ByLawyers News and Updates

District Court – NSW

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The jurisdictional limit of the District Court increased on 16 December 2022. The limit as defined in s 4 of the District Court Act 1970 went from $750,000 to $1,250,000.

The jurisdictional limit may still be exceeded if the parties consent as provided under s 51. There remains no jurisdictional limit for motor accident claims.

Additionally, the monetary limit for the court to deal with and order interlocutory injunctions has increased from $20,000 to $100,000.

The District Court also has limited jurisdiction to hear:

Unchanged is the jurisdiction of the District Court in proceedings for possession of land. The court can only deal with such proceedings where the land value does not exceed $20,000: s 133.

There are no corresponding changes to the jurisdictional limit of the Local Court. The jurisdiction of the Supreme Court is unlimited.

By Lawyers District Court Civil (NSW) guides have been updated accordingly.

First home buyers – NSW

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Eligible first home buyers who exchanged contracts from 11 November 2022 on properties valued up to $1.5 million can now choose to pay an annual property tax instead of transfer duty.

For properties settling on or before 15 January 2023, purchasers pay transfer duty and apply for a refund after 16 January 2023.

Settlements occurring after 16 January 2023 do not require transfer duty to be paid if the property tax option is chosen.

The Property Tax (First Home Buyer Choice) Act 2022 (NSW) received assent on 11 November 2022.

The existing first home buyer duty concessions still apply.

The property tax is indexed annually, capped at 4% per year.

Eligible first home buyers who are not Australian citizens can still be liable for surcharge purchaser duty, even after opting into the property tax.

A residence requirement of 6 continuous months within the 12 months after settlement applies. Purchasers who then use the property as an investment face a higher rate of property tax.

See the By Lawyers Conveyancing (NSW) guides and the Revenue NSW website for more information.

Motor accident claims – NSW

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From 28 November 2022 there are some important changes to the legislation for motor accident claims in NSW. Further amendments are scheduled for later commencement.

The Motor Accident Injuries Amendment Act 2022 amends the Motor Accident Injuries Act 2017, which applies to all motor vehicle claims in NSW where the accident occurred on after 1 December 2017.

The amending Act has been informed by a statutory review of the 2017 Act and the motor accident claims scheme it established. The review assessed whether the policy objectives of the Act remain valid and whether the terms of the Act, the Motor Accidents Injuries
Regulation 2017 and the Motor Accidents Guidelines are appropriate for those objectives.

Provisions of the amending Act commencing now include:

  • a new regulation-making power that can allow payment of statutory benefits in the period between the accident and when the claim is made even if the claim is made outside the required 28 days;
  • removing the requirement for internal review by the insurer before a dispute can be referred to the Personal Injury Commission for medical assessment for disputes about the degree of permanent impairment caused as a result of the injuries sustained in a motor vehicle accident;
  • removal of the 20 month waiting period to bring a claim for damages for certain types of claim;
  • removal of the three year time limit on referring damages claims to the Personal Injury Commission without a full and satisfactory explanation of the delay;
  • removal of the bar to claimants with less than 10% whole person impairment settling a claim within two years of the accident; and
  • clarifying that the liability of the nominal defendant and the legislative provisions for claiming against the nominal defendant apply to statutory benefits claims as well as damages claims.

The By Lawyers Motor Vehicle Accidents (NSW) – Accidents from 1 December 2017 guide has been updated accordingly.

Other amendments in the Act remain pending, scheduled for commencement on 23 April 2024 unless proclaimed earlier. These include provisions for:

  • further regular statutory reviews of the 2017 Act;
  • changing the defined term minor injury to threshold injury;
  • extending weekly payments and statutory benefits for treatment and care expenses from 26 to 52 weeks for injured persons with a threshold injury who are wholly or partly at fault for the accident.

By Lawyers are monitoring the progress of these additional amendments and the guide will be further updated when they commence.

Family law rules – FED

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Changes to the family law rules from 28 November include the abolition of the need to file a parenting or financial questionnaire with an initiating application. Parties now only file a questionnaire if they have not filed an affidavit with their application or response.

Other amendments to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 include:

  • Rule 1.09: Changing the form for seeking rescission of a divorce order from an Application for Review to an Application in a Proceeding;
  • Rule 2.01: Requiring that an application must concisely state the orders sought;
  • Part 2.6: Making the rules on service of documents in Australia apply to service generally;
  • Part 5.6: Inserting new rules 5.28 and 5.29 requiring that the Annexure to Proposed Consent Parenting Orders be attached to an application for interim parenting orders proposed to be made in chambers, as was already required for final orders;
  • Rule 5.28 and rule 10.04: Allowing draft consent orders to be signed by a party’s legal representative;
  • Rule 6.06 and rule 8.09: Removing the requirement to file parenting or financial questionnaires with an initiating application if the party has filed an affidavit;
  • Rule 7.35: Providing for the court to accept the opinion of a court-appointed assessor unless there are exceptional circumstances; and
  • Rule 14.07: Allowing the court to consider an Application for Review in chambers if the parties consent, and requiring parties to seek leave for any further evidence to be filed in support of an Application for Review.

