Magill v Magill [2006] HCA 51

HIGH COURT OF AUSTRALIA

GLEESON CJ

GUMMOW, KIRBY, HAYNE, HEYDON AND CRENNAN JJ

LIAM NEAL MAGILL APPELLANT

AND

MEREDITH JANE MAGILL RESPONDENT

Magill v Magill

[2006] HCA 51

9 November 2006

M152/2005

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of Victoria

Representation

N Lucarelli QC with J C Paterson for the appellant (instructed by Vivien Mavropoulos & Associates)

H M Symon SC with A J Palmer for the respondent (instructed by Clayton Utz Lawyers)

D M J Bennett QC, Solicitor-General of the Commonwealth with R M Doyle intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Magill v Magill

Tort – Deceit – Paternity – Whether tort of deceit can be applied in marital context in relation to false representations of paternity − Where false representations were made by wife in course of marriage concerning paternity of children born during marriage − Where birth notification forms completed by wife represented husband to be father − Where DNA testing after marriage ended revealed two children of the marriage were not the biological children of the husband − Where husband claimed damages in deceit for loss of earnings, loss of use of moneys, personal injury and pain and suffering − Relevance of history of tort of deceit − Relevance of abolition of inter-spousal immunity in tort by Family Law Act 1975 (Cth) − Relevance of statutory scheme intended to minimise role of fault in determining legal rights and liabilities following breakdown of marriages − Relevance of statutory regime under Family Law Act 1975 (Cth) for repayment of moneys wrongly paid for child support − Relevance of public policy considerations.