ByLawyers News and Updates

New Family provision precedents – NSW

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Following an author review, a raft of helpful new Family provision precedents have been added to the By Lawyers Family Provision Claims (NSW) publication.

There is new content on the matter plans in both Acting for the Estate and Acting for the Plaintiff.

The new content includes:

Acting for the Estate – new family provision precedents

  • Letter to eligible person
  • Letter to beneficiary affected by settlement of claim
  • Letter to client enclosing Practice Note SC EQ 7
  • Letter to client after first directions hearing
  • Letter to client enclosing affidavits for signing
  • Letter to client enclosing draft affidavits
  • Letter to witness enclosing affidavit for signing

Acting for the Plaintiff – new family provision precedents

  • Letter to potential claimant
  • Letter to client enclosing Practice Note SC EQ 7
  • Letter to client enclosing settlement deed
  • Authority to settle and receive
  • Direction to pay and authority to receive
  • Letter to client enclosing settlement deed
  • Letter to client after filing claim
  • Letter to defendant serving summons and other documents
  • Letter to client enclosing draft affidavit
  • Letter to client enclosing affidavit for signing
  • Letter to client after first directions hearing
  • Letter to client enclosing estate affidavits
  • Letter to witness enclosing affidavit for signing
  • Letter to client updating costs disclosure
  • Letter to client finalising the matter – Payment
  • Letter to client finalising the matter – No payment

This review and the addition of these new family provision precedents is part of By Lawyers continuing commitment to enhancing our content and helping our subscribers enjoy practice more.

Wills guide reviewed – VIC

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

Subscribers in Victoria using this popular publication will find 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 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
  • Initial letter to client enclosing costs agreement
  • Letter to client to confirming instructions
  • To do list
  • Instructions for signing
  • Letter reminding client that will is ready for signing
Other resources in the Wills guide reviewed

A number of links have been added to the Other trusted and useful resources.  A number of new cases have been included in 101 Succession Answers (VIC). Both of these resources can be found in the Reference materials folder on the matter plan.

Criminal records – Employment – FED

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Commentary on the disclosure of criminal records by job seekers has been added to the By Lawyers Employment guide. This useful enhancement covers ‘spent’ convictions in all Australian jurisdictions.

Employees and job candidates have rights under state legislation except in Victoria, and also under federal legislation, relating to their employer or prospective employer accessing their criminal records.

Employers normally have the right to conduct criminal record checks on current and prospective employees. This generally does not include ‘lapsed’ or ‘spent’ convictions.

All states, except Victoria, have different legislative schemes for convictions that lapse, commonly known as ‘spent’ convictions. Commonwealth crimes fall under federal legislation which also covers the ACT and the Northern Territory.

These legislative schemes prescribe when certain criminal convictions lapse, after which time they may not be used as a basis for making decisions about a person’s employment. This allows offenders to put their past behind them, provided they have had the required law-abiding period.

For example, under s 85ZV of the Crimes Act 1914 (Cth), an organisation is prohibited from taking into account or disclosing to others an individual’s past criminal conviction under federal law if it is defined as having lapsed. An individual is not required to disclose such a conviction when applying for employment. A lapsed conviction is defined as an adult conviction more than ten years old, or a juvenile conviction more than five years old. The maximum penalty for the original offence cannot exceed 30 months imprisonment.

There are exceptions, such as where people are applying for jobs that involve working with children.

For further information on ‘spent’ convictions and employment applications see the By Lawyers Employment guide.

Motor vehicle accidents – NSW

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The statutory scheme for motor vehicle accidents in NSW varies depending upon whether the accident occurred before or after 1 December 2017. The Motor Accidents Compensation Act 1999 applies to accidents before that date. The Motor Accident Injuries Act 2017 applies to accidents that occurred after that date.

A new Motor Accidents Compensation Regulation 2020 commenced on 1 September 2020. It repeals and replaces the Motor Accidents Compensation Regulation 2015. These regulations are under the Motor Accidents Compensation Act 1999 – that is, they relate to claims for motor vehicle accidents which occurred BEFORE 1 December 2017.

By Lawyers Motor vehicle accidents publication has two separate guides to assist practitioners when acting for clients injured in motor accidents under both statutory schemes, before and after 1 December 2017.

