obiter | ByLawyers News and Updates

Statutory demand – FED

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The minimum amount for issue of a statutory demand increases from 1 July 2021.

The Corporations Amendment (Statutory Minimum) Regulations 2021 permanently increases the amount at which a creditor can issue a statutory demand to a company. This ‘statutory minimum’ will be increased from $2,000 to $4,000.

The By Lawyers Insolvency – Company liquidation Guide has been updated with an Alert, to assist practitioners who may be advising clients about their debt recovery options and need to consider the forthcoming increase. The commentary will be amended accordingly in due course.

A statutory demand, under s 459E of the Corporations Act 2001, for a company to pay a debt due and owing, can be a precursor to an application for winding up the company, relying upon non-compliance with the demand to establish a presumption of insolvency. The demand may be contested on the grounds of a genuine dispute about the debt, given that the demand does not need to be based upon a judgment.

County Court Civil – VIC

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The By Lawyers County Court Civil (VIC) publication has been updated.

This update reflects recent amendments to the Court’s practice notes in the Common Law Division issued by Her Honour Judge Tsalamandris, the Head of the Common Law Division. The links to the practice notes within the Acting for the plaintiff and the Acting for the defendant commentaries have now been updated.

Practice notes provide practitioners with information and direction on the court’s practice and procedures. They particularly explain how matters are conducted in the court’s specialist lists. As all By Lawyers litigation guides emphasise, it is important that practitioners have a sound understanding of the practice notes relevant to any proceedings they propose to commence for a client, or which are already on foot.

The Common Law Division Practice Note applies to all proceedings in the Common Law Division.

In addition, there are Practice Notes giving instruction on the conduct of cases in specific lists, such as the following which are the subject of the recent updates:

Procedures vary between courts, divisions and specialist lists. Compliance with practice notes is important for timely and efficient case management and will prevent unnecessary applications, save time and avoid the risk of adverse costs orders. The ‘Case management and direction’ sections of the commentaries in all By Lawyers litigation guides provides a valuable resource.

This update to the County Court Civil guides is part of By Lawyers continuing commitment to keeping our content current and helping  our subscribers enjoy practice more.

First responders – QLD

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Workers compensation claims by certain workers, first responders, as defined in the Act, have been streamlined. The onus of proof for certain psychological injury claims has been reversed.

Any valid diagnosis of Post Traumatic Stress Disorder (PTSD) will now be taken to be an injury for the purposes of the Act. There is an assumption that any such injury was caused by the applicant’s work, with the onus then upon the employer/insurer to show otherwise if they consider it appropriate to do so.

‘First responders’ are workers such as police and other emergency service personnel whose…employment requires the person to respond to incidents… that are life-threatening or otherwise traumatic… and for which time may be critical to prevent actual or potential death or injury to persons, or to prevent or minimise damage to property or the environment.

The definition extends to certain volunteers and other eligible employees, as defined in the Act, such as those whose work requires them to deal with certain traumatic material, or be involved in certain traumatic incidents such as dealing with human remains, investigating child sexual abuse, dealing with serious violence or viewing graphic details of such things.

See: Chapter 1, part 4, division 6, subdivision 3BA of the Workers’ Compensation and Rehabilitation Act 2003.

The commentary in the By Lawyers Workers Compensation (QLD) publication has been updated. There are also new and amended precedents, including an Initial letter to client – First responder with PTSD and a corresponding amendment to the Retainer instructions to prompt for relevant details when interviewing such a client.

Anti-money laundering – All states

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Anti-money laundering policy

Commentary on the importance of law firms having an anti-money laundering policy has been added to the By Lawyers Practice Management guide. This new section of commentary assists firms to deal with the risk of money laundering and suggests procedures that can be adopted to reduce those risks.

This new commentary contains links to the Anti-Money Laundering Guide for Legal Practitioners published by the Law Council of Australia. There are also links to helpful guidance materials published by the various state Law Societies.

By Lawyers Practice Management guide

The Practice Management guide provides assistance for all firms, whether start-up, breakaway, or well established. It covers the following main areas:

  • How to perform a Legal Practice Health Diagnostic Check – a very useful tool for identifying existing strengths and areas where the firm can improve, or as a check-list for start ups.
  • Business planning for a law firm – including a SWOT analysis and environmental scan.
  • Ethics and professional responsibility – crucial to establishing and maintaining reputation and managing risk.
  • The solicitor/client relationship – how to value and manage client relationships.
  • The essentials of managing the work performed by law firms including, matter and data management, financial management and trust accounting.

