obiter | ByLawyers News and Updates

Costs agreements – All states

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Enhanced automation of Costs agreements for LEAP users

As part of By Lawyers ongoing objective to provide seamless and intuitive entry of information in our precedents, the automation of all Costs agreements has been enhanced.

With the use of the ‘LEAP for Word’ add-in and the creation of new LEAP fields, the By Lawyers Costs agreements precedents now offer LEAP users the following features:

New Questions – LEAP for Word add-in

Intuitive questions for inserting applicable fee scale, fixed fee and initial amount to be held in trust. The questions appear in the LEAP for Word panel:

Simply complete the required information and click the ‘Update Document’ button for this information to populate in the correct location:

 

 

 

 

For further information on using the LEAP for Word add-in, see the document ‘Working with By Lawyers precedents’ available in Folder A on all By Lawyers Guides.

Hourly rates – New LEAP fields

When charging professional fees on an hourly rate, the rates for relevant staff members now populates automatically from the ‘Rates’ information completed for each staff member in the ‘Staff Members’ section of your firm setting:

Disbursements – New LEAP fields

The ‘Disbursements’ section now populates from the information completed in the ‘Disbursements’ tab within ‘Firm Details’:

 

Estimate of total professional fees and disbursements – New LEAP fields

The ‘Estimate of total professional fees and disbursements’ section now populates from the information completed in the ‘Accounting’ tab within ‘Matter details’ in each matter:

Please do not hesitate to get in touch if you have any questions: askus@bylawyers.com.au.

Immigration work – FED

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Immigration publication substantially enhanced

Practitioners doing immigration work will find the By Lawyers Immigration publication has been substantially reviewed and expanded. The new content includes significant new commentary on reviews, appeals and ministerial intervention.

Lawyers doing immigration work

Practitioners will be aware that barriers to lawyers doing immigration work were lifted from 22 March 2021. Amendments to the Migration Act 1958 (Cth) removed the requirement for lawyers with an unrestricted practising certificate to also be registered as migration agents before doing immigration work for their clients. See the previous By Lawyers Obiter post Lawyers doing immigration work for more information.

The resultant opportunity has seen By Lawyers Immigration publication expanded to assist practitioners acting for clients in immigration matters.

Review, appeals and ministerial intervention

The existing section of the By Lawyers Immigration publication has had new commentary and precedents added. This new content will assist practitioners acting for an applicant who seeks to review a decision concerning an existing visa or a visa application. The publication now covers all possible review options up to and including High Court appeals.

New commentary and precedents

Enhancements include the addition of the following precedents and the expansion of the related commentary to provide highly practical resources on the review and appeals process:

Administrative Appeals Tribunal

  • Letter to client with costs agreement explaining the tribunal process
  • Letter to client re invitation to provide information from tribunal
  • Letter instructing expert witness to prepare report and attend tribunal hearing
  • Statement of Issues, facts and contentions
  • Draft minutes for consent order – Administrative Appeals Tribunal
  • Letter to client – Application for review of tribunal decision successful
  • Letter to client advising of tribunal refusal and attaching decision

Immigration Assessment Authority

  • Letter to client – Application for review of authority decision successful
  • Letter to client advising of authority refusal and attaching decision
  • Example content – Statutory declaration by applicant – Submission accurately and completely presents claim

Judicial review

  • Letter to client with costs agreement explaining the court process
  • Brief to Counsel
  • Example content – Grounds for application for judicial review
  • Example content – Affidavit to accompany application for judicial review
  • Example content – Final orders sought by the applicant
  • Example content – Affidavit for filing or tendering evidence
  • Example content – Affidavit in support of application for extension of time to lodge application for judicial review
  • Letter to client after decision – Application granted
  • Letter to client after decision – Application refused

The enhancement of this publication assists practitioners to do immigration work for clients in all type of Migration Act matters.

Remote execution of powers – VIC

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Victoria has introduced a permanent procedure for remote execution of powers of attorney, revocations and supportive attorney appointments.

