ByLawyers News and Updates

COVID measures for companies – FED

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COVID measures for companies have been further extended. These temporary measures are currently set to expire on 31 March 2022.

Company execution

The Treasury Laws Amendment (2021 Measures No. 1) Act 2021 (‘the 2021 measures’) commenced on 13 August 2021. They extend and expand on the measures previously introduced in 2020.

A company can execute a document electronically under s 127 of the Corporations Act 2001. Signatories can sign separate counterpart copies.

The method used must:

  • be appropriate in the circumstances,
  • identify the person in the electronic communication, and
  • indicate the person’s intention in respect of the contents of the document.

The measures also allow for alternatives to execution normally requiring a common seal.

Company meetings

The 2021 measures also extend and expand on the previous COVID measures for companies holding meetings. They modify the provisions of the Corporations Act 2001 and the Corporations Regulations 2001, or any equivalent provisions in a company constitution, that require or allow a meeting to be held, or that regulate giving notice of a meeting, or the conduct of a meeting. The provisions include:

  • a meeting can be held using one or more platforms such as Zoom, Skype or Microsoft Teams;
  • all persons participating electronically are taken for all purposes, including quorum requirements, to be ‘present’ at the meeting;
  • a vote taken at the meeting must be taken on a poll, and not on a show of hands, by using technology to give each person entitled to vote the opportunity to participate in the vote in real time or in advance;
  • persons attending the meeting to speak, such as asking questions, can do so using technology;
  • a proxy may be appointed using technology specified in the notice of the meeting; and
  • notice of a meeting may be given by using technologies. For example, a company could send members an email attaching a notice of a meeting and other material, or provide a link to the notice and the other material for viewing or download.

The By Lawyers Dealing with COVID-19 legal issues – Some practical information publication has been updated accordingly. This helpful summary guide to COVID measures in all states is available at the top of all By Lawyers matter plans.

New rules for IVOs – VIC

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There are new rules for IVOs in the Magistrates’ Court. The Magistrates’ Court (Personal Safety Intervention Orders) Rules 2021 commenced on 29 August 2021.

Intervention orders are made in the Magistrates’ Court under either the Family Violence Protection Act 2008 or the Personal Safety Intervention Orders Act 2010.

The Magistrates’ Court (Personal Safety Intervention Orders) Rules 2021 and the Magistrates’ Court (Family Violence Protection) Rules 2018 provide for the practice and procedure in all proceedings under the respective Acts, including service, orders, subpoenas, affidavits and hearings. The two sets of rules are largely uniform and therefore procedure under both Acts is essentially the same.

The new rules for IVOs revoke and replace these previous rules:

  • Magistrates’ Court (Family Violence Protection) Rules 2008;
  • Magistrates’ Court (Family Violence Protection Rules) (Amendment No. 1) Rules 2011;
  • Magistrates’ Court (Vexatious Proceedings Amendments) Rules 2014;
  • Magistrates’ Court (Family Violence Protection) Amendment Rules 2017;
  • Magistrates’ Court (Family Violence Protection) Amendment Rules 2018.

The By Lawyers Intervention orders commentary has been updated with links to the new rules. The specialist Intervention orders guide is part of the Criminal – Magistrates Court publication.

New family law court – FED

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The new family law court, the Federal Circuit and Family Court of Australia (FCFCOA), commences 1 September 2021.

The FCFCOA will have 2 divisions. Essentially Division 1 replaces the existing Family Court and Division 2 replaces the existing family law functions of the Federal Circuit Court. There will be a single point of entry to the new family law court through Division 2.

Summary of the changes

  • There will be harmonised rules, new practice directions, updated forms and one website.
  • The new court’s website will be launched on 1 September 2021 with simplified access and navigation.
  • All forms will be updated. An Application in a Case will become an Application in a Proceeding.
  • Transitional arrangements will allow for the use of new forms, with a 90 day grace period for old forms.
  • Existing matters will generally remain in the existing courts, unless the parties are advised otherwise.
  • Division 2 will have a general federal law jurisdiction similar to that of the Federal Circuit Court currently.
  • Division 1 will have jurisdiction to hear family law appeals and there will be a single national appeals filing registry.
  • A National Contravention List will be introduced and a practice direction will accompany the commencement of the list.
  • The new court will have Senior Judicial Registrars, Judicial Registrars, and Deputy Registrars. While the titles change, their powers and roles will be the same as existing Registrars.
  • Child Disputes Services will be known as the Court Children’s Service. Family Consultants will be known as Court Child Experts.
  • Parties in children’s matters will receive assistance earlier, with a greater emphasis on expert guidance.

