ByLawyers News and Updates

Family Court Act – WA

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The Family Court Act 1997 (WA) has been amended to reflect recent changes to Commonwealth family law legislation and facilitate the exercise of federal jurisdiction by the Family Court of Western Australia.

The combined WA and Federal amendments provide for the exercise by the Family Court of Western Australia of federal jurisdiction in family law property proceedings to:

  • determine the superannuation interests of separating de facto couples; and
  • hear bankruptcy proceedings concurrently with family law proceedings, where appropriate.

Superannuation splitting

The Commonwealth family law legislation has allowed the superannuation interests of married parties in proceedings before the previous Family Court of Australia, now the Federal Family and Circuit Court of Australia, to be treated as property for distribution since 2001. However, this was restricted to parties to the breakdown of a marriage.

The Family Court Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Act 2020 (Cth) inserts a new Part VlllC into the Family Law Act 1975 (Cth). This section provides for the distribution of superannuation entitlements between separating de facto couples in the Family Court of Western Australia. It allows superannuation matters under the Family Law Act 1975 (Cth) to be heard concurrently with other matters under the property provisions of the Family Court Act 1997 (WA).

Bankruptcy jurisdiction

The Family Court Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Act 2020 (Cth) also amends the Bankruptcy Act 1966 (Cth) to enable bankruptcy matters related to de facto couples to be heard by the Family Court of Western Australia in conjunction with family law proceedings. This is possible where:

(a) a party to a marriage or de facto relationship is bankrupt, and the trustee of the bankrupt’s estate is a party or an applicant in property settlement or spousal maintenance proceedings; or

(b) proceedings before the Federal Court or the Federal Circuit Court are transferred to the Family Court of Western Australia.

The Commonwealth Act also provides that appeals about concurrent family law and bankruptcy proceedings for Western Australian de facto couples will mirror existing appeal pathways for married and de facto couples in other jurisdictions.

The By Lawyers Family Law publications have been amended accordingly.

Bail amendments – WA

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Bail amendments under the Bail Amendment Act 2022 received assent and commenced on 3 September 2022.

The Bail Act 1982 has been amended in a number of small but important respects, aimed mainly at better protecting the safety and welfare of victims of child sexual offences.

These latest bail amendments include:

  • provision ensuring that a person charged with a serious offence cannot be released without bail;
  • deleting the definition of serious offence under s 6A of the Act, so that the definition of serious offence in s 3 applies throughout the Act. This means that all serious offences are now listed in Schedule 2 of the Act, with the sole exception of the offence of breaching bail under s 51(2a) of the Act;
  • highlighting the capacity of bail decision makers to defer bail under s 9 to inform protective bail conditions in cases involving alleged sexual offences against children;
  • requiring bail decision makers to consider the conduct of the accused towards any alleged victim of the current offences and any victim of an offence the accused has previously been convicted of including any conduct towards the victim’s family;
  • requiring bail decision makers to take into account specific additional considerations that are specific to bail in cases involving alleged sexual offences against child victims;
  • requiring judicial officers to consider the fact that a person has been convicted of an offence and any sentence that is likely to be imposed when determining bail for an accused awaiting sentencing; and
  • expanding the list of serious offences under Schedule 2 to the Act. This means that a broader category of accused persons charged with serious offences while already on bail or on early release for another serious offence will bear the onus of satisfying the court
    that there are exceptional reasons why they should not be kept in custody.

The commentary on bail and the Retainer instructions – Bail precedent in the By Lawyers Magistrates Court (WA) – Criminal publication have been updated to reflect these bail amendments.

Conveyancing regulation – NSW

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The new Conveyancing (Sale of Land) Regulation 2022 commenced on 1 September 2022. It replaces the Conveyancing (Sale of Land) Regulation 2017. No new disclosure requirements arise from the 2022 regulations. Generally the 2022 regulations adopt simple and modern language, removing outdated legislative references.

The 2022 regulations maintain the objectives of the 2017 regulations. Small amendments clarify the disclosure requirements for contracts arising from options. Other minor insertions confirm that cooling off periods do not apply to put options. Part 5 of the regulations consolidates the circumstances entitling a purchaser to rescind a contract or option deed.

Off the plan contract disclosure requirements

Schedule 1 contains a new Part 2 listing additional disclosure requirements for off the plan contracts. Regulation 13(1) states that the documents listed in Part 2 of Schedule 1 are prescribed, and must be included in a disclosure statement for an off the plan contract. These prescribed documents relate to the land to be subdivided, and the development of the land. Examples include:

  • a proposed schedule of finishes;
  • draft by-laws for a strata scheme;
  • draft section 88B instrument;
  • draft building management statement;
  • draft strata management statement.

