South Australian Numbered Acts South Australian Numbered Acts44—Substitution of Part 6 Divisions 1 and 2
Part 6 Divisions 1 and 2—delete Divisions 1 and 2 and substitute:
Division 1—Preliminary
68—Unsatisfactory professional conduct
In this Act—
"unsatisfactory professional conduct" includes conduct of a legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner.
69—Professional misconduct
In this Act—
"professional misconduct" includes—
(a) unsatisfactory professional conduct of a legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
(b) conduct of a legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to practise the profession of the law.
70—Conduct capable of constituting unsatisfactory professional conduct or professional misconduct
Without limiting section 68 or 69, the following conduct is capable of constituting unsatisfactory professional conduct or professional misconduct:
(a) conduct consisting of a contravention of this Act, the regulations or the legal profession rules;
(b) charging of excessive legal costs in connection with the practice of law;
(c) conduct in respect of which there is a conviction for—
(i) a serious offence; or
(ii) a tax offence; or
(iii) an offence involving dishonesty;
(d) conduct of a legal practitioner as or in becoming an insolvent under administration;
(e) conduct of a legal practitioner in becoming disqualified from managing or being involved in the management of any corporation under the Corporations Act 2001 of the Commonwealth;
(f) conduct of a legal practitioner in failing to comply with an order of the Tribunal made under this Act or an order of a corresponding disciplinary body made under a corresponding law (including but not limited to a failure to pay wholly or partly a fine imposed under this Act or a corresponding law);
(g) conduct of a legal practitioner in failing to comply with a compensation order made under this Act or a corresponding law;
(h) conduct of a legal practitioner in failing to comply with the terms of a professional mentoring agreement entered into with the Society.
Division 2—Legal Profession Conduct Commissioner
Subdivision 1—Legal Profession Conduct Commissioner
71—Legal Profession Conduct Commissioner
(1) There will be a Legal Profession Conduct Commissioner.
(2) The Commissioner will be appointed by the Governor, following consultation about the appointment by the Attorney-General with the Society and the South Australian Bar Association Incorporated, and is an agency of the Crown.
(3) Although a person appointed as Legal Profession Conduct Commissioner need not be a legal practitioner, the Commissioner must be a person who, in the opinion of the Attorney-General—
(a) is familiar with the nature of the legal system and legal practice; and
(b) possesses sufficient qualities of independence, fairness and integrity.
72—Functions
(1) The functions of the Commissioner are—
(a) to investigate suspected unsatisfactory professional conduct or professional misconduct by legal practitioners in accordance with Subdivision 2; and
(b) following an investigation, to take action authorised under Subdivision 3 or to lay charges before the Tribunal; and
(c) to receive and deal with complaints of overcharging in accordance with Subdivision 4; and
(d) to arrange for the conciliation of complaints in accordance with Subdivision 5; and
(e) to commence disciplinary proceedings against legal practitioners or former legal practitioners in the Supreme Court on the recommendation of the Tribunal or under section 88A or 89; and
(f) to carry out such other functions as are assigned to the Commissioner under this Act.
(2) The Commissioner may, with the approval of the Attorney-General, fix, and require the payment of, fees in connection with the performance of functions of the Commissioner under this Act.
(3) The Commissioner may exercise any of his or her functions or powers in relation to a person who is a former legal practitioner if, at the time of the alleged unsatisfactory professional conduct, professional misconduct or overcharging, the person was a legal practitioner.
(4) The Commissioner may be represented in proceedings before any court or tribunal by a legal practitioner employed or engaged by the Commissioner.
73—Terms and conditions of appointment
(1) The Commissioner will be appointed for a term not exceeding 5 years and on conditions determined by the Governor and, at the end of a term of appointment, will be eligible for reappointment.
(2) The appointment of the Commissioner may be terminated by the Governor on the ground that the Commissioner—
(a) has been guilty of misconduct; or
(b) has been convicted of an offence punishable by imprisonment; or
(c) has become bankrupt or has applied to take the benefit of a law for the relief of insolvent debtors; or
(d) has been disqualified from managing corporations under Chapter 2D Part 2D.6 of the Corporations Act 2001 of the Commonwealth; or
(e) has, because of mental or physical incapacity, failed to carry out duties of the position satisfactorily; or
(f) is incompetent or has neglected the duties of the position.
