Advising clients on the 2026 Budget’s proposed tax changes - FED

The 2026 Budget foreshadows several tax changes that are relevant to lawyers advising clients now. The relevant proposed changes are summarised below and may be modified before being legislated.

Discretionary trusts

From 1 July 2028, trustees will pay a minimum tax of 30% on the taxable income of discretionary trusts. Beneficiaries, other than corporate beneficiaries, will receive non-refundable credits for the tax payable by the trustee.

Imposing a non-refundable 30% minimum tax at the trustee level removes the flexibility to stream income and utilise losses.

If the beneficiary’s marginal tax rate prior to the distribution is already 30% or more, the measure should not result in any additional tax overall, because the trustee-level tax is fully creditable against the beneficiary’s liability. For beneficiaries on lower tax rates, the non-refundability of the credit means a higher tax is paid overall.

To discourage the use of corporate beneficiaries, no credit will be available for tax paid by the trustee on a distribution from a discretionary trust to a company. Amounts distributed to a corporate beneficiary may be taxed twice, first at 30% and then again at 30% of the remaining 70%. Franked distributions flowing through a discretionary trust will be subject to the 30% tax rate, however, the credit is used to offset and reduce the trustee’s tax liability.

The minimum tax will not apply to fixed trusts and widely held trusts, complying superannuation funds, charitable trusts, special disability trusts and deceased estates.

Income carved out of the regime includes primary production income, certain income derived by vulnerable minors, amounts that are already subject to non-resident withholding tax, and testamentary trusts in existence on 12 May 2026.

The minimum tax does not apply to income from assets held by testamentary trusts in existence on 12 May 2026. It applies to testamentary trusts established after 12 May 2026, and new assets contributed to existing testamentary trusts after that date.

The Government has announced that it will introduce expanded roll-over relief to facilitate restructuring out of discretionary trust structures. The proposed relief is intended to ensure that, for a limited period, restructures from discretionary trusts into alternative ownership vehicles, such as companies or fixed trusts, can occur without adverse income tax consequences, including capital gains tax. The rollover relief will be available for a 3-year period from 1 July 2027 to 30 June 2030.

Capital gains tax

Pre-19 September 1985 assets

From 1 July 2027, assets acquired before 19 September 1985 will no longer be fully exempt from CGT. Instead, capital gains arising after 1 July 2027 will become taxable, while gains accrued before 1 July 2027 will continue to be exempt. Gains will be calculated by reference to a deemed cost base equal to the asset’s market value on 1 July 2027.

Market value on 1 July 2027 may be determined by one of two methods: a formal valuation, or a prescribed methodology that estimates the asset’s value based on its rate of growth over the ownership period.

General

From 1 July 2027, the existing 50% CGT discount for assets held for more than 12 months is replaced by inflation-adjusted indexation of the cost base, subject to a minimum 30% tax rate on the resulting capital gain. Note:

• The existing 50% CGT discount continues to apply in full to assets both purchased and sold before 1 July 2027;
• Indexation and minimum 30% tax will apply for all assets purchased and sold from 1 July 2027; 
• Assets purchased prior to 1 July 2027 will be subject to transitional measures, which will preserve the 50% CGT discount on the difference between the asset’s cost base and its value as at 1 July 2027.
• Investors who purchase new residential properties from 1 July 2027 will have the option of choosing to apply the existing 50% CGT discount or the indexation and minimum tax model.

The By Lawyers guides will be updated when these tax amendments commence.

New clause for testamentary discretionary trust wills – All states

The By Lawyers Wills creating testamentary discretionary trusts have been amended to include an ‘opt-out’ clause that allows the trust’s primary beneficiary to request that the executor transfer all or part of their share of the estate to them absolutely.

This clause provides flexibility where assets may be better held personally, avoiding potential tax consequences that could arise if those assets are first held in the trust and later transferred to the beneficiary.

In consideration of the 2026 Budget’s proposed tax changes this will be advantageous to a primary beneficiary who may need to reconsider the consequences of holding their share in trust.  

