Magill v Magill [2005] VSCA 51

Magill v Magill [2005] VSCA 51 | Case summary | Zoe

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2 The reasons for judgment prepared by Eames, J.A. show that this was an unusual case, ultimately turning on representations that were conceded to have been made to the respondent by the appellant's completion and presentation to him of two notification of birth forms naming him as the father of Heath and Bonnie. A worse vehicle could not be imagined for deciding the scope of the tort of deceit. I would allow the appeal and enter judgment for the appellant on the ground that there was no evidence on which the learned judge could find that she intended the respondent to rely on the forms, except for the purpose of signing them and agreeing that the children should be registered with the family name of Magill, or that he did rely on them for any other purpose.[2]

3 Neither the particulars of the alleged representations nor the statement of claim was confined to the appellant's completion and presentation to the respondent

of the notification of birth forms, but they are the only representations that the judge found and tested against the elements of the cause of action.[3] It is true that, in making his findings in relation to the representations made by completion and presentation of the notification of birth forms, his Honour began by saying that they were "[t]he most direct evidence" of the making of the allegation of paternity, but thereafter he treated the representations in the forms as the first element in deceit and continued to concentrate on the forms when he turned to the other elements.

4 At the beginning of her argument Ms Symon pointed out that no notice of contention had been served pursuant to Rule 64.17(5) and, accordingly, that it was not open to the respondent to support the judgment "on a ground, whether of fact or law, which was not decided ... below". Mr Lucarelli endeavoured to overcome that difficulty by arguing that the judge had intended to find a representation of paternity of which the forms were merely the best evidence. I do not accept that his Honour's reasons are to be read that way but, even if they could be, his findings in relation to the other elements of the cause of action relate only to the representations made by completion and presentation of the forms. The respondent would still need to contend that the judgment should be affirmed on the basis of findings that were not made below.

5 Counsel took us to the evidence that the appellant intended the respondent to rely on the representations in the forms. The following two passages, in the cross-examination of the appellant, were conceded to be the high watermark of that evidence. The first was in response to questions by counsel about the form relating to Heath:

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8 This is an appeal against a judgment of a County Court judge who awarded $70,000 damages against the appellant in favour of her former husband. The cause of action was in deceit, the allegation of the respondent being that he suffered loss and damage in consequence of false representations made by the appellant during the course of their marriage as to the paternity of two of their three children.

9 The appellant and respondent had married on 9 April 1988 and they separated in November 1992. During the period in which they cohabited the appellant gave birth to three children. The first child, a son, Arlon, was born on 7 April 1989 and thereafter the appellant commenced an affair with a man with whom she had unprotected sexual intercourse on many occasions over the period from September 1989 to early 1995. On 30 July 1990 the appellant gave birth to a son named Heath and on 27 November 1991 to a daughter Bonnie[6].

10 After the parties separated, the appellant, on 24 November 1992, lodged an application for child support with the Department of Social Security, under the Child Support (Assessment) Act 1989. She named all three children as being those for whom support was sought, and named the respondent as the person who would be "the paying parent". Payments were duly made by the respondent, and the appellant continued to accept them, with respect to all three children, although by 1993 she had a real suspicion that Heath may not have been the respondent's child. It was not until 1995 that the appellant told her husband of her suspicion concerning Heath. When she made this announcement the appellant was ill, having suffered a nervous breakdown, for which she had been hospitalised. The respondent cared for the three children during her illness, and notwithstanding the doubts about Heath's paternity expressed by the appellant, the respondent continued to make payments of child support in favour of all three children. Child support payments were paid from early 1993 until 1999, save for a period of approximately 12 to 14 months between 1996 to late 1997.

11 On 2 August 1999 the appellant consented to DNA testing being conducted with respect to herself and each of her children and the results of those tests were obtained in April 2000, and proved that the respondent was not the father of either Heath or Bonnie. Upon receiving the test results future child support payments were adjusted, and all arrears which had otherwise been owing by the respondent to the appellant were extinguished.

12 On 31 January 2001 the respondent brought proceedings in the County Court claiming damages for loss of earnings and use of moneys and also for personal injuries, comprising severe anxiety and depression. The claim was based on the tort of deceit.

13 In his statement of claim the respondent pleaded two representations, in near identical terms, concerning, in turn, the paternity of Heath and Bonnie. The first representation, concerning her pregnancy with Heath, was said to have been made in late 1989 when the appellant/defendant "stated" to the plaintiff that;

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22 Counsel for the appellant clearly conceded that the appellant had represented to her husband by the forms that he was the father of the two children. The more difficult question is whether counsel must be taken to have conceded only that the statements made by the appellant in the birth forms constituted representations of paternity, and had made no broader concession. In particular, had counsel conceded, as it is now contended by the respondent that he did, that those were merely instances of what constituted continuing or repeated representations of paternity, both by statements and by conduct (and as spelt out in the further and better particulars)?

23 As may be seen, his Honour, in the above exchange with counsel, saw the first issue as being whether the appellant did "ever represent" that the respondent was the father, and concluded that that issue was unarguable because the forms proved that she had made that representation as to both children. Counsel responded that, as to what was stated in the birth forms, he agreed. His Honour then identified the next question as being "what was her state of mind at the time". That suggests that if deceit was to be established it was at the time the forms were completed that the relevant intention had to exist, and, consistent with that understanding, the reasons for decision later focussed attention on the occasions of the form signing.

24 The question of the scope of the concession made by counsel, and the basis on which the case was thereafter contested between the parties and decided by the judge, is fundamental to the outcome of this appeal. Whether the concession thereafter confined consideration of the elements of deceit to an examination of the circumstances surrounding the completion and presentation of the two forms is a matter which I found difficult to determine. If it was so confined then, as I shall discuss, the respondent failed to make out his case, but I entertained some doubt as to whether the parties at trial understood the case to be confined in the way the appellant now contends. Unfortunately the trial judge's reasons do not remove the uncertainty, but I have concluded, with some hesitation, that he did not make a finding of any representation broader than that contained in the birth forms. Having regard to the impact it has on the outcome of the appeal, it is appropriate that I set out the factors which caused me to hesitate before drawing that conclusion.

25 In his reasons for decision the judge commenced by describing the action as being one in which it was "asserted" by the appellant that the respondent was the father of all three children. I take the word "asserted" to mean "represented". His Honour directed himself that the respondent had to prove that the appellant made a false statement either knowing that it was false, or recklessly, intending that the respondent would rely on it, thereby causing damage. His Honour continued (the emphases are mine throughout):

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26 Where, in the first paragraph of the above extract, the judge refers to "the most direct evidence", and in the penultimate paragraph, to "evidence", his Honour must mean that the forms are evidence that the appellant asserted her husband's paternity of the two children. That suggests that his Honour did understand that as to both children the representation (there being one for each of the two children) which was the basis of the action for deceit was, in effect, simply, that the respondent was the father of each child. Thus, proof of the making of that representation may have been provided by various pieces of evidence - both by direct statements and by conduct - but his Honour concluded that one piece of evidence was sufficient, in itself, to prove the representation, namely, that contained in the forms.

27 Ms Symon, senior counsel for the appellant, submitted that the concession at trial, at highest, was merely that the appellant had made a representation of paternity in the forms. No other instance of such a representation was conceded. Thus, she submitted, as the dialogue between counsel and the judge suggested, the critical issues relating to intention, fraud, inducement and reliance fell to be assessed solely by reference to the appellant's conduct and state of mind at the time when the forms were completed.

