ByLawyers News and Updates

Victim Reviews – Magistrates Court Criminal – WA

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The commentary in the By Lawyers WA Magistrates Court – Criminal Guide has been amended to ensure that practitioners acting for clients who are charged with sexual and violent offences are aware of the Director of Public Prosecutions’ new Policy and Guidelines for Victims of Crime 2018. These provide for Victim Reviews – a formal process for a victim of crime to complain and seek a review about any decision by the DPP which ‘significantly alters the prosecution case in relation to which they are the victim’.

That would, for example, include an agreement by the prosecution to withdraw a charge and/or proceed with a lesser charge.

There is a corresponding requirement under the policy for State Prosecutors to seek an adjournment of the matter for 7 days, where necessary and practicable, for such a review to be conducted – if a review is requested. Victims can waive their right to a review. In some instances, where a trial is pending for example, an adjournment for 7 days will not be possible and prosecutors are expected to use their discretion when seeking adjournments.

Whether any adjournment is granted will always be matter for the Court, in the context of the particular matter, but it is likely that such adjournments will usually be granted by the Court if reasonably possible.

It is, of course, preferable that discussions about plea resolutions between defence lawyers and prosecutors occur with sufficient time for the adjournment not to be necessary, but there will always be some instances where an agreement is reached at, or within 7 days of, an interlocutory appearance – such as the Disclosure Committal – resulting in the need for an adjournment.

Where victim reviews are required, clients will need to be warned that any plea ‘deal’ is not guaranteed until the review is conducted and the matter returns to court after the adjournment.

Immigration – amendments delayed – FED

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Amendments under the proposed Migration Amendment (Regulation of Migration Agents) Bill 2018 (Cth), currently before the senate, lawyers will be able to conduct immigration matters as part of their usual practice, will no longer have to register as migration agents and will not be subject to regulation by the Migration Agents Registration Authority (MARA). An implementation date of 19 November was originally set for this change.

Unfortunately the senate has not been able to find the time to consider or pass the amending legislation and the intended implementation date of 19 November 2018 will therefore no longer be possible. A new proposed implementation date will need to be determined when and if the legislation passes.

In the meantime double regulation continues and Australian Legal Practitioners must continue to register as Migration Agents with OMARA before they can conduct immigration work.

By Lawyers will keep you updated on the progress of this Bill. The By Lawyers Immigration Guide is available to assist lawyers who conduct immigration matters.

Register of Companion Animals – NSW

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The next stage of the amendments to the Companion Animals Act 1998 has now commenced, including implementation details for the Register of Companion Animals.

Part 9 of the Act now sets out the details that are required to be kept for registered companion animals. It also provides for the access to the Register which will be allowed for the public, veterinarians, local authorities and other relevant agencies. The register will be available via the NSW Pet Registry website.

Public access is already available via the NSW Pet Registry and access for government departments, local authorities and vets is through the old NSW Companion Animals Register, which will be phased out by the end of 2018. Thereafter, access for government departments, local authorities and vets will also be via the new Register of Companion Animals, through the NSW Pet Registry site.

The By Lawyers commentary on companion animals, located in our Neighbourhood Disputes NSW publication, has been updated accordingly.

New Publication – Trusts Guide – FED

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By Lawyers have a comprehensive new Trusts Guide.

The new guide contains commentary and precedents for establishing a new trust, amending an existing trust, or bringing a trust to an end through vesting or termination.

This new publication is a substantial enhancement of the previous trusts section in our Companies, Trusts, Partnerships and Superannuation guide.

The new detailed Trusts Guide deals with the various types of trust structures, including:

  • Discretionary trusts;
  • Fixed unit trusts;
  • Non-fixed unit trusts;
  • Hybrid trusts;
  • Charitable trusts; and
  • Special disability trusts.

The commentary discusses important issues affecting the use of trusts including:

  • The financial planning and asset protection merits of different trust structures;
  • The rights and obligations of beneficiaries, unit holders and trustees, including corporate trustees;
  • Taxation requirements including income tax, land tax and trust loss provisions; and
  • Common dispute resolution methods.

The new guide also contains many essential and useful precedents such as:

  • A unit trust deed that meets the requirements of a fixed trust for land tax and loss-streaming purposes;
  • A unit trust deed creating multiple classes of unit holders;
  • A discretionary trust deed;
  • A combined unit holder and shareholder agreement;
  • A hybrid trust deed;
  • A charitable trust deed;
  • A special disability trust deed; and
  • Numerous supporting documents, such as deeds of amendment.