(3) The appointment of the Commissioner is terminated if the Commissioner—
(a) becomes a member, or a candidate for election as a member, of the Parliament of this State or any other State of the Commonwealth or of the Commonwealth or of a Legislative Assembly of a Territory of the Commonwealth; or
(b) is sentenced to imprisonment for an offence.
(4) The Commissioner may resign by notice in writing to the Minister of not less than 3 months (or such shorter period as is accepted by the Minister).
74—Acting Commissioner
(1) The Minister may appoint a person (who may be a Public Service employee) to act as the Commissioner during any period for which no person is for the time being appointed as the Commissioner or the Commissioner is absent from, or unable to discharge, official duties.
(2) The terms and conditions of appointment of a person appointed to act as the Commissioner will be determined by the Minister.
75—Honesty and accountability
The Commissioner and any person appointed to act as the Commissioner are senior officials for the purposes of the Public Sector (Honesty and Accountability) Act 1995 .
76—Staff of Commissioner
The Commissioner may appoint staff to assist in carrying out the Commissioner's functions.
77—Delegation
(1) The Commissioner may delegate to a person (including a person for the time being performing particular duties or holding or acting in a particular position) a function or power under this or any other Act.
(2) A delegation—
(a) must be by instrument in writing; and
(b) may be absolute or conditional; and
(c) does not derogate from the power of the delegator to act in a matter; and
(d) is revocable at will.
(3) A delegated function or power may, if the instrument of delegation so provides, be further delegated in accordance with that instrument.
77A—Exchange of information between Commissioner and Council
(1) The Commissioner and the Council may enter into an agreement or arrangement providing for the exchange of information relating to legal practitioners.
(2) An agreement or arrangement must be reduced to writing and be approved by the Attorney-General.
Subdivision 2—Investigation of unsatisfactory professional conduct and professional misconduct
77B—Investigations by Commissioner
(1) The Commissioner may, on his or her own initiative, make an investigation into the conduct of a legal practitioner or former legal practitioner who the Commissioner has reasonable cause to suspect has been guilty of unsatisfactory professional conduct or professional misconduct.
(2) Subject to section 77C, the Commissioner must make an investigation into the conduct of a legal practitioner or former legal practitioner if—
(a) the Commissioner has been directed to make the inquiry by the Attorney-General or the Society; or
(b) a complaint has been received in relation to the conduct of the legal practitioner or former legal practitioner.
(3) No direction may be given to the Commissioner under this section unless the Attorney-General or the Society (as the case may require) has reasonable cause to suspect that the legal practitioner or former legal practitioner to whom the proposed investigation relates has been guilty of unsatisfactory professional conduct or professional misconduct.
(4) The provisions of Schedule 4 apply in relation to an investigation under this section.
77C—Closure of whole or part of complaint
(1) At any stage after receipt of a complaint, the Commissioner may close the complaint without further consideration of its merits for any of the following reasons to the extent they are applicable:
(a) the complaint is vexatious, misconceived, frivolous or lacking in substance;
(b) the complainant has not responded, or has responded inadequately, to a request for further information or has unreasonably failed to cooperate in the investigation or conciliation of the complaint;
(c) the subject-matter of the complaint has been or is already being investigated, whether by the Commissioner or another authority;
(d) the subject-matter of the complaint would be better investigated or dealt with by police or another investigatory or law enforcement body;
(e) the subject-matter of the complaint is the subject of civil proceedings, except so far as it is a disciplinary matter;
(f) the complaint is not one that the Commissioner has power to deal with;
(g) the Commissioner is satisfied that it is otherwise in the public interest to close the complaint.
(2) A complaint may be closed under this section without an investigation or without completing an investigation.
(3) The Commissioner is not required to give a complainant, a legal practitioner, a former legal practitioner, a law practice or the Legal Services Commission an opportunity to be heard or make a submission to the Commissioner before determining whether or not to close a complaint under this section.
(4) The power to close a complaint under this section extends to closure of part of a complaint.
