ByLawyers News and Updates

Subpoena forms and processes – VIC

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Amendments to subpoena forms and processes in the County Court of Victoria commenced on 14 August 2023.

Chapters I and III of the County Court Civil Procedure Rules 2018 are revised as to subpoena forms and processes. The County Court (Chapters I and III Subpoena Amendment) Rules 2023 amend the prescribed civil and criminal subpoena forms.

The Rules now require subpoena recipients to respond using the eCase electronic case management system. The Registrar or Court must grant leave for any physical production. The eCase platform is mandatory for production, inspection, and objections.

The amended civil subpoena forms are:

  • Form 42A Subpoena to attend to give evidence – minor amendment;
  • Form 42AA Subpoena for production to Registrar – substituted form;
  • Form 42B Subpoena to produce – substituted form; and
  • Form 42C Subpoena both to attend to give evidence and to produce – substituted form.

The County Court Criminal Procedure Rules 2019 have also been amended.

The amended criminal subpoena forms are:

  • Form 1D Subpoena to attend to give evidence – minor amendment;
  • Form 1E Subpoena to produce – substituted form;
  • Form 1EA Subpoena both to attend to give evidence and to produce – substituted form; and
  • Form 1I Short service order subpoena – minor amendment.

From 14 August 2023, the Registrar will not issue any subpoenas that are not in the correct form. The new subpoena forms are available from the Victorian County Court website.

The By Lawyers Victoria guides County Court Litigation – Plaintiff and County Court Litigation – Defendant have been updated for the new subpoena forms and processes, including links.

Duplicate certificates of title abolished – WA

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Duplicate certificates of title have no effect in Western Australia from 7 August 2023. Duplicate titles or duplicate certificates were also known as paper titles or title deeds.

Under the Transfer of Land Amendment Act 2022, duplicate or paper certificates of title were rendered invalid. They ceased to enjoy the status of a legal document from 7 August 2023. Paper certificates of title will no longer be issued or created by Landgate, nor required to register a dealing.

Verification of identity and establishing a right to deal with an interest in land are now the means of proving ownership. They replace possession or control of a paper certificate of title.

Full electronic conveyancing in Western Australia is one step closer thanks to these changes modernising land transactions.

If you do hold a paper or duplicate certificate of title, you do not need to return it to Landgate or destroy it. It will automatically be considered invalid from 7 August 2023. You can keep your duplicate certificate of title for display purposes.

One can obtain a record of your certificate of title through Landgate’s website through a title search. It will show you the most up to date information and any interests registered over the title.

The By Lawyers Western Australia Purchase of Real Property, Sale of Real Property, Lease, Mortgage, Probate, and Letters of Administration publications have been updated accordingly.

 

 

 

Domestic violence leave – FED

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Family and domestic violence leave entitlements are extended to small business employees from 1 August 2023.

Under the Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022 paid leave replaced the previous entitlement to unpaid leave for all non-small business employees from 1 February 2023. That entitlement is now extended to small business employees, so it covers everyone. A small business is one with less than 15 employees.

Full-time, part-time, and casual employees are entitled to 10 days of paid family and domestic violence leave in every 12-month period of employment. It is not calculated on a pro-rata basis for casual employees and is all available up-front, which means a new employee has an immediate entitlement to the full ten days. The leave does not accumulate if not taken.

The leave can be taken for any purpose relating to the impact of family and domestic violence, which might include relocating, attending court, or attending medical, legal, counselling, and financial advice appointments.

Employers cannot include information in an employee’s pay slip identifying the type of leave paid.

Family and domestic violence is defined as violent, threatening, or other abusive behaviour by an employee’s close relative, current or former intimate partner, or a member of their household that both seeks to coerce or control them and causes them harm or fear.

The leave can be taken during a period of personal or carer’s leave, or annual leave.

The notice and evidence requirements of s 107 of the Fair Work Act 2009 apply, including the requirement for the employer to maintain confidentiality: s 106C.

See the Fair Work Ombudsman website for more information.

The By Lawyers Employment Law publication has been updated accordingly.

Service and default judgment – VIC

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Amendments to the County Court rules alter the procedure for service and default judgment from 1 August 2023.

The County Court (Chapter I Service and Default Judgments Amendment) Rules 2023 amend the County Court Civil Procedure Rules 2018.

The new provisions deal with service of documents by email, and also introduce additional requirements for a plaintiff seeking to enter or apply for judgment against a defendant who fails to serve a defence within time.

Service

For some time, it has been permissible to effect ordinary service by email under r 6.07 unless the attachments to the email were more than 10 megabytes. The rule has now been amended to provide that attachments over 10 megabytes may be served by multiple emails, each with attachments not exceeding 10 megabytes.

