ByLawyers News and Updates

1 July updates – All states

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1 July updates are a big focus for By Lawyers. This is because many Commonwealth and state legislative instruments provide for scheduled indexing of relevant monetary amounts and increases in government fees and charges.

These updates can include court filing fees, lodgement fees for property dealings, minimum weekly compensation amounts for Workers Compensation and various fines.

By Lawyers always monitor these changes for our subscribers. Each year we ensure that our publications are amended where necessary to reflect 1 July updates.

We also monitor and update for legislative indexing and increases which occur regularly at other times. These include 1 January changes and also other specific dates prescribed by some statutes.

The 1 July updates have been applied, or are in the process of being applied as they get released, to the following By Lawyers publications:

  • Conveyancing and Property;
  • Criminal;
  • Litigation;
  • Family;
  • Estates;
  • Injuries; and
  • Employment.

Stay updated with By Lawyers guides and precedents. Happy new financial year!

Retail and commercial leases – SA

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Important changes to the Retail and Commercial Leases Act 1995 and accompanying Regulations came into effect on 1 July 2020.

The By Lawyers Leases (SA) Publication – including the commentary and relevant precedents – has been updated accordingly.

The changes include:

  • A copy of the proposed retail shop lease is to be provided by a lessor to the prospective lessee as soon as negotiations are entered into. The particulars of the lessee, the rent and the term of lease are not required to be completed at this time. Failure to comply may result in a penalty of up to $8,000. The landlord or person acting on behalf of the landlord must also provide the prospective lessee with a copy of the Small Business Commissioner’s information brochure ‘Retail & Commercial Leasing Guide’. Failure to comply may result in a penalty of up to $800.
  • Before a retail shop lease is entered into, the lessor must give the lessee a signed disclosure statement. Failure to comply may result in a penalty of up to $8,000.
  • A lessee must, within 14 days of being served with the disclosure statement, return a signed acknowledgement of the disclosure statement to the lessor.
  • It is possible for a retail shop lease to move in and out of the scope of the Retail and Commercial Leases Act 1995. The Act does not apply to leases where the annual rent exceeds the threshold prescribed by the Act, currently $400,000 exclusive of GST. This applies irrespective of whether the Act applied to the lease at the time it was entered into or renewed.

These provisions are not applicable to retail and commercial leases that were entered into before the commencement of the Retail and Commercial Leases (Miscellaneous) Amendment Act 2019, being 1 July 2020, or in the exercise of any right or option conferred by a lease that was entered into before this date.

See the Leases (SA) Publication for further information.

101 Family Law Answers – FED

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The By Lawyers reference manual 101 Family Law Answers has been updated with recent cases in the following sections:

Arbitration in family law

See Palgrove & Palgrove [2020] FCCA 846 at [12]-[29] for a discussion of arbitrability and the court’s jurisdiction to facilitate arbitration.

Injunctions

Dunworth & Falletti [2020] FamCA 178 where the balance of convenience favoured the grant of restraint.

Rahman & Rahman [2020] FamCA 156 where the husband’s appeal failed against an injunction that restrained him from leaving Australia until a lump sum payment was made.

Orders – Variation and the rule in Rice & Asplund

See Findlay & Reis [2020] FCCA 425 for an application to vary a parenting order, which was dismissed in accordance with the principles in Rice & Asplund.

Relocation

Franklyn & Franklyn [2019] FamCAFC 256 where a mother’s unilateral relocation was allowed on appeal, as she was still able to adhere to interim consent orders for the father’s fortnightly contact.

Soulos & Sorbo [2019] FamCAFC 231 where the father’s appeal was allowed to set aside the parenting orders permitting the mother and child to relocate overseas.

Section 75(2) factors – Disparity in financial positions

In Metzer & Metzer [2020] FCCA 119 the wife was unable to establish a 10% likely loss of earnings on the evidence presented. An adjustment of 2% only was made in favour of the wife.

Five factors were listed at [182] that are usually considered when determining residual earning capacity:

  1. physical capacity, including the reasonable restrictions required by reason of injuries;
  2. psychological capacity, taking into account any necessary restrictions, of which there was no evidence in this case;
  3. vocational capacity, for suitable jobs within suitable occupations, including all of her education, training and experience and transferable skills;
  4. labour market, including factors such as the existence of such jobs in the real world labour market which is to be considered, including any barriers to entry and competitiveness including by reason of work history and age; and
  5. earnings, including the likely range of earnings for such available jobs by reference to reliable published labour market statistics or current labour market research information.