Updates for the FCFCOA commencement on 1 September 2021

All By Lawyers Family law guides – Children, Divorce, Financial Agreements, and Property Settlement – will be updated to reflect the commencement of the new court. This will include a full review of the:

  • commentaries for the new procedures and rules;
  • matter plans with a single Going to court section reflecting the new process;
  • forms – with all new forms on the matter plans; and
  • precedents, to incorporate the changes where necessary.

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

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.

COVID signing provisions – QLD

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From 1 July 2021, some of the COVID signing provisions applicable in Queensland during the pandemic will cease.

The Justice Legislation (COVID-19 Emergency Response– Documents and Oaths) Amendment Regulation (No.2) 2021 means that from 1 July any ‘enduring’ documents – wills, enduring powers of attorney, and advance health directives – to be signed by a signatory or substitute signatory need to be made, signed and witnessed under the ordinary law.

One remaining exception is the modified COVID signing provisions that enable nursing practitioners, in addition to doctors, to complete a certificate in an advance health directive stating that the signatory appeared to have the necessary capacity to make it.

This regulation also does not affect the modified arrangements under the Justice Legislation (COVID-19 Emergency Response—Documents and Oaths) Regulation 2020 in relation to the making, signing and witnessing of affidavits, statutory declarations, oaths, deeds, particular mortgages and general powers of attorney under the documents regulation. These measures are currently scheduled to expire on 30 September 2021.

The By Lawyers dedicated Dealing with COVID-19 legal issues commentary will be updated. This guide, accessed via a link at the top of every By Lawyers matter plan, provides practitioners with helpful information about all relevant COVID signing provisions and other important temporary COVID measures.

See the By Lawyers Wills, Powers of Attorney & Advance Health Directives and Mortgages publications for more information. See also the folder of Blank deeds, agreements, statutory declarations and execution clauses in folder A. Getting the matter underway folder on the matter plan in every By Lawyers publication.

Statutory demand – FED

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The minimum amount for issue of a statutory demand increases from 1 July 2021.

The Corporations Amendment (Statutory Minimum) Regulations 2021 permanently increases the amount at which a creditor can issue a statutory demand to a company. This ‘statutory minimum’ will be increased from $2,000 to $4,000.

The By Lawyers Insolvency – Company liquidation Guide has been updated with an Alert, to assist practitioners who may be advising clients about their debt recovery options and need to consider the forthcoming increase. The commentary will be amended accordingly in due course.

A statutory demand, under s 459E of the Corporations Act 2001, for a company to pay a debt due and owing, can be a precursor to an application for winding up the company, relying upon non-compliance with the demand to establish a presumption of insolvency. The demand may be contested on the grounds of a genuine dispute about the debt, given that the demand does not need to be based upon a judgment.

County Court Civil – VIC

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The By Lawyers County Court Civil (VIC) publication has been updated.

This update reflects recent amendments to the Court’s practice notes in the Common Law Division issued by Her Honour Judge Tsalamandris, the Head of the Common Law Division. The links to the practice notes within the Acting for the plaintiff and the Acting for the defendant commentaries have now been updated.

Practice notes provide practitioners with information and direction on the court’s practice and procedures. They particularly explain how matters are conducted in the court’s specialist lists. As all By Lawyers litigation guides emphasise, it is important that practitioners have a sound understanding of the practice notes relevant to any proceedings they propose to commence for a client, or which are already on foot.

The Common Law Division Practice Note applies to all proceedings in the Common Law Division.

In addition, there are practice notes giving instruction on the conduct of cases in specific lists, such as the following which are the subject of the recent updates:

Procedures vary between courts, divisions and specialist lists. Compliance with practice notes is important for timely and efficient case management and will prevent unnecessary applications, save time and avoid the risk of adverse costs orders. The ‘Case management and direction’ sections of the commentaries in all By Lawyers litigation guides provides a valuable resource.

This update to the County Court Civil guides is part of By Lawyers continuing commitment to keeping our content current and helping  our subscribers enjoy practice more.

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