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Tag Archives: SYDNEY LAWYERS
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:
- Start by assuming the person has capacity to make decisions.
- Capacity is decision specific. If one can’t make a decision about one thing they may still be able to make other decisions.
- Never assume a person lacks capacity because of appearances.
- Assess the person’s decision making capacity, not the decision they make.
- Respect a person’s privacy.
- 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.
Sydney, Australia
1300 00 2088
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.
Sydney, Australia
1300 00 2088
Class Actions in Australia
Representative or group proceedings (class actions) were introduced to Australia through the Federal Court of Australia Amendment Act 1991 (Cth) which amended the Federal Court of Australia Act 1976 (Cth). They have since been introduced in Victoria under the Supreme Court Act 1986 (Vic) and in NSW under the Civil Procedure Act 2005 (NSW).
Most class actions are brought in the Federal Court of Australia. The court rules require the following thresholds to be met before proceedings can be commenced:
- There must be seven or more persons bringing a claim against the same defendant(s).
- The claims must arise out the same, similar or related circumstances.
- The claims must give rise to at least one substantial common issue of law or fact.
Currently there are a number of class actions either under investigation on foot in Australia. Some of the more notable ones include:
ABC Learning Class Action (Maurice Blackburn)
ABC Learning Centres Ltd (In Liquidation) – Chargeholders (Bentham IMF Limited)
ABC Learning Centres Ltd (Shareholder Action) (Bentham IMF Limited)
ABN Amro (now Royal Bank of Scotland) and S&P re Rembrandt Notes 2006-2 (Bentham IMF Limited)
ASAS (Group Action) (Bentham IMF Limited)
Air Cargo Class Action (Maurice Blackburn)
Air Cargo (Bentham IMF Limited)
Alcoa Alumina Refinery Multiple Plaintiff Action (Shine Lawyers)
Allco Shareholder Class Action (Maurice Blackburn)
American Mesh Systems (AMS) Class Action (Shine Lawyers)
Arundel Suntown Tip Class Action (Shine Lawyers)
Australian Capital Reserve Class Action (Slater and Gordon)
Bank Fees Class Action (Maurice Blackburn)
Bank Fees Class Actions (Bentham IMF Limited)
Bank of Queensland (Bentham IMF Limited)
Billabong Shareholder Class Action (Slater and Gordon)
Black Saturday Class Action (Maurice Blackburn)
Bladder Cancer Group Action assocated with Actos Diabetes Drug (Maurice Blackburn)
Bonsoy Class Action (Maurice Blackburn)
Brisconnections (Bentham IMF Limited)
Brooklyn Park Olives (Slater and Gordon)
Cash Converters Class Action (Maurice Blackburn)
CBA’s Open Advice Review Program – Commonwealth Financial Planning and Financial Wisdom Claims (Slater and Gordon)
Certain Lloyds Underwriters (Bentham IMF Limited)
CFA Fiskville claims (Slater and Gordon)
Class Action on behalf of people detained on Christmas Island (Maurice Blackburn)
Collingwood Park Mine Subsidence Group (Shine Lawyers)
Dan Bowl Tax Minimisation Scheme Group Action (Shine Lawyers)
DePuy ASR Hip Implants (Maurice Blackburn)
DePuy ASR Hip Replacement Class Action (Shine Lawyers)
DePuy / Johnson & Johnson Knee Replacement Class Action (Shine Lawyers)
DePuy (LCS Duofix Femoral Component) Class Action (Maurice Blackburn)
Elders Limited (Slater and Gordon)
Equine Influenza Class Action (Maurice Blackburn)
Fairbridge Farm School (Slater and Gordon)
False Imprisonment of Young People Class Action (Maurice Blackburn)
Financial Wisdom Class Action (Shine Lawyers)
Firepower (Bentham IMF Limited)
Gladstone Harbour Disaster Representative Class Action (Shine Lawyers)
Grand Western Lodge Class Action (Maurice Blackburn)
Great Southern – Cattle (Bentham IMF Limited)
Great Southern – Woodlots (Bentham IMF Limited)
Gunns Class Action (Maurice Blackburn)
Gunns Ltd (Bentham IMF Limited)
Hastie Group (Slater and Gordon)
Hazelwood Coal Mine Fire Investigation (Maurice Blackburn)
Hepatitis C Class Action (Slater and Gordon)
Immigration Detention Claims (Slater and Gordon)
ION Ltd (Bentham IMF Limited)
Johnson & Johnson/ Ethicon Class Action (Shine Lawyers)
Lehman Australia (Bentham IMF Limited)
Leighton Class Action (Maurice Blackburn)
LM Investments Funds (Slater and Gordon)
Local Government Financial Services (Bentham IMF Limited)
Lynx Engineering Consultants Pty Ltd (Bentham IMF Limited)
Macquarie Equities Financial Planning Claims (Slater and Gordon)
NAB Class Action (Maurice Blackburn)
Newcrest Mining Ltd (ASX:NCM) Class Action (Slater and Gordon)
NSW Bushfires Class Action (Slater and Gordon)
NZ bank fees (Slater and Gordon/Play Fair on Fees)
Octaviar (formerly MFS Ltd) (Bentham IMS Limited)
Pacific First Mortgage Fund Claim against Minter Ellison Gold Coast (Maurice Blackburn)
Perth Hills/Parkerville Bushfire (Slater and Gordon)
PIF (Premium Income Fund) Investors v KPMG & Ors (Bentham IMF Limited)
Prevelly-Margaret River Bushfires – November 2011 (Slater and Gordon)
QBE Class Action (Maurice Blackburn)
Queensland Floods Class Action (Maurice Blackburn)
Ratings Redress CPDOs (Bentham IMF Limited)
Retail Adventures Pty Limited (In Liquidation) (Bentham IMF Limited)
River City Class Action (Maurice Blackburn)
River City Motorway (Bentham IMF Limited)
Standard & Poors (Lehman) (Bentham IMF Limited)
Thalidomide Class Action (Slater & Gordon)
Treasury Wine Estates Class Action (Maurice Blackburn)
Treasury Wine Estates Limited (Bentham IMF Limited)
Vodafone and Crazy John’s Class Action (Piper Alderman)
Westgem Investments (Bentham IMF)
Workers with Intellectual Disabilities Class Action (Maurice Blackburn)
Zimmer Durom Hip Replacement Class Action (Shine Lawyers)
Sydney, Australia
1300 00 2088
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.
1300 00 2088
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.
Sydney, Australia
1300 00 2088
O’Shane v Harbour Radio Pty Ltd
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.
Sydney, Australia
1300 00 2088
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.
Sydney, Australia
1300 00 2088
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.
Sydney, Australia
1300 00 2088
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