ByLawyers News and Updates

Get Ready – Our New Website Is Launching!

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On 10 July, we’ll be transitioning to our upgraded website. While the design and layout will feel familiar, we’ve made significant improvements behind the scenes to deliver a faster, more reliable experience and new subscription options. The website address bylawyers.com.au will not change.

New Subscription options

  • Multi-Publication Discount – Save 10% when you subscribe to two or more publications.
  • All Publications Plan – Access everything in your jurisdiction for just $500 + GST/month or $5,000 + GST/year.
  • Team Logins – Give team members their own login for 50% of the subscription cost.

What does that mean for our subscribers?

Subscribers will be sent an email with a link to confirm their account on the new website. This is done by resetting the password and entering payment details, as we cannot transfer these to the new site for security reasons.

Please note: Access to the current website will end on 10 July. To avoid any disruption to your subscription, you’ll need to complete the above steps to confirm your account.

To celebrate the launch and thank you for making this transition with us, we’re offering an additional 3-month free subscription to a publication of your choice — available once your account is confirmed!

If you have any questions or need help with the transition, our team is here and happy to assist – support@bylawyers.com.au

Bail Division – NSW

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A new centralised Bail Division has been introduced in the Local Court of NSW to hear weekday adult bail matters from across the State. All matters will be heard by audio visual link.

Practice Note – Bail Division Proceedings has effect from 7 July 2025 and sets out the practice and procedure in the Bail Division, in conjunction with Practice Note – Criminal Crim 1 and Practice Note – Domestic Violence Matters – 2/2012.

All applications will be conducted in open court subject to any orders for restricted access.

The Bail Division will only hear first instance applications for bail by adult applicants who have been refused police bail.

Only applications received by the court before 12 noon will be heard on the day. Any accused who fails to make the deadline will have priority in the next day’s Bail Division list at 9.30 am.

Any documents relied on in support of a bail application must be filed electronically with the registry and sent to the prosecution before the hearing.

Oral submissions are limited to 10 minutes per application for both sides, unless the court allows further time. If a matter is not reached by 4 pm it will be stood over to the next available court day.

When a bail application is made, the court must complete a Summary of Reasons for Bail Decision of Court Form, which is annexed to the Practice Note – Bail Division Proceedings.

For bail applications made on weekends in Centralised Bail Courts, Practice Note – Bail Proceedings (Weekend Centralised Bail Courts) sets out the practice and procedure to be adopted in the proceedings, in conjunction with Practice Note – Criminal Crim 1.

A new Practice Note – Court Closure AVL Proceedings (Downing Centre) provides that unless an order has been made to bring the defendant before the court in person, all hearings scheduled before the Local Court Downing Centre for persons in custody must be conducted by way of audio visual link if it is reasonably practical and the accused or their legal representative consent.

The By Lawyers Local Court – Criminal publication has been updated accordingly.

Defamation – TAS

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The long-awaited second stage of the uniform defamation law reform has effect in Tasmania from 16 June 2025.

These reforms have already commenced in the ACT, NSW, and VIC. Other states are expected to follow in time.

The amendments include:

Exemption from liability in defamation as publishers for digital intermediaries

The legislation now provides an exemption from liability in defamation for digital intermediaries providing caching, conduit, or storage services, provided the intermediary did not:

  1. initiate the steps required to publish the matter;
  2. select any of the recipients of the matter;
  3. encourage the poster of the defamatory material to publish the matter;
  4. edit the content of the matter either before or after it was published; or
  5. promote the matter either before or after it was published.

This exemption applies regardless of whether the digital intermediary knew, or should have known, the digital material was defamatory.

Exemption from liability under defamation law for search engine providers

Like digital intermediaries, search engine providers are not liable for defamatory material comprising search results if the provider’s role is limited to providing an automated process for the search engine user to generate search results or hyperlinks, provided the search results or hyperlinks are not promoted or prioritised by the search engine provider receiving a payment or another benefit by or on behalf of a third party.

The provision applies regardless of whether the search engine provider knew, or  should have known, the digital material was defamatory.

Early determination of digital intermediary exemptions

The court must determine whether a defendant has a digital intermediary exemption and whether the exemption is established as soon as practicable before the trial commences unless there are good reasons to postpone the determination. In doing so, the court can make any orders it considers appropriate, including dismissing the proceedings, if satisfied the digital intermediary exemption is established.