Default judgment

For default judgment under r 21.01, where the defendant has failed to serve a defence within the required time, the amendments to the County Court rules require the plaintiff to first serve on the defendant a notice in Form 21A informing the defendant that the plaintiff intends to enter or apply for judgment against them. Then, if the defendant does not serve a defence within seven days of receiving the notice, the plaintiff may enter or apply for judgment.

When applying for judgment, an affidavit is required proving the failure to serve the defence within time, service of the notice, and the failure to then serve a defence within seven days.

Publication updates

The By Lawyers County Court – Acting for the Plaintiff and County Court – Acting for the Defendant guides have been updated for the changes to service and default judgment respectively.

Subpoenas – FED

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From 31 July subpoenas for production of documents, in most family law matters can be eFiled on the Commonwealth Courts Portal.

The Federal Circuit and Family Court of Australia (FCFCOA) has introduced eFiling through the Commonwealth Courts Portal for subpoenas seeking the production of documents where there is an ongoing family law final orders application on foot. Online filing is not available for interim applications, contravention applications or subpoenas for attendance and for attendance and production of documents.

There is a new option available in relevant matters on the portal for Request to issue a subpoena.

New subpoena forms apply. The old forms will still be accepted until Friday 29 September 2023.

Once the subpoena is issued the court will apply a Subpoena (Family Law) Coversheet which includes the last date for service, the date for production, and how the documents are to be produced. The new coversheets will be applied to all subpoenas, not only those able to be eFiled.

Documents in response to a subpoena cannot be produced through the portal. If possible, they are produced by sending an email to the court registry at the address noted on the subpoena’s cover sheet. All family law registries have a subpoena email address. If production by email is not possible the documents need to be otherwise delivered to the registry.

As part of this change the Notice of Objection has been removed from the new subpoena form. An updated version of the Notice of Objection is now a separate form available on the FCFCOA’s website.

By Lawyers Family Law Property Settlement and Children guides have been updated accordingly, with amended commentary and new hyperlinks covering the new processes for subpoenas, and the new forms added to the matter plans. The previous forms will remain available on the matter plan until at least 29 September.

Probate – NSW

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From 1 August 2023 most applications for an uncontested grant of representation must be applied for and filed online. The lodgment platform is available via the Probate tab on the Supreme Court website, and on the NSW Online Registry website. New users are required to register for an account.

The online process provides guidance as to the evidence required for a grant to be determined. It is intended to facilitate uncontested probate matters being processed quickly and accurately.

The new system applies also to applications for Reseal, and Letters of Administration.

Under the new process applicants are no longer required to lodge notice of an intended application at least 14 days prior to filing a summons. Instead, a notice of intended application will automatically be generated when an online application is filed.

The current paper forms will no longer be used. The new Probate system will generate the summons, affidavit of executor or administrator, inventory of property, and grant based on the information provided in the online application. These documents are then downloaded, executed, and filed via the online system. The system prompts for and allows additional affidavit evidence to be uploaded.

Rather than the previous process where applicants provided the court with a pre-paid envelope for the sealed copies to be returned when the grant is made, the new Probate system will generate these documents with a digital seal on each page. Copies of the grant will be immediately available for download once the grant issues.

Copies of testamentary documents, such as wills and codicils, are scanned and uploaded into the new Probate system. The originals of testamentary documents must still be filed with the court registry, either personally or by mail. They must be accompanied by a coversheet. See our previous News & Updates post: Wills coversheet.

The court has advised that  the registry will continue to accept paper-based applications up to and including 1 September 2023 to assist with the transition.

The By Lawyers Probate (NSW) and Letters of Administration (NSW) guides have been updated accordingly.

1 July updates – All states

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1 July updates are always a big focus for By Lawyers. Many Commonwealth and state legislative instruments provide for the scheduled indexing of relevant monetary amounts and adjustments – usually increases – in government fees and charges. These regular updates occur at the start of every financial year impacting many different areas of law, and therefore numerous By Lawyers publications.

These updates include court filing fees, lodgment fees for property dealings, land tax thresholds, minimum weekly compensation amounts for Workers Compensation, and penalty units for fines for various criminal offences and civil penalty provisions.

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

We also monitor and update for similar legislative indexing and increases which occur regularly at other times of the year. These include 1 January changes and other specific dates for various areas of law as prescribed by some statutes.

The 1 July updates have been applied this year, or are in the process of being applied as they get released, to the following By Lawyers publications:

Quite separately, there is also usually a raft of new and amending legislation from both Commonwealth and state parliaments which is set to commence on 1 July. This year is no different in that regard. By Lawyers have made various substantive amendments to a number of publications to account for the commencement of such legislation. Please see the various other By Lawyers News & Updates posts dealing with those updates.

