obiter | The ByLawyers Blog

Water access rights – SA

By

New commentary on water access rights has been added to the By Lawyers Sale and Purchase Guides (SA).

The new content covers the right to take and use water in South Australia which is regulated under the Natural Resources Management Act 2004. Under the Act, rights in relation to the ability to take and use water include water licences, water access entitlements and stock and domestic rights.

Information in relation to water licences and water access can be found on the Department for Environment and Water website.

Ownership of water rights is recorded on the Water Register.

By Lawyers do not currently offer a full commentary on the increasingly complex and valuable rights attaching to the usage, allocation and trading of water, but the new content in the Sale and Purchase Guides assists as a starting point for SA practitioners who are called upon to advise clients in relation to the rights attaching to water in various circumstances, whether in the context of property transactions, property development, or stand-alone water trading transactions.

Helpful interactive links are also provided in the new content to allow users to quickly access the detailed information available on the Department for Environment and Water website and the WaterConnect website.

Water usage rights – VIC

By

New commentary on water usage rights has been added to the By Lawyers Sale and Purchase Guides (VIC).

The new content covers the right to use water and the right to participate in water share schemes in Victoria, which is governed by the Water Act 1989.

Information in relation to water use licences and water shares can be found on the DELPW Water and Catchments page. Ownership of water shares is recorded on the Water Share Register.

Note that the Registrar of Titles is also the Registrar of Water Shares.

By Lawyers do not currently offer a full commentary on the increasingly complex and valuable rights attaching to the usage, allocation and trading of water, but the new content in the Sale and Purchase Guides assists as a starting point for VIC practitioners who are called upon to advise clients in relation to the rights attaching to water in various circumstances, whether in the context of property transactions, property development, or stand-alone water trading transactions.

Helpful interactive links are also provided in the new content to allow users to quickly access the detailed information available on the Department of Environment, Land, Water and Planning website.

Drink driving – Criminal NSW

By

In a small but significant change to drink driving laws, from 20 May 2019 offenders charged with first time, low range prescribed concentration of alcohol offences in NSW will be fined and have their licence suspended immediately for three months, rather than receive a Court Attendance Notice.

This results in such offenders needing to make a court election if they wish to ask the court to dismiss the charge and not record a conviction under s 10 Crimes (Sentencing Procedure) Act 1999.

It will also be available to such offenders to make a licence appeal to the Local Court, if they seek to avoid or reduce the period of suspension. A licence appeal can only be made after conviction. The offender has a conviction recorded either by paying the fine in the first instance, or by the court imposing a conviction where a court election is made and no section 10 dismissal is granted.

This means that from now on lawyers are unlikely to see some first time, low range PCA offenders at all, or at least not until after they have paid their fine and are seeking to appeal their licence suspension. As a licence appeal is a slightly different advocacy exercise to a drink driving plea, these changes will involve a re-calibration of the approach to advising and appearing for clients in first time, low range drink driving cases.

For more information, including the full details of penalties for drink driving offences which appear in the Appendix at the end of the commentary, see the By Lawyers Traffic Offences guide.

Domestic Violence Evidence In Chief – NSW

By

A recorded video or audio statement of a domestic violence complainant, known as Domestic Violence Evidence in Chief, or DVEC, is admissible as evidence in chief in criminal proceedings for domestic violence offences and in concurrent or related proceedings for applications for apprehended domestic violence orders under the Crimes (Domestic and Personal Violence) Act 2007. This is pursuant to the provisions of Chapter 6, Part 4B of the Criminal Procedure Act 1986.

In the recent Supreme Court case of Director of Public Prosecutions (NSW) v Banks [2019] NSWSC 363  the court determined that a DVEC may be admitted to evidence even where the complainant is not present at the hearing of the matter – although whether or not it actually will be admitted depends on the provisions of the Evidence Act, as for any other piece of evidence.

The  considerations under the Evidence Act of the complainant’s reliability and the prejudice to the defendant of not being able to cross-examine the complainant still have to be overcome. A defendant’s solicitor should still be prepared to argue strongly against the DVEC being admitted in those circumstances.