28 Senior counsel for the respondent, Mr Lucarelli, rejected the suggestion that the respondent's case at trial became confined to consideration of the representations contained in the two birth forms. Nor did he accept that once the concession was made the judge dealt with the case only within such restricted parameters. Counsel referred us to the final written and oral submissions presented to the judge by counsel then appearing for the respondent at trial. The extracts from the written and oral submissions to which we were referred do, indeed, provide support for Mr Lucarelli's contentions as to the scope of the trial, as the case was presented on behalf of the respondent.

29 In the respondent's written final submissions at trial it was submitted that "the representations are proven" by eight separate pieces of evidence, the first of which was "the evidence of completion and presentation by the defendant to the plaintiff of exhibits A and B . . . naming the Plaintiff as the father". The others were the natural effect of pregnancy being announced in circumstances where they were living together as man and wife; the appellant's concealment of her adultery; the concealment of her uncertainty and suspicions as to paternity; her describing them as "our" children; her silence when the respondent acted in the manner of the father of the children; the claim for child support, naming him as the father; the continued concealment of her increasing doubts about paternity.

30 On the appeal, Mr Lucarelli contended that those written submissions demonstrated that the respondent had not relied solely on the forms in proof of his case in deceit. Furthermore, counsel submitted, the oral final submissions at trial had expressly resisted confining the respondent's case in that way. In that regard, counsel for the respondent referred us to passages in the transcript of final submissions at trial[8]. At the start of those passages counsel said:

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31 As the following passages of transcript show, counsel at trial then addressed whether, apart from what was stated in the forms, there had also been representation by conduct. Counsel identified "the fact that . . . the parties were married and living together and a pregnancy was announced in that context, the natural import of that is that it's that couple's child within the marriage situation". Counsel also referred to the appellant's application for child support, her statements to the respondent that they were "our children", the appellant's silence when observing her husband treating the children as his own, and her failure to tell him that she had a lover. All of those matters constituted instances of representation by conduct, counsel submitted. Having made those submissions, counsel then addressed the question whether his client had proved his case in fraud against the appellant/defendant[9].

32 The submissions discussed above suggest that although the judge took the concession to mean that the fact of a representation of paternity had been sufficiently proved by virtue of the forms - being one instance where the representation had been made - the respondent had not abandoned any reliance on evidence of other instances of repetition of or continuance of the same representation. Nonetheless, following his Honour's "ruling" that the representation had been proved by the birth forms[10] the evidence relating to the additional instances in which the representation had been made (as listed in the preceding paragraph) was not explicitly advanced in proof of separate and discrete instances of the making of the pleaded representation, but rather as constituting supporting evidence for the conclusion that when the representations were made in the birth forms they were made fraudulently, and with the intention of inducing the respondent to act to his detriment. Counsel for the respondent did not seek a ruling from the judge as to what the concession of his opponent meant, and in my view the respondent must be bound by counsel's failure to challenge or to seek clarification from the judge as to what was meant by him in closing debate about whether "the representation" was made, by virtue of what was stated in the forms. Although the written submissions had not confined the case to the representations contained in the birth forms, the remark by counsel in oral submissions, quoted above, may well have confirmed for the judge his apparent understanding that it was only as at the time of the making of the representations contained in the birth forms that the remaining elements of deceit fell to be determined.

33 Before us, counsel for the respondent contended that the judge could not have gained that understanding because the basis of the claim at trial was that there was a "continuing" representation of paternity[11], of which the forms were just two instances. However, although the judge held those to provide "the best evidence" of there having been representations of paternity, he made no express findings of fact with respect to any other instances of the making of the representation. In his short judgment the judge focussed attention on the circumstances surrounding the completion of the forms, and did so without stating (save, possibly, very obliquely), what, if any, continuing weight and relevance was to be attached to the other alleged instances of the representation as identified in the statement of claim and/or in the further and better particulars.

34 Counsel for the respondent contends that notwithstanding the focus of his reasons on the birth forms the judge must have regarded the representation (although proved by the forms) as having been more widely constituted than merely in the forms and some support for that contention is provided by the judge's treatment of the psychiatric evidence. The psychiatrists all wrote their reports on the basis of an apparent assumption that there had been what amounted to a continuing or repeated representation. Indeed, they wrote their reports at a time before the further and better particulars had been delivered which, for the first time, identified the representation having been made, in one instance, by the completion of the forms. His Honour quoted Dr Chong, for example, referring to the appellant having "consistently lied to him about being the father of the children". If the case had been limited to consideration of the representations contained in the birth forms then much of the evidence of the psychiatrists might have been objected to on behalf of the appellant on the basis that it was irrelevant, and, thus, inadmissible. We were not told of any such objection having being taken.

35 It is a rather unsatisfactory situation that the judge in his reasons neither clarified how he saw the parameters of the claim - following the concession - nor made findings of fact as to most if not all of the other pleaded instances of the representation. As I shall later discuss, one contingent ground of appeal asserts that the reasons were so deficient as to manifest error, and there is no doubt that the task of this Court has been made more difficult by the limited scope of the reasons.

36 Whatever his Honour understood to be the scope of the concession by counsel for the appellant, he focussed attention in his reasons on the circumstances surrounding the birth forms. It was as at the time of the making of the forms that he assessed whether the elements of deceit had been established. That, however, did not mean that in making his assessment of the evidence for deceit the judge could not, or did not, have regard to events which occurred both before and after the completion of the forms. Even if the representation was intended, by the concession, to be confined to the statements in the birth forms I would not accept the further submission of Ms Symon that the terms of the concession meant that the elements of deceit must be assessed solely by reference to what then occurred.

37 His Honour held that for liability to be established it must be proved that the appellant knew that the statement was false, or that she made it recklessly, and also that she intended that the respondent should rely upon it. His Honour briefly set out the evidence of the appellant as to her belief in the childrens' paternity, "at the time that the assertions were made" (with respect to Heath) and "at the time that she made the representations" (with respect to Bonnie). The use of the plural, "representations", as regards each child, provides some limited support for the view that his Honour was not confining attention solely to the occasions of the signing of the form for each child.

38 His Honour noted that the appellant gave evidence that at the time of the two births she believed the respondent was probably the father of Heath, and that she was sure that her lover was not the father of Bonnie. Her belief as to the paternity of Heath was shaken years later, she said, when she saw photographs of her lover as a child and noticed the strong resemblance to Heath. Remarkably, she said she still remained unshaken in her view that the respondent was the father of Bonnie, notwithstanding the DNA result. His Honour said as to these assertions:

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43 Ms Symon, first, submitted that it was required for deceit that the intention be to induce the other party to enter into some contractual arrangement, yet there was no such circumstance here. That, however, is too restricted a view of the application of deceit. As Professor Fleming has observed, deceit, in its origins, was linked to the inducement of contractual relations by what were later to be dealt with in contract law as false warranties[15]. The link with contractual relations, as an essential element, was eventually severed, so that all that was required in deceit was that by a false representations someone was induced to act to his detriment. Thus, while the most common application of deceit continued to be with respect to conduct which produced contractual and other economic detriment in reliance on the inducements, that was not the only situation to which the tort could be applied. In particular, an action in deceit could be brought where the fraudulent inducement caused personal injuries rather than commercial loss[16].

