Category Archives: LAW FIRM

Disability Law, Elder Law, LAW FIRM

Capacity Toolkit

THE NSW DEPARTMENT OF ATTORNEY GENERAL & JUSTICE publishes the Capacity Toolkit, which is a guide to assessing one’s ability to make legal, medical, financial and personal decisions.

The ability to make their own decisions is known as “capacity”. If one is concerned of another’s capacity to make a decision for themselves, they must do a capacity assessment. Capacity assessments are often performed by family members, friends, carers, doctors, health care works, government workers, lawyers, bank managers or any person who provides services.

Capacity Assessment Principles are as follows:

  1. Start by assuming the person has capacity to make decisions.
  2. Capacity is decision specific. If one can’t make a decision about one thing they may still be able to make other decisions.
  3. Never assume a person lacks capacity because of appearances.
  4. Assess the person’s decision making capacity, not the decision they make.
  5. Respect a person’s privacy.
  6. Substitute-decision making is a last resort.

A person who is assessed as not being able to make a decision may need a “substitute decision maker”.

Disputes about capacity may be taken to the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) of Level 3, 2a Rowntree Street, Balmain NSW 2041, tel 1800463928.

Further information can be found at the Aged Care Rights Service and NSW Government Diversity Services.

Lawyers

Sydney, Australia

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Elder Law, LAW FIRM

Preventing Financial Abuse of People with Dementia

Alzheimer’s Australia has released Preventing Financial Abuse of People with Dementia (June 2014).

Recommendations include:

  • Establishment of a NSW Public Advocate to investigate reports of financial abuse.
  • Refer to the NSW Law Reform Commission an examination of a register of Enduring Power of Attorneys; an investigation of how to appropriately respond to financial abuse of people with dementia; and an investigation of the adequacy of current laws covering financial abuse under the Powers of Attorney Act 2003.
  • Amending the NSW Interagency Protocol for Responding to Abuse of Older People to reflect any changes to the legislation and practice.
  • Establishment of a Vulnerable Communities Officer role in all Local Area Commands of the Police Force to identify those at risk of financial abuse and to support victims.
  • Education of attorneys appointed under Enduring Powers of Attorney as to their rights and responsibilities.
  • Public education about financial abuse.
  • The Australian Prudential Regulation Authority to require banking and finance services to develop systems to prevent abuse and develop protocols to report suspected abuse to public advocates.
  • Mandatory training for banking and finance staff to identify financial abuse.
  • Banking and finance staff to provide customers with information about how to protect themselves from financial abuse.
  • Lawyers to receive training about financial abuse as part of their continuing legal education requirements.
  • Funded age care organisations required to make staff aware of their obligation sunder the NSW Interagency Protocol for Responding to Abuse of Older People.

Alzheimer’s Australia NSW recommends that victims of financial abuse contact NSW Elder Abuse Helpline on 1800 628 221, a confidential service offering information, advice and referrals. 

Lawyers

Sydney, Australia

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LAW FIRM, Professional conduct

Dale Boucher appointed as Uniform Legal Services Commissioner

The Attorneys General for New South Wales and Victoria have announced the appointment of Dale Boucher as the Commissioner for Uniform Legal Services Regulation and Chief Executive of the Legal Services Council.

Mr Boucher is the former head of the Australian Government Solicitor.

The Legal Profession Uniform Law (NSW) and Legal Profession Uniform Law Application Act 2014 (NSW) were enacted on 20 May 2014 and will be implemented in 2015.

The scheme aims to improve the regulation of legal services across the two states, offering reduced red tape, new remedies and standardised complaints processes.

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Costs, Family provision, LAW FIRM, Motor Accidents, Personal Injury

Wilcox v Brydens Compensation Lawyers; Brydens Compensation Lawyers v Wilcox [2014] NSWSC 1222

Wilcox v Brydens Compensation Lawyers; Brydens Compensation Lawyers v Wilcox [2014] NSWSC 1222.

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Sydney, Australia

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LAW FIRM

O’Shane v Harbour Radio Pty Ltd

http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=167298

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Sydney, Australia

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Employment Law, LAW FIRM

Federal Commissioner of Taxation v J Walter Thompson (Australia) Pty Ltd [1944] HCA 23 | 5 September 1944

Federal Commissioner of Taxation v J Walter Thompson (Australia) Pty Ltd [1944] HCA 23; (1944) 69 CLR 227 (5 September 1944).

http://www.austlii.edu.au/au/cases/cth/high_ct/69clr227.html

The distinction between employer and contractor is “in the case of a servant the employee has power, not only to direct what work the servant is to do, but also to direct the manner in which the work is done” per Latham J at 231.

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Sydney, Australia

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Children, Family Law, LAW FIRM

U v U [2002] HCA 36 | 5 September 2002

ON 5 SEPTEMBER 2005, the High Court of Australia delivered U v U [2002] HCA 36; 211 CLR 238; 191 ALR 289; 76 ALJR 1416 (5 September 2002).

http://www.austlii.edu.au/au/cases/cth/high_ct/2002/36.html

An Indian mother and residential parent of a 9 year old girl applied to relocate to Mumbai where she had good employment prospects and family.