The 2020 regulation

The explanatory memorandum for the new 2020 regulation notes:

The object of this Regulation is to remake, with some changes, the Motor Accidents Compensation Regulation 2015, which is repealed on 1 September 2020 by section 10(2) of the Subordinate Legislation Act 1989. The Regulation provides for the following matters—

(a) the maximum costs for legal services provided in connection with claims relating to motor accidents covered by the compulsory third-party insurance scheme under the Motor Accidents Compensation Act 1999,

(b) the circumstances in which a legal practitioner and party may contract out of those maximum costs for legal services (to the extent they are payable on a practitioner and client basis),

(c) the maximum fees for medico-legal services and expert evidence provided in respect of claims,

(d) the assessment of claims by claims assessors,

(e) other matters relating to costs including what is to occur if a claimant fails to attend a medical assessment, the rate of certain travel expenses and providing for GST to be taken into account,  

(f) the maximum amounts payable by insurers for certain treatment provided to claimants,

(g) the classes of motor vehicles that are taken to be subject to an unregistered vehicle permit for the purposes of section 10A (Treatment of certain vehicles for purposes of third-party policy) of the Act,

(h) the time in which an insurer must pay an assessed amount of damages to a claimant,

(i) prescribing the Australian Prudential Regulation Authority as an authority to which protected information may be divulged for the purposes of section 217 (Secrecy of information obtained from or relating to insurers or proposed insurers and other persons) of the Act,

 (j) providing for information about settlement amounts, deductions and amounts paid to claimants to be disclosed to the State Insurance Regulatory Authority by legal practitioners,

 (k) creating a duty for legal practitioners not to give or receive fees or other consideration in respect of referrals in relation to claims,

 (l) savings and transitional matters.

Publication updates

The changes introduced by the 2020 version of the regulations are not substantial. The most significant is the provision, with some exceptions, for the automatic adjustment for inflation of the maximum costs for legal services and maximum fees for medico-legal services.

The By Lawyers Motor Vehicle Accidents – Accidents prior to 1 December 2017 Guide has been updated accordingly.

Retainer instructions – Practice management – All states

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A folder containing ALL of the By Lawyers Retainer Instructions precedents has been added to the Practice Management guide.

One of the most important tasks when acting in all areas of law is taking the initial instructions. At the commencement of the engagement with the client it is crucial to take accurate, comprehensive instructions covering every necessary aspect of the matter, so the scope of the retainer can be agreed, the issues identified and understood and the client properly advised.

Every By Lawyers matter plan has these Retainer Instructions precedents, drafted and refined by experienced practitioners to make this critical process as efficient as possible. They assist practitioners to obtain all relevant information up-front.

To make it easier to access these key precedents, especially when seeing new clients where a file has not yet been opened, all 123 of them are now available from a dedicated Library of retainer instructions in the By Lawyers Practice Management guide, under Folder A: The Practice.

This enhancement will greatly assist our website subscribers, making all the Retainer Instructions available via a single subscription to the Practice Management guide, at no additional cost. For users accessing By Lawyers via the exclusive arrangements with LEAP Legal Software, the availability of these precedents all together in one guide makes it very easy to save or print the relevant Retainer Instructions for any matter type to use in the initial conference with a client even before a dedicated client file is opened.

JobKeeper – updates – FED

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The Federal Government has further amended the JobKeeper extension. These further changes to our previous post are shown in italics.

The employment stimulus package will continue for a further six months until 28 March 2021.

Amendments

There are changes to employer eligibility for JobKeeper and to the payment rates. The additional six-months is divided into two periods:

  • 28 September 2020 to 3 January 2021; and
  • 4 January 2021 to 28 March 2021.

Eligible employers will continue to claim a fortnightly payment of $1,500 per eligible employee until 27 September 2020.

Eligible employees will continue to receive a minimum of $1,500 per fortnight before tax from their employer until 27 September 2020.

From 28 September 2020 the payment rates will be reduced.

Eligibility for employers

From 28 September 2020 to 3 January 2021 businesses with turnover of less than $1 billion must experience a decline in turnover of 30% for the September 2020 quarter only compared to the equivalent 2019 quarter. The employer must have been in an employment relationship with each eligible employee on 1 March 2020 or 1 July 2020 and needs to confirm that they are currently employed. From 4 January 2021 to 28 March 2021, the December 2020 quarter only must fall by the relevant percentage compared to the December 2019 quarter.

JobKeeper payment rates

From 28 September to 3 January 2021 for employees who worked 20 hours or more per week on average in February 2020 or June 2020, employers will receive $1,200 per employee fortnightly. These employees must therefore be paid a minimum of $1,200 fortnightly before tax. For employees who worked less than 20 hours per week on average in February 2020 or June 2020, the employers will receive $750 per employee fortnightly. These employees must therefore be paid a minimum of $750 fortnightly before tax.

From 4 January 2021 to 28 March 2021 the relevant amounts fall from $1,200 to $1,000 and from $750 to $650.

If employees were employed for both February 2020 and June 2020 then the period with the higher number of hours worked is to be used.

More information

The JobKeeper section of the By Lawyers Dealing with COVID-19 Legal Issues – Some practical information commentary has been updated. A link to this helpful resource is available at the top of the matter plan in every By Lawyers guide.

 

Contract of sale of land – VIC

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Conveyancing practitioners would be aware the By Lawyers Contract of sale of land – VIC 2020 is available to website subscribers and LEAP users. The contract is available, at no extra charge to subscribers, in the VIC Conveyancing – Sale of real property publication. The contract was co-authored by Victorian property law guru and long-time By Lawyers author Russell Cocks.

