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LEGAL PROFESSION UNIFORM LAW (NSW) - SCHEDULE 4

SCHEDULE 4 – Savings and transitional provisions

Part 1 - Introduction and general provisions

1 Definitions

In this Schedule--

"commencement day" means the day on which this Law (or the relevant provision of this Law) commences in this jurisdiction;

"old Chapter 4" means Chapter 4 of the Act, or one of the Acts, comprised in the old legislation;

"old Chapter 5" means Chapter 5 of the Act, or one of the Acts, comprised in the old legislation;

"old fidelity fund" means the fund (whatever called) of this jurisdiction that was in existence immediately before the commencement day and is of the same or a similar nature as the fund referred to in section 222 of this Law as applied in this jurisdiction;

"old legislation" means the statutory provisions repealed by the Legal Profession Uniform Law Act of this jurisdiction.

2 General savings and transitional provision

(1) Except where the contrary intention appears, this Schedule does not affect or take away from the Interpretation of Legislation Act 1984 of Victoria as applying under section 7(1) of this Law.
(2) If anything of a kind required or permitted to be done under a provision of this Law as applied in this jurisdiction was done under a corresponding provision of the old legislation and still had effect immediately before the commencement day, the thing continues in effect on and after that day as if--
(a) this Law as applied in this jurisdiction had been in force when it was done; and
(b) it had been done under this Law as applied in this jurisdiction.
(3) If subclause (2) applies in relation to the execution, lodgement, issue or publication of a written instrument, any reference in the instrument to a provision of the old legislation is, for the purposes of that subclause, to be read as a reference to the corresponding provision of this Law as applied in this jurisdiction.
(4) Without limiting subclauses (2) and (3), if a provision of the old legislation that corresponds to a provision of this Law as applied in this jurisdiction would, but for its repeal by the Legal Profession Uniform Law Act of this jurisdiction, have applied in relation to anything done or being done or in existence before the commencement day, the provision of this Law applies in relation to that thing, and so applies with any necessary adaptations.
(5) If a provision of the old legislation continues to apply by force of this Schedule, the following provisions also continue to apply in relation to the provision--
(a) any other provisions of the old legislation necessary to give effect to that continued provision;
(b) any regulation made under the old legislation for the purposes of that continued provision.
(6) This clause does not have effect to the extent that other provision is made by this Schedule or that the context or subject matter otherwise indicates or requires, and has effect subject to the local regulations.

3 References to old legislation

A reference to the old legislation in any Act (other than the Legal Profession Uniform Law Act of this jurisdiction or this Law as applied in this jurisdiction) or in any subordinate instrument, agreement, deed or other document is to be construed as a reference to this Law, so far as the reference relates to any period on or after the commencement day and is not inconsistent with the subject matter.

4 Time limits

(1) If the time for doing any act was fixed by or under the old legislation, that time continues to apply on and after the commencement day in relation to any act that was required or permitted to be done, and could have been done, before that day and, unless the contrary intention appears, nothing in this Law has the effect of extending or abridging the time for doing that act.
(2) The time for doing an act to which subclause (1) applies may be extended or abridged on or after the commencement day in accordance with any provision made by or under the old legislation as in force immediately before that day as if that provision had not been repealed, but subject to anything in this Schedule requiring a reference in that provision to be construed in a particular way.

5 Savings and transitional rules and regulations

(1) The Uniform Rules may contain provisions of a savings and transitional nature consequent on the repeal of the old legislation.
(2) The local regulations may contain provisions of a savings and transitional nature consequent on the repeal of the old legislation.
(3) The provisions referred to in subclause (2) prevail over the provisions referred to in subclause (1) to the extent of any inconsistency.
(4) Any such provision may, if the Uniform Rules or the local regulations (as the case may require) so provide, take effect from the commencement day or a later day.
(5) To the extent to which any such provision takes effect from a day that is earlier than the date of its gazettal or publication, the provision does not operate so as--
(a) to affect, in a manner prejudicial to any person (other than this jurisdiction or an authority of this jurisdiction), the rights of that person existing before the date of its gazettal or publication; or
(b) to impose liabilities on any person (other than this jurisdiction or an authority of this jurisdiction) in respect of anything done or omitted to be done before the date of its gazettal or publication.