Cooling off periods for options

Regulation 17(3) confirms that cooling off periods do not apply to contracts arising from a put option. Call options have always been exempt from cooling off periods under section 66T of the Conveyancing Act 1919. In BP7 Pty Ltd v Gavancorp Pty Ltd [2021] NSWSC 265, a purchaser resisted the exercise of a put option against them. Section 66T gave no cooling off rights to options able to be taken to purchase certain property. The court found a put option to be an option to compel the purchase of land, and not in the same character as an option exempted under section 66T. Regulation 17(3) now extends the section 66T exemption to both put and call options.

When purchasers may rescind

Part 5 sets out when a purchaser may rescind a contract or option, and the conditions required for a valid rescission in certain circumstances.

Transition period

Under regulation 26, the transition period runs from 1 September 2022 to 1 March 2023. Anything done in compliance with the 2017 regulations before 28 February 2023 will be taken to comply with the 2022 regulations.

The By Lawyers Purchase of Real Property, Sale of Real Property, and 1001 Conveyancing Answers (NSW) guides have been updated to reflect the new regulations.

Joint criminal rules – SA

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Criminal procedure in the SA Magistrates Court has been overhauled with the commencement of the Joint Criminal Rules 2022 and the Uniform Special Statutory Rules 2022 on 29 August 2022. At the same time, the CourtSA criminal portal has gone live, for online filing and case management.

The By Lawyers Magistrates Court (SA) – Criminal, Traffic Offences and Intervention Orders guides have been extensively updated to reflect the new rules and procedures.

New rules

The Magistrates Court Act 1991, the Joint Criminal Rules 2022 and the Uniform Special Statutory Rules 2022 provide the framework for the way criminal, or criminal-related, matters are dealt with, including the commencement of proceedings.

The Joint Criminal Rules 2022 or the Uniform Special Statutory Rules 2022 govern all actions commenced in the Criminal Division and Petty Sessions Division of the Magistrates Court, other than the review of certain decisions made by the Chief Recovery Officer. They also apply to steps in proceedings taken on or after the commencement date.

The previous rules, the Magistrates Court Rules 1992 (Criminal), continue to govern steps in a proceeding taken before the commencement date.

All forms associated with the new rules will be added to the matter plans shortly.

Elder abuse proceedings

The Magistrates Court also has jurisdiction under Part 4 Division 6 of the Ageing and Adult Safeguarding Act 1995 with respect to applications by the Director of the Office for Ageing Well for orders preventing elder abuse, or proceedings for alleged contraventions of such orders. The matters are now dealt with in the Civil (General Claims) Division of the Magistrates Court. See the By Lawyers Intervention Orders commentary for further detail on elder abuse orders.

Changes to criminal procedure

The Information

The Joint Criminal Rules require that an Information be accompanied by a summary of the allegations with respect to each count, an antecedent report, or a document combining the two, any applicable bail agreement or details of bail, and a Notice relating to the highest charge category.

The new rules also require the information to identify whether the matter is a priority proceeding, which applies to the highest charge category.

The order of charge categories is:

  • major indictable;
  • Commonwealth indictable;
  • minor indictable;
  • summary; and
  • summary not punishable by imprisonment.

Depending on the nature of the most serious charge, an Information is also to be served with certain forms that may be filed by the defendant, including a Written Guilty Plea and Election for Trial in the District Court. The requirement to disclosure this additional information ensures compliance with s 105 of the Criminal Procedure Act 1921.

Defence disclosure

There are also new defence disclosure requirements when the prosecution has complied with its own obligations. Where the charge being heard in the Magistrates Court includes an indictable offence, the new rules provide that s 134 of the Criminal Procedure Act applies, as modified by the Joint Criminal Rules, in particular r 75.5.

In effect, if the prosecution makes an application supported by an affidavit stating it has no existing but unfulfilled obligations of disclosure to the defence, then the court has the power to order that a defendant disclose if it intends to adduce evidence at trial in relation to:

  • fitness to stand trial;
  • acting for a defensive purpose;
  • acting under provocation;
  • acting under automatism;
  • whether the alleged offence occurred by accident;
  • acting out of necessity;
  • acting under duress;
  • acting under a claim of right;
  • acting under intoxication.

The prosecution can make such an application up until 28 days before the trial date.

Initial adjournment

Under the previous rules, the court’s directions provided for an initial adjournment but generally required a defendant to indicate at the second appearance whether they intend to enter a plea of guilty or not guilty.

It is uncertain whether the court will treat matters commenced under the Joint Criminal Rules any differently. The Joint Criminal Rules appear to leave open the possibility that a plea will not be entered on the first occasion. See r 65.1 and the general power to adjourn under r 38.1.