44 Ms Symon submitted, next, that the tort of deceit does not encompass a representation of the kind and in the circumstances with which this case is concerned. Counsel referred to section 119 and 120 of the Family Law Act 1975. Section 119 provides: "Either party to a marriage may bring proceedings in contract or tort against the other." Section 120 provides: "After the commencement of this Act, no action lies for criminal conversation, damages for adultery, or for enticement to marriage." Although Ms Symon initially submitted that the federal legislation covered the field, and that these proceedings in deceit amounted to a claim for damages for adultery, that argument was not pressed. Instead, Ms Symon contended that the Court ought narrowly confine the ambit of the tort of deceit; it had never previously been held to cover a representation as to paternity in a marriage and as a matter of policy it should not now be extended to that area. The fact that the tort of deceit was not mentioned in s.120 reflected, counsel submitted, the presumption of the draftsperson that such an action as here proposed could not be brought by a husband against his wife. Ms Symon submitted that the court should be slow to extend an action in deceit to relationships between married partners. Such a proceeding would be contrary to the "no fault" philosophy which had long been adopted for matrimonial relationships, counsel submitted. It would be highly inappropriate to attempt to identify, and render actionable, misrepresentations which occurred within a marriage, and which were relied upon only when the relationship broke down, so counsel submitted. Ms Symon submitted that there is ample power under the Family Law Act 1975[17] and by resort to the Child Support (Assessment)Act 1989 to acknowledge and address the situation of children with paternity issues such as arose here. Were the appellant to be held liable in deceit by virtue of her completion of the birth forms then, in effect, a duty of disclosure of adultery would be imposed upon a spouse in any instance where doubt existed in the mind of the spouse as to the paternity of a child. The Court ought be slow to conclude that such a duty arose, Ms Symon submitted.

45 Although no case directly on point was cited to us counsel for the respondent sought support from the decision P v. B[18], in which Stanley Burnton, J., sitting in Queen's Bench Division, ruled on a preliminary question whether the tort of deceit applied as between a cohabiting couple - in that instance, unmarried. In that case the misrepresentation was, as here, about the paternity of a child, and the damages sought were expenses incurred in supporting both child and mother and also general damages for the emotional distress caused by exposure of the deception. Stanley Burnton, J. rejected the contention that deceit could not apply to cohabitating couples. He also rejected an argument that if deceit applied in matrimonial cases it would cut across the no-fault approach to family law and would open the floodgates for discrete proceedings being issued in tort to accompany or compete with family law proceedings. In rejecting the floodgates argument his Lordship observed, obiter, that a married man who wished to contest liability to make payments for a child would be obliged to do so solely in the family law proceedings because it would be an abuse of process to attempt to re-litigate the question by means of an action for deceit[19].

46 Stanley Burnton, J. accepted that in many American States proceedings for fraud could be brought between husband and wife, although he said he did not derive much assistance from that authority[20]. His Lordship concluded that there was no authority which denied the application of the tort of deceit to such a case as was before him, and held that it was a tort which was not confined to commercial contexts, but rather, had general and flexible application[21]. He held that to accede to the arguments for confining the tort would be to deny a remedy in cases where it was needed[22].

47 Whilst there may be good reason to discourage traumatic litigation such as has arisen in this case it is not the function of this Court to apply social considerations so as to deny a party a remedy which is otherwise open to him or her. The respondent's motive for bringing this proceeding is irrelevant. A remedy in damages for a wrong done may provide not merely recompense for financial loss, but also, in the eyes of the claimant, an element of punishment for the wrong done, and vindication of the rights of the party wronged. There is, therefore, nothing unique to the tort of deceit if it was being applied by the representee with motives of personal vindication and of punishment of the alleged wrongdoer[23].

48 Although it was suggested by Ms Symon that an action in deceit has no place in a marriage context, and that its application would be out of step with the norms of contemporary society, it is not difficult to postulate situations where its application might attract broader community support. By way of illustration, Callaway, J.A. queried of counsel, in the course of argument, why a spouse should be denied a right to claim damages for deceit if damage has been suffered by the spouse acting to his or her cost upon a misrepresentation from the other spouse that he or she did not have a sexually transmitted disease?[24]

49 In the United States a duty to inform a partner about an AIDS infection has been recognised, the cause of action being based on negligence or fraud.[25] In Canada a right of action in deceit has been accepted where a plaintiff was induced to enter a marriage ceremony by a false representation that her partner was unmarried, and the court allowed damages which included damages for the adverse health results flowing from pregnancy and miscarriage[26].

50 Having regard to the conclusion I otherwise reach in this appeal it is unnecessary for me to express a concluded view as to the application of the tort in this case, but as presently advised I can see no legal impediment to the bringing of a claim in deceit in circumstances such as are claimed to arise here. Assuming then that the claim has appropriately been brought in deceit I turn to the question whether the elements of the cause of action had been established in this case.

51 The first element is that the representation be false. That is not in dispute, having regard to the concession made by counsel at trial and to the DNA results. I turn, then, to the other elements which the respondent had to establish to succeed in deceit.

Did the appellant hold an honest belief that the respondent was the father of the children?

52 Ms Symon submitted that there was no basis in the evidence for the judge to have made the findings he did as to the appellant's belief concerning the paternity of the two children when she made the representations. This argument, in effect, was that since the appellant was the only person who could know what was in her mind at the time when the forms were completed, then the judge was bound to accept her assertion that she then believed the respondent to be the father of both children. As to such a proposition, Lord Herschell held in Derry v. Peek [27]:

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53 Counsel submitted that in this case his Honour had moved from a finding that the appellant was unreasonable in asserting that her husband was the father to a finding that she did not, therefore, honestly hold that belief. Ms Symon submitted that his Honour confused two propositions. As was made clear in Derry v. Peek[28], unreasonableness of a professed belief may support a conclusion that it was not honestly held, but on the other hand, if the appellant held her belief honestly then her statement could not amount to fraud, no matter how unreasonable it was to hold that belief[29]. His Honour jumped from a finding that the appellant was unreasonable to a positive finding that she had not honestly held her belief, Ms Symon submitted. His Honour failed to address the possibility that she was unreasonable but honest, she submitted. Ms Symon pointed to many passages in the appellant's evidence as demonstrating the honesty of her belief, especially her evidence that her menstrual cycle was irregular and made it impossible to determine with any certainty when conception might have occurred for either child.

54 Ms Symon submitted that his Honour also leapt from a finding that the appellant was wrong in her evidence as to the frequency of intercourse, respectively, with her lover and her husband to a conclusion that she held no honest belief as to paternity when she completed the forms. As to that argument, I observe that it is not surprising that his Honour gave the appellant's evidence concerning the frequency of intercourse close attention, because it was advanced on behalf of the appellant as the primary reason why the judge should find that she held her belief as to paternity honestly. Having rejected her evidence on that question, the appellant's credit was seriously damaged, and whilst rejection of her stated basis for belief did not provide positive evidence, of itself, that she did not hold an honest belief as to paternity, it renders it now more difficult for her to challenge his Honour's adverse conclusion on that issue. Ms Symon submitted that since the lover did not give evidence then the only evidence on the topic as to the frequency of her sexual intercourse with her lover, was that of the appellant, and, thus his Honour was bound to accept her evidence as to that. In my view, the judge was not so bound. He rejected her evidence as to the frequency of intercourse with her husband, which was in opposition to her husband's evidence[30], and he was also entitled to reject her evidence concerning sexual intercourse with her lover.