Part 2 - Regulatory authorities

8 Initial appointment of Commissioner

(1) The initial appointment of the Commissioner is to be made by the host Attorney-General for this Law on the recommendation of the Standing Committee.
(2) The Commissioner appointed under this clause--
(a) is to be appointed for a term, not exceeding 12 months, specified in his or her instrument of appointment; and
(b) is eligible for reappointment in the same manner, but only if the initial appointment of persons as members of the Council has not taken effect; and
(c) is eligible for reappointment under clause 2 of Schedule 2, if the initial appointment of persons as members of the Council has taken effect.
(3) This clause has effect despite anything to the contrary in clause 2 or 3(1) of Schedule 2 and does not limit any other provision of that Schedule.

9 Local regulatory authority for Chapter 5 functions--postponement of section 405

(1) The Attorney-General of this jurisdiction may, by order published in the Gazette of this jurisdiction, declare that section 405(1) of this Law does not apply to a local regulatory authority of this jurisdiction exercising Chapter 5 functions.
(2) The declaration has effect only during the period of 3 years after this Law first applies to this jurisdiction as a participating jurisdiction, unless it is sooner revoked.
(3) Accordingly, section 405(1) of this Law does not apply to a local regulatory authority of this jurisdiction exercising Chapter 5 functions while a declaration under this clause is in force.

Part 3 - Particular provisions

Division 1 - Application of this Part

10 Application of the other provisions of this Part

(1) This Part (except this Division) applies in relation to this jurisdiction only if and to the extent legislation of this jurisdiction so provides.
(2) The provisions of other legislation of this jurisdiction dealing with matters to which this Part applies prevail over the provisions of this Part to the extent of any inconsistency.

Division 2 - Admission and legal practice

11 Admission

(1) A person who was a local lawyer within the meaning of the old legislation immediately before the commencement day by admission to the legal profession by the Supreme Court is, on and from that day, taken to be an Australian lawyer as if he or she had been admitted to the legal profession under this Law as applied in this jurisdiction.
(2) Despite anything to the contrary in subclause (1), the day of admission of a person referred to in that subclause is the day he or she was previously admitted to the legal profession by the Supreme Court of this jurisdiction.
(3) The fees payable for admission are the fees that were or would have been payable under the old legislation, unless otherwise provided by--
(a) legislation of this jurisdiction; or
(b) the Uniform Rules, if provision is not made by legislation of this jurisdiction.

12 Practising certificates--local legal practitioners

(1) A practising certificate (as a local legal practitioner) granted under the old legislation before the commencement day and expressed to be operative on or after that day is taken, on and after that day, to be an Australian practising certificate granted in this jurisdiction under this Law as applied in this jurisdiction, and may be renewed, varied, suspended or cancelled accordingly.
(2) If an application made under the old legislation for a practising certificate has not been determined before the commencement day--
(a) the application is to be determined under the old legislation and a practising certificate granted as a result of the application is taken to be an Australian practising certificate granted in this jurisdiction under this Law as applied in this jurisdiction; and
(b) a practising certificate already held by the applicant remains in force as if it were an Australian practising certificate granted in this jurisdiction under this Law as applied in this jurisdiction until a new certificate is granted or the application is refused.
(3) The fees payable in respect of an application referred to in subclause (2) (or for the grant or issue of a practising certificate in consequence of such an application) are the fees that were or would have been payable under the old legislation, unless otherwise provided by--
(a) legislation of this jurisdiction; or
(b) the Uniform Rules, if provision is not made by legislation of this jurisdiction.
(4) Any conditions attaching to a practising certificate granted under the old legislation continue to attach to the certificate on and after the commencement day.

12A Existing actions that may affect practising certificates

(1) The old legislation continues to apply for the purposes of the following matters, if those matters were not completed before 1 July 2015:
(a) the determination of whether to take action against the holder of a local practising certificate if a notice was given by the appropriate Council under the Legal Profession Act 2004 to the holder proposing the amendment, suspension or cancellation of the practising certificate and the taking of any such action,
(b) an investigation and the taking of any other action in relation to a show cause event under Division 7 of Part 2.4 of Chapter 2 of the Legal Profession Act 2004 .
(2) Any action taken under this clause in relation to a practising certificate is taken to have been done under this Law.

