ByLawyers News and Updates

Costs agreements – All states

by

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.

Criminal AI prompts – NSW

by

New criminal AI prompts have been created.

The following By Lawyers AI prompts have been added to the matter plans for Local Court Criminal and Traffic:

  1. Brief to counsel

  2. Submissions for a s 9 application

  3. Submissions for a s 10 application

  4. Submissions for a bail application

  5. Letter to medico-legal expert requesting a report for sentencing

These new criminal AI prompts will assist practitioners appearing for clients in criminal and traffic matters in the NSW Local Court.

AI prompts are transforming legal document drafting. Technical precision in prompting artificial intelligence can significantly improve the utility and credibility of its output, especially when the AI draws exclusively from data contained in client matters and not from outside sources.

A well-drafted AI prompt acts like a clear direction from a senior lawyer to a junior about how to prepare a document. It sets precise parameters for the task, identifies the required information and where it must be drawn from, specifies the document’s form and any legal or procedural rules with which it must comply, and forbids the use of external or unauthorised sources, including invention – or in AI’s case, hallucination.

The outcome of using an AI prompt in a matter that contains sufficient reliable data is a competent first draft of a document that the lawyer can then refine and perfect, either with or without further input from AI.

Even if sufficient data is not available in the matter to satisfy the prompt’s requirements for the document, the AI will identify the missing data the lawyer needs to obtain via instructions or other means.

By Lawyers is pleased to introduce AI prompts to our publications, helping our subscribers harness the power of LEAP’s Matter AI.

Drink driving – QLD

by

Amendments to drink driving legislation relating to interlock orders and driver education programs commence in Queensland on 10 September 2021.

Interlock program now applies to more drink driving offences

From 10 September 2021 mandatory interlock orders apply upon conviction for any drink driving offence with a BAC of 0.10 or greater. Previously interlock orders only applied to offences with BAC of 0.15 or more.

An interlock device is a breath testing instrument which is connected to the electrical system of a motor vehicle and prevents the engine being started unless the driver passes a breath test. These devices must be installed, by an approved installer at the driver’s expense, if a court order makes it a requirement of being able to obtain a driving licence.

Education programs for drink drivers

From 10 September 2021 conviction for any offence which attracts a mandatory interlock order renders the driver ineligible to obtain a licence for 5 years from the date of their conviction unless they have completed an approved drink driver education program.

First offenders must complete a brief intervention education program (BIEP). Repeat offenders must complete a repeat offender education program (ROEP). These programs are separate to the Queensland Traffic Offenders Program, which is generally completed prior to the offender being sentenced.

Exemptions from completing the required drink driver education programs are available. Applicants must show that requiring them to do the program would be unreasonable or cause severe hardship. However, applications for exemption cannot be made until the end of the applicable licence disqualification period.

Publication updates

The By Lawyers Magistrates Court (QLD) – Traffic Offences guide has been amended accordingly. See Alcohol Ignition Interlock Program in the commentary for more information. The precedent Letter to client finalising the matter and confirming outcome of plea has been amended to incorporate the new provisions.

Drink and drug driving – WA

by

New offences apply for the combined offence of drink and drug driving in Western Australia from 1 July 2021. There are also increased penalties for existing drink and drug driving offences.

Recent amendments to the Road Traffic Act 1974 have commenced. They are contained within the Road Traffic (Impaired Driving and Penalties) Act 2019.

The amending Act implements reforms which will:

  • allow a police officer to immediately prohibit a driver who tests positive to the presence of prescribed illicit drugs at roadside from driving for 24 hours;
  • introduce new offences to target people who drive with an illegal level of both alcohol and prescribed illicit drugs;
  • increase penalties for existing drink and drug driving offences to ensure that they remain an effective deterrent; and
  • enhance and streamline drink and drug driving enforcement processes.

The By Lawyers Magistrates Court (WA) – Traffic Offences commentary has been updated to reflect these changes.

Corresponding amendments have also been made to the Retainer Instructions and initial letters to reflect the updated penalty amounts for each applicable offence.

There are also 20 new precedents. These new initial letters deal with the new category of offence: driving with an illegal level of alcohol and prescribed illicit drugs. These helpful precedent letters contain the relevant penalties, which are dependent upon the BAC level of the offender and whether the incident is a first, second, third or subsequent offence. These letters assist practitioners to quickly and accurately advise and inform their clients.

Drink and drug driving – NSW

by

There is a new category of traffic offence in NSW of combined drink and drug driving. The Road Transport Legislation Amendment (Drink and Drug Driving Offences) Act 2021 commenced on 28 June 2021.

It has long been an offence for a person to drive with drugs in their oral fluid, blood or urine. Likewise, the offence of driving with the prescribed concentration of alcohol in the breath or bloodstream. The new category of offences relates to driving with the presence of both a prescribed illicit drug in a person’s oral fluid, blood or urine and the prescribed concentration of alcohol in a person’s breath or blood.

Note that a person cannot, in relation to the same conduct, be convicted of both an existing offence of either drink or drug driving and also the new combined offence. However, a person can still be convicted of drink or drug driving where the combined offence is not proven.