55 Whilst I agree with the observation of Callaway, J.A. (whose judgment I have read in draft) that a reading of the transcript of the appellant's evidence does not suggest that she was an untruthful witness, that impression can be deceptive. The judge had to decide what was the state of mind of the appellant at the time when she made the representations of paternity. She might have been entirely honest in stating at trial that her honest belief at the relevant time was that her husband was probably the father of Heath and was certainly the father of Bonnie. That, however, might not be the conclusion that an objective observer would reach as to her probable belief at the time the forms were signed, having regard to the information that was available to her and also to the factors which, as she acknowledged, provided compelling motivation for her to put to one side, or to downplay, any doubts she held.

56 In assessing whether the appellant held an honest belief as to the paternity of the children, the judge was entitled to have regard to the totality of the evidence, including events both before and after the forms were signed. Thus, in reaching his conclusion he had regard not only to what he found to be the false evidence of the appellant as to the frequency of sexual intercourse with the two men, but also to the terms of her apology to the respondent in 1995. His Honour concluded that the apology in 1995, about Heath, amounted to an apology for "asserting that the parent of Heath was her husband when indeed he was not, and she knew it". (Were it not so vague, that could amount to a finding of fact as to one other instance of the making of the representation, namely that, as alleged, the appellant had announced to her husband her pregnancy on each occasion with "our" child).

57 His Honour must have rejected the appellant's evidence about the uncertainties created by virtue of her having an irregular menstrual cycle, because he held that she must have been able to determine when Bonnie was conceived. Whilst Ms Symon argued that it was not open to his Honour to reject that evidence, given that it was not expressly challenged in cross-examination, its acceptance did depend on the acceptance of her credit, which was a matter for the judge to assess, but if the evidence was rejected as false then it is unfortunate that his Honour did not discuss it, at all, in his reasons.

58 In his reasons for decision the judge did not cite Derry v. Peek, expressly, but the case had been referred to him and he obviously had regard to the principles there stated. In analysing the conduct of the appellant it seems to me that his Honour was not blurring the difference between an unreasonable but honestly held belief, on the one hand, with a fraudulent belief, on the other, but was in fact applying the principle stated in the following qualifying statement of Lord Herschell[31]:

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59 The appellant's evidence in cross-examination might have been taken as demonstrating that at the time of the representation she displayed a recklessness consistent with her lacking the requisite honest belief in the truth of her assertions as to paternity. We were referred by counsel for the respondent to many extracts from the appellant's evidence. She said that from 1993 she had a "real suspicion" that Heath was not the respondent's son but that she did not tell the respondent of her suspicion until 1995 (when she then held a "strong belief"), and she had continued to accept child support payments despite her uncertainty. She acknowledged that when she became pregnant with Heath, "It was a stressful situation . . .[A]s I said, I had an uncertainty but still thought it was going to be my husband's child and the easiest way for me to deal with it was to simply block it out"[33].

60 His Honour's findings were precisely stated. He found, first, "I am of the view that the evidence points very strongly in favour of the conclusion that she did know that her husband was not the father of either of the children", but he added that even if that were not so then the evidence pointed to the conclusion that when she filled in the forms "if she did not know for a positive fact that Mr McGill was not the father, she at least was being reckless as to the truth of her assertion, that he was, and had no genuine belief in it"[34].

61 His Honour further found that it was "impossible to conclude that she could have had any real belief in her assertion to her husband as to Bonnie's paternity", and held that "she must have known" that the respondent was not the father, and concluded that, "At the very least she has been so reckless as to not have any genuine belief in the truth of the assertion at all"[35].

62 I have carefully considered the arguments of Ms Symon. This was a case in which the assessment of the credibility of the witnesses was critical. A finding of fraud ought not lightly be made, but whilst strong persuasion is required the standard of proof remains the balance of probabilities[36]. In the end, whilst acknowledging that the appellant's evidence, on transcript, suggests that she was honest in her account at trial, in 2002, as to what she believed and intended at the time of these events, I am not persuaded that his Honour's reasoning was flawed or that his finding as to the state of belief held by the appellant was unreasonable or not supported by the evidence. His Honour plainly based his conclusion on findings of credit, and in my opinion, this is very much a case where full weight has to be given to the advantage that a trial judge has over an appellate court when assessing questions of fact. In the absence of demonstrated error his Honour's findings as to

the state of the appellant's belief when she made the representation ought not be overturned[37].

63 A discrete complaint made by Ms Symon was that his Honour did not consider separately the evidence as to the appellant's state of belief with respect to each child. Ms Symon submitted that the evidence disclosed that there were far fewer occasions of intercourse with the appellant's lover at the time of the conception of Bonnie, and the uncertainty produced by her irregular menstrual cycle made her belief even more understandable as to that child. As to that complaint, it seems to me that even though the appellant said she was more confident - indeed, sure - about Bonnie's paternity, the case was conducted on both sides on the basis that the outcome would not differ as between the two children. Although the judge did not deal separately with the evidence, to any significant extent, it is clear that he rejected the appellant's account as to her belief concerning the paternity of both children.

Was it a representation of fact?

64 Although pleaded as a statement of fact in this case - to the effect, "you are the father" - it was submitted that such an assertion could be no more than an opinion. However, even if it was to be regarded as a statement of opinion it would still constitute a material misrepresentation, since the fact that the appellant was also having unprotected sexual intercourse with another man, at or about the time of conception in each case, was known only to her, and her statement of opinion implied that she knew facts that justified her opinion[38]. A statement of belief as to paternity would be capable of constituting deceit in circumstances where what is withheld, namely, the fact that regular unprotected sexual intercourse had been conducted with another man, rendered the statement at best a half-truth, and amounted to a misstatement of belief or opinion[39].

65 In any event, the concession made by counsel, in my opinion, was that a representation of fact had been made, and the appellant ought be bound by that concession.

Did the appellant intend the respondent to rely on the representations?

66 In O'Doherty v. Birrell[40] the Court of Appeal held that the trial judge had correctly identified the elements of an action in deceit as being:

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67 The Court cited Krakowski v. Eurolynx Properties Ltd.[41] as the source of that proposition, but nowhere in that judgment can the italicised statement be found, and no page reference is given to a passage in the judgments in Krakowski. In the joint judgment in Krakowski Brennan, Deane, Gaudron and McHugh, JJ. held that it was not necessary to establish that the representor set out deliberately to induce the representee to act on the representation: his motive being irrelevant once fraud was proved[42]. One issue in Krakowski was whether the representor (through its agents) intended to make, or was conscious of making, the false representation. The Court held that such a finding was open on the evidence.

68 Ms Symon submitted that there was no evidence that the appellant intended anything more than that she comply with the legal requirements to complete the statutory forms. It was said that the appellant's only intention was to complete a bureaucratic procedure, and if there was an intention to make a representation then it was made to the Registrar, not the respondent. It was submitted that the respondent had failed to prove that the appellant held any additional intention, in particular, an intention that the respondent rely on anything stated in the forms. If she did hold any intention other than merely compliance with a bureaucratic procedure, then it had not been proved that she intended that the respondent would suffer a detriment, so Ms Symon submitted.

