ByLawyers News and Updates

Access to criminal case information – WA

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There is now a greater public right of access to criminal case information in the WA Magistrates Court. Practitioners acting for accused persons in the WA Magistrates Court should be aware – and, where appropriate, advise their clients – that an amendment to the Magistrates Court (General) Rules 2005 (new rule 40) now allows any person to request from the court the following information relating to a particular case:

  1. the charge;
  2. any conviction or order made in respect of the charge; and
  3. any penalty imposed on the accused in relation to the charge.

However, this rule is expressly subject to the non-publication provisions of s 171 of the Criminal Procedure Act 2004. In appropriate circumstances, consideration should be given to seeking a non-publication order under s 171(4) to avoid the effect of this rule.

Also, this rule does not allow anyone to generally access the accused’s criminal history other than the outcome of the specific case.

The commentary in the By Lawyers Criminal Magistrates Court (WA) guide has been updated accordingly.

Mandatory electronic lodgement from 1 December – WA

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Are you ready for mandatory electronic lodgement?

From 1 December 2018, all new eligible stand-alone transfers, caveats and withdrawal of caveats, and any lodgement case consisting of eligible discharges, transfers, mortgages, caveats and withdrawal of caveats must be lodged electronically.

Electronic lodgement is mandatory from this date and paper lodgement will not be accepted for the above scenarios, unless an instrument cannot be lodged using an Electronic Lodgement Network and a completed Request to accept paper lodgement form is attached. The form must be completed by the party requesting paper lodgement, and that party must also ensure that they hold evidence that supports their request. The form does not need to be used in a lodgement case that includes an additional document not listed above e.g. transmission, survivorship application.

The By Lawyers Conveyancing (WA) Publication has been updated accordingly to assist WA solicitors and conveyancers with the transition to electronic conveyancing.

For further details, see the ‘E-Conveyancing’ section of the By Lawyers conveyancing commentaries and our related article ‘A brief explanation of the transition to E-conveyancing’, which includes information on how to get connected, both accessible from the Matter Plan in our Conveyancing Guides.

 

Circumstances of aggravation – Traffic offences – WA

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Amendments to s 49AB of the Road Traffic Act 1974 (WA) have commenced, providing for new circumstances of aggravation which have the effect of doubling the maximum penalty for the offence of dangerous driving causing death from 10 years to 20 years imprisonment.

The new circumstances of aggravation now in s 49AB(1) of the Act include:

  • Excessive speed
    Circumstances of aggravation include driving more than 30 kph over the applicable speed limit. Previously, the section provided for 45 kph over, but the threshold has been lowered by the amendments.
  • No authority to drive
    Circumstances of aggravation include the driver having ‘no authority to drive’. This includes the driver having never held a licence, having an expired licence, having been refused a licence, or being at the time of the offence disqualified from holding or obtaining a licence. The provision extends to any Australian licence, not just WA.
  • Failure to comply with conditions of an extraordinary licence
    Circumstances of aggravation include where the driver holds an extraordinary licence but at the time of the offence is driving in contravention of the requirements or conditions of the extraordinary licence, for example, where the driver is authorised to drive a car but at the time of the offence is riding a motorcycle.
  • Failure to comply with alcohol interlock scheme
    Circumstances of aggravation include the driver being required to drive a vehicle fitted with an alcohol interlock device but at the time of the offence driving a vehicle without such a device, not having the required authorisation to drive, or driving in breach of the alcohol interlock condition of an authorisation to drive.

The By Lawyers Traffic Offences – Magistrates Court (WA) guide has been updated accordingly.

Keeping up to date – Podcast

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The law never stands still! Keeping up to date with changes in the law and practice is an ever present challenge faced by law firms.

Legislation and regulations change all the time, new cases are decided which impact the law, new practice directions are released by courts and changes in document lodgement processes are made by various authorities. All these and more need to be continually noted and understood, as they can affect the way a law firm conducts client matters and does business.

Just keeping the firm’s precedents current with changes in the law is a major task – which is not billable! Using precedents which are out of date exposes the firm to risk.

Using By Lawyers commentaries and precedents eases the burden upon firms and reduces their risk.