The By Lawyers precedents that have been amended are:

• Individual will creating testamentary discretionary trust;
• Individual will creating multiple testamentary discretionary trusts;
• Client 1 will creating testamentary discretionary trust with client 2 as executor;
• Client 2 will creating testamentary discretionary trust with client 1 as executor;
• Client 1 will creating multiple testamentary discretionary trusts with client 2 as executor;
• Client 2 will creating multiple testamentary discretionary trusts with client 1 as executor;
• Testamentary discretionary trust provisions – Extensive; and
• Testamentary discretionary trust provisions creating several trusts.

See the By Lawyers Wills and Lifetime Planning publications for the updated precedents.

Pets and alternate residue clauses added to Wills – All states

The By Lawyers Wills and Lifetime Planning publications have been updated to include 3 new wills precedent clauses:

• Pets – Gift of pets, that gifts a testator’s pets and a sum of money to a nominated person;
• Pets – Gift pets with trust provisions, which establishes a fund to care for the testator’s pets, and nominates a person to care for the pets; and
• Residue – Child’s spouse, and grandchildren, which contemplates a situation where the testator’s child predeceases the testator with a spouse who the testator wants to inherit in place of the child.

The precedent clauses add to the many potential clauses that a testator may want to include in their will.

The clauses are found in the Library of clauses, deeds, contract, and codicils in By Lawyers Wills and Lifetime Planning publications.

Amended DV rules – QLD

Changes under the Domestic and Family Violence Protection Amendment Rule 2026, which commenced on 29 May 2026, include procedural changes to support broader legislative reforms – see our previous News and Updates post.

The rules amendments update court processes and approved forms to accommodate the new police protection directions and related applications, streamline the management of domestic violence matters, and facilitate the operation of the expanded protection framework introduced by recent legislative amendments.

The changes are intended to improve access to protection orders and the efficient administration of domestic and family violence proceedings.

The By Lawyers Domestic Violence Order (QLD) publication has been updated accordingly.

New Local Court Practice Note for AVOs and DV offences – NSW

One new, and three revoked, practice notes

New Local Court Practice Note - Domestic and Personal Violence Proceedings applies to matters commenced on or after 4 May 2026 and recasts the procedures for ADVOs, APVOs, SDAPOs, and DV charges.

The new practice note revokes and replaces the following practice notes, except that they continue to apply under a transitional provision for matters already on foot:

• Local Court Practice Note 2 of 2012, Domestic and Personal Violence Proceedings, issued 12 April 2012; 
• Local Court Practice Note Specialist Family Violence List Pilot, issued 25 September 2023; and 
• Paragraphs 10.1-10.4 of Local Court Practice Note Crim 1, issued 24 April 2012. 

New procedure

The new practice note provides for:

• continuity of case management, where possible, by the court, the police, police Domestic Violence Liaison Officers, and other providers of support services;
• dedicated days at each court complex for an AVO list;
• listing AVO applications and any related criminal charges on the same first mention date, and, if not, for the application to be adjourned to the same date as the charges;
• listing AVO applications and any cross-applications together;
• case management timetables for contested AVO applications with no related criminal charges, a Compliance Mention 5 weeks later with the parties to file a Listing Advice to obtain a hearing date, and all evidence in chief to be given by written statements unless the Court orders otherwise;
• strict procedures for applications to vary or revoke interim orders, including the requirements for the parties to attempt agreement and notify the court of any Family Law orders, and determination of the matter based only on the written grounds of the application and submissions; 
• strict procedures for First Mentions, Compliance Mentions, Readiness Mentions, Contested Hearings of standalone AVO applications, and Defended Hearings of AVO applications with related criminal charges;
• separate procedures for private AVO applications, ex-parte applications, property recovery orders, and Serious Domestic Abuse Prevention Orders; and
• adjournments of no more than 14 days at the First Mention, for limited reasons that do not include making representations to the prosecution.

New forms

The following new forms are annexed to the Practice Note:

• Notice of Readiness (Prosecution and Defence) – DV Charges: Annexure A
• Timetable for Statements: Annexure B
• AVO Listing Advice – for Compliance Mention: Annexure C
• Application for Property Recovery Order: Annexure D
• Timetable for statements – SDAPO only: Annexure E
• SDAPO Listing Advice – for Compliance Mention: Annexure F
• Application to stay a SDAPO: Annexure G
• Application to vary/revoke a SDAPO: Annexure H

Publication updates

The By Lawyers Apprehended Violence Orders (NSW) and Local Court Criminal (NSW) guides have been updated to help practitioners adjust to the new procedure.

