ByLawyers News and Updates

Compensation indexation – NSW

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Various amendments for compensation indexation have been applied to the By Lawyers Injuries publications in New South Wales.

Each year on 1 October the various statutory compensation schemes and legislative caps have indexation applied to the maximum amounts recoverable by injured persons.  For 2022 these changes are contained in the following pieces of subordinate legislation:

  • Civil Liability (Non-economic Loss) Amendment Order 2022
  • Motor Accident Injuries (Indexation) Amendment Order (No 2) 2022
  • Motor Accidents (Determination of Non-Economic Loss) Amendment Order 2022
  • Motor Accidents Compensation (Determination of Loss) Order 2022
  • Workers Compensation (Indexation) Amendment Order (No 3) 2022

Wherever applicable, the commentary and precedents – particularly the Retainer instructions precedents – have been updated for these changes in the following By Lawyers publications:

By Lawyers always update our publications for statutory indexing. This typically occurs in most jurisdictions on 1 January, 1 July, and, as in the case of NSW injuries legislation, 1 October each year.

Family Court Act – WA

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The Family Court Act 1997 (WA) has been amended to reflect recent changes to Commonwealth family law legislation and facilitate the exercise of federal jurisdiction by the Family Court of Western Australia.

The combined WA and Federal amendments provide for the exercise by the Family Court of Western Australia of federal jurisdiction in family law property proceedings to:

  • determine the superannuation interests of separating de facto couples; and
  • hear bankruptcy proceedings concurrently with family law proceedings, where appropriate.

Superannuation splitting

The Commonwealth family law legislation has allowed the superannuation interests of married parties in proceedings before the previous Family Court of Australia, now the Federal Family and Circuit Court of Australia, to be treated as property for distribution since 2001. However, this was restricted to parties to the breakdown of a marriage.

The Family Court Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Act 2020 (Cth) inserts a new Part VlllC into the Family Law Act 1975 (Cth). This section provides for the distribution of superannuation entitlements between separating de facto couples in the Family Court of Western Australia. It allows superannuation matters under the Family Law Act 1975 (Cth) to be heard concurrently with other matters under the property provisions of the Family Court Act 1997 (WA).

Bankruptcy jurisdiction

The Family Court Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Act 2020 (Cth) also amends the Bankruptcy Act 1966 (Cth) to enable bankruptcy matters related to de facto couples to be heard by the Family Court of Western Australia in conjunction with family law proceedings. This is possible where:

(a) a party to a marriage or de facto relationship is bankrupt, and the trustee of the bankrupt’s estate is a party or an applicant in property settlement or spousal maintenance proceedings; or

(b) proceedings before the Federal Court or the Federal Circuit Court are transferred to the Family Court of Western Australia.

The Commonwealth Act also provides that appeals about concurrent family law and bankruptcy proceedings for Western Australian de facto couples will mirror existing appeal pathways for married and de facto couples in other jurisdictions.

The By Lawyers Family Law publications have been amended accordingly.

Bail amendments – WA

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Bail amendments under the Bail Amendment Act 2022 received assent and commenced on 3 September 2022.

The Bail Act 1982 has been amended in a number of small but important respects, aimed mainly at better protecting the safety and welfare of victims of child sexual offences.

These latest bail amendments include:

  • provision ensuring that a person charged with a serious offence cannot be released without bail;
  • deleting the definition of serious offence under s 6A of the Act, so that the definition of serious offence in s 3 applies throughout the Act. This means that all serious offences are now listed in Schedule 2 of the Act, with the sole exception of the offence of breaching bail under s 51(2a) of the Act;
  • highlighting the capacity of bail decision makers to defer bail under s 9 to inform protective bail conditions in cases involving alleged sexual offences against children;
  • requiring bail decision makers to consider the conduct of the accused towards any alleged victim of the current offences and any victim of an offence the accused has previously been convicted of including any conduct towards the victim’s family;
  • requiring bail decision makers to take into account specific additional considerations that are specific to bail in cases involving alleged sexual offences against child victims;
  • requiring judicial officers to consider the fact that a person has been convicted of an offence and any sentence that is likely to be imposed when determining bail for an accused awaiting sentencing; and
  • expanding the list of serious offences under Schedule 2 to the Act. This means that a broader category of accused persons charged with serious offences while already on bail or on early release for another serious offence will bear the onus of satisfying the court
    that there are exceptional reasons why they should not be kept in custody.