By Lawyers always keep our content – and our subscribers – up to date!

Offers to settle – QLD

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The Uniform Civil Procedure Rules 1999 (QLD) were amended from 23 June 2023 concerning the costs implications of rejected offers to settle made by both plaintiffs and defendants.

The Uniform Civil Procedure (Offers to Settle) Amendment Rule 2023 amends r 360 of the of the Uniform Civil Procedure Rules 1999 as to offers made by a plaintiff, and r 361 as to offers made by a defendant. It also introduces a new r 361A, which deals specifically with the implications of a plaintiff’s claim being dismissed after the plaintiff rejects a costs offer made by a defendant. There are also transitional provisions for offers already on foot before the amendments.

Offers to settle are relevant to the Court’s exercise of discretion concerning costs at the conclusion of any proceedings. The ordinary rule about costs is that they follow the event: r 681. Costs are awarded to the successful party, usually assessed on the standard basis, unless the rules or orders state otherwise: rr 702-704.

If an offer is made by one party and rejected by the other party, and the ultimate outcome of the case ends up being less favourable to the rejecting party than what was offered, the rules provide that the court can award indemnity costs against the rejecting party from the date of the offer. The amendments to the rules clarify when and how this applies.

The commentary on offers to settle has been amended, for both Acting for the plaintiff and Acting for the defendant, in all By Lawyers QLD Litigation guides:

 

First home buyers – NSW

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New caps and rules over first home buyers schemes in New South Wales come into force on 1 July 2023.

The newly elected New South Wales government has announced extensions to the First Home Buyer Assistance (FHBA) scheme. First home buyers purchasing a new or existing property valued at less than $800,000 will pay no transfer duty. The cap increases on 1 July 2023 from $650,000. First home buyers who buy a new or existing property valued between $800,000 and $1,000,000 can apply for a concessional transfer duty rate. The qualifying range increases on 1 July 2023 from the previous band of between $650,000 and $800,000.

Purchasers who exchange on or after 1 July 2023 will receive the benefit of these higher caps.

The Minns state government has honoured its pre-election commitment to reverse the annual property tax opt-in for first home buyers. The First Home Buyer Choice scheme does not apply to contracts exchanged after 30 June 2023. Full transfer duty is payable on all contacts exchanged on or after 1 July 2023. Purchasers who exchanged between 16 January 2023 and 30 June 2023 have until settlement to make an election between an annual property tax and full transfer duty.

The residence requirement has been extended – eligible first home buyers must now occupy their home for a continuous period of 12 months instead of six months, within 12 months of settlement. The residence requirement applies to the First Home Buyers Assistance scheme, the First Home Owner grant, and the deferral of transfer duty payment for off the plan transactions.

The  By Lawyers New South Wales conveyancing publications have been updated accordingly. The Purchase of Real Property (NSW) and 1001 Conveyancing Answers (NSW) guides contain detailed coverage of transfer duty concessions and government grants for the purchase of real property.

Employment Law – FED

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The By Lawyers Employment Law guide has been updated for the latest legislative amendments.

From 1 July 2023 the maximum amount that can be ordered under the civil remedy provisions of the Fair Work Act in small claims proceedings increased from $20,000 to $100,000.

Failure to pay wages and entitlements can give rise to civil remedies for contravention of statutory obligations. Chapter 4 – Part 4.1 of the Fair Work Act 2009 deals with civil remedies.

An offending employer can be ordered to pay a pecuniary penalty on top of the wages and contractual or statutory entitlements unpaid or underpaid, plus interest up to judgment.

Division 3 of Part 4.1 provides that applications for most contraventions of civil remedy provisions under the Fair Work Act, although not pecuniary penalty orders, may be dealt with as small claims proceedings in a state magistrates court or the Federal Circuit and Family Court of Australia (Division 2), with awards limited to $100,000 or any higher amount prescribed by the regulations.

The section on Underpaid and unpaid wages and entitlements in the By Lawyers Employment Law commentary has been updated accordingly.

These amendments are under the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 which makes numerous changes to the Fair Work Act 2009. These amendments commence in phases over the course of several years and include:

  • expansion of the objects of the Fair Work Act;
  • equal pay provisions to address gender inequality;
  • prohibition of pay secrecy – designed to augment the equal pay provisions;
  • prohibition of sexual harassment in the workplace, including Stop Sexual Harassment Orders via the Fair Work Commission. These provisions commenced on 6 March 2023 – see our previous News & Updates post;
  • additional grounds for anti-discrimination in the workplace;
  • fixed-term contracts are generally no longer permitted;
  • expanded availability of flexible work arrangements.

See our previous News & Updates post for further details.

The By Lawyers Employment Law guide and 101 Employment Law Answers will be updated as these relevant provisions commence.

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