County Court – VIC

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The County Court Commercial Division Omnibus Practice Note PNCO 2-2022 came into operation on 1 August 2022.

The new Commercial List Practice Note is largely a consolidation of all the previous practice notes for the division into a single omnibus practice note.

The main changes are in relation to the introduction of electronic processes for discovery, affidavits, and subpoenas.

The Court has also issued a Notice to practitioners regarding the Commercial Division Standard Orders Booklet 2022, also released on 1 August and to be read in conjunction with the new practice note. This collection of the court’s required content and format for consent orders is to be consulted by parties drafting consent orders to be submitted to the Court.

The By Lawyers VIC Litigation guides County Court – Acting for the plaintiff and County Court – Acting for the defendant have been updated accordingly, with references and links to the new omnibus practice note and standard orders booklet in the commentary. There are no new forms or precedents required.

Additional updates have also been made to the commentaries for new Common Law practice notes that have been released recently.  The Court’s Common Law division has not consolidated its practice notes into a single omnibus practice note at this stage.

Transport Accident Claims – VIC

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Amendments that extend entitlements to compensation under the transport accident claims legislation have commenced.

Part 3 of the Road Safety Legislation Amendment Act 2022  commenced on 6 July 2022. It amends the Transport Accident Act 1986 to extend benefits for claimants and their supporting families. The definition of a dependent child is amended to include a child who is under the age of 18 years, rather than 16 years. The definition of an immediate family member is amended to include a grandchild, alongside a partner, parent, grandparent, child, and sibling.

The extension of the definitions means that family counseling is available for the grandchildren of grandparents severely injured or killed in a transport accident. Claims can also be made for travel or accommodation expenses for grandchildren visiting their injured grandparent in hospital after a transport accident or attending the funeral of their, grandparent killed in a transport accident and to provide a replacement carer if the grandparent was the primary carer for the grandchild.

New provisions have been added to the Transport Accident Act that deal with the pre-accident weekly earnings for various types of earners who were, immediately before a transport accident, already receiving a weekly payment in respect of total or partial loss of earnings suffered as a result of, or materially contributed to by, an injury resulting from a previous transport accident.

The amending Act also clarifies the Transport Accident Commission’s capacity to disclose information to other statutory agencies and expands its ability to prosecute fraud offences committed with respect to transport accident claims.

The full commentary in the By Lawyers Transport Accident Claims (VIC) publication has been updated accordingly.

Unrelated provisions of the amending Act which affect the Road Safety Act 1986 have not yet commenced. These will be the subject of further update and publication amendments in due course.

Legal Profession Uniform Law – WA

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The Legal Profession Uniform Law applies in Western Australia from 1 July 2022.

Overview

The Legal Profession Uniform Law Application Act 2022 applies the existing national Legal Profession Uniform Law (LPUL) in WA, together with subordinate legislation. it is intended to simplify and standardise regulation for legal practitioners. It brings WA into line with New South Wales and Victoria. The Uniform Law replaces the Legal Profession Act 2008 (WA).

The Uniform Law is governed by the Legal Services Council and the office of the Commissioner for Uniform Legal Services Regulation. Each participating jurisdiction has a representative on the council.

The council establishes the rules and policies that underpin the Uniform Law. The Commissioner oversees the dispute resolution and compliance functions of the Uniform Law.

The WA Legal Services and Complaints Committee and the Legal Practice Board continue to carry out complaint and investigation functions, grant practising certificates, and provide professional development.

While the Uniform Law makes many sweeping changes, the main effects on everyday practice concern costs disclosure and billing.

Costs disclosure

Disclosure obligations vary depending on the estimated legal costs in a matter.

Disclosure is not required where the total legal costs are not expected to exceed $750 excluding GST and disbursements. Where the total legal costs are not expected to exceed $3,000 excluding GST and disbursements, a law practice may use the prescribed uniform standard disclosure form contained in Schedule 1 of the Legal Profession Uniform General Rules.

Costs disclosure must be in writing and given to the client when instructions are taken, or as soon as reasonably practical after. It must include the basis on which legal costs will be calculated and an estimate of the total legal costs. It must include information about the client’s rights to negotiate the costs agreement, receive a bill, request an itemised bill, negotiate the billing method, and whether the costs are subject to a costs determination.

If there is any significant change the disclosure must be updated.

If a law practice fails to meet its disclosure obligations any cost agreement is void and the client is not required to pay the costs. The law practice cannot then commence or maintain any proceedings for recovery of costs until they are assessed, or any dispute determined by the Legal Practice Board. A contravention can also result in disciplinary action.