The commentary in the By Lawyers NSW Traffic offences guide has been updated accordingly. New precedents have also been added to the Library of initial letters to the client as follows:

  • Initial letter to client – Alcohol and drug driving middle range – First offence
  • Initial letter to client – Alcohol and drug driving middle range – Second offence
  • Initial letter to client – Alcohol and drug driving high range – First offence
  • Initial letter to client – Alcohol and drug driving high range – Second offence
  • Initial letter to client – Second offence of combined alcohol and drug offence

Like all of the initial letters to client in the By Lawyers criminal law guides, these new precedent letters set out the penalties and sentencing options for the new offences of combined drink driving and drug driving. These letters make it easy for practitioners to quickly and accurately confirm their advice on penalties to clients charged with traffic offences at the point of engagement.

There are also relevant amendments to the Retainer instructions – Traffic offences.

Mental health provisions – NSW

by

Mental health provisions in the criminal courts have had their first substantive overhaul in 30 years. The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 commenced on 27 March 2021. Division 2, Part 2 of the new Act applies to criminal offences in the Local Court.

The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 replaces the Mental Health (Forensic Provisions) Act 1990, including what were previously known as ‘section 32 applications’. This re-set of mental health provisions in the criminal context provides a diversionary scheme for people with mental health and cognitive impairment issues who are charged with offences that may be dealt with summarily.

Under s 12 of the Act, if it appears to a magistrate that a defendant has, or had at the time of the commission of the offence, a mental health impairment or a cognitive impairment, or both, then the magistrate can make an order under s 14 to dismiss the charge either conditionally or unconditionally. The magistrate may also adjourn the proceedings under s 13 for assessment or diagnosis, preparation of a treatment plan or to identify a responsible person for the purpose of making an order.

The main changes from the existing law – apart from the new section numbers – are:

  • ‘mental health impairment’ is now defined’;
  • the existing definition of ‘cognitive impairment’ is slightly amended;
  • the new Act sets out what the magistrate can consider when deciding whether to make an order, although the court retains ultimate discretion; and
  • magistrates can now re-call people who are discharged on conditions under the Act, which they fail to comply with, for a period of 12 rather than 6 months.

These changes should see more people with mental health or cognitive impairments successfully diverted from the criminal justice system.

The By Lawyers Criminal Law publication has been updated accordingly. The existing commentary on section 32 applications has been moved to an Appendix at the end of the commentary, as the previous legislation continues to apply to matters which were already on foot before 27 March 2021.

 

Traffic offences – VIC

by

The By Lawyers Traffic Offences – VIC publication has been updated and revised.

With the final commencement of the Road Safety and Other Legislation Amendment Act 2020 on 12 November 2020, the Road Safety Act 1986 has been amended to provide for immediate driver licence or learner permit suspensions in certain cases.

This includes excessive speed offences more than 45 kph over the speed limit which are mobile camera detected or for offences where a motor vehicle is used to cause serious injury or death, police can give the driver notice of immediate licence suspension. This requires the driver to surrender their licence for up to 12 months.

There are also immediate suspensions for certain drink and drug-driving offences and heavy vehicle offences.

These legislative amendments have been incorporated in the commentary in the Traffic Offences – VIC publication.

In addition, the commentary has been reviewed with resultant enhancements. The content is re-ordered for better workflow and improved searchability; specific sections have been added for various aspects of sentencing, such as obtaining medical reports; and links to VicRoads and Transport for Victoria online resources are enhanced. The matter plan has been revised to incorporate these revisions.

101 Costs Answers – ALL STATES

by

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.

Special Hardship Order – Traffic law – QLD

by

Following recent amendments, Queensland drivers who are subject to a Special Hardship Order can no longer accumulate any demerit points. If they do, their licence will be suspended for double their original suspension period.

A Special Hardship Order is available under the Transport Operations (Road Use Management–Driver Licensing) Regulation 2010. An application can be made by a driver whose licence has been suspended. The driver must present the court with affidavit evidence that they meet certain criteria and establishing hardship as a result of the licence suspension. If the order is granted the driver will be able to resume driving but will be subject to the conditions of the order for a period equating to the original suspension period.

Breaching the conditions of a Special Hardship Order attracts a fine of 20 penalty units and automatic disqualification for the remainder of the original suspension period, plus 3 months.

Effective from 1 July 2019, drivers who are subject to a Special Hardship Order will also be unable to accumulate any demerit points.

See the By Lawyers Traffic Law guide for more information.

Drink driving – Criminal NSW

by

In a small but significant change to drink driving laws, from 20 May 2019 offenders charged with first time, low range prescribed concentration of alcohol offences in NSW will be fined and have their licence suspended immediately for three months, rather than receive a Court Attendance Notice.

This results in such offenders needing to make a court election if they wish to ask the court to dismiss the charge and not record a conviction under s 10 Crimes (Sentencing Procedure) Act 1999.

It will also be available to such offenders to make a licence appeal to the Local Court, if they seek to avoid or reduce the period of suspension. A licence appeal can only be made after conviction. The offender has a conviction recorded either by paying the fine in the first instance, or by the court imposing a conviction where a court election is made and no section 10 dismissal is granted.

This means that from now on lawyers are unlikely to see some first time, low range PCA offenders at all, or at least not until after they have paid their fine and are seeking to appeal their licence suspension. As a licence appeal is a slightly different advocacy exercise to a drink driving plea, these changes will involve a re-calibration of the approach to advising and appearing for clients in first time, low range drink driving cases.

For more information, including the full details of penalties for drink driving offences which appear in the Appendix at the end of the commentary, see the By Lawyers Traffic Offences guide.

Connect with us