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Judicial registrars in the Magistrates’ Court – VIC

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Some recent legislative amendments have expanded the categories of criminal offences which can be dealt with by judicial registrars in the Magistrates’ Court of Victoria.

The offence of Improper Use of a Motor Vehicle has now been added to the list of offences which can be dealt with by a judicial registrar rather than a magistrate.

All traffic offences commence in the Magistrates Court and most traffic offences remain there, as only a relatively few traffic offences such as culpable driving and dangerous driving causing death are serious enough to be dealt with on indictment.

Some criminal offences, including some traffic offences can be dealt with in the Magistrates’ Court by a judicial registrar – see Rule 6(ea) of the Magistrates’ Court (Judicial Registrars) Rules 2015 for a full list of these. This now includes Improper Use of a Motor Vehicle. One of the ways in which that offence can be committed is to drive a motor vehicle in a manner which causes the motor vehicle to undergo loss of traction by one or more of the motor vehicle’s wheels. The maximum penalty for the offence is 5 penalty units.

The Full Commentary in the By Lawyers Victorian Magistrates’ Court – Criminal publication has been updated accordingly.

The commentary also includes, in the Overview, an explanation of the nature and value of ‘penalty units’.

Family Violence Protection amendments – VIC

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Further provisions of the Justice Legislation Amendment (Family Violence Protection and Other Matters) Act 2018 commenced on 29 March 2019.

Relevant amendments include:

  • Examples have been added to the definition of Family Violence in s 5 (10) (b) of the Family Violence Protection Act 2008;
  • Interim or final protection orders for children at the court’s own initiative have been added to s 53AB (2) and s 77B (3) of the Family Violence Protection Act 2008 where an interim or final order has not been made for  affected family member of the child;
  • A new Specialist Family Violence Court Division has been established under the Magistrates’ Court Act 1989 which has jurisdiction to deal with proceedings in respect to the Family Violence Protection Act 2008 and other relevant acts.

Corresponding updates to the By Lawyers Intervention Orders guide, found in the Magistrates’ Court Criminal and Magistrates’ Court Civil publications for Victoria, have occurred or are  underway.

Remaining provisions of the amending act commence on 1 September 2020 if not proclaimed before.

Amendments to Family Law Act – FED

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Amendments to the Family Law Act commenced 10 March 2019 relating to family violence and cross-examination of parties.

They will apply to cross-examinations occurring on 10 September 2019 and thereafter, regardless of when proceedings were instituted.

The following sections have been added to the Family Law Act 1975:

  • 102NA Mandatory protections for parties in certain cases; and
  • 102NB Court‑ordered protections in other cases.

Section 102NA provides greater protection for parties in circumstances of family violence where there are self-represented parties.

If a party intends to cross-examine the other party, in certain circumstances, they may not do so personally and cross-examination may only be conducted by a legal representative. Those circumstances are:

  1. there is an allegation of family violence between the examining party and the witness party; and
  2. any of the following are satisfied:
    • either party has been convicted of, or is charged with, an offence involving violence, or a threat of violence, to the other party;
    • a family violence order, other than an interim order, applies to both parties;
    • an injunction under s 68B or s 114 for the personal protection of either party is directed against the other party;
    • the court makes an order that the requirements of legal representation for cross-examination are to apply.

If a party intends to cross-examine the other party personally and there are allegations of family violence, the court must ensure that during the cross-examination there are appropriate protections for the party who is the alleged victim of the family violence.

The By Lawyers Children and Property Settlement commentaries have been updated accordingly.

ARNECC Model Participation Rules Version 5

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The ARNECC Model Participation Rules Version 5 for e-conveyancing are in effect from 25 February 2019 in NSW, VIC, QLD, WA and SA.

Client Authorisation Forms

There are now two separate types of Client Authorisation Forms:

  • Client Authorisation Representative– authorises a solicitor or conveyancer to act for the client in a conveyancing transaction;
  • Client Authorisation Attorney– authorises a person acting under a power of attorney to act for the donor in a conveyancing transaction, the donor being the person giving the power.

The Client Authorisation Attorney form only applies to Subscribers signing as Attorneys and not any other Subscriber who may happen to be an Attorney e.g. a conveyancer or lawyer generally acting as their Client’s Attorney. A Representative Subscriber (conveyancers and lawyers) should continue to use the Client Authorisation – Representative form.

See rules 5.6 and 6.3 for requirements.

A new Guidance Note is currently being drafted by ARNECC that will provide further information regarding this new provision.

Practitioners must ensure they use the correct Client Authorisation Form for each conveyancing transaction.

These forms are available on all By Lawyers Conveyancing matter plans within Folder ‘A. Getting the matter underway > Verification of identity folder’.

Verification of Identity in mortgage transactions

Responsibilities for verifying the identity of mortgagors have been updated. Practitioners acting for a mortgagee, must take reasonable steps to verify the identity of mortgagors in accordance with r 6.5.1(b), even where the mortgagor is represented.

Additional identity documents

Australian Evidence of Immigration Status ‘ImmiCard’ and Australian Migration Status ‘ImmiCards’ are now acceptable types of identity documents and have been added to the table in Schedule 8 of the Model Participation Rules.

All relevant By Lawyers publications have been updated to reflect the ARNECC Model Participation Rules Version 5, including the detailed Verification of Identity commentary located in all conveyancing and property matter plans under Folder ‘A. Getting the matter underway’.

Jurisdiction of Small Claims Division increased – NSW

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An amendment to section 29(1)(b) of the Local Court Act sees the jurisdiction of the Small Claims Division increased from 28 February 2019.

