ByLawyers News and Updates

Domestic violence amendments – SA

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Some of the domestic violence amendments under the Statutes Amendment (Domestic Violence) Act 2018 have now commenced. The act makes a number of changes to domestic violence provisions, most of which commenced on 31 January 2019.

Amendments that commenced on 31 January 2019 include:

  • additions to the definition of ‘abuse’ in s 8 of the Intervention Orders (Prevention of Abuse) Act 2009 to include forcing a person to marry another person, preventing a person from entering the person’s place of residence and taking an invasive image (within the meaning of Part 5A of the Summary Offences Act 1953) of a person and threatening to distribute the image without the person’s consent;
  • increased penalties for breaching an intervention order, where a breach is a ‘second or subsequent’ offence, which generally means offences within 5 years of each other, AND the breach involves physical violence or the threat of it, then the maximum penalty is $20,000 and 4 years imprisonment (whereas the maximum penalty for a first offence is $1250 and 2 years imprisonment);
  • s 10A(d) of the Bail Act 1985 has been amended to classify certain domestic violence offences as ‘aggravated offences’ in  relation to which there is a presumption against bail;
  • new s 20A—Choking, suffocation or strangulation in a domestic setting has been added to the Criminal Law Consolidation Act 1935. This offence provides that a person who is, or has been, in a relationship with another person and chokes, suffocates or strangles that other person, without that other person’s consent, is guilty of an offence, the maximum penalty for which is imprisonment for 7 years.

Amendments yet to commence include:

  • where police are seeking to urgently vary an existing final order the court may now conduct a preliminary hearing in the absence of the defendant and may take evidence by telephone or such other means as the court determines appropriate and the rules of court allow;
  • where an Intervention order is sought by police, the applicant and anyone else for whose protection the order is sought, may give their evidence in the proceedings by recording and may only be cross-examined about that evidence if the court permits it.

These provisions are suspended until proclaimed, commencing on 6 December 2020 at the latest.

The commentaries in the By Lawyers Criminal SA and Intervention Orders SA guides have been updated accordingly.

Updated Motor Accidents Guidelines – NSW

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The Motor Accidents Guidelines which apply to motor accidents in New South Wales after 1 December 2017 under the Motor Accidents Injuries Act 2017 have been updated.

The Motor Accidents Guidelines are available on the SIRA website. The new Guidelines apply from 15 January 2019.

Links and applicable commentary references in the By Lawyers Motor Vehicle Accidents (NSW) guide have been updated accordingly.

Personal Property Securities – Expiry of default registration period

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On 30 January 2019 over 120,000 Personal Property Securities Register registrations will expire.

The first security interests were registered on 30 January 2012, and the default registration period for a security interest in consumer property or property described by a serial number is seven years.

It is important that anyone who has a security interest registered in 2012 reviews that registration to check its expiry date. The Australian Financial Security Authority provides a useful expiry report service.

If a registration expires it will no longer be perfected for the purposes of the Personal Property Securities Act 2009. In order to protect the secured parties’ interests, the security interest will need to be renewed before the registration expiry date.

The By Lawyers Personal Property Securities publication details how to renew or amend a registration and will assist in all Personal Property Securities Register matters.

Workers Compensation amendments – NSW

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The next tranche of workers compensation amendments under Schedules 1 and 2 of the Workers Compensation Legislation Amendment Act 2018 commence 1 January 2019, providing for the abolition of the administrative system of dispute resolution and reinstatement of the jurisdiction of the Workers Compensation Commission to determine disputes and make determinations of permanent impairment.

There is no commencement date yet for Schedule 3 of the amending Act, which provides for the introduction of a simplified process to determine an injured worker’s pre-injury average weekly earnings, with new Schedule 3 to the Workers Compensation Act 1987 providing the method for determining PIAWE and allowing insurers and workers to agree on the figure for PIAWE.

Provisions removing limitations on workers injured in motor vehicle accidents obtaining statutory benefits for treatment and care under that Act where their entitlement to workers compensation has ceased, or where they recover damages from the employer in respect of the injury, have already commenced.

The By Lawyers Workers Compensation (NSW) publication has been updated to deal with these amendments.

Foreign Buyers Duty – Western Australia

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From 1 January 2019 Foreign Buyers Duty applies, being additional duty imposed on certain transactions and acquisitions involving foreign persons or entities acquiring residential property in Western Australia. An additional duty of 7% is imposed on direct acquisitions (foreign transfer duty) and indirect acquisitions (foreign landholder duty) of residential property by foreign persons.

Foreign Buyers Duty will not apply to purchases of commercial, industrial or mixed used properties used primarily for commercial purposes.

An exemption from foreign transfer duty and foreign landholder duty for residential developments applies where certain conditions are met.

A Foreign Transfer Duty Declaration form is used to declare whether each purchaser or transferee is a foreign person. This form must be completed by each person acquiring an interest in any land in Western Australia.

The By Lawyers Purchase of Real Property (WA) guide has been updated as follows:

  • Comprehensive commentary has been added on Foreign Buyers Duty.
  • New forms added to the matter plan include Foreign Transfer Duty Declaration, Foreign Landholder Duty – Developer Exemptions and Foreign Transfer Duty – Developer Exemptions.
  • The To Do List – Purchase of Real Property now includes an item on the obligation to complete a foreign transfer duty declaration form.

By Lawyers keep on top of changes in the law so you can focus on getting the job done.