Where disclosure is made under the main disclosure requirements of the Uniform Law, a law practice must take all reasonable steps to satisfy itself that the client has understood and given consent to the proposed course of action for the conduct of the matter and the proposed costs.

Billing

The billing provisions of the Uniform Law do not apply if the client is a commercial organisation or government authority.

A bill may be expressed as a lump sum, or itemised. A client receiving a lump sum bill may request an itemised bill. The request must be made within 30 days after the date on which the legal costs became payable, and must be complied with within 21 days after receiving the request.

If the total amount of legal costs specified in an itemised bill is higher than the amount previously specified in a lump sum bill, the additional costs are only recoverable if the law practice previously told the client in writing that could be the case.

Each bill or covering letter accompanying each bill must be signed by a principal of the law practice, or nominate a principal of the law practice as the responsible principal for the bill.

A client may request progress reports on costs which must be provided within a reasonable period.

Lawyers may not charge for preparing or giving a bill or a progress report.

Bills must include a written statement setting out the client’s options to dispute the legal and the time limits applicable.

Interest may be charged on unpaid costs 30 days after a complying bill has been given if the bill contains a statement that interest will be payable and the rate chargeable. The maximum rate is prescribed, currently 2% above the cash rate target specified by the Reserve Bank of Australia at the time the bill was given.

By Lawyers updates

By Lawyers have made the introduction of the Legal Profession Uniform Law easy for our WA subscribers. Changes to By Lawyers publications to cover the LPUL include:

  • New costs agreements and short form costs disclosure for all WA guides and Federal guides. These are also available in 101 Costs Answers.
  • Updates to the Example Invoice Incorporating Notification of Client’s Rights – WA and the stand-alone Notification of Client’s Rights – WA precedents available on all WA and Federal matter plans.
  • Updates to the commentary on the requirements for professional executors in the Probate and Letters of Administration publications for WA.
  • Updates to the costs section in the Wills commentary including the Conflicts concerning practitioner’s own interests section and the Solicitors as executors section.
  • Updates to the WA trusts accounting section in the Practice Management guide
  • Relevant updates to 101 Costs Answers.

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:

  • 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 By Lawyers News and Updates posts dealing with those updates.

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

Bail after conviction – NSW

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Bail after conviction must now be refused for offences where the accused will receive full time imprisonment, unless special or exceptional circumstances exist.

The Bail Amendment Act 2022 (NSW) commenced on 27 June. It adds a new s 22B to the Bail Act 2013.

The new section provides that on an application for bail after conviction of an accused person, before they are sentenced for an offence for which they will receive full-time custody, the court must refuse bail unless the accused can establish special or exceptional circumstances exist to justify the decision to grant or dispense with bail.

The same applies to a detention application brought by the prosecution in the Supreme Court under Section 40 of the Bail Act.

However, if the offence of which the accused person has been convicted is a show cause offence, the requirement for the accused person to establish special or exceptional circumstances to justify a decision to grant bail or dispense with bail applies instead of the requirement that the accused person show cause why their detention is not justified.

The Bail section of the By Lawyers Criminal – Local Court NSW commentary has been updated accordingly.

Motor accidents – NSW

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There have been a number of small but important amendments to NSW motor accidents legislation.

Relevant provisions of the Motor Accidents and Workers Compensation Legislation Amendment Act 2021 commenced on 16 June 2022.

The amendments include:

  • The definition of pre-accident weekly earnings in the Motor Accident Injuries Act 2017 has been amended to include consideration of any increased earnings to which the claimant would have been entitled had the injury not occurred. Circumstances such as a change of job, a planned move from part-time to full-time hours or a previously negotiated pay increase within 12 months before the accident can be taken into account when determining the amount of statutory benefits payable for lost income.
  • The calculation of weekly statutory benefits for lost earnings now takes into account any increase in the claimant’s actual post-accident earnings.
  • Clarification that anyone injured in a no fault motor vehicle accident, and who has more than a minor injury, is entitled to receive statutory benefits past the 26 week cut-off period. This amendment addresses an anomaly identified by the Supreme Court in AAI Limited v Singh [2019] NSWSC 1300, when the court noted: Notwithstanding that a path through the labyrinth of Pts 3 and 5 of the Motor Accidents Injuries Act has been found for the purposes of resolving this proceeding, it is apparent that these provisions, Pt 5 in particular, require careful and detailed reconsideration. Amendment will be necessary if a spate of litigation generated by the obscurities of these provisions is to be avoided.

The commentary in the By Lawyers Motor Vehicle Accidents – Accidents from 1 December 2017 guide has been updated accordingly. The link to AAI Limited v Singh which was added after that case was decided in 2019 has been removed.

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