The procedure arises from the temporary COVID-19 related remote execution and witnessing laws, that are now repealed.

The procedure requires:

  1. A special witness, who can be an Australian legal practitioner or justice of the peace;
  2. All steps of the procedure to be completed on the same day and within Victoria;
  3. The principal to sign – or direct someone to sign the instrument on their behalf, with that direction being heard by the witnesses – with all witnesses seeing the signature by audio visual link, or a combination of physical presence and audio visual link;
  4. The special witness to be the last person to witness;
  5. The document to be emailed to any witness attending by audio visual link, who must:
    • be reasonably satisfied that the document is the same document they witnessed the principal sign;
    • certify that they witnessed the document by audio visual link in accordance with the procedure;
    • sign the document, with the principal and other witnesses seeing them to do via audio visual link; and
    • in the case of the special witness, certify the document was signed and witnessed in accordance with the procedure, certify that they are a special witness and the type of special witness they are and note whether there is a recording of the process.

The By Lawyers Powers and advance care directives (Vic) guide has been updated accordingly for the new procedures on remote execution of powers. For LEAP users Power of Attorney forms have been updated as noted in the LEAP forms blog.

Remote execution of wills – VIC

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Victoria has introduced a permanent procedure for remote execution of wills.

The procedure arises from the temporary COVID-19 related remote execution and witnessing laws, that are now repealed.

The remote execution of wills requires:

  1. A special witness, who can be an Australian legal practitioner or justice of the peace;
  2. All steps of the procedure to be completed on the same day and within Victoria;
  3. The testator to sign the will – or to direct someone to sign the will on their behalf, with that direction being heard by the witnesses – with all witnesses seeing the signature by audio visual link, or a combination of physical presence and audio visual link;
  4. The special witness to be the last person to witness the will;
  5. The will to be emailed to any witness attending by audio visual link, who must:
    • be reasonably satisfied that the will is the same document they witnessed the testator sign;
    • ensure that there is a statement on the will noting that the witness witnessed the will being signed by audio visual link in accordance with the procedure;
    • sign the will, with the testator clearly seeing them do so by audio visual link; and
    • in the case of the special witness, check to ensure the will complies with the remote execution procedure and also ensure there is a statement on the will noting that the will was witnessed in accordance with the procedure and that they are a special witness and note whether there is a recording of the remote execution process.

The procedure for remote execution of wills also applies to revoking or altering an existing will.

The By Lawyers Wills (Vic) guide has been updated accordingly. This includes the addition of two new jurat clause precedents to the matter plan: Remote execution procedure – Witness and Remote execution procedure – Special witness.

Small business clients – FED

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A folder of new precedents for clients who are commencing or operating small businesses has been added to all Purchase of Business, Companies and Partnerships guides.

The new library of precedents provides a suite of documents which practitioners can provide to their clients who own and operate small businesses, to assist them with the day-to-day running of their businesses. These documents can be provided to clients both when they are setting up or purchasing a new business and when required for existing businesses. The documents are general in nature so they can be customised and amended as required for the needs of different clients. The precedents are designed to apply across various sectors, whether traditional storefront retail or online and whether supplying products or services.

The helpful new precedents available in the folder include:

  • Website terms of use – multiple precedents catering for different types of small business;
  • Example tax invoice;
  • Credit application form;
  • Liability waiver and consent form; and
  • Returns and refunds policy.

Subscribers will find the new ‘If Required – Library of precedents for small business clients’ folder located in:

  • Purchase of Business matter plan for each state – in the Reference materials folder;
  • Companies matter plan – in folder D. Running a company; and
  • Partnerships matter plan – in folder B. Establishing a partnership.

This practical material was added to these existing By Lawyers publications in response to requests and suggestions from By Lawyers subscribers. The precedents provide practitioners with additional tools so they can better assist their clients with all aspects of their businesses.

