ByLawyers News and Updates

Family violence – WA

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From 6 August 2020 some provisions of the Family Violence Legislation Reform Act 2020 commence, amending the Criminal Code, Sentencing Act 1995, Bail Act 1982 and Restraining Orders Act 1997, among others.

Family violence – Bail considerations

The court may defer consideration of bail for 30 days for an accused charged with an offence where the accused is in a family relationship with the victim, as defined in s 3 of the Bail Act. The purpose of the deferral is to allow the court to determine what, if any, bail conditions should be imposed to enhance the protection of the victim of the alleged offence.

There are additional provisions relating to the interaction of bail conditions and restraining orders.

Family violence – Restraining orders

Sections 3 to 6A of the Restraining Orders Act define all relevant terms used in the Act, including what constitutes ‘family violence’.

Some of the amendments deal with the conduct of family violence proceedings.

The court must enquire as to whether any family law orders are in place for the parties to a restraining order application before the court makes a restraining order. If family law orders are in place, the court must take reasonable steps to obtain a copy or information about the orders and take their terms into account.

At any defended hearing the court is not bound by the rules of evidence and may inform itself on any matter in such a manner as it sees fit: s 44A. This section also specifically makes hearsay evidence admissible.

Victims of family violence may have one or more support person with them when they give evidence.

The court, either on its own motion or at the request of a party, may use CCTV or other screening arrangements for the giving of evidence by any party or witness in restraining order proceedings, subject to consideration of a number of factors set out in s 44E.

More information

The By Lawyers Criminal and Restraining orders guides have been updated accordingly.

Further provisions of the amending Act will commence in October 2020. By Lawyers guides will be further updated when those amendments commence.

Electronic conveyancing – SA

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From 3 August 2020, electronic conveyancing takes a big step forward in South Australia.

From that date, electronic lodgement of the following documents with Land Services SA will be mandatory:

  • Transfer
  • Caveat
  • Withdrawal of Caveat
  • Encumbrance
  • Discharge of Encumbrance
  • Transmission Application
  • Application to Register Death by Survivor
  • Lease
  • Surrender of Lease
  • Underlease
  • Surrender of Underlease
  • Transfer of Mortgage
  • Transfer of Encumbrance.

There are now two Electronic Lodgement Network Operators (ELNOs) active in South Australia – Sympli and PEXA. Sympli have been approved for transfers, caveats, withdrawal of caveats, mortgages and discharge of mortgages in SA. Practitioners can use either or both for their electronic conveyancing requirements.

 

HomeBuilder scheme

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From 4 June 2020, a $25,000 grant is available to certain individuals who build a new home or substantially renovate an existing home. The grant cannot be used to buy an existing house and is limited to Australian citizens earning less than $125,000 or couples earning less than $200,000.

The value of new builds is capped at $750,000. For renovations, the home must be worth less than $1.5 million before the renovation, and projects must cost between $150,000 and $750,000.

The building contract must be signed between 4 June 2020 and 31 December 2020, and work must commence within three months of the contract date.

Applications will be through the relevant revenue department once the necessary agreements have been signed by the State and Commonwealth Governments.

The By Lawyers Purchase Guides have been updated accordingly.

Online applications for criminal matters – QLD

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Online applications for criminal matters in the Queensland Magistrates Court was enabled from 9 July 2020. Queensland’s Chief Magistrate Judge Terry Gardiner paved the way for the listing of all criminal matters in the Magistrates Courts electronically via the release of a new practice direction.

Magistrates Court Practice Direction 7 of 2020 allows for either prosecutors or defence legal representatives to submit an electronically lodged form for any matters listed in the Magistrates Court seeking an order for a date for a directions hearing, bail application or sentence. However, such applications must be by consent.

If an application is not by consent parties must approach the court in the usual way and Practice Direction 10 of 2010 continues to apply.

“Where a matter has a current listing date, a party may apply electronically where the consent of the other party – prosecution or defence – has been obtained,” Judge Gardner said when releasing the new practice direction.

Online applications can be made for:

  • a sentence date, including a short plea, lengthy plea or contested sentence;
  • an adjournment, other than of a hearing;
  • a date for a hearing of an application, including a bail application or a directions hearing;
  • a direction by the court, including for the provision of a brief of evidence.

Any application where the matter already has any date listed must be made at least two clear business days before the currently listed date.

“The Court will advise the parties electronically of the outcome of the application,” the Chief Magistrate advised. “If the application is not granted by the Court, the current listed Court date remains as well as any orders or directions that have been made.”

Online applications for criminal matters are available now on the courts’ website. The By Lawyers Queensland Criminal Magistrates Court publication has been updated accordingly.

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 scheduled indexing of relevant monetary amounts and increases in government fees and charges.

These updates can include court filing fees, lodgement fees for property dealings, minimum weekly compensation amounts for Workers Compensation and various fines.

By Lawyers always monitor 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 legislative indexing and increases which occur regularly at other times. These include 1 January changes and also other specific dates prescribed by some statutes.

