ByLawyers News and Updates

New personal injury guide – NSW

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By Lawyers are pleased to announce the publication of a new personal injury guide: Personal injury – Acting for the defendant.

With a separate matter plan, commentary and precedents, the new guide is now available along with Personal injury – Acting for the plaintiff.

The new Personal injury – Acting for the defendant guide concentrates on the defence of negligence claims to which the provisions of the Civil Liability Act 2002 apply, while also covering the common law to some extent, with regard to intentional torts. It assists practitioners acting for defendants and insurers, in both un-litigated and litigated personal injury claims.

The commentary discusses all the relevant considerations and necessary steps to investigate and progress claims to resolution. Commentary sections include:

  • Duty of care, including general principles of liability, specific legislative provisions, obvious and inherent risks, mental harm, causation and contributory negligence.
  • Damages, with coverage of economic and non-economic loss, attendant care services and also exemplary, punitive and aggravated damages.
  • Responding to the claim, with guidance and practical tips for dealing with un-litigated claims, gathering factual evidence and obtaining expert opinion.
  • Settling it early, with helpful commentary on preparing for and attending mediations.
  • Going to court, including the procedure for responding to claims in either the District Court or the Supreme Court.

The guide also contains many helpful precedents, including:

  • Letters to various sources gathering information
  • Medical authorities
  • Example content for a mediation position paper for the defendant
  • Offers of compromise
  • Example content for pleadings and other documents
  • Letters to clients finalising the matter after settlement or hearing.

Practitioners using the By Lawyers personal injury publications will also benefit from the By Lawyers litigation publications: District Court – Civil and Supreme Court – Civil – Common Law Division.

Visa changes – FED

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Recent amendments to immigration legislation have resulted in visa changes from 1 July 2021.

Visa changes

The Home Affairs Legislation Amendment (2021 Measures No. 1) Regulations 2021 repealed the Subclass 132 (Business Talent) visa. The  criteria and conditions for the Subclass 188 (Business Innovation and Investment (Provisional)) and Subclass 888 (Business Innovation and Investment (Permanent)) visas have also been amended.

The repeal of the Subclass 132 visa includes both its streams; the Significant Business History and Venture Capital Entrepreneur streams. This removes the direct-to-permanent pathway and instead focuses on the provisional-to-permanent pathway provided by the Subclass 188 visa pathway to a Subclass 888 visa.

The amending regulations also repeal the Premium Investor stream of the Subclass 188 visa. This visa stream was assessed by the government as unsuccessful.

Current applicants and holders for these three streams of visa are not affected by these changes.

Summary of changes

The amendments to the criteria and conditions for the Subclass 188 (Business Innovation and Investment (Provisional)) and Subclass 888 (Business Innovation and Investment (Permanent)) visas entail:

  • The assets and turnover requirements for the Business Innovation stream of the Subclass 188 visa have been increased to attract business migrants with more financial capital to invest in Australia.
  • The designated investment requirement, based on passive investment in government securities, has been changed. The requirement is now to make a complying significant investment. This change is made through various amendments to the Subclass 188 visa and by increasing the minimum investment required from $1,500,000 to $2,500,000.
  • The requirements for the Entrepreneur stream have been adjusted to make this stream more attractive for start-up and early-stage entrepreneurs. These amendments to the Subclass 188 and 888 visas include:
    • Removal of the requirement for applicants to secure significant investment by way of a $200,000 funding threshold and limits on eligible sources of funding; and
    • A new requirement for applicants to be endorsed by a State or Territory government and innovation industry partners.
  • The extension of the Subclass 188 provisional visa validity period to five years and amending the period of provisional residence required for grant of the Subclass 888 permanent visa. For most streams this represents a reduction of the period required from four to three years, meaning holders can seek to progress to permanent residence more quickly.

The By Lawyers Immigration publication has been updated to reflect these amendments.

Community titles – WA

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A statutory regime creating community titles has been introduced in WA.

The Community Titles Act 2018 commenced in full on 30 June 2021.

The principal object of the Act is to facilitate the subdivision of land into parcels for separate development or disposition, with an interest in associated land in the nature of common property. The separate parcels can then be further subdivided.

The Act permits a single parcel of freehold land to be subdivided in a way that creates up to 3 tiers of schemes in one community scheme. Each scheme has its own community corporation. A community corporation is similar in function to a strata owners corporation. It is established on registration of the scheme. Each scheme also has its own set of by-laws to govern it and the common property.

The Act enables the creation of community titles (land) schemes and community titles (building) schemes within a community scheme.

Community title usually applies to large estates. These can sometimes include more than one residential lot as well as commercial and retail lots. The management of community title schemes can be complex. They can often span large areas of land with mixed – potentially  conflicting – uses. One issue that should be borne in mind by practitioners acting for purchasers of residential units in a property subject to a community title scheme is that there can be by-laws for both the strata scheme and the community titles scheme which apply to the lot the client is purchasing.

Much like strata titles, community title schemes are managed by committees and meetings. The community scheme committee deals with day-to-day issues and general meetings are held for more substantial issues.

These amendments bring WA property law into line with most other Australian states.

