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.

Claim farming – NSW

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Claim farming is the practice of giving or receiving consideration for a claim referral or potential claim referral or soliciting or inducing a claimant to make a claim for personal injury. This practice is now banned under the Claim Farming Practices Prohibition Act 2025 (the Act) which came into effect on 9 April 2025.

When the Act applies

The Act applies to all personal injury claims as defined in s 11 of the Civil Liability Act 2002, including intentional torts. Some personal injury claims are not covered, including dust diseases claims, claims relating to tobacco use, workers compensation, and motor vehicle accident claims.

Criminal consequences

The Act makes breaches of its provisions a criminal offence with a maximum penalty of $55,000.

Section 5 makes it an offence to contact a person:

  • to solicit them to make a claim for personal injury damages; or
  • to refer them to a third party to provide services in relation to a claim; or
  • using a third party to contact a person for the above purposes,

if the person making the contact receives a fee or other benefit, or agrees or expects to receive a fee or other benefit, or asks that someone else receive a fee or other benefit because of the contact.

Section 6 makes it an offence to:

  • provide or receive a fee or other benefit for the referral of a claim in civil proceedings; or
  • enter into agreements or arrangements relating to referrals of claims for a fee or other benefit.

Professional consequences

Conduct contrary to the Act by a lawyer can also amount to unsatisfactory professional conduct or professional misconduct irrespective of whether the lawyer has been convicted of an offence under the Act. Section 165B of the Legal Profession Uniform Law Application Act 2014, which sets out the conduct capable of amounting to unsatisfactory professional conduct or professional misconduct, was amended to include contraventions of the Act.

Costs consequences

The Act further inserts s 61A to the Legal Profession Uniform Law Application Act 2014 which provides that if a lawyer breaches the Act and is convicted, legal costs cannot be charged or recovered for the claim and any costs that have been paid must immediately be refunded. The costs can be recovered as a debt by the client.

Exceptions

Some exceptions apply to the application of the Act. It is not an offence if a lawyer acting for a claimant refers the matter to another person providing a service for the claim, or the claim is transferred because the law practice is sold.

There is also an exception for advertising, marketing, or promoting a legal practice: s 7.

Publication updates

The By Lawyers Personal Injury (NSW) guides have been updated accordingly.

500-page limit – PIC – NSW

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A 500-page limit applies for documents lodged with most applications or replies in the Personal Injury Commission (PIC) from 25 November 2024.

The Personal Injury Commission deals with disputes about injuries sustained in motor accidents and workplaces in New South Wales.

Intent of the rule

The new rule is intended to assist the Personal Injury Commission in conducting its proceedings justly, quickly, cost effectively and with as little formality as possible.

It will focus the parties’ attention on the real issues in dispute and will ensure that the process is efficient which will reduce process trauma for claimants.

The rule will also reduce the amount of highly personal information that is filed with the Commission which in turn will assist the Commission with its approach to cyber security.

Exclusions

The 500-page limit does not apply:

For motor vehicle accident claims, in certain:

  • medical review panel proceedings;
  • merit review panel proceedings;
  • merit review proceedings; and
  • settlement approvals;

For workers compensation claims, in certain:

  • expedited assessment proceedings;
  • medical appeal panel proceedings;
  • presidential proceedings; and
  • work injury damages and related proceedings.

Additional documents

If additional documents are relevant to the real issues in dispute in a matter before the PIC, they may be able to be lodged either by consent if the proceedings relate to medical assessments, or otherwise with leave on application.

Application to lodge additional documents

Applications to lodge additional documents must be made no later than 14 days before a medical assessment, or no later than 3 working days before any conference or hearing for any other dispute type. Only one application is permissible in proceedings unless leave is granted.

Transition period

There is no transition period. The new rule applies from 25 November.

The By Lawyers Workers Compensation (NSW) and Motor Vehicle Accidents (NSW) – Accidents from 1 December 2017 publications have been updated to reflect the new rule.

Pathway – NSW

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The launch of the NSW Personal Injury Commission’s Pathway portal for workers compensation claims brings the process for workers compensation disputes into line with that used for motor accident claims since June 2023.

Workers compensation claims go first to the insurer, then to internal review by the insurer, and then to the Personal Injury Commission (PIC), then if necessary to court.

From 12 June 2024 all applications to the Personal Injury Commission must be lodged via Pathway.

The Pathway portal will digitise the claims process, enabling practitioners to view documents electronically.

