ByLawyers News and Updates

Indexation of maximum costs – Motor accident injury claims – NSW

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Practitioners are reminded that, from 1 October 2018, indexation commenced of the maximum costs for legal services and the maximum fees for medico-legal services recoverable from an insurer in respect of motor vehicle accident claims relating to accidents which occurred on or after 1 December 2017. The maximum costs will be indexed each year in line with inflation.

The maximums for legal costs and medico-legal fees are set out in Schedule 1 to the Motor Accident Injuries Regulation 2017. The maximum amounts recoverable for legal fees depend upon the stage at which the matter is resolved.

The commentary for motor accidents after 1 December 2017 in the By Lawyers NSW Motor Accidents Guide has been updated to note the indexation and provide the relevant links to both the legislation and the costs section of the SIRA website.

Probate Registry online applications – South Australia

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From Monday 26 November 2018, all applications for probate and letters of administration in the Supreme Court Probate Registry must be filed through CourtSA – the new electronic management system that is in the process of being introduced for all South Australian courts.

As at 15 October 2018, the probate registry no longer accepts paper applications. The Court has advised that any current paper transactions where a grant is not issued by 26 November 2018, will need to be re-lodged online through CourtSA.

It is expected that the online process will ultimately streamline applications and result in faster processing times, but there clearly will be some delay in the implementation phase, as no applications can now be filed until 26 November 2018.

Criminal procedure amendments – VIC

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Various criminal procedure amendments introduced by the Justice Legislation Miscellaneous Amendment Act 2018 are now in effect, including:

Protection of certain witnesses from cross examination in committal hearings.

A committal hearing is not to be held in committal proceedings to which s 123 Criminal Procedure Act 2009 applies, namely cases involving a witness who:

(a) is a complainant in a proceeding that relates (wholly or partly) to a charge for a sexual offence; and

(b) was a child or a person with a cognitive impairment when the criminal proceeding was commenced; and

(c) made a statement a copy of which was served in the hand-up brief or whose evidence-in-chief or examination at a compulsory examination hearing was recorded and a transcript of the recording was served in the hand-up brief.

Such witnesses cannot be required for cross examination.

The By Lawyers Victorian Magistrates Court – Criminal guide has been updated accordingly.

Increased penalties for offences of violence against certain workers

Offences of violence alleged to have been committed against an emergency worker on duty, a custodial officer on duty or a youth justice custodial worker on duty, within the meaning of section 10AA of the Sentencing Act 1991, are now excluded from the list in Schedule 2 of the Criminal Procedure Act of indictable offences which can be tried summarily and custodial sentences for such offences are mandatory.

 

Fees Update – Supreme Court Probate Office – VIC

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New probate filing fees

On 30 September 2018 the Supreme Court (Fees) Regulations 2018 introduces new filing fees for the Supreme Court of Victoria’s probate office.

The By Lawyers Victorian Estates Guide have been updated to reflect these changes.

Sentencing amendments – Criminal law – NSW

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Important sentencing amendments commenced in NSW courts on 24 September 2018, under the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 which amends the Crimes (Sentencing Procedure) Act 1999.

The cumulative effect of the amendments is a significant overhaul of sentencing options in all courts, the likes of which has not occurred since the Crimes (Sentencing Procedure) Act 1999 was introduced. The stated intent of the sentencing amendments is to reduce the number of offenders in custody by replacing largely unsupervised sentencing options with highly supervised ones, thereby having fewer people in gaol for breaches of bonds/orders. Whether the legislation achieves its aims remains to be seen, but practitioners need to be on top of the changes from today.

The amendments include:

Intensive Correction Orders (already existing) – substantially augmented and strengthened.

  • Available for all offenders sentenced to any custodial penalty up to 2 years (except for certain serious offences).
  • Mandatory supervision for all Intensive Correction Orders and can include conditions such as home detention.
  • Home Detention abolished as a stand-alone penalty.
  • Suspended sentence (s 12 bond) abolished.
  • Pre-sentence report (now called an Assessment report) mandatory.

Community Correction Orders introduced – replaces bonds under s 9

  • Good Behaviour Bonds (s 9) abolished.
  • Mandatory supervision for all Community Correction Orders and can include conditions such as community work.
  • Community Service Orders abolished.
  • Pre-sentence report (now called an Assessment report) not mandatory.

Community Release Orders introduced – replaces bonds under s 10(1)(b)

  • Bonds under s 10(1)(b) (without conviction) abolished.
  • Community Release Orders can be without conviction at the court’s discretion.
  • Conditions available for Intensive Correction Orders and Community Correction Orders are not available for Community Release Orders.
  • Pre-sentence report (now called an Assessment report) not mandatory.
  • Presumption that domestic violence offenders will receive only custody, or a supervised order, not Community Release Orders.

The By Lawyers Criminal (NSW) Guide has been updated to deal with these amendments in an easily understandable way.

Mandatory electronic lodgement- Conveyancing – VIC

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Mandatory electronic lodgement applies in Victoria from 1 October 2018. Are you ready?

Legal practitioners and licensed conveyancers acting in a transfer, mortgage/discharge of mortgage, or caveat/withdrawal of caveat, from that date must lodge the transaction electronically.

From 1st October 2018, the Registrar will not generally accept paper lodgement of any of the above instruments. However, the Registrar will accept paper lodgement if an instrument cannot be lodged electronically for any of the reasons set out in the Request to accept paper lodgement form, which is available on the Property and Land Titles website.

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 and the full timeline for implementation, both accessible from the Matter Plan in our Conveyancing Guides – Vic.