The commentary in the By Lawyers Conveyancing (WA) publication has been updated. It now includes details of how community schemes are created and operated, with specific commentary on:

  • Community development statements;
  • Scheme documents and registration;
  • Functions of a community corporation; and
  • Buyer information requirements.

Franchising – All states

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Franchising laws across Australia have been amended.

Franchising Code of Conduct

The Franchising Code of Conduct is a mandatory industry code that regulates the conduct of franchising parties across Australia.

Significant amendments to the code introduced by the Competition and Consumer (Industry Codes—Franchising) Amendment (Fairness in Franchising) Regulations 2021 give further protection to franchisees. There are new rights in relation to disclosure, remedies and termination.

Dispute resolution amendments apply to disputes notified on or after 2 June 2021.

The amendments providing franchisees with the right to greater information and remedies apply from 1 July 2021.

Changes to the required disclosure document apply from 1 November 2021.

Some of the key changes include:

  • Franchisors are required to provide a mandatory fact sheet in addition to the disclosure document, and to including additional information in the disclosure document. The disclosure requirements also apply to the transfer of an existing franchise agreement.
  • Franchisors are prohibited, in certain circumstances, from requiring franchisees to undertake significant capital expenditure.
  • New arbitration and conciliation mechanisms are available.
  • Cooling off periods have been extended from 7 to 14 days. They also apply to a broader range of scenarios.
  • Franchisees have the right to request early termination of a franchise agreement.
  • The ability for franchisors to terminate agreements for special circumstances without notice has been restricted.

Updates to By Lawyers publications

The commentary and precedents within the By Lawyers Business and Franchise publications have been updated to reflect these amendments.

See Folder ‘E. IF REQUIRED – FRANCHISES‘ on the matter plans. This includes the Franchise Agreement precedent and Model disclosure document for franchisee or prospective franchisee precedent. Links are available on the mater plan to the new Information statement for prospective franchisees published by the ACCC, and to the new Key facts sheet smart form.

Drink and drug driving – WA

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New offences apply for the combined offence of drink and drug driving in Western Australia from 1 July 2021. There are also increased penalties for existing drink and drug driving offences.

Recent amendments to the Road Traffic Act 1974 have commenced. They are contained within the Road Traffic (Impaired Driving and Penalties) Act 2019.

The amending Act implements reforms which will:

  • allow a police officer to immediately prohibit a driver who tests positive to the presence of prescribed illicit drugs at roadside from driving for 24 hours;
  • introduce new offences to target people who drive with an illegal level of both alcohol and prescribed illicit drugs;
  • increase penalties for existing drink and drug driving offences to ensure that they remain an effective deterrent; and
  • enhance and streamline drink and drug driving enforcement processes.

The By Lawyers Magistrates Court (WA) – Traffic Offences commentary has been updated to reflect these changes.

Corresponding amendments have also been made to the Retainer Instructions and initial letters to reflect the updated penalty amounts for each applicable offence.

There are also 20 new precedents. These new initial letters deal with the new category of offence: driving with an illegal level of alcohol and prescribed illicit drugs. These helpful precedent letters contain the relevant penalties, which are dependent upon the BAC level of the offender and whether the incident is a first, second, third or subsequent offence. These letters assist practitioners to quickly and accurately advise and inform their clients.

1 July updates – 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 the scheduled indexing of relevant monetary amounts and for adjustments – usually increases – in government fees and charges. Those regular updates occur every year and have an impact on many different areas of law and therefore on numerous By Lawyers publications.

These updates can include court filing fees, lodgement 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 action 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 similar legislative indexing and increases which occur regularly at other times of the year. These include 1 January changes and also 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:

  • Conveyancing and Property;
  • Business and Franchise;
  • Criminal;
  • Litigation;
  • Estates;
  • Injuries; and
  • Employment.

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 Obiter posts dealing with those updates.

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

Defamation reforms – All states

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The By Lawyers Defamation and protecting reputation guide has been substantially reviewed and updated. This review is related to the current and imminent defamation reforms to the various laws around the country.

Practitioners may be aware of the long-heralded and substantial reforms to the uniform defamation law, following approval at COAG in 2020. As the uniform law is not Commonwealth legislation, but depends on the various state and territory Defamation Acts, implementing the reforms requires each state to pass amendments to its own Act.

So far only some states have passed their legislation, with some including NSW, VIC, QLD, SA and ACT to commence from 1 July 2021. The other states and territories are expected to follow soon. However, the result is that for the first time since 2005 – and for an indeterminate but hopefully brief period – Australia does not have uniform defamation laws. Rather, there are different laws in different states.

The By Lawyers Defamation and protecting reputation publication is being updated on an interim and graduated basis for these amendments. The publication will be finally updated when the defamation reforms become law in all states and territories.

The key aspects of the current amendments are:

  • a new ‘serious harm’ requirement;
  • new defences, including a new ‘public interest’ defence;
  • amendments to the way some damages for reputational harm are capped;
  • new limitation periods taking account of the fact content remains online for years.

There is also a second round of defamation reform currently under consideration. The main focus of these reforms is the liability of social media companies for defamation. Further updates to the By Lawyers Defamation and protecting reputation publication will occur when the proposed reforms are enacted.