101 Family Law Answers is a valuable resource for practitioners. It is available as a related guide and in the reference materials folder in all By Lawyers Family Law publications. It provides more detailed information and relevant cases on the various Family Law matter types – Property Settlement, Children, Financial Agreements and Divorce. It also covers some general procedural issues and the enforcement of orders.

Transfer and duty lodgments – SA

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Transfer and duty lodgments with Sympli

Electronic settlements provider Sympli has expanded its service offering in South Australia. The Office of the Registrar-General, Land Services SA and Revenue SA approved Sympli for transfer and duty lodgments this week.

The following documents can now be lodged through Sympli:

Stand alone transactions 

  • Caveat
  • Withdrawal of Caveat
  • Mortgage
  • Discharge of Mortgage

Financial settlement transactions

  • Transfer
  • Mortgage
  • Discharge of Mortgage

By Lawyers South Australian Conveyancing guides provide practical commentary and helpful precedents for all aspects of the conveyancing process.

Subpoena objections – FED

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New cases on subpoena objections in the Federal jurisdiction have been added to the By Lawyers reference guide 101 Subpoena Answers.

In Kitchen v Director of Professional Services Review under s 83 of the Health Insurance Act 1973 (Cth) (No 3) [2020] FCA 634 the Federal Court affirmed McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233 and also Tamawood Ltd v Habitare Developments Pty Ltd [2009] FCA 364 to the effect that:

  • a request for a subpoena cannot be used to disguise an application for discovery of documents, or as an alternative to an application for further and better discovery;
  • documents for production must be identified with reasonable particularity;
  • the material sought must have an adjectival relevance, that is, an apparent relevance to the issues in the principal proceedings; there must be a legitimate forensic purpose for the production of documents;
  • a mere ‘fishing’ exercise can never justify the issue of subpoenas;
  • a wide-ranging subpoena seeking documents of doubtful relevance at great inconvenience to, or that risk compromising the commercial privacy of, a third party, may not readily attract the grant of leave; and
  • the issue of the subpoena must not, in all the circumstances, be oppressive in terms of its impact on the recipient.

101 Subpoena Answers is available in all By Lawyers litigation guides. It can assist practitioners with issuing and responding to subpoenas in all jurisdictions including the various grounds for subpoena objections.

Uniform Civil Rules – SA

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The much heralded Uniform Civil Court Rules 2020 commenced in South Australia on 18 May 2020. CourtSA’s new electronic registry system commenced on the same day.

The new rules apply to proceedings commenced and steps taken in all SA civil proceedings on or after 18 May. They are to be cited at the Uniform Civil Rules 2020.

All By Lawyers SA litigation guides have been updated to reflect the new rules and procedures.

Significant amendments

The Uniform Civil Rules 2020 bring many changes.

Universal rules as to pleadings apply across all three courts and are found in Part 7 of the Rules, subject to exceptions for ‘minor civil actions’. There are specific rules for specific types of actions, for example, personal injury. There are some specific rules only applicable to the Magistrates Court.

Description of parties

One of the most significant changes is the terminology used to describe the parties. Under the Uniform Civil Rules 2020 a ‘plaintiff’ is now an ‘applicant’, a ‘defendant’ is now a ‘respondent’ and an ‘intervenor’ is now an ‘interested party’. These terms apply to all civil matters in all SA courts. By Lawyers commentary and precedents, including the titles of precedents, have been amended accordingly.

Pre-action requirements

Some of the major changes relate to pre-action requirements. The rules now specify:

  • how documents are to be served;
  • what is to be included in a pre-action claim, including a cost estimate if the matter were to proceed to trial;
  • a requirement for a pre-action response that includes a cost estimate;
  • a further response from the proposed applicant if a cross claim is indicated;
  • a pre-action third party notice and response if a third party is to be added;
  • a requirement for a pre-action negotiation meeting and subsequent report if the matter does not resolve.

There are serious procedural and costs implications for non-compliance with pre-action requirements.

Cross claims and set offs

There are also significant changes to the procedure for cross claims and set offs and claims against, or claims for contribution by, third parties. This includes time limits and requirements for filing and service of such claims.

Expert witnesses

The rules now set out in detail the obligations of parties regarding their letter requesting the expert report. They apply an expert code of conduct and address in detail the required content of an expert report.

Parties may request instead shorter, ‘summary reports’ from experts that address only the assumptions made and opinions held in summary form. These can attach only copies of documents that record instructions given to the expert, rather than comply fully with the disclosure obligations.