69 Although Krakowski does not seem to provide support for the statement in the italicised passage from O'Doherty v. Birrell, cited above, that statement does gain support from other sources. The learned authors of Spencer Bower's "Actionable Misrepresentation"[43] state that "the representor must intend to induce the particular representee, or a class to which he belongs, to act on the representation in the way he did"[44]. Further support for the statement in O'Doherty v. Birrell is provided by Professor Fleming, who opined that a fraudulent misrepresentation is not actionable "unless made with the intent that the plaintiff should act upon it as he in fact did".[45] Additionally, Fleming stated that to be actionable the representation need not have been made directly to the plaintiff, provided that he was intended to rely upon it, or he was of a class intended to rely on it[46].

70 My tentative opinion is that the only intention that must be established is that it be intended that the representee should rely upon the representation: see Peek v. Gurney[47]. If he did so rely, to his detriment, then damage suffered as a result of his reliance on the representation would be recoverable. The object or motive for making the representation was irrelevant. In Derry v. Peek Lord Herschell held that :

[63]

71 The requirement as to intention was identified in wide terms by Lord Herschell in Derry v. Peek[49]. His Lordship held that what was required was that the falsehood be told "intending that another shall be led to act upon it as if it were the truth", even if it was not intended that he thereby suffer any injury. His Lordship also cited with approval a statement from Lord Tenterden in Polhill v. Walter[50] who held that it was enough that the untrue statement was intended or was calculated "to induce another to act on the faith of it in such a way as that he may incur damage, and that damage is actually incurred". In Henville v. Walker[51] McHugh, J. stated the requirement thus: "If the defendant intended the person suffering a detriment to act in the general way that he or she did, the common law will invariably hold that a causal connection existed between the conduct and the detriment".

72 In this case the way the respondent acted was to continue to conduct himself as the father of all three children. In his evidence the respondent said that had he been told the truth as to paternity he would have ceased to provide financial and emotional support for the two children.

73 Ms Symon submitted that, whatever be the formulation of the required intention, the respondent in this case had to prove that the appellant intended, specifically, that the respondent rely, at all, upon the representations contained in the two forms. She submitted that it had not been shown that that was the intention at the time the forms were completed.

74 It might have been presumed that in most, if not all, of the many other pleaded instances whereby the representation of paternity was said to have been made one intention of the appellant must have been that the respondent rely on the representation that he was the father, but the judge made no findings that other instances of the making of that representation did occur, at all.

75 However, if, as the appellant contends, the only relevant intention was that accompanying the moment when the forms were completed and presented, in my opinion it was open to the judge, when having regard to the totality of the evidence, to reject the appellant's evidence that she did not really turn her mind to the significance of the forms but merely treated it as a bureaucratic procedure. The judge found that when the appellant signed and presented the forms to the respondent, and thereby made what is, at least, the conceded representation, she did so "intending that the plaintiff should rely upon it"[52]. That finding was open to the judge, in my opinion, and although he apparently later confined the extent of reliance by his statement in his reasons that by her representation in the forms "She intended Mr Magill to rely on it, as indeed he did, in consenting to the naming of the children Magill"[53], it seems to me that his Honour must have concluded that the appellant's intention went further, and extended to the respondent incurring expenses as the father of the children. If his Honour did not so conclude then the claim for damages could not have succeeded.

76 Thus, as to the element of intention, I conclude, therefore, that the only findings made as to the intention of the appellant in making the representation of paternity relate to the statements in the birth forms. As to that finding, it was open to the judge to conclude that her intention at that time was, in part at least, to induce the respondent to act on the representation therein made that he was the father of each child.

77 I turn, then to the next element that had to be proved.

Was the respondent induced to act on the representation?

78 Not only must the appellant have intended that the respondent act in reliance on the representation in the forms, he must actually have done so.[54]

79 This is a more difficult question, and its answer ultimately turns on the question of the basis on which the respondent finally sought to make his case against the appellant, having regard to the concession of counsel for the appellant at trial.

80 The trial judge found that the appellant intended that the respondent rely on the representations of paternity contained in the birth forms, and he also found that the respondent did rely on those representations "in consenting to the naming of the children Magill"[55]. That latter finding must have been drawn by the judge as an inference, given that the respondent did not expressly say as much in evidence. Later in his reasons the judge found that the respondent was "reliant on the deceit" when making payments up until late 1995, but that thereafter he was not so reliant[56]. The "deceit" identified by the judge in that instance might have been intended to embrace a broader, continuing, representation of paternity, rather than being confined to the representations contained in the forms, but the finding is not sufficiently precise to be confident as to that.

81 Ms Symon submitted that whether the representation was treated as being confined to the birth forms or as being a continuing one the respondent did not rely on any representation of paternity in supporting the children but, rather, he relied on the absence of any contrary statement. Counsel submitted that the respondent conducted himself and expended monies on an assumption that he already held, namely, that he was their father, that being induced by virtue of the entire matrimonial relationship, and the silence of his wife as to her adultery, not by any representation by his wife. That contention gains some support from the evidence of the respondent, or the lack of evidence, as to the impact upon him of the representations in the forms.

82 The respondent did not give evidence that the completion of the forms induced him to do anything. Rather, his evidence was that it was his belief that he was the father that caused him to provide the financial and emotional support for the children, and that his belief in that respect was based on the whole situation of being in a marriage and his ignorance that his wife was conducting an affair. He said that had he known their paternity he would not have maintained the two children, but that evidence was not related to reliance by him on the contents of the forms.

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

84 As I shall next discuss, however, even if I were to conclude that the respondent's reliance on the representation in the forms for the purpose of naming the children was sufficient reliance to constitute that element of the tort of deceit, that would not be enough to produce a causal link between the representations in the forms and the losses and damage suffered, and the claim would founder on the rocks of causation, even if it had not first failed as to the element of reliance. The outcome might not have been the same, however, if the claim was based on a broader representation than that contained in the forms and if it was established that the respondent did act to his detriment on that broader representation, but in my view, and given the absence of a notice of contention, even if it was accepted that the respondent had conducted the case on that basis, the absence of any finding as to reliance upon and detriment flowing from a broader representation would be fatal to the respondent's prospects on the appeal.

85 The respondent, therefore, failed to establish that in incurring any expenses or in otherwise acting to his detriment he was induced by and relied upon the truth of the representations contained in the two birth firms. Having failed to establish that essential element of reliance, the claim failed. Although that conclusion is enough to dispose of this appeal, it is appropriate to address the remaining elements of the respondent's claim, including the question of damages.

Causation, remoteness and measure of damages

86 The judge assessed damages at $70,000, comprising $30,000 for general damages relating to pain and suffering, loss of enjoyment of life, past, present and future, and for past economic loss, constituted primarily by expenses of the children, he awarded $35,000. For future economic loss he awarded $5000.

