ByLawyers News and Updates

Assisting clients to manage their affairs – All states

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Assisting clients to manage their affairs

With the threat and uncertainty surrounding the Coronavirus many practitioners will be asked to prepare documents assisting clients to manage their affairs should the need arise.

By Lawyers commentary and precedents for Wills, Powers of Attorney, Guardianship and Directives across every state of Australia are available to help practitioners to respond to these requests.

In brief:

  • A will provides for the administration and distribution of a person’s property in the event of their death.
  • A power of attorney enables a person to empower someone they trust to conduct their legal and financial affairs on request. However, this power ceases should the principal lose capacity to authorise its use. This power can be witnessed by any adult.
  • An enduring power of attorney enables a person to empower someone they trust to conduct their legal and financial affairs without specific authorisation should the principal become unable to conduct their own affairs. Note: This power requires specific witnessing.
  • An enduring guardian or a medical power or an advance care directive. These powers are similar to an enduring power of attorney in that they allow a person to choose someone they trust to manage their health and lifestyle decisions, but not their financial affairs, should they become unable to do so themselves.

Helpful resources

The By Lawyers Wills publications provide detailed retainer instructions which can also be signed as an informal will in emergency situations should the need arise. Otherwise a will should be witnessed by two uninterested parties over the age of 18. The By Lawyers publication provides signing clauses for wills by handicapped, blind, non-English speaking and illiterate testators.

Detailed signing instructions are available and can be emailed to the client with the will should personal attendance at the office be difficult or undesirable.

The guides contain a full suite of wills for single people, people with a partner and for people with blended families. There are testamentary trust wills as well as international wills.

Practitioners will also find a full suite of the other important estate planning documents, for both financial and health & lifestyle matters.

There are practical and detailed commentaries to assist the practitioner to quickly and efficiently advise their clients on any issue of concern to them.  The retainer instructions and ‘to do’ lists ensure thorough and complete attention to all relevant considerations.

For further information

Please don’t hesitate to contact us at askus@bylawyers.com.au

Family provision claims – Acting for the Plaintiff (NSW)

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A full review of the By Lawyers Family provision claims – Acting for the plaintiff guide has been conducted.

The review ensures that all content is in line with current law and practice.

Improved content and new precedents

Updates and enhancements include:

  • a re-organised and streamlined commentary that better caters for current practice;
  • additional assistance to help the practitioner get the matter underway;
  • enhanced commentary on preparing for and attending at mediation;
  • an updated matter plan that includes links to important sections of the commentary; and
  • six new precedents – additional initial letters which cater for different circumstances regarding the estate.

101 Succession Answers (NSW)

Subscribers are reminded that the By Lawyers reference manual 101 Succession Answers (NSW) also has a large and helpful section on Family provision claims. This includes many links to relevant sections of the legislation, plus links to leading and recent cases on various aspects of Family provision claims.

101 Succession Answers (NSW) is found at the top of the Family provision claims – Acting for the plaintiff matter plan and also in the Reference materials folder.

Keep up to date with By Lawyers

These updates to our Family provision claims – Acting for the plaintiff guide, and the regular updates to 101 Succession Answers (NSW) with the latest cases on Family provision claims, are part of By Lawyers commitment to the continual enhancement of our publications. By Lawyers subscribers can be confident that their guides and precedents are always kept up to date so they can enjoy practice more.

CLE/CPD requirements – All states

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Timely compliance with CLE/CPD requirements has suddenly become a challenge for many small law firms. This is a result of the cancellation of seminars due to COVID-19.

With their ability to attend external events unexpectedly curtailed, the burden of professional education has reverted to firms to manage in-house. And they must do so within the strictures of remaining safe from virus risks.

Fortunately, By Lawyers can make this assist.

In-house training for CLE/CPD requirements

The By Lawyers guides are a great resource for professional education.

Whether in the office or working from home, lawyers can:

  • Read the By Lawyers Commentaries – whether relevant to their current matters, or in areas of law that they seek to brush-up on, or move into;
  • Delve into the By Lawyers Reference manuals, such as 1001 Conveyancing Answers, 101 Family Law Answers or 101 Subpoena Answers – providing detailed information and current case law related to specific client issues, or general legal concepts;
  • Review and practice drafting more complex documents in various areas of law, using By Lawyers precedents – such as an affidavit and example content in a litigation matter type;
  • Have a ‘Q & A’ session with a colleague by email or video-link – where each lawyer raises questions about practice and procedure or points of law for the other person to answer from the By Lawyers guides;
  • Present to the other members of the firm on-line by referencing or screen-sharing the relevant By Lawyers guide.

Even the compulsory units on practice management and business skills can be addressed via the By Lawyers Practice Management Guide and the related Reference Manual 101 Policies and Procedures. With sections on ethics, business planning and financial management, lawyers can use these resources to present to their colleagues or read for their own benefit.

