefully from well-established factual situations, not only as to the duty of care, but the type of loss that is recoverable. It must be both because of the natural interaction between the duty of care and its expansion, and the type of loss that is recoverable. The only way that I can properly answer what is being put is to say that the Court would naturally need to look at the fact situation on an incremental basis.

I am not seeking to be a coward about the answer, but that would appear to be the natural answer, having regard to the way in which the Court has dealt with negligence, certainly in the last 30 or 40 years, including this honourable Court. So that I would not say no, but obviously it would need to be very carefully within the rubric of what the Court has already allowed with that very careful incremental step moving forward. But it would be impossible to say no, that, as his Honour Justice Kirby has put, if the McDonald’s complaint were to be made, and I am perhaps unfairly picking one of the - - -

KIRBY J: I did not mention any company.

MR LUCARELLI: No, your Honour did not mention it. I am interpolating in my own way to say that one of the corporations – in America we know of cases that have been taken in relation to fast food. That is what I had in mind. I did not mean to pick any particular corporation or to attribute that to your Honour. But one can imagine that a child might say, “I went to one of the fast food chains far too often and I am now in a condition that my life is going to be considerably shortened or made terrible by diabetes or whatever”.

KIRBY J: You might be right about this, because once it would have been equally unthinkable that children would sue teachers but such actions have in recent times been ventured and some, I think, have succeeded, certainly overseas.

MR LUCARELLI: Yes. So again the best way to answer it is just simply to say we would need to look at that on a case-by-case basis, as this Court has done with negligence on many occasions. If I might return to Thompson then - - -

GUMMOW J: Was this action a matrimonial cause?

MR LUCARELLI: In Thompson v Thompson?

GUMMOW J: No, this case here within paragraph (e) of the definition. Was the proceeding between the parties to a marriage for an order in circumstances arising out of the marital relationship?

MR LUCARELLI: I am sorry, I am not sure what section your Honour is referring - - -

GUMMOW J: Paragraph (e) of the definition of “matrimonial cause”.

MR LUCARELLI: If your Honour pleases, it is in section 5 from recollection.

GUMMOW J: Section 4(1).

MR LUCARELLI: If your Honour pleases. It does not fit within (a), your Honour, because it is not - - -

GUMMOW J: Paragraph (e), E for Edward.

MR LUCARELLI: Paragraph (e), if your Honour pleases.

GLEESON CJ: I presume “order” there means order of the kind referred to in this Act.

MR LUCARELLI: Presumably so. I cannot answer that.

GLEESON CJ: Consider an apprehended violence order of the kind that is made day by day by magistrates between parties to marriages.

MR LUCARELLI: Yes. Well, one would have to give it some meaning. It cannot just mean any order in the circumstances but, in any event – and this comes to the issue about section 119 and also the constitutional issue, if we ever get to it in a meaningful sense, and that is that in Re F there is statements about what is within and without both the matrimonial power and also section 51(xxii). If the child is outside of the marriage in the true sense of the word, in the biological sense, then Re F; Ex parte F says in effect that both of the paragraphs of the Constitution that could give the constitutional power do not extend to those children, certainly in Re F for the purposes of custody. Therefore one would need to read subparagraph (e) in that context, and that is that it would be limiting the power of the Commonwealth to legislate to make orders only that related to children that were truly biologically of the marriage, having regard to the way in which the constitutional power to date has been interpreted, both in paragraphs (xxi) and (xxii).

KIRBY J: Even if the child is fully accepted and even if that has gone on for 15, 16 years? I mean that seems a very narrow ruling. I mean, people do exist as non-biological but social children of a marriage. I know them.

MR LUCARELLI: Re F did not deal with that specifically and it talks of the exceptions based on adoption and guardianship and does not talk about the matter that your Honour is raising. That is accepted and it is accepted that Re F is now approximately 20 or more years old and it did not have to specifically deal with the issue, but I was merely paraphrasing what the impact of Re F is upon the constitutional power in relation to (e), to say that (e) would have to be - - -

KIRBY J: We are getting a bit lost here. I think we have moved to the constitutional argument.

MR LUCARELLI: Well, it was the only way that I felt that the best answer could be given to Justice Gummow’s question, which is whether (e) would apply to this type of action. Perhaps I did not start by explaining that because this is an action for deceit in connection with a child that is not of the marriage in the true sense of the word, the biological sense, then it is not the type of proceeding that would be caught, or the type of matter that would be caught by (e).

CRENNAN J: How would sections like 69(1) fit within what you are saying – 69VA, 69(1) of the Family Law Act – sections 69VA and 69W?

GUMMOW J: Do these sections rely on a referral of power? They just talk about children, you see.

MR LUCARELLI: Yes, they probably do, your Honour, and, of course, sections 119 and 120 – and I know I keep going back to those – did not rely upon any referrals power when they were enacted, and I venture to say that they probably are not the subject of any referral of power. I do notice that they were introduced in 2000 in the case of VA and W, your Honour, I notice that that was introduced in 1995. At hand I am not able to inform – I would venture to say that VA is probably a referral. I cannot answer for W.

GUMMOW J: Yes, and I took you off your course.