For more information about the By Lawyers contract listen to the podcast Seven reasons to use the By Lawyers Contract of sale of land.

In response to requests from subscribers for greater flexibility when preparing and compiling the By Lawyers Contact of sale of land, the s 32 Vendor statement has been separated out from the contract for those who prefer it so. The following individual precedents have been added to the VIC Conveyancing – Sale of real property matter plan:

  • Contact of sale of land – Part 1 of 2 – Particulars – By Lawyers VIC 2020
  • Section 32 Vendor Statement – By Lawyers VIC
  • Due diligence checklist for home and residential property buyers – Consumer Affairs Victoria

The original precedent Contract of sale of land, with the s 32 Vendor statement included, remains available.

Family violence – WA

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From 6 August 2020 some provisions of the Family Violence Legislation Reform Act 2020 commence, amending the Criminal Code, Sentencing Act 1995, Bail Act 1982 and Restraining Orders Act 1997, among others.

Family violence – Bail considerations

The court may defer consideration of bail for 30 days for an accused charged with an offence where the accused is in a family relationship with the victim, as defined in s 3 of the Bail Act. The purpose of the deferral is to allow the court to determine what, if any, bail conditions should be imposed to enhance the protection of the victim of the alleged offence.

There are additional provisions relating to the interaction of bail conditions and restraining orders.

Family violence – Restraining orders

Sections 3 to 6A of the Restraining Orders Act define all relevant terms used in the Act, including what constitutes ‘family violence’.

Some of the amendments deal with the conduct of family violence proceedings.

The court must enquire as to whether any family law orders are in place for the parties to a restraining order application before the court makes a restraining order. If family law orders are in place, the court must take reasonable steps to obtain a copy or information about the orders and take their terms into account.

At any defended hearing the court is not bound by the rules of evidence and may inform itself on any matter in such a manner as it sees fit: s 44A. This section also specifically makes hearsay evidence admissible.

Victims of family violence may have one or more support person with them when they give evidence.

The court, either on its own motion or at the request of a party, may use CCTV or other screening arrangements for the giving of evidence by any party or witness in restraining order proceedings, subject to consideration of a number of factors set out in s 44E.

More information

The By Lawyers Criminal and Restraining orders guides have been updated accordingly.

Further provisions of the amending Act will commence in October 2020. By Lawyers guides will be further updated when those amendments commence.

JobKeeper – FED

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The Federal Government has confirmed the JobKeeper extension. The employment stimulus package will continue for a further six months until 28 March 2021.

Amendments

There are some changes to employer eligibility for JobKeeper and to the payment rates. The additional six-months is divided into two periods:

  • 28 September 2020 to 3 January 2021; and
  • 4 January 2021 to 28 March 2021.

Eligible employers will continue to claim a fortnightly payment of $1,500 per eligible employee until 27 September 2020.

Eligible employees will continue to receive a minimum of $1,500 per fortnight before tax from their employer until 27 September 2020.

From 28 September 2020 the payment rates will be reduced.

Eligibility for employers

From 28 September 2020 to 3 January 2021 businesses with turnover of less than $1 billion must experience a decline in turnover of 30% for each of the June and September quarters compared to their equivalent 2019 quarters. The employer must have been in an employment relationship with each eligible employee on 1 March 2020 and needs to confirm that they are currently employed. From 4 January 2021 to 28 March 2021, the December 2020 quarter must also have fallen by the relevant percentage compared to the December 2019 quarter.

JobKeeper payment rates

From 28 September to 3 January 2021 for employees who worked 20 hours or more per week on average in February 2020, employers will receive $1,200 per employee fortnightly. These employees must therefore be paid a minimum of $1,200 fortnightly before tax. For employees who worked less than 20 hours per week on average in February 2020, the employers will receive $750 per employee fortnightly. These employees must therefore be paid a minimum of $750 fortnightly before tax.

From 4 January 2021 to 28 March 2021 the relevant amounts fall from $1,200 to $1,000 and $750 to $650.

More information

The JobKeeper section of the By Lawyers Dealing with COVID-19 Legal Issues – Some practical information commentary has been updated. A link to this helpful resource is available at the top of the matter plan in every By Lawyers guide.

Electronic conveyancing – SA

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From 3 August 2020, electronic conveyancing takes a big step forward in South Australia.

From that date, electronic lodgement of the following documents with Land Services SA will be mandatory:

  • Transfer
  • Caveat
  • Withdrawal of Caveat
  • Encumbrance
  • Discharge of Encumbrance
  • Transmission Application
  • Application to Register Death by Survivor
  • Lease
  • Surrender of Lease
  • Underlease
  • Surrender of Underlease
  • Transfer of Mortgage
  • Transfer of Encumbrance.

There are now two Electronic Lodgement Network Operators (ELNOs) active in South Australia – Sympli and PEXA. Sympli have been approved for transfers, caveats, withdrawal of caveats, mortgages and discharge of mortgages in SA. Practitioners can use either or both for their electronic conveyancing requirements.

 

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