ByLawyers News and Updates

Publication Updates

Property law updates – QLD

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Various property law updates have been incorporated in the comprehensive By Lawyers reference manual 1001 Conveyancing Answers (QLD)

Recent judgments which have been added include:

• Contempree v BS Investments Pty Ltd & Anor [2020] QCA 255 – A long term lease that is not registered can still be enforced.
• Legal Services Commissioner v Sheehy [2018] 1 QCA 151 – Solicitors acting on behalf of two people, such as a married couple, require authority from both clients.
• Woolford v Oliver [2017] QMC 14 – Instalment contracts carry additional obligations and duties.
• K7 Developments Pty Ltd v Abbotsford Estates Pty Ltd [2021] VSC 422 – Judicial consideration of the consequences of a contract ceasing to be a Going Concern for GST purposes after contract and before settlement.
• Re Tucker; Nunan v Aylward [2019] VSC 210 – affirming that the younger joint tenant is presumed to have survived the older joint tenant, if time of death cannot be ascertained.

1001 Conveyancing Answers (QLD) is available in all By Lawyers Queensland conveyancing and property law guides. It assists property lawyers and conveyancers to understand the conveyancing process and to solve problems for their clients. The publication receives regular property law updates.

Online probate notifications – ACT

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Online probate notifications have commenced in the ACT.

A named executor or administrator, as the legal personal representative of the deceased estate, has the responsibility to account for the assets and liabilities of the estate before distributing them by the terms of the Will.

In some cases, the estate assets may be released to the named legal personal representative of the estate, however to release certain assets a grant of probate must be obtained.

The legal personal representative commences an application in the probate list of the ACT Supreme Court. Until recently this required publication of a Notice of Intention to Apply in a daily newspaper circulating generally in the ACT. The notice is required to list the identity of the deceased, the date of death, and the date of the will. An application for probate is filed with the Court at least 14 days after this notice is published.

The ACT Supreme Court has amended the Court Procedures Rules 2006 (ACT), to introduce online probate notifications for:

  • a grant of probate;
  • a grant of letters of administration, on intestacy or with a will attached;
  • a reseal of a foreign grant.

Notices of Intention to Apply for a grant must now be published by completing the online form on the ACT Supreme Court website, not less than 14 days and not more than 3 months before the day the application is filed in Court.

The fee for publishing a notice is set out on the ACT Supreme Court website. A unique reference code is generated in the receipt from the online advertisement.

The By Lawyers ACT Probate and Letters of Administration commentaries have been updated accordingly.

COVID Recovery – VIC

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Practice Direction No. 3 of 2022 – COVID recovery currently applies to all types of matters in the Magistrates’ Court of Victoria. It overrides any other directions to the extent of any inconsistency.

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

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

  • accused on bail or summons;
  • bail applications and other hearings with the accused in custody;
  • criminal mentions and applications;
  • Specialist courts and programs;
  • intervention orders – applications and hearings;
  • civil hearings including oral examinations;
  • counter services.

In some instances it is necessary for practitioners to email the court and request permission to make a physical appearance in a matter.

The By Lawyers commentaries in all publications involving the Magistrates’ Court have been updated with a link to the practice direction.

  • Magistrates’ Court – Criminal
  • Intervention Orders
  • Traffic Offences
  • Magistrates’ Court Civil – Act for the plaintiff
  • Magistrates’ Court Civil – Act for the defendant
  • Enforcement

These COVID recovery arrangements under the practice direction continue indefinitely at this stage.

Employee or independent contractor – FED

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A new section Employee or independent contractor has been added to 101 Employment Law Answers summarising and providing links to these important recent cases:

Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; and

ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2

These appeals from the full Court of the Federal Court both turned on the question of determining the workers’ status as employee or independent contractor and were heard together. The High Court held that where parties have comprehensively committed the terms of their relationship to a written contract, which is not challenged as a sham or otherwise ineffective under general law, the characterisation of the relationship as one of employment, or otherwise must proceed by reference to the rights and obligations of the parties under that contract.

Only where there is no written agreement, or the agreement is ineffective, will the traditional multi-factorial test be required to determine the nature and conditions of the parties relationship.