Family Law Courts e-filing updates -FED

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The Family Law Courts have announced that they will shortly release a number of enhancements to the online filing system, which are a result of their survey of the legal profession in 2017. In summary, the changes will include:

  • the ability to file a greater number of applications online;
  • support for fee reduction/exemption applications for financial hardship;
  • online lodgement for correspondence;
  • ability to indicate;
    • safety considerations;
    • urgency; and
    • the need for interpreters;
  • ability to upload 30 MB sized documents; and
  • support for parenting orders sought with Family Dispute Resolution (FDR) Exemptions.

More information will be published – and the By Lawyers Family Law Guides updated – when the Court releases more details of the facilities.

Immigration – amendments delayed – FED

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Amendments under the proposed Migration Amendment (Regulation of Migration Agents) Bill 2018 (Cth), currently before the senate, lawyers will be able to conduct immigration matters as part of their usual practice, will no longer have to register as migration agents and will not be subject to regulation by the Migration Agents Registration Authority (MARA). An implementation date of 19 November was originally set for this change.

Unfortunately the senate has not been able to find the time to consider or pass the amending legislation and the intended implementation date of 19 November 2018 will therefore no longer be possible. A new proposed implementation date will need to be determined when and if the legislation passes.

In the meantime double regulation continues and Australian Legal Practitioners must continue to register as Migration Agents with OMARA before they can conduct immigration work.

By Lawyers will keep you updated on the progress of this Bill. The By Lawyers Immigration Guide is available to assist lawyers who conduct immigration matters.

Family Law Act amendments – FED

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Family Law Act amendments, contained in the Family Law Amendment (Family Violence and Other Measures) Act 2018, commenced on 1 September 2018.

By Lawyers have updated the Children and Property Settlement commentaries  in our Family Law Guide to reflect these amendments. Broadly speaking, the changes are jurisdictional and procedural, with particular emphasis on enabling the court to better address issues with family violence.

The amendments include:

Transferring property proceedings when the value of property exceeds $20,000

The legislation provides that if property proceedings are issued in a court of summary jurisdiction and the value of the property exceeds $20,000, then if the respondent seeks different orders than the applicant and one of the parties does not consent to the court dealing with the application, then the matter must be transferred to the Family Court/Federal Circuit Court, or to the relevant Supreme Court: see: s 46 and s 46A. In practice, matters are usually transferred to the Federal Circuit Court.

As a result of the amendments, these sections enable State and Territory regulations to prescribe an amount higher than $20,000. This applies to all proceedings instituted from 1 September.

Proceedings with no reasonable prospects of success

Section 45A provides that:

  1. The court may make a decree for one party against another in relation to the whole or any part of proceedings if the court is satisfied that the other party has no reasonable prospect of successfully defending the proceedings or that part of the proceedings;
  2. The proceedings do not need to be hopeless or bound to fail to have no reasonable prospect of success;
  3. The court may make such a decree of its own initiative or upon application by a party;
  4. The court may make a costs order as a result of the decree; and
  5. The court may dismiss all or part of proceedings at any stage if it is satisfied that the proceedings or part is frivolous, vexatious or an abuse of process.

Section 118, which previously provided for the court to summarily dismiss frivolous or vexatious proceedings was repealed, effective from 1 September.

Interim parenting/Family violence orders

Section 69ZL provides that the court may give reasons in short form for a decision it makes in relation to an interim parenting order.

Section 68P(2A) which relates to the explanation provided by the court when an order is made which is inconsistent with a family violence order, provides that an explanation is not required to be given where the court is satisfied that it is in the best interests of the child not to receive an explanation.

The 21-day suspension of family law orders by a family violence order previously provided for in s 68T(1)(b) no longer applies. It has been replaced by two further options. Any revival, variation or suspension of family law orders now ceases to have effect at the earliest of:

  • the time the interim order stops being in force; and
  • the time specified in the interim order as the time at which the revival, variation or suspension ceases to have effect; and
  • the time the order, injunction or arrangement is affected by an order (however described) made by a court, under s 68R or otherwise, after the revival, variation or suspension.

See the commentaries in the By Lawyers Family Law Guide for more information.

FED – Immigration – Labour Market Testing

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The recent changes to Labour Market Testing requirements for Temporary Skill Shortage visa nominations have been incorporated into the commentary in the By Lawyers Immigration Guide.

The testing time before a nomination is lodged has changed from 6 months to 4 months. At least two advertisements are still required for the nominated position, however the information that needs to be included has become:

  1. the title, or a description, of the position;
  2. the skills or experience required for the position;
  3. the name of the approved sponsor or the recruitment agency being used by the sponsor; and
  4. the annual earnings for the position unless the annual earnings will be lower than AUD96,400. It is acceptable to publish a salary range, e.g. AUD80,000 to AUD90,000.

Advertised positions must remain open for application for at least 4 weeks from first publication, regardless of the medium used. General classified sites and social media platforms are still not suitable media for Labour Market Testing purposes, however LinkedIn’s online recruitment platform is acceptable.

Alternative requirements apply for ‘select occupations’ and ‘select positions’ such as for outstanding and internationally recognised talent in sport, academia or as a top chef. Also included are changes due to business restructures, or where the annual earnings are not less than AUD250,000, or for particular medical personnel.

It is still mandatory under the Migration Act to provide evidence with the nomination application of the sponsor’s efforts to find suitably qualified and experienced Australian citizens or permanent residents to fill the position/similar positions. This entails copies of advertisements and a receipt for any advertising fees being provided and/or a written submission for ‘select’ nomination applications.

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