The Medical Treatment Planning and Decisions Act 2016 commenced 12 March 2018. It gives statutory recognition to advance care directives and simplifies and contemporises laws relating to medical treatment decision making for people without decision making capacity. The By Lawyers VIC Powers and Advance Care Directives matter plan, precedents and commentary have been updated accordingly.
Costs – All costs agreements now able to be signed electronically
All of the By Lawyers costs agreements now have electronic signature fields allowing them to be signed electronically via DocuSign, which is available to LEAP in the cloud users. The fee disclosure for this service has also been added into the disbursement section of the costs agreements, should the client choose to take advantage of this service.
Family Law Rules – Additional changes as of 1 March 2018
Documents to be used in conjunction with affidavits
As of 1 March 2018, in the Family Court, a document that is to be used in conjunction with an affidavit and tendered in evidence in a court proceeding, must be identified in the affidavit but must not be attached to or annexed to the affidavit, or filed as an exhibit to the affidavit.
There may be exceptions where court orders or the Rules provide otherwise: for example r 15.62 in relation to expert reports.
Any document referred to in the affidavit must be served with the affidavit on the other parties after filing. The document must then be tendered in evidence at the court event when the relevant affidavit is relied upon or as required: r 15.08(2)
While as of 1 March 2018, the Family Law Rules have changed, providing for annexures not to be attached to affidavits: r 15.08, in matters in the Family Court, the Federal Circuit Court continues to permit annexures to be attached. Given the majority of matters are filed in the Federal Circuit Court, not the Family Court, in practice the norm will continue to be that relevant annexures are attached to affidavits.
Undertakings
Rule 17.06 has been added, relating to undertakings. The rule sets out the form of undertakings and, in summary provides:
- Undertakings may be given orally or in writing.
- If they are in writing, it must be signed and filed.
- If they are given orally, a written record must be made, signed, filed and served.
- A definition of undertakings as to damages.
We have updated our Property Settlement and Children commentaries accordingly.
Family Law Rules – changes as of 1 March 2018
As of 1 March 2018, changes came into effect in relation to consent orders in the Family Court.
The relevant By Lawyers publications, Children and Property Settlement, have been updated. The new forms have been linked to the matter plans and the commentary additions consist of the following:
Children changes
What was previously the annexure to consent parenting orders is now incorporated into the Application for Consent Orders form. A separate annexure is no longer required.
Three new forms were added for use in the Family Court.
The Notice of Child Abuse, Family Violence or Risk of Family Violence (Application for Consent Orders) must be filed with the Application for consent orders if parenting orders are sought and a party has said at item 25 of the Application there has been, or is a risk of child abuse, neglect or family violence.
The second form is the Notice of Child Abuse, Family Violence or Risk of Family Violence (Current Case). This form is now only for where cases are on foot: not for consent orders.
A third new form is the Submitting Notice. This form may be filed in Family Court proceedings if a party has been served with an Initiating Application, Response to Initiating Application, Reply or a Notice of Appeal, and does not want to contest the relief sought: Family Law Rules r 8.07.
Property Settlement changes
Previously, if the consent orders contained a provision for a superannuation splitting order, you had to ensure that a superannuation information form had been completed by the Trustee of the relevant super fund or a valuation had been obtained to the superannuation interest. However, as of 1 March 2018, a superannuation kit is no longer required. Proof of value of the interest is required to be filed with the Application.
By Lawyers Contract of Sale of Land – Victoria
A new form of contract, co-authored by Russell Cocks, providing a vendor’s statement and contract in one document.
The contract is specifically designed for residential conveyancing transactions and seeks to smooth some of the traditional road blocks that arise in these transactions.
The By Lawyers Contract of Sale of Land is located in the Contract folder in the Sale of Real Property Guide.
Seven reasons to use the By Lawyers contract
- The Contract and Vendor’s Statement are combined into ONE document, with the Vendor’s Statement, logically, coming FIRST. The Vendor’s Statement is formatted in such a way as to deal with the obligatory fields first and then group the optional fields in way that makes removal of those fields simple if they are not required.
- Particulars of Sale in the Contract includes a “sunset date” for off the plan approval. No more searching through mountains of Special Conditions.