MR LUCARELLI: Have I sufficiently answered your Honour Justice Crennan’s question or have I not done so?

CRENNAN J: May I just ask you one more thing and you may not be able to answer it. Orders of the kind referred to in 69W(1), is that a common procedure or - - -

MR LUCARELLI: I am not able to answer that offhand. Perhaps I can take that on notice and – may I look at 69W(1) while your Honour - - -

CRENNAN J: Subsection (2), for example, provides that:
 

A court may make a parentage testing order:

(a) on its own initiative; or

(b) on the application of:

(i) a party - - -
 

MR LUCARELLI: Yes, your Honour, and may your Honour please ask me the question again because I was just distracted?

CRENNAN J: I was just asking whether you were able to give any indication about whether such applications were common or such orders being made were common.

MR LUCARELLI: There are applications that are made. There are about half a dozen cases that have come to my attention, but I have not looked at them in detail. Most of the orders appear to be refused, but I think there are some instances where the orders are made, but most of them appear to be refused, and in this case, of course, the DNA tests were conducted by consent as a result of court orders that were made under these provisions. Does that assist your Honour?

CRENNAN J: Thank you.

GUMMOW J: I think the answer to the referral of power point is section 69ZE. That indicates, I think - - -

MR LUCARELLI: Yes, if your Honour pleases. Finally, I wish to take the Court to paragraph 58 of Thompson in conclusion of what is to be said on behalf of the appellant in connection with Thompson. At paragraph 58:
 

However, Madam Justice Wilson was not prepared to extend this tort into the family law context.
 

The tort there had been conspiracy. Then they quote from her Ladyship:
 

In light of these comments I would not extend the tort of civil conspiracy to the custody and access context.
 

Then over the page continuing the quote, there is a number of policy matters that were advanced as to why the tort of conspiracy ought not be allowed in that access and custody context. In particular, if I might take the Court about halfway down the next page, it starts with the words:
 

But the paramount concern in extending the tort of conspiracy into the family law context is, I think, that such an extension would not be in the best interests of children. If the tort only applies to conduct in combination it would do little to encourage the maintenance and development of a relationship between both parents and their children. Yet it would be tailor-made for abuse. It would lend itself so readily to malicious use by one spouse against the other. The fact that the action is against not only the ex-spouse but also his or her “friend” may well provide an incentive to the plaintiff to litigate. Moreover, a single “agreement” to deny the plaintiff one visitation would be actionable and the success of that action would depend largely on uncertain evidence of agreement and intention as to which each party might be expected to take a fundamentally different view.
 

A little further down there is a suggestion that the cause of action would be used:
 

as a “weapon” with little possibility of amicable settlement. These concerns are aggravated by the fact that, if the tort of conspiracy were introduced into the family law context, it would be difficult to restrict it to the area of custody and access. Acts which contributed to marriage breakdown would also be actionable as conspiracy and the potential for detrimental impact on the children could be substantial. Having regard to the overriding concern for the best interests of the children, I am not persuaded that the tort of conspiracy should be extended to encompass the claim of the plaintiff.
 

KIRBY J: That is Madam Justice Wilson.

MR LUCARELLI: Yes, it is.

KIRBY J: With all respect to that very distinguished judge, is the way she approaches it in those last two sentences the correct approach? That is to say, the tort “extended to encompass the claim of the plaintiff” as distinct from the tort of conspiracy being a tort of long standing should be taken away from the plaintiff. Does a court extend a tortious right to a person in the society? Does that not belong to the person as a citizen or resident as part of their birthright, if you like, of legal entitlements?

MR LUCARELLI: Yes, your Honour. As we would submit here, if the elements of the deceit are made out, then the cause of action in deceit is available. If there is a remedy to be had as a result of it, then the remedy must follow. So in a sense what your Honour is saying we would respectfully agree with and say that it is either available or it is not. It is not a matter of extending it.

GLEESON CJ: Could one party to a marriage or former marriage sue the other on the basis that the defendant made a misrepresentation to the plaintiff as to his or her wealth to induce the marriage?

MR LUCARELLI: In using misrepresentation of course, there are two possibilities there, the Trade Practices Act or negligent misstatement. The Trade Practices Act would require trade or commerce, and we do not know that we want to get into that. May I answer on the basis of negligence? Is that sufficient, your Honour, or does your Honour want an answer on both?

GLEESON CJ: Let us assume for the moment that it is not trade or commerce. Would an action lie for misrepresentation as to the defendant’s financial means inducing a marriage?

MR LUCARELLI: In inducing marriage?

GLEESON CJ: Yes.

KIRBY J: Or attractive in-laws.

GLEESON CJ: “He told me he was a millionaire”.

MR LUCARELLI: Yes, and in fact the exact opposite was the case and he had millions of dollars in debt, for example.

GLEESON CJ: Yes. Can you have an action for damages for misrepresentation in that context?

MR LUCARELLI: What is exercising my mind in answering your Honour’s question is I went to damage immediately to see how I would persuade this Court that there was a cause of action made out. In other words, by relying on all the elements that I would need to persuade the Court about, I immediately went to damages, the one where I am not quite sure how to characterise the answer if I do not know what damage I am being asked to address. Is it just simply the fact that the person is now married?