Amendments to the costs schedule in the rules commence on 1 January 2023.

Amendments have also been made to the delegations table in Schedule 4 to the Rules, with effect from 28 November 2022.

The amended delegations increase the powers of Senior Judicial Registrars and Judicial Registrars in dealing with aspects of case management, including allowing the registrars to:

  • deal with an application for an interlocutory consent order under the new part 5.6 of the Rules;
  • apply on a limited basis the court’s power under s 69ZR of the Family Law Act 1975 to make a finding of fact, determine a matter, or make an order in relation to an issue arising, at any time before final orders are made in child-related proceedings;
  • order a party to undergo drug or alcohol screening or testing;
  • make spousal or de facto maintenance orders on a limited basis;
  • make an order for child maintenance – Senior Judicial Registrars only;
  • make an injunction under s 114 against a third party – Senior Judicial Registrars only;
  • make orders in relation to costs, costs estimates, and assessment of costs under s 117;
  • grant leave to institute proceedings out of time – Senior Judicial Registrars only;
  • grant leave for joinder of a party to a proceeding after the first court date;
  • issue a subpoena, order the production and inspection of documents, and hear subpoena objections;
  • summarily dismiss an application that has no reasonable prospects of success;
  • make summary orders in response to a claim by a party that an application or response is frivolous, vexatious, or an abuse of process, or that an application has no reasonable likelihood of success;
  • make certain case management orders or directions under r 10.11;
  • make orders varying or setting aside orders under the slip rule if the original orders were made by a Senior Judicial Registrar or Judicial Registrar;
  • make declarations regarding the costs of a child, and amend administrative assessments that are more than 18 months old under the Child Support (Assessment) Act 1989; and
  • grant a stay under s 111C of the Child Support (Registration and Collection) Act 1988.

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.

Advance care directives – TAS

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A legal framework for advance care directives has been introduced in Tasmania. This brings Tasmania into line with the mainland states.

The Guardianship and Administration Amendment (Advance Care Directives) Act 2021 commenced on 21 November 2022. It amends the Guardianship and Administration Act 1995.

The purpose of the act and advance care directives for which it provides is to:

  • enable persons with decision-making ability to give directions about their future health care;
  • enable persons with decision-making ability to express their preferences and values in respect of their future health care, including by specifying outcomes or interventions they wish to avoid;
  • ensure that health care accords with a person’s directions, preferences and values; and
  • protect health practitioners and others giving effect to the directions, preferences and values of the person receiving care.

Amendments have been made to the By Lawyers Powers of attorney, enduring guardianship, and advance care planning (TAS) publication, including:

  • New commentary on advance care directives covering:
    • a summary of the legal framework and general principles;
    • the formal requirements, including witnessing and execution;
    • registration with the Tasmanian Civil and Administrative Tribunal; and
    • amendments and revocation;
  • Advance care directive statutory form added to the matter plan;
  • New Revocation of advance care directive and letters notifying relevant parties of the revocation;
  • Amended Retainer instructions to record the client’s instructions;
  • Amended Enclosure – Instructions for signing to add advance care directive signing requirements; and
  • Amended Appointment of enduring guardian to reflect the changes to s 32 of the Guardianship and Administration Act 1995 relating to the endorsement of guardians. This applies to all appointments made from 21 November 2022.

Central Practice Direction – FED

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The Central Practice Direction: Family Law Case Management outlines the core principles applicable to family law proceedings and establishes a consistent national case management system in the Federal Circuit and Family Court of Australia.

The practice direction requires that before filing an Initiating Application or a Response to an Initiating Application, lawyers give their clients a copy of the practice direction. There is a brochure on the matter plans in the By Lawyers family law publications, being a convenient PDF version of the practice direction, for this purpose.

A new precedent letter to the client has been added to the matter plans, enclosing the brochure and summarising its key points. This assists the practitioner to both comply with their obligations and explain the importance of the practice direction to their clients.

The Central Practice Direction incorporates the overarching purpose, enshrined in the Federal Circuit and Family Court of Australia Act 2021 under which the court was created, to facilitate the just resolution of disputes as quickly, inexpensively, and efficiently as possible.

The ten core principles by which the overarching purpose is to be achieved are in summary:

  1. assessment of risk to vulnerable parties;
  2. rapid and inexpensive agreements;
  3. efficient use of the court’s resources;
  4. effective case management;
  5. active dispute resolution;
  6. adverse consequences for non-compliance;
  7. costs obligations;
  8. full disclosure between parties of all relevant information and focus on the real issues;
  9. hearing preparation; and
  10. resolution or determination of all cases promptly.

