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Subpoena objections – FED and All states

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A new case on subpoena objections has been added to the By Lawyers Reference Guide 101 Subpoena Answers.

In Weeks v Nationwide News Pty Ltd [2019] WASC 268, the court considered whether a subpoena in a defamation case should be set aside for lack of  a legitimate forensic purpose (LFP).

The court succinctly stated the law on LFP, to the effect that The issuing party must identify expressly and with precision the legitimate forensic purpose for which they seek access to the documents. The issuing party must then satisfy the court that it is ‘on the cards’ that the documents would materially assist the issuing party in their defence‘.

In this regard the Court followed the leading LFP cases of R v Saleam (1989) 16 NSWLR 14 and Alister v R (1984) 154 CLR 404, 414. The Court also followed the earlier Western Australian full court decision of Stanley v Layne Christensen Co [2004] WASCA 50 regarding legitimate forensic purpose. The subpoena in this case was set aside.

This Western Australian decision has been added to 101 Subpoena Answers under the section on Legitimate forensic purpose in civil cases. This publication is an excellent resource for practitioners conducting litigation and dealing with subpoenas in all courts, whether issuing or responding, and including subpoena objections.

101 Subpoena Answers is available in all By Lawyers state court Litigation publications, as well as our Family Law, Family Provision, Injuries, Employment Law and Defamation guides.

 

Homemade wills – NSW

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The Supreme Court of NSW recently considered homemade wills in Jones v Robinson & Ors [2019] NSWSC 932.

Particularly in question was the appropriate interpretation where ambiguity existed in the document.

The Court affirmed the ‘well accepted’ principles from Justice Isaacs in Fell v Fell (1922) 31 CLR 268 on the construction of wills and further noted that:

‘With any homemade will the language used will often be informal, but the plain meaning of words should not be ignored. Moreover the instrument has to be viewed as a whole. Inaccuracies or inconsistencies should be looked at so as to best preserve a testator’s intention and that approach should be a predominant consideration in the construction of the instrument’.

In determining that the testator’s failure to deal with the residuary of her estate did not create an intestacy, the Court stated that ‘The mere fact that the creator of a homemade will did not contemplate every legal contingency or the potential of residue does no more than highlight that the maker is not a lawyer’.

Of course the mere fact that ambiguity existed and an expensive court case was required to resolve it, tends to support the value of wills drafted by lawyers over homemade wills. The By Lawyers Wills publication contains carefully drafted wills precedents, a library of additional clauses and practical commentary written by experienced lawyers, to assist practitioners who are preparing wills for their clients. The By Lawyers Wills publication also includes the By Lawyers Reference Guide 101 Succession Answers – to which Jones v Robinson has now been added.

Litigation guardian – solicitor’s certificate – VIC

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A new precedent ‘Solicitor’s certificate – Appointment of litigation guardian’ – has been added to By Lawyers Victorian civil litigation publications.

This precedent meets the requirement of reg 15.03(6)(a) of the Supreme Court (General Civil Procedure) Rules 2015. This regulation requires that, when seeking appointment of a litigation guardian in civil proceedings in the Supreme Court and the County Court, a certificate is to be completed by the solicitor for the person under disability certifying that the solicitor knows or believes that—

  1. the person to whom the certificate relates is a person under disability, including the grounds of the solicitor’s knowledge or belief; and
  2. the litigation guardian of the person under disability has signed the written consent and has no interest in the proceeding adverse to that person.

This certificate must be filed in the office of the Prothonotary before a person can be named as a litigation guardian in proceedings.

This helpful new precedent has been added to the By Lawyers Supreme Court, County Court and Family Provision claims publications. The precedent was created by our author as a result of feedback from a subscriber.

Setting aside financial agreements – FED

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A recent case on setting aside financial agreements has been added to the By Lawyers 101 Family Law Answers publication.

Section 90K(1) of the Family Law Act 1975 provides for the limited circumstances in which a court will consider setting aside financial agreements entered into by married couples. The equivalent section for de facto couples is s 90UM.

In Frederick & Frederick [2019] FamCAFC 87, the Full Bench of the Family Court set aside a financial agreement on the grounds that there had been a material change in the circumstances relating to the care, welfare and development of a child of the marriage and the applicant would suffer hardship if the agreement were not set aside – s 90K(1)(d).

