ByLawyers News and Updates

Enforcement – VIC

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The By Lawyers Enforcement (VIC)  guide has been extensively reviewed. It provides practitioners with a wealth of practical information on the options available to recover judgment debts.

Three new precedents have been added to the matter plan and the commentary has been revised and updated.

New precedents

  • Example content – Affidavit in support of application for charging order summons. A judgment or order for the payment of a sum of money may be enforced by obtaining a charging order from the Supreme or County courts. This creates an equitable charge over stocks and shares, or any funds in court in which the judgment debtor has a beneficial interest.
  • Example content – Affidavit in support of application for garnishee summons.
  • Example content – Affidavit in support of application for warrant for seizure or sale or for possession of land.

Commentary enhancements

  • New commentary on stop orders, which prevent funds in court being paid out without notice being given to the person who applied for the order.
  • New commentary on the proper use of bankruptcy procedures, which should not be used for the purpose of putting pressure on a debtor to pay the debt.
  • Enhanced commentary on conduct money, the need for it to be sufficient and outlining some practical considerations.
  • Expanded commentary on post-examination procedures, including examination of the debtor on ‘the material questions’ in the  Supreme or County courts.
  • Further commentary on the instalment order process, including attachment of earnings, and the reluctance of the courts to make orders that will force the debtor into extreme hardship or to live a life of deprivation.
  • Expanded commentary on garnishee orders.
  • Expanded commentary on warrants of seizure and the sale of property – goods and land.
  • Enhanced commentary highlighting the difficulties and reality of enforcing judgment debts and managing client expectations, providing practical guidance on securing the best outcome for the client.

The Enforcement guide review, undertaken by our Victorian litigation author Nawaar Hassan, reflects the commitment of By Lawyers to updating and enhancing our publications.

Intervention orders – SA

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The By Lawyers Intervention Orders commentary has been reviewed and updated by our author to ensure all content is in line with current law and practice. As part of this regular review process, the following enhancements have been made:

  • Expanded coverage on applications to vary or revoke orders, and the typical procedure involved.
  • New content added regarding the Women’s Domestic Violence Court Assistance Service.
  • Updates to coverage of penalties for contravention of interim or final intervention orders.

Women’s Domestic Violence Court Assistance Service

This service provides pro-bono, specialised assistance to women who need to apply for a private intervention order, to vary a confirmed order, or to end a tenancy agreement due to domestic violence.

Applications to vary or revoke orders

A defendant may apply to have an intervention order varied or revoked only after 12 months have passed since the confirmation of the order, or such longer dated as fixed by the court.

The protected person may make an application to vary or revoke the order at any time. They should expect to be questioned by a magistrate at length on the reasons for the application. If the police are involved they are most likely to oppose such an application, particularly where there has been no apparent change in the parties’ circumstances since the order was made.

Breaches

As the commentary in the Intervention Orders commentary notes:

Breaches of an intervention order will be taken seriously. It does not matter if the protected person says that they consent to the breach, or even actively encourages it. Gaol terms and loss of the presumption in favour of bail is a real possibility for a defendant who breaches an intervention order. 

When acting for clients charged with a breach of an intervention order, subscribers will be assisted by the related By Lawyers guide Criminal – Magistrates Court (SA).

Magistrates Court Civil- VIC

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The By Lawyers Magistrates Court Civil – Acting for the Plaintiff litigation commentary has been reviewed by our author.

The resulting consolidation and enhancements include:

  • The commentary on interrogatories has been enhanced including practical insights into the correct form that an interrogatory should take. Examples of defective interrogatories have been added to assist practitioners in drafting interrogatories.
  • The commentary on expert witnesses has been enhanced. The commentary now highlights the crucial point that reliance on an expert report will usually waive privilege over all materials or communications that may have influenced the expert in forming their opinion. This means practitioner communications with an expert witness will likely have to be disclosed to the other party and the court, so drafting communications requires care.

This review of the Magistrates Court Civil – Acting for the Plaintiff litigation commentary is part of By Lawyers continuing commitment to enhancing our content and helping our subscribers enjoy practice more.

County Court – VIC

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The By Lawyers County Court Civil (VIC) Publication has been reviewed and updated to ensure that the precedents and commentaries are in line with current law and practice.

Publication review

The extensive review was performed by our author Nawaar Hassan, barrister at Isaacs Chambers. Like all By Lawyers authors, Nawaar takes a pragmatic approach to practice and procedure in the County Court, drawing on her considerable litigation experience to provide information that will help lawyers confidently represent their clients.

Some of the enhancements to the By Lawyers County Court Civil (VIC) Publication as a result of this review include:

Expanded commentary on –

  • Limitation periods.
  • Costs disclosure and ensuring costs are fair and reasonable.
  • Alternative dispute resolution and settlement.
  • Civil Procedure Act obligations.
  • Preparing and filing a defence.

New commentary on –

  • Electronic filing.
  • Calculating time limits.
  • Effectively communicating with the court.
  • Case management procedure including practice notes and directions.
  • Practical tips when briefing counsel.

New precedent

A new precedent Example content – Consent orders – Discontinuance of proceedings has been added to both plaintiff and defendant guides. All of the existing precedents in the guides have also been reviewed to ensure they reflect current law and practice.

We invite subscribers to explore this publication and to consider the wealth of assistance it offers for lawyers appearing for clients in civil matters in the County Court.