New list in the Supreme Court - VIC

The Supreme Court of Victoria has introduced a new Regulatory and Civil Penalties List within the Commercial Court, supported by Practice Note SC CC 10, effective from 1 May 2026. 

The new list streamlines the management of regulatory proceedings and civil penalty matters. The Practice Note introduces tailored procedures and focused case management for these matters. 

Key changes

New list

The new judge-managed list deals with proceedings relating to commercial activities, business transactions, and community undertakings involving federal or state regulators. 

Concise statements

Proceedings may be commenced using a concise statement, enabling parties to identify the key factual and legal issues, and the relief sought, in a clear, narrative form. If a concise statement is used, no further originating material is required unless the court orders otherwise. 

Expedited case management

The list adopts procedures aimed at the just, efficient, timely, and cost-effective conduct of proceedings, with an emphasis on early identification of issues and streamlined preparation for trial. 

Publication updates

By Lawyers Supreme Court Civil (VIC) publication has been updated to ensure practitioners have access to accurate, practical resources when acting for clients in regulatory and civil penalty matters.

New AI Practice Note in the Supreme Court - VIC

The Supreme Court of Victoria has issued a new Practice Note, SC Gen 25 – The use of Artificial Intelligence by Court users, together with separate Guidelines: The use of Artificial Intelligence by Judicial Officers. Both commenced on 14 May 2026.

The reforms reflect the rapidly increasing use of AI tools within legal practice and the courts, while reinforcing the continuing importance of professional judgment, accuracy and human oversight. 

Application of the practice note

The Practice Note applies to all court users, including lawyers, litigants, witnesses and experts. 

Court users may use AI in preparing court documents, provided they comply with the requirements of the Practice Note. Importantly:

• all court users remain responsible for the content of documents filed with the Court, irrespective of whether AI has been used;
• lawyers must continue to comply with their professional and ethical obligations, including duties of competence, diligence, candour to the Court and client confidentiality; and
• practitioners may face adverse cost consequences or professional conduct issues if they rely on unverified AI-generated material. 

Court users are specifically warned not to enter confidential or sensitive information, including information subject to suppression or non-publication orders, into public AI tools.

The Practice Note has practical implications for firms developing or reviewing AI policies and workflows, particularly regarding document verification, supervision, confidentiality, and staff training. 

Benefits and risks of AI use

The Court recognises that AI can enhance access to justice and improve participation in court processes. However, the practice note also highlights significant risks associated with its use, including:

• fictitious or inaccurate case citations and legal propositions;
• outdated or incomplete legal analysis;
• jurisdictional inapplicability if legal material from other jurisdictions is relied on; and
• privacy and confidentiality concerns arising from the use of public AI platforms.

The Court’s guidance reflects growing judicial and regulatory concern about practitioners relying on unverified AI-generated material in litigation and court documents. 

Verification requirement

Content produced using AI must be verified with meaningful human control. 

Court users are responsible for ensuring that content produced by AI is current, complete, accurate and applicable to the jurisdiction. This may involve independently verifying all authorities, quotations, legal propositions and factual assertions using reliable primary sources. 

Any extracts or quotes relied on must be verified as accurate and attributed to the correct source. 

Another AI tool cannot be used for verification.

Use of AI to prepare evidence

Caution must be exercised when using AI to prepare affidavits, witness statements or expert reports. 

Any sworn or affirmed material must reflect the witness’s own knowledge and words. 

Expert reports must continue to comply with the expert’s existing obligations under the court rules and expert witness code of conduct. When using AI in preparing their report, experts must ensure that:

• the opinions expressed are genuinely their own;
• the reasoning process reflects their own expert analysis; 
• the report accurately reflects their knowledge and conclusions; and 
• any AI-assisted content has been independently verified.

Judicial officers

Separately, the Court’s new Judicial Guidelines confirm that judicial officers must not use generative AI for judicial decision-making. 

However, approved AI tools may be used for supportive administrative purposes, such as organising materials, preparing summaries and assisting with legal research.

Commencement and future developments

The Practice Note and Guidelines commenced on 14 May 2026 and apply immediately to all Supreme Court proceedings.

