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16 SEP 2011

Secrets and lies: no deceit down under for paternity fraud [2008] CFLQ 81

Novel legal actions seeking damages in deceit for paternity fraud are appearing around the world. Until recently, the only reported decision in England and Wales was P v B (Paternity: Damages for Deceit), in which Stanley Burnton J decided as a preliminary point of jurisdiction that such an action was possible. Australia's High Court has now decided its first such case (Magill v Magill). While all of their Honours held that the tort was not made out on the facts of the particular case, they also addressed at length the general question of the applicability of deceit to paternity lies within marriage. A variety of reasons were adopted, with the majority holding that there was no cause of action in deceit in these circumstances. Shortly after that decision, the English High Court handed down judgment in A v B (Damages: Paternity), in which the trial judge followed P v B in preference to Magill v Magill and made an award of damages. This note explores the reasoning of the High Court of Australia and considers its relevance in the context of England and Wales.

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