Following the principles, the Central Practice Direction makes it clear that the court expects parties and their lawyers to always:

  • minimise costs;
  • promptly give full and frank disclosure of information;
  • communicate productively; and
  • identify and seek to resolve the issues genuinely in dispute.

The Practice Direction prohibits aggressive and unnecessarily adversarial conduct. The safety of parties and children is a priority. Parties are not required to put themselves or their children at risk or compromise if they feel unsafe or believe abuse or violence affects their ability to negotiate fair or reasonable outcomes. The interests of children are always the court’s paramount concern.

Local Court Rules – NSW

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A recent amendment to the Local Court Rules provides for transfers of civil proceedings from the Court’s General Division to the Court’s Small Claims Division.

Rule 2.3 of the Local Court Rules 2009 already provides for proceedings to be transferred from the Small Claims Division to the General Division if the Court considers that sufficiently complex, difficult, or important issues are involved. The same rule also allows such proceedings to be transferred back to the Small Claims Division again if the Court considers it appropriate to do so.

The new sub-rule, 2.3 (1A) allows the Court to transfer any proceedings from the General Division to the Small Claims Division if the Court is of the opinion that any complex, difficult, or important issues have been resolved, or that it is otherwise appropriate.

In either case, the transfer can be made on the application of a party or by the Court’s own motion.

A corresponding amendment to r 2.10 provides that an application by a party for transfer either way is to be made by a motion in accordance with Part 18 of the Uniform Civil Procedure Rules 2005.

The commentaries in the By Lawyers Local Court (NSW) – Acting for the Plaintiff and Local Court (NSW) – Acting for the Defendant publications have been updated accordingly.

Law Practice Certificates – QLD

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Law Practice Certificates are required in personal injury claims and workers’ compensation claims from 31 October 2022.

The Personal Injuries Proceedings and Other Legislation Amendment Act 2022 (QLD) has now fully commenced. The Act has a number of important implications for personal injury proceedings, motor vehicle accident claims, and workers’ compensation claims in Queensland. See the previous By Lawyers News and Updates post: Personal Injuries – QLD.

Claim farming prohibited

The Act amends both the Personal Injuries Proceedings Act 2002 and the Workers’ Compensation and Rehabilitation Act 2003 to address the practice of claim farming.

Claim farming is mainly where a third party approaches potential clients to pressure them into making a compensation claim for personal injuries. Claim farmers sell the clients’ information to a legal practitioner, or claims management service provider, to bring the claim. It can also occur when lawyers make direct approaches to injured persons or inappropriately seek referrals.

Law Practice Certificates

The amendments introduce a requirement for practitioners acting in personal injuries and workers’ compensation matters to certify to claimants and respondents or insurers, at various stages of claims, that claim farming has not occurred.  This certification takes the form of a Law Practice Certificate which must be given to the claimant and the respondent/insurer before the claim commences, or shortly after the lawyer becomes instructed if the claim is already on foot, and at other stages of the proceedings such as when advising on a settlement.

Failing to provide a Law Practice Certificate when required and providing a false or misleading certificate are offences.

The obligation to provide Law Practice Certificates already exists under Division 2A of the Motor Accident Insurance Act 1994. These amendments bring the requirements for common law and workers’ compensation claims into line with motor vehicle accident claims. The form of the certificate previously used for motor accident claims has been replaced with a newly approved version, which must be used for all three types of claims.

Publication updates

Relevant amendments have been made to the commentaries in the By Lawyers Queensland Personal Injury, Workers’ Compensation, and Motor Vehicle Accident Claim publications.

Law Practice Certificate forms are being finalised and will be added to the matter plans shortly.

Common seals – NSW

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Some common seals are not only back, they are here to stay!

From 30 September 2022, owners corporations and community associations can no longer execute documents by signing. Instead, owners corporations and community associations can now only execute documents using either a physical or an electronic form of their common seal.

These new requirements allowing execution via electronic seals replace the previous temporary COVID-19 measures which have applied to both strata and community schemes since June 2020.

Documents that now need to be executed under the entity’s common seals include NSW Land Registry Services instruments and dealings.

There are also new requirements relating to electronic voting at meetings for strata and community schemes. Voting can be done by electronic means and physical attendance is no longer required. However, this only applies if the notice of the meeting specifies an alternate means of voting. If votes can be cast other than in person, then the secretary of the owners corporation, the secretary of the association, or the managing agent must take reasonable steps to ensure each person entitled to vote can in fact vote and participate in the meeting.

The By Lawyers Conveyancing and Property publications, including 1001 Conveyancing Answers (NSW), have been updated accordingly.

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