The commentaries in the By Lawyers Criminal and Apprehended Violence Orders publications have been amended accordingly.

Mandatory alcohol interlock orders – NSW

By

Mandatory alcohol interlock orders were extended recently to have application to all mid-range drink driving offences, in addition to other serious alcohol offences and repeat offenders. Mandatory interlock orders are now a standard part of sentencing for drink driving offences in the Local Court. Interlock exemption orders are also available in certain circumstances.

By Lawyers content updated

Amendments have been made to the commentary and some precedent letters in the By Lawyers Traffic publication, within the NSW Criminal Guide, to cover in greater detail mandatory alcohol interlock orders and interlock exemption orders. Enhancements in this regard have also been made to the Appendix of traffic penalties for drink driving offences, located at the end of the Traffic commentary.

Mandatory alcohol interlock orders

Offenders who are subject to an alcohol interlock order can choose to install an interlock device in their vehicle at their own cost – currently about $2200 – and thereby reduce their disqualification period. The device prevents the vehicle being started unless the driver has a zero blood alcohol level. The devices also now incorporate facial recognition technology.

An offender who chooses to re-commence driving under an alcohol interlock order is then subject to a period during which they can only drive a vehicle fitted with an alcohol interlock device. The length of that period will depend upon the seriousness of the offence for which the order was imposed. If they choose not to install the interlock device, their disqualification period will continue for five years.

Interlock exemption orders

It is possible to seek an interlock exemption order. This means that the offender completes their entire disqualification period and must attend a Sober driver program – which currently costs $770 – but they are not subject to any interlock period. Good reasons need to be provided in support of an application for an interlock exemption order.

Further information

Practitioners should see the By Lawyers NSW Traffic Guide for further information.

Variation of contract – Conveyancing QLD

By

A new precedent Deed of variation of contract has been added to the By Lawyers Conveyancing Sale and Purchase guides for Queensland within folder B. CONTRACT > IF REQUIRED – DEED OF VARIATION OF CONTRACT.

The deed is in line with Public Ruling DA501.1.1 which sets out the Commissioner of State Revenue’s practice in relation to the variation of the purchase price or, another essential element, of an agreement for the transfer of land.

The public ruling provides for the terms of an agreement to be varied, including for a reduction in the purchase price, by deed and states that the agreement must be read in accordance with the provisions of the deed of variation. This process is in accordance with common law principles and will be acceptable to the Commissioner for the purposes of assessment of transfer duty. Any assessment of transfer duty based on a formally varied agreement will be made having regard to the terms of the formal amendments indicated by the parties in the deed.

This precedent was added in response to feedback from a By Lawyers user.

Partnerships – updated precedents- FED

By

The By Lawyers Partnerships publication has been updated, as follows:

Partnership agreements amended in Partnerships guide

The Partnership agreement and Limited partnership agreement precedents have been amended in a number of respects, including:

    • The ‘Duration of partnership’ clause has been removed, as this is sufficiently covered in the ‘Expulsion, retirement or death of a partner’ and ‘Dissolution’ clauses;
    • A new clause 4 (b) has been inserted, to allow for non-monetary capital contributions if these are agreed between the partners. A corresponding clause has been inserted as 8(d) in the Limited partnership agreement;
    • The ‘Expulsion of a partner’ clause has been updated to become ‘Expulsion, retirement or death of a partner’ and now has improved function. Please review the clause for the changes made. The corresponding clause in the Limited partnership agreement is named ‘Termination of partner’;
    • The ‘Winding up’ clause in the Partnership agreement has been renamed ‘Dissolution’ and amended to provide additionally for the situation where the partners agree to dissolve the partnership;
    • The ‘Notices’ clause has been amended to remove facsimile delivery;
    • Various other small amendments have been made to improve readability.

New letters added to Partnerships matter plan

Two new precedents letters have been added to the Partnerships matter plan:

      • Letter to client with draft partnership agreement – for originally sending the draft partnership agreement to the client;
      • Letter to client with draft agreement – for sending later variations of the document to the client.