Court users can expect the Practice Note and Guidelines to continue to be refined as AI technology develops and the Court gains further experience with AI use in litigation and court administration.

By Lawyers will continue to monitor developments relating to the use of AI in legal practice and court proceedings.

The By Lawyers Supreme Court Civil (VIC) guide has been updated accordingly.

Courts, parliaments, and the By Lawyers production team are well and truly into the swing of the new year, with important practice note changes, legislative amendments, and helpful new AI prompts taking our focus over the past month.

Our regular review work continues in the background, with updates and enhancements to the Sale and Purchase of Business guides in each state being progressively rolled out.

See below for more details:

AI prompts for Companies, Trusts, Partnerships, and Joint Ventures – All states

By Lawyers has added new AI prompts to the Companies, Trusts, Partnerships, and Joint Ventures matter plans to help practitioners quickly and confidently check that drafted documents reflect a client’s instructions.

The new prompts are:

• Prompt comparing instructions with draft shareholders agreement; 

• Prompt comparing instructions with draft partnership agreement;

• Prompt comparing instructions with draft trust deed; and

• Prompt comparing instructions with draft joint venture agreement.

These AI prompts act as an additional layer of review, assisting lawyers to identify inconsistencies, omissions, or unintended departures from client instructions. In doing so, they strengthen risk management processes while saving time in complex commercial matters.

The prompts are available within the relevant By Lawyers matter plans and are designed to work seamlessly with LEAP’s Matter AI. This integration allows practitioners to harness AI functionality directly within their LEAP matter, alongside By Lawyers trusted guides and precedents.

By incorporating these AI prompts into established matter plans, By Lawyers continues to provide best practice processes that help firms work efficiently and reduce risk. Our sequential matter plans guide practitioners logically from instruction to completion, ensuring that no critical step is missed. The addition of AI-powered comparison tools further enhances accuracy and confidence.

These new AI prompts are now available in our Companies, Trusts, Partnerships, and Joint Ventures publications.

Restrictions on the use of generative AI in the Local Court - NSW

A new Local Court practice note applies the restrictions on the use of generative AI that already exist in the Supreme and District Courts to all Local Court proceedings. 

Local Court Practice Note: Generative Artificial Intelligence adopted the Supreme Court’s Practice Note SC GEN 23 Use of Generative Artificial Intelligence with effect from 12 January 2026.

The key provisions of the practice note are:

• Legal practitioners are expected to be aware of the limits, risks, and shortcomings of any particular generative AI program they use, including the scope for hallucinations.

• It is impermissible, without the leave of the court, to enter into any generative AI program any information to which the implied undertaking, also called the Harman undertaking, applies, such as another party's affidavits or material produced under subpoena, unless the legal practitioner or person with responsibility for the file is satisfied that the information will remain confidential, will only be used in connection with the proceedings, and will not be used to train the AI program.

• AI must not be used in generating the content of affidavits, witness statements, or other material intended to reflect a deponent or witness’ evidence or opinion, or any other material tendered in evidence or used in cross-examination.

• If generative AI has been used in the preparation of written submissions, summaries, or arguments, the author must verify in the document that all citations, legal and academic authority, and case law and legislative references exist, are accurate, and are relevant to the proceedings.

• Affidavits, witness statements, and other material that is intended to reflect the deponent or witness’ evidence or opinion must contain a statement that AI was not used in generating their content.

• Generative AI must not be used to draft or prepare the content of an expert report, without the prior leave of the court, and parties must bring this requirement to the expert's attention.

• There is a procedure for parties to seek leave if an expert proposes to use generative AI for their report. Disclosure and record-keeping obligations are imposed on an expert if leave is granted and AI is used for their report.

The Judicial Guidelines on the use of generative AI already apply to all courts in New South Wales.

The commentary and precedents in By Lawyers Local Court Civil (NSW), Local Court Criminal (NSW), Traffic Offences (NSW) and Apprehended Violence Orders (NSW) guides have been updated in line with the new practice direction. This includes guidance and hyperlinks in the commentaries, and precedents such as letters instructing expert witnesses and clauses for affidavits.