Whether a worker is an employee or independent contractor is important for a number reasons including:

  • vicarious liability – which generally extends to employees but not independent contractors;
  • workers compensation insurance – who is covered and who is responsible for obtaining it;
  • superannuation guarantee payments – whether they apply;
  • unfair dismissal claims – whether a worker has recourse;
  • taxation responsibilities – including whether PAYG tax is required to be deducted from worker payments;
  • long service leave and other leave entitlements – whether they apply;
  • availability of remedies for workers; and
  • the jurisdiction of tribunals.

See 101 Employment Law Answers in the Reference materials folder on the Employment Law matter plan, and the Employment Law commentary for more information.

Expert reports – FED

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Two new precedent affidavits for expert reports have been added to the Property Settlement and Children matter plans in the Family Law publications. These new precedents ensure compliance with Rule 7.21(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2022.

The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 apply in all family law matters across both divisions of the court. Part 7.1 of the Family Law Rules 2021 makes provision for expert evidence.

Rule 7.13 provides that experts be given a recent copy of Divisions 7.14, 7.15, and 7.16. These rules cover requirements for instructions to experts, information about disclosure by experts, their duties and obligations, and clarification of the requirements for expert reports. The By Lawyers enclosure precedent which combines these rules make it easy for practitioners to comply when briefing experts.

Expert witnesses in family court proceedings potentially include:

  • psychologists
  • social workers
  • child and family psychiatrists
  • medical specialists
  • property valuers, and
  • financial consultants.

The two precedents deal with both a single expert, when both parties to proceedings engage an expert jointly, and the less common situation where parties engage their own expert.

The new precedents are located in an IF REQUIRED – Expert witness folder, in the Going to Court folder in the Property Settlement guide, and Children guide.

Recent property cases – VIC

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Recent property cases have been added to By Lawyers reference manual 1001 Conveyancing Answers (VIC).

The publication has been extensively reviewed and updated by our author Russell Cocks.

Useful recent property cases added to the publication in the course of this review include:

1001 Conveyancing Answers (VIC) is available in all By Lawyers Victorian property law guides – Purchase, Sale, Leases, and Mortgages.

This comprehensive publication assists property practitioners to understand deeper issues in conveyancing and solve problems for clients when they arise.

Testamentary capacity checklist

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A testamentary capacity checklist has been added to the matter plans in all By Lawyers will guides. This helpful precedent distills the critical information that practitioners must elicit to properly assess capacity. It is designed to assist lawyers both when taking instructions and when the will is being executed, whether in the office or at the client’s bedside.

Whether or not a client has testamentary capacity is not calculated via a legislated formula but derived from case law. It has been described as requiring time, situation, person, and task specific focus on a testator’s ability to remember, reflect, and reason.

The cases, starting from Banks v Goodfellow (1870) LR 5 QB 549 require a testator to understand:

  • what it means to be making a will;
  • the assets they have and are leaving to others;
  • the obligation owed to those who could make a claim on the estate; and
  • whether or not they are affected by a delusion that influences the disposal of their assets.

The Court determines testamentary capacity on the facts and circumstances of each case.

In Star v Miller [2021] NSWSC 426, the court said that, when taking instructions, it is prudent for lawyers to ascertain the client’s capacity and the possibility of undue influence by asking non-leading questions to determine the facts and circumstances of each case. The By Lawyers testamentary capacity checklist includes such questions.

In Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007 at 107, the court suggests that where an elderly client is being cared for by someone or is residing in an aged care facility, it is prudent to ask both clients and their carers whether there is any reason to be concerned about capacity. The By Lawyers testamentary capacity checklist prompts for these inquiries to be made.

The checklist was suggested by one of our subscribers. We worked with our authors to draft a document that is as short and simple as possible but protects practitioners by covering all necessary considerations. The checklist should be used in conjunction with the By Lawyers Wills retainer instructions.

Criminal procedure – VIC

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Criminal procedure amendments enacted by the Justice Legislation Amendment (Criminal Procedure and Other Matters) Act 2022 have commenced. Further amendments are pending.

Amendments include:

Prosecution disclosure obligations

Section 41 Criminal Procedure Act 2009 sets out what must be provided in a full brief.  This includes any information, document, or thing on which the prosecution intends to rely at the hearing. The section has been amended to require the prosecution to now include in the brief any information relevant to the credibility of a prosecution witness, including their criminal record if any.