The new Trusts Guide is available to LEAP companion product subscribers through the Guides and Precedents button in a LEAP matter, or to By Lawyers website subscribers as part of the Companies, trusts, partnerships and superannuation guide.

Family Law Act amendments – FED

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Family Law Act amendments, contained in the Family Law Amendment (Family Violence and Other Measures) Act 2018, commenced on 1 September 2018.

By Lawyers have updated the Children and Property Settlement commentaries  in our Family Law Guide to reflect these amendments. Broadly speaking, the changes are jurisdictional and procedural, with particular emphasis on enabling the court to better address issues with family violence.

The amendments include:

Transferring property proceedings when the value of property exceeds $20,000

The legislation provides that if property proceedings are issued in a court of summary jurisdiction and the value of the property exceeds $20,000, then if the respondent seeks different orders than the applicant and one of the parties does not consent to the court dealing with the application, then the matter must be transferred to the Family Court/Federal Circuit Court, or to the relevant Supreme Court: see: s 46 and s 46A. In practice, matters are usually transferred to the Federal Circuit Court.

As a result of the amendments, these sections enable State and Territory regulations to prescribe an amount higher than $20,000. This applies to all proceedings instituted from 1 September.

Proceedings with no reasonable prospects of success

Section 45A provides that:

  1. The court may make a decree for one party against another in relation to the whole or any part of proceedings if the court is satisfied that the other party has no reasonable prospect of successfully defending the proceedings or that part of the proceedings;
  2. The proceedings do not need to be hopeless or bound to fail to have no reasonable prospect of success;
  3. The court may make such a decree of its own initiative or upon application by a party;
  4. The court may make a costs order as a result of the decree; and
  5. The court may dismiss all or part of proceedings at any stage if it is satisfied that the proceedings or part is frivolous, vexatious or an abuse of process.

Section 118, which previously provided for the court to summarily dismiss frivolous or vexatious proceedings was repealed, effective from 1 September.

Interim parenting/Family violence orders

Section 69ZL provides that the court may give reasons in short form for a decision it makes in relation to an interim parenting order.

Section 68P(2A) which relates to the explanation provided by the court when an order is made which is inconsistent with a family violence order, provides that an explanation is not required to be given where the court is satisfied that it is in the best interests of the child not to receive an explanation.

The 21-day suspension of family law orders by a family violence order previously provided for in s 68T(1)(b) no longer applies. It has been replaced by two further options. Any revival, variation or suspension of family law orders now ceases to have effect at the earliest of:

  • the time the interim order stops being in force; and
  • the time specified in the interim order as the time at which the revival, variation or suspension ceases to have effect; and
  • the time the order, injunction or arrangement is affected by an order (however described) made by a court, under s 68R or otherwise, after the revival, variation or suspension.

See the commentaries in the By Lawyers Family Law Guide for more information.

NSW – Conveyancing – Sale – Replies to requisitions

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Responding to a recent subscriber request, we have added new standard replies for the following Law Society requisitions:

  • Residential Property 2018;
  • Strata Title (Residential) Property 2018;
  • Commercial 2018; and
  • Strata Title (Commercial) Property 2018.

These replies are in our Conveyancing – Sale (NSW) guide and form part of By Lawyers extensive library of replies to requisitions, which comprises replies to all common forms of requisitions including those produced by the Law Society of NSW and Australian Law Stationers.

Note: when using the By Lawyers Contract for Sale of Land requisitions are not required – by operation of clause 11 of the By Lawyers Contract, the warranties given by the vendor in the contract replace requisitions.

The main function of requisitions in modern conveyancing is to remind the vendor of the implied obligation to deliver a good title. But in the vast majority of matters the vendor’s title is completely uncontroversial. For this reason a practice has developed of including requisitions and answers in the contract. In our view the better approach is to raise only requisitions that need to be raised, rather than standard requisitions that are largely irrelevant and receive a standard response.

In a typical conveyancing matter using the By Lawyers contract there should be no need to raise requisitions except where the purchaser’s enquiries reveal a likely defect in title. The vendor warranties implied into all contracts by the Conveyancing (Sale of Land) Regulation 2017 are included as a reminder to vendors and for the information of purchasers.

QLD – QCAT – Online forms

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Queensland Civil and Administrative Tribunal will be progressively introducing an online forms facility, whereby parties are able to complete forms and documents online and submit them to the registry electronically. Available online forms can be accessed on the QCAT website.

The submitting party will receive an electronic sealed copy of the document filed and a confirmation letter with the filing date and application number to their nominated email address. Service copies can be printed from this electronic copy.

Parties must have the original of any documents filed electronically with them at any Tribunal proceeding.