GLEESON CJ: It does not require a great amount of imagination to think of a circumstance in which a person might be induced to enter into a marital relationship on the faith of representations as to the circumstances in which that person might live following the marriage. That expectation might be disappointed. Could that sound in damages?

MR LUCARELLI: But negligence, as a general rule, does not allow for disappointment because what - - -

GLEESON CJ: I was talking, I thought, about fraud.

MR LUCARELLI: Fraud, your Honour?

GLEESON CJ: Deliberate misrepresentation.

MR LUCARELLI: Deliberate misrepresentation. I beg your pardon, your Honour.

KIRBY J: “I have a country castle in Kent.”

MR LUCARELLI: Yes, that is just completely false. In our submission, if there was damage that flowed from that misrepresentation, then we would submit that the tort of deceit would be available and would provide for that compensation.

KIRBY J: You might have real questions of causation.

MR LUCARELLI: Yes, and what the loss and damage may be.

KIRBY J: And being believed.

GLEESON CJ: Your answer is, in principle, there is no reason why not?

MR LUCARELLI: Yes. May I conclude in connection with 58 to make some observations about – first of all, to go back to a matter that your Honour Justice Kirby put, it appears that the tort of conspiracy in Canada, from some observations that his Honour makes in Thompson v Thompson, is not considered favourably at all in any context. There are some observations made – and I am not sure that I can put my hand on them immediately, or point to them immediately – to the effect that the law of conspiracy in general is not well received in the Canadian courts.

KIRBY J: Why is that? Is that because of the sort of consideration that Madam Justice Wilson has expressed that it is not apt to allow the law to intrude into that relationship?

MR LUCARELLI: Not just in the context of family - - -

KIRBY J: That sounds like Russell v Russell that you do not get to the point of litigating this issue, it is a sort of immunity from legal intrusiveness.

MR LUCARELLI: I was making the observation more in terms of the law of conspiracy generally, as opposed to the law of conspiracy in the family law context, as it is put,.....starting point. His Honour has to deal with four matters that Madam Justice Wilson put forward and in doing so what his Honour does is he examined – and perhaps my learned junior might be able to find the four points on questions of public policy. If I might move on for a moment and perhaps come back to it.

His Honour in Thompson said, of course, that the tort of conspiracy could not be compared with deceit because of the distinctive features of the application of conspiracy. For example, the fact that you are also bringing in another party and the greater potential for there to be the use of the tort of conspiracy in a more vindictive way than perhaps the tort of deceit itself because you are able to bring in the third party.

KIRBY J: I can imagine that some actions for deceit might be brought in a vindictive way.

MR LUCARELLI: They may, but the potential for the conspiracy to do so where it is possible to bring the third party in without the third party having made a representation to the plaintiff – if the third party made a representation to the plaintiff that “You are the father” and it was a believable representation, and it is false, then it is possible for the third party also to be joined as a party to the deceit, but absent a representation by the third party, the third party cannot be joined in the deceit. But with conspiracy, of course, it requires an agreement of the kind necessary to constitute the tort and therefore it brings about the very natural need to join not only the spouse but also to join the third party.

GLEESON CJ: If a person is induced by a fraud to enter into a bigamous marriage, can that person sue for damages for misrepresentation?

MR LUCARELLI: Again, going back to the tort of deceit, provided the elements are met, we would submit, yes, and the American authorities appear to suggest that that is indeed available.

GUMMOW J: Canada as well, do they not? Graham v Saville (1945) 2 DLR 489.

MR LUCARELLI: Yes, that have been referred to in P v B and by literally all the parties in their submissions. My learned junior has found the passage that I had in mind. It is in paragraph 59 where what his Honour is addressing is four points numbered (i), (iii), (iv) and (v):
 

I do not read the majority’s decision as a blanket approval of Madam Justice Wilson’s reasoning, but rather a finding that there were grave disadvantages associated with applying the tort of conspiracy to the circumstances of that particular case which involved custody and access. When one examines the reasoning of Madam Justice Wilson it would appear that Her Ladyship rejected the tort of conspiracy in the custody and access context for the following reasons:

(i) The Court in Canada Cement LaFarge Ltd. had pointed out that the tort of conspiracy had lost much of its usefulness in the commercial world and survived in the law as an anomaly and thus its use should be restricted.

Then the second point – I apologise, there is actually a second point which is the British Court of Appeal in Mogul Shipping. It is the indentation that has confused my reading. I was seeking to use that point to say that if the general nature of the legal system in Canada is to be shying away from the tort of conspiracy and its use in a commercial context, then perhaps what is being said by his Honour is, of course, if you are saying away from it in a commercial context, why are we now bringing it back in in a family law context? It seems an odd way to approach a tort of that kind. His Honour does deal with that point. At paragraph 60 he takes the first point and he says that it applies. His Honour deals with the second point, which is that:
 

a combination may make oppressive or dangerous that which if it proceeded only from a single person would be otherwise –

and his Honour says at the bottom of that page and the top of the next page:
 

However, with respect to point (ii) the conspiracy alleged in the Statement of Claim, if proven, may well be more oppressive and dangerous than if the defendants singly sought to defraud Thompson, for example, if it were established that Johnston financed in whole or in part Hales litigation with Thompson in seeking both spousal and child support for Matthew.

