Think Foley's

Klaus Mueller and Nick Dubrow review the common issues that need to be considered in serious injury leave applications. 

Jonathan Bayly discusses the circumstances in which a party to a judicial review proceeding can lead evidence that goes beyond the material that was before the decision maker when it made the decision under review, as well as the rare circumstances in which a party to such a proceeding can obtain an order for discovery.

Episode notes can be found: https://foleys.com.au/ResourceDetails.aspx?rid=504&cid=5 

Philip Barton reviews Victorian Supreme and County Court cases for approx. the last 5 years on performance and breach of contracts of sale of land including: Rescission for mistake; Rectification; Construction and interpretation of contracts; Severance of terms; Variation of contracts; Breach – the prevention principle; Anticipatory breach; Rescission for breach pursuant to notice or repudiation; Specific Performance; Forfeiture of deposit or relief against it under s. 49 of the Property Law Act 1958 (PLA).

Adrian Hoel presents a "how-to" guide for practitioners responding to subpoenas to produce documents. It touches upon all the critical aspects of responding to subpoenas, including objections to production and objections to inspection. It identifies strategies for resolving objections, answers frequently asked questions and identifies potential missteps. This presentation focuses upon civil subpoenas in the Supreme Court of Victoria but will be useful in other Victorian and Federal court jurisdictions.

Episode notes can be found: https://foleys.com.au/ResourceDetails.aspx?rid=502&cid=5 

Sharon Lacy and Annie Yuan will outline when the court can consider matters of family hardship in sentencing State and Commonwealth offences and provide some practical tips on how to run a family hardship argument. Sharon and Annie discuss the Court of Appeal decision of Borg v The Queen and how it affects the threshold for proof for family hardship.

Simon Fuller presents an overview of recent cases involving ethics and related developments.

Episode notes: 
Recent Case Updates and Developments

Robyn Wheeler and Vanessa Bacchetti will sooth your souls with a guide to how to deal with seeking to start a case out of time, seeking to set aside a final order out of time and seeking to appeal out of time.

They will take you through the labyrinth of Powers of the Registrars, Senior Registrars and the Judicial Officers in each court; just "in time" for all the rules to be changed yet again (due to the Court merger).

Episode notes available:

Time and Running Out Of It - Robyn Wheeler
Commencing an Appeal Overview - Vanessa Bacchetti
Table of Time Limits Under the Rules and Family Law Act - Vanessa Bacchetti

Jennika Anthony-Shaw and Michael Sharkey discuss the matters to be aware of and the issues which may arise in briefing. Jennika and Michael explore compliance with the relevant court rules, VCAT practice note, the Evidence Act 2008 and the Civil Procedure Act 2010 and relevant authorities with a focus on the practicalities of briefing experts. With a focus on building disputes, the material canvassed is relevant to all areas of civil litigation where expert witnesses are engaged.

Guy Gilbert SC and Chris Oldham start their discussion on mandatory visa cancellation when a client fails the character test and is serving a term of imprisonment. They discuss the process for revoking a visa cancellation and ways legal representative can assist in that process, other methods of cancellation, the appeals process when revocation is not successful, and sentencing considerations for clients that have had their visas cancelled.

Philip Dunn QC and Julia Kretzenbacher discuss some practical tips of running online hearings in the new normal, including what technology you might want to invest in, preparing the client for an online hearing and how barristers and solicitors can work together for online hearing.

Richard Edney and Kate Ballard address the issue of how to punish offenders who have a mental disorder. The understanding of what mental conditions can be treated as matters in mitigation has tended to change over time. What appeared to be settled was that personality disorders could not be used on behalf of an offender to mitigate an otherwise just and proportionate sentence. That position has been changed by the five-member decision of the Victorian Court of Appeal in Brown v The Queen [2020] VSCA 212.

Peter Chadwick QC and Jeremy Karitzis discuss the practical application Legal Profession Uniform Law Australian Solicitors Conduct Rules for solicitors practising in criminal law. Peter and Jeremy look at ethical questions including acting for guilty clients, knowing and managing conflicts of interest, balancing the client’s instructions against the obligation to act independently and forensically and knowing the limits to protected witness briefs under the Family Violence Protection Act.

David Cronin and Natalie Kaye review the changes to the law for sexual offences involving child and cognitively impaired complainants including an outline of changes, indictable matters, S198A applications, ground rules hearings, intermediaries and giving evidence by child or cognitively impaired complainants. 

William Lye OAM QC and Glen Pauline discuss commercial mediation starting with online mediation and their experiences with online platforms for conduct of mediations. Glen discusses the legislative framework for and issues arising in, mediation of commercial tenancy disputes that arose due to COVID-19 and the outcomes for landlords and tenants achieved through mediation. William also reviews the cultural issues that arise in commercial mediations in particular with relation to Asian cultures.

Cath Devine and Emma Heggie present a timely reminder of how the COVID-19 pandemic impacts on child support matters.

This podcast outlines the significant changes to the child support legislation introduced in 2018 through that lens.

Cath and Emma also analyse a recent Family Court decision dealing with the impact of COVID-19 on an application to set aside a binding child support agreement.

Philip Barton reviews Supreme Court and County Court cases over the past 5 years on contracts of sale of land:
1. Offer and Acceptance including a solicitor’s authority to conclude a contract and a company director’s authority to make a contract
2. The 4 Masters v Cameron categories and contract interpretation
3. Statute of Frauds
4. Void for Uncertainty
5. Estoppel against denying existence of a contract
6. Section 32 statements
7. Cooling off under s 31 Sale of Land Act

Bronia Tulloch and Caroline Jenkins discuss the authorities relevant to common issues in the assessment of contributions in family law property cases. The emphasis is on situations where money or property has been provided to a party to a marriage by family members. The case law discussed covers the treatment of “gift vs loan”, resulting trusts and the presumption of advancement, the impact of timing on the weight to be given and the treatment of inheritances.

Brenton Devanny explains what has changed in insolvency law, how it has affected small business and what the package of reforms promise for small business in 2021.

2020 has been a year where many of the historical practices of insolvency law and how it relates to small business have been delayed and deferred.

This presentation includes a summary of changes to insolvent trading, statutory demands and bankruptcy notices, and generally the proposed debtor-in-possession restructuring regime and simplified liquidations.

Sam Tatarka and Michele Brooks present tips and traps for solicitors. This presentation provides a refresher on the key requirements for Victorian lawyers around their LPUL compliance obligations and the consequences of non-compliance, with a broader focus on strategies to improve compliance, proactively manage client complaints and update risk management strategies to avoid problems in future. The session ends with some practical tips to consider when reviewing and updating existing costs agreements. 

Michael Stanton and Julia Kretzenbacher review section 138 of the Uniform Evidence Acts, which deals with improperly or illegally obtained evidence. In this presentation, we will review the history and background in relation to the common law discretion, the Australian Law Reform Commission reports on the law of evidence that led to the introduction of the Uniform Evidence Acts, and the text and purpose of section 138, including the factors relevant to the balancing exercise that must be undertaken by judicial officers. We will consider relevant cases from the High Court, the Court of Appeal and the Trial Division of the Supreme Court of Victoria.