77D—Notification of complaint to practitioner
(a) may, after receiving a complaint about a legal practitioner or former legal practitioner, notify the practitioner or former practitioner of the complaint or give the practitioner or former practitioner a summary or details of the complaint; and
(b) subject to section 77F, must, as soon as practicable after the Commissioner decides to investigate a complaint about a legal practitioner or former legal practitioner under section 77B and if he or she has not already done so, give the practitioner or former practitioner a summary or details of the complaint and a notice informing the practitioner or former practitioner of the right to make submissions; and
(c) must, before making a determination and if he or she has not already done so, give the legal practitioner or former legal practitioner a summary or details of the complaint and a notice informing the practitioner or former practitioner of the right to make submissions.
(a) subject to section 77F, as soon as practicable after deciding on his or her own initiative to make an investigation into the conduct of a legal practitioner or former legal practitioner or being directed to make an inquiry into the conduct of a legal practitioner or former legal practitioner by the Attorney-General or the Society, give the practitioner or former practitioner a summary or details of the reasons for the investigation and a notice informing the practitioner or former practitioner of the right to make submissions; and
(b) before making a determination and if he or she has not already done so, give the legal practitioner or former legal practitioner a summary or details of the reasons for the investigation and a notice informing the practitioner or former practitioner of the right to make submissions.
(3) A notice informing the legal practitioner or former legal practitioner of the right to make submissions must specify a period of 21 days in which submissions must be received or a shorter or longer period if the Commissioner reasonably believes a different period is warranted in the circumstances.
77E—Submissions by legal practitioner
(1) A legal practitioner or former legal practitioner who has received a notice of a decision or direction to make an investigation into his or her conduct may, within the period specified under section 77D, make submissions to the Commissioner about the subject-matter of the investigation, unless the matter has been closed.
(2) The Commissioner may, at his or her discretion, extend the period in which submissions may be made.
(3) The Commissioner must consider any submissions made by the legal practitioner or former legal practitioner within the specified period in response to the notice before deciding what action is to be taken in relation to the matter, and may consider submissions received afterwards.
77F—Exceptions to requirement for notification of complaint
(1) Section 77D(1)(b) and (2)(a) do not require the Commissioner to give a legal practitioner or former legal practitioner a summary or details of a complaint or the reasons for an investigation or a notice about making submissions if the Commissioner reasonably believes that to do so will or is likely to—
(a) prejudice the investigation; or
(b) prejudice an investigation by the police or another investigatory or law enforcement body of any matter with which the Commissioner's investigation is concerned; or
(c) in the case of an investigation of a complaint—place the complainant or another person at risk of intimidation or harassment; or
(d) prejudice pending court proceedings.
(2) In that case, the Commissioner—
(a) may postpone giving the legal practitioner or former legal practitioner the summary or details and the notice until of the opinion that it is appropriate to do so; or
(b) may at his or her discretion give the legal practitioner or former legal practitioner the notice and a statement of the general nature of the complaint or reasons for investigation.
Subdivision 3—Action following investigation
77G—Interpretation
In this Subdivision—
"complainant" means—
(a) in the case of an investigation made into the conduct of a legal practitioner or former legal practitioner because of a direction by the Attorney-General or the Society—the Attorney-General or the Society, as required; and
(b) in the case of an investigation made into the conduct of a legal practitioner or former legal practitioner because of a complaint—the person who made the complaint.
77H—Report on investigation
(1) If, in the course or in consequence of an investigation under this Division, the Commissioner is satisfied that there is evidence of professional misconduct by a legal practitioner or former legal practitioner, the Commissioner must make a report on the matter to the Attorney-General and the Society.
(2) If, in the course or in consequence of an investigation under this Division, the Commissioner comes into possession of information or evidence suggesting to the Commissioner that a criminal offence may have been committed, the Commissioner must pass the information or evidence on to the Crown Solicitor.
(3) The Commissioner must, at the request of the Crown Solicitor or a prosecution authority, furnish the Crown Solicitor or authority with any material in the Commissioner's possession relevant to the investigation or prosecution of the suspected offence.
(4) If it appears to the Crown Solicitor or a prosecution authority from a report or material furnished under this section that criminal proceedings should be taken against a person, the Crown Solicitor or authority may take any action that may be appropriate for that purpose.
77I—Commissioner to notify persons of suspected loss
If, in the course or in consequence of an investigation under this Division, the Commissioner has reason to believe that a person has suffered loss as a result of unsatisfactory professional conduct or professional misconduct by a legal practitioner or former legal practitioner, the Commissioner may notify the person.