KIRBY J: Are there any old cases that you have found long before DNA came about where a spouse has sued another spouse or ex-spouse? In the very old days they would have been forbidden by the spousal immunity, but are there any cases in any jurisdiction where deceit has been used as between spouses other than for DNA cases?

MR LUCARELLI: There may be one of the American authorities but I do not have it to hand, your Honour, but I would have to say, in the main, no.

KIRBY J: It is really presented by overriding the spousal immunity and by the presentation of DNA evidence - - -

MR LUCARELLI: Yes.

KIRBY J: - - - and the increase in marital breakdown. Those three social or technological factors have presented us with a new problem.

MR LUCARELLI: It would appear to be so.

KIRBY J: Is it a feasible answer to that problem, if you are focusing on the best interests of the children, of children generally who are born to a marital relationship and are for a time social children of the father, that you, as it were, say it is against public policy, it did not exist before, and therefore we do not extend the tort to such a case, so there is no precedent in old times that did apply to such case, or (b) that we use the, as it were, procedural principle of Russell v Russell and say you do not get to it because there is this either presumption or immunity in the marital relationship that keeps the law out of it?

MR LUCARELLI: Well, your Honour, the first point that we would submit in connection with that is that there is no need for an extension. All the tort of deceit is doing is just simply applying to what happens to be a proof which is now far more available than it ever was and that really is what is bringing about any tension that the Court may be feeling about the interests of the children. May we answer the interests of the children point by going to Doe v Doe? I feel that I may be able to answer your Honour’s question by going to Doe v Doe and the passage we intended to rely upon in that regard, if I may be permitted to do that. That does conveniently conclude what we need to say about Thompson v Thompson, if the Court pleases.

KIRBY J: Did that go on appeal to the Supreme Court of Canada or the Court of Appeal of Alberta?

MR LUCARELLI: The researches we have conducted do not show it having gone on appeal but - - -

KIRBY J: You had better have a look at that just to satisfy us that it did not go on appeal.

MR LUCARELLI: If your Honour pleases, we will make a note of that and we will inform the Court. Having concluded with Thompson v Thompson, we also conclude with what we wish to say about Frame v Smith. We say just simply that, of course, Frame v Smith now needs to be viewed as limited to access and custody and to the way in which the tort of conspiracy interacts and naturally also because of the very special scheme that is in place in Canada. There is not much reliance that can be placed upon Frame v Smith.

Doe v Doe was again a case involving both allegations of fraud and intentional infliction of emotional distress, including negligent misrepresentation, promissory estoppel, breach of contract and constructive trust. One of the arguments that were run was that fraud was not barred by public policy. The Court of Special Appeals of Maryland – it is pages 13 and 14, commencing in the right-hand column of page 13 with the words “We consider”.

GLEESON CJ: Where do we find these page numbers?

HAYNE J: We have 712 A 2d as the report Doe v Doe.

MR LUCARELLI: Yes, it is. At 123 is the – copies should have been provided to the Court this morning. This is the version that we have. I thought that a full copy of Doe v Doe should have been provided this morning.

GUMMOW J: Yes, we have it.

GLEESON CJ: We have it, but we do not have the numbers that you are referring to.

KIRBY J: There are paragraphs. Do you have the paragraphs in your - - -

MR LUCARELLI: No, I do not. 326 is one of the paragraphs that appears on – but these paragraph numbers appear to be for different purposes and they are not actually paragraph numbers. I am not quite sure why this has occurred.

HAYNE J: What is the nearest heading?

MR LUCARELLI: It is about 13 pages in, if that helps in any way.

HAYNE J: What is the nearest heading?

MR LUCARELLI: The nearest heading is “The Best Interests of the Children”.

GUMMOW J: Paragraph [10], page 146.

MR LUCARELLI: It is a lower case bold heading about - - -

GUMMOW J: We have it.

MR LUCARELLI: The passage that I am seeking to take the Court to is “We consider ‘the best interests of the children’”.

HAYNE J: Page 147, column 1, bottom paragraph.

MR LUCARELLI:
 

We consider the “best interests of the children” to be a red herring in the analysis of whether to permit an interspousal suit for intentional infliction of emotional distress, fraud and deceit.
 

GLEESON CJ: Without that footnote I would never have thought - - -

MR LUCARELLI: No, if the Court pleases.
 

Although this sometimes elusive doctrine is usually an important consideration in most family law matters, the counts of the complaint with which this appeal is concerned do not implicate this doctrine. This is not a child custody case, where the appropriate standard is the best interest of the child. See Taylor v. Taylor . . . Here, the children are neither parties nor witnesses in the counts of the complaint at issue here; therefore, the standard does not apply.

