Taylor v Burgess [2002] NSWSC 676

Taylor v Burgess [2002] NSWSC 676

A contractual clause purporting to prevent the plaintiff's mother from giving evidence about her child's paternity in Family Provision Act proceedings is, to that extent, contrary to public policy and unenforceable; evidence regarding paternity that predates and is not 'obtained' via contract is not inadmissible under s138 of the Evidence Act 1995.

Parties
Plaintiff: Gary Wayne Taylor; Defendant: Gregory William Burgess
Jurisdiction
Australia
Judgment Date
25 July 2002
Procedural Posture
Application Under Family Provision Act / Interlocutory Ruling on Admissibility of Evidence
Outcome
Mother's evidence admitted
Legal Topics
Public Policy and Contract Enforceability, Family Provision Act Applications, Admissibility of Evidence, Paternity and Parentage Evidence
Contract Law Succession Law Evidence Law Public Policy and Contract Enforceability Family Provision Act Applications Admissibility of Evidence Paternity and Parentage Evidence

Case Brief

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Parties

Gary Wayne Taylor

Plaintiff

Gregory William Burgess

Defendant

Procedural Posture

Application Under Family Provision Act / Interlocutory Ruling on Admissibility of Evidence

Legal Issues

  1. 1 Whether a deed executed by the plaintiff's mother, covenanting not to allege the paternity of the deceased, precludes her from giving evidence in Family Provision Act proceedings brought by the child
  2. 2 Whether the contract is void or unenforceable on grounds of public policy
  3. 3 Whether s138 of the Evidence Act 1995 renders the mother's evidence inadmissible

Ratio Decidendi

A contractual clause purporting to prevent the plaintiff's mother from giving evidence about her child's paternity in Family Provision Act proceedings is, to that extent, contrary to public policy and unenforceable; evidence regarding paternity that predates and is not 'obtained' via contract is not inadmissible under s138 of the Evidence Act 1995.

Court Disposition

Mother's evidence admitted

Orders

  • The evidence of the mother will be admitted, subject to any specific objections on other grounds as may be raised and dealt with when her affidavit is read.