The jurisdictional limit of the Local Court when sitting in its Small Claims Division will now be $20,000 as of 28 February.

Previously the jurisdictional limit was $10,000. The amendment does not apply to proceedings instituted in the Court before 28 February 2019.

This increase was legislated under the Justice Legislation Amendment Act (No 3) 2018 No 87 with commencement upon proclamation. The Governor of NSW made the proclamation on 13 February 2019.

The By Lawyers Local Court Civil publication has been updated accordingly.

Changes to Family Court Consent Orders kit and eFiling

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Changes to Family Court Consent Orders Kit and eFiling procedures have now taken effect, arising out of the Civil Law and Justice Legislation Amendment Act 2018. These include:

  • Updated information pages in the Application for Consent Orders Kit;
  • References to ‘husband’ and ‘wife’ replaced with ‘party to a marriage’ and/or ‘party to a de facto relationship’; and
  • Updated sectional references in the Family Law Act for superannuation in the Application for Consent Orders form.

The updated kit and form are now available in the By Lawyers Family Law publications.

eFiling

The Court recommends that practitioners use the ‘unguided’ process for uploading Application for Consent Orders forms. This process was introduced as part of the Digital Court Program and makes it easier to upload forms without having to input information twice. The ‘guided’ eFiling process will only remain available until 31 March 2019.

For more information about eFiling and the ‘unguided’ process see the By Lawyers Family Law guide, or visit the Digital Court Program on the Family Court website.

Domestic violence amendments – SA

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Some of the domestic violence amendments under the Statutes Amendment (Domestic Violence) Act 2018 have now commenced. The act makes a number of changes to domestic violence provisions, most of which commenced on 31 January 2019.

Amendments that commenced on 31 January 2019 include:

  • additions to the definition of ‘abuse’ in s 8 of the Intervention Orders (Prevention of Abuse) Act 2009 to include forcing a person to marry another person, preventing a person from entering the person’s place of residence and taking an invasive image (within the meaning of Part 5A of the Summary Offences Act 1953) of a person and threatening to distribute the image without the person’s consent;
  • increased penalties for breaching an intervention order, where a breach is a ‘second or subsequent’ offence, which generally means offences within 5 years of each other, AND the breach involves physical violence or the threat of it, then the maximum penalty is $20,000 and 4 years imprisonment (whereas the maximum penalty for a first offence is $1250 and 2 years imprisonment);
  • s 10A(d) of the Bail Act 1985 has been amended to classify certain domestic violence offences as ‘aggravated offences’ in  relation to which there is a presumption against bail;
  • new s 20A—Choking, suffocation or strangulation in a domestic setting has been added to the Criminal Law Consolidation Act 1935. This offence provides that a person who is, or has been, in a relationship with another person and chokes, suffocates or strangles that other person, without that other person’s consent, is guilty of an offence, the maximum penalty for which is imprisonment for 7 years.

Amendments yet to commence include:

  • where police are seeking to urgently vary an existing final order the court may now conduct a preliminary hearing in the absence of the defendant and may take evidence by telephone or such other means as the court determines appropriate and the rules of court allow;
  • where an Intervention order is sought by police, the applicant and anyone else for whose protection the order is sought, may give their evidence in the proceedings by recording and may only be cross-examined about that evidence if the court permits it.

These provisions are suspended until proclaimed, commencing on 6 December 2020 at the latest.

The commentaries in the By Lawyers Criminal SA and Intervention Orders SA guides have been updated accordingly.

Updated Motor Accidents Guidelines – NSW

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The Motor Accidents Guidelines which apply to motor accidents in New South Wales after 1 December 2017 under the Motor Accidents Injuries Act 2017 have been updated.

The Motor Accidents Guidelines are available on the SIRA website. The new Guidelines apply from 15 January 2019.

Links and applicable commentary references in the By Lawyers Motor Vehicle Accidents (NSW) guide have been updated accordingly.

Personal Property Securities – Expiry of default registration period

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On 30 January 2019 over 120,000 Personal Property Securities Register registrations will expire.

The first security interests were registered on 30 January 2012, and the default registration period for a security interest in consumer property or property described by a serial number is seven years.

It is important that anyone who has a security interest registered in 2012 reviews that registration to check its expiry date. The Australian Financial Security Authority provides a useful expiry report service.

If a registration expires it will no longer be perfected for the purposes of the Personal Property Securities Act 2009. In order to protect the secured parties’ interests, the security interest will need to be renewed before the registration expiry date.

The By Lawyers Personal Property Securities publication details how to renew or amend a registration and will assist in all Personal Property Securities Register matters.

Workers Compensation amendments – NSW

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The next tranche of workers compensation amendments under Schedules 1 and 2 of the Workers Compensation Legislation Amendment Act 2018 commence 1 January 2019, providing for the abolition of the administrative system of dispute resolution and reinstatement of the jurisdiction of the Workers Compensation Commission to determine disputes and make determinations of permanent impairment.

There is no commencement date yet for Schedule 3 of the amending Act, which provides for the introduction of a simplified process to determine an injured worker’s pre-injury average weekly earnings, with new Schedule 3 to the Workers Compensation Act 1987 providing the method for determining PIAWE and allowing insurers and workers to agree on the figure for PIAWE.

Provisions removing limitations on workers injured in motor vehicle accidents obtaining statutory benefits for treatment and care under that Act where their entitlement to workers compensation has ceased, or where they recover damages from the employer in respect of the injury, have already commenced.

The By Lawyers Workers Compensation (NSW) publication has been updated to deal with these amendments.

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