ByLawyers News and Updates

Claim farming – NSW

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Claim farming is the practice of giving or receiving consideration for a claim referral or potential claim referral or soliciting or inducing a claimant to make a claim for personal injury. This practice is now banned under the Claim Farming Practices Prohibition Act 2025 (the Act) which came into effect on 9 April 2025.

When the Act applies

The Act applies to all personal injury claims as defined in s 11 of the Civil Liability Act 2002, including intentional torts. Some personal injury claims are not covered, including dust diseases claims, claims relating to tobacco use, workers compensation, and motor vehicle accident claims.

Criminal consequences

The Act makes breaches of its provisions a criminal offence with a maximum penalty of $55,000.

Section 5 makes it an offence to contact a person:

  • to solicit them to make a claim for personal injury damages; or
  • to refer them to a third party to provide services in relation to a claim; or
  • using a third party to contact a person for the above purposes,

if the person making the contact receives a fee or other benefit, or agrees or expects to receive a fee or other benefit, or asks that someone else receive a fee or other benefit because of the contact.

Section 6 makes it an offence to:

  • provide or receive a fee or other benefit for the referral of a claim in civil proceedings; or
  • enter into agreements or arrangements relating to referrals of claims for a fee or other benefit.

Professional consequences

Conduct contrary to the Act by a lawyer can also amount to unsatisfactory professional conduct or professional misconduct irrespective of whether the lawyer has been convicted of an offence under the Act. Section 165B of the Legal Profession Uniform Law Application Act 2014, which sets out the conduct capable of amounting to unsatisfactory professional conduct or professional misconduct, was amended to include contraventions of the Act.

Costs consequences

The Act further inserts s 61A to the Legal Profession Uniform Law Application Act 2014 which provides that if a lawyer breaches the Act and is convicted, legal costs cannot be charged or recovered for the claim and any costs that have been paid must immediately be refunded. The costs can be recovered as a debt by the client.

Exceptions

Some exceptions apply to the application of the Act. It is not an offence if a lawyer acting for a claimant refers the matter to another person providing a service for the claim, or the claim is transferred because the law practice is sold.

There is also an exception for advertising, marketing, or promoting a legal practice: s 7.

Publication updates

The By Lawyers Personal Injury (NSW) guides have been updated accordingly.

ADVO – NSW

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From 31 March 2025, new offences for knowingly contravening an apprehended domestic violence order (ADVO) apply.

The new offences are found in s 14(1A)–(1C) of the Crimes (Domestic and Personal Violence) Act 2007.

Section 14(1A) makes it an offence to knowingly contravene an ADVO with the intention of causing physical or mental harm to the protected person under the order, or to cause the protected person to fear for their safety or that of another person. A maximum penalty of 3 years imprisonment or 100 penalty units, or both, applies.

Section 14(1B) provides that a person intends to cause a protected person:

  • physical or mental harm; or
  • to fear for their safety or the safety of another person,

if the person knows the conduct is likely to cause that harm or fear.

Under s 14(1C), a person who:

  • knowingly contravenes an ADVO against them; and
  • on at least two other occasions in the 28 days immediately preceding the contravention, also knowingly contravened:
    • an ADVO in relation to the same person who was protected under the ADVO the person contravened earlier; or
    • the same ADVO, whether or not in relation to that same protected person; or
    • an ADVO arising from the same application under Part 10 of the Crimes (Domestic and Personal Violence) Act 2007, whether or not in relation to the same protected person, and
  • the conduct would be considered by a reasonable person to be likely to cause the protected person physical or mental harm, or to fear for their safety or the safety of another person, whether or not that harm or fear was actually caused,

is guilty of an offence subject to a maximum penalty of 5 years imprisonment or 150 penalty units, or both.

The By Lawyers Apprehended Violence Order (NSW) guide has been updated accordingly.

Franchising Code – FED

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A new Franchising Code of Conduct operates from 1 April 2025.

The new code is set out in Chapter 2 of the Competition and Consumer (Industry Codes-Franchising) Regulation 2024. Sections have been significantly reordered and renumbered from the previous code in Schedule 1 to the Competition and Consumer (Industry Codes-Franchising) Regulation 2014. The new code of conduct generally applies to all franchise agreements entered into, renewed, extended or transferred on or after 1 April 2025. However, some changes apply from later dates under transitional provisions relating to franchise agreements and disclosure requirements.