By Lawyers have a team dedicated to tracking changes in the law in each Australian jurisdiction and ensuring that all of our content is updated as those changes happen. Firms using the By Lawyers guides can be confident that they are using commentaries and precedents which are up to date with current legislation.

In our latest podcast our Managing Director Brad Watts and LEAP’s National Marketing Manager Claire James discuss the issues around keeping up to date with the law and how By Lawyers can help firms to stay on top of changes.

 

By Lawyers is going global!

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BY LAWYERS IS GOING GLOBAL

By Lawyers is excited to announce that in February 2019 we will be launching our online guides and precedents in the United Kingdom. Our UK team is already on the ground working on content with our UK authors – practising lawyers in the various UK jurisdictions.

In the UK, we will duplicate the successful Australian By Lawyers system to give UK lawyers the same real time access to law, matter plans and precedents that are an integral part of practice for their Australian colleagues.

We also wish to assure our Australian clients that it will be very much business as usual at home for our Australian editorial and publishing teams. We have appointed a new management team for By Lawyers Australia to ensure that our Australian publications continue to expand and improve – and remain always up to date, of course.

We have pleasure introducing Brad Watts as the new Managing Director of By Lawyers Australia.

Many of you know Brad already a contributing author and more recently our senior consultant. Brad will take the reigns of By Lawyers Australia from today, reporting to our Chief Executive Officer, Bobbi Young, Chief Operating Officer Danni Larney and the Global Editor in Chief Guy Dawson. Brad will be ably assisted by our new General Manager Paul Maher, previously Legal Editor, and the rest of our wonderful in-house team – plus the 45 practising lawyers across Australia who are our external authors and who help us keep our content relevant, practical and up to date.

We sincerely thank our Australian subscribers for their support over the last decade and we look forward to continuing to assist them to enjoy practice more.

By Lawyers is very proud to be taking our great Australian product to the world.

Supervised legal practice – A new podcast from By Lawyers and LEAP

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Many small firms have lawyers on the team who are still in their first two years of practice and therefore subject to a condition on their practising certificate that they may only engage in supervised legal practice.

Join our Senior Consultant and Editor Brad Watts and LEAP National Marketing Manager Claire James for a discussion on the ways in which proper supervision is important for both the firm and for junior lawyers and how it can be an essential element of running a successful small law firm, as a means to ensure delivery of high quality client outcomes and a vital risk management tool.

The President of the NSW Law Society recently highlighted the importance of senior practitioners meeting their supervisory obligations to junior practitioners who are subject to the restriction of supervised legal practice in their first 2 years. This podcast discusses the factors which impact – and sometimes impede – proper supervision in small legal practices and how the By Lawyers guides and precedents can help firms comply with their supervision requirements.

The podcast covers the general supervision requirements and also looks at some specific By Lawyers precedents which can assist firms with their supervision obligations, such as Retainer Instructions and To Do lists.

Oh, and with some help from John Grisham, we also learn why Australian lawyers are better than American lawyers!

 

Victim Reviews – Magistrates Court Criminal – WA

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The commentary in the By Lawyers WA Magistrates Court – Criminal Guide has been amended to ensure that practitioners acting for clients who are charged with sexual and violent offences are aware of the Director of Public Prosecutions’ new Policy and Guidelines for Victims of Crime 2018. These provide for Victim Reviews – a formal process for a victim of crime to complain and seek a review about any decision by the DPP which ‘significantly alters the prosecution case in relation to which they are the victim’.

That would, for example, include an agreement by the prosecution to withdraw a charge and/or proceed with a lesser charge.

There is a corresponding requirement under the policy for State Prosecutors to seek an adjournment of the matter for 7 days, where necessary and practicable, for such a review to be conducted – if a review is requested. Victims can waive their right to a review. In some instances, where a trial is pending for example, an adjournment for 7 days will not be possible and prosecutors are expected to use their discretion when seeking adjournments.

Whether any adjournment is granted will always be matter for the Court, in the context of the particular matter, but it is likely that such adjournments will usually be granted by the Court if reasonably possible.

