Category Archives: Sydney Law Firms

Lindsay v The Queen [2015] HCA 16

ON 6 MAY 2015, the High Court of Australia delivered Lindsay v The Queen [2015] HCA 16 (6 May 2015).

“Criminal law – Murder – Defences – Provocation – Where male Caucasian deceased made sexual advances towards male Aboriginal appellant at appellant’s home in presence of appellant’s de facto wife and family – Where open to jury to find that appellant killed deceased having lost self-control following advances – Where provocation left to jury at trial and appellant convicted of murder – Where Court of Criminal Appeal (“CCA”) dismissed appeal against conviction because it concluded provocation should not have been left to jury as evidence, taken at highest, could not satisfy objective limb of provocation – Whether CCA erred in so concluding – Relevance of contemporary attitudes to sexual relations.

Criminal law – Appeal – Appeal against conviction – Application of proviso – CCA dismissed appeal by applying proviso to s 353(1) of Criminal Law Consolidation Act 1935 (SA) – Where CCA not invited to apply proviso by prosecution – Whether CCA erred in invoking and applying proviso of its own motion.

Words and phrases – “minimum powers of self-control”, “ordinary person”, “partial defence”.

Criminal Law Consolidation Act 1935 (SA), s 353(1).”

The High Court of Australia allowed an appeal against an decision of the South Australian Court of Criminal Appeal, quashing the appellant’s conviction for murder and ordering a retrial.


1300 00 2088

Jones v Mosman Council [2015] NSWLEC 1121

ON 24 APRIL 2015, the NSW Land and Environment Court delivered Jones v Mosman Council [2015] NSWLEC 1121 (24 April 2015).

Development Application: conciliation conference; agreement between the parties; orders.

The Court made orders to give effect to an agreement between the applicant (Melanie Jones and Saeed Moazzam) and the respondent (Mosman Council) that was reached at conciliation on 24 April 2015.

The terms of the agreement are as follows:

1. The applicant is granted leave to amend Development Application No. 8.2014.39.1 in accordance with the plans referred to in Condition 1 of Annexure “A” hereto.
2. The applicant shall pay the respondent’s costs pursuant to section 97B of the Environmental Planning and Assessment Act 1979 agreed in the sum of $7,000.00, such costs to be paid within 28 days of orders being made in accordance with this agreement.
3. The appeal is upheld.
4. Development Application No. 8.2014.39.1 relating to the land at 173 Spit Road,
Mosman, for demolition of existing dwelling and construction of 4 units, is approved, subject to the conditions set out in annexure “A” to this agreement.

The link to annexure “A” is


1300 00 2088

Stuart v Kirkland-Veenstra [2009] HCA 15 | 22 April 2009

Stuart v Kirkland-Veenstra [2009] HCA 15 (22 April 2009).

“TORTS – Negligence – Duty of care – Where Mental Health Act 1986 (Vic), s 10 empowered police to apprehend person who “appears to be mentally ill” if reasonable grounds for believing that person had recently attempted suicide or likely to do so – Where police came upon man who appeared to have been contemplating suicide but showed no sign of mental illness – Interaction of common law and relationship established by s 10 – Whether duty of care to prevent foreseeable harm to man at own hand – Relevance of conditions engaging exercise of statutory power – Relevance of fact that duty alleged is duty to protect person from self-harm – Relevance of general rule against duty to rescue – Relevance of vulnerability of particular class of persons – Relevance of control over source of risk to persons.

TORTS – Negligence – Duty of care – Where duty alleged to arise in context of power conferred by Mental Health Act 1986, s 10 – Whether preconditions to existence of power established on facts – Whether common law duty could exist in absence of relevant power.

TORTS – Breach of statutory duty – Relevance as alternative to action alleging breach of common law duty of care – Principles relevant to determining legislative intention that cause of action be available – Relevance of legislative provision for special measures to protect identifiable class of persons or property – Whether existence of discretion to exercise power inconsistent with existence of statutory duty.