Content of offer to make amends

The digital intermediary exemptions from liability as publishers include changes to offers to make amends. For digital content, an offer to make amends can now include an offer to prevent access to the defamatory material, instead of, or in addition to other forms of redress.

Orders for preliminary discovery in defamation cases about posters of digital matter

Defamation litigants can take advantage of pre-litigation or preliminary discovery to assist in identifying the poster of defamatory material or their physical or digital address. This assists with serving concerns notices and court proceedings.

Defence for publications involving digital intermediaries

This new defence is available if a digital intermediary has provided an accessible complaints mechanism for an aggrieved person to use and they use it to make a complaint.

The digital intermediary must have taken reasonable steps to prevent access to the defamatory material, either before the complaint was received, or within seven days of receiving it.

The complaints mechanism must be an easily accessible address, location, or other mechanism available for the plaintiff to use to complain to the defendant about the publication of the digital matter concerned.

Defence available to content moderators

The defence of digital intermediary is available to defendants who moderate content by taking steps to detect or identify and remove, block, disable, or otherwise prevent access to content that may be defamatory, or that breaches the terms or conditions of the online service.

Orders against non-party digital intermediaries

If a plaintiff secures judgement, or an injunction, against a defendant in proceedings the court may order a non-party digital intermediary to take access prevention steps, or other steps the court considers necessary to prevent or limit the continued publication or re-publication of the matter complained of.

The court can require access prevention steps to be taken in relation to all or only some of the users of an online service.

The new section does not limit the court’s other powers to grant injunctions or make other orders for access prevention.

Service of notices and other documents

The amendments expand the existing options for serving notices and documents to include messaging or other electronic communication to an electronic address or location indicated by the recipient.

Extension of the defence of absolute privilege under uniform defamation law

Concerns were raised in the Stage 2 review of the uniform defamation law about liability in defamation for someone reporting a person to the police for suspected wrongdoing, and then being sued by that person in defamation if the police dismiss the complaint for lack of evidence or absence of culpability on the part of the person reported.

These concerns were addressed by amending the absolute defence provisions of the uniform defamation law to provide that defamatory matter published to a police officer while the officer is acting in an official capacity is covered by the defence of absolute privilege.

Publication updates

The By Lawyers Defamation and Protecting Reputation publication has been updated accordingly.

Family Law Act – FED

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Changes to the Family Law Act 1975 (Cth) under the Family Law Amendment Act 2024 have effect from 10 June 2025.

The bulk of the amendments relate to property matters, including:

  • significant changes to s 79 of the Act by codifying the four-step process and bringing the s 75(2) considerations into s 79;
  • introducing a new s 79(5) concerning material wastage of assets by one party and the treatment of liabilities;
  • new principles for conducting proceedings;
  • adding the pre-action disclosure obligations in the FCFCOA’s rules into the Family Law Act;
  • requiring greater consideration of the impacts of family violence on property division, including introducing a new 79(4)(ca) relating to the effect of family violence on a party’s ability to make contributions to the marriage, and adding examples under the definition of family violence of economic or financial abuse;
  • a new s 79AA making property orders enforceable against the estate of a deceased party;
  • a new definition of companion animals and the ability for the court to make orders about ownership of them, including transfer to a third party;
  • extension of the Less Adversarial Trial process to property cases in certain circumstances;
  • expanding the court’s power to order arbitration.

Amendments that are not specific to property cases include:

  • repealing ss 44(1B) and 44(1C) to remove the limitation on divorce orders within 2 years of marriage;
  • the requirement for an appearance at a divorce hearing by a sole applicant where there are children under 18 years;
  • updating the costs provisions in the Act by introducing a new Part XIVC and repealing ss 117, 117AA, 117AC, 117C(2);
  • more comprehensive regulation of children’s contact services;
  • introducing a new Division 1B in Part XI, being a scheme to protect sensitive information held by professional service providers.

The By Lawyers Property Settlement and 101 Family Law Answers publications have been updated accordingly.

Some changes under the amending Act commenced on 11 December 2024. They related to Commonwealth Information Orders in children proceedings, and separation declarations relevant to financial agreements. The Children and Financial Agreements commentaries have already been updated for those changes.

