ByLawyers News and Updates

Costs agreements – All states

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Enhancement of By Lawyers costs agreements

All By Lawyers costs agreements have been reviewed, consolidated, and reformatted to ensure they are in strict compliance with all applicable regulatory requirements in each state and territory, and to improve presentation and readability.

A good cost agreement precedent provides transparency, reduces disputes with clients over fees, and ensures that firms get paid. It is important these documents are correct, however, the increasing complexity of cost disclosure requirements makes this difficult. By Lawyers precedents provide firms with accurate and effective costs agreements for all matter types in all jurisdictions.

Summary of key changes

  • A key enhancement is the inclusion of a Terms and Conditions section, which consolidates general information that applies across all matters.
  • All related information has been grouped together to assist with readability and comprehension.
  • A Next steps section has been added, outlining the steps required to be taken by the client to move the engagement forward.
  • The automation in relation to fees, disbursements, and internal expenses has been improved for LEAP users.
  • The scopes of work, now available under each cost agreement on the matter plans, have been enhanced. For LEAP users, scopes of work can be added to a costs agreement via the Insert Clause feature. See Inserting a Clause on the LEAP Community page. Alternatively, all users can simply cut and paste the scope into the precedent.

New categories of costs agreements

The By Lawyers costs agreements have been simplified into 4 categories in most states and territories:

  1. Costs agreement: suitable for most matters.
  2. Costs agreement – Estate administration: specific to applications for probate and letters of administration and administering the estate.
  3. Conditional costs agreement: suitable for litigation such as personal injury claims where the firm agrees to act on a no win no fee basis.
  4. Conditional costs agreement – Uplift fee: suitable for litigation in jurisdictions where the relevant legislation permits an uplift to be applied to the total costs for a successful outcome.

The new costs agreements and scopes of work have been added, as appropriate, to folder A. Getting the matter underway on all matter plans.

Criminal AI prompts – NSW

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New criminal AI prompts have been created.

The following By Lawyers AI prompts have been added to the matter plans for Local Court Criminal and Traffic:

  1. Brief to counsel

  2. Submissions for a s 9 application

  3. Submissions for a s 10 application

  4. Submissions for a bail application

  5. Letter to medico-legal expert requesting a report for sentencing

These new criminal AI prompts will assist practitioners appearing for clients in criminal and traffic matters in the NSW Local Court.

AI prompts are transforming legal document drafting. Technical precision in prompting artificial intelligence can significantly improve the utility and credibility of its output, especially when the AI draws exclusively from data contained in client matters and not from outside sources.

A well-drafted AI prompt acts like a clear direction from a senior lawyer to a junior about how to prepare a document. It sets precise parameters for the task, identifies the required information and where it must be drawn from, specifies the document’s form and any legal or procedural rules with which it must comply, and forbids the use of external or unauthorised sources, including invention – or in AI’s case, hallucination.

The outcome of using an AI prompt in a matter that contains sufficient reliable data is a competent first draft of a document that the lawyer can then refine and perfect, either with or without further input from AI.

Even if sufficient data is not available in the matter to satisfy the prompt’s requirements for the document, the AI will identify the missing data the lawyer needs to obtain via instructions or other means.

By Lawyers is pleased to introduce AI prompts to our publications, helping our subscribers harness the power of LEAP’s Matter AI.

Magistrates’ Court – VIC

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Two important new practice directions apply in the Magistrates’ Court of Victoria from 10 February 2025.

  1. Practice Direction No. 1 of 2025 governs practice and modes of appearance, in person or online, in proceedings across the criminal and family violence divisions of the Magistrates’ Court. It revokes Practice Direction No. 6 of 2022.
  2. Practice Direction No. 2 of 2025 governs practices in the civil division of the Magistrates’ Court. It revokes 51 previous practice directions.

The following are the key points of each.

Magistrates’ Court criminal and family violence jurisdiction

Practice Direction No. 1 of 2025 sets out the procedure for all appearances, online or in person, except a first remand hearing which is covered by Practice Direction 1 of 2024.

In general, online appearances by clients and practitioners are available, encouraged, and in many cases required. However, physical appearances are also possible, mainly by request, and in some cases required.

The practice direction sets out detailed arrangements for all types of appearances, including:

  • accused on bail or summons;
  • bail applications and other hearings with the accused in custody;
  • contest mention hearings, committal mentions, special mentions, and applications, and matters in Judicial Registrar lists;
  • contested hearings and committal hearings;
  • specialist courts and programs;
  • intervention orders – applications and hearings; and
  • filing materials with the court.

Represented accused and their lawyers are to appear in person or online as provided for in the practice direction, unless the court directs otherwise.

If a represented accused appears in person, their lawyer must also appear in person, unless otherwise directed by the court.