We note that in the instant case, there is no question regarding paternity. The DNA tests show that Mr. Doe is not the father of the twins. Thus, contrary to Ms. Doe’s argument, this is not a case in which “it would not be in the child’s best interest to have the blood tests reveal that a man who has been the de facto father in the whole of the child’s life is not the biological father....” Monroe v. Monroe . . . Here, the blood tests have been performed and the results announced; it is a fait accompli.

This may well be a case before DNA, your Honour, given that they are relying on blood tests rather than DNA.
 

In a case similar to the one at hand, where the child’s mother deliberately misrepresented to the plaintiff for eight years that he was the child’s father, the Illinois court rejected the “best interest of the child” as a basis for precluding a suit for intentional infliction of emotional distress. Koelle . . . The Court stated that the “[d]efendant claims that public policy disfavors plaintiff’s lawsuit because ‘intrafamilial warfare’ may be harmful to the child.” The Illinois court concluded, however, that “any harm [the child] may have suffered from this alleged situation would have been caused by defendant.... If anything, plaintiff’s lawsuit seeks to limit the harm caused [and to allow] plaintiff and [the child] to continue their loving father-daughter relationship.” Here, as well, despite Ms. Doe’s allegedly duplicitous conduct, Mr. Doe proposes to maintain a loving and close relationship with the twins, and he has requested permanent custody of them.

Furthermore, the innocent parties in this case, the twins, will not be subjected to any more intrafamilial warfare in a tort action than that which would be present during the companion divorce action. Many of the same factual allegations regarding Ms. Doe’s alleged deception will be presented during the divorce. Because the Court of Appeals has abrogated interspousal immunity in intentional tort cases without mentioning any reservation for cases in which the parties happen to have children, and because we find the “best interests of the children” are not more implicated by the claims before us than similar claims in a divorce proceeding, we find no public policy reason to preclude this interspousal tort suit. As the Illinois Court of Appeals stated in Koelle : “We find that public policy does not serve to protect people engaging in behaviour such as that with which plaintiff’s complaint charges defendant, and we will not allow defendant to use her daughter to avoid responsibility for the consequences of her alleged deception.” Koelle . . . Here, too, Ms. Doe cannot use the twins as a shield in order to avoid potential liability for her allegedly tortious conduct towards her husband.

Naturally we rely upon the reasoning of the Court of Appeal in Doe in a very similar way here. May we conclude on this point as to the interests of the children in connection with Doe in this way. One of the arguments that no doubt would be run on the issue of the interests of the children is that of course if the appellant were to be successful, it would deplete the resources of the respondent and therefore may impact upon the children, and one can understand that argument.

The difficulty with that argument is simply this. Any suit that is brought against any parent in whatever capacity, whether it be a spouse or whether it be a person outside, has the potential to harm the interests of the children because it diminishes the financial capacity of that parent to look after those children. It may affect the inheritance of those children, it may affect the ability of the children to be properly schooled. But the law does not obviously take that into account in considering any normal litigation, whether it be in the form of a commercial piece of litigation or negligence or any other matter, nor does the criminal law necessarily take into account how the financial impact, for example, of the sequestration of proceeds of crime and the like might impact upon the financial wellbeing of children.

So that, albeit that one does not want to belittle the interests of children, what needs to be borne steadily in mind, in our submission, is that it is an easy phrase to bandy around, so to speak, to use a colloquial expression, but when one actually looks at it very, very carefully, what does it mean in light of the economic harm that has been caused to the appellant in this case? It cannot just simply be that a banner is put up at the door of the common law to say the interests of the children are to be taken into account when the economic harm that has been done to the appellant is somehow not only not part of the banner but is swept aside.

HAYNE J: What relevantly are you identifying as the economic harm?

MR LUCARELLI: The economic harm is that this man now suffers from depression. He has taken out of the workforce for a number of years. There is the prospect that he may not be able to return to the workforce for many years, as has been found not only by the doctors that he adduced evidence from, the psychiatrists, but also the - - -

HAYNE J: But consequent upon the injury he is found to have sustained.

MR LUCARELLI: Correct, but - - -

HAYNE J: You are not referring when you speak of the economic consequences to the economic consequences of supporting the child during marriage or subsequently, or are you?

MR LUCARELLI: No, I was confining what I was saying to the damages that were actually claimed here, which was the money that was spent during access, the time that was spent as well that was the subject of the compensation, but the real economic harm that I had in mind was the fact that a member of the community has been taken out of the economic equation, so to speak, both for themselves and for the community as a whole. To just simply say the interests of the children and to be not so much blinded but perhaps to be guided towards that light is leaving a very darkened passageway for the economic harm that has been created by the deceit here.

KIRBY J: I understand that argument and it is a fair argument to put, but on the other hand, experience teaches that when courts, and particularly this Court, in Australia makes decisions, they both solve a legal problem and stimulate proceedings. So we have to keep our eye on the fact that we have to test these propositions with the help of overseas decisions, in my view, the help of international principles, but we also have to keep our eye on the fact that if your client wins in this case, it just does not stop with your client. It would tend to encourage a large number of such cases simply because it gets into the legal culture and then maybe stimulate actions of different other kinds that have been mentioned. That may not socially be a good thing when you are expressing what the common law of Australia is.

