ByLawyers News and Updates

Wills guide reviewed – WA

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The continuing commitment of By Lawyers to updating and enhancing our publications has seen the Western Australian Wills guide reviewed.

Subscribers using this popular publication will benefit from a re-ordered and extended matter plan, revised and updated commentary and a number of new precedents.

Execution is now a top-level heading on the matter plan, with dedicated commentary on issues such as blind witnesses, gifts to witnesses and solicitors as witnesses. The revisions and enhancements to commentary also include:

  • First steps and taking instructions for wills
  • Testamentary capacity and the test in Banks v Goodfellow
  • The formal requirements for a valid will
  • Informal wills
  • Intestacy
  • Executors
  • Execution
  • Challenges to the validity of a will

New and amended precedents

  • Letter to client to confirming instructions
  • Instructions for signing
  • Letter reminding client that will is ready for signing

Other resources in the Wills guide reviewed

Links have been added to the By Lawyers reference materials Other trusted and useful resources, which can be found in the Reference materials folder on the matter plan and at the end of the full commentary.

Sexual harassment – FED

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New provisions for the prevention of sexual harassment and bullying in the workplace have commenced.

Part 6-4B of the Fair Work Act 2009 (Cth) now provides that workers can apply to the Fair Work Commission for orders to stop sexual harassment as well as workplace bullying. To be eligible to make an application a worker must be employed in a constitutionally-covered business.

There is no time limit for making an application for an order to stop bullying or sexual harassment at work. Section 789FF of the Fair Work Act 2009 provides that for the Fair Work Commission to be able to make an order there needs to be a risk that the applicant will continue to be bullied or sexually harassed at work. If the worker no longer has a connection to the workplace, an order cannot be made as there is no future risk of the relevant behaviour occurring.

‘Sexually harass’, for these purposes, has the same meaning as in s 28A of the Sex Discrimination Act 1984 (Cth).

Examples of sexual harassment include:

  • inappropriate behaviour including staring, leering, loitering or unwelcome touching;
  • suggestive comments, jokes or gestures based on sex or a person’s private life or body;
  • communicating sexually explicit material in person or electronically.

The objectionable conduct must occur at work, which is not defined but is tied to work activities wherever they occur and is not limited to the confines of a physical workplace. It includes entering, moving about and leaving a workplace.

The application needs to be lodged with the Fair Work Commission using the prescribed form: Application for an order to stop bullying or sexual harassment (or both).

The employer needs to respond within 7 days of being served using the prescribed form: Response from an employer or principal to an application for an order to stop bullying or sexual harassment (or both).

The alleged perpetrator will receive a copy of the application and be invited to respond within 7 days using the prescribed form: Response from a person named as having engaged in bullying or sexual harassment (or both).

All the prescribed forms are available in the Workplace bullying and sexual harassment folder on the matter plan in the By Lawyers Employment Law publication. The commentary has also been updated accordingly.

Disclosure – Family Law – FED

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Rule 6.02 of the Family Law Rules 2021 provides that a party must file a written notice stating that they have read Parts 6.1 and 6.2 of the Rules and that they will comply with their disclosure obligations. This written notice is given in the Undertaking as to Disclosure form that each party is required to file before the first court date unless the court orders otherwise.

New precedent Enclosure – Parts 6.1 and 6.2 of the Family Law Rules 2021 conveniently sets out all of the rules in Parts 6.1 and 6.2 for the client’s ease of reference. Practitioners can give this enclosure to clients involved in parenting or financial proceedings when first instructing them, making it easy for practitioners to comply with the requirements under the rules to fully inform their clients.

The enclosure accompanies the Letter to client regarding duty of disclosure and can be found on the Property Settlement and Children matter plans directly under the Duty of disclosure brochure in the Pre-action procedures folder.

The By Lawyers Family law publication is up to date with all of the recent changes to the family law system after the merger of the two courts into the Federal Circuit and Family Court of Australia.

COVID measures are here to stay – All states

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Many temporary COVID measures introduced across Australia during the pandemic are here to stay.

New South Wales and Queensland have now proposed legislation permanently retaining some COVID measures, such as remote witnessing. Victoria have already legislated to retain some COVID measures. The Commonwealth has extended temporary measures for companies.

With other states and territories expected to follow suit, the long-term legal legacy of COVID-19 looks like being significant.

New South Wales

The Electronic Transactions Amendment (Remote Witnessing) Bill 2021 will permanently allow certain documents to be witnessed in real time over an audio-visual link.

