ByLawyers News and Updates

Sentencing amendments – Criminal law – NSW

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Important sentencing amendments commenced in NSW courts on 24 September 2018, under the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 which amends the Crimes (Sentencing Procedure) Act 1999.

The cumulative effect of the amendments is a significant overhaul of sentencing options in all courts, the likes of which has not occurred since the Crimes (Sentencing Procedure) Act 1999 was introduced. The stated intent of the sentencing amendments is to reduce the number of offenders in custody by replacing largely unsupervised sentencing options with highly supervised ones, thereby having fewer people in gaol for breaches of bonds/orders. Whether the legislation achieves its aims remains to be seen, but practitioners need to be on top of the changes from today.

The amendments include:

Intensive Correction Orders (already existing) – substantially augmented and strengthened.

  • Available for all offenders sentenced to any custodial penalty up to 2 years (except for certain serious offences).
  • Mandatory supervision for all Intensive Correction Orders and can include conditions such as home detention.
  • Home Detention abolished as a stand-alone penalty.
  • Suspended sentence (s 12 bond) abolished.
  • Pre-sentence report (now called an Assessment report) mandatory.

Community Correction Orders introduced – replaces bonds under s 9

  • Good Behaviour Bonds (s 9) abolished.
  • Mandatory supervision for all Community Correction Orders and can include conditions such as community work.
  • Community Service Orders abolished.
  • Pre-sentence report (now called an Assessment report) not mandatory.

Community Release Orders introduced – replaces bonds under s 10(1)(b)

  • Bonds under s 10(1)(b) (without conviction) abolished.
  • Community Release Orders can be without conviction at the court’s discretion.
  • Conditions available for Intensive Correction Orders and Community Correction Orders are not available for Community Release Orders.
  • Pre-sentence report (now called an Assessment report) not mandatory.
  • Presumption that domestic violence offenders will receive only custody, or a supervised order, not Community Release Orders.

The By Lawyers Criminal (NSW) Guide has been updated to deal with these amendments in an easily understandable way.

A full description of the sale and purchase process – Conveyancing – NSW

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By Lawyers is pleased to announce the publication of new reference materials within our Conveyancing Guides which provide a full description of the conveyancing process for both sale and purchase. These descriptions provide details on the procedure to follow when conducting a sale or purchase, using the precedents available in the By Lawyers Conveyancing (NSW) Guides, together with LEAP and InfoTrack.

The full descriptions follow the typical progression of a residential sale or purchase and include screen shots to assist with the procedural aspects of running the matter in LEAP. These descriptions are not intended to be a substitute for our comprehensive Conveyancing commentaries, or the detailed Matter Plans and To Do lists provided in our Guides – rather they are intended to be complementary, providing the user with more detailed explanations on the very practical aspects of running a conveyancing matter from start to finish.

Areas covered include:

  • How to open a file;
  • How and when to order quality and title searches;
  • How to create the contract with the correct order of documents;
  • How and when to enter matter information into LEAP;
  • Arranging an exchange;
  • Completing settlement figures and directions – adjusting council rates, water, sewerage, strata.
  • Preparing for settlement – both paper and electronic.
  • Post-settlement procedure.

While these new resources are ideally suited to those with little or no hands-on experience with conducting conveyancing matters, they will also be of benefit to those unfamiliar with running conveyancing matters in LEAP, or who need to step in and conduct a conveyancing file for another team member who is on leave.

Another great advantage provided by these full descriptions is the ability to delegate conveyancing tasks to junior staff and have them understand the conveyancing process without having to direct them every step of the way.

Like all of the practical resources in the By Lawyers Conveyancing Guides, these new reference materials provide firms not currently taking on conveyancing work the ability to do so easily.

Mandatory electronic lodgement- Conveyancing – VIC

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Mandatory electronic lodgement applies in Victoria from 1 October 2018. Are you ready?

Legal practitioners and licensed conveyancers acting in a transfer, mortgage/discharge of mortgage, or caveat/withdrawal of caveat, from that date must lodge the transaction electronically.

From 1st October 2018, the Registrar will not generally accept paper lodgement of any of the above instruments. However, the Registrar will accept paper lodgement if an instrument cannot be lodged electronically for any of the reasons set out in the Request to accept paper lodgement form, which is available on the Property and Land Titles website.

For further details, see the ‘E-Conveyancing’ section of the By Lawyers conveyancing commentaries and our related article ‘A brief explanation of the transition to E-conveyancing’, which includes information on how to get connected and the full timeline for implementation, both accessible from the Matter Plan in our Conveyancing Guides – Vic.

Notice to complete – Conveyancing – NSW

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The commentary in the By Lawyers Conveyancing NSW Guide and 1001 Conveyancing Answers (NSW) has been updated to highlight some important considerations brought to light in the recent decision on the NSW Court of Appeal in Namrood v Ebadeh-Ahvazi [2017] NSWCA 310, namely the importance of issuing a Notice to Complete before purporting to terminate and the distinction between the completion date and the actual date of completion.