Casual employment – FED

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Recent amendments to the Fair Work Act

There is a new statutory definition of ‘casual employee’ from 27 March 2021. There is also an expanded statutory pathway for regular casual employees to convert their employment status to full time. Employers now have an obligation to offer permanent employment in certain circumstances.

Some relief has been granted to employers for underpayment claims from employees incorrectly classified as casual. This addresses instances of ‘double dipping’.

The Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 has introduced significant amendments to the Fair Work Act 2009 including:

Statutory definition

Section 15A provides that a person is a casual employee if they have been offered and have accepted employment on the basis that the employer gave ‘no firm advance commitment to continuing and indefinite work according to an agreed pattern…’.

Conversion to permanent employment

Additionally, for casual employees who fall outside the modern award framework there is a statutory obligation for employers to offer conversion to full or part-time employment, unless there are reasonable business grounds not to do so. This does not apply to small business employers.

Casual Employment Information Statement

Employers must provide casual employees with a Casual Employment Information Statement, before, or as soon as practicable after, they start their employment. This is additional to the Fair Work Information Statement.

Off-setting casual loading to prevent ‘double-dipping’

Employers are provided with relief for underpayment claims from employees incorrectly classified as casual.

Regular casual employee

The previous definition of ‘long term casual’ is replaced with ‘regular casual employee’. The definition relates to the element of employment on a regular and systematic basis, but without any specific time requirement.

By Lawyers keeps you up to date

For further details see the By Lawyers Employment Law publication which has been updated accordingly.

Apprehended violence legislation – NSW

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Apprehended violence legislation in NSW has been further amended.

Amending legislation

Further provisions of the Stronger Communities Legislation Amendment (Domestic Violence) Act 2020 commenced on 27 March 2021.

Duration of ADVOs

Where a defendant is sentenced to a term of imprisonment which is to be served in a correctional centre, the apprehended violence legislation now requires the court to specify that any related apprehended violence order (ADVO) will be in force for a period of two years longer than the sentence imposed. That does not apply if the court otherwise orders, or if the offender is under 18 years of age.  The term of imprisonment refers to the full sentence imposed by the court, including non-parole and parole periods. The additional two years is calculated with reference to the total sentence imposed by the court at the time that the ADVO is made.

Harming animals

The apprehended violence legislation has also been amended in relation to harming, or threatening to harm, animals belonging to or in the possession of a protected person.

Conduct that causes a reasonable apprehension of harm to animals belonging to or in the possession of the protected person is now within the definition of ‘intimidation’.

A person who engages in that conduct is guilty of an offence that carries a maximum penalty of five years imprisonment or 50 penalty units or both.

The change to the definition of ‘intimidation’ means that harm to animals belonging to or in the possession of the protected person is now included in the mandatory prohibition in every AVO which prohibits damage or destroying property. This amendment was based on evidence that threatening, injuring or killing family pets is a tactic used to control and coerce partners or other family members in the context of domestic violence.

New standard order

There is a consequential amendment under the Crimes (Domestic and Personal Violence) Amendment (Standard Orders) Regulation 2021, which also commenced on 27 March 2021. This amends the Crimes (Domestic and Personal Violence) Regulation 2019 to include in the standard orders a prohibition on harming any animals owned by or in the possession of the person in need of protection under an order.

By Lawyers Apprehended violence orders (NSW) publication has been updated accordingly.

Contracts subject to finance – Conveyancing – NSW

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New commentary and precedents for Contracts subject to finance have been added to the By Lawyers New South Wales Conveyancing Purchase of Real Property publication.

As a result of a suggestion from a By Lawyers user, we have updated the Purchase of Real Property (NSW) Guide with a new section of commentary and a folder of precedent letters.

The commentary now includes a section titled Contracts subject to finance, which discusses the increasingly common situation where a purchaser has not secured unconditional finance approval before exchange. Practical information is included on:

  • negotiating the inclusion into the contract of a special condition making completion subject to finance;
  • the effect of unsuccessful finance applications;
  • seeking an extension of time from the vendor where necessary;
  • serving written notice where finance falls through;
  • the requirement of the purchaser to not otherwise be in default when ending a contract;
  • continuing without unconditional approval;
  • forfeiture of deposit and damages – including negotiating a reduced amount.