The commentary on bail and the Retainer instructions – Bail precedent in the By Lawyers Magistrates Court (WA) – Criminal publication have been updated to reflect these bail amendments.

Magistrates’ Court appearances – VIC

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All Magistrates’ Court appearances and counter services from 12 September 2022 will be subject to the arrangements set out in Practice Direction No 6 of 2022.

The practice direction applies to both criminal and civil matters, including intervention orders and specialist courts and programs.

COVID recovery arrangements made permanent

Essentially the temporary COVID recovery arrangements previously in place under Practice Direction No. 3 of 2022 have been made permanent, with that practice direction revoked.

In general, remote appearances by clients and practitioners are available, encouraged, and in some cases required. However, physical appearances are also possible, mainly by request, and in some cases they are required.

The new practice direction sets out detailed arrangements for all types of Magistrates’ Court appearances, including:

Criminal matters

  • accused on bail or summons;
  • bail applications and other hearings with the accused in custody;
  • criminal mentions and applications;
  • specialist courts and programs;

Intervention Orders

  • applications;
  • hearings;

Civil matters

  • applications, directions hearings, pre-hearing conferences, early neutral evaluations and judicial resolution conferences are all to be conducted online, unless otherwise directed by the Court;
  • final hearings may be online or in person at the court’s direction.

For online appearances it is the practitioner’s responsibility to ensure that they and their client are able to join the online hearing with audio visual capability.

Magistrates’ Court publication updates

The following By Lawyers Victorian publications have been updated accordingly:

  • Magistrates’ Court – Criminal
  • Magistrates’ Court – Traffic offences
  • Intervention orders
  • Magistrates’ Court Civil – Acting for the plaintiff
  • Magistrates’ Court Civil – Acting for the Defendant
  • Dealing with COVID-19 legal issues

Conveyancing regulation – NSW

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The new Conveyancing (Sale of Land) Regulation 2022 commenced on 1 September 2022. It replaces the Conveyancing (Sale of Land) Regulation 2017. No new disclosure requirements arise from the 2022 regulations. Generally the 2022 regulations adopt simple and modern language, removing outdated legislative references.

The 2022 regulations maintain the objectives of the 2017 regulations. Small amendments clarify the disclosure requirements for contracts arising from options. Other minor insertions confirm that cooling off periods do not apply to put options. Part 5 of the regulations consolidates the circumstances entitling a purchaser to rescind a contract or option deed.

Off the plan contract disclosure requirements

Schedule 1 contains a new Part 2 listing additional disclosure requirements for off the plan contracts. Regulation 13(1) states that the documents listed in Part 2 of Schedule 1 are prescribed, and must be included in a disclosure statement for an off the plan contract. These prescribed documents relate to the land to be subdivided, and the development of the land. Examples include:

  • a proposed schedule of finishes;
  • draft by-laws for a strata scheme;
  • draft section 88B instrument;
  • draft building management statement;
  • draft strata management statement.

Cooling off periods for options

Regulation 17(3) confirms that cooling off periods do not apply to contracts arising from a put option. Call options have always been exempt from cooling off periods under section 66T of the Conveyancing Act 1919. In BP7 Pty Ltd v Gavancorp Pty Ltd [2021] NSWSC 265, a purchaser resisted the exercise of a put option against them. Section 66T gave no cooling off rights to options able to be taken to purchase certain property. The court found a put option to be an option to compel the purchase of land, and not in the same character as an option exempted under section 66T. Regulation 17(3) now extends the section 66T exemption to both put and call options.

When purchasers may rescind

Part 5 sets out when a purchaser may rescind a contract or option, and the conditions required for a valid rescission in certain circumstances.

Transition period

Under regulation 26, the transition period runs from 1 September 2022 to 1 March 2023. Anything done in compliance with the 2017 regulations before 28 February 2023 will be taken to comply with the 2022 regulations.

The By Lawyers Purchase of Real Property, Sale of Real Property, and 1001 Conveyancing Answers (NSW) guides have been updated to reflect the new regulations.

Joint criminal rules – SA

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Criminal procedure in the SA Magistrates Court has been overhauled with the commencement of the Joint Criminal Rules 2022 and the Uniform Special Statutory Rules 2022 on 29 August 2022. At the same time, the CourtSA criminal portal has gone live, for online filing and case management.