It is, of course, preferable that discussions about plea resolutions between defence lawyers and prosecutors occur with sufficient time for the adjournment not to be necessary, but there will always be some instances where an agreement is reached at, or within 7 days of, an interlocutory appearance – such as the Disclosure Committal – resulting in the need for an adjournment.

Where victim reviews are required, clients will need to be warned that any plea ‘deal’ is not guaranteed until the review is conducted and the matter returns to court after the adjournment.

Providing feedback to By Lawyers

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At By Lawyers we love to receive feedback from our subscribers. We are available via email: askus@bylawyers.com.au.

We always respond promptly to issues or suggestions about our guides and precedents.

For LEAP users there are two additional ways to provide feedback:

  • When in a LEAP matter, in the top right hand corner of the screen there is a blue Question Mark icon. Clicking on it reveals a drop-down box for the LEAP Community pages – one of these is ‘Help, support and feedback’.
  • When using any precedent in LEAP, there is  always a ‘Provide Feedback’ button in the ribbon at the top of the document, next to ‘Save to matter as PDF’. This opens to a feedback form where any issues or suggestions regarding the precedent can be provided. Where such feedback relates to a By Lawyers precedent, LEAP send it on to us and we will always address it promptly, directly with the user.

By Lawyers have often introduced new precedents or enhanced our commentaries as a result of subscriber suggestions. Whenever we see a need for the proposed additions or amendments we are happy to oblige, so as to benefit not only the firm that made the request but all of our other users as well. Sometimes our subscribers will not only identify an issue, such as a new precedent that might be needed, but they will also provide us with the resolution – a precedent they have developed themselves and are happy for us to publish for the assistance of others. The law is, after all, a noble profession and helping each other in a collegiate way is one of the hallmarks of being a lawyer.

Our goal at By Lawyers is to help our subscribers enjoy practice more. Responding to feedback is one of the ways we do it.

Wills – Avoiding family provision claims

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Clients often require advice on avoiding family provision claims, when considering their estate planning.  New commentary has been added to the By Lawyers Wills Guides concerning the issues that should be considered when drafting a will in circumstances where a family provision claim against the estate of the testator appears possible.

This new commentary considers two common issues raised by testators when giving instructions for wills:

  1. How to leave their estate to their partner and prevent children or step children from making a claim on the estate; and
  2. How to leave the estate to their partner, whilst ensuring their children by a prior relationship are benefited on the death of that partner.

The commentary discusses some general principles from the cases and provides a range of likely outcomes for a number of classes of claimants under family provision legislation, which will assist practitioners when they are advising clients who are deciding how to distribute their estates to best avoid a potential claim.

In essence, while there is no absolute way of avoiding a family provision claim by an eligible person against a testator’s estate, appropriate consideration when preparing a client’s will can minimise the prospects or quantum of any claim, or at least ensure the testator has a clear understanding of the issues.

Practice management for small law firms

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Practice management is both one of the most important and one of the most frequently neglected aspects of being a lawyer. The imperatives of doing the clients’ work too often mean that practice management takes a back seat and the future direction, expansion and profitability of the firm becomes an afterthought.

The 11 Habits of highly successful small law firms is an article by Richard Hugo-Hamman, the Executive Chairman of LEAP Legal Software, who has been helping small law firms to make more money for over 25 years. This very informative and inspirational article was recently published on LinkedIn and Richard has kindly permitted us to reproduce it within the Reference Materials folder in the By Lawyers Practice Management guide.

The article contains numerous valuable insights for anyone running a small law firm or thinking of doing so. Richard draws on his enormous international experience to distil the key habits that define highly successful small law firms.  In summary he concludes that:

  1. They are efficient;
  2. They enjoy practising law;
  3. They employ smart people and treat them really well;
  4. They have selected areas of law they like and focus on them;
  5. They dedicate time to building the firm as a business;
  6. They are early adopters of technology;
  7. They confront the challenges of getting paid and solve them;
  8. They have standard processes and procedures in place for all matters;
  9. They make compliance a natural consequence of running a firm well;
  10. They become experts in customer service;
  11. They understand their finances.

We highly recommend reading Richard’s article, which calls upon you to ACT!

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