Amendments

Key changes to franchise agreements and disclosure requirements under the new code include:

Franchise agreements

  • Removal of the requirement for franchisors to create, maintain, or provide a Key Facts Sheet for prospective franchisees. This applies from 1 April 2025.
  • Restrictions on restraint of trade clauses where a franchise agreement contains an option for the franchisee to renew or extend the agreement and the franchisor does not do so. This applies to agreements entered into, transferred, renewed, or extended on or after 1 April 2025.
  • Franchisees must be compensated for early termination in certain circumstances. Agreements are required to specify how compensation is determined. This applies to agreements entered into, transferred, renewed, or extended on or after 1 November 2025.
  • Franchisees must have a reasonable opportunity to make a return on any investment required by the franchisor as part of entering into the agreement. This applies to agreements entered into, transferred, renewed, or extended on or after 1 November 2025.
  • Franchisors may, on certain expanded grounds, terminate a franchise agreement with 7 days’ notice. This applies to agreements entered into, transferred, renewed, or extended on or after 1 April 2025.
  • Franchisees can opt out of both disclosure and the 14-day cooling-off period if a new agreement with the same franchisor is substantially similar to their current agreement. This applies from 1 April 2025.
  • Marketing and cooperative funds are now combined as a specific purpose fund to which franchisees contribute and which must be used for a specified purpose related to the business’s operation. This applies from 1 November 2025. Franchisors are to operate existing marketing and cooperative funds in compliance with the old code until this time.
  • The Australian Small Business and Family Enterprise Ombudsman now has the ability to name and shame franchisors who refuse to engage in or who withdraw from alternative dispute resolution processes. This applies from 1 April 2025.

Disclosure requirements

From 1 November 2025, all disclosure documents must include certain information set out in Schedule 1 of the Regulation.

Additional information to be provided in the new disclosure document includes:

  • telephone number and email address of former franchisees;
  • whether a franchisee could face competition from businesses not associated with the franchisor; and
  • details about whether the franchisee is required to undertake significant capital expenditure during the term of the franchise agreement.

Any materially significant facts that arise between the preparation of a disclosure document and when it is provided to a potential franchisee must also be disclosed.

A franchisor need not include the new requirements for specific purpose funds and significant capital expenditure in its disclosure document until 1 November 2025, but may choose to do so.

From 1 April 2025, the franchisor’s Franchise Disclosure Register profile must also include:

  • any convictions for a serious offence;
  • any relevant judgment in civil proceedings;
  • any relevant bankruptcy or insolvency; and
  • whether its franchise agreement provides for arbitration of disputes.

Publication updates

The By Lawyers precedents Franchise Agreement and Model Disclosure Document for Franchisee or Prospective Franchisee precedents, available on the Sale of Business and Purchase of Business matter plans for each state, and the commentary on Franchises, have all been updated accordingly.

Family Law regulations – FED

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The following changes to various regulations under the Family Law Act apply from 1 April 2025:

The new provisions are substantially the same as the old ones, but they are renumbered and have minor drafting changes to modernise them and support the operation of the Family Law Act after some recent amendments.

Regulation 53 of the 2024 Regulations now contains the prescribed Information Sharing Agencies for the purpose of the Federal Circuit and Family Court of Australia being able to issue Information Sharing Orders.

The superannuation regulations support Parts VIIIB and VIIIC of the Family Law Act 1975 by prescribing:

  • the methods and factors for valuing superannuation interests;
  • the way in which superannuation payment flags and splits are put into effect; and
  • the information that trustees must provide to parties to property proceedings, and to couples negotiating a superannuation agreement.

The Family Dispute Resolution Practitioners Regulations provide for the accreditation, certification, and administration of such practitioners.

By Lawyers Divorce, Children, Financial Agreements and Property Settlement guides have been updated to reflect the new regulations as required.

The following FCFCOA forms have changed to update references to the regulations:

  • Consent order kit;
  • Application for consent orders;
  • Superannuation information kit;
  • s 60I Certificate of Dispute Resolution;
  • Application in arbitration;
  • Form 1 (previously Form 1A) – Request for service abroad of judicial documents and certificate;
  • Form 2 – (previously Form 2A) – Summary of the documents to be served;
  • Form 6 – Application for arbitration;
  • Form 7 – Application relating to relevant property or financial arbitration;
  • Form 8 – Application to register arbitration award;
  • Form 9 – Application to register decree affecting registered arbitration award;
  • Response to an application in an arbitration;
  • Subpoena in arbitration.