77J—Powers of Commissioner to deal with certain unsatisfactory professional conduct or professional misconduct
(1) If, after conducting an investigation into conduct by a legal practitioner under this Division, the Commissioner is satisfied that there is evidence of unsatisfactory professional conduct and that the conduct in question can be adequately dealt with under this subsection—
(a) the Commissioner may determine not to lay a charge before the Tribunal and may instead exercise any 1 or more of the following powers:
(i) the Commissioner may reprimand the legal practitioner;
(ii) the Commissioner may order the legal practitioner to apologise to any person affected by the practitioner's conduct;
(iii) the Commissioner may order the legal practitioner—
(A) to redo the work that is the subject of the investigation at no cost or to waive or reduce the fees for the work; or
(B) to pay the costs of having the work that is the subject of the investigation redone;
(iv) the Commissioner may order the legal practitioner to undertake training, education or counselling or be supervised;
(v) the Commissioner may order the legal practitioner to pay a fine not exceeding $5 000;
(vi) the Commissioner may make an order imposing specified conditions on the practitioner's practising certificate (whether a practising certificate under this Act or an interstate practising certificate)—
(A) relating to the practitioner's legal practice; or
(B) requiring that the practitioner, within a specified time, complete further education or training, or receive counselling, of a type specified by the Commissioner;
(vii) the Commissioner may, with the consent of the legal practitioner, make any other order the Commissioner considers appropriate in the circumstances; or
(b) the Commissioner may, if the legal practitioner consents to such a course of action, determine not to lay a charge before the Tribunal and may instead exercise any 1 or more of the following powers:
(i) if the Commissioner believes that the legal practitioner may be suffering from an illness or a physical or mental impairment, disability, condition or disorder (including an addiction to alcohol or a drug, whether or not prescribed) that has detrimentally affected his or her ability to practise the law, the Commissioner may order the legal practitioner to—
(A) submit to a medical examination by a medical practitioner nominated by the Commissioner and to undertake any treatment recommended by the medical practitioner; or
(B) receive counselling of a type specified by the Commissioner; or
(C) participate in a program of supervised treatment or rehabilitation designed to address behavioural problems, substance abuse or mental impairment;
(ii) the Commissioner may order the legal practitioner to enter into a professional mentoring agreement with the Commissioner and to comply with all conditions of the agreement;
(iii) the Commissioner may make orders with respect to the examination of the legal practitioner's files and records by a person approved by the Commissioner (at the expense of the legal practitioner) at the intervals, and for the period, specified in the order;
(iv) the Commissioner may order the legal practitioner to pay a fine not exceeding $10 000;
(v) the Commissioner may make an order suspending the legal practitioner's practising certificate (whether a practising certificate under this Act or an interstate practising certificate) until the end of the period specified in the order (not exceeding 3 months);
(vi) the Commissioner may make an order requiring that the legal practitioner make a specified payment (whether to a client of the practitioner or to any other person) or do or refrain from doing a specified act in connection with legal practice.
(2) If, after conducting an investigation into conduct by a legal practitioner under this Division, the Commissioner is satisfied that there is evidence of professional misconduct and that the misconduct in question can be adequately dealt with under this subsection, the Commissioner may, if the legal practitioner consents to such a course of action, determine not to lay a charge before the Tribunal and may instead exercise any 1 or more of the following powers:
(a) the Commissioner may reprimand the legal practitioner;
(b) the Commissioner may order the legal practitioner to apologise to any person affected by the practitioner's conduct;
(c) if the Commissioner believes that the legal practitioner may be suffering from an illness or a physical or mental impairment, disability, condition or disorder (including an addiction to alcohol or a drug, whether or not prescribed) that has detrimentally affected his or her ability to practise the law, the Commissioner may order the legal practitioner to—
(i) submit to a medical examination by a medical practitioner nominated by the Commissioner and to undertake any treatment recommended by the medical practitioner; or
(ii) receive counselling of a type specified by the Commissioner; or
(iii) participate in a program of supervised treatment or rehabilitation designed to address behavioural problems, substance abuse or mental impairment;
(d) the Commissioner may order the legal practitioner to enter into a professional mentoring agreement with the Commissioner and to comply with all conditions of the agreement;
(e) the Commissioner may make orders with respect to the examination of the legal practitioner's files and records by a person approved by the Commissioner (at the expense of the legal practitioner) at the intervals, and for the period, specified in the order;
(f) the Commissioner may order the legal practitioner to pay a fine not exceeding $20 000;
(g) the Commissioner may make an order imposing specified conditions on the practitioner's practising certificate (whether a practising certificate under this Act or an interstate practising certificate)—
(i) relating to the practitioner's legal practice; or
(ii) requiring that the practitioner, within a specified time, complete further education or training, or receive counselling, of a type specified by the Commissioner;
(h) the Commissioner may make an order suspending the legal practitioner's practising certificate (whether a practising certificate under this Act or an interstate practising certificate) until the end of the period specified in the order (not exceeding 6 months);
(i) the Commissioner may make an order requiring that the legal practitioner make a specified payment (whether to a client of the practitioner or to any other person) or do or refrain from doing a specified act in connection with legal practice.
