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.


Sydney, Australia

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Law Handbook

An copy of the Law Handbook may be accessed online by visiting the Legal Answers website of the NSW State Library. Visit

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


Sydney, Australia

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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.

Click to access personal_injury_claim_form_MAA21.PDF


Sydney, Australia

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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).

“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”.


Sydney, Australia

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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).

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).


Sydney, Australia

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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).

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).


Sydney, Australia

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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.


Sydney, Australia

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Miller v Miller [2011] HCA 9 | 7 April 2011

ON THIS DAY in 2011, the High Court of Australia delivered Miller v Miller [2011] HCA 9 (7 April 2011).

A joint illegal enterprise (eg joyride) negates a duty of care (driver to passenger) thereby creating a defence of illegality on the part of the driver/insurer: see Gala v Preston [1991] HCA 18. However, in Miller v Miller the High Court held that the plaintiff (injured passenger) was owed a duty of care because she withdrew from the enterprise by asking to be let out of the car and there were no reasonable steps available to her to prevent the continuation of the offence.


Sydney, Australia

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Ames & Ames [2009] FamCA 825 | 4 September 2009

ON 4 SEPTEMBER 2009, the Family Court of Australia delivered Ames & Ames [2009] FamCA 825 (4 September 2009)

A father obtained a paternity test of his son without obtaining the mother’s consent. The father had lied to the son about his reasons for taking the swab.

Justice Dawes found that the specimen had been obtained improperly and used her discretion under s138EA to refuse to admit into evidence the laboratory report because of the threat of the integrity of the process as well as the improper way in which the specimen had been obtained.


Sydney, Australia

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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)

Air Cargo Class Action (Maurice Blackburn)

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)

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)

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)

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)

Gladstone Harbour Disaster Representative Class Action (Shine Lawyers)

Grand Western Lodge Class Action (Maurice Blackburn)

Gunns Class Action (Maurice Blackburn)

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)

Johnson & Johnson/ Ethicon Class Action (Shine Lawyers)

Leighton Class Action (Maurice Blackburn)

LM Investments Funds (Slater and Gordon)

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)

Pacific First Mortgage Fund Claim against Minter Ellison Gold Coast (Maurice Blackburn)

Pacific First Mortgage Fund Claim against Philip Sullivan, Thomas Swan, Stephen McCormick & Ian Donaldson (Maurice Blackburn)

Perth Hills/Parkerville Bushfire (Slater and Gordon)

Prevelly-Margaret River Bushfires – November 2011 (Slater and Gordon)

Thalidomide Class Action (Slater & Gordon)

QBE Class Action (Maurice Blackburn)

Queensland Floods Class Action (Maurice Blackburn)

River City Class Action (Maurice Blackburn)

Treasury Wine Estates Class Action (Maurice Blackburn)

Vodafone and Crazy John’s Class Action (Piper Alderman)

Workers with Intellectual Disabilities Class Action (Maurice Blackburn)

Zimmer Durom Hip Replacement Class Action (Shine Lawyers)


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