If a practitioner seeks to appear in a mode contrary to that set out in the practice direction, they must apply to do so by contacting the relevant court registry at least 7 days before the date.

When appearing online, it is the practitioner’s responsibility to ensure they and their client have audio-visual capability from an appropriate private location, and their online appearance must not cause delay or interrupt the court.

Magistrates’ Court civil jurisdiction

Practice Direction No. 2 of 2025 applies to all civil proceedings including the WorkCover Division, Industrial Division, and Federal Jurisdiction matters. It excludes matters arising under the Family Violence Protection Act 2008, the Personal Safety Intervention Orders Act 2010, and Industrial Division criminal proceedings.

The practice note covers the following for general civil matters:

  • overview and purpose;
  • definitions;
  • jurisdiction;
  • self-represented litigants;
  • issuing proceedings, filing documents and corresponding with the court;
  • attending the court;
  • consent orders;
  • appropriate dispute resolution;
  • applications in open court and directions hearings;
  • call overs for contested matters and open court applications;
  • contested hearings; and
  • inspecting subpoenaed documents.

Specific directions in the WorkCover Division include:

  • medical panel referrals;
  • inspection of medical and other records;
  • subpoenas relating to confidential communications; and
  • dependents’ compensation.

Specific directions in the Industrial Division include:

  • support for self-represented litigants;
  • filing documents;
  • pre-hearing conferences; and
  • contested matters.

Specific directions in the Federal jurisdiction concern the commencement of proceedings.

Appendix A to the practice direction lists the 51 previous Magistrates’ Court practice directions that are revoked.

Publication updates

The commentary and hyperlinks in the following By Lawyers Magistrates’ Court (VIC) guides have been updated accordingly:

Bail and sentencing – WA

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Bail and sentencing options have changed with commencement of the final tranche of amendments under the Family Violence Legislation Reform Act 2024.

From 18 December 2024 Bail authorities can impose electronic monitoring as part of bail and sentencing conditions for certain family violence offenders. In some cases,  an electronic monitoring condition must be applied.

Bail

Schedule 1 of the Bail Act 1982 creates a rebuttable presumption against bail being granted for certain offences. For offences in these categories, the presumption can be rebutted if there are exceptional reasons why the accused should not be kept in custody and the bail authority is satisfied that bail may properly be granted.

The amendments create new circumstances where the presumption applies, namely to family violence offences as defined in clause 3F(1A) and offenders who have been declared a serial family violence offender as defined in s 3 of the Act. In these cases, bail can only be granted by a judicial officer and must include an electronic monitoring condition.

Clause 3G creates a rebuttable presumption against bail for a person charged with a family violence offence (category A) as defined in the clause who is bound by a family violence restraining order that protects a victim of the current offence. In these cases, bail can only be granted by a judicial officer and must include an electronic monitoring condition. See Schedule 1 Part D and Part E.

Sentencing

When the court is sentencing:

  • for a family violence offence and the offender has been declared a serial family violence offender, if making a CSI the court must impose an electronic monitoring requirement unless satisfied that there are exceptional circumstances;
  • an offender who has been declared a serial family violence offender, if making a PSO the court must consider and may impose an electronic monitoring requirement for the term of the PSO, and must do so if the offence is a family violence offence;
  • an offender for a family violence offence or who has been declared a serial family violence offender, if when making a CBO or an ISO the court must impose an electronic monitoring requirement unless satisfied that there are exceptional circumstances.

Publication updates

The By Lawyers Magistrates Court – Criminal (WA) guide has been updated accordingly. See Bail and Sentencing.

For information on legislative amendments and publication updates arising from the previously commenced parts of the amending Act, see the By Lawyers Restraining Order (WA) guide, and our previous News & Updates post

Family violence – WA

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Changes under Part 7 of the Family Violence Legislation Reform Act 2024 (WA) (the Reform Act) commenced on 14 November 2024.

These provisions amend critical definitions in the Restraining Orders Act 1997 (the Act). The Act provides for family violence restraining orders.

Sections 3 to 6A of the Act define all relevant terms used in the Act, including what constitutes family violence. The amendments introduce the concept that a pattern of behaviour can constitute family violence, as well as a single act of violence or a series of such acts.

Section 5A(1) of the Act, as amended by the Reform Act, now defines family violence as:

(a) violence, or a threat of violence, by a person towards a family member of the person; or

(b) any other behaviour or pattern of behaviour by the person that coerces or controls the family member or causes the member to be fearful.

The Act now makes it clear that relevant behaviour, or a pattern of behaviour, can occur over a period of time, may be more than one act or a series of acts that cumulatively coerce or control a family member or causes them to be fearful, and is to be considered in the context of the parties relationship as a whole: s 5A(1A).