The Implied undertaking section in By Lawyers 101 Subpoena Answers, available in the Reference Materials folder on all litigation matter plans, has also been updated. New UCPR Forms 40 and 163 that contain the required disclosure notice that generative AI was not used are also being added to the relevant matter plans.

Uniform defamation law amendments - QLD

Amendments to the uniform defamation law have effect in Queensland.

The Defamation and Other Legislation Amendment Act 2025 (QLD) introduced reforms agreed nationally in 2024 that have already commenced in other jurisdictions, except WA.

The amendments include:

Exemption from liability in defamation as publishers for digital intermediaries

The legislation now provides an exemption from liability in defamation for digital intermediaries providing caching, conduit, or storage services, provided the intermediary did not:

1. initiate the steps required to publish the matter;

2. select any of the recipients of the matter;

3. encourage the poster of the defamatory material to publish the matter;

4. edit the content of the matter whether before or after it was published; or

5. promote the matter whether before or after it was published.

The section applies regardless of whether the digital intermediary knew or ought reasonably to have known the digital material was defamatory.

Exemption from liability under defamation law for search engine providers

Like digital intermediaries, search engine providers are not liable for defamatory material comprising search results if the provider’s role is limited to providing an automated process for the search engine user to generate search results or hyperlinks, provided the search results or hyperlinks are not promoted or prioritised by the search engine provider receiving a payment or another benefit by or on behalf of a third party.

The provision applies regardless of whether the search engine provider knew or ought reasonably to have known the digital matter was defamatory.

Early determination of digital intermediary exemptions

The court must determine whether a defendant has a digital intermediary exemption and whether the exemption is established as soon as practicable before the trial commences unless there are good reasons to postpone the determination. In doing so, the court can make any orders it considers appropriate, including dismissing the proceedings, if satisfied the digital intermediary exemption is established.

Content of offer to make amends

The digital intermediary exemptions from liability as publishers include changes to offers to make amends, in that an offer in the case of digital matter may include an offer to prevent access to the defamatory material, instead of, or in addition to, other offers to make amends.

Orders for preliminary discovery in defamation cases about posters of digital matter

Defamation litigants can take advantage of pre-litigation or preliminary discovery to assist in identifying the poster of defamatory material or the physical or digital address of the poster, to allow concerns notices and court proceedings to be served.

Defence for publications involving digital intermediaries

This new defence is available if a digital intermediary has provided an accessible complaints mechanism for an aggrieved person to use and they use it to make a complaint.

The digital intermediary must have taken reasonable steps to prevent access to the defamatory material, either before the complaint was received, or within 7 days of the complaint.

The complaints mechanism must be an easily accessible address, location or other mechanism available for the plaintiff to use to complain to the defendant about the publication of the digital matter concerned.

Defence available to content moderators

The defence of digital intermediary is available to defendants who moderate content by taking steps to detect or identify and remove, block, disable, or otherwise prevent access to content that may be defamatory, or that breaches the terms or conditions of the online service.

Orders against non-party digital intermediaries

If a plaintiff secures judgment or an injunction against a defendant in proceedings, the court may order a non-party digital intermediary to take access prevention steps, or other steps the court considers necessary to prevent or limit the continued publication or re-publication of the matter complained of.

Such an order may require access prevention steps to be taken in relation to all or only some of the users of an online service.

The new section does not limit other powers of the court to grant injunctions or make other orders for access prevention.

Service of notices and other documents

The amendments expand the existing options for serving notices and documents to include messaging or other electronic communication to an electronic address or location indicated by the recipient.

Extension of the defence of absolute privilege under uniform defamation law

Concerns were raised in the Stage 2 review of the uniform defamation law about liability in defamation for someone reporting a person to the police for suspected wrongdoing, and then being sued by that person in defamation if the police dismiss the complaint for lack of evidence or absence of culpability on the part of the person reported.

These concerns were addressed by amending the absolute defence provisions of the uniform defamation law to provide that defamatory matter published to a police officer while the officer is acting in an official capacity is covered by the defence of absolute privilege.

Publication updates

The By Lawyers Defamation and Protecting Reputation publication has been updated accordingly.

Changes to intervention orders - VIC

The first tranche of amendments under the Justice Legislation Amendment (Family Violence, Stalking and Other Matters) Act 2026 (VIC) commenced on 11 February 2026. 