Family provision claims

The procedure for family provision claims previously set out under the Supreme Court rules has been streamlined. Notably the required information regarding other potential claimants no longer needs to be contained in a separate affidavit. See the By Lawyers commentaries in the Family Provision guides for more information on the changes.

Amendments to By Lawyers guides

The following By Lawyers SA publications have now been amended – and renamed, where applicable – in line with the Uniform Civil Rules 2020:

  • Magistrates Court Civil – Acting for the Applicant (formerly Magistrates Court Acting for the Plaintiff)
  • Magistrates Court Civil – Acting for the Respondent (formerly Magistrates Court – Acting for the Defendant)
  • Magistrates Court – Intervention Orders (located in Criminal Magistrates Court)
  • Family Provision Claims – Acting for the Applicant (Formerly Family Provision Claims Acting for the Plaintiff)
  • Family Provision Claims – Acting for the Respondent (Formerly Family Provision Claims Acting for the Estate)

Transfer of real property – Family Law – FED

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Often the resolution of Family Law matters requires a transfer of real property between the parties. Transfers pursuant to the Family Law Act 1975 attract transfer duty exemptions or the payment of only nominal duty. Each state and territory has its own process to effect the transfer of real property in the context of relationship breakdowns.

Information has been added to the 101 Family Law Answers reference manual which helpfully sets out the processes for the transfer of real property due to relationship breakdown. The relevant stamp or transfer duty information for each state or territory is also available in 101 Family Law Answers.

The necessary forms for transferring property between parties are accessible from the Property Settlement matter plan. They are located in the Library of real property transfer and duties forms in the Settling it early or Finalising the matter folders.

The process is the same whether the relationship was a marriage or a de facto relationship.

101 Family Law Answers is available as a related guide in all By Lawyers Family Law publications. It provides more detailed information and relevant cases on the various Family Law matter types – Property Settlement, Children, Financial Agreements and Divorce. It also covers some general procedural issues and the enforcement of orders.

JobKeeper scheme – FED

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Details of the Federal government’s JobKeeper scheme have been added to By Lawyers Dealing with COVID-19 legal issues – Some practical information publication.

JobKeeper payment stimulus package

The purpose of the JobKeeper package is to assist employers to retain their employees and improve the viability of businesses during the COVID-19 pandemic.

Under the scheme, employers will receive $1,500 per employee fortnightly. Employees must be paid a minimum of $1,500 fortnightly before tax. The JobKeeper payment will be available from 30 March 2020 until 27 September 2020.

Employers pay their employees as usual and then get reimbursed by the ATO, monthly in arrears.

The new commentary covers the important aspects of the scheme. These include the eligibility criteria for both employers and employees. There are also answers to frequently asked questions.

A link is provided to the ATO website which sets out how to Enrol for the JobKeeper payment.

New powers for employers under the JobKeeper scheme

The Federal parliament has complemented the JobKeeper scheme by giving new powers to employers covered by the scheme. The Fair Work Act has been amended by the insertion of Part 6-4C that allows an employer to temporarily modify employment terms and conditions, if they are eligible for the JobKeeper scheme. This is referred to as an employer giving a ‘JobKeeper enabling direction’ to a particular employee.

The new powers include options for workforce flexibility and reducing workforce costs. This gives eligible employers the ability to stand down employees or reduce their hours, change the duties they perform, or change their location of work. The amendments also allow an eligible employer to make an agreement with an employee about work days or times, as well as the employee taking annual leave, including at half pay.

Before a JobKeeper direction can be given, employers must meet minimum requirements. For example, employers need to satisfy consultation requirements which includes notifying the employee at least three days before making a JobKeeper enabling direction, or a lesser time by agreement. No forms have been prescribed for this purpose. By Lawyers has provided example content letters, which are available from within the commentary.

These amendments enable the Fair Work Commission to conciliate and arbitrate disputes about a JobKeeper direction or request.

For more information about the JobKeeper scheme refer to Dealing with COVID-19 legal issues – Some practical information, which is available in all By Lawyers guides.

Opportunities for law firms – All states

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Opportunities for law firms during the COVID-19 period

This time of reduced activity presents opportunities for law firms to find efficiencies, upskill staff and switch focus to diversify into other practice areas.

Despite the encouragement to self-help with the writings of such luminaries as Stephen Covey the one habit that remains rigid is the resistance to change. Covey’s advice is to work on the practice not just in the practice. This is an ideal time to do so.