Section 5A(2) of the Act provides a non-exhaustive list of examples of behaviour, or patterns of behaviour, that may constitute family violence.

The By Lawyers Restraining Orders (WA) publication has been updated accordingly.

Other amendments under the Reform Act that affect bail and the way the criminal justice system deals with mentally impaired accused are yet to commence. The By Lawyers Magistrates Court Criminal (WA) guide will be updated when those further changes are proclaimed to commence.

Super Call Overs – NSW

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The Local Court of NSW is currently holding Super Call Overs of pending criminal matters with the intention of reducing delays.

Matters more than 12 months old that currently have a hearing date after 1 February 2025 in the participating courts will be listed in the Super Call Overs.

The participating Local Courts are:

  • Burwood;
  • Campbelltown;
  • Downing Centre;
  • Gosford;
  • Liverpool;
  • Newtown;
  • Penrith;
  • Parramatta;
  • Waverley; and
  • Wyong.

The court’s expectations at these listings are that:

  • parties have had discussions and provided a Notice of Readiness to the relevant court registry at least 21 days prior to the Super Call Over listing;
  • legal representatives in attendance will have sufficient authority so that matters can be effectively dealt with, including to finality; and
  • the court will be unambiguously told about the matter’s state of readiness.

Matters will be dealt with in the following order of priority:

  1. Defendant in custody, matter pending for over two years, DV (domestic violence);
  2. Defendant in custody, matter pending for over two years, non-DV;
  3. Defendant in community, matter pending for over two years, DV;
  4. Defendant in community, matter pending for over two years, non-DV;
  5. Defendant in custody, matter pending for 1-2 years, DV;
  6. Defendant in custody, matter pending for 1-2 years, non-DV;
  7. Defendant in community, matter pending for 1-2 years, DV;
  8. Defendant in community, matter pending for 1-2 years, non-DV;

Defendants who plead guilty at the Super Call Over will proceed to sentence on the day. Otherwise, the matter will be given a new hearing date after 1 February 2025.

Practitioners with a qualifying matter can contact the relevant court registry for inclusion in the Super Call Over list.

For more information about criminal procedure and domestic violence offences, see By Lawyers Local Court – Criminal (NSW) and Apprehended Violence Order (NSW) publications.

Bail conditions – SA

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New mandatory bail conditions apply for certain applicants in South Australia from 1 October 2024.

The Bail (Conditions) Amendment Act 2024 introduces new sub-section (2ae) into s 11 of the Bail Act 1985 that provides for mandatory conditions to apply if bail is granted for charges that constitute a breach of intervention orders involving physical violence or threats of physical violence.

If bail is granted to a person charged with the relevant offences, it must be subject to conditions that the bailee remains at their residential address except for work, medical, or emergency reasons, and agrees to be fitted with an electronic monitoring device.

The new provisions concerning mandatory conditions only apply to adult offenders.

The transitional provisions in the amending Act provide that the new provisions concerning mandatory conditions only apply to bail applicants taken into custody on a charge for an offence allegedly committed after the commencement of the amending Act on 1 October 2024.

The By Lawyers Magistrates Court Criminal (SA) publication has been updated accordingly. In the course of making these changes, new commentary has also been added including a section concerning second or subsequent applications for bail.

Mental impairment – WA

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The Criminal Law (Mental Impairment) Act 2023 replaces the Criminal Law (Mentally Impaired Accused) Act 1996 from 1 September 2024.

The purposes of the new Act are:

  • to make provision in relation to criminal proceedings involving persons with mental impairment;
  • to provide for special criminal proceedings for persons who are unfit to stand trial;
  • to provide for the supervision of persons who, in special criminal proceedings, are found to have committed an offence;
  • to provide for the supervision of persons acquitted on account of mental impairment;
  • to provide for the safe reintegration into the community of persons supervised under this Act;
  • to repeal the Criminal Law (Mentally Impaired Accused) Act 1996 and the Criminal Law (Mentally Impaired Accused) Regulations 1997;
  • for related purposes.

Part 3 of the Criminal Law (Mental Impairment) Act 2023 applies to accused who are unfit to stand trial on criminal charges.

Division 2 of that Part deals with raising and deciding the question of whether an accused is fit to stand trial on criminal charges. There is a presumption of fitness that can be rebutted if the accused is found to be unable to do one or more of the things listed in s 26, which include:

  • understand the nature of the charge;
  • give instructions;
  • understand the requirement to plead, or the effect of a plea;
  • follow the course of a trial; or
  • properly defend the charge.

The question of fitness can be raised at any time before or during a trial.

Under s 29, the court decides the question of fitness to stand trial on the balance of probabilities and may inform itself in any way it considers appropriate, including with medical evidence.