The 1 July updates have been applied, or are in the process of being applied as they get released, to the following By Lawyers publications:

  • Conveyancing and Property;
  • Criminal;
  • Litigation;
  • Family;
  • Estates;
  • Injuries; and
  • Employment.

Stay updated with By Lawyers guides and precedents. Happy new financial year!

Uniform Civil Rules – SA

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The much heralded Uniform Civil Court Rules 2020 commenced in South Australia on 18 May 2020. CourtSA’s new electronic registry system commenced on the same day.

The new rules apply to proceedings commenced and steps taken in all SA civil proceedings on or after 18 May. They are to be cited at the Uniform Civil Rules 2020.

All By Lawyers SA litigation guides have been updated to reflect the new rules and procedures.

Significant amendments

The Uniform Civil Rules 2020 bring many changes.

Universal rules as to pleadings apply across all three courts and are found in Part 7 of the Rules, subject to exceptions for ‘minor civil actions’. There are specific rules for specific types of actions, for example, personal injury. There are some specific rules only applicable to the Magistrates Court.

Description of parties

One of the most significant changes is the terminology used to describe the parties. Under the Uniform Civil Rules 2020 a ‘plaintiff’ is now an ‘applicant’, a ‘defendant’ is now a ‘respondent’ and an ‘intervenor’ is now an ‘interested party’. These terms apply to all civil matters in all SA courts. By Lawyers commentary and precedents, including the titles of precedents, have been amended accordingly.

Pre-action requirements

Some of the major changes relate to pre-action requirements. The rules now specify:

  • how documents are to be served;
  • what is to be included in a pre-action claim, including a cost estimate if the matter were to proceed to trial;
  • a requirement for a pre-action response that includes a cost estimate;
  • a further response from the proposed applicant if a cross claim is indicated;
  • a pre-action third party notice and response if a third party is to be added;
  • a requirement for a pre-action negotiation meeting and subsequent report if the matter does not resolve.

There are serious procedural and costs implications for non-compliance with pre-action requirements.

Cross claims and set offs

There are also significant changes to the procedure for cross claims and set offs and claims against, or claims for contribution by, third parties. This includes time limits and requirements for filing and service of such claims.

Expert witnesses

The rules now set out in detail the obligations of parties regarding their letter requesting the expert report. They apply an expert code of conduct and address in detail the required content of an expert report.

Parties may request instead shorter, ‘summary reports’ from experts that address only the assumptions made and opinions held in summary form. These can attach only copies of documents that record instructions given to the expert, rather than comply fully with the disclosure obligations.

Family provision claims

The procedure for family provision claims previously set out under the Supreme Court rules has been streamlined. Notably the required information regarding other potential claimants no longer needs to be contained in a separate affidavit. See the By Lawyers commentaries in the Family Provision guides for more information on the changes.

Amendments to By Lawyers guides

The following By Lawyers SA publications have now been amended – and renamed, where applicable – in line with the Uniform Civil Rules 2020:

  • Magistrates Court Civil – Acting for the Applicant (formerly Magistrates Court Acting for the Plaintiff)
  • Magistrates Court Civil – Acting for the Respondent (formerly Magistrates Court – Acting for the Defendant)
  • Magistrates Court – Intervention Orders (located in Criminal Magistrates Court)
  • Family Provision Claims – Acting for the Applicant (Formerly Family Provision Claims Acting for the Plaintiff)
  • Family Provision Claims – Acting for the Respondent (Formerly Family Provision Claims Acting for the Estate)

Transfer of real property – Family Law – FED

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Often the resolution of Family Law matters requires a transfer of real property between the parties. Transfers pursuant to the Family Law Act 1975 attract transfer duty exemptions or the payment of only nominal duty. Each state and territory has its own process to effect the transfer of real property in the context of relationship breakdowns.

Information has been added to the 101 Family Law Answers reference manual which helpfully sets out the processes for the transfer of real property due to relationship breakdown. The relevant stamp or transfer duty information for each state or territory is also available in 101 Family Law Answers.

The necessary forms for transferring property between parties are accessible from the Property Settlement matter plan. They are located in the Library of real property transfer and duties forms in the Settling it early or Finalising the matter folders.

The process is the same whether the relationship was a marriage or a de facto relationship.

101 Family Law Answers is available as a related guide in all By Lawyers Family Law publications. It provides more detailed information and relevant cases on the various Family Law matter types – Property Settlement, Children, Financial Agreements and Divorce. It also covers some general procedural issues and the enforcement of orders.

Family provision claims – NSW

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A full review of the By Lawyers Family provision claims – Acting for the estate guide has been conducted. This follows upon the recent review of Family provision claims – Acting for the plaintiff.

The review of this popular practical guide ensures that all content is in line with current law and practice.