STATUTES – Interpretation – Whether person who has attempted suicide to be equated with person “mentally ill” – Relationship between attempted suicide and mental illness – Understanding at common law of relationship between suicide and mental illness.

WORDS AND PRRASES – “mentally ill”.

Crimes Act 1958 (Vic), ss 457, 463B.
Mental Health Act 1986 (Vic), ss 3, 8, 10.
Wrongs Act 1958 (Vic), Pt III.”

The court decided that two police officers did not owe a duty of care to a man who took his life; nor to his surviving spouse. Earlier in the day of the deceased’s death the officers had observed an apparent suicide attempt by the deceased but were satisfied that he sounded rational and was responsive to their questions.

The law does not create an obligation to rescue another from harm and in this case there were no special features outside of the general rule.

As the police officers had not formed the view that the deceased was mentally ill, they had no power to apprehend him and have him assessed under the Mental Health Act.


Sydney, Australia

1300 00 2088

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail [2015] HCA 11

ON 8 APRIL 2015, the High Court of Australia delivered Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail [2015] HCA 11 (8 April 2015).

The High Court held that Queensland Rail is a trading corporation within the meaning of s51(xx) of the Constitution and as such is an employer governed by the Fair Work Act 2009 (Cth) and not subject the Queensland industrial relations laws which are invalid to the extent that they apply to Queensland Rail.


Sydney, Australia

1300 00 2088

Queensland Nickel Pty Limited v Commonwealth of Australia [2015] HCA 12

ON 8 APRIL 2015, the High Court of Australia delivered Queensland Nickel Pty Limited v Commonwealth of Australia [2015] HCA 12 (8 April 2015).

The High Court held that certain provisions under the Clean Energy Regulations 2011 (Cth) were valid as they did not give preference to one State over other States and therefore did not contravene s99 of the Constitution.


Sydney, Australia

1300 00 2088

Paciocco v Australia and New Zealand Banking Group Limited [2015] FCAFC 50

ON 8 APRIL 2015, the Full Court of the Federal Court of Australia delivered Paciocco v Australia and New Zealand Banking Group Limited [2015] FCAFC 50 (8 April 2015).

BANKING AND FINANCIAL INSTITUTIONS – CONSUMER PROTECTION – whether various stipulations for fees are penalties at law or equity, or genuine pre-estimate of damage or compensation – whether the relevant stipulations were for breach of term of contract, collateral or accessory in the nature of security for, and in terrorem of the primary stipulations, or for a further contractual right or accommodation – the relevance of the “tests” in Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company Limited [1914] UKHL 1; [1915] AC 79 to the construction and characterisation of the provisions – whether the fees were extravagant or unconscionable – whether the charging of the fees constituted unconscionable conduct, unjust transactions or unfair contract terms under Australian Securities and Investments Commission Act 2001 (Cth), National Consumer Credit Protection Act 2009 (Cth), and Fair Trading Act 1999 (Vic)

LIMITATION OF ACTIONS – whether recovery statute-barred – construction of s 27(c) of the Limitation of Actions Act 1958 (Vic) – whether it applied to a mistake of law

The Full Court:

1.Dismissed an appeal by Paciocco against the decision of Gordon J of the Federal Court in Paciocco v Australia and New Zealand Banking Group Limited [2014] FCA 35.
2.Allowed an appeal by Australia and New Zealand Banking Group Limited against the decision of Gordon J of the Federal Court in Paciocco v Australia and New Zealand Banking Group Limited [2014] FCA 35.

The Full Court held that the bank fees in dispute were not penalties as it had not been proven that they were extravagant or unconscionable.

The Full Court also held that the fees were not unconscionable or unfair under the Commonwealth and State legislation concerning unconscionability, unjustness and unfairness.