These initial changes include:

• amending the Family Violence Protection Act 2008 to clarify against whom the court can make an interim order on its own motion in a bail matter or criminal proceeding; and
• amending the Personal Safety Intervention Orders Act 2010 to provide for a court to make an interim order on its own motion in a bail matter or criminal proceeding.

The By Lawyers Intervention Orders (VIC) guide has been updated to include practical guidance on navigating these changes.

The remaining provisions of the amending Act commence in 2 further tranches on 26 April 2026 and 10 November 2026 unless proclaimed earlier. By Lawyers will monitor the legislation and further update our guides in line with these amendments when they commence.

The remaining provisions include:

1. Changes to the Family Violence Protection Act 2008 covering:

• how intervention orders and other documents are served;

• the duration of final orders;

• consideration of misidentification, age and cognitive impairment when making family violence intervention orders and, for misidentification, when issuing family violence safety notices;

• a ban on making a family violence intervention against a child under 12 ;

• legal representation in contested family violence intervention order applications; 

• removal of limits on making family violence intervention orders where family violence occurred outside Victoria;

• clearer guidance on what behaviours constitute family violence;

• conditions that can be included in intervention orders and safety notices, including conditions about animals; and

• ongoing protection where a family violence intervention order is made to protect a child.

2. Amendment of the Crimes Act 1958 concerning:

• the offence of stalking; and

• alternative jury verdicts for certain sexual offences.

3. Amendment of the Criminal Procedure Act 2009 concerning:

• the offence of stalking; and

• the role and functions of intermediaries.

4. Amendment of the Evidence (Miscellaneous Provisions) Act 1958 notice requirements for evidence of confidential communications and protected health information.

5. Amendment of the Personal Safety Intervention Orders Act 2010 to define stalking under that Act.

Revised Common Law practice note in the County Court - VIC

The County Court of Victoria has issued a revised Common Law Division Practice Note, with effect from 9 February 2026.

The practice note provides procedural guidance for proceedings in the Common Law Division.

Key changes from the previous version published in July 2025 include:

• Introduction

• Information about the structure of the Common Law Division has been moved to the County Court website.

• Interlocutory applications

• The types of disputes appropriate to be listed for a directions hearing have been clarified.

• New guidance has been added on the material to be provided by parties before a directions hearing, and on applications to vacate or adjourn interlocutory applications.

• Referral of medical questions to a medical panel in serious injury applications

• The process has been changed to avoid multiple directions hearings, with most referrals now dealt with on the papers via administrative mention listings.

• The status of hearing dates pending return of the Medical Panel Opinion has been clarified.

• WorkCover List practices

• Administrative mentions for case management have been introduced.

• The practice for referral of medical questions to a medical panel has been amended to aligned with the updated practice in the Serious Injury List.

• Medical List

• The practice for interlocutory disputes has been amended to align with the General List.

• Post mediation directions hearings have been replaced by post mediation administrative mentions.

• Institutional Liability List

• The practice for interlocutory disputes has been amended to align with the General List practice.

• Appeals and post sentence application: Intervention Order appeals

• The pre-determination process has been amended so that all documentation and applications are provided on the papers, without a final directions hearing.

• Determination of appeals may now be heard in person or on the papers, at the discretion of the allocated judge.

The Common Law Division standard orders booklet has also been updated. 

Links and references to the Common Law Division Practice Note and the standard orders booklet in the matter plans and commentary in the By Lawyers County Court Civil (VIC) – Acting for the Plaintiff and Acting for the Defendant guides have been updated accordingly.

New AI Prompts - All states

Estate Administration

Three new AI prompts have been to the Probate and Letters of Administration guides in all states:

• Prompt for initial summary of estate assets and liabilities
• Prompt for letter to executor summarising estate responsibilities and action to be taken
• Prompt for statement of assets, liabilities and distribution

Mortgages

These 2 new AI prompts in the Mortgages guides for all states help practitioners draft and advise on loan documentation

• Prompt for comparing instructions with draft loan agreement
• Prompt for summary of loan terms

Leases

The following AI prompts have been added to By Lawyers Leases publications in Victoria and Queensland:

• Prompt for letter to client with advice on retail lease;
• Prompt for letter to client with advice on commercial and industrial lease
• Prompt for letter to client with advice on rural lease

Purchase of business

Two new AI prompts have been added to the Purchase of business guides in all states: 

• Prompt for letter to client with summary of contract for sale of business
• Prompt comparing instructions with draft sale of business agreement

By Lawyers prompts are developed for use with LEAP’s Matter AI and have not been tested or validated with any other software or AI platforms.