MR LUCARELLI: Your Honour, we naturally are very mindful of all the matters that your Honour has put forward and we would not resile from them for one moment. We understand what the obligations of this Court are and the way in which this decision may be used one way or the other and we trust that our submissions on behalf of the appellant properly reflect the sort of sentiments that your Honour has expressed in the sense that we are not just charging in, we are endeavouring on behalf of the appellant to be, as one can, given the social gravity of the issues involved, as even handed as possible, one would hope, albeit it in an adversarial context.

KIRBY J: Where does the land lie in the United States now in the authorities both ways? I get an impression that they tend to favour your arguments.

MR LUCARELLI: Yes, they do because what appears to be the case – and this was pointed out in P v B is that the early cases in the 1980s appear to be going against our case but the cases since then like Doe and Koelle and Miller v Miller and W v W, which we do not need to take the Court to – they are all in our submissions – appear to be going in favour of permitting the action.

GUMMOW J: They have a tort of intentional infliction of emotional harm.

MR LUCARELLI: Which often seems to be very closely allied to the claim for fraud, yes, your Honour.

HAYNE J: The cases in that field of discourse are conveniently collected in an article in (1999-2000) 33 Loyola of Los Angeles Law Review 449 by Professor Linda L. Berger – no doubt you will go home and pull it off your shelves, Mr Lucarelli – and at least my first impression reading it is that the tide may not be necessarily running at least as strongly as you would have us understand. In particular, one element of the cases is consideration of whether, by abolition of the kind we find in section 120 of actions for criminal conversation, damages for adultery and the like, that is the abolition of what the Americans refer to as heart balm actions, the legislature is to be taken as intending to preclude all spousal claims of the kind with which we are now concerned. Now, that seems to be a rather large proposition but it is a proposition that is at least under active consideration in some of the State jurisdictions in the United States.

MR LUCARELLI: We would address that, naturally, by pointing to section 119 and saying it is of very general import, yes.

HAYNE J: As do they. They recognise the abolition of interspousal immunity is to be taken into account in also considering the consequences of the abolition, legislatively, of the so-called heart balm actions.

MR LUCARELLI: Except for the use of the word “torts”. If 119 had used “negligence”, instead of “torts”, there would have been far greater force in which is being suggested by your Honour in discussion, naturally, I understand.

HAYNE J: But what does emerge from such little of the American literature as I have so far looked at is a great struggle in the courts and legislatively with the problem that is presented by facts of the kind with which we are now concerned, which are struggles being resolved in all sorts of ways, including by estoppels, about denying parentage, giving effect to presumptions of parentage, either absolutely or after certain times, but the problem is seen as a difficult one not resolved simply by saying the elements of the tort are made out therefore.

MR LUCARELLI: We understand that, your Honour. That is why we, in a sense, went to the public policy issue first, because we do recognise that these are difficult issues to grapple with. The final point in connection with public policy - - -

KIRBY J: Is the correct approach in the circumstances that Justice Hayne has laid out to say this is new territory, because in the past interspousal immunity and the rule in Russell v Russell forbade it, and so we have a new situation and it is no good looking back on the general law of deceit because that never in the past applied to this sort of issue, and then facing the new situation, it is not appropriate to just apply deceit, which never there applied, and it is better to leave it to Parliament to sort this out and provide for it, if it wishes, and that would be so-called judicial modesty.

MR LUCARELLI: Yes, your Honour, but - - -

KIRBY J: Or is it for us to say we will step in and just apply the old law and let it work its way out and, if Parliament does not like it, they can change it, subject to the Constitution?

MR LUCARELLI: But that would be our submission.

KIRBY J: But that might be called judicial activism.

GLEESON CJ: It might be called Lord Scarman’s approach.

MR LUCARELLI: We would certainly advocate, if the shoe fits, it is to be worn, and if someone says that it is not to be worn, then someone with a greater power, so to speak, can step in – the legislature can step in and can put an end to what might be perceived to be the floodgates argument, which of course was rejected in P v B – it was argued and rejected in P v B – as being not a basis for denying a remedy where a remedy exists.

KIRBY J: You are really adhering to the traditional view, which is that the common law entitlements and rights and actions are your birthright and you are simply asking for it to be applied, having lifted the barriers of interspousal immunity and perhaps Russell v Russell, and therefore the Court is simply applying the general principles of the law of torts, as it now can, and if Parliament does not like that, it can fix it up.

MR LUCARELLI: Yes, in a nutshell. We respectfully agree that that is the way that this honourable Court ought to proceed, because otherwise we just simply submit that there is no way that the Court can resile from the fact that the elements are made out. The Court’s hands, to some extent, are tied because it is assumed that the Parliament knew of the tort of deceit – and it is not a completely impossible proposition, even before DNA, that a person may have admitted that the paternity was not as had been previously represented. I am not just talking about necessarily between a mother and her husband, but it could be any type of situation that one can envisage where paternity fraud might arise, which is another important element in considering whether it ought to apply or not.