87 It is convenient to address causation and damages together.

88 The appellant contended that the respondent had not proved that he suffered loss and damage by virtue of any representation as to paternity. Rather, it was by virtue of disclosure of his wife's adultery and discovery of the paternity of the two children that he suffered adverse health consequences. In other words, whether or not any representation had been made (whether in the forms or more broadly) the damage would have been suffered once the truth about adultery and paternity was discovered. Ms Symon cited a statement of Lord Hoffman in Banque Bruxelles Lambert SA v. Eagle Star Insurance Co Ltd[57], as to the difficulty of quantifying damages and as to causation in deceit, in that_:_

[65]

89 Lord Hoffman's analysis in that case focussed attention on the extent to which the consequences suffered by the representee were occasioned by the fact that the representation was wrong, rather than on the question whether but for the representation the losses would not have been suffered by the plaintiff[58]. However, the issue in Australia is regarded as being, more simply, one of causation[59]. The specific deceit which constitutes this tort, that is, the representation of paternity, need only be a cause of his injury, loss and damage; it does not have to be the sole cause for it to be compensable[60]. Therefore, the appellant would be liable in deceit for all damage that flowed directly from the fraudulent misrepresentation (even if other factors were also direct causes of the loss), but not for losses caused by some other or supervening cause[61]. Put another way, where two or more factors contribute to the damage suffered any one factor is legally causative if it materially contributed to those consequences[62].

90 Where the fraudulent misrepresentation can be said to be directly responsible for only some of the damages suffered, but not all, then the judge must make a reasonable assessment of the extent to which it was the deceit which caused damage[63].

91 The judge directed himself, correctly, that he could only award damages for what the respondent had suffered by virtue of the misrepresentation. In particular, he was not to receive damages for his ex-wife's adultery. The judge rejected a claim for exemplary damages, but concluded that the deceit of the appellant "has caused considerable damage to the life of her former partner", and awarded $30,000 for that component of damages.

92 The respondent suffered a psychiatric condition of considerable severity caused by a number of factors, primarily the break down of the marriage and the stress associated with Family Court proceedings and what he regarded as the unreasonable attitude of the wife to child support and financial arrangements. Dr Chong said when he first saw the respondent in 1999 he was suffering severe depression, later made worse by the DNA reports in April 2000. Dr Kornan and Dr Cole also confirmed the severity of his psychiatric condition. It is unnecessary to elaborate on their evidence. That his condition was severe was not a matter of dispute.

93 In my opinion, and subject to considering whether it was a confined or continuing representation, the evidence justified his Honour's finding that a sufficient causal connection between the respondent's psychiatric illness and the misrepresentation of paternity had been proved, having regard to the psychiatric evidence contained in medical reports and supplemented by the evidence of Dr Kornan, Dr Cole and Dr Chong. Furthermore, although the appellant's misrepresentations were not the direct cause of all of his mental illness there was evidence from the psychiatrists that a component of the psychiatric condition could be attributed expressly to the misrepresentation about paternity.

94 The evidence disclosed that the discovery of his wife's adultery and the paternity of the children were more major causes of the respondent's mental illness, rather than the fact that his wife had misrepresented the paternity of the children. That latter matter, however, was not excluded by the expert witnesses as being a contributor to his psychological injury. In his report of 20 August 2002, Dr Kornan, whose evidence the judge accepted, said:

[68]

95 In a subsequent report Dr Kornan opined that 60% of the psychiatric condition could be attributed to the marriage break-up, 20% to having to cope on his own and on the financial pressures relating to maintenance, and, "I do feel that it is an aggravation to his psychiatric condition with the news that the alleged fraudulent misrepresentation, as I understand the situation has occurred, and this then adds to the extra 20% so to speak."

96 Dr Chong thought that the respondent's prospects of returning to full time work were poor. Dr Cole thought it unlikely that he could return to work within six months of the completion of the proceedings. Dr Kornan thought he may return to work but would require medication for another three to four years after completion of the case.

97 The judge accepted that the respondent's condition would improve but noted that he had been out of work for some years due to his condition and would remain on medication for years to come. He found that the respondent had suffered severe depression and a major anxiety disorder.

98 His Honour was entitled to accept the psychiatric evidence, and expressly said that he was awarding damages only for the aggravation of the psychiatric condition caused by the misrepresentation as to paternity. In submissions to the judge counsel for the respondent sought $100,000 under this head of damages, and the appellant's counsel submitted that no more than $20,000 would be appropriate (whilst maintaining that no damages ought to be awarded).

99 I am not persuaded that there was error in the way in which the judge assessed damages under this heading, and the figure of $30,000 has not been shown to be manifestly excessive, in my opinion.

100 As to the damages awarded for economic losses, the primary complaint was that his Honour did not sufficiently set out how he arrived at the sum, what its component parts were and on what basis the sum was said to be justified. In fact, of the $35,000, $10,000 was related to time taken off work after the births of each of the two children. That sum had been quantified in evidence which had not been challenged below, and it was open to the judge to award it. As to the remaining $25,000, the judge awarded that sum for expenses incurred for the two children over the many years before their paternity was resolved. His Honour stated expressly that he was not, in effect, refunding child support payments or adjusting those payments. The sum he awarded was for additional financial support provided to the children.

101 The judge rejected evidence of an economist who was called to give evidence on behalf of the respondent but having concluded that there was, indeed, loss which fell under this heading had to do the best he could in quantifying it. He cited Victorian Stevedore Pty Ltd v. Farlow[64] for the approach he was adopting, but that case is not to point. More probably his Honour was adopting the broad brush approach discussed in such cases as Enzed Holdings Ltd v. Wynthea Pty Ltd[65]. As was made clear by Brooking J in JLW (Vic) Pty Ltd v. Tsiloglou[66] the fact that the court can be confident that some damage was caused would not be sufficient justification for an assessment to be made when there was so little evidence that the court could not make a rational assessment of damages. However, and to apply the dichotomy discussed by Brooking, J., the present case, falls not within the category of cases involving "guesswork", but as one permitting rational assessment, albeit with some uncertainty.

102 There was evidence on which the judge could make an assessment of damages. Although in his reasons his Honour did not elaborate on the way in which he calculated this sum, there had been evidence given on the question[67] and the complaint primarily now made is not that the sum was excessive and could not be supported on the evidence so much as a complaint that more elaborate explanation was not offered. The judge did make it clear that he was conscious of the need to establish causation for any claimed damage. He rejected a claim for damages with respect to expenditure on Heath after 1995, because the respondent by then knew of the doubts about paternity, and he held, therefore, that the respondent's expenditure on Heath was not thereafter caused by the misrepresentation.

103 One additional argument was that any sums allowed the respondent for expenses incurred ought to be offset by reason of the benefits he gained from the affection and companionship he gained from the children before he discovered their paternity. Such an argument does not seem to have been made to the judge, but in any event, the notion that there ought to be an offsetting of a damages award in a not dissimilar situation did not find favour in the High Court in Cattenach v. Melchior.[68]

104 The allowance for future loss of income was very small, and no complaint was made as to that sum.

105 I am not, therefore, persuaded that had the appellant's other grounds of appeal failed the sum awarded for damages was so disproportionate either in total or as to its component parts as to have justified interference by this Court[69].

106 As to the issue of causation, we must, once again, consider whether the claim is based on the misrepresentation contained in the birth forms, or is to be regarded as a false representation more generally made, both by words and conduct, and over a longer period than merely the occasions of the completion of the forms. If the representation is confined to the contents and presentation of the forms then, in my opinion, the evidence could not have supported a finding that it was those specific instances of the representation that produced economic or psychological damage. If however, the case is considered on the assumption that the claim was based on there having been a broader continuing representation of paternity then, in my opinion, it would have been open to the judge - accepting the evidence of the psychiatrists, referred to above - to conclude that his reliance on the false representation was a cause of the respondent suffering the loss and damage which he claimed. As I have said, however, the claim was not clearly advanced on that broader basis and the judge's findings were confined to the causative effect of the representations in the birth forms. Those findings, so confined, could not be supported on the evidence.