In the course of these updates, all the By Lawyers Family Law publications have been thoroughly reviewed and enhanced. Subscribers will notice new and revised commentary, re-ordering of content in the commentaries and on the matter plans, new and amended precedents, new cases, and updated links to legislation and other useful resources. As always, we welcome feedback from our users about these publication updates to: askus@bylawyers.com.au

Claim farming – NSW

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Claim farming is the practice of giving or receiving consideration for a claim referral or potential claim referral or soliciting or inducing a claimant to make a claim for personal injury. This practice is now banned under the Claim Farming Practices Prohibition Act 2025 (the Act) which came into effect on 9 April 2025.

When the Act applies

The Act applies to all personal injury claims as defined in s 11 of the Civil Liability Act 2002, including intentional torts. Some personal injury claims are not covered, including dust diseases claims, claims relating to tobacco use, workers compensation, and motor vehicle accident claims.

Criminal consequences

The Act makes breaches of its provisions a criminal offence with a maximum penalty of $55,000.

Section 5 makes it an offence to contact a person:

  • to solicit them to make a claim for personal injury damages; or
  • to refer them to a third party to provide services in relation to a claim; or
  • using a third party to contact a person for the above purposes,

if the person making the contact receives a fee or other benefit, or agrees or expects to receive a fee or other benefit, or asks that someone else receive a fee or other benefit because of the contact.

Section 6 makes it an offence to:

  • provide or receive a fee or other benefit for the referral of a claim in civil proceedings; or
  • enter into agreements or arrangements relating to referrals of claims for a fee or other benefit.

Professional consequences

Conduct contrary to the Act by a lawyer can also amount to unsatisfactory professional conduct or professional misconduct irrespective of whether the lawyer has been convicted of an offence under the Act. Section 165B of the Legal Profession Uniform Law Application Act 2014, which sets out the conduct capable of amounting to unsatisfactory professional conduct or professional misconduct, was amended to include contraventions of the Act.

Costs consequences

The Act further inserts s 61A to the Legal Profession Uniform Law Application Act 2014 which provides that if a lawyer breaches the Act and is convicted, legal costs cannot be charged or recovered for the claim and any costs that have been paid must immediately be refunded. The costs can be recovered as a debt by the client.

Exceptions

Some exceptions apply to the application of the Act. It is not an offence if a lawyer acting for a claimant refers the matter to another person providing a service for the claim, or the claim is transferred because the law practice is sold.

There is also an exception for advertising, marketing, or promoting a legal practice: s 7.

Publication updates

The By Lawyers Personal Injury (NSW) guides have been updated accordingly.

ADVO – NSW

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From 31 March 2025, new offences for knowingly contravening an apprehended domestic violence order (ADVO) apply.

The new offences are found in s 14(1A)–(1C) of the Crimes (Domestic and Personal Violence) Act 2007.

Section 14(1A) makes it an offence to knowingly contravene an ADVO with the intention of causing physical or mental harm to the protected person under the order, or to cause the protected person to fear for their safety or that of another person. A maximum penalty of 3 years imprisonment or 100 penalty units, or both, applies.

Section 14(1B) provides that a person intends to cause a protected person:

  • physical or mental harm; or
  • to fear for their safety or the safety of another person,

if the person knows the conduct is likely to cause that harm or fear.

Under s 14(1C), a person who:

  • knowingly contravenes an ADVO against them; and
  • on at least two other occasions in the 28 days immediately preceding the contravention, also knowingly contravened:
    • an ADVO in relation to the same person who was protected under the ADVO the person contravened earlier; or
    • the same ADVO, whether or not in relation to that same protected person; or
    • an ADVO arising from the same application under Part 10 of the Crimes (Domestic and Personal Violence) Act 2007, whether or not in relation to the same protected person, and
  • the conduct would be considered by a reasonable person to be likely to cause the protected person physical or mental harm, or to fear for their safety or the safety of another person, whether or not that harm or fear was actually caused,

is guilty of an offence subject to a maximum penalty of 5 years imprisonment or 150 penalty units, or both.

The By Lawyers Apprehended Violence Order (NSW) guide has been updated accordingly.

Franchising Code – FED

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A new Franchising Code of Conduct operates from 1 April 2025.