May I postulate a position as follows. Mr and Mrs Smith are married. Ms Jones is closely connected to Mr Smith, let us say in a working arrangement, in a working environment. Ms Jones becomes pregnant and Mrs Smith says to Mr Smith, “Is Ms Jones’ child your child?” Mr Smith says, “No, it’s not”. Mrs Smith, relying upon that, continues the relationship. She may have said, “I won’t continue with you if that’s what has happened”. Let us assume for the purposes of the argument that Mrs Smith then finds out that indeed Ms Jones’ child is Mr Smith’s child. Mrs Smith then suffers harm as a result, physical harm or psychiatric harm. That would be a paternity fraud case, in our submission, but not in the married relationship, because naturally it was not a paternity about a child in the marriage; it was the paternity of a child outside of the marriage.

One can envisage why that action would be permitted. If that would be permitted, why is not the current action permissible in the same circumstances where there is a deception about the paternity of the child?

The submissions advanced by the respondent in effect are creating an exception which appears to be prejudicial in the sense that the marriage, by simple fact that you are married, you cannot bring an action, by the simple fact that the child is born to the mother in the marriage, that is sufficient to preclude the action.

GUMMOW J: I think one of the matters your opponent will have to cope with is the social fact that a large number of births are ex-nuptial.

MR LUCARELLI: Yes, your Honour, both conceived before the marriage or during the marriage.

GUMMOW J: Or completely outside marriage.

MR LUCARELLI: Yes, it is a social reality – been a social reality for as long as man and woman have probably existed but it now is a much more exposed reality, is perhaps the way to put it.

GUMMOW J: Yes. It does not run in the American cases. They all trumpet on about marriage, but it is not quite like that out there.

MR LUCARELLI: If your Honour reflects back, even to the very old cases in the 16th and 17th centuries dealing, for example, with the interpretation of wills, many of those were about the uncle and the nephew. If one reads those cases very carefully, that was a very kind or polite way of the court saying an ex-nuptial child and whether it was to be provided for under the will or not. One could identify probably at least a hundred cases in the English reports that have dealt with this issue in one way or another. They were just extremely polite in those days and did not perhaps refer to them in that fashion. It is just the social mores now are such that we do speak of the ex-nuptial child rather freely compared to perhaps even 50 years ago, if I may so venture.

GLEESON CJ: The spousal immunity of which you speak would have applied in the example that you just gave of Mr and Mrs Smith while it existed, that is before the legislation, but it never had any application, did it, to relations between people who were not married?

MR LUCARELLI: No, that is correct, your Honour, but the Mr and Mrs Smith example was given to demonstrate that the child need not necessarily be of the mother who is married.

GLEESON CJ: I understand that point.

MR LUCARELLI: The other one, I am reminded, is of course grandparents and what their position may be and whether, for example, if a grandparent was to be told by, let us say, a son-in-law – let us not even go to the daughter-in-law who may be the mother – but told by the son-in-law that “This is my child”, knowing full well that it is not and the grandparents, because they are told that by the son, are inclined to pay, let us say, for the grandson’s education in the belief that it is truly their son’s son.

GLEESON CJ: The point that you make is that the spousal immunity occupied a much narrower area of human relations than this problem does.

MR LUCARELLI: Yes.

KIRBY J: Do you point to anything in the Court of Appeal’s several reasons which either wrongly or inadequately address the matters that we have been discussing with you during your arguments?

MR LUCARELLI: On the public policy issue?

KIRBY J: Yes.

MR LUCARELLI: No, because what his Honour Justice Eames, who is the central judge – if I might refer to his Honour Justice Eames; it is easier – did accept that the tort of deceit applied in the same way that in P v B it was accepted that it applied. Therefore, we cannot quibble with the way in which his Honour has dealt with that or, for that matter, with sections 119 or 120 in the sense that we may well seek to put it differently on behalf of the appellant. But in essence at the end of the day his Honour, in our respectful submission, applied his mind to those matters correctly and there is no quibble with that. Naturally it is far more useful to have explored it in this sort of detail. It was not explored in that sort of detail below. It is accepted the debate was not quite as vigorous.

KIRBY J: So the error you rely on is in the conclusion on the facts in the particular case?

MR LUCARELLI: Particularly the application of the law of reliance to the facts is the way that we would submit is the – in particular, and allied to that, of course, causation, which in this sort of case appear to be so closely allied that sometimes it is very difficult to see daylight between the two, both as a matter of fact and also as a matter of law, we would submit.

KIRBY J: In a sense, their Honours may have replaced the rule in Russell v Russell with the rule in this case, which is that there is not a presumption or a barrier, but a court will look very, very carefully at the facts in order to make sure that torts of this kind do not too readily apply in particular circumstances. That is an impression I had when I read their Honours’ reasons, because these are very distinguished judges and they came to that conclusion.

MR LUCARELLI: Yes. We would submit, of course, that what the court below did was to look far too – to be far too onerous upon the meeting of the elements of reliance and causation that is justified by either the facts or by the law.

KIRBY J: That may have, as we said at the very beginning of this case, arisen out of the primary judge’s desire to have exhibit A, a document, the smoking gun that everyone talks about.