13 Registration certificates--foreign lawyers

(1) A registration certificate (as a locally registered foreign lawyer) granted under the old legislation immediately before the commencement day and expressed to be operative on or after that day is taken, on and after that day, to be an Australian registration certificate granted in this jurisdiction under this Law as applied in this jurisdiction, and may be renewed, suspended or cancelled accordingly.
(2) If an application made under the old legislation for registration as a foreign lawyer has not been determined before the commencement day--
(a) the application is to be determined under the old legislation and a registration certificate granted as a result of the application is taken to be an Australian registration certificate granted in this jurisdiction under this Law as applied in this jurisdiction; and
(b) a registration certificate already held by the applicant remains in force as if it were an Australian registration certificate granted in this jurisdiction under this Law as applied in this jurisdiction until a new certificate is granted or the application is refused.
(3) The fees payable in respect of an application referred to in subclause (2) (or for the grant or issue of a registration certificate in consequence of such an application) are the fees that were or would have been payable under the old legislation, unless otherwise provided by--
(a) legislation of this jurisdiction; or
(b) the Uniform Rules, if provision is not made by legislation of this jurisdiction.
(4) Any conditions attaching to a registration certificate granted under the old legislation continue to attach to the certificate on and after the commencement day.

14 Incorporated legal practices and multi-disciplinary practices

(1) An entity that was an incorporated legal practice within the meaning of the old legislation immediately before the commencement day is taken to be an incorporated legal practice within the meaning of this Law as applied in this jurisdiction.
(2) An entity that was a multi-disciplinary partnership within the meaning of the old legislation immediately before the commencement day is taken to be an unincorporated legal practice within the meaning of this Law as applied in this jurisdiction.
(3) An entity referred to in subclause (1) or (2) is taken to have given notice under section 104 of this Law as applied in this jurisdiction that it intends to engage in legal practice in Australia.

15 Disqualification orders

(1) This clause applies to an order that a person (other than a legal practitioner) is a disqualified person for the purposes of any provisions of the old legislation.
(2) An order to which this clause applies and that was in force under the old legislation immediately before the commencement day continues in force on and after that day according to its tenor as if it were an order under section 119 of this Law.

16 Approval of lay associates

(1) This clause applies to an approval of a lay associate for the purposes of a provision of the old legislation that prohibits a legal practitioner or law practice from having a lay associate who the practitioner or practice knows to be--
(a) a disqualified person (within the meaning of the provision); or
(b) a person who has been found guilty of a relevant offence (within the meaning of the provision).
(2) An approval to which this clause applies and that was in force under the old legislation immediately before the commencement day is taken, on and after that day, to be an approval of the person to whom the approval relates under section 121 of this Law.

17 Disqualification of entities from providing legal services

(1) An entity disqualified under the old legislation from providing legal services under the old legislation immediately before the commencement day continues to be disqualified under this Law.
(2) If the disqualification was made by an order under the old legislation that was in force immediately before the commencement day, the order continues in force on and after that day according to its tenor as if it were an order under Part 3.9 of this Law as applied in this jurisdiction.

Division 3 - Client information

18 Client information and legal costs

(1) Subject to subclause (2)--
(a) Part 4.3 of this Law applies to a matter if the client first instructs the law practice on or after the commencement day; and
(b) the provisions of the old legislation relating to legal costs (other than provisions prescribed by the local regulations) continue to apply to a matter if the client first instructed the law practice in the matter before the commencement day.
(2) If a law practice is retained by another law practice on behalf of another client on or after the commencement day in relation to a matter in which the other law practice was retained by the client before the commencement day--
(a) Part 4.3 of this Law does not apply in respect of the other law practice in relation to that matter; and
(b) in that case the provisions of the old legislation relating to legal costs (other than provisions prescribed by the local regulations) continue to apply.
(3) Until a Uniform Rule prescribing an amount for the purposes of section 174(4) of this Law takes effect, the lower threshold is $750 for those purposes.
(4) Until a Uniform Rule prescribing an amount for the purposes of section 174(5) of this Law takes effect, the higher threshold is $3000 for those purposes.