Service will also occur via the Pathway portal. Service of applications by the applicant on the respondent will no longer be necessary. Applications will be served by the Commission sending an email to the respondent, with an invitation for them to view the claim online. Respondents will receive a reply request in the same way.

The By Lawyers Workers Compensation (NSW) guide has been updated to reflect this new process.

The Personal Injury Commission website provides a link to Pathway and information for practitioners.

The Pathway portal is used to lodge workers compensation disputes involving:

  • weekly benefits, if the period is more than 12 weeks;
  • medical expenses;
  • domestic assistance;
  • compensation for property damage;
  • lump sum compensation when liability is disputed;
  • suitable duties following a work injury;
  • compensation for the death of a worker;
  • lump sum compensation when the degree of permanent impairment is disputed;
  • threshold for work injury damages when the degree of whole person impairment is disputed.

All relevant information and documents on which the applicant intends to rely need to be included and noted as attachments to the application.

 

Personal injury lists – VIC

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The Supreme Court has introduced new procedures for matters in the personal injury lists.

Changes have been made to first directions orders in the four specialist personal injury lists in the Common Law Division with the intention of increasing efficiency, and reducing delays and adjournments.

Personal injury lists

In the Supreme Court, personal injury claims are dealt with in four specialist lists:

  • Personal Injuries List
  • Dust Diseases List
  • Institutional Liability List
  • Civil Circuit List

New forms for consent orders

Parties submitting minutes of proposed consent orders in these lists must now use the revised First Directions forms available on the Court’s website and on the matter plan in the By Lawyers Personal Injury (VIC) publication.

The major changes to the standard orders include:

  • the ability for the parties to agree to extend or abridge, by consent, the time for interlocutory steps before the post-mediation directions hearing, or, in the case of expedited Dust Diseases List matters, the final directions hearing;
  • time for issuing subpoenas and serving supplementary reports and final particulars of special damages;
  • when supplementary medical and expert reports can be served close to trial; and
  • matters about which the court expects to be informed at the post-mediation directions hearing, including expert evidence.

Practice notes

The personal injury lists are each managed subject to their relevant Practice Note being:

First Directions Hearing

After the defence is filed, the court will contact the parties to arrange a First Directions Hearing.

The court expects a practitioner with conduct of the file, or a good working knowledge of it, to appear at all directions hearings.

The parties are encouraged to submit consent orders to avoid an appearance.

Publication updates

The commentary and matter plan in the by Lawyers Personal Injury (VIC) publication has been updated accordingly.

Motor accident claims portal – NSW

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The Personal Injury Commission has introduced an online motor accident claims portal for electronic lodgement and document management.

The Commission’s Pathway portal went live on 20 June. All new matters are now lodged using the new portal and existing matters have been migrated.

Division 4.3 of the Personal Injury Commission Rules 2021 deals with lodgement of documents into the Commission’s Electronic Case Management (ECM) system, now called Pathway.

See the Commission website for information on how to access Pathway. Practitioners must register and obtain login access.

The new motor accident claims portal is intended to allow for the creation and management of documents and related information in a matter. The parties and the Commission can also communicate through the platform.

The Commission’s website provides extensive information for practitioners, including a detailed online course that steps practitioners through how to:

  • Lodge an application in Pathway Portal
  • Complete a reply request
  • View a reply
  • Send and receive messages
  • View allocation details
  • View outcome documents

The By Lawyers Motor Vehicle Accident – From 1 Dec 2017 guide has been updated accordingly.

Motor vehicle accident – NSW

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Entitlements for people injured in motor vehicle accident claims under the Motor Accident Injuries Act 2017 have become easier to access.

From 1 April 2023, weekly statutory benefits can be obtained from the date of a motor vehicle accident, even if sought more than 28 days after the date of the accident. The 28 day timeframe was previously a strict requirement.

Now, the claim for weekly benefits can be lodged within three months of the motor vehicle accident, if accompanied by a full and satisfactory explanation for the delay in making the claim.

Whether the claimant has a full and satisfactory explanation for the delay is determined by reference to the factors set out in the regulations, namely whether the claimant was aware of the right to make the claim, was under a legal incapacity, or was prevented from making the claim before the expiry of the 28 day period because of illness or injury.

The insurer has 14 days to reject the claimant’s explanation, otherwise it is taken to be a full and satisfactory explanation.

See cl 8A of the Motor Accident Injuries Regulation 2017 and s 6.13 of the Motor Accident Injuries Act 2017.