MR LUCARELLI: Yes, but, as I think I may have submitted to your Honours in the special leave application – and if not, we do so now – at the end of the day what the appellant needs is a representation that is clear and unequivocal to meet the first element, as is usually accepted, the first element of deceit, and albeit that it appears in – whether it is in the birth notification form or some other form at the end of the day is not really to the point. It is the beginning. It is the key representation that is required and it is in black and white, so to speak.

GLEESON CJ: I wondered whether on the assumption that you are otherwise correct and that the tort of deceit is capable of application in this context, it would be appropriate to import into it the kind of control mechanism that exists in relation to Hedley Byrne v Heller actions for negligent misrepresentation, the kind that you see in Evatt v MLC. That is to say that the representation is made on a serious occasion or in circumstances where it is obvious that reliance is being placed for business purposes. I do not use that word “business purposes” to apply literally.

MR LUCARELLI: No, I understand.

GLEESON CJ: In other words, in that area of negligent misrepresentation you deal with the problem that a whole lot of representations are made in social contexts which are never intended to create legal responsibility by that control mechanism.

MR LUCARELLI: Your Honour is correct in that and we would say that we would satisfy most of those types of elements because to talk about who the father of a child is – it is hard to imagine a more important element of that sort of relationship.

KIRBY J: Your question is who the biological father is.

MR LUCARELLI: Yes, I should have prefaced it with that, your Honour. Your Honour is correct. Society treats it as an extremely important matter. There is no doubt about that.

HAYNE J: No doubt it is central to the basis of the relationship between the parties as a relationship of trust and confidence.

MR LUCARELLI: But also for the child, your Honour.

HAYNE J: Just so. But to pursue the question posed by the Chief Justice, to draw on the field of contract rather than tort, and taking Cohen v Cohen 42 CLR 91, particularly at 96, the case about intention to create legal relations in contract as between husband and wife, Justice Dixon described the question as being:
 

if the arrangement which the plaintiff made with the defendant was intended to affect or give rise to legal relations or to be attended with legal consequences.
 

It is that last phrase, “attended with legal consequences”, that I direct attention to specifically. May it be said that the solemn assurance given in a relationship, particularly of marriage, about parentage is important, fundamental to the continuation of the relationship of trust and confidence, but is it intended to give rise to legal consequences in the sense of, “And if you are wrong, I have an action for damages against you”, or is it in truth something that is intended to sound in the relationship between the parties as going to that element of trust and confidence that is at its centre?

MR LUCARELLI: Perhaps if I might conclude that, your Honour, or perhaps only the social consequences that would flow from it.

HAYNE J: Social consequences may embrace many things which are - - -

MR LUCARELLI: Or personal consequences that may flow from it if it is found not to be true, if I may conclude what your Honour is saying.

HAYNE J: Yes.

MR LUCARELLI: We understand that point, but we would also submit that legal relations is obviously not, in the way in which his Honour Justice Dixon, as he then was, was using it, of course, contractual relations. His Honour makes the distinction.

HAYNE J: I understand the difference in the context, but the point I want you to grapple with is whether the assumed misrepresentation that is demonstrated to get a case of deceit off the ground in this context of a relationship between parties to be understood as carrying with it the message, “And if your answer is not right, I am going to the courts”, or is what it carries with it, “If the answer is not right, what lies at the centre of this relationship of trust and confidence is broken”?

MR LUCARELLI: The former and not the latter, for this reason: not because people immediately think, “If the statement is wrong, I will take you to court”. With the greatest respect, that is probably as lawyers would view the matter, but the deluge of obligations that arise upon the person who accepts that they are the father is plainly apparent in the Family Law Act, if nowhere else, if not the Child Support Act, an absolute deluge of legal obligations, none the least of which is to care for the child.

The normal reaction of any person who is told that they are the father is obviously to provide for that child and to believe it and to build an emotional bond with that child as a consequence. It takes it out of the mere – for those reasons, if it was carefully explained to both people, almost in the way that the officious bystander would be standing in the room in an implied term in the contract, if it was explained to both the husband and to the mother that, “If you make this statement, then your husband, if he finds out that this statement is not accurate, may be able to seek compensation from you”, both parties would probably say, if they understood the law to its full impact, that would seem to be sensible and sensible because the husband is embarking upon not only economic but emotional commitment which the husband should have a choice about.

It is because the choice is taken away that, in our submission, those two persons to whom the matter was fully explained, the consequences that may flow from the obligations that the husband is taking on would, in our submission, in all the circumstances, say that is a statement which does impact on legal relations and therefore should have consequences if it is not true. I know there has been a lot of debate about the man or the woman on the omnibus, and I do not want to get into that sort of expression, perhaps, but to ordinary members of the community, if such a thing exists, it is very important that a parent carry out their obligations and, therefore, to not have a choice to adopt, accept and pursue those obligations seems to strike at the very heart of our legal system.

GLEESON CJ: I am only guessing, but it is not the case, is it, that the problem only arises in America in the context of representations of paternity made in a marital situation? To take the example you gave about Mr and Mrs Smith and Mr Smith’s friend at work, suppose the misrepresentation about paternity is made by the friend at work to Mr and Mrs Smith an