The new version of the s 60I certificate must be used after 1 April 2025 but certificates in the old form issued within 12 months will still be accepted.

County Court – VIC

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Common Law Division Practice Note PNCLD 1-2025 takes effect in the County Court from 25 March 2025 and replaces 21 existing practice notes.

The new practice note, which stretches to 159 pages and includes a dictionary setting out key definitions, covers all the practices and case management expectations for all proceedings in the Common Law Division, including for the various specialist lists, and Appeals.

The new Common Law Division practice note supersedes the following practice notes:

  • PNCLD 1-2023 Common Law Division practice note
  • PNCLD 2-2023 Serious injury applications practice note
  • PNCLD 3-2022 WorkCover List practice note
  • PNCLD 4-2023 Family Property List practice note
  • PNCLD 5-2023 Medical List practice note
  • PNCLD 6-2023 Confiscation List practice note
  • PNCLD 7-2023 Defamation List practice note
  • PNCLD 8-2023 Adoptions, Surrogacy and Name Change List practice note
  • PNCLD 12-2023 Applications for approval of compromise practice note
  • PNCLD 13-2022 Applications by a solicitor for costs in work injury damages claims practice note
  • PNCLD 14-2023 Applications to file a notice of ceasing to act practice note
  • PNCLD 15-2023 Applications to take evidence by deposition practice note
  • PNCLD 16-2023 Information Technology (IT) practice note
  • PNCLD 17-2023 Judicial mediation practice note
  • PNCLD 18-2023 Subpoenas practice note
  • PNCLD 19-2023 Institutional Liability List practice note
  • PNCLD SP-2-2022 Suppression, pseudonym (and like) order applications practice note
  • PNCLD SA 2-2022 Applications for compensation under s85B of the Sentencing Act 1991 practice note
  • PNCLD SO 2-2022 Applications for supervision orders under the Serious Offenders Act 2018 practice note
  • PNCLD FV 2-2024 Family Violence and Personal Safety Intervention Order appeals practice note
  • PNCI 9-2021 eCase: electronic subpoenas practice note.

The specialist lists dealt with by the practice note are:

  • The Civil Claims lists: Serious Injury List; WorkCover List; Medical List; Institutional Liability List; Defamation List; Family Property List; and the General List.
  • Adoptions, Surrogacy and Name Changes List.
  • Confiscation List.
  • Appeals and Post Sentence Application List.

Commentary links for both Acting for the Plaintiff and Acting for the Defendant in the By Lawyers County Court (VIC) publication have been updated accordingly.

Sexual harassment – QLD

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From 1 March 2025, all businesses with operations in Queensland are required to have a written prevention plan to manage the risks associated with sexual harassment and sex or gendered-based harassment. The requirement arises under the Work Health and Safety Act 2011 (Qld) and the Work Health and Safety Regulation 2011 (Qld).

Any business without such a plan in place or that has not taken reasonable steps to make workers aware of the plan, is in breach of the Regulation and subject to fines of up to $6,000 per offence.

By Lawyers 101 Staff Handbook, part of the popular Practice Management publication, includes a national Discrimination, harassment and bullying policy that is an excellent starting place for QLD firms needing to comply with the legislative requirements.

More detailed state-specific resources are available on the WorkSafe QLD website, including a prevention plan template.

The commentary in the By Lawyers Practice Management publication will assist Queensland practitioners in formulating their management plan and reducing their risk. It includes a detailed discussion about sexual harassment with specific areas of focus for the legal profession and links to relevant cases involving law firms. There is also an outline of the factors that should be considered when implementing firm policies to ensure that they have the desired effect and prevent discriminatory and other unwelcome workplace practices.

Generative AI – NSW

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Practice Note SC GEN 23 Use of Generative Artificial Intelligence and the associated Judicial Guidelines concerning the use of generative AI in documents that are put before the court apply to all matters in the Supreme Court from 3 February 2025.

The same provisions apply from the same date in the District Court by virtue of a new District Court General Practice Note 2 Generative AI Practice Note and Judicial Guidelines, which adopts the Supreme Court’s practice note and guidelines.