The By Lawyers Magistrates Court (SA) – Criminal, Traffic Offences and Intervention Orders guides have been extensively updated to reflect the new rules and procedures.

New rules

The Magistrates Court Act 1991, the Joint Criminal Rules 2022 and the Uniform Special Statutory Rules 2022 provide the framework for the way criminal, or criminal-related, matters are dealt with, including the commencement of proceedings.

The Joint Criminal Rules 2022 or the Uniform Special Statutory Rules 2022 govern all actions commenced in the Criminal Division and Petty Sessions Division of the Magistrates Court, other than the review of certain decisions made by the Chief Recovery Officer. They also apply to steps in proceedings taken on or after the commencement date.

The previous rules, the Magistrates Court Rules 1992 (Criminal), continue to govern steps in a proceeding taken before the commencement date.

All forms associated with the new rules will be added to the matter plans shortly.

Elder abuse proceedings

The Magistrates Court also has jurisdiction under Part 4 Division 6 of the Ageing and Adult Safeguarding Act 1995 with respect to applications by the Director of the Office for Ageing Well for orders preventing elder abuse, or proceedings for alleged contraventions of such orders. The matters are now dealt with in the Civil (General Claims) Division of the Magistrates Court. See the By Lawyers Intervention Orders commentary for further detail on elder abuse orders.

Changes to criminal procedure

The Information

The Joint Criminal Rules require that an Information be accompanied by a summary of the allegations with respect to each count, an antecedent report, or a document combining the two, any applicable bail agreement or details of bail, and a Notice relating to the highest charge category.

The new rules also require the information to identify whether the matter is a priority proceeding, which applies to the highest charge category.

The order of charge categories is:

  • major indictable;
  • Commonwealth indictable;
  • minor indictable;
  • summary; and
  • summary not punishable by imprisonment.

Depending on the nature of the most serious charge, an Information is also to be served with certain forms that may be filed by the defendant, including a Written Guilty Plea and Election for Trial in the District Court. The requirement to disclosure this additional information ensures compliance with s 105 of the Criminal Procedure Act 1921.

Defence disclosure

There are also new defence disclosure requirements when the prosecution has complied with its own obligations. Where the charge being heard in the Magistrates Court includes an indictable offence, the new rules provide that s 134 of the Criminal Procedure Act applies, as modified by the Joint Criminal Rules, in particular r 75.5.

In effect, if the prosecution makes an application supported by an affidavit stating it has no existing but unfulfilled obligations of disclosure to the defence, then the court has the power to order that a defendant disclose if it intends to adduce evidence at trial in relation to:

  • fitness to stand trial;
  • acting for a defensive purpose;
  • acting under provocation;
  • acting under automatism;
  • whether the alleged offence occurred by accident;
  • acting out of necessity;
  • acting under duress;
  • acting under a claim of right;
  • acting under intoxication.

The prosecution can make such an application up until 28 days before the trial date.

Initial adjournment

Under the previous rules, the court’s directions provided for an initial adjournment but generally required a defendant to indicate at the second appearance whether they intend to enter a plea of guilty or not guilty.

It is uncertain whether the court will treat matters commenced under the Joint Criminal Rules any differently. The Joint Criminal Rules appear to leave open the possibility that a plea will not be entered on the first occasion. See r 65.1 and the general power to adjourn under r 38.1.

County Court – VIC

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The County Court Commercial Division Omnibus Practice Note PNCO 2-2022 came into operation on 1 August 2022.

The new Commercial List Practice Note is largely a consolidation of all the previous practice notes for the division into a single omnibus practice note.

The main changes are in relation to the introduction of electronic processes for discovery, affidavits, and subpoenas.

The Court has also issued a Notice to practitioners regarding the Commercial Division Standard Orders Booklet 2022, also released on 1 August and to be read in conjunction with the new practice note. This collection of the court’s required content and format for consent orders is to be consulted by parties drafting consent orders to be submitted to the Court.

The By Lawyers VIC Litigation guides County Court – Acting for the plaintiff and County Court – Acting for the defendant have been updated accordingly, with references and links to the new omnibus practice note and standard orders booklet in the commentary. There are no new forms or precedents required.

Additional updates have also been made to the commentaries for new Common Law practice notes that have been released recently.  The Court’s Common Law division has not consolidated its practice notes into a single omnibus practice note at this stage.