Division 4 - Trust money and trust accounts

19 Arrangements with ADIs

(1) This clause applies to an arrangement that--
(a) was entered into under the old legislation with an ADI and was in force immediately before the commencement day; and
(b) included provisions of the kind contemplated by section 149(1)(b) of this Law.
(2) An arrangement to which this clause applies continues in force on and after the commencement day as if it were an arrangement under section 149 of this Law, but only to the extent to which its provisions are of the kind contemplated by section 149(1)(b) of this Law.

20 External examiners

A person who, immediately before the commencement day, was an approved external examiner for the purposes of the old legislation is taken, on and after that day, to be duly appointed as an external examiner for the purposes of this Law until the end of 30 June of the second year after the year in which the commencement day occurs, whether or not the person meets the requirements of section 156 of this Law.

21 Deficiencies and irregularities in trust accounts

(1) Section 148 of this Law applies to a deficiency in a trust account or a failure to pay or deliver trust money, whether the deficiency or failure to pay or deliver relates to money received before, on or after the commencement day.
(2) Section 154 of this Law applies in relation to an irregularity, whether it occurred before or occurs on or after the commencement day.
(3) Section 154 of this Law applies to an Australian legal practitioner in relation to an irregularity, whether the practitioner became or becomes aware of the irregularity, or formed or forms the belief about the irregularity, before, on or after the commencement day.
(4) Section 154(1) of this Law does not apply to an ADI, to an external examiner or to an entity referred to in section 154(1)(d), in relation to an irregularity, if the ADI, external examiner or other entity became aware of the irregularity concerned before the commencement day.
(5) Neither section 154 of this Law nor this clause requires a notice to be given of a matter if notice was already given of the matter before the commencement day under the old legislation.

Division 5 - Fidelity cover

22 Current claims

(1) This clause applies to a claim made under the old legislation relating to claims against the old fidelity fund but not disposed of before the commencement day.
(2) On and after the commencement day--
(a) the claim is to continue to be dealt with in accordance with the provisions of the old legislation; and
(b) for that purpose, the claim is to continue to be dealt with by the entity responsible for dealing with it under those provisions (the
"current entity" ).
(3) Subclause (2)(b) does not apply if a local regulation or other legislation of this jurisdiction directs that another entity referred to in this Law (the
"substituted entity" ) is to deal with the complaint or investigation instead of the current entity.
(4) The substituted entity may have regard to anything done by the current entity before, on or after the commencement day but before the direction takes effect.

23 Claims under this Law about prior default

(1) This clause applies to a default that--
(a) happened or is alleged to have happened before the commencement day; and
(b) could have been, but was not, the subject of a claim under the fidelity cover provisions of the old legislation.
(2) A claim may be made under this Law on or after the commencement day about the default.
(3) The claim may be made, even if the default could not be the subject of a claim under this Law if it had happened on or after the commencement day.
(4) This Law applies (with the necessary modifications) in relation to the claim and the act or omission giving rise to or constituting the default.
(5) This clause does not authorise the making of a claim under this Law in relation to a default that occurred before the commencement day, if a corresponding claim could not have been made under the old legislation because it would have been barred at the relevant time.
(6) In this clause, a reference to a claim under the fidelity cover provisions of the old legislation includes a reference to a claim under clause 146 of the Legal Profession Regulation 2005 .

Division 6 - Investigations of certain matters

24 Current investigations under Chapter 3 of the old legislation

(1) This clause applies to an investigation commenced by a person (the
"investigator" ) under Chapter 3 of the old legislation, and subsisting immediately before the commencement day, for the purpose of--
(a) monitoring compliance by a law practice or person with the provisions of the old legislation (or of regulations under the old legislation) relating to trust money and trust accounts; or
(b) determining whether or not a law practice or person has contravened any of those provisions; or
(c) detecting or preventing defaults, fraud or defalcation in relation to a law practice; or
(d) investigating the affairs or specified affairs of a law practice.
(2) On and after the commencement day, the investigation is to continue to be dealt with in accordance with the provisions of the old legislation.
(3) An investigation may be undertaken under Division 4 of Part 4.2 of this Law in relation to a trust account or trust money received by a law practice whether that account was established, or that money was received, before, on or after the commencement day.
(4) A reference in a provision of this clause to provisions of the old legislation (or of regulations under the old legislation) does not include provisions prescribed by the local regulations.

