Date: Thu, 16 Oct 2008 23:36

From: Neil Foster

Subject: Prohibition on Party Testimony

Dear Colleagues

Thanks to Bill for a great overview of the provision and to Michael for a sensible scepticism about the value of it. The only thing I would like to add is that in Livingstone v Mitchell [2007] NSWSC 1477 (18 December 2007) (which Bill already mentioned) where the court refused to accept evidence about what the plaintiffs would have done had proper advice been provided, the judge then went on to admit the evidence of their son about what he would have advised them to do! (see [47]) On the other hand, for reasons Bill has canvassed, the evidence wasn't given that much weight. Still, the case illustrates the fact that all the related circumstances can be considered. Presumably one might be able to ask the plaintiff about their previous practice in heeding warnings, how important the specific issue was to them, etc.

Regards
Neil F

Neil Foster
Senior Lecturer, LLB Program Convenor
Newcastle Law School
Faculty of Business & Law
MC158, McMullin Building
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

>>> "Jones, Michael" 17/10/08 8:24 >>>

Dear Bill,

Fascinating stuff ...

Although the mother of Parliaments is far from perfection in some of its forays into legislative reform of common law obligations, all I can say about this particular Antipodean example is that it looks like "tort reform gone completely mad".

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