107 Thus, the respondent failed to establish that the representations in the forms were a cause of his loss and damage, and the contrary finding by the judge was not supported by the evidence. If the claim was based on a broader representation then whilst causation might have been capable of being established, the judge did not make any finding which would support his judgment on that basis.

The adequacy of the judge's reasons

108 In the event that the appellant failed to make out her other grounds of appeal, Ms Symon relied upon a ground asserting that the reasons of the judge were inadequate in that he did not set out, adequately, the evidence on which he based his findings. Having regard to my conclusion that the appellant must succeed in the appeal, this ground would no longer be pursued by the appellant, but in the course of argument, counsel for the respondent themselves submitted that if the appeal were to succeed because the judge failed to make findings relevant to what they contended was the broader basis for the claim advanced on behalf of the respondent, then there ought to be a re-trial, because the deficiencies in the reasons had denied a fair trial to the respondent.

109 A notice of contention raising that complaint had not been filed by the respondent, and, thus, that issue was not before the court from his perspective, and was not fully argued on the appeal. Notwithstanding that the issue is not, therefore, before the Court on behalf of the respondent, I think it appropriate to make some comment on this contention.

110 The reasons in this case were delivered only three days after the judge had reserved his decision. The transcript of evidence was not yet available and the reasons were delivered orally and were not as elaborate and precise as would be expected of a reserved written judgment. Whilst the judge could not be expected to elaborate on all of the evidence he relied on, in the course of resisting the appellant's other grounds of appeal counsel for the respondent referred us to a body of evidence which was not specifically referred to by the judge but which, if accepted, did lend further support to his conclusion as to the lack of credibility of the appellant's account as to her belief and intentions. It was not by reference to any defects in the judge's findings as to credit, however, that the appeal, in my opinion, must succeed. The appeal succeeds because the judge's findings were related only to the representations contained in the birth forms, and they were insupportable with respect to the elements of reliance and causation in that regard.

111 The appellant's ground of appeal raised the question whether the reasons were so inadequate as to deny to the appellate court the ability to review the decision[70]. No longer does the appellant wish to so contend, but, ironically, the respondent seeks to now so argue. If the reasons were inadequate in confining the case to the representations contained in the forms in circumstances where the respondent did not intend that the claim be so confined, then, curiously, it is the appellant who was the beneficiary of that defect in the reasons. I am, however, persuaded, that the case was confined in the way the appellant contends, and once so confined the appeal must succeed.

112 As I earlier discussed, the submissions of counsel for the respondent, at trial, failed to clearly articulate or press a claim based on a continuing representation, as is now contended to have been the basis of the respondent's case, and no findings have been made by the judge that would support judgment for the respondent on any other or broader basis than the basis on which the judge, wrongly, decided the case in favour of the respondent. In my view, unsatisfactory as the situation might be, as to the only basis on which the case was clearly both argued and decided the evidence can not support the respondent's judgment, and the appeal must be allowed.

113 I have given consideration to the contention of counsel for the respondent that it was only the judge, and not counsel, who understood the case to be confined to the representations in the birth notices, and that if he failed to make appropriate findings which would have established the case on the broader basis (which they contend was never abandoned) then the trial was fundamentally flawed and there ought be a re-trial. As I have said, no notice of contention has been filed[71] to raise such a challenge by the respondent, but there are more substantive reasons why the contention should be rejected. Whilst accepting that the judge did not himself seek to clarify the basis of the claim, following the concession by counsel for the appellant, it was for the respondent/plaintiff, through counsel, to clearly articulate and argue his case in the light of the conduct of the trial and the concession made by opposing counsel during its course. In those circumstances, it can not be said that there has been a fundamental defect in the trial, justifying what would be the extraordinary course of ordering a re-trial where the successful prosecution of the appeal would otherwise not produce that result, but would result in dismissal of the respondent's claim.

Conclusion

114 I would allow the appeal, set aside the judgment and dismiss the respondent's claim.

[69]

[1] I am not presently prepared to decide that the dictum in O'Doherty v. Birrell [2001] VSCA 44; (2001) 3 V.R. 147 at 164 was incorrect.

[2] That conclusion makes it unnecessary to consider the observation in O'Doherty v. Birrell [2001] VSCA 44; (2001) 3 V.R. 147 at 169 [55] referred to by Eames, J.A. at [66] below.

[3] Later in his judgment his Honour noted another fact but, even if that was a finding of a representation, no findings were made as to the other elements of deceit in relation it.

[4] The judge said that, "when she filled in these forms", the appellant had no genuine belief in the assertion that the respondent was the father of the children and that she "intended [him] to rely upon it, as indeed he did, in consenting to the naming of the children Magill". (Emphasis added.)

[5] (1884) 9 App.Cas. 187 at 190. I have set out the passage in the form quoted (with slight variations) by Lord Herschell in Derry v. Peek [1889] UKHL 1; (1889) 14 App.Cas. 337 at 373.

[6] On the second day of the hearing of the appeal application was jointly made for the suppression of the identity of the children named in the proceedings. That application was not, however, pursued, and, thus, the Court was not called on to determine whether it had jurisdiction to make such an order. It may be noted that throughout the trial the names of the children had been widely published, without then provoking a suppression application.

[7] The document which was dated 11 November 2002, was titled "Amended Further and Better Particulars of Statement of Claim" (my emphasis). No earlier document constituting further and better particulars was identified in the Appeal Book or during the appeal.

[8] T 201-202.

[9] We were not provided with any further transcript of the final addresses.

[10] We were not referred to any passage in transcript which reflected a formal ruling on this question, but it appears that a comment to this effect had been made by the judge and was treated on both sides as constituting a ruling.

[11] A closely related concept is described in Clerk & Lindsell on Torts, 18th Ed (2000) at 798 (15-7), in circumstances where the relevant representation related to an existing state of affairs, and where there was a gap between the time of the making of the representation and the time when the other person acts upon it to his detriment. The learned authors opine that the representation is deemed to be repeated throughout that interval.

[12] [1889] UKHL 1; (1889) 14 App. Cas. 337.

[13] At 374.

[14] (1884) 9 App. Cas. 187, at 190.

[15] The Law of Torts, 9th Ed, at 694-695.

[16] See, for example, Nicholls v. Taylor [1939] VicLawRp 20; (1939) V.L.R. 119, where personal injuries were suffered in consequence of a representation by the seller of a car that it had four new tyres, whereas one was not new and was defective. The Full Court held the seller liable in deceit. As Gavan Duffy, J. observed, at 124, a person making a representation must be taken as intending the natural consequences of his representation, but it is not necessary to show that he intended or desired those consequences to occur.

[17] By s.79A (1) of the Family Law Act 1975 the Court may set aside an order dealing with property of the parties where satisfied it was procured by fraud or suppression of evidence.

[18] [2001] 1 F.L.R. 1041; [2001] Fam Law 422

[19] At [33].

[20] At [35].

[21] At [23].

[22] At [34].

[23] As Professor Fleming has observed, the law of torts shared with criminal law a common origin in revenge and deterrence, and some traces of that origin remain, particularly in the application of exemplary damages: The Law of Torts, 9th Ed, 1998, pp.3-4.

