Category Archives: Uncategorized

Capacity to make decisions

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

1300 00 2088

Law Handbook

An copy of the Law Handbook may be accessed online by visiting the Legal Answers website of the NSW State Library. Visit http://www.legalanswers.sl.nsw.gov.au/guides/law_handbook/index.html

Topics include:

About the legal system – Ch 1
Aboriginal people and the law – Ch 2
Accidents and compensation – Ch 3
Arrest interrogation and bail – Ch 4
Assistance with legal problems – Ch 5
Banking – Ch 6
Bankruptcy – Ch 7
Children and young people – Ch 8
Community organisations – Ch 9
Complaints – Ch 10
Consumers – Ch 11
Contracts – Ch 12
Copyright – Ch 13
Court – Ch 14
Credit – Ch 15
Criminal law – Ch 16
Debt – Ch 17
Disability law – Ch 18
Discrimination – Ch 19
Dispute resolution – Ch 20
Domestic violence – Ch 21
Driving and traffic law – Ch 22
Drug offences – Ch 23
Employment – Ch 24
Environment and planning – Ch 25
Family law – Ch 26
Freedom of information – Ch 27
Health law – Ch 28
Housing – Ch 29
Immigration – Ch 30
Insurance – Ch 31
Internet law – Ch 32
Media law – Ch 33
Neighbours – Ch 34
Prisoners – Ch 35
Refugees and Australia’s humanitarian program – Ch 36
Same-sex couples and their families – Ch 37
Sexual offences – Ch 38
Social security entitlements – Ch 39
Superannuation – Ch 40
Taxation – Ch 41
Victims support – Ch 42
Wills, estates and funerals – Ch 43

Lawyers

Sydney, Australia

1300 00 2088

CTP Claim Form

The new Personal Injury Claim Form may be downloaded from the State Insurance Regulatory Authority (SIRA) (formerly the Motor Accidents Authority).

A claim for damages for personal injuries arising from a motor accident may be made by sending a completed form and medical certificate to the CTP insurer of the vehicle at fault. Claims must be lodged within 6 months of the date of accident.

http://www.maa.nsw.gov.au/__data/assets/pdf_file/0005/19652/personal_injury_claim_form_MAA21.PDF

Lawyers

Sydney, Australia

1300 00 2088

Contract – Implied Terms – Frustration – Extrinsic evidence of intention

Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24; (1982) 149 CLR 337 (11 May 1982).

http://www.austlii.edu.au/au/cases/cth/HCA/1982/24.html

“Contract – Construction – Implied terms – Frustration – Contract to carry out excavations for rail authority – Completion required by certain date – Contractor working three shifts seven days per week – Injunction granted to third party restraining contractor from working at certain times – Whether implied term of contract that authority would grant reasonable extension of time and indemnify contractor against additional costs occasioned by grant of injunction – Whether injunction frustrated contract – Extrinsic evidence of intention.
Arbitration – Jurisdiction to entertain claim that contract frustrated – Power to award interest on award – Compound interest – Supreme Court Act 1970 (N.S.W.), s. 94(1).”

Codelfa contracted with the State Rail Authority’s predecessor, the NSW Commissioner for Railways, to perform the excavations on Sydney’s Eastern Suburbs railway. It was agreed that Codelfa would perform three shifts per day over a fixed period, but they were unable to meet this requirement because of injunctions brought by local residents.

Codelfa sought damages from the SRA on two grounds: (1) that there was an implied term that if they were restrained by injunctions the SRA would extend time for completion or would indemnify Codelfa for any losses caused by the injunctions; in the alternative, (2) that the contract was frustrated by the injunctions.

Mason J at 352 observed that the “true rule” regarding the admission of evidence of the surrounding circumstances is that such evidence is admissible if the language of the contract is ambiguous or capable of more than one meaning but is not admissible to contradict the language which has a plain meaning.

The court held that there was no implied term. Even if a term needed to be implied to give efficacy to the contract, the was not a term “so obvious it goes without saying”. The court referred with approval to its earlier decision in Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51; (1979) 144 CLR 596.

Codelfa was nevertheless successful with the court holding that the contract was frustrated because “the performance of the contract in the events which have occurred is radically different from performance of the contract in the circumstances which it, construed in the light of surrounding circumstances, contemplated”.

Lawyers

Sydney, Australia

1300 00 2088

Independent Commission Against Corruption v Cunneen [2015] HCA 14

The High Court of Australia today delivered Independent Commission Against Corruption v Cunneen [2015] HCA 14 (15 April 2015).

http://www.austlii.edu.au/au/cases/cth/HCA/2015/14.html

The High Court dismissed an application for special leave by the NSW Independent Commission Against Corruption (ICAC), holding that ICAC did not have the power to conduct an inquiry into allegations made against the respondents because the alleged conduct was not “corrupt conduct” within the meaning of s8(2) of the Independent Commission Against Corruption Act 1988 (NSW).

Lawyers

Sydney, Australia

1300 00 2088

Duncan v New South Wales; NuCoal Resources Limited v New South Wales; Cascade Coal Pty Limited v New South Wales [2015] HCA 13

ON 15 APRIL 2015, the High Court of Australia delivered Duncan v New South Wales; NuCoal Resources Limited v New South Wales; Cascade Coal Pty Limited v New South Wales [2015] HCA 13 (15 April 2015).

http://www.austlii.edu.au/au/cases/cth/HCA/2015/13.html

The High Court upheld the validity to certain amendments to the Mining Act 1992 (NSW) which cancelled three mining licenses. The Mining Amendment (ICAC Operations Jasper and Acacia) Act 2014 (NSW) was held to be within the scope of the NSW Parliament’s constitutional power to make laws granted under s5 of the Constitution Act 1902 (NSW).

Lawyers

Sydney, Australia

1300 00 2088

Hawkins v Clayton [1988] HCA 15 | 8 April 1988

ON 8 APRIL 1988, the High Court of Australia delivered Hawkins v Clayton [1988] HCA 15; (1988) 164 CLR 539 (8 April 1988).

A firm of solicitors was held to be negligent by failing to take reasonable steps to locate an executor (a non-client) following the death of a testatrix (a client whose will they prepared and retained for safe keeping) for some six years after the testatrix’s death.  The solicitors were held to be liable to pay damages for the loss suffered by the executor (who was also a residuary beneficiary) in not being able to manage the estate during the period of delay.

http://www.austlii.edu.au/au/cases/cth/HCA/1988/15.html

Lawyers

Sydney, Australia

1300 00 2088