The breadth, depth and easy accessibility of By Lawyers content makes it easy for firms to comply with in-house CLE/CPD requirements under their own steam, in any way that suits them.

These are tough times for everyone; lawyers in legal practices included. Complying with the relevant CLE/CPD requirements is a real challenge. By Lawyers makes it easier.

Overriding purpose – Litigation – QLD

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New case added to Queensland litigation guides

All six of the By Lawyers Queensland litigation guides have been updated to provide a link to a recent case on the importance of the ‘Overriding purpose’ provision of the UCPR and the costs sanctions that might apply where it is breached.

The ‘Overriding purpose’

Rule 5 of the Uniform Civil Procedure Rules 1999 (Qld) provides that the overriding purpose of the rules is to provide for the expeditious resolution of the real issues in civil proceedings at a minimum of expense. That requires the courts to have the objective of avoiding undue delay, expense and technicality.

Under Rule 5 all parties to proceedings impliedly undertake to conduct their case in an expeditious way. Where they breach this undertaking, the court may dismiss the proceedings or apply costs sanctions. Francis v MSF Sugar Limited [2020] QSC 16 is a stark example of the court doing so.

Costs sanctions

In making indemnity costs orders in favour of the plaintiff in this case, the court noted:

[23] The defendant has conducted itself in this court quite unreasonably – failing to disclose directly relevant documents until the eve of the trial and pleading matters that were false,
according to its own records, and which it could not prove by admissible evidence. This unreasonable conduct has caused the plaintiff to incur unnecessary costs, including costs
thrown away by yesterday’s adjournment and today’s application and short adjournment. It also likely delayed the determination of the plaintiff’s claim and prevented the matter
resolving on an agreed basis without the need for a trial.

Publication updates

The commentary in each of the By Lawyers Queensland litigation guides already highlights the importance of the Overriding purpose provisions. This useful new case illustrates the court’s approach to compliance with Rule 5 and the possible sanctions that will be applied. it has been added to each of the Acting for the Plaintiff and Acting for the Defendant guides in the By Lawyers Supreme Court, District Court and Magistrates Court publications.

 

Annualised salaries – Employment- FED

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From 1 March 2020, new clauses for annualised salaries commence in 21 modern awards. These have broad coverage, including for white-collar industries, such as the Clerks – Private Sector Award 2010, Legal Services Award 2010 and the Banking, Finance and Insurance Industry Award 2010. The commentary in the By Lawyers Employment law guide has been updated accordingly.

An annualised salaries clauses enables an ‘annualised wage arrangement’ to be made in a modern award. Employers can choose to annualise an employee’s wages over a 12 month period. This means they pay a fixed amount in satisfaction of the modern award requirements. The fixed amount includes all entitlements such as weekly pay, allowances, overtime rates, other penalty rates and annual leave loading.

Not all modern awards contain arrangements for annualised salaries. For those that do, an annualised payment clause applies with some variation depending on the industry.

Annualised salary clauses apply only to full-time employees. However they have no effect where a full‑time employee is being paid standard wages and benefits in accordance with the applicable award. They only apply to an ‘annualised wage arrangement’.

The annualised wage must be no less than the amount the employee would have received under the award for the work performed over the year for which the wage is paid.

When making arrangements for annualised salaries under the applicable modern awards, employers are required to comply with requirements for notification, record keeping and wage reconciliation.

See the By Lawyers Employment law guide for more information on the new clauses, the modern awards to which they apply and the employer requirements.

By Lawyers are committed to always keeping our subscribers up-to-date.

Guardianship – VIC

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Changes to guardianship legislation in Victoria commence on 1 March 2020.

The Guardianship and Administration Act 2019 repeals and replaces the Guardianship and Administration Act 1986 from 1 March 2020.

Described by Attorney-General Jill Hennessy as ‘the biggest changes to Victoria’s guardianship and administration laws in more than 30 years‘, the amendments are aimed at ensuring greater protections for adults with a disability who have impaired capacity to make and participate in decisions that affect their lives.

As a result of the new legislation commentaries in the following By Lawyers Guides have been updated:

  • Probate;
  • Letters of Administration;
  • Wills;
  • Powers and Advance Care Directives;
  • County Court – Acting for the plaintiff and Acting for the defendant;
  • Magistrates Court – Acting for the plaintiff;
  • Supreme Court – Acting for the plaintiff and Acting for the defendant; and
  • Personal Injury.

When announcing the amendments, the Attorney General stated that: ‘The changes reflect a more modern understanding of decision-making capacity and disability, and ensure that a person’s will and preferences are followed where possible and appropriate.’

The updates to our Guides were overseen by our highly experienced author Rossyln Curnow.

By Lawyers are committed to always keeping our subscribers up-to-date.

Sunset clause – Conveyancing – VIC

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From 1 March 2020, a sunset clause in a residential off the plan contract must include the statement set out in s 10F (1) of the Sale of Land Act 1962.