The Mental Health section of the Full Commentary in the By Lawyers Magistrates Court – Criminal (WA) guide has been updated accordingly.

Bail – NSW

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From 1 July 2024 serious domestic violence offences and coercive control are included as offences to which the show cause requirement applies for bail to be granted in New South Wales courts.

Section 16B of the Bail Act 2013 lists offences for which bail must be refused, unless the accused can show cause why their detention is not justified. These are all serious offences, generally involving violence, including sexual offences, plus drug dealing and firearms offences.

Following proclamation of the Bail and Other Legislation Amendment (Domestic Violence) Act 2024, serious domestic violence offences, and the new offence of coercive control under s 54D of the Crimes Act 1900 are included in s 16B.

Serious domestic violence offences are defined in s 4 of the Crimes Act 1900 as those under Part 3 of the Act, being crimes against the person, that have a maximum penalty of 14 years imprisonment or more if the offence is committed by a person against an intimate partner, or equivalent offences under a law of the Commonwealth or another State or Territory.

Further the amendments require that, if bail is granted for a s 16B offence, it must be subject to a condition for electronic monitoring, unless the bail authority making the grant is satisfied there are sufficient reasons in the interest of justice not to impose such a condition.

The section on bail in the Full Commentary in the By Lawyers Local Court – Criminal (NSW) guide has been updated in accordance with these amendments.

 

Bail amendments – VIC

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The latest raft of bail amendments have effect from 24 March 2024.

Changes to the Bail Act 1977 under the Bail Amendment Act 2023 and Bail Amendment Regulations 2024 include:

Second bail application now permitted

The amendments allow an accused person to make a second legally-represented bail application before a court without having to establish new facts or circumstances. This addresses the issue of lawyers being reluctant to represent an accused person on a bail application at the first possible opportunity because of the concern it will exclude them from making a better-prepared application a bit later, which has contributed to a high number of short-duration remands.

Changes of terminology and defined terms

These bail amendments include changes in terminology:

  • from surety and persons offering a surety, to bail guarantee and bail guarantors; and
  • from undertaking to bail undertaking, which accords with a slight amendment to the definition of an undertaking in s 3, so that it means a bail undertaking given under s 5(1) to surrender into custody at the time and place specified for the next appearance, rather than undertaking more generally under s 5 or otherwise.

Refinements to the unacceptable risk test

Under the current test, a person can be remanded in custody if there is a perceived risk of even minor reoffending. To address this, the amendments refine the unacceptable risk test so that an accused person cannot be refused bail on specified minor offences unless they have a terrorism record and have previously had their bail for the same offences revoked. The offences to which this provision applies are any under the Summary Offences Act 1966 except those listed in a new Schedule 3 to the Bail Act, relating to violent and sexual offences. Accused persons released on bail for these offences can still be subject to strict bail conditions.

Additional surrounding circumstances

When considering the surrounding circumstances under s 3AAA of the Bail Act in the context of determining bail, the bail decision-maker must take into account, if relevant, several new factors in addition to those already listed in the section, being:

  • whether, if the accused is found guilty, it is likely they would be sentenced to a term of imprisonment and, if so, that the time they would spend on remand if bail is refused would exceed the term of imprisonment;
  • whether the accused was on remand for another offence or was at large awaiting sentence for another offence; and
  • any special vulnerability of the accused, including being an Aboriginal person, being a child, experiencing ill health including mental illness, or having a disability.

Aboriginal people

Section 3A of the Bail Act provides a list of non-exhaustive considerations that must be taken into account when making a bail determination concerning an Aboriginal person. The section has been amended to give greater guidance to bail decision-makers, who will now be required to consider:

  • systemic factors that have resulted, and continue to result in the over-representation of Aboriginal people in the criminal justice system and remand population, and the increased risks of Aboriginal people in custody;
  • personal circumstances that may make an Aboriginal person particularly vulnerable in custody, may be a causal factor for offending behaviour, or may be disrupted by being remanded -such as disability, trauma, family violence, involvement with child protection, housing insecurity, and caring responsibilities;
  • the importance of maintaining protective factors that play a significant role in rehabilitation, such as connection to culture, kinship, family, Elders, country and community; and
  • any other cultural obligations.

Children

These bail amendments update the child-specific considerations in the Act limit the applicability of the step 1 exceptional circumstances test and the step 1 compelling reason test to children charged with a small number of very serious offences, or with a record or risk of terrorist activities. In addition to the current considerations in s 3B of the Bail Act, bail decision-makers will need consider the need to impose on the child the minimum intervention required in the circumstances, with remand of the child being a last resort

Review

A new s 32C of the Bail Act provides that the Attorney-General must conduct a review of the operation of these bail amendments no later than 2 years after their commencement.

Publication updates

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

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