The new code is set out in Chapter 2 of the Competition and Consumer (Industry Codes-Franchising) Regulation 2024. Sections have been significantly reordered and renumbered from the previous code in Schedule 1 to the Competition and Consumer (Industry Codes-Franchising) Regulation 2014. The new code of conduct generally applies to all franchise agreements entered into, renewed, extended or transferred on or after 1 April 2025. However, some changes apply from later dates under transitional provisions relating to franchise agreements and disclosure requirements.

Amendments

Key changes to franchise agreements and disclosure requirements under the new code include:

Franchise agreements

  • Removal of the requirement for franchisors to create, maintain, or provide a Key Facts Sheet for prospective franchisees. This applies from 1 April 2025.
  • Restrictions on restraint of trade clauses where a franchise agreement contains an option for the franchisee to renew or extend the agreement and the franchisor does not do so. This applies to agreements entered into, transferred, renewed, or extended on or after 1 April 2025.
  • Franchisees must be compensated for early termination in certain circumstances. Agreements are required to specify how compensation is determined. This applies to agreements entered into, transferred, renewed, or extended on or after 1 November 2025.
  • Franchisees must have a reasonable opportunity to make a return on any investment required by the franchisor as part of entering into the agreement. This applies to agreements entered into, transferred, renewed, or extended on or after 1 November 2025.
  • Franchisors may, on certain expanded grounds, terminate a franchise agreement with 7 days’ notice. This applies to agreements entered into, transferred, renewed, or extended on or after 1 April 2025.
  • Franchisees can opt out of both disclosure and the 14-day cooling-off period if a new agreement with the same franchisor is substantially similar to their current agreement. This applies from 1 April 2025.
  • Marketing and cooperative funds are now combined as a specific purpose fund to which franchisees contribute and which must be used for a specified purpose related to the business’s operation. This applies from 1 November 2025. Franchisors are to operate existing marketing and cooperative funds in compliance with the old code until this time.
  • The Australian Small Business and Family Enterprise Ombudsman now has the ability to name and shame franchisors who refuse to engage in or who withdraw from alternative dispute resolution processes. This applies from 1 April 2025.

Disclosure requirements

From 1 November 2025, all disclosure documents must include certain information set out in Schedule 1 of the Regulation.

Additional information to be provided in the new disclosure document includes:

  • telephone number and email address of former franchisees;
  • whether a franchisee could face competition from businesses not associated with the franchisor; and
  • details about whether the franchisee is required to undertake significant capital expenditure during the term of the franchise agreement.

Any materially significant facts that arise between the preparation of a disclosure document and when it is provided to a potential franchisee must also be disclosed.

A franchisor need not include the new requirements for specific purpose funds and significant capital expenditure in its disclosure document until 1 November 2025, but may choose to do so.

From 1 April 2025, the franchisor’s Franchise Disclosure Register profile must also include:

  • any convictions for a serious offence;
  • any relevant judgment in civil proceedings;
  • any relevant bankruptcy or insolvency; and
  • whether its franchise agreement provides for arbitration of disputes.

Publication updates

The By Lawyers precedents Franchise Agreement and Model Disclosure Document for Franchisee or Prospective Franchisee precedents, available on the Sale of Business and Purchase of Business matter plans for each state, and the commentary on Franchises, have all been updated accordingly.

Family Law regulations – FED

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The following changes to various regulations under the Family Law Act apply from 1 April 2025:

The new provisions are substantially the same as the old ones, but they are renumbered and have minor drafting changes to modernise them and support the operation of the Family Law Act after some recent amendments.

Regulation 53 of the 2024 Regulations now contains the prescribed Information Sharing Agencies for the purpose of the Federal Circuit and Family Court of Australia being able to issue Information Sharing Orders.

The superannuation regulations support Parts VIIIB and VIIIC of the Family Law Act 1975 by prescribing:

  • the methods and factors for valuing superannuation interests;
  • the way in which superannuation payment flags and splits are put into effect; and
  • the information that trustees must provide to parties to property proceedings, and to couples negotiating a superannuation agreement.

The Family Dispute Resolution Practitioners Regulations provide for the accreditation, certification, and administration of such practitioners.

By Lawyers Divorce, Children, Financial Agreements and Property Settlement guides have been updated to reflect the new regulations as required.