The Family Court rejected the application and appeals were dismissed by the Full Court of the Family Court of Australia and High Court of Australia.

The High Court made the following observations about relocation cases:

  • The court, not the parties, defines the issues. The parties do not define the issues because they have failed to agree to a parenting plan. The court is not bound by the polarised options of the parties but instead must decide what is in the child’s best interests.
  • There is no onus of the parent seeking relocation to show compelling reasons for relocation.
  • Relocation disputes are unlikely to produce perfect solutions because of the wide range of predictions and discretion to make findings.
  • It should be assumed that the non-resident parent ought not relocate to be nearer the relocating resident and child; and it should not be assumed that the residential parent should not subordinate her wish to relocate to the wish of the non-resident parent to remain in the place of his or her choosing.
  • It is self-evident that, except in cases of abusive relationships, it is in the child’s best interests to develop good relationships with both parents.

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Sydney, Australia

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Duty of Care, LAW FIRM, Motor Accidents, Negligence, Personal Injury

Tame v New South Wales [2002] HCA 35 | 5 September 2002

ON 5 SEPTEMBER 2002, the High Court of Australia delivered Tame v New South Wales [2002] HCA 35; 211 CLR 317; 191 ALR 449; 76 ALJR 1348 (5 September 2002).

In a claim for damages for psychiatric injury caused by negligence, direct perception of the event or its aftermath is not a necessary aspect in all cases.

The question is whether it was reasonable to require the defendant to contemplate the risk of psychiatric injury to the plaintiff, and to take reasonable care to guard against the risk.

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Sydney, Australia

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Defences, Estoppel, LAW FIRM, Limitations

Commonwealth v Verwayen (“Voyager case”) [1990] HCA 39 | 5 September 1990

ON 5 SEPTEMBER 1990, the High Court of Australia delivered Commonwealth v Verwayen (“Voyager case”) [1990] HCA 39; (1990) 170 CLR 394 (5 September 1990).

Estoppel – Waiver – Action against Commonwealth by serviceman injured in collision between Australian naval vessels engaged in combat exercises – Defence – Failure to plead expiration of limitation period or absence of duty of care – Statements by Commonwealth that it would not rely on either defence – Subsequent amendment of defence to plead both grounds – Whether Commonwealth estopped from relying on defences – Whether defenced waived – Limitation of Actions Act 1958 (Vict.), s. 5(6).

In 1964, the Australian Navy ships Melbourne and Voyager collided whilst performing exercises off Jervis Bay. Hundreds of servicemen were injured and 82 died.

Verwayen was one of the many servicemen who claimed damages for personal injury against the Commonwealth. His action was brought many years after the limitation period expired.

Verwayen’s solicitor acted for a number of servicemen. In another claim, the solicitor was assured in writing by the solicitor for the Commonwealth and the Minister of Defence that the Commonwealth would not be invoking the limitation defence. In other words, the Commonwealth would not be defending the case on the basis that the proceedings were barred because they were commenced after the expiry of the three year time limit.

The solicitor sought the same assurances from the Commonwealth before commencing Verwayen’s proceedings.  The assurances were subsequently given after the proecceings were issued and the Commonwealth filed a defence pleading that the Commonwealth did not owe a duty of care because the harm occurred in combat exercises. The Commonwealth did not plead the limitation defence.

About 18 months after the proceedings were issued and 14 months after the defence was filed, the Commonwealth filed an amended defence pleading the limitation defence.

By a majority of 4:3, the High Court held that the Commonwealth could not plead the limitation defence.

Deane and Dawson JJ held that the appeal be dismissed applying the principle of estoppel by conduct. Both inferred that Mr Verwayen had prepared and prosecuted his action in reliance upon the representations made by the Commonwealth. The Commonwealth’s conduct raised an equity that could only be accounted for by holding it to the assumed state of affairs.

Toohey and Gaudron JJ held that the appeal be dismissed because the Commonwealth had waived its right to rely upon the defence.

Mason CJ, Brennan, Deane, Dawson and McHugh JJ were of the view that reliance upon a representation was fundamental to the establishment of an estoppel, but only Deane and Dawson JJ held that an estoppel could be applied in this case.

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LAW FIRM, Professional conduct

Health Care Complaints Commission v Do [2014] NSWCA 307

ON 4 September 2014, the NSW Court of Appeal delivered Health Care Complaints Commission v Do [2014] NSWCA 307.

Dr Annette Do had been found guilty by the Medical Tribunal of professional misconduct in prescribing her drug-dependent de facto partner with addictive and restricted substances, one of which caused her partner to die from an overdose. Dr Do was not registered at the time of the proceedings but was ordered to undergo a minimum of 12 months counselling as a condition of re-applying for registration. The Tribunal refrained from making an order of disqualification.

The Court of Appeal set aside the Tribunal’s orders and made an order disqualifying the doctor from practising medicine for a period of 18 months from 2 August 2013.

Lawyers

Sydney, Australia

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