Interest on unpaid legal costs – TAS

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Under new regulations, the maximum rate of interest on unpaid legal costs that can be charged by Tasmanian lawyers has increased significantly. The Legal Profession Regulations 2018 came into force on 28 November 2018 and replaced the Legal Profession Regulations 2008.

Rule 66 now provides that the applicable rate for interest on unpaid legal costs is that prescribed by the Rules of Court for the purposes of section 165 of the Supreme Court Civil Procedure Act 1932. The current rate is 7.5%. The previous rate was 3.5% and was tied to the Reserve Bank of Australia Cash Rate Target.

All By Lawyers Tasmanian costs agreements have been updated accordingly.

Electronic lodgement of leases – NSW

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From 10 December 2018 electronic lodgement of leases commences via PEXA.

Summary of the procedure for electronic lodgement of leases

The annexures to the Real Property Act lease form are prepared in the usual way outside PEXA and then uploaded for attachment to the RPA lease form in PEXA .

The RPA lease form is created in PEXA, the annexures attached and the lease document is then signed and lodged electronically.

A lease may be lodged electronically:

  • as a stand-alone registration;
  • in combination with a transfer of land; and
  • in a series with other leases.

Sub-leases, surrenders of lease and variations of lease are not yet available in PEXA. This functionality is expected mid-2019.

The Office of the Registrar General has granted a partial waiver of a subscriber’s obligations to comply with rule 1 of Schedule 3 – Certification Rules of the Model Participation Rules relating to verification of identity for lessors and lessees, in that there is no requirement to take reasonable steps to verify the identity of the parties. The waiver will continue until either the Model Participation Rules are amended or the partial waiver is revoked.

By Lawyers Leases (NSW) guide updated for electronic lodgement of leases

The relevant sections of the By Lawyers Leases (NSW) commentary, as well as the following applicable precedents, has now been updated for the electronic lodgement of leases:

  • To do list; and
  • Retainer instructions.

A new folder E. If required – Electronic lodgement has been added to both the Act for lessor and Act for lessee matter plans and includes:

  • A brief explanation of the transition to E-conveyancing;
  • Letter to lessor/lessee enclosing lease to be registered and client authorisation; and
  • Client Authorisation forms.

Enjoy practice more with By Lawyers!

Access to criminal case information – WA

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There is now a greater public right of access to criminal case information in the WA Magistrates Court. Practitioners acting for accused persons in the WA Magistrates Court should be aware – and, where appropriate, advise their clients – that an amendment to the Magistrates Court (General) Rules 2005 (new rule 40) now allows any person to request from the court the following information relating to a particular case:

  1. the charge;
  2. any conviction or order made in respect of the charge; and
  3. any penalty imposed on the accused in relation to the charge.

However, this rule is expressly subject to the non-publication provisions of s 171 of the Criminal Procedure Act 2004. In appropriate circumstances, consideration should be given to seeking a non-publication order under s 171(4) to avoid the effect of this rule.

Also, this rule does not allow anyone to generally access the accused’s criminal history other than the outcome of the specific case.

The commentary in the By Lawyers Criminal Magistrates Court (WA) guide has been updated accordingly.

Apprehended violence orders amendments- NSW

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On 1 December 2018 a number of provisions strengthening apprehended violence orders in NSW commenced:

  1. a new ‘without consent’ version of the s 37 Crimes Act 1900 offence of choking, suffocation and strangulation, created specifically for the domestic violence context by the Crimes Legislation Amendment Act 2018;
  2. provisions in the Crimes (Domestic and Personal Violence) Amendment Act 2018 making it clear that stalking and intimidation can be by internet or other such electronic means;
  3. new Crimes Legislation Amendment (Victims) Act 2018 provisions providing that proceedings for apprehended violence orders will be held in a closed court if they involve any person under the age of 18 years, with such persons entitled to have a support person present.

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

Further, commencing 17 December, certain provisions of the Justice Legislation Amendment Act (No 3) 2018 mean that an apprehended domestic violence order can be made against a paid carer for the protection of a dependant, but not against a dependant for the protection of the paid carer.

There are also amendments pending proclamation in the Crimes Legislation Amendment Act 2018 which change the default duration of apprehended domestic violence orders.

The By Lawyers Apprehended Violence Orders (NSW) guide will be updated when these further amending provisions commence.

Mandatory electronic lodgement from 1 December – WA

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Are you ready for mandatory electronic lodgement?

From 1 December 2018, all new eligible stand-alone transfers, caveats and withdrawal of caveats, and any lodgement case consisting of eligible discharges, transfers, mortgages, caveats and withdrawal of caveats must be lodged electronically.

Electronic lodgement is mandatory from this date and paper lodgement will not be accepted for the above scenarios, unless an instrument cannot be lodged using an Electronic Lodgement Network and a completed Request to accept paper lodgement form is attached. The form must be completed by the party requesting paper lodgement, and that party must also ensure that they hold evidence that supports their request. The form does not need to be used in a lodgement case that includes an additional document not listed above e.g. transmission, survivorship application.

The By Lawyers Conveyancing (WA) Publication has been updated accordingly to assist WA solicitors and conveyancers with the transition to electronic conveyancing.

For further details, see the ‘E-Conveyancing’ section of the By Lawyers conveyancing commentaries and our related article ‘A brief explanation of the transition to E-conveyancing’, which includes information on how to get connected, both accessible from the Matter Plan in our Conveyancing Guides.

 

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