The following updates to the Motor Accident Guidelines MAG 9.1 also take effect from 1 April 2023:

  • the defined term Minor injury is replaced by Threshold injury; and
  • eligibility for statutory benefits is extended from 26 weeks to 52 weeks for injured persons with a threshold injury who are wholly or partly at fault for the accident.

These changes arise from the commencement of provisions under the Motor Accident Injuries Amendment Act 2022. Refer to our previous News and Updates post from 5 December 2022 for the other amendments under that Act.

The By Lawyers Motor Vehicle Accidents (NSW) – Accidents from 1 December 2017 guide has been updated accordingly.

CTP claims costs – NSW

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Reporting of CTP claims costs by legal practitioners in NSW is now lodged via an online portal.

The State Insurance Regulatory Authority (SIRA) has launched a new Claims Costs Disclosure (CCD) portal to capture settlement costs data relating to Compulsory Third Party (CTP) damages claims made under the Motor Accident Injuries Act 2017 (MAIA).

Legal practitioners representing a CTP claimant must provide SIRA with a breakdown of costs related to the settlement of the claim, including:

  • the total amount for which the claim was resolved;
  • all deductions, including all legal costs and disbursements;
  • the total amount paid to the claimant.

CTP claims costs for damages claims settled on or after 1 March 2023 need to be lodged via the new portal. Retrospective disclosure prior to 1 March 2023 is not required. Registration for the portal has been available since 8 February 2023.

The By Lawyers Motor Vehicle Accident – From 1 December 2017 (NSW) guide has been updated accordingly.

District Court – NSW

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The jurisdictional limit of the District Court increased on 16 December 2022. The limit as defined in s 4 of the District Court Act 1970 went from $750,000 to $1,250,000.

The jurisdictional limit may still be exceeded if the parties consent as provided under s 51. There remains no jurisdictional limit for motor accident claims.

Additionally, the monetary limit for the court to deal with and order interlocutory injunctions has increased from $20,000 to $100,000.

The District Court also has limited jurisdiction to hear:

Unchanged is the jurisdiction of the District Court in proceedings for possession of land. The court can only deal with such proceedings where the land value does not exceed $20,000: s 133.

There are no corresponding changes to the jurisdictional limit of the Local Court. The jurisdiction of the Supreme Court is unlimited.

By Lawyers District Court Civil (NSW) guides have been updated accordingly.

Motor accident claims – NSW

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From 28 November 2022 there are some important changes to the legislation for motor accident claims in NSW. Further amendments are scheduled for later commencement.

The Motor Accident Injuries Amendment Act 2022 amends the Motor Accident Injuries Act 2017, which applies to all motor vehicle claims in NSW where the accident occurred on after 1 December 2017.

The amending Act has been informed by a statutory review of the 2017 Act and the motor accident claims scheme it established. The review assessed whether the policy objectives of the Act remain valid and whether the terms of the Act, the Motor Accidents Injuries
Regulation 2017 and the Motor Accidents Guidelines are appropriate for those objectives.

Provisions of the amending Act commencing now include:

  • a new regulation-making power that can allow payment of statutory benefits in the period between the accident and when the claim is made even if the claim is made outside the required 28 days;
  • removing the requirement for internal review by the insurer before a dispute can be referred to the Personal Injury Commission for medical assessment for disputes about the degree of permanent impairment caused as a result of the injuries sustained in a motor vehicle accident;
  • removal of the 20 month waiting period to bring a claim for damages for certain types of claim;
  • removal of the three year time limit on referring damages claims to the Personal Injury Commission without a full and satisfactory explanation of the delay;
  • removal of the bar to claimants with less than 10% whole person impairment settling a claim within two years of the accident; and
  • clarifying that the liability of the nominal defendant and the legislative provisions for claiming against the nominal defendant apply to statutory benefits claims as well as damages claims.

The By Lawyers Motor Vehicle Accidents (NSW) – Accidents from 1 December 2017 guide has been updated accordingly.

Other amendments in the Act remain pending, scheduled for commencement on 23 April 2024 unless proclaimed earlier. These include provisions for:

  • further regular statutory reviews of the 2017 Act;
  • changing the defined term minor injury to threshold injury;
  • extending weekly payments and statutory benefits for treatment and care expenses from 26 to 52 weeks for injured persons with a threshold injury who are wholly or partly at fault for the accident.

By Lawyers are monitoring the progress of these additional amendments and the guide will be further updated when they commence.

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