The key provisions of the practice note are:

  • Legal practitioners should be aware of the limits, risks, and shortcomings of any particular generative AI program they use, including the scope for hallucinations.
  • It is impermissible, without the leave of the court, to enter into any generative AI program information to which the implied undertaking, also called the Harman undertaking, applies, such as another party’s affidavits or material produced under subpoena, unless the legal practitioner or person with responsibility for the file is satisfied that the information will remain confidential, will only be used in connection with the proceedings, and will not be used to train the AI program.
  • AI must not be used in generating the content of affidavits, witness statements, character references, or other material intended to reflect a deponent or witness’ evidence or opinion, or any other material tendered in evidence or used in cross-examination.
  • If generative AI has been used in the preparation of written submissions, summaries, or arguments the author must verify in the document that all citations, legal and academic authority, and case law and legislative references exist, are accurate, and are relevant to the proceedings.
  • Affidavits, witness statements, and character references must contain a statement that AI was not used in generating their content.
  • Generative AI must not be used to draft or prepare the content of an expert report, without the prior leave of the court, and parties must bring that requirement to the expert’s attention.
  • There is a procedure for parties to seek leave if an expert proposes to use generative AI for their report, and also imposes disclosure and record-keeping obligations on the expert if leave is granted and AI is used for the report.

The Judicial Guidelines apply to all courts in New South Wales.

The Uniform Civil Procedure Rules have also been amended from 3 February 2025 to reflect these changes.

The following rules have been amended:

  • Rule 31.4: Court may direct party to furnish witness statement
  • Rule 31.27: Experts’ reports
  • Rule 51.12: Party to file and serve White Folder with summons seeking leave
  • Rule 51.13: Opposing party to file a response
  • Rule 51.36: Content of written submissions
  • Rule 51.45: Proceedings in supervisory jurisdiction
  • Rule 59.8: Procedure—Court Book, defendant’s argument and plaintiff’s argument in reply
  • Schedule 7: Expert witness code of conduct

The following new rules have been created:

  • Rule 35.3B: Use of generative artificial intelligence in affidavits
  • Dictionary: Definition of generative artificial intelligence

These amendments to the rules regulate the use of generative AI for:

  • affidavits, witness statements and other evidentiary material;
  • written submissions and summaries of argument; and
  • experts’ reports.

The commentary and precedents in By Lawyers Supreme Court (NSW) and District Court (NSW) guides have been updated in line with these new rules and practice directions. This includes links to the practice notes, and precedents such as letters instructing expert witnesses and clauses for affidavits.

The commentary in By Lawyers Local Court Civil (NSW) guide has been updated in line with the new rules.

Relevant precedents have also been added to the NSW Injuries publications: Personal Injury, Motor Vehicle Accidents, Workers Compensation, and Family Provision Claims.

The Implied undertaking section in By Lawyers 101 Subpoena Answers, available in the Reference Materials folder on all litigation matter plans, has also been updated.

New UCPR Forms 40 and 163 that contain the required disclosure notice that generative AI was not used are also being added to the relevant matter plans.

Succession – SA

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New court rules and practice notes are in effect to reflect the Succession Act 2023 (SA) which extensively reframed South Australian succession law when it commenced on 1 January 2025.

Succession Act

The Succession Act consolidated and amended various legislation relating to:

  • wills;
  • probate and administration;
  • administration of deceased estates;
  • intestacy; and
  • family provision claims.

The Succession Act now contains all legislative provisions relating to those areas, having repealed the following existing Acts:

  • Administration and Probate Act 1919 (SA);
  • Inheritance (Family Provision) Act 1972 (SA);
  • Wills Act 1936 (SA).

Succession rules and practice note changes

New and revised court rules for probate, administration, contested wills, and family provision matters have been released to reflect the new legislation.

The rules are contained in the new Chapter 25 – Probate – Supreme Court of the Uniform Civil Rules 2020.

The Supreme Court’s practice notes reflecting the new Act and rules are:

Key changes made by the revised court rules and practice notes include:

  • making the electronic filing of all probate applications and documents mandatory;
  • setting out detailed requirements for scanning and submitting documents;
  • proceedings under Chapter 25 are to be commenced by way of originating application except for:
    • applications for grants of probate or letters of administration;
    • amendments of grants;
    • revocation of grants;
  • required wording in an administrator’s oath when clearing off all persons having a prior entitlement to the grant and for the description of the administrator;
  • required description of assets and liabilities of an estate;
  • required wording to describe the caveator and the person warning the caveat; and
  • 50 new probate forms.

