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.

ADVO – NSW

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From 31 March 2025, new offences for knowingly contravening an apprehended domestic violence order (ADVO) apply.

The new offences are found in s 14(1A)–(1C) of the Crimes (Domestic and Personal Violence) Act 2007.

Section 14(1A) makes it an offence to knowingly contravene an ADVO with the intention of causing physical or mental harm to the protected person under the order, or to cause the protected person to fear for their safety or that of another person. A maximum penalty of 3 years imprisonment or 100 penalty units, or both, applies.

Section 14(1B) provides that a person intends to cause a protected person:

  • physical or mental harm; or
  • to fear for their safety or the safety of another person,

if the person knows the conduct is likely to cause that harm or fear.

Under s 14(1C), a person who:

  • knowingly contravenes an ADVO against them; and
  • on at least two other occasions in the 28 days immediately preceding the contravention, also knowingly contravened:
    • an ADVO in relation to the same person who was protected under the ADVO the person contravened earlier; or
    • the same ADVO, whether or not in relation to that same protected person; or
    • an ADVO arising from the same application under Part 10 of the Crimes (Domestic and Personal Violence) Act 2007, whether or not in relation to the same protected person, and
  • the conduct would be considered by a reasonable person to be likely to cause the protected person physical or mental harm, or to fear for their safety or the safety of another person, whether or not that harm or fear was actually caused,

is guilty of an offence subject to a maximum penalty of 5 years imprisonment or 150 penalty units, or both.

The By Lawyers Apprehended Violence Order (NSW) guide has 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.

Intervention orders – VIC

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Following a recent Supreme Court decision, a declaration of truth is not sufficient evidence on which a court can make personal safety intervention orders.

Section 38 of the Personal Safety Intervention Orders Act 2010 provides that an application for an interim order must be supported by oral evidence or an affidavit, unless the orders are by consent or the requirement is waived.

Under s 38(1A) the court may waive the requirement that the application be supported by oral evidence or an affidavit if the applicant is a police officer and the application is made by electronic communication:

  • provided the court has considered whether it is practicable to obtain oral evidence or an affidavit before making the interim order; or
  • the application is made before 9 a.m. or after 5 p.m. on a weekday or on a Saturday, Sunday or a public holiday, and it was certified by the police officer in accordance with s 13(2).

As a COVID-19 response in 2022, the Magistrates’ Court introduced a declaration of truth form as part of the online application process for intervention orders.

In Myers v Satheeskumar & Ors (Judicial Review) [2024] VSC 12 the applicant challenged the validity of an interim intervention order on the basis that it was not supported by oral evidence or an affidavit, there being no consent and no waiver. The Supreme Court agreed with the applicant, finding that a declaration of truth is not the same as an affidavit and cannot ground an application for interim orders. In doing so, the the presiding judge noted:

I have concluded that the interim PSIOs are invalid, in spite of the public inconvenience and safety issues entailed by this conclusion. I am conscious that this conclusion could cast doubt on the validity of other interim PSIOs granted in similar circumstances. It may be a matter of urgent public concern if other interim PSIOs are subject to doubt by reason of any systematic defect in the manner they have been granted. It is unclear to me whether the approach of the Magistrates’ Court to this case is widespread. However that may be, any perceived solution must be left to the legislature, not the Court.

It is likely that the Magistrates’ Court will soon amend their form and online application to require an affidavit to be filed. There may also be a legislative response. However, until that happens, an application for an interim order cannot be supported by a declaration of truth, and unless a waiver applies the applicant will need to either give evidence or file an affidavit before the court can make any interim orders.

The commentary in the By Lawyers Intervention Orders (VIC) publication has been updated accordingly, and will be updated again if there are further developments.

Lighthouse project expands – FED

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From 28 November the Federal Circuit and Family Court of Australia’s Lighthouse Project expands to include all major registries. This follows additional funding provided in the recent federal budget.

The Lighthouse Project is a family-violence and risk-screening initiative for parenting and parenting/financial matters. The legislative framework was provided by the Family Law Amendment (Risk Screening Protections) Act 2020.

The project was initially available in the Adelaide, Brisbane, and Parramatta registries. It now expands to include Cairns, Canberra, Dandenong, Darwin, Hobart, Launceston, Melbourne, Newcastle, Rockhampton, Sydney, Townsville, and Wollongong registries.

The Lighthouse Project’s key points are:

  • early risk screening through a secure online platform;
  • early identification and management of safety concerns; and
  • assessment and triage of cases by a specialised team, who will provide resources and safe and suitable case management.

All cases identified as high-risk following the screening process are referred to a dedicated list in the court, known as the Evatt List. This is a judge-managed list that focuses on early information gathering and intervention through a dedicated support team in appropriate cases.

When commencing or responding to proceedings in the applicable registries, parties will be asked to provide an email and mobile number to enable risk screening. Parties will then receive an email with a secure link and login details to complete the risk screening process.