See QCAT Practice Direction No 1 of 2016 for further information on the procedures for the completion and submission of forms online. Schedule A to this Practice Direction lists the applications, referrals or documents that may be filed electronically.

The By Lawyers QCAT Commentary has been updated to reflect this procedural change. As a reminder, the QCAT Guide is located within the Magistrates Court Publication.

FED – Family Law – Child support agreements

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In line with the recent amendment to the Child Support (Assessment) Act 1989, By Lawyers have amended the child support agreements, binding and limited, in our Family Law – Children Guide, as well as the payee and payer letters of advice that accompany the binding child support agreement. These precedents are found in the Settling it Early section within the Child Support folder.

The changes concern the suspension of child support agreements when the payee is not an eligible carer and there are no arrangements in the agreement for change of care. We have consequently added a clause to each agreement that states:

In accordance with section 86(1)(2)(a) of the Act, the terms of this agreement are capable of being suspended for up 26 weeks if the payee ceases to be an eligible carer of the child for a period of 28 days or more.

The suspension period in child support agreements can be reduced to less than 26 weeks, however pursuant to the legislation, 26 weeks is the maximum suspension period.

Pursuant to the the Act, the eligible carer will cease to be eligible if they have less than 35% of time with the child. Therefore, if the liable parent has more than 65% of time with the child, this will mean the payee is no longer an eligible carer. In this case the agreement will be suspended and then possibly cease to operate in respect of that particular child pursuant to s 86(1)(2)(a). An optional clause is available that allows the parties to set their own limit that triggers termination:

This agreement will cease to operate in relation to each child … if the care arrangements for the child changes resulting in the payer having more than [insert limit]% care.

The accompanying advice letters discuss the issue and provide advice in addressing s 86.

This is a highly sensitive area for many clients. The By Lawyers guide assists practitioners to operate with confidence.

Combustible cladding ban – Home building warranties

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From 15 August 2018, certain combustible cladding, being any cladding with a core comprised of more than 30% polyethylene, is banned in NSW, with limited exceptions. The state-wide prohibition affects any form of the combustible building material used in external cladding, external walls, external insulation, facades or rendered finishes for certain multi-storey residential and commercial premises. The ban is retrospective and applies to buildings built before 15 August 2018.

The use of such cladding is considered a major defect for the purposes of the home building statutory warranties. This means that owners have a period of up to six years in which legal proceedings can be commence against the builder. There is another six months added to the warranty period if the defect only becomes apparent after five and a half years.

The strata defects bond scheme will continue to operate normally. The introduction of the ban does not stop an owners’ corporation from pursuing a claim under the strata defects bond scheme. An owners’ corporation can use all or part of the bond to pay for the rectification of any defective building work that is identified in a final inspection report, including the use of a banned building product.

The Department of Planning and Environment has released a draft Environmental Planning and Assessment Amendment (Identification of Buildings with Combustible Cladding) Regulation 2017 that will require owners of buildings with combustible external wall cladding to register the building with the government and undertake a fire safety assessment within set deadlines.

The By Lawyers Sale and Purchase commentary and our Reference Guide 1001 Conveyancing Answers (NSW) has been updated to reflect these changes.

Providing feedback to By Lawyers

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At By Lawyers we love to receive feedback from our subscribers. We are available via email: askus@bylawyers.com.au.

We always respond promptly to issues or suggestions about our guides and precedents.

For LEAP users there are two additional ways to provide feedback:

  • When in a LEAP matter, in the top right hand corner of the screen there is a blue Question Mark icon. Clicking on it reveals a drop-down box for the LEAP Community pages – one of these is ‘Help, support and feedback’.
  • When using any precedent in LEAP, there is  always a ‘Provide Feedback’ button in the ribbon at the top of the document, next to ‘Save to matter as PDF’. This opens to a feedback form where any issues or suggestions regarding the precedent can be provided. Where such feedback relates to a By Lawyers precedent, LEAP send it on to us and we will always address it promptly, directly with the user.

By Lawyers have often introduced new precedents or enhanced our commentaries as a result of subscriber suggestions. Whenever we see a need for the proposed additions or amendments we are happy to oblige, so as to benefit not only the firm that made the request but all of our other users as well. Sometimes our subscribers will not only identify an issue, such as a new precedent that might be needed, but they will also provide us with the resolution – a precedent they have developed themselves and are happy for us to publish for the assistance of others. The law is, after all, a noble profession and helping each other in a collegiate way is one of the hallmarks of being a lawyer.

Our goal at By Lawyers is to help our subscribers enjoy practice more. Responding to feedback is one of the ways we do it.

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