Personal injuries – QLD

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The Personal Injuries Proceedings and Other Legislation Amendment Act 2022 (QLD) has a number of important implications for personal injuries proceedings, motor vehicle accident claims, and workers compensation claims in Queensland.

Costs for speculative personal injuries claims

Sections 346 and 347 of the Legal Profession Act  2007 (QLD) are amended to provide that certain items, including interest and credit facility fees, are included as legal costs rather than disbursements for the purpose of the maximum payment permissible for the conduct of a speculative personal injury claim. Counsel’s fees are generally excluded from these items, if counsel’s services are provided after the notice of claim is given, or urgent proceedings are commenced.

Section 347(8) defines the relevant additional items, which can include any disbursements prescribed by regulation.

Workers’ compensation – terminal condition claims

The Amending Act reinstates a time frame in s 39A of the Workers’ Compensation and Rehabilitation Act 2003 which defines a terminal condition for the purpose of a worker’s compensation claim. For injuries from 1 July 2022 a terminal condition of a worker is one that a doctor certifies is expected to terminate the worker’s life within five years after the diagnosis. The insurer still needs to accept the doctor’s diagnosis, otherwise, there will be a dispute over whether the condition is terminal or not.

Claim farming prohibited

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

Claim farming is 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.

The Act introduces 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. A breach is a criminal offence. These provisions effectively already exist for claims under the Motor Accident Insurance Act 1994. The commencement of these provisions, and the approved form for Law Practice Certificates, await proclamation.

Publication updates

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

Transport Accident Claims – VIC

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Amendments that extend entitlements to compensation under the transport accident claims legislation have commenced.

Part 3 of the Road Safety Legislation Amendment Act 2022  commenced on 6 July 2022. It amends the Transport Accident Act 1986 to extend benefits for claimants and their supporting families. The definition of a dependent child is amended to include a child who is under the age of 18 years, rather than 16 years. The definition of an immediate family member is amended to include a grandchild, alongside a partner, parent, grandparent, child, and sibling.

The extension of the definitions means that family counseling is available for the grandchildren of grandparents severely injured or killed in a transport accident. Claims can also be made for travel or accommodation expenses for grandchildren visiting their injured grandparent in hospital after a transport accident or attending the funeral of their, grandparent killed in a transport accident and to provide a replacement carer if the grandparent was the primary carer for the grandchild.

New provisions have been added to the Transport Accident Act that deal with the pre-accident weekly earnings for various types of earners who were, immediately before a transport accident, already receiving a weekly payment in respect of total or partial loss of earnings suffered as a result of, or materially contributed to by, an injury resulting from a previous transport accident.

The amending Act also clarifies the Transport Accident Commission’s capacity to disclose information to other statutory agencies and expands its ability to prosecute fraud offences committed with respect to transport accident claims.

The full commentary in the By Lawyers Transport Accident Claims (VIC) publication has been updated accordingly.

Unrelated provisions of the amending Act which affect the Road Safety Act 1986 have not yet commenced. These will be the subject of further update and publication amendments in due course.

Death certificates – VIC

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There is a new process for issuing death certificates in Victoria from 11 July 2022. However, effectively nothing changes from the point of view of an application for Probate or Letters of Administration.

Under the new process there are now two death certificates issued by the Registry of Births, Deaths and Marriages:

  • Death certificate; and
  • Death certificate – Cause of death.

The difference is, as the names suggest, that the Death certificate does not include the cause of death, whereas the Death certificate – Cause of death does. Previously the death certificate always had the cause of death on it, unless the death was being investigated by the coroner, in which case no death certificate would issue until the coroner’s finding.

While both certificates will usually now be issued, if the death is being investigated by the coroner the Death certificate – Cause of death will be withheld until the coroner’s finding. Once the coroner has reported, a Death certificate – cause of death will be automatically sent to the applicant. The new Death certificate excludes the cause of death and burial information, is available immediately, and will generally be accepted for administration processes at banks, government entities and utility companies, allowing families to start managing a deceased estate quickly.

The Supreme Court registry has advised that the Death certificate – Cause of death must be filed with any application for probate or letters of administration. See the Court’s website for more information. From 11 July 2022, a certified copy of the Death Certificate – Cause of death must be exhibited to the affidavit in support of the application.

Superannuation and insurance companies will also likely continue to require a death certificate that includes the cause of death.

The By Lawyers Estates publication has been updated accordingly.

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