As a precursor to these reforms, By Lawyers has been working with our author Peter Breen to revise and streamline our publication. Users will find that the matter plan now provides the usual, practical By Lawyers guidance to conducting a matter, with the relevant commentary, precedents and example content in sequential order. The commentary is adapted from Peter’s book Defamation and protecting reputation which is reproduced in its entirety in the ‘Reference materials’ folder on the matter plan in the By Lawyers guide.

The detail of the current reforms is explained in the publication.

Drink and drug driving – NSW

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There is a new category of traffic offence in NSW of combined drink and drug driving. The Road Transport Legislation Amendment (Drink and Drug Driving Offences) Act 2021 commenced on 28 June 2021.

It has long been an offence for a person to drive with drugs in their oral fluid, blood or urine. Likewise, the offence of driving with the prescribed concentration of alcohol in the breath or bloodstream. The new category of offences relates to driving with the presence of both a prescribed illicit drug in a person’s oral fluid, blood or urine and the prescribed concentration of alcohol in a person’s breath or blood.

Note that a person cannot, in relation to the same conduct, be convicted of both an existing offence of either drink or drug driving and also the new combined offence. However, a person can still be convicted of drink or drug driving where the combined offence is not proven.

The commentary in the By Lawyers NSW Traffic offences guide has been updated accordingly. New precedents have also been added to the Library of initial letters to the client as follows:

  • Initial letter to client – Alcohol and drug driving middle range – First offence
  • Initial letter to client – Alcohol and drug driving middle range – Second offence
  • Initial letter to client – Alcohol and drug driving high range – First offence
  • Initial letter to client – Alcohol and drug driving high range – Second offence
  • Initial letter to client – Second offence of combined alcohol and drug offence

Like all of the initial letters to client in the By Lawyers criminal law guides, these new precedent letters set out the penalties and sentencing options for the new offences of combined drink driving and drug driving. These letters make it easy for practitioners to quickly and accurately confirm their advice on penalties to clients charged with traffic offences at the point of engagement.

There are also relevant amendments to the Retainer instructions – Traffic offences.

Automated wills – All states

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As part of By Lawyers continual commitment to enhancement, the By Lawyers Wills publications in each state now feature more automated wills, particularly for LEAP users. There is improved automation in all wills precedents – Individual wills, Wills for couples and Wills creating testamentary discretionary trusts.

The wills precedents are available in folder ‘C. The Will’ on the matter plans in By Lawyers Wills publications in each state.

Fields have been added to the bequest clauses in all wills. This allows users to populate the precedents with any information they have  completed in the ‘Bequest’ table type in a LEAP wills matter. This applies for each beneficiary added to a LEAP matter:

The bequest clause in all automated wills now provides for up to four beneficiaries. The clauses will now automatically include information based on whether a sum, a gift, or a sum AND a gift, have been completed in the table type for the LEAP matter:

LEAP users can select ‘Is primary beneficiary’, which will add the beneficiary to the residue clause:

Introduction of the LEAP for Word add-in allows LEAP users to also complete additional information in a will. This functionality prompts the will-drafter for such input as the person to whom the testator wishes to bequeath their residuary estate:

For further information on using the LEAP for Word add-in, see the helpful article ‘Working with By Lawyers precedents’ available in Folder A. Getting the matter underway, on the matter plans in all By Lawyers publications.

Please do not hesitate to contact By Lawyers with any questions of feedback on these enhancements: askus@bylawyers.com.au

Family Property List – VIC

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New commentary and a link to the VIC County Court Family Property List practice note has been added to the By Lawyers Family Provision Claims guides for Victoria. This applies to both Acting for the plaintiff and Acting for the estate.

The commentary focuses mainly on the Supreme Court where most applications are filed, but the new section suggests that consideration should always be given to whether the plaintiff’s claim is more appropriately filed in the County Court. There is no monetary limit on the County Court’s jurisdiction.

Paragraph 1.3 of the County Court’s Family Property List practice note sets out the factors which make a case suitable for the County Court.

The decision as to which court any proceedings should be commenced in may involve consideration of the obligations upon parties and their legal representatives under Chapter 2 of the Civil Procedure Act 2010 – the ‘overarching obligations’.

If the plaintiff’s decision to file in the Supreme Court is based on a reasonable assessment that the factors in paragraph 1.3 of the Family Property List practice note do not apply it would be very hard to argue that a party, or their lawyer, was in breach of their obligations under Chapter 2 of the Civil Procedure Act 2010 by filing there. However, conversely, a decision by the plaintiff to file in the Supreme Court where those factors do apply might enliven the exercise of the court’s discretionary powers under Part 2.4 of the Act, including as to costs.

These important considerations are now covered in the commentary to assist practitioners, whether acting for a claimant or an estate.

Additionally, the Retainer Instructions have been amended to prompt for this consideration and a new precedent letter has been added to the Acting for the Defendant matter plan. This letter can be used to put the plaintiff’s solicitor on notice when the defendant considers the proceedings have been inappropriately filed in the Supreme Court rather than the County Court.

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