The following new precedents to assist with contracts subject to finance have been added to Folder C. NEGOTIATIONS & EXCHANGE > IF REQUIRED – CONDITIONAL CONTRACTS:

  • Letter to vendor’s solicitor confirming contract unconditional;
  • Letter to vendor’s solicitor requesting extension of time; and
  • Letter to vendor ending contract.

At By Lawyers we pride ourselves on the cooperative and collegiate relationship we have with the many firms using our commentary and precedents daily. We value the feedback that we receive as it helps us continue to improve our publications, as in this instance. We love to hear from you!

Wills guide review – TAS

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The continuing commitment of By Lawyers to updating and enhancing our publications has seen a Tasmanian Wills guide review completed.

Subscribers using this publication will find a re-ordered and extended matter plan, plus a revised and updated commentary.

The commentary revisions and enhancements arising from this Wills guide review include:

  • The Overview has been expanded and re-ordered;
  • Additional practical guidance added under the new heading ‘Taking instructions for wills’;
  • New commentary on testamentary capacity and the test set out in the leading case of Banks v Goodfellow (1870) LR 5 QB 549 at 565;
  • Enhanced commentary and links to legislative provisions regarding the formal requirements for a valid will;
  • Newly consolidated commentary under  new heading: Revocation, marriage, divorce and revival;
  • Expanded commentary on Informal wills, with links to cases;
  • Re-ordered section on the rules of succession on intestacy, with relevant links to the Intestacy Act 2010 and the Relationships Act 2003;
  • Expanded commentary on executors and trustees, including solicitors as executors;
  • New commentary section focusing on the requirements for valid execution of a will, including issues such as blind witnesses, gifts to witnesses, and solicitors as witnesses;
  • Extensive discussion of the law on challenges to the validity of a will;
  • A new section called Finalising the matter which emphasises the importance of terminating the retainer.

A new To Do List precedent has also been added to the matter plan, under Folder A. Getting the matter underway. The new precedent provides a checklist of all usual and necessary steps in the preparation of a will for a client. The To Do list will assist practitioners and their support teams with both workflow and risk-management.

Mental health provisions – NSW

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Mental health provisions in the criminal courts have had their first substantive overhaul in 30 years. The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 commenced on 27 March 2021. Division 2, Part 2 of the new Act applies to criminal offences in the Local Court.

The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 replaces the Mental Health (Forensic Provisions) Act 1990, including what were previously known as ‘section 32 applications’. This re-set of mental health provisions in the criminal context provides a diversionary scheme for people with mental health and cognitive impairment issues who are charged with offences that may be dealt with summarily.

Under s 12 of the Act, if it appears to a magistrate that a defendant has, or had at the time of the commission of the offence, a mental health impairment or a cognitive impairment, or both, then the magistrate can make an order under s 14 to dismiss the charge either conditionally or unconditionally. The magistrate may also adjourn the proceedings under s 13 for assessment or diagnosis, preparation of a treatment plan or to identify a responsible person for the purpose of making an order.

The main changes from the existing law – apart from the new section numbers – are:

  • ‘mental health impairment’ is now defined’;
  • the existing definition of ‘cognitive impairment’ is slightly amended;
  • the new Act sets out what the magistrate can consider when deciding whether to make an order, although the court retains ultimate discretion; and
  • magistrates can now re-call people who are discharged on conditions under the Act, which they fail to comply with, for a period of 12 rather than 6 months.

These changes should see more people with mental health or cognitive impairments successfully diverted from the criminal justice system.

The By Lawyers Criminal Law publication has been updated accordingly. The existing commentary on section 32 applications has been moved to an Appendix at the end of the commentary, as the previous legislation continues to apply to matters which were already on foot before 27 March 2021.

 

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