Press Release - November 2002

A Landmark Decision

By Vivien Mavropoulos, Instructing Solicitor for Liam Magill

On January 31, 2002, Mr. Magill issued proceedings in the County court based on the law of deceit. Mr. Magill alleged that he suffered loss and damages for loss of earnings and use of moneys and also for personal injuries, comprising severe anxiety and depression in consequence of false representations made by Mrs Magill as to the paternity of two of their three children.

On November 22,  2002, His Honour Judge Hanlon of the County Court found that Mrs. Magill had no genuine belief in her assertions that Mr. Magill was the father of the two children or at the very least was reckless as to that belief and awarded $70,000.00 in Mr. Magill's favour comprising:

• (a) $30,000.00 for general damages relating to pain & suffering, loss of enjoyment of life, past, present and future;
• (b) $35,000.00 for past economic loss, constituted primarily by expenses of the children;
• (c) $5,000.00 for future economic loss.

Mrs. Magill appealed to the Court of Appeal of the Supreme Court of Victoria. On March 17, 2005, the Court of Appeal overturned the judgment of Judge Hanlon.

The reasons of the Court of Appeal establish, among other things, the following matters:

1. First, the law of deceit is not confined to a commercial context but rather has general and flexible application. In particular, Eames J said "there is no legal impediment to the bringing of a claim in deceit in a domestic situation between cohabitating couples such as the Magill Case".
2. Secondly, the Court of Appeal rejected the view that such action would cut across the no-fault approach to family law and would open the floodgates to litigation. Eames J qualified this reasoning as follows; "whilst there is good reason to discourage traumatic litigation such as in the case of Magill, it is not the function of the court to apply social considerations so as to deny a party a remedy which is otherwise open to him or her."
3. Thirdly, His Honour Justice Eames upheld Judge Hanlon's finding that the representations were false and were made without any genuine belief or were made recklessly.
4. Fourthly, however the Court of Appeal held that Mr Magill did not rely on the naming by Mrs Magill of Mr Magill as the father of the children on the birth notification forms sufficiently for the purposes of the law of deceit.

In coming to its decision, the Court of Appeal noted that the case should not be seen as a precedent "which was likely to control the outcome of any similar proceedings." In other words, it is open to bring an action based on the law of deceit for paternity fraud.

Mr Magill is seeking leave to appeal to the High Court