Further, for an additional 12 months from the date of assent, the list of people who can witness NSW statutory declarations will be extended to the expanded list of witnesses set out in Schedule 2 of the Statutory Declarations Regulations 2018.

Queensland

The Justice and Other Legislation Amendment Bill 2021 will make permanent some of Queensland’s  temporary COVID measures including:

  • Remote witnessing and electronic signing of affidavits, statutory declarations and some oaths; however electronic signatures on statutory declarations can only be used for a land or water dealing where electronic conveyancing is used.
  • Powers of attorney for corporations, partnerships and unincorporated associations, but not sole traders, can be signed electronically, in counterpart, by split execution and without a witness; however, if a general power of attorney is used for a land or water dealing it must continue to be executed in accordance with the Land Title Act 1994 and Land Act 1994.
  • Advance health directives can be certified as to capacity by nurses, in addition to doctors.
  • Deeds can be made in the form of an electronic document, electronically signed, made in counterpart and by split execution, generally without a witness. The Bill also removes the requirement for deeds to be sealed, requiring the deed to contain a clear statement that it is executed as a deed. However, deeds lodged or deposited in relation to land and water dealings must continue to be executed in accordance with the Land Title Act 1994 and Land Act 1994.
  • Private applications for temporary protection orders in domestic and family violence matters may be filed electronically, with a hearing date allocated and the application served before the application is verified. Verification can occur later, when the magistrate hears the application. The Magistrates Court may hear any part of family and domestic violence proceedings by audio visual link.

South Australia

The Oaths (Miscellaneous) Amendment Act 2021 commencing on 1 December 2021 amends the Oaths Act 1936 (SA) to:

  • Provide continuity following the expiration of the COVID-19 Emergency Response Act 2020 and its associated regulations through the Oaths Regulations 2021.
  • Introduce a Code of Practice – Affidavits to be followed by deponents and witnesses in the making of affidavits.
  • Introduce a Code of Practice – Statutory Declarations to be followed by declarants, and witnesses to ensure statutory declarations are taken in accordance with the Oaths Act 1936.
  • Expand the persons before whom a statutory declaration may be made as stated in the new Schedule 1 to the Oaths Act 1936.
  • Include additional offences for those falsely representing themselves as authorised witnesses to a statutory declaration or affidavit.

By Lawyers keeps you up to date

All relevant By Lawyers guides, including the dedicated guide Dealing with COVID-19 legal issues – Some practical information which appears at the top of all By Lawyers matter plans, have been or will be updated to reflect these changes as and when they take effect.

Director identification numbers – FED

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Director identification numbers have been introduced in Australia following the commencement of long-awaited amendments to the Corporations Act 2001 (Cth).

Director identification numbers, or Director IDs, are a unique number which attaches to an individual  company director for their life. They retain the director identification number even if they cease to be a director or move from the jurisdiction. It allows directors to be easily identified across multiple companies. It is intended that this identification will assist with compliance and insolvencies.

The 15 digit numbers will start with 036, which is the three-digit country code for Australia under International Standard ISO 3166.

Directors appointed prior to 31 October 2021 must apply for a director identification number between 1 November 2021 and 30 November 2022.

Directors appointed between 1 November 2021 and 4 April 2022 must apply within 28 days of appointment.

Directors appointed after 5 April 2022 must apply prior to being recorded on the ASIC register.

An application for a director identification number is made to Australian Business Registry Services. To make the application directors will need to provide:

  • tax file number;
  • residential address as held by the ATO;
  • two documents to verify identity.

Failure to apply as required, or any misrepresentation as to a director’s number or being the holder of a number, can expose current or prospective company directors to civil and criminal penalties.

The By Lawyers Companies and Joint Ventures guides have been updated accordingly. Commentaries discuss the need to obtain a Director ID. Retainer instructions now prompt for the Director ID.

COVID 19 legal issues

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Dealing with COVID 19 legal issues has been a major challenge for legal practitioners. A great deal of emergency legislation has now been passed in response to the pandemic, both temporary and permanent. While we are beginning to see some of the temporary arrangements introduced by courts, land registries and other authorities ease, there are still many measures in place that continue to affect daily practice.

The By Lawyers publication Dealing with COVID-19 legal issues brings together in one place a collection of up-to-date practical information which is a valuable resource for lawyers. It is available by clicking on the link at the top of the matter plan in every By Lawyers Guide.

The Dealing with COVID-19 legal issues publication continues to be updated and enhanced as the response to the pandemic develops. For instance, the Family Law section of the publication has been recently updated to include information on the updated COVID-19 Hearing Protocol from the Federal Circuit and Family Court of Australia (FCFCOA) to reflect easing restrictions in the ACT, NSW, and VIC.