25 Investigations under this Law of prior matters

(1) An investigation may be commenced under this Law on or after the commencement day in relation to matters (including acts and omissions) occurring before that day, for the purpose of--
(a) monitoring compliance by a law practice or person with the provisions of the old legislation (or of regulations under the old legislation) relating to trust money and trust accounts; or
(b) determining whether or not a law practice or person has contravened any of those provisions; or
(c) detecting or preventing defaults, fraud or defalcation in relation to a law practice; or
(d) investigating the affairs or specified affairs of a law practice--
so long as the same matters had not been, or had not commenced to be, investigated before that day under Chapter 3 of the old legislation.
(2) This clause does not authorise an investigation to be commenced after the commencement day in relation to a matter if an investigation of the relevant kind could not have been commenced under the old legislation in relation to the matter had the old legislation not been repealed.

Division 7 - Dispute resolution and professional discipline

26 Current complaints and investigations

(1) This clause applies to--
(a) a complaint made under old Chapter 4 but not disposed of before the commencement day; or
(b) an investigation referred to in old Chapter 4 that had begun but had not been completed before the commencement day.
(2) On and after the commencement day--
(a) the complaint or investigation is to continue to be dealt with in accordance with the provisions of the old legislation; and
(b) for that purpose, the complaint or investigation is to continue to be dealt with by the entity responsible for dealing with it under those provisions (the
"current entity" ).
(3) Subclause (2)(b) does not apply if a local regulation or other legislation of this jurisdiction directs that another entity referred to in this Law (the
"substituted entity" ) is to deal with the complaint or investigation instead of the current entity.
(4) The substituted entity may have regard to anything done by the current entity before, on or after the commencement day but before the direction takes effect.

27 Complaints and investigations under this Law of prior conduct

(1) This clause applies to conduct that--
(a) happened or is alleged to have happened before the commencement day; and
(b) could have been, but was not, the subject of a complaint (or, if relevant, a request for dispute resolution) under old Chapter 4.
(2) A complaint may be made under this Law on or after the commencement day in relation to the conduct, even if the conduct could not be the subject of a complaint under this Law if it had happened on or after the commencement day.
(3) An investigation may be commenced under this Law on or after the commencement day in relation to the conduct, so long as the same conduct had not been, or had not commenced to be, investigated before that day under the old legislation.
(4) The complaint may be made, or the investigation may be commenced, even if the conduct could not be the subject of a complaint under this Law if it had happened after the commencement day.
(5) This Law applies (with the necessary modifications) in relation to the conduct.
(6) However, disciplinary action may not be taken against a person under this Law in relation to the conduct if it is more onerous than the disciplinary action that could have been taken against the person under the old legislation in relation to the conduct.
(7) This clause does not authorise an investigation to be commenced after the commencement day in relation to the conduct if an investigation of the relevant kind could not have been commenced under the old legislation in relation to the conduct had the old legislation not been repealed.

Division 8 - External intervention

28 External intervention

(1) This clause applies to--
(a) any appointment made under old Chapter 5 before the commencement day and subsisting immediately before that day; or
(b) any other act, matter or thing done under that Chapter before the commencement day and having effect immediately before that day.
(2) On and after the commencement day--
(a) the appointment or other act, matter or thing operates or has effect for the purposes of this Law as if it had been duly made or done under Chapter 6 of this Law; and
(b) any function under this Law may be exercised in relation to the appointee or the other act, matter or thing by the entity responsible under the old legislation (the
"current entity" ).
(3) Subclause (2)(b) does not apply if a local regulation or other legislation of this jurisdiction directs that another entity referred to in this Law (the
"substituted entity" ) is to exercise the function.
(4) The substituted entity may have regard to anything done by the current entity before, on or after the commencement day but before the direction takes effect.

Division 9 - Other provisions

29 Injunctions

An injunction made or granted under the old legislation and in force immediately before the commencement day continues in force on and after that day according to its tenor as if it were an injunction under Part 9.6 of this Law as applied in this jurisdiction.

30 Offences

Nothing in this Schedule operates--

(a) to create an offence retrospectively or to increase the penalty for an offence retrospectively; or
(b) to create a liability for a contravention of a civil penalty provision retrospectively or to increase the penalty for a contravention of a civil penalty provision retrospectively.



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