The publication also contains many helpful precedents, such as:

  • Example costs disclosures.
  • Example invoices.
  • An example mission statement for a law firm.
  • A risk management plan.
  • Employment forms – including an application for employment and a new employee check-list.
  • An example asset register.
  • Forms for conducting file reviews.
  • Document safe custody records.
  • An example law firm client satisfaction survey.

Terminal condition entitlements – QLD

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The Terminal condition entitlements section of the By Lawyers Workers Compensation QLD publication has been enhanced.

A link to a helpful new resource from Worksafe on Terminal condition lump sum compensation eligibility will assist practitioners to quickly access information required to advise their clients on their workers compensation rights and entitlements.

If a worker has a terminal condition, as defined in s 39A of the Workers Compensation and Rehabilitation Act 2003 (QLD), they are entitled to lump sum benefits as set out in s 128B of the Act.

Terminal conditions, for the purpose of entitlements under the Act, are work-related illnesses or injuries likely to result in the death of the worker in the short term. This is generally within two or three years, but up to five years from diagnosis. They must be incurable. Medical certification is required.

Although common law damages claims are available for workers with a terminal condition, entitlements if paid promptly, may be of more practical and immediate benefit to some clients. The new resource from Worksafe is intended to assist not only workers in understanding their rights, but insurers in making timely and consistent assessments and medical practitioners in understanding questions asked of them when writing assessment reports.

See the By Lawyers Workers Compensation (QLD) publication for more information and guidance on making claims for injured workers. The By Lawyers District Court – Civil – Acting for the Plaintiff guide will also be of assistance to practitioners in bringing common law damages claims for injured workers.

Intervention orders – SA

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The By Lawyers Intervention Orders commentary has been reviewed and updated by our author to ensure all content is in line with current law and practice. As part of this regular review process, the following enhancements have been made:

  • Expanded coverage on applications to vary or revoke orders, and the typical procedure involved.
  • New content added regarding the Women’s Domestic Violence Court Assistance Service.
  • Updates to coverage of penalties for contravention of interim or final intervention orders.

Women’s Domestic Violence Court Assistance Service

This service provides pro-bono, specialised assistance to women who need to apply for a private intervention order, to vary a confirmed order, or to end a tenancy agreement due to domestic violence.

Applications to vary or revoke orders

A defendant may apply to have an intervention order varied or revoked only after 12 months have passed since the confirmation of the order, or such longer dated as fixed by the court.

The protected person may make an application to vary or revoke the order at any time. They should expect to be questioned by a magistrate at length on the reasons for the application. If the police are involved they are most likely to oppose such an application, particularly where there has been no apparent change in the parties’ circumstances since the order was made.

Breaches

As the commentary in the Intervention Orders commentary notes:

Breaches of an intervention order will be taken seriously. It does not matter if the protected person says that they consent to the breach, or even actively encourages it. Gaol terms and loss of the presumption in favour of bail is a real possibility for a defendant who breaches an intervention order. 

When acting for clients charged with a breach of an intervention order, subscribers will be assisted by the related By Lawyers guide Criminal – Magistrates Court (SA).

Conveyancing To do lists – All states

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The By Lawyers Conveyancing To do lists have been enhanced. As a result of recent feedback from a subscriber, space has been added next to the checkboxes in the Sale of Real Property and Purchase of Real Property guides. This extra space can be used to enter the date that a task has been completed, or any other note relevant to that particular aspect of the matter’s progression.

This small but important enhancement to the utility of these popular precedents will be extended to other guides in due course.

To do lists precedents are available in most By Lawyers guides. They reside within Folder A. Getting the matter underway on the matter plans and are an essential matter and risk management tool.

The Conveyancing To do lists chronologically set out the usual steps to be completed in a sale or purchase matter and allow team members working on the file to tick off each step as the matter progresses. This ensures that nothing important is missed. It also assists with seamless continuity when multiple people are working on a matter. These documents can be of particular assistance to team members who are unfamiliar with a particular area of law, or when assigning a task to more junior staff and assessing their progress or providing training.

To do lists can be printed out and attached to the file for manual completion, or ‘pinned’ to the top of the LEAP matter and competed electronically.

In order to pin a To do list to the top of the correspondence window in a LEAP matter, simply right-click on the precedent after it has been saved into the matter and select ‘Pin to top’. It will then stay at the very top of all correspondence in the matter as a handy reminder and reference tool.

By Lawyers love feedback from subscribers! If you have a suggestion or request, please don’t hesitate to get in contact: askus@bylawyers.com.au.

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.

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