Updates to By Lawyers mortgages publications

By Lawyers Mortgages guides have been reviewed and enhanced by our in-house team, in consultation with our authors in each state.

Key enhancements include:

• an updated and more concise Overview and Scope of the publication;
• a Summary of the process, setting out the usual steps when acting for both a private lender/mortgagor and a private borrower/mortgagee;
• updated links and references to relevant legislation in each jurisdiction;
• detailed tips for Taking instructions in mortgage matters;
• a new Initial considerations section discussing practical preliminary issues such as due diligence, valuations, consents, and second or subsequent mortgages;
• detailed guidance on the Creation and registration of a mortgage, including the National Mortgage Form and commentary on relevant aspects of electronic conveyancing practice, with links to land registries and resources;
• more detailed guidance on Certificates of independent advice;
• a consolidated section on Discharge, transfer, assignment, and variation of mortgages, with additional commentary and links to land registries and resources;
• more detailed commentary on Default, including the mortgagee’s power of sale, notice and service requirements, and obtaining possession.

The Matter Plans in each state include the By Lawyers precedent Mortgage linked loan agreement and a Standard terms document – Registered memorandum, registered in each state.

New Rules for the use of Gen AI in the Personal Injury Commission - NSW

New rules

Under the Personal Injury Commission (Amendment No 4) Rule 2025, which amended the Personal Injury Commission Rules 2021 with effect from 1 January 2026, the use of generative AI is subject to the provisions of 2 new rules.

Rule 33A provides that generative AI must not be used for the content of a written statement of evidence on which a party proposes to rely. This extends to using AI to alter, embellish, strengthen, dilute, or rephrase a person’s evidence. 

Each written statement must include a statement that generative AI was not used to generate its content.

Further, generative AI must not be used for the content of an annexure or exhibit to a written statement, unless the annexure or exhibit states that generative AI was used.

Rule 33B requires that an expert’s report must contain a statement that either:

• generative AI was not used to generate its content, or
• generative AI was used, and the use complied with any procedural direction on its use.

If AI was used, the report must identify the parts of the report for which it was used, the name and version of the AI program used, the date of use, and any prompts, script, or data provided to it, which must be attached to the report.

Publication updates

The By Lawyers Workers Compensation (NSW) and Motor Vehicle Accident (NSW) - Accidents from 1 December 2017 guides have been updated to reflect these changes.

The updates include:

• amendments to each Full Commentary;
• amendments to the precedent letters to medical and other experts;

a new Enclosure setting out Rule 33B in full, for easy inclusion when briefing an expert witness. 

Amendments to uniform defamation law - SA

Amendments to the uniform defamation law are in effect in South Australia from 15 December 2025.

The Defamation (Miscellaneous) Amendment Act 2025 (SA) introduced reforms agreed nationally in 2024 that have already commenced in the other jurisdictions except Queensland and WA.

These amendments include:

Exemption from liability in defamation as publishers for digital intermediaries

There in now an exemption from liability in defamation for digital intermediaries providing caching, conduit, or storage services, provided the intermediary did not:

1. initiate the steps required to publish the matter;
2. select any of the recipients of the matter;
3. encourage the poster of the defamatory material to publish the matter;
4. edit the content of the matter whether before or after it was published; or
5. promote the matter whether before or after it was published.

This applies regardless of whether the digital intermediary knew or ought reasonably to have known the digital material was defamatory.

Exemption from liability under defamation law for search engine providers

Like digital intermediaries, search engine providers are not liable for defamatory material comprising search results if the provider’s role is limited to providing an automated process for the search engine user to generate search results or hyperlinks, provided the search results or hyperlinks are not promoted or prioritised by the search engine provider receiving a payment or another benefit by or on behalf of a third party.

The provision applies regardless of whether the search engine provider knew or ought reasonably to have known the digital matter was defamatory.