[24] Professor Fleming regarded a misrepresentation of this kind as an instance where because of the intimacy of personal relations there would be a positive duty of disclosure, akin to such a requirement of disclosure in cases of fiduciary relationships, or in the case of principal and agent, or in beneficiary and trustee situations, and he noted that such a right of action had been acknowledged in many places in the USA: see The Law of Torts, 9th Ed, at 696.

[25] See The Law of Torts, 9th Ed, at 89, 696.

[26] Beaulne v. Ricketts (1979) 96 D.L.R. (3d) 550, per MacDonald J., Alberta Supreme Court; see, too, Graham v. Saville [1945] 2 D.L.R. 489.

[27] At 369.

[28] See Lord Watson at 345, Lord Bramwell, at 351-2, Lord Herschell at 369.

[29] As stated in "Clerk & Lindsell on Torts", at 804 (15-20), "A merely negligent misrepresentation, however gross the negligence may be, will not suffice for fraud".

[30] Counsel contended that upon review of the evidence his Honour overstated the differences in the evidence of the parties as to frequency of intercourse between them, but I am not persuaded that there was no basis on the evidence for his Honour's conclusion.

[31] At 375-376.

[32] 5 App. Cas 925, at 952

[33] T 135.

[34] T 222.

[35] All quotes are from T 223.

[36] Neat Holdings Pty. Ltd. v. Karajan Holdings Pty. Ltd. [1992] HCA 66; (1992) 67 ALJR 170, at 171; Krakowski v. Eurolynx Pty. Ltd. (1995) 183 C.L.R. 563, at 579. As those cases make clear, the gloss stated by Dixon, J. in Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 C.L.R. 336, at 362 applies in such a case.

[37] See Fox v. Percy [2003] HCA 22; (2003) 214 C.L.R 118, at 125-128 [21]-[25], [27]; Pledge v. Roads and Traffic Authority [2004] HCA 13; [2004] 78 A.L.J.R. 572, at 581-582 [43]; Anikin v. Sierra [2004] HCA 64, at [38].

[38] See Fleming "The Law of Torts, 9th Ed at 697; Clerk & Lindsell, at 800 (15-10); Brown v. Raphael [1958] Ch. 636, at 641.

[39] See Trindade & Cane, "The Law of Torts in Australia", 2nd Ed, at 173. In Evans v. Edmonds [1853] EngR 629; (1853) 13 CB 777, p.1407, at 1410-1411, Maule, J. with whom a majority of the Court agreed, held that if a person who has no knowledge of the true facts represents a certain state of affairs to exist, and does so with a view to securing some benefit for himself, or to deceive a third person, then that is fraud because he takes upon himself to warrant his own belief in the truth of that which he asserts. Thus, even though the person making the statement may have no knowledge of its falsity the representation may still have been made fraudulently.

[40] [2001] VSCA 44; (2001) 3 V.R. 147, at 169 [54]-[55].

[41] (1995) 183 C.L.R. 563.

[42] At 579-580.

[43] Spencer Bower, Turner and Handley, "Actionable Misrepresentation" 4th Ed, 2000, Editor, Justice K.R. Handley, at 69-70.

[44] At p.70, par 117.

[45] The Law of Torts, at 700-701. Contrast Trindade & Cane, "The Law of Torts in Australia", 2nd Ed, at 175, where the learned authors limit the required intention to intending the plaintiff to act on the representation, and the required intention is stated in such terms by Menzies J. in Commercial Banking Co of Sydney Ltd. v. R.H.Brown & Co [1972] HCA 24; (1972) 126 C.L.R. 337, at 343. In Clerk & Lindsell on Torts, it is said, first, at 795, that the defendant must intend that the plaintiff act in reliance on the representation and, in a slight variation, at 808 [15-27], that the representation must be "made with intent to deceive the claimant with intent, that is to say, that it shall be acted upon by him".

[46] At 701; citing Peek v. Gurney (1873) LR 6 HL 377.

[47] (1873) L.R. 6 H.L. 377; T.J.Larkins & Sons v. Chelmer Holdings Pty. Ltd. and Anor [1965] Qd.R. 68, at 70, per Lucas, J. In The Law of Torts, 9th Ed, at 695, Professor Fleming, citing Pasley v. Freeman [1789] EngR 1703; (1789) 3 TR 51, 100 ER 450, opines that the representor must have "intentionally induced another to act upon it to his detriment".

[48] Derry v. Peek, at 374.

[49] At 365.

[50] [1832] EngR 375; 3 B, & Ad. 114, cited at 365-6 in D_erry v. Peek_.

[51] [2001] HCA 52; (2001) 206 CLR 459, at 492 [103].

[52] Reasons for Decision, AB 222.

[53] AB 222.

[54] See Clerk & Lindsall on Torts, supra, at 795.

[55] T 222.

[56] T 224.

[57] [1997]A.C. 191, at 216. See too, Henville v. Walker [2001] HCA 52; (2001) 206 C.L.R. 459, at 470 [17], 473 [30]-[32] per Gleeson, C.J.

[58] In Kenny & Good v. MGICA (1992)[1999] HCA 25; , (1999) 199 C.L.R. 413, at 425-7 (per Gaudron, J.) at 438-9 (per McHugh, J.) at 443-4 (per Gummow, J.) doubts were expressed as to the appropriateness of the approach adopted by Lord Hoffman, but the issue does not require further consideration in this case.

[59] Henville v. Walker, at 472 [27], per Gleeson, C.J., and per Gaudron, J., at 482 [65].

[60] See Gould v. Vaggelas [1984] HCA 68; (1995) 157 C.L.R. 215, at 236, 250-251, and see Fleming, "The Law of Torts", 9th Ed, at 714; Spencer Bower, Turner & Handley "Actionable Misrepresentation", 4th ed, 2000, at 72 (121).

[61] Gould v. Vaggellas, at 221-2, 267_; Kenny & Good Pty Ltd v. MGICA (1992) Ltd_, at 425-7.

[62] Henville v. Walker, at 480, [60], per Gaudron, J.

[63] See Henville v. Walker, at 475 [41], per Gleeson, C.J.

[64] [1963] VicRp 80; [1963] V.R. 594.

[65] [1984] FCA 373; (1984) 57 ALR 167, at 183; see too J.L.W. (Vic) Pty Ltd v. Tsiloglou [1994] VicRp 16; [1994] 1 V.R. 237.

[66] At 242-3.

[67] The respondent listed a range of activities in which he had engaged with or for the children, and expenditure which he had incurred on gifts and otherwise which he said would not have been incurred had he known the truth about their paternity. He said that he had attempted with a consultant to quantify that expenditure and estimated it to be around $40,000.

[68] [2003] HCA 38; (2003) 215 C.L.R. 1.

[69] See National Instruments Pty Ltd v. Gilles (1975) 49 A.L.J.R. 349, at 350.

[70] Cropp v. Transport Accident Commission [1998] 3V.R. 357, at 376; Wright v. Australian Broadcasting Commission [1977] 1 N.S.W.L.R. 697; Richards v. Transport Accident Commission [2004] VSCA 91, at [4].

[71] Rule 64.17(5) of the Supreme Court (General Civil Procedure) Rules 1996 would have applied, so as to make it inappropriate that a notice of cross-appeal be filed, rather than, or in addition to, a notice of contention.

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