All By Lawyers publications are updated to reflect permanent changes. By Lawyers will keep practitioners informed of ongoing changes and provide our trademark practical assistance to guide the profession in these difficult times.

Uniform Legal Profession Law – WA

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By Lawyers are preparing for the Legal Profession Uniform Law in Western Australia

Legal Profession Uniform Law (LPUL) is due to commence in Western Australia on 1 July 2022.

By Lawyers guides and precedents will be updated in due course.

Overview

The WA provisions are contained in the Legal Profession Uniform Law Application Bill 2021 (WA) which will replace the Legal Profession Act 2008 and the Law Society Public Purposes Trust Act 1985 on commencement.

Simplified and standardised regulations for WA legal practitioners will align with those in New South Wales and Victoria. The Uniform Law is governed by the Legal Services Council and the office of the Commissioner for Uniform Legal Services Regulation. Each participating jurisdiction has a representative on the council which sets the rules and policy underpinning the Uniform Law. The Commissioner oversees dispute resolution and compliance functions.

The WA Legal Services and Complaints Committee and the Legal Practice Board will continue to carry out complaint and investigation functions, the granting of practising certificates, and professional development.

Costs disclosure and billing under the LPUL

While the Uniform Law makes sweeping changes, those which impact day-to-day practice the most relate to costs disclosure and billing.

Costs disclosure

Written costs disclosure must be given when instructions are taken or as soon as reasonably practical after. It must include the basis on which costs will be calculated and an estimate of the total costs. It must be updated if there is any significant change.

The client must be informed of their rights to negotiate a costs agreement, receive a bill, request an itemised bill, negotiate the billing method and the availability of costs determination.

If a law practice fails to meet its disclosure obligations, then any cost agreement with the client is void and the client is not required to pay the legal costs. The firm cannot commence or maintain any proceedings for recovery of legal costs until they have been assessed, or the dispute is determined by the Legal Practice Board. A contravention can also result in disciplinary action.

Firms must take all reasonable steps to ensure the client has understood and given consent to the proposed conduct of the matter and the proposed costs.

Disclosure obligations vary depending on the estimated costs in a matter. Disclosure is not required if costs are not expected to exceed $750 excluding GST and disbursements. Where costs are not expected to exceed $3000 excluding GST and disbursements, the prescribed uniform standard disclosure form can be used.

Billing under the LPUL

A bill may be lump sum or itemised. A client who receives a lump sum bill may request an itemised bill. The request must be made within 30 days after the date on which the legal costs became payable and must be complied with within 21 days after receiving the request.

If the costs in an itemised bill are higher than the a lump sum bill, the additional costs will only be recoverable where the client was told that the costs in any itemised bill may be higher – and the additional costs are determined to be payable after a costs assessment or binding determination.

Each bill or a covering letter accompanying each bill must be signed by a principal of the firm, or nominate a principal as responsible for the bill.

A law practice must not charge for the preparation or delivery of a bill.

Each bill must include or be accompanied by a written statement setting out the options available to the client in the event of a dispute about the costs and any time limits which may apply.

Interest can be charged on costs unpaid 30 days or more after a complying bill has been given. Interest can only be charged where the bill contains a statement that interest will be payable and the rate chargeable. The maximum rate is prescribed; currently it is 2% above the cash rate target specified by the Reserve Bank of Australia at the time the bill was given.

The billing provisions of the Uniform Law do not apply if the client is a commercial or government authority

Cost assessment procedure

The Uniform Law does not change the procedure for party / party cost assessments in Western Australia. The procedure and form for an assessment of costs is set out at rule 4.7 of the Consolidated Practice Directions of the Supreme Court.

By Lawyers guides:

All WA specific By Lawyers guides will be amended to cover the Legal Profession Uniform Law. So too will the relevant WA commentary and precedents in Federal guides and reference materials.

The main changes will include:

  • New LPUL compliant costs agreements and short form costs disclosure for all WA guides, Federal guides including Family Law, Employment Law, Companies, Trusts, Joint Ventures and Superannuation.
  • Updates to the 101 Costs Answers reference manual, which will also include the LPUL compliant costs agreements.
  • Updates to the ‘Example invoice incorporating notification of client’s rights’ and the stand-alone ‘Notification of client’s rights’ precedents available on all WA and Federal matter plans.
  • Updates to the commentary on professional executor regulations in the Probate and Letters of Administration guides.
  • Updates to the costs section in the Wills commentary including the ‘Conflicts concerning practitioner’s own interests’ section and the ‘Solicitors as executors’ section.
  • Updates to the WA trust accounting section in the By Lawyers Practice Management guide.
  • Updates to 101 Costs Answers.
  • Updates to the ‘Solicitor mortgages’ section in the Mortgages commentary.