Legislative changes

The key changes under the new legislation include:

  • the right of certain classes of person to inspect a will of a deceased person;
  • the power of the Supreme Court to pass over applicants for a grant of probate or administration and appoint another person it considers appropriate;
  • the removal of the need for a grant to administer smaller estates;
  • additional court powers to hold executors and administrators to account;
  • codification of the application of assets to payment of debts and liabilities in solvent estates;
  • the increase to the preferential legacy for a surviving spouse of an intestate;
  • the addition of the children of first cousins of an intestate to the distribution on intestacy;
  • no entitlement of a spouse or domestic partner of an intestate to any part of an intestate’s estate if they are a party to:
    • a binding financial agreement; or
    • orders for distribution of property under the Family Law Act 1975 (Cth);
  • primary consideration of the deceased’s wishes by the court when determining whether to make a family provision order; and
  • narrowing eligibility for family provision claims to:
    • exclude former partners and spouses when financial matters have already been settled;
    • require adult stepchildren to demonstrate they:
      • are disabled and vulnerable;
      • were genuinely dependent on the deceased;
      • cared for or maintained the deceased; or
      • contributed to the estate, or their parent substantially contributed to the estate;
    • require grandchildren to satisfy the court that:
      • their parents died before the deceased; or
      • they were wholly or partly maintained by the deceased.

Publication updates

The following By Lawyers publications have been updated for all these legislative, rules, and practice direction changes, with the new forms added to the matter plans as required:

Cash reporting – FED

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Solicitors no longer have cash reporting obligations under the Financial Transaction Reports Act 1988 (FTR Act). However, changes that commence on 31 March 2026 will place significant new obligations on law firms for initial and ongoing AML/CTF due diligence.

The FTR Act was entirely repealed with effect from 7 January 2025 by Schedule 11 of the Anti-Money Laundering and Counter-Terrorism Financing (Amendment) Act 2024 (the Amending Act).

The Amending Act substantially amends the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act) to place new obligations on lawyers who perform certain work as reporting entities. However, the relevant amendments to the AML/CTF Act do not commence until 31 March 2026.

From 7 January 2025 solicitors are no longer regulated under the FTR Act, and do not need to report significant cash transactions of $10,000 or more, or the equivalent in foreign currency, to AUSTRAC. See AUSTRAC’s webpage Repeal of the Financial Transaction Reports Act 1988 for more information.

In the interim, solicitors still have professional obligations that can in some circumstances require cash reporting. See the The Law Council of Australia’s National Legal Profession Anti-Money Laundering & Counter-Terrorism Financing Guidance Note 2 for more information.

The By Lawyers Practice Management publication has been updated in line with the repeal of the FTR Act.

The changes that commence on 31 March 2026 will be significant for most law firms, with new due diligence and reporting obligations. By Lawyers will be updating our publications with information and guidance about these requirements when they commence.

Professional bodies for lawyers and conveyancers around the country already have substantial information available about these changes on their websites. Practitioners can expect professional legal education providers to focus on the topic in the coming 12 months, and legal software providers such as LEAP to provide efficient application-based solutions.

County Court costs – VIC

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New rules provide for County Court costs to be taxed in the Costs Court under the Supreme Court Scale of Costs that operates by reference to hourly rates from 1 January 2025.

Costs in the County Court are dealt with under Order 63 of the County Court Civil Procedure Rules 2018, which now adopts the Scale of Costs in Schedule 1 of Appendix A to the Supreme Court (General Civil Procedure) Rules 2015.

In most cases, the parties will agree on the amount of costs to be paid. If they do not agree, the dispute is referred to the Costs Court.

The scale is based principally on time costing. If a client has been charged on the basis of hourly rates for work done, Section 1 of the Scale applies and provides that the costs payable to the entitled party are to be allowed on the basis of reasonable hourly rates, up to the maximum hourly rate set out in the scale. There are 3 tiers of maximum rates according to a practitioner’s years of post-admission experience. There are no minimum rates.

Section 1 also sets out maximum hourly rates for work done by employees of a law practice who are not legal practitioners. The maximum rates for those employees depend on whether their work required legal skill or knowledge.

All claims must be reasonable. In setting rates to be charged to clients, and in making costs claims, practitioners must observe their overarching obligation to ensure that costs are reasonable and proportionate under s 24 of the Civil Procedure Act 2010.

The time-based model does not mean that a law practice must charge their clients on an hourly basis. The scale also provides for assessment of costs where the entitled party has not been charged on the basis of hourly rates. In such a case, the Costs Court will allow a reasonable amount for the work.

See the By Lawyers County Court (VIC) and Supreme Court (VIC) publications for more information.

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