by By Lawyers
The By Lawyers commentaries have been updated to deal with recent amendments to the Family Violence Protection Act 2008 by the Bail Amendment (Stage One) Bill 2017.
These changes, regarding the relationship between bail conditions, safety notices and intervention orders, are now covered in the VIC Criminal Magistrates’ Court Commentary and the Intervention Orders Commentary.
by By Lawyers
The By Lawyers VIC Criminal Magistrates’ Court Guide has been updated following the extensive reforms to bail in Victoria, which came into operation on 21 May 2018.
There are some further bail amendments still to come into operation on or before 1 July 2018.
by By Lawyers
The By Lawyers author of Victorian Civil Litigation and Injuries, Nawaar Hassan, Barrister, has reviewed the County Court publication including commentary, matter plans and precedents. Various enhancements have been made, including expansion and clarification of commentary relating to:
Precedent letters instructing expert witnesses have also been updated.
by By Lawyers
Property lawyers rely on certificates from authorities, such as local councils, all the time. Acting for a vendor, our clients have an obligation to disclose, prior to contract, certain information to prospective purchasers about the property to be sold and often rely upon certificates to reveal that information. Indeed, s.32J Sale of Land Act envisages that such certificates may be attached to the Vendor Statement. When acting for a purchaser, it is common practice to rely on certificates attached to the Vendor Statement as proof of the information contained therein.
This is particularly relevant to the town planning status of the property, a consideration that can have a huge impact on the value of the property. It is fair to say that the average lawyer would unconditionally accept that if a planning certificate was annexed to a Vendor Statement, the zoning of the property would comply with that certificate and that the purchaser can rely on that information. It is therefore likely to come as somewhat of a shock that the Court of Appeal in Queensland appears to have thrown doubt on this expectation and, if that decision were to be followed in Victoria, lawyers would become liable to their purchaser clients if the information in the certificate proved to be incorrect.
Central Highlands Regional Council v Geju P/L [2018] QCA 38 was an appeal by the Council against the decision in Geju P/L v Central Highlands Regional Council [2016] QSC 279. At first instance McMeekin J held the Council responsible for an incorrect town planning certificate that described land as zoned ‘industrial’ when it was in fact zoned ‘rural’ and found in favour of a purchaser who, relying on the certificate, had paid too much for the land. The purchaser’s claim had been based on the negligence of Council in providing the incorrect certificate to the vendor, who in turn provided it to the purchaser, and the Court was satisfied that the Council owed a duty of care to the purchaser, had breached that duty and the purchaser had suffered loss as a result. Most lawyers would agree with that decision and take comfort in the knowledge that an authority is responsible not only to the party who obtains the certificate, but third parties who might be expected to rely on the certificate.
But that decision was overturned on appeal. The Court of Appeal followed a similar line of analysis to McMeekin J but diverted, dramatically, at the question of duty of care. McMeekin J was satisfied that the Council owed a general duty of care in respect of the provision of certificates and described the purchaser as being a member of a class of people who might reasonably be expected to rely on the certificate – a potential purchaser of the property. However, the Court of Appeal rejected this view and concluded that “there was no rational way to define a class of which (the purchaser) was a member other than in very broad terms” and went on to suggest that tenants, lenders or investors might also be interested in the information contained in the certificate and that the Council’s liability should not extend to such a wide class of people. Thus, the Council owed no duty of care to the prospective purchaser.
Can this be right?
Since Mid Density Developments P/L v Rockdale Municipal Council [1993] FCA 408 there has been a widely held belief that municipal Councils are responsible for the accuracy of certificates provided to applicants for certificates AND third parties who deal with the applicant and might be reasonably expected to rely on such certificates. Prospective purchasers certainly fall within such a class, particularly when the certificate is relied upon by the applicant vendor to satisfy the vendor’s statutory disclosure obligation to prospective purchasers. That other classes of people might also interact with the applicant for the certificate hardly seems a valid reason to exclude that smaller class of people who interact as prospective purchasers.
The law relating to negligence causing pure economic loss is arcane. The High Court has had cause to consider the issue on a number of occasions and Central Highlands might provide the opportunity for it to do so again. In the meantime it is hoped that the previously understood liability imposed on council charged with the responsibility of administering planning schemes to provide correct certificates in respect of those schemes will continue, in Victoria at least.
•authorities provide certificates relating to properties
•the applicant for the certificate can rely on it
•there is now some doubt as to whether a third party can rely
by By Lawyers
We are pleased to announce the release of another comprehensive step-by-step guide for Western Australian practitioners, being Criminal Magistrates Court WA .
This publication covers all aspects of criminal practice and procedure, for both simple and indictable offences, when acting for the defendant in criminal proceedings in the Magistrates Court.