Early determination of digital intermediary exemptions

The court must determine whether a defendant has a digital intermediary exemption and whether the exemption is established as soon as practicable before the trial commences unless there are good reasons to postpone the determination. In doing so, the court can make any orders it considers appropriate, including dismissing the proceedings, if satisfied the digital intermediary exemption is established.

Content of offer to make amends

The digital intermediary exemptions from liability as publishers include changes to offers to make amends, in that an offer in the case of digital matter may include an offer to prevent access to the defamatory material, instead of, or in addition to, other offers to make amends.

Orders for preliminary discovery in defamation cases about posters of digital matter

Defamation litigants can take advantage of pre-litigation or preliminary discovery to assist in identifying the poster of defamatory material or the physical or digital address of the poster, to allow concerns notices and court proceedings to be served.

Defence for publications involving digital intermediaries

This new defence is available if a digital intermediary has provided an accessible complaints mechanism for an aggrieved person to use and they use it to make a complaint.

The digital intermediary must have taken reasonable steps to prevent access to the defamatory material, either before the complaint was received, or within 7 days of the complaint.

The complaints mechanism must be an easily accessible address, location or other mechanism available for the plaintiff to use to complain to the defendant about the publication of the digital matter concerned.

Defence available to content moderators

The defence of digital intermediary is available to defendants who moderate content by taking steps to detect or identify and remove, block, disable, or otherwise prevent access to content that may be defamatory, or that breaches the terms or conditions of the online service.

Orders against non-party digital intermediaries

If a plaintiff secures judgment or an injunction against a defendant in proceedings, the court may order a non-party digital intermediary to take access prevention steps, or other steps the court considers necessary to prevent or limit the continued publication or re-publication of the matter complained of.

Such an order may require access prevention steps to be taken in relation to all or only some of the users of an online service.

The new section does not limit other powers of the court to grant injunctions or make other orders for access prevention.

Service of notices and other documents

The amendments expand the existing options for serving notices and documents to include messaging or other electronic communication to an electronic address or location indicated by the recipient.

Extension of the defence of absolute privilege under uniform defamation law

Concerns were raised in the Stage 2 review of the uniform defamation law about liability in defamation for someone reporting a person to the police for suspected wrongdoing, and then being sued by that person in defamation if the police dismiss the complaint for lack of evidence or absence of culpability on the part of the person reported.

These concerns were addressed by amending the absolute defence provisions of the uniform defamation law to provide that defamatory matter published to a police officer while the officer is acting in an official capacity is covered by the defence of absolute privilege.

Publication updates

The By Lawyers Defamation and Protecting Reputation publication has been updated accordingly.

Family Violence Victims can Requalify for First Home Buyer Benefits - VIC

Victims of family violence can requalify for first home buyer benefits for another purchase in Victoria, even if they have:

• previously received a first home owner grant or first home buyer duty exemption or concession;
• owned a home previously.

Variations and waivers are also available for those who are unable to meet the 12-month residency requirement for benefits.

The By Lawyers Purchase of Real Property (VIC) commentary has been updated to include guidance on acting for purchasers who have been affected by family violence. 

1001 Conveyancing Answers Updated - VIC

Some notable recent cases have been added to 1001 Conveyancing Answers (VIC). This comprehensive reference work assists property lawyers and conveyancers with more detailed aspects of the conveyancing process and to solve problems for their clients.

These enhancements are part of a review of the publication by our author, Russell Cocks.

New cases added to the publication include:

• Nota & Anor v Karlovy Group Pty Ltd & Anor [2025] VCC 1132, which allowed damages for loss of opportunity in respect of the unpaid purchase price;
• Sumner v Nobes (Building and Property) [2025] VCAT 96 and Fall-Armytage v Victorian Managed Insurance Authority [2025] VCC 709 for building contract disputes decided by VCAT;
• Elliot v Elly Property Wright Residential Pty Ltd [2024] ACTSC 192 on a purchaser’s caveatable interest in a subdivided property; and
• Nasseri v Wellington Builders Pty Ltd & Ors [2024] VSC 200, which held that a reference to a unit trust in a contract of sale is a reference to the trustee of the unit trust.

1001 Conveyancing Answers (VIC) is available in all By Lawyers conveyancing and property publications in Victoria.