- Non-derogation warranty. General Conditions can be amended by Special Conditions BUT not such as to reduce the rights created by the General Conditions. No more contracts that say one thing on page 1 and reverse that on page 15. This Contract is fair to both parties; if someone wants to create an unfair contract they cannot hide it within this contract.
- General Condition 12 – deposit release. Establishes a clear protocol for release by requiring timely objection to title.
- General Condition 14 – loan condition. Extends time for approval to 21 days and allows for automatic extension, subject to vendor’s ability to end the extension by notice.
- General Condition 25 – losses. Removes disputes relating to default losses from the settlement process and allows the parties to resolve these issues after settlement.
- General Conditions 27 & 28 – default and rescission notices. Divides the process into two steps with specified legal cost in respect of notices.
There are also other improvements, such as simple off the plan and electronic conveyancing conditions, a requirement that a vendor produce a copy lease at settlement and a clause passing ownership of abandoned goods to the purchaser. This Contract continues the quest commenced by the 2008 Contract (remember Requisitions?) to simplify conveyancing by ironing out the speedhumps.
Estates TAS – Probate Rules 2017
On 8 November 2017 the Probate Rules 2017 commenced, changing estates practice and procedure and introducing new probate forms to be used for all applications.
The Probate and Letters of Administration commentaries and our precedents have been updated in line with these changes.
Data breaches – Mandatory reporting of eligible data breaches from 22 February 2018
Mandatory reporting of eligible data breaches from 22 February 2018
Amendments to the Privacy Act come into force from 22 February. As holders of ‘personal information’ as defined in the Act, law firms which experience a data breach must:
- Notify the Office of the Australian Information Commissioner, AND
- Notify ALL affected individuals.
To cater for these changes, we have today added a new chapter to our Practice Management commentary: Data Breaches.
Taking the time to review your level of data protection is well worth the effort. This includes protective software and an efficient system of information management.
For more information please read our commentary.
Employment Law – 101 Employment Answers – New reference manual
We are excited to announce that we have significantly enhanced our Employment Law publication by the addition of a new reference manual – 101 Employment Answers.
Sourced from our Mentor service 101 Employment Answers is an extremely useful collection of questions and answers on all aspects of employment law, from various states, on various topics, dealing with the status, rights and obligations of employers, employees and contractors.
101 Employment Answers can be accessed directly from the Employment Law guide within LEAP or from the Employment Law page on the By Lawyers website.
New Partnerships Guide
Within the must have commercial publication Companies, Trusts, Partnerships and Superannuation we have created a new guide, commentary and precedents focusing extensively on the topic of Partnerships.
Partnerships covers all aspects of setting up and running a business using partnership trading structures including:
- general partnerships;
- limited partnerships; and
- incorporated limited partnerships.
The commentary, guide and precedents provide an end to end solution for partnership businesses such as:
- establishing a new partnership and the partnership agreement;
- adding new partners or making changes to profit share structure of an existing partnership;
- removing or expelling a partner; and
- dissolving a partnership and business succession arrangements.
The commentary also discusses the taxation and property ownership implications of operating under a partnership structure.
The Companies, Trusts, Partnerships and Superannuation guides also provides detailed information about other business structures including companies, trusts and self-managed superannuation funds.
Motor Vehicle Accidents NSW – Post 1 December 2017 amendments
The Motor Vehicle Accidents NSW Publication has been amended in relation to the new regime brought in by the the Motor Accident Injuries Act 2017 which commenced in full on 1 December 2017 and applies to all motor vehicle accidents occurring after that date. The Motor Accidents Compensation Act 1999 continues to apply to accidents prior to that date and there are accordingly two separate regimes operating for at least three years.
This comprehensive and easy to follow publication helps practitioners to navigate the convoluted and restrictive legislation which applies to motor accident claims in NSW. There are two separate Guides – one for accidents which occurred prior to 1 December 2017 and another for accidents occurring on or after 1 December 2017. Each Guide contains commentary, precedents and forms specific to the relevant statutory regime.
The new Guide is available to all LEAP cloud users and via subscription to the ByLawyers website.
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