These additions and amendments have been made as a result of user feedback and author review, to enhance the publication and assist solicitors in their daily practice when advising upon and preparing documents for clients entering into partnerships.

Practitioners who are regular users of these precedents may benefit from a careful review of each clause in the agreements, to ensure they are familiar with the amendments.

Water access rights – NSW

By

A new chapter on water access rights has been added to the By Lawyers Reference Guide 1001 Conveyancing Answers (NSW).

The new content covers water access rights via licences (WAL’s) issued under the Water Management Act 2000, which are required to extract water from rivers or aquifers to use for irrigation, industrial or commercial purposes.

Note that WaterNSW is responsible for issuing water access licences.

By Lawyers do not currently offer a full commentary on the increasingly complex and valuable rights attaching to the usage, allocation and trading of water, but the new content in 1001 Conveyancing Answers assists as a starting point for NSW practitioners who are called upon to advise clients in relation to the rights attaching to water in various circumstances, whether in the context of property transactions, property development, or stand-alone water trading transactions.

Helpful interactive links are also provided in the new content to allow users to quickly access the detailed information available on the WaterNSW website.

Water rights – QLD

By

A new chapter on water rights has been added to the By Lawyers reference guide 1001 Conveyancing Answers for Queensland.

The new content covers water allocations, water licences, overland flow, water trading and searching the register. Note that the Registrar of Land Titles is also the Registrar of Water Allocations.

By Lawyers do not currently offer a full commentary on the increasingly complex and valuable rights attaching to the usage, allocation  and trading of water, but the new content in 1001 Conveyancing Answers assists as a starting point for Queensland practitioners who are called upon to advise clients in relation to the rights attaching to water in various circumstances, whether in the context of property transactions, property development, or stand-alone water trading transactions.

Helpful interactive links are also provided in the new content to allow users to quickly access the detailed information available on the Business Queensland website.

For LEAP users, the new matter types now available in Queensland for Rural Law/Agribusiness, which include Water licences and Water allocations, contain all relevant Land Registry forms relating to water rights. These new matter types are available via Other Areas of Law in the Browse tab from within any LEAP matter.

Restraining orders – New publication – WA

By

By Lawyers are delighted to announce the release of our newest publication, Restraining orders in Western Australia.

Our new guide covers all types of restraining orders available under the Restraining Orders Act 1997 including:

  • family violence restraining orders (FVRO);
  • violence restraining orders (VRO) – when an act of abuse has been, or is feared will be, committed; or
  • misconduct restraining orders (MRO) – when a person behaves in an intimidating or offensive manner, which may lead to a breach of the peace or damage to property.

With detailed commentary and precedents, the new publication provides everything a practitioner will need to represent either a respondent or a person seeking to be protected in proceedings for restraining orders in the Magistrate’s Court or Children’s Court.

The commentary sets out important factors which influence an application, including the presence of a family relationship and other important eligibility criteria, the service and duration of orders as well as the types of restraints that a magistrate may place on the person bound.

The commentary also provides valuable guidance on how to negotiate restraining orders at court, as well as other valuable strategies such as a conduct order on a without admissions basis and the use of undertakings. Appeals and costs orders are also covered.

The commentary also assists with advising a client that is bound by a restraining order on the offences and penalties which may apply.

Other issues discussed in the commentary include:

  • interim orders;
  • telephone applications;
  • the role of police and welfare officers in making a restraining order applications;
  • restraining orders in bail applications and family law proceedings;
  • interstate applications and the National Domestic Violence Orders Scheme.

Key precedents include:

  •  The application forms as well as example content precedents to use for the application;
  • Undertakings; and
  • Instructions to oppose or consent to an order.

By Lawyers is always working to increase our content for subscribers. Our new guide for WA Restraining orders is available in the WA Criminal guide from a LEAP matter via the Guides & Precedents tab, or on the By Lawyers website.

 

 

Connect with us