Category Archives: Sydney Solicitors

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).”

http://www.austlii.edu.au/au/cases/cth/HCA/2015/16.html

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.

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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.

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWLEC/2015/1121.html

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 http://www.caselaw.nsw.gov.au/asset/553ed1a8e4b0fc828c9966f1.pdf

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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).

http://www.austlii.edu.au/au/cases/cth/HCA/2015/11.html

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.

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Sydney, Australia

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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).

http://www.austlii.edu.au/au/cases/cth/HCA/2015/12.html

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.

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Sydney, Australia

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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).

http://www.austlii.edu.au/au/cases/cth/FCAFC/2015/50.html

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.

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Solicitors advising on loan or security documents

Solicitors are sometimes asked by their clients to provide independent legal advice to satisfy the bank’s requirement that the client obtain independent legal advice when going guarantor providing security for a borrower.

Rule 58 of the NSW Solicitors Rules 2013 sets out the conditions upon which a solicitor may give independent advice on loan and security documents.

A Statutory Declaration made by the borrower evidencing the independent advice must be in the form set out in Schedules 1, 1A or 1B.

A Statutory Declaration made by the guarantor evidencing the independent advice must be in the form set out in Schedules 2 or 2A. The Statutory Declaration is to be returned to the bank.

The borrower or guarantor who receives the advice must sign an acknowledgement in the form set out in Schedule 4, 4A, 4B or 4C. The acknowledgement must be kept by the solicitor and NOT returned to the bank.

A solicitor must not sign a certificate to the effect that they have provided independent advice.

http://www.lawsociety.com.au/cs/groups/public/documents/internetcontent/814115.pdf

 

Solicitors Rules 2013

 

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Sydney, Australia

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Monhem v Shields [2015] NSWCA 24

ON 18 FEBRUARY 2015, the NSW Court of Appeal delivered Monhem v Shields [2015] NSWCA 24 http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWCA/2015/24.html.

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.

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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

http://legalhelpdesksydney.com.au/north-sydney-lawyers/

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

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Lawyers

Sydney, Australia

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Sydney Solicitors

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.

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Lawyers

SYDNEY, AUSTRALIA

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