Expert evidence – Family law – FED

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A new precedent for use when obtaining expert evidence has been added to the Family Law guides.

When the Federal Circuit and Family Court of Australia (FCFCOA) commenced operation on 1 September 2021, it did so with a new set of rules: the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (the Family Law Rules 2021). The rules apply in all family law matters across both divisions of the court.

Part 7.1 of the Family Law Rules 2021 makes provision for expert evidence. Rule 7.13 provides that experts must be given a recent copy of Divisions 7.14, 7.15, and 7.16. These rules cover requirements for instructions to experts, information about disclosure by experts, their duties and obligations, as well as clarification of the requirements for a single expert report.

A new enclosure has been created which conveniently includes all of the rules in these divisions. The enclosure can be given to the expert witness when they are instructed, thereby making it easy for practitioners to comply with the requirements under the rules. This enclosure has been added to these Family Law matter plans – Property settlement, Children and Financial agreements, for use when obtaining expert evidence. There are corresponding precedent letters to experts on each matter plan.

For Property settlement matters, the new precedent enclosure is located in the Going to court folder under If required – Valuer. There is also a Letter to the valuer for single expert valuation.

For Children matters, the new precedent enclosure is located in the Going to court folder under If required – Single expert witness report. There is also a Letter to single expert witness.

For Financial agreements matters, the new precedent enclosure is located in the Enforcement folder under If required – Single expert witness report. There is also a Letter to single expert witness.

The By Lawyers Family law publication is up to date with all of the recent changes to the family law system after the merger of the two courts into the FCFCOA.

Purchasing off the plan – All states

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To assist practitioners advising clients who are purchasing off the plan, new precedents have been added to the By Lawyers Purchase of Real Property guides in all states.

The two new precedents for practitioners advising potential purchasers are:

  • Initial letter to proposed off the plan purchaser; and
  • Enclosure – Considerations when purchasing off the plan.

The Enclosure is designed to be provided to clients who are considering buying off the plan. It provides plain language information about:

  • What ‘off the plan’ means.
  • The risks of purchasing off the plan.
  • The advantages of purchasing off the plan.

All the pertinent considerations for a client looking at entering into a contract to buy a property off the plan are covered. Importantly, the potential risks are clearly explained, including:

  • Being locked in until the sunset date.
  • Potential for loss if the market deteriorates between the day of sale and the settlement date.
  • Special conditions that operate in the developer’s favour.
  • Possible dissatisfaction with finished product.
  • Changes to the building.
  • Additional legal costs being involved.

Both new precedents can be found in folder A. Getting the matter underway, on each Purchase of Real Property matter plan.

These helpful new precedents were created in response to a request from a By Lawyers subscriber.

Federal Circuit and Family Court of Australia – FED

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The Federal Circuit and Family Court of Australia (FCFCOA) commences operation on 1 September 2021.

The FCFCOA is an amalgamation of the former Family Court of Australia and Federal Circuit Court of Australia.

The new court has two divisions:

  • Division 1 is a superior court of record that includes the judges from the former Family Court. It deals with the most complex matters and exercises appellate jurisdiction.
  • Division 2 is a court of record that includes the judges from the former Federal Circuit Court, which is the single point of entry for all family law and child support matters.

There is a common set of forms and rules across the two divisions. The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (the Family Law Rules 2021) apply in all family law matters, except in Western Australia where the Family Court Rules 2021 (WA) apply. Western Australia also has its own dedicated portal – the eCourts Portal of Western Australia.

They provide for the practice and procedure in both divisions of the FCFCOA except for a few matters such as transfer from Division 2 to Division 1 as set out in the Family Law Rules 2021.

The new court’s website is available: www.fcfcoa.gov.au.

A practice direction deals with Transitional arrangements.

Division 2 of the new court also has a general federal law jurisdiction, like the former Federal Circuit Court.

All By Lawyers Family law publications – Children, Divorce, Financial Agreements, and Property Settlement – are being updated for the commencement of the new court. This includes a full review of the:

  • commentaries, for the new terminology, procedures and hyperlinks to the new rules;
  • matter plans, with a single Going to court folder reflecting the new process; and
  • precedents, to incorporate all necessary changes.

There is a 90 day grace period for using the old forms in the new court. The new court forms will be added to the By Lawyers matter plans as they become available.

By Lawyers always keep our subscribers up to date!

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