The following FCFCOA forms have changed to update references to the regulations:

  • Consent order kit;
  • Application for consent orders;
  • Superannuation information kit;
  • s 60I Certificate of Dispute Resolution;
  • Application in arbitration;
  • Form 1 (previously Form 1A) – Request for service abroad of judicial documents and certificate;
  • Form 2 – (previously Form 2A) – Summary of the documents to be served;
  • Form 6 – Application for arbitration;
  • Form 7 – Application relating to relevant property or financial arbitration;
  • Form 8 – Application to register arbitration award;
  • Form 9 – Application to register decree affecting registered arbitration award;
  • Response to an application in an arbitration;
  • Subpoena in arbitration.

The new version of the s 60I certificate must be used after 1 April 2025 but certificates in the old form issued within 12 months will still be accepted.

County Court – VIC

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Common Law Division Practice Note PNCLD 1-2025 takes effect in the County Court from 25 March 2025 and replaces 21 existing practice notes.

The new practice note, which stretches to 159 pages and includes a dictionary setting out key definitions, covers all the practices and case management expectations for all proceedings in the Common Law Division, including for the various specialist lists, and Appeals.

The new Common Law Division practice note supersedes the following practice notes:

  • PNCLD 1-2023 Common Law Division practice note
  • PNCLD 2-2023 Serious injury applications practice note
  • PNCLD 3-2022 WorkCover List practice note
  • PNCLD 4-2023 Family Property List practice note
  • PNCLD 5-2023 Medical List practice note
  • PNCLD 6-2023 Confiscation List practice note
  • PNCLD 7-2023 Defamation List practice note
  • PNCLD 8-2023 Adoptions, Surrogacy and Name Change List practice note
  • PNCLD 12-2023 Applications for approval of compromise practice note
  • PNCLD 13-2022 Applications by a solicitor for costs in work injury damages claims practice note
  • PNCLD 14-2023 Applications to file a notice of ceasing to act practice note
  • PNCLD 15-2023 Applications to take evidence by deposition practice note
  • PNCLD 16-2023 Information Technology (IT) practice note
  • PNCLD 17-2023 Judicial mediation practice note
  • PNCLD 18-2023 Subpoenas practice note
  • PNCLD 19-2023 Institutional Liability List practice note
  • PNCLD SP-2-2022 Suppression, pseudonym (and like) order applications practice note
  • PNCLD SA 2-2022 Applications for compensation under s85B of the Sentencing Act 1991 practice note
  • PNCLD SO 2-2022 Applications for supervision orders under the Serious Offenders Act 2018 practice note
  • PNCLD FV 2-2024 Family Violence and Personal Safety Intervention Order appeals practice note
  • PNCI 9-2021 eCase: electronic subpoenas practice note.

The specialist lists dealt with by the practice note are:

  • The Civil Claims lists: Serious Injury List; WorkCover List; Medical List; Institutional Liability List; Defamation List; Family Property List; and the General List.
  • Adoptions, Surrogacy and Name Changes List.
  • Confiscation List.
  • Appeals and Post Sentence Application List.

Commentary links for both Acting for the Plaintiff and Acting for the Defendant in the By Lawyers County Court (VIC) publication have been updated accordingly.

Sexual harassment – QLD

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From 1 March 2025, all businesses with operations in Queensland are required to have a written prevention plan to manage the risks associated with sexual harassment and sex or gendered-based harassment. The requirement arises under the Work Health and Safety Act 2011 (Qld) and the Work Health and Safety Regulation 2011 (Qld).

Any business without such a plan in place or that has not taken reasonable steps to make workers aware of the plan, is in breach of the Regulation and subject to fines of up to $6,000 per offence.

By Lawyers 101 Staff Handbook, part of the popular Practice Management publication, includes a national Discrimination, harassment and bullying policy that is an excellent starting place for QLD firms needing to comply with the legislative requirements.

More detailed state-specific resources are available on the WorkSafe QLD website, including a prevention plan template.

The commentary in the By Lawyers Practice Management publication will assist Queensland practitioners in formulating their management plan and reducing their risk. It includes a detailed discussion about sexual harassment with specific areas of focus for the legal profession and links to relevant cases involving law firms. There is also an outline of the factors that should be considered when implementing firm policies to ensure that they have the desired effect and prevent discriminatory and other unwelcome workplace practices.

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