Supreme Court – VIC

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The By Lawyers Supreme Court Civil (VIC) Publication has been reviewed and updated to ensure that the precedents and commentaries are in line with current law and practice.

Publication review

The extensive review was performed by our author Nawaar Hassan, barrister at Isaacs Chambers. Like all By Lawyers authors, Nawaar takes a practical approach to practice and procedure in the Supreme Court, drawing on her considerable experience to focus on information that will help lawyers confidently represent their clients and successfully run their matters.

Some of the enhancements to the By Lawyers Supreme Court Civil (VIC) Publication as a result of this review include:

  • Expanded commentary on costs disclosure and ensuring costs are fair and reasonable.
  • Rationalised commentary on case management procedure including practice notes and directions.
  • Expanded commentary on Alternative Dispute Resolution and settlement.
  • Practical tips when briefing counsel added.
  • Expansion of commentary on Civil Procedure Act obligations.
  • New commentary on effectively communicating with the court.
  • New commentary on urgent applications.
  • Expanded commentary on service, including service overseas.
  • Expanded commentary on preparing and filing a defence.

New precedent

A new precedent ‘Example content – Consent orders – Discontinuance of proceedings’ has been added to both plaintiff and defendant guides. All of the existing precedents in the guides have also been reviewed to ensure they reflect current law and practice.

We invite subscribers to explore this publication and to consider the wealth of assistance it offers for lawyers appearing for clients in civil matters in the Supreme Court.

Author review of Conveyancing (VIC) Publication

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Conveyancing (VIC) – Author review

The By Lawyers Conveyancing (VIC) Publication, which includes the 1001 Conveyancing Answers, Sale of Real Property and Purchase of Real Property guides, has been reviewed to ensure that the commentaries and precedents (including the By Lawyers Contract of Sale of Land) are in line with current law and conveyancing practice, including electronic conveyancing.

The extensive review was performed by our author Russell Cocks. As with all our authors, Russell takes a practical approach drawing on his considerable experience to cover all aspects of procedure, with a focus on practical tips that will help solicitors and conveyancers confidently run a sale or purchase matter to completion.

We invite you to explore this updated publication and to consider the wealth of assistance the guides offers for solicitors and conveyancers acting in the sale and purchase of residential property in Victoria.

Author review – Conveyancing – Sale and Purchase – SA

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The By Lawyers Conveyancing SA Guide has been reviewed and updated to ensure that the commentaries and precedents are in line with current law and conveyancing practice, including electronic conveyancing.

The extensive review was performed by our author Jess Caire. As with all our authors, Jess takes a practical approach, drawing on her considerable experience to cover all aspects of procedure, with a focus on practical tips that will help solicitors and conveyancers confidently run a sale or purchase matter to completion. The sale and purchase matter plans cater for both ‘sale by agent’ and ‘private sale’ engagements.

We invite you to explore this updated publication and to consider the wealth of assistance the guide offers for solicitors and conveyancers acting in the sale and purchase of residential property in South Australia.

Family Law – Divorce publication review

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The By Lawyers Family Law author has reviewed the Divorce publication covering commentary, matter plan and precedents.

Commentary updates include the following additions:

  1. Application without marriage certificate – If the parties do not have a copy of the marriage certificate, an application should be made at the relevant state Births, Deaths and Marriages. In the case of an overseas marriage, if a copy of the marriage certificate cannot be obtained, the applicant may be able to file an affidavit pursuant to r 25.01(3) of the Federal Circuit Court Rules addressing the reasons for the failure to file the marriage certificate.
  2. Appealing a divorce order – In Price & Underwood (Divorce Appeal) [2009] FamCAFC 127, the Full Court addressed the issue of whether an appeal may be filed after a divorce order has taken effect. The court was split on the issue, with Boland and Ryan JJ finding that s 93 of the Family Law Act is clear and unambiguous – no appeal lies from a divorce order which has become final. Where a divorce order which has become final the only relief available is a declaration under s 113 that the divorce order is void. May J took the view that a divorce order could be subject to an appeal even if it is of effect, on the basis of a miscarriage of justice.

As there have not been any changes in terms of significant case law or legislative changes in the last 12 months, no changes were made to precedents or the matter plan.

Family Law – Financial agreements publication review

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The By Lawyers Family Law author has reviewed the Financial Agreements publication covering commentary, matter plan and precedents.

Commentary updates include the following additions:

  1. Child support agreements and financial agreements: Whilst a financial agreement may also be a binding child support agreement if it complies with the requirements in the child support legislation, it is recommended that child support ought to be provided for in a Binding Child Support Agreement or a Limited Child Support Agreement; and
  2. Enforcement procedure when a case has not been on foot: i.e. to seek a declaration as to the enforceability of the binding financial agreement under 90KA or 90UN, an initiating application would need to be filed, seeking both a declaration and the orders in relation to enforcement. The practical reality is in most applications seeking enforcement of a binding financial agreement, an initiating application is filed seeking both the declaration and enforcement orders at once.

The new requirements for affidavits in the Family Court has led to a new Exhibit page to Affidavit form being created by LEAP. This has been linked where necessary in the matter plan.

Letter submitting financial agreement to other side acting for themselves has been amended by adding the following paragraph:

The agreement cannot be signed without you obtaining independent legal advice and the solicitor needs to sign where indicated on the document to confirm you have been provided with this advice.

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