See 101 Family Law Answers and the By Lawyers Family Law commentary for more information.

Training and supervision – Podcast

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Training and supervision of junior professional staff is a critical area for law firms. It impacts directly on many key areas of the practice: quality and consistency of output, productivity, team harmony and staff retention – and perhaps most importantly of all client satisfaction.

Our Managing Director Brad Watts recently shared some thoughts, as part of a LEAP global podcast series, about how By Lawyers practical legal guides can assist with training and supervising junior lawyers. Brad has 25 years of legal practice experience and is one of the contributors to the By Lawyers Practice Management guide.

Listen to the podcast to hear how By Lawyers guides can assist firms and individual solicitors with their training and supervision requirements.

By Lawyers guides include detailed commentaries and reference materials which are powerful tools to help ensure junior lawyers  have the guidance and support they need, improving productivity and retention of staff, while easing the pressure on principals and more senior lawyers.

Enjoy practice more, with By Lawyers.

 

 

Special Hardship Order – Traffic law – QLD

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Following recent amendments, Queensland drivers who are subject to a Special Hardship Order can no longer accumulate any demerit points. If they do, their licence will be suspended for double their original suspension period.

A Special Hardship Order is available under the Transport Operations (Road Use Management–Driver Licensing) Regulation 2010. An application can be made by a driver whose licence has been suspended. The driver must present the court with affidavit evidence that they meet certain criteria and establishing hardship as a result of the licence suspension. If the order is granted the driver will be able to resume driving but will be subject to the conditions of the order for a period equating to the original suspension period.

Breaching the conditions of a Special Hardship Order attracts a fine of 20 penalty units and automatic disqualification for the remainder of the original suspension period, plus 3 months.

Effective from 1 July 2019, drivers who are subject to a Special Hardship Order will also be unable to accumulate any demerit points.

See the By Lawyers Traffic Law guide for more information.

1 July updates – FED and All states

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1 July updates are a big focus for By Lawyers. This is because many commonwealth and state legislative instruments provide for scheduled indexing of relevant monetary amounts and increases in government fees and charges.

These updates can include court filing fees, lodgement fees for property dealings, minimum weekly compensation amounts for Workers Compensation and various fines.

By Lawyers always monitor these changes for our subscribers. Each year we ensure that our publications are amended where necessary to reflect 1 July updates.

We also monitor and update for legislative indexing and increases which occur regularly at other times. These include 1 January changes and also other specific dates prescribed by some statutes.

The 1 July updates have been applied to the following By Lawyers publications:

  • Conveyancing and Property;
  • Criminal;
  • Litigation;
  • Family;
  • Estates;
  • Injuries; and
  • Employment.

Stay updated with By Lawyers guides and precedents. Happy new financial year!

Retirement Villages – NSW

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From 1 July 2019 the Retirement Villages Amendment Act 2018 amends the legislation relating to retirement villages in NSW.

The amendments provide further protections for current and prospective residents. These amendments are intended to increase transparency, improve dispute resolution, provide more certainty around costs and strengthen villages’ safety and emergency planning and procedures.

The reforms include:

  • annual contract ‘check-up’ meetings;
  • enhanced sharing and publication of information;
  • binding Rules of Conduct for Operators of Retirement Villages with which operators must comply. These supplement the provisions in the Act and the regulations, with certain rules to commence 1 January 2020;
  • provisions for mediation of disputes;
  • new requirements for emergency plans, annual evacuation exercises and display of key safety information;
  • new auditor appointment processes.

Yet to commence are provisions requiring village operators to prepare and maintain an asset management plan for items of capital at the village for which the operator is responsible.

See the By Lawyers Retirement Villages (NSW) publication for further details.

Retail Lease Summary – VIC

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By Lawyers Leases guide in Victoria now includes a summary precedent for the By Lawyers Retail Lease.

This helpful document is similar to the LIV Schedule, however this precedent is not intended to form part of the lease – it is strictly a summary of the central terms.

Amendments and additions are to be made in Item 24 of the Disclosure Statement.

This Retail lease Summary is particularly useful when explaining the lease to the client.

The corresponding item number from the disclosure statement and/or relevant clause of the terms and conditions is displayed on the left.

This precedent was created as a result of a user request. By Lawyers loves to respond to feedback from our users.

 

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