The ‘completion date’ is specified in the contract, but because time is not of the essence and settlements are often delayed, the actual completion date can be a later date. Any provision in a contract providing that something must be done on or by completion is not necessarily a requirement that it be done on or before the completion date

The facts in this case were that the contract of sale provided for work to be done on or by completion. When the completion date passed a notice of termination was served by the purchaser without first serving a notice to complete making the completion date of the essence. The work was subsequently finished and as no essential completion date had been established by a notice to complete, the purported termination by the purchaser failed, was deemed a repudiation of the contract and the deposit paid was forfeited to the vendor. The fact that a time and date for settlement is agreed does not of itself make time of the essence and justify termination.  Either the essentiality of time must be agreed at the outset, or it must be made essential by serving a notice to complete.

This case also highlights the potential issues that arise with inserting special conditions regarding compliance with works notices, which necessarily override s 11 of the Law Society Contract by virtue of the definition of ‘normally’ therein.

The commentaries in the By Lawyers Conveyancing Guides – Acting for the Purchaser and Acting for the Vendor, as well as the relevant sections of 1001 Conveyancing Answers NSW, have been updated accordingly.

 

Online Court Protocol – Supreme Court Equity Division – NSW

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New and revised Practice Notes dealing with Online Court Protocol in the Equity Division of the NSW Supreme Court have been added to the By Lawyers Litigation commentaries.

Our NSW litigation author has amended the Acting for the Plaintiff and Acting for the Defendant commentaries in our Supreme Court – Equity Division Guides to incorporate these important procedural changes brought in by the recent amendments to Practice Note SC Eq 1 and the introduction of the new Practice Note SC Eq 14. These Practice Notes apply concurrently to all cases in the Equity Division General List that are case managed by the Registrar in Equity.

Important points to note about the new provisions of the Practice Notes include:

Online Court

  • All matters will be managed via Online Court.
  • If the Registrar in Equity determines that certain matters are to be heard in open court the times and location of directions hearings may change and the Practice Note requires that the daily Court list should always be checked.
  • Failure to submit requests or consent orders in the Online Court in accordance with the time frames set out in the Practice Note will be treated as a non-appearance in the proceedings, upon which the Registrar will issue a notice and a subsequent failure may result in the proceedings being dismissed.

Mediation/ADR

  • The initial timetable should consider reference and/or mediation.
  • If the parties have not attempted to resolve the dispute through mediation or other appropriate ADR procedures, they should expect a mediation date to be allocated prior to or when a matter is set down for hearing.
  • If the Court makes an order for court annexed mediation, the parties are to attend upon the Registrar in Equity, using the Online Court, within 24 hours of the order being made to obtain a date for mediation.

Consent Orders

  • Agreement will be reached between the parties on a timetable for the preparation of matters for trial and/or reference and/or mediation and Consent Orders. Evidence of this agreed timetable will be transmitted to the Registrar using the Online Court by no later than 2:30 PM on the second day preceding the Online Court sitting.
  • All Consent Orders will be made using Online Court; emails will not be accepted. The text of any orders the parties are seeking must be fully set out in the Online Court request.

Trial Length Estimates

  • When parties are seeking to have the matter set down for hearing, the parties will be expected to give full details of the trial, to ensure that the estimate of the length of the hearing is accurate. Annexure B to Practice Note SC Eq 1 provides for a Direction the Court will give requiring practitioners to monitor the estimate for the length of the trial.
  • If the hearing is likely to be longer than five days the trial date will be set in consultation with the Chief Judge in Equity.

The move to case management via the Online Court in the Equity Division is a significant shift in Court process and one of which all practitioners need to be well aware and prepared to embrace. The up to date and practical focus of the By Lawyers Supreme Court Guides ensures it is easy to understand and comply with the new procedures.

Family Law Courts e-filing updates -FED

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The Family Law Courts have announced that they will shortly release a number of enhancements to the online filing system, which are a result of their survey of the legal profession in 2017. In summary, the changes will include:

  • the ability to file a greater number of applications online;
  • support for fee reduction/exemption applications for financial hardship;
  • online lodgement for correspondence;
  • ability to indicate;
    • safety considerations;
    • urgency; and
    • the need for interpreters;
  • ability to upload 30 MB sized documents; and
  • support for parenting orders sought with Family Dispute Resolution (FDR) Exemptions.

More information will be published – and the By Lawyers Family Law Guides updated – when the Court releases more details of the facilities.

Family Provision Claims review – VIC

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Our Victorian Family Provision Claims publication has just had a comprehensive review. We invite you to peruse our updated matter plans for Acting for the Plaintiff and Acting for the Estate in Family Provision claims – or ‘TFM’ claims as they are still generally known.

While many updates to By Lawyers publications arise from changes to legislation, developments in case law, or when subscribers ask us for new content, at By Lawyers we also routinely enhance and develop our publications as part of our commitment to continual improvement.