The informant, usually a police officer, also has an ongoing duty of disclosure to the Director of Public Prosecutions where that office is conducting the prosecution. The informant must provide to the DPP any information, document, or thing that is in the possession of, or known by, the informant that is relevant to the alleged offence, subject to any claims for statutory privilege or public interest immunity.

An amendment yet to commence requires detailed disclosure certificates to be prepared by the prosecution to ensure compliance with these disclosure requirements. There are associated tweaks to the pre-trial procedure to accommodate them. These amendments are awaiting proclamation, but have a default commencement date of 1 October 2022.

Remote evidence

The criminal procedure amendments introduce an obligation on the court to direct that the evidence of a witness be given remotely if the witness is a complainant in a proceeding that relates to an offence that constitutes family violence within the meaning of the Family Violence Protection Act 2008. This applies if closed-circuit television or other facilities that enable communication between the courtroom and another place are available and it is practicable to do so.

Appeals

Where the Magistrates’ Court in any given matter is constituted by the Chief Magistrate who is a dual commission holder, meaning also a Supreme Court judge, appeals are now to the Court of Appeal.

Intervention Orders

Declarations of truth are now available for applicants commencing applications for personal safety intervention orders. This is in addition to oaths, affirmations, and affidavits. Declarations of truth were already available for family violence applications.

Under both Acts, special rules apply for the cross-examination of affected family members and children. The amendments have effectively made remote evidence the default position for protected witnesses, which includes children and close family members of the accused. See s 69 (1A) of the Family Violence Protection Act 2008 and ss 49 and 52 of the Personal Safety Intervention Orders Act 2010.

Publication updates

These changes have been reflected as required in the By Lawyers Magistrates’ Court – Criminal publication. When the additional amendments commence our publications will be further updated.

Pre-action procedures – SA

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New precedents have been added to the Magistrates Court guides to assist practitioners to comply with the requirements for pre-action procedures in civil claims.

The options and requirements for pre-action procedures are set out clearly in Division 3 of Chapter 7 of the Uniform Civil Rules 2020.

The commentary in the By Lawyers SA Magistrates Court publications sets out these requirements and also deals with:

  • Alternatives to pre-action steps, involving the optional use of a Form P1 Final Notice, and Form P2 Enforceable Payment Agreement which sets
    out the money that the debtor owes and an agreed payment plan. These forms are available on the matter plans;
  • Pre-action steps for originating applications, including letters of demand and costs considerations;
  • Pre-action steps for minor civil claims, for which there is a simplified process.

The commentary also provides practical tips on taking instructions and giving advice about pre-action steps and letters of demand. This focuses on the overarching obligations that apply in all proceedings to parties and their representatives as set out in the rules. These are particularly pertinent to drafting letters of demand or pre-action claims.

New precedents

Two new precedents have been added to the Magistrates Court (SA) – Acting for the applicant matter plan:

  • Pre-action claim letter to respondent’s solicitor
  • Pre-action claim letter to respondent

Four new precedents have been added to the Magistrates Court (SA) – Acting for the respondent matter plan:

  • Pre-action response accepting offer
  • Pre-action third party notice
  • Letter serving pre-action response on other proposed respondents
  • Letter serving pre-action third party notice on applicant

These new precedents were prepared by our South Australian litigation author following a request from a subscriber. By Lawyers love to receive feedback from our users and often enhance our publications as a result. It is one of the ways we help lawyers enjoy practice more!

County Court rules – VIC

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A second tranche of amendments to the County Court rules commence on 31 January 2022. These relate to mediation.

A new rule 50.07.2 provides for the court to order that matters be referred to a registrar for mediation, at any stage of the proceedings. This new rule is in addition to the existing rule which allows the court to refer matters to mediation by a judicial registrar.

Other amendments to the County Court Civil Procedure Rules 2018 under the County Court (Chapter I Miscellaneous Amendments) Rules 2021 have already commenced. These concern the way affidavits and exhibits are prepared and filed. See Affidavits, Annexures and Exhibits on both the Acting for the plaintiff and Acting for the defendant matter plans in the By Lawyers County Court (VIC) publication for more information.

A third tranche of amendments to the rules will commence on 1 March 2022. These deal with the titles and nature of the lists in the Commercial Division. By Lawyers County Court publication will be further amended to reflect these changes in due course.

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