Office organisation provides the basis of profitable and worry-free practice. Profit is not necessarily related to size or location or how busy a firm may be. Busy firms are often poor profit performers due to poor managerial practices. The more profitable firms simply better organise and manage their practices. This is achievable through the use of LEAP’s matter and accounts management software and By Lawyers Practice Management Guide and Office Policies, both uniquely suitable for handling matters remotely.

Accompanying work on office organisation is the opportunity to supplement the firm’s precedents, which are generally dependent on the personal knowledge and style of the practitioner and are often accessed from previously closed files or written anew each time. This practice can now be improved and supplemented with By Lawyers professionally drafted precedent packages ensuring complete subject matter coverage and consistency.

By Lawyers resources

By Lawyers have the resources to enable advantage to be taken of these opportunities for law firms. The By Lawyers precedents are presented in sequential order in a plan for the conduct of each matter from opening to closing each file from compliant disclosures and initial letters through all required documents to final letters. All of the precedents are contained within the LEAP software and have been automated with fields and codes.

To assist practitioners in the practice and law behind every precedent By Lawyers present a unique system of integrating research commentary with the precedents with outgoing links to legislation and case law when required. This system allows even the rustiest practitioner to successfully and compliantly navigate a less familiar area of law and satisfy the client by producing the desired outcomes on time. At present it is difficult to turn away any work simply because it might be outside a firm’s normal experience. All new work creates more new work. Witness the family law client that needs new wills and the sale and purchase of a home or a business purchaser who needs a company shareholders agreement or a partnership agreement.

By Lawyers daily keeps up to date with changes to law and practice removing this concern from then firm. Ideal for staff training, undertaking new work and being more productive By Lawyers guides are only available as a companion product to LEAP Legal Software and are perfect for those working from home or in the office.

Companies during COVID-19 – FED

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The Federal government has made things easier for companies during COVID-19. Amendments to the Corporations Act enable companies to circumvent formal requirements which made signing documents and holding meetings in the current environment difficult or impossible. These practical temporary measures apply to companies during COVID-19 and are set for repeal on 6 November 2020.

Execution of documents by companies during COVID-19

Amendments introduced by the Corporations (Coronavirus Economic Response) Determination (No. 1) 2020 that commenced on 6 May 2020 provide for execution of documents by companies during COVID-19. The amendments mean that a company can execute a document electronically under s 127 of the Corporations Act 2001. The method used must be appropriate in the circumstances, identify the person in the electronic communication and indicate the person’s intention in respect of the contents of the document. The Determination also provides for the execution of a document requiring a common seal, to be executed otherwise: s 6(3).

Meetings of companies during COVID-19

Amendments introduced by the Corporations (Coronavirus Economic Response) Determination (No. 1) 2020 that commenced on 6 May 2020 provide for meetings of companies during COVID-19. The amendments modify the provisions of the Corporations Act 2001 and the Corporations Regulations 2001, or any equivalent provisions in a company constitution, that require or permit a meeting to be held, or that regulate giving notice of a meeting or the conduct of a meeting. These amendments mean that:

  • a meeting can be held using one or more technologies that give all persons entitled to attend a reasonable opportunity to participate without being physically present in the same place. This would include platforms such as Zoom, Skype or Microsoft Teams;
  • all persons thus participating in the meeting are taken for all purposes, including quorum requirements, to be present at the meeting;
  • a vote taken at the meeting must be taken on a poll, and not on a show of hands, by using one or more technologies to give each person entitled to vote the opportunity to participate in the vote in real time and, where practicable, by recording their vote in advance of the meeting;
  • a requirement to allow persons attending the meeting to speak, such as asking questions, may be complied with by using one or more technologies that allow that opportunity;
  • a proxy may be appointed using one or more technologies specified in the notice of the meeting; and
  • notice of a meeting may be given by using one or more technologies to communicate along with any other information to be provided, or details of an online location where the content can be viewed or downloaded. For example, a company could send members an email setting out or attaching a notice of a meeting and any other material relating to the meeting, or else providing a link to where the notice and the other material can be viewed or downloaded.
  • a notice of meeting must include information about how those entitled to attend can participate in the meeting, including how they can vote and speak at the meeting.

If notice of the meeting has been given before 6 May 2020 a fresh notice of the meeting that includes the information referred to above must be issued at least 7 days before the meeting is held.

Updates

Keep up-to-date with our ‘Dealing with COVID-19 legal issues – Some practical information‘ commentary. This can be found at the top of each By Lawyers Guide.

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