Updates and enhancements include:

  • a re-organised and streamlined commentary that better caters for current practice;
  • additional assistance to help the practitioner get the matter underway;
  • enhanced commentary on preparing for and attending at mediation;
  • an updated matter plan that includes links to important sections of the commentary; and
  • significantly enhanced precedents:
    • Letter to plaintiff’s solicitor in response to their initial letter;
    • Brief to counsel – Defendant;
    • Defendant’s notice to eligible persons; and
    • Outline of submissions – Defendant.

This review of our NSW Family provision claims guides are part of By Lawyers ongoing commitment to continual improvement and enhancement of our content.

Additional information on Family provision claims can be found in the By Lawyers reference manual 101 Succession Answers (NSW). This includes the leading and latest cases on various important aspects of family provision claims. 101 Succession Answers is available in the Reference Materials folder in all related guides for NSW – Family provision, Wills, Estates, Powers of attorney and Appointments of enduring guardian.

Companies during COVID-19 – FED

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The Federal government has made things easier for companies during COVID-19. Amendments to the Corporations Act enable companies to circumvent formal requirements which made signing documents and holding meetings in the current environment difficult or impossible. These practical temporary measures apply to companies during COVID-19 and are set for repeal on 6 November 2020.

Execution of documents by companies during COVID-19

Amendments introduced by the Corporations (Coronavirus Economic Response) Determination (No. 1) 2020 that commenced on 6 May 2020 provide for execution of documents by companies during COVID-19. The amendments mean that a company can execute a document electronically under s 127 of the Corporations Act 2001. 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 Determination also provides for the execution of a document requiring a common seal, to be executed otherwise: s 6(3).

Meetings of companies during COVID-19

Amendments introduced by the Corporations (Coronavirus Economic Response) Determination (No. 1) 2020 that commenced on 6 May 2020 provide for meetings of companies during COVID-19. The amendments modify the provisions of the Corporations Act 2001 and the Corporations Regulations 2001, or any equivalent provisions in a company constitution, that require or permit a meeting to be held, or that regulate giving notice of a meeting or the conduct of a meeting. These amendments mean that:

  • a meeting can be held using one or more technologies that give all persons entitled to attend a reasonable opportunity to participate without being physically present in the same place. This would include platforms such as Zoom, Skype or Microsoft Teams;
  • all persons thus participating in the meeting 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 one or more technologies to give each person entitled to vote the opportunity to participate in the vote in real time and, where practicable, by recording their vote in advance of the meeting;
  • a requirement to allow persons attending the meeting to speak, such as asking questions, may be complied with by using one or more technologies that allow that opportunity;
  • a proxy may be appointed using one or more technologies specified in the notice of the meeting; and
  • notice of a meeting may be given by using one or more technologies to communicate along with any other information to be provided, or details of an online location where the content can be viewed or downloaded. For example, a company could send members an email setting out or attaching a notice of a meeting and any other material relating to the meeting, or else providing a link to where the notice and the other material can be viewed or downloaded.
  • a notice of meeting must include information about how those entitled to attend can participate in the meeting, including how they can vote and speak at the meeting.

If notice of the meeting has been given before 6 May 2020 a fresh notice of the meeting that includes the information referred to above must be issued at least 7 days before the meeting is held.

Updates

Keep up-to-date with our ‘Dealing with COVID-19 legal issues – Some practical information‘ commentary. This can be found at the top of each By Lawyers Guide.

Electronic Transactions – NSW

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Schedule 1 to the Electronic Transactions Regulation 2017 (NSW) came into operation on 22 April 2020 . It allows for witnessing of documents by audio visual link in New South Wales.

This is a practical step by NSW parliament. It allows wills, powers of attorney, deeds and agreements, enduring guardianship appointments, affidavits and statutory declarations to be witnessed through audio visual means. Formats such as Zoom, Skype or Microsoft Teams, which integrates with LEAP, can be used.

Practitioners can send a document to a client by email, if the client has printing facilities, or by post. A meeting can then be arranged via any audio visual format to witness the client signing the document.

Under the regulation the practitioner witness must:

  • Observe the client sign the document in real time – this may involve ensuring that the practitioner can view the document on screen as the signature is made;
  • Sign the document or a copy of the document themselves;
  • Be reasonably satisfied that the document that they sign is the same document, or a copy of the document, signed by the client; and
  • Endorse the document, or copy, with a statement specifying the method used to witness the signature and that the document was witnessed in accordance with the regulation.

The following wording is suggested for the endorsement:

This document was signed in counterpart and witnessed over audio visual link in accordance with clause 2 of Schedule 1 to the Electronic Transactions Regulation 2017.

The regulation allows a witness to sign a counterpart of the document, or have the client scan and email the signed document back to the practitioner, who may then print and witness the copy. Of course, the client may also post the original back to the practitioner, who may then sign the original document on receipt.

The regulation also allows for swearing or affirming the contents of an affidavit by audio visual link.

This is a temporary, COVID-19 related measure. Schedule 1 expires 6 months from the date of commencement, being 22 October 2020.

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