The By Lawyers Conveyancing (VIC) Guide, which includes the By Lawyers Contract of Sale of Land, has been updated accordingly. The amendments are:

  • New content added to Sale and Purchase Commentaries and 1001 Conveyancing Answers;
  • Notice required by new s 10F (1) of the Sale of Land Act 1962 added to General Condition 9(a) of Part 2 of the By Lawyers Contract and special condition ‘Subdivision – Sale subject to Subdivision’ in the library of special conditions.

The By Lawyers Contract of Sale of Land is available to all LEAP users until 30 June 2020. Beyond that date it will remain available to LEAP users who have By Lawyers as a companion product to their LEAP or LEAP Conveyancer subscription. It can also be accessed by non-LEAP users through InfoTrack or the By Lawyers website by subscribing to our Victorian Conveyancing publication, which has many associated benefits such as full access to 1001 Conveyancing Answers.

For further information, see our previous post Seven reasons to use the By Lawyers contract.

The By Lawyers legal and editorial teams ensure that the contract is immediately brought up to date with any changes in law or practice.

By Lawyers always keeps you up to date so you can enjoy practice more.

 

Priority property pools – Family Law – FED

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‘Priority property pools’, where the matrimonial assets are valued at less than $500,000 are the subject of new arrangements in the Federal Circuit Court.

The Brisbane, Parramatta, Adelaide and Melbourne registries of the Federal Circuit Court have implemented a new regime for applications for property and spousal maintenance filed after 1 March 2020. It targets net asset pools of less than $500,000 including superannuation interests – called Priority property pools (‘PPP500’). The new procedure applies where:

  • there are no entities such as a family trust, company, or self-managed superannuation fund that might require valuation or expert investigation; and
  • the case is only financial, not involving other matters such as parenting orders or enforcement.

An Initiating Application is required, along with the PPP500 Financial Summary document. No affidavit or financial statement is required.

Prior to the first court date, the registry will make case management orders. These may include financial disclosure, alternative dispute resolution, valuations, the filing of affidavits in relation to any interim issues and affording procedural fairness to the trustee of any superannuation fund if a split is sought.

The first court date will be before a registrar and will focus on case assessment and preparations for alternative dispute resolution. If required, urgent issues will be referred to a judge.

The alternative dispute resolution that follows will involve either an internal conciliation conference or external mediation. If agreement is reached, orders can be made by the registrar after the conciliation conference, or by submitting orders to the court.

If no agreement is reached, the registrar will check and re-settle the balance sheet and refer the matter to a judge.

The process to this point is intended to take no more than 90 days.

The matter will then proceed before a judge in the traditional manner, with directions for filing of affidavit material and other directions for hearing.

The By Lawyers Property Settlement guide has been updated accordingly.

Out of time claims – Workers Comp – NSW

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Out of time claims under the Workers Compensation Act 1987 were considered in the recent Supreme Court decision of Hole v Gregory Ronald Lyons trading as Greg Lyons Building Constructions [2020] NSWSC 102.

Section 151D (2) of the Act provides that common law claims must be brought within 3 years of the date of injury. Out of time claims require the leave of the court in which the claim is brought. In Hole, Button J granted leave to commence proceedings some four years out of time on the basis that the plaintiff had adequately explained the delay.

Interestingly, the essence of the explanation was the plaintiff’s extended engagement in the claims process under the Workplace Injury Management and Workers Compensation Act 1998. The Court noted that: ‘…there is a whole structure, external to the Court in which litigation is to commence, in which one must engage in an effort to have the matter resolved away from Court.’

In that context, the Court also noted that this was not a case where anybody involved in the litigation was ‘taken by surprise‘, or prejudiced by the delay.

In its consideration of the matter the Court followed the principles relating to a grant of leave for out of time claims set out in Smith v Grant [2006] NSWCA 244.

These helpful cases have been added to the By Lawyers Workers Compensation (NSW) Guide. A link to s 151D has also been added to the Retainer Instructions precedent on the matter plan in that Guide.

‘To do’ list – Family provision claims – NSW

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New precedent ‘To do’ lists have been added to the By Lawyers Family Provision Claims – Acting for the plaintiff and Acting for the estate Guides for NSW.

Many subscribers would be familiar with By Lawyers helpful ‘To do’ lists, which serve as a checklist for progress through the matter. The ‘To do’ list ensures no critical steps are missed and allows practitioners to mark-off each step and make sure they know where the matter is up to.

The new ‘To do’ lists for Family Provision claims prompts for each of the critical steps at each stage of the matter, namely:

  • Getting the matter underway – including costs disclosure
  • Settling it early – initial offers of settlement
  • The claim – preparing and filing the summons and plaintiff’s affidavit OR notice of appearance and notice to eligible persons
  • The first directions hearing
  • Mediation
  • Next directions hearing
  • Preparation for hearing
  • Hearing
  • After hearing – including advice on appeal rights.

These new precedents will assist lawyers in Family Provision claims to manage their matters, whether acting for the claimant or the estate.

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