The guide assists practitioners with all aspects of conducting a criminal matter from arrest and bail, or a first appointment in the office, through to hearing and/or sentencing, including avenues of appeal and possible costs applications. The commentary is practical and easy to understand, with numerous helpful precedents and all current Magistrates Court forms included.
Key content includes:
This guide is a valuable tool for all practitioners who appear in the Magistrates Court, especially those with limited experience in criminal work, or those supervising younger lawyers.
by By Lawyers
We are delighted to announce a new publication by our ACT author, Doug Dawson, being a Guide for Probate and Letters of Administration (ACT).
The guide features detailed commentary, a matter plan and all necessary forms and precedents for obtaining a grant, getting in the assets and making the distribution.
The practical nature of this publication allows the practitioner to:
We invite ACT practitioners – and those in other states who may need to conduct ACT estate matters – to explore our Probate and Letters of Administration matter plans, to appreciate the practicality and value of our publication.
by By Lawyers
The commentary on testamentary discretionary trusts in our Wills publications now has a more in depth discussion of:
There are several By Lawyers precedent wills which create testamentary discretionary trusts for individuals and spouses, as well as a library of testamentary discretionary trust clauses. These precedents can be used to establish a single testamentary discretionary trust for all assets and beneficiaries of the estate, or multiple testamentary discretionary trusts for specific beneficiaries. They can also be used to establish additional testamentary discretionary trusts to provide protection for specific assets such as quarantining a family business or to allow for the particular needs of an individual beneficiary due to say drug addiction.
by By Lawyers
Commentary has been added to the By Lawyers 101 Family Law Answers reference manual in the Children chapter:
Orders – Variation and the rule in Rice & Asplund
To set aside or vary final parenting orders, parties must meet the threshold test set out in Rice v Asplund (1979) FLC 90-725. This case provides that where final parenting orders have been made, the court must establish a significant change in circumstances before it sets aside or varies final orders. The rationale is founded on the ‘best interests principle’ and the public interest for parties to not continuously re-litigate parenting matters. …
There is no specific timeframe in which a significant change of circumstance must or must not be shown. It depends on the individual case. There was consideration of the rule in SPS & PLS [2008] FamCAFC 16. In that case the court said at [48] … At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle” … The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order. …
Other useful cases include:
by By Lawyers
With the impending removal of dual regulation, immigration practice becomes more accessible for legal practitioners.
Currently, lawyers practising in immigration law are subject to dual regulation: the regulation already applicable to Australian legal practitioners, plus the requirement to be registered as migration agents and subject to the Migration Agents Regulatory Authority (MARA).
Under the proposed Migration Amendment (Regulation of Migration Agents) Bill 2017 (Cth), currently before the senate, this barrier to lawyers conducting immigration matters will be removed. Lawyers will no longer have to register as migration agents and will not be subject to regulation by MARA.
This means lawyers will be able to conduct immigration matters as part of their usual practice, with no additional registration or regulatory requirements.
The proposed commencement date, for lawyers holding practising certificates without a supervised legal practice condition, is 19 November 2018.
Further information about the Bill, including proposed consumer education on the changes, is available on the MARA website.
By Lawyers Immigration guide allows lawyers to take advantage of these changes
By Lawyers continually reviews and updates all publications in line with legislative and procedural changes, ensuring publications are current for every matter undertaken.
Whether acting for an employer who wants to sponsor a temporary overseas worker or a family seeking to bring an older relative from another country, the By Lawyers Immigration publication assists practitioners from start to finish.
by By Lawyers
Additions have been made to the 101 Family Law Answers reference manual.
The following commentary was added to Admissibility of settlement negotiations:
A without prejudice offer to settle parenting matters was admitted in the Western Australia case S and K [2007] FCWA 17. In this case the court said:
There is no doubt that it is important to preserve confidentiality and to foster an environment that allows parties to negotiate without fear they will be compromised in an endeavour to settle matters. However, offers can be made for a number of reasons and the overarching principle is always the best interests of the child. It is not the sole consideration but it is the paramount one.
The Court should not be precluded from obtaining information to ensure that the principle is met…
Note: This is a single judge decision and hasn’t been followed in subsequent cases since it was handed down in 2007.
The following useful case references were added to Relocation:
Carne & Feldt [2013] FCCA 1851: the court permitted an interim relocation 100 km (1 hour) away. The child was 6 years old and the mother was relocating to live with her new partner, the father of her unborn child.
Cavanagh & Kennedy [2013] FCCA 345: the mother unilaterally relocated with the parties’ 7 year old daughter to a place an ‘hour and a half away’ despite an earlier final order providing for equal shared parental responsibility and that each ‘parent is restrained from relocating outside the … district unless agreed in writing between the parties’. The court ordered she return.
Morgan & Miles [2007] FamCA 1230: dealt with a move of 144 km and whether this constitutes ‘a relocation’.