(3) Despite section 72(3), subsections (1) and (2) do not apply in relation to a former legal practitioner, but if, after conducting an investigation into conduct by a former legal practitioner under this Division, the Commissioner is satisfied that there is evidence of unsatisfactory professional conduct or professional misconduct that occurred while the former legal practitioner remained a legal practitioner and that the conduct in question can be adequately dealt with under this subsection—
(a) in the case of unsatisfactory professional conduct, the Commissioner may —
(i) determine not to lay a charge before the Tribunal and may instead order the former legal practitioner to pay a fine not exceeding $5 000; or
(ii) if the former legal practitioner consents to such a course of action, determine not to lay a charge before the Tribunal and may instead order the former legal practitioner to pay a fine not exceeding $10 000; and
(b) in the case of professional misconduct, the Commissioner may, if the former legal practitioner consents to such a course of action, determine not to lay a charge before the Tribunal and may instead order the former legal practitioner to pay a fine not exceeding $20 000.
(4) If the Commissioner proposes to exercise a power under subsection (1), (2) or (3), the Commissioner—
(a) must provide the complainant (if any) and, in the case of the exercise of a power that does not require the consent of the legal practitioner or former legal practitioner, the legal practitioner or former legal practitioner with details of the proposal and invite them to make written submissions to the Commissioner within a specified period; and
(b) must take into consideration any written submissions made to the Commissioner within the specified period, and may but need not consider submissions received afterwards; and
(c) is not required to repeat the process if the Commissioner decides to exercise the power in a different way, or exercise a different power, after taking into account any written submissions received during the specified period.
(5) The Commissioner may, in determining whether to exercise a power under this section in relation to a legal practitioner or former legal practitioner, take into account—
(a) any previous action relating to the practitioner under this section or a corresponding previous enactment; or
(b) any finding relating to the practitioner by the Tribunal, the Supreme Court or a corresponding disciplinary body of—
(i) professional misconduct or unsatisfactory professional conduct; or
(ii) unprofessional conduct or unsatisfactory conduct (within the meaning of this Act as in force before the commencement of this Division).
(6) An order under this section must be reduced to writing and be signed—
(a) by or on behalf of the Commissioner; and
(b) if it is an order requiring the consent of the legal practitioner or former legal practitioner—by the legal practitioner or former legal practitioner to whom it applies.
(7) A condition imposed on a practising certificate by an order under this section may be varied or revoked at any time on application by the legal practitioner to the Tribunal.
(8) The Commissioner must, as soon as possible after determining to exercise a power under this section, provide the complainant with written notification of the determination.
(9) An apparently genuine document purporting to be a copy of an order under this section and providing for the payment of a monetary sum by a legal practitioner (other than a fine), will be accepted in legal proceedings, in the absence of proof to the contrary, as proof of such a debt.
(10) A contravention of an order under this section is professional misconduct.
(11) If the Commissioner has ordered payment of a fine, a certificate of the fine must be filed in the Supreme Court.
(12) If a certificate has been filed under subsection (11), proceedings may be taken for the recovery of the fine as if the certificate were a judgment of the Supreme Court.
(13) The cost of a medical examination, medical treatment, counselling or a program of supervised treatment or rehabilitation undertaken by a legal practitioner pursuant to an order of the Commissioner is to be borne by the practitioner.
(14) In this section—
"medical practitioner" means a person registered under the Health Practitioners Regulation National Law to practise in the medical profession (other than as