1300 00 2088

Monhem v Shields [2015] NSWCA 24

ON 18 FEBRUARY 2015, the NSW Court of Appeal delivered Monhem v Shields [2015] NSWCA 24

The NSW Land and Environment Court made orders under the Trees (Disputes Between Neighbours) Act 2006 that the appellants (the Monhems) remove a Camphor Laurel tree and pay for rectification works at their boundary with the respondents (Shields).

The Monhems did not attend the on-site hearing and subsequently applied, without success, to Sheahan J to have the orders set aside on the ground that the hearing had been held in their absence.

The Court of Appeal dismissed an application for leave to appeal stating that the the appellant had not demonstrated a proper basis for seeing aside Sheahan J’s judgment.

Lawyers 1300 00 2088

Look up or check a lawyer

Contact details of lawyers across Australia can be found in the following online directories:

Law Society of NSW

NSW Bar Association

ACT Law Society

ACT Bar Association

Law Institute of Victoria

Legal Services Board of Victoria

Victorian Bar Association

Law Society of Tasmania

Supreme Court of Tasmania

Tasmanian Bar Association

Law Society of South Australia

South Australian Bar Association

Legal Practice Board of Western Australia

Law Society of the Northern Territory

Queensland Law Society

North Sydney Lawyers

Bar Association of Queensland

Sydney Lawyers

Artarmon Lawyers

Balgowlah Lawyers

Brookvale Lawyers

Cammeray Lawyers

Chatswood Lawyers

Clontarf Lawyers

Cremorne Lawyers

Crows Nest Lawyers

Dee Why Lawyers

Frenchs Forest Lawyers

Kirribilli Lawyers

Lane CoveLawyers

Lower North Shore Lawyers

Manly Lawyers

Manly Vale Lawyers

Milsons Point Lawyers

Mosman Lawyers

Neutral Bay Lawyers

North Balgowlah Lawyers

North Sydney Lawyers

Northbridge Lawyers

Northern Beaches Lawyers

Seaforth Lawyers

St Leonards Lawyers

Sydney Lawyers

Willoughby Lawyers


Sydney, Australia

1300 00 2088

Sydney Law Firms

LEGAL HELPDESK LAWYERS is a new generation private legal practice that offers legal guidance to individuals and businesses in Sydney’s Lower North Shore and Northern Beaches.

We provide information, advice and advocacy to those who need – or might need – legal representation in any area of law.

If required, we refer customers to a reliable network of specialist lawyers. We take the guesswork out of finding a good lawyer.

Legal Helpdesk
Legal Helpdesk is at Bridgepoint Mosman near the Level 1 footbridge to Fitness First

Our mission is to promote better local access to good legal help.

Confidentiality and privacy is protected by law.

1300 00 2088




1300 00 2088

ALL AREAS OF LAW administrative law, advice, advocacy, animal law, arbitration, attorneys, aviation law, banking and finance, bankruptcy, barristers, business law, breach of duty of care, civil liability, civil litigation, commercial law, commercial leases, common law, communications law, company law, compensation, conciliation, consumer law, contract, conveyancing, copyright, corporate law, corporations law, costs, criminal law, criminal litigation, death and disability, debt recovery, defamation law, disability discrimination law, discrimination, dispute resolution, divorce, elder law, employment law, environmental law, equity, estate planning, ethics, family law, guardianship, harassment and workplace bullying, health law, human rights, immigration, industrial law, insolvency, intellectual property, labour law, land and environment court, land law, landlord and tenant, lawyer referral, lawyers, leases, licensing law, liquor law, litigation, local government, malpractice, media law, mediation, medical law, mortgages, motor vehicle law, negligence, occupational health and safety law, partnerships, planning law, powers of attorney, privacy law, pro bono, probate law, professional negligence, professional standards, property law, residential leases, revenue law, securities law, settlements, shipping law, social security, solicitors, sports law, succession, superannuation law, tax law, torts, total and permanent disablement, traffic law, transport law, wills, workplace law