New/reviewed precedents in Acting for the Plaintiff include:

  • Letter to client with initial advice;
  • Initial letter to estate solicitor;
  • Affidavit of the plaintiff (Estate greater than $500K);
  • Position statement of the plaintiff (Estate less than $500K);
  • Affidavit of the plaintiff’s solicitor re costs;
  • Approval of compromise order (new TFM List precedent);
  • Letter to estate solicitor before first directions hearing;
  • Minutes of order for TFM first directions hearing;
  • Example content – Directions;
  • Letter to potential additional defendants;
  • Letter to real estate agent seeking market appraisal of real property;
  • Example content – Plaintiff’s position statement for hearing;
  • Letter to plaintiff finalising the matter.

New/reviewed precedents for Acting for the Estate include:

  • Letter to estate with initial advice;
  • Letter reporting to estate on settlement;
  • Approval of compromise order;
  • Affidavit of executor OR administrator of the estate;
  • Minutes of order for TFM first directions hearing;
  • Example content – Directions;
  • Letter to potential additional defendants;
  • Letter to real estate agent seeking market appraisal for comparison to plaintiff’s market appraisal;
  • Letter to real estate agent seeking market appraisal of estate’s property;
  • Letter to estate solicitor before first directions hearing;
  • Example content – Defendant’s position statement for hearing;
  • Application for leave to appeal;
  • Letter to plaintiff finalising the matter.

Our matter plans are structured so that everything required is at hand. For instance, certifications required on filing your documents in court are included – Overarching Obligations Certification and Proper Basis Certification.

The commentary in both Acting for the Plaintiff and Acting for the Estate has been enhanced, to include:

  • managing the lawyer-client relationship and client identification;
  • time and cost estimates;
  • taking instructions and advising on the claim;
  • assessing the merits of a claim;
  • when the court can make an order;
  • factors the court must consider
  • factors the court may consider;
  • when to negotiate and tips for effective negotiation;
  • mediation;
  • commencing the claim;
  • the first directions hearing date;
  • costs and the supervisory approach taken by the court to costs;
  • the procedure following an order.

Our Victorian Family Provision Claims Guide is a comprehensive and practical resource for small law firms.

Victim Reviews – Magistrates Court Criminal – WA

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The commentary in the By Lawyers WA Magistrates Court – Criminal Guide has been amended to ensure that practitioners acting for clients who are charged with sexual and violent offences are aware of the Director of Public Prosecutions’ new Policy and Guidelines for Victims of Crime 2018. These provide for Victim Reviews – a formal process for a victim of crime to complain and seek a review about any decision by the DPP which ‘significantly alters the prosecution case in relation to which they are the victim’.

That would, for example, include an agreement by the prosecution to withdraw a charge and/or proceed with a lesser charge.

There is a corresponding requirement under the policy for State Prosecutors to seek an adjournment of the matter for 7 days, where necessary and practicable, for such a review to be conducted – if a review is requested. Victims can waive their right to a review. In some instances, where a trial is pending for example, an adjournment for 7 days will not be possible and prosecutors are expected to use their discretion when seeking adjournments.

Whether any adjournment is granted will always be matter for the Court, in the context of the particular matter, but it is likely that such adjournments will usually be granted by the Court if reasonably possible.

It is, of course, preferable that discussions about plea resolutions between defence lawyers and prosecutors occur with sufficient time for the adjournment not to be necessary, but there will always be some instances where an agreement is reached at, or within 7 days of, an interlocutory appearance – such as the Disclosure Committal – resulting in the need for an adjournment.

Where victim reviews are required, clients will need to be warned that any plea ‘deal’ is not guaranteed until the review is conducted and the matter returns to court after the adjournment.

Immigration – amendments delayed – FED

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Amendments under the proposed Migration Amendment (Regulation of Migration Agents) Bill 2018 (Cth), currently before the senate, lawyers will be able to conduct immigration matters as part of their usual practice, will no longer have to register as migration agents and will not be subject to regulation by the Migration Agents Registration Authority (MARA). An implementation date of 19 November was originally set for this change.

Unfortunately the senate has not been able to find the time to consider or pass the amending legislation and the intended implementation date of 19 November 2018 will therefore no longer be possible. A new proposed implementation date will need to be determined when and if the legislation passes.

In the meantime double regulation continues and Australian Legal Practitioners must continue to register as Migration Agents with OMARA before they can conduct immigration work.

By Lawyers will keep you updated on the progress of this Bill. The By Lawyers Immigration Guide is available to assist lawyers who conduct immigration matters.

Register of Companion Animals – NSW

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The next stage of the amendments to the Companion Animals Act 1998 has now commenced, including implementation details for the Register of Companion Animals.

Part 9 of the Act now sets out the details that are required to be kept for registered companion animals. It also provides for the access to the Register which will be allowed for the public, veterinarians, local authorities and other relevant agencies. The register will be available via the NSW Pet Registry website.

Public access is already available via the NSW Pet Registry and access for government departments, local authorities and vets is through the old NSW Companion Animals Register, which will be phased out by the end of 2018. Thereafter, access for government departments, local authorities and vets will also be via the new Register of Companion Animals, through the NSW Pet Registry site.

The By Lawyers commentary on companion animals, located in our Neighbourhood Disputes NSW publication, has been updated accordingly.

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