See the FCFCOA’s Lighthouse expansion – General fact sheet for more information.

The By Lawyers Family Law Children guide has information on The Lighthouse Project under Pre-action procedures in the commentary.

Practitioners are also reminded of the related information on family violence and cross-examination of parties in the Going to court folders, and the separate By Lawyers guides covering apprehended violence, intervention, and restraining orders for family and personal violence under various state laws.

101 Costs Answers – ALL STATES

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101 Costs Answers is the latest addition to the By Lawyers ‘101’ series of helpful reference materials.

Located in the Reference materials folder on every By Lawyers matter plan, this publication contains valuable commentary and precedents on all aspects of legal costs.

The precedents include all of the By Lawyers costs agreements/client services agreements and costs disclosures, drawn together from all By Lawyers publications into a convenient single publication.

The By Lawyers costs agreements are compliant with the strict requirements of the various state laws. They cater for all areas of law, with detailed recitals of the scope of work usually undertaken in each type of matter. This not only defines the retainer but makes it easy for practitioners to produce documents quickly upon engagement.

The 101 Costs Answers commentary includes:

Disclosure requirements

The commentary helps practitioners to navigate some of the more complicated disclosure requirements including regulated costs and the specific obligations for different types of litigation matters. The effect of non-disclosure is also covered.

Disbursements

Commentary on defining and recovering disbursements includes relevant case law and examples. The By Lawyers costs agreements are drafted to clearly identify usual disbursements.

Counsel’s fees

The commentary deals with the contractual relationship between solicitors and barristers as well as disclosure requirements. With the solicitor responsible for payment of counsel’s fees regardless of the solicitor’s agreement with the client, the By Lawyers costs agreements include counsel’s fees as specific disbursements which the client is obliged to pay.

Debt recovery

Where debt recovery is necessary, 101 Costs Answers contains letters of demand and example pleadings to assist with the recovery of costs. There is also detailed commentary on costs assessment procedures and the relevant forms for each state are available on the matter plan.

Like all By Lawyers publications, 101 Costs Answers contains interactive links to relevant legislation and cases, which are always kept updated.

Elder abuse orders – SA

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Elder abuse orders are now available in the Magistrates Court.

From 1 October 2020 the criminal division of the Magistrates Court has jurisdiction under Part 4 Division 6 of the Ageing and Adult Safeguarding Act 1995 (‘AASA’) in respect to applications by the Director of the Office for Ageing Well for orders preventing elder abuse, as specified in s 33. This extends to varying such an order, as well as proceedings for alleged contraventions of elder abuse orders.

Section 31 of the AASA provides that if the director reasonably suspects that a vulnerable adult is at risk of abuse and that orders are necessary and appropriate to either protect them or allow further investigation, then the director may apply to the Magistrates Court for an interim or final order.

The procedure for such applications is set out in r 79 Magistrates Court Rules 1992.

Anyone affected by an order may be joined to the proceedings and must be given a reasonable opportunity to be heard. Any other interested party as defined under s 36, may apply to be heard in the proceedings; this includes family members and carers.

Contravention of an order under the AASA is a criminal offence, punishable by heavy fines under s 37.

Commentary on elder abuse applications has been added to the By Lawyers SA Criminal and Intervention Orders commentaries.

Restraining orders – New publication – WA

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By Lawyers are delighted to announce the release of our newest publication, Restraining orders in Western Australia.

Our new guide covers all types of restraining orders available under the Restraining Orders Act 1997 including:

  • family violence restraining orders (FVRO);
  • violence restraining orders (VRO) – when an act of abuse has been, or is feared will be, committed; or
  • misconduct restraining orders (MRO) – when a person behaves in an intimidating or offensive manner, which may lead to a breach of the peace or damage to property.

With detailed commentary and precedents, the new publication provides everything a practitioner will need to represent either a respondent or a person seeking to be protected in proceedings for restraining orders in the Magistrate’s Court or Children’s Court.

The commentary sets out important factors which influence an application, including the presence of a family relationship and other important eligibility criteria, the service and duration of orders as well as the types of restraints that a magistrate may place on the person bound.

The commentary also provides valuable guidance on how to negotiate restraining orders at court, as well as other valuable strategies such as a conduct order on a without admissions basis and the use of undertakings. Appeals and costs orders are also covered.

The commentary also assists with advising a client that is bound by a restraining order on the offences and penalties which may apply.

Other issues discussed in the commentary include:

  • interim orders;
  • telephone applications;
  • the role of police and welfare officers in making a restraining order applications;
  • restraining orders in bail applications and family law proceedings;
  • interstate applications and the National Domestic Violence Orders Scheme.

Key precedents include:

  •  The application forms as well as example content precedents to use for the application;
  • Undertakings; and
  • Instructions to oppose or consent to an order.

By Lawyers is always working to increase our content for subscribers. Our new guide for WA Restraining orders is available in the WA Criminal guide from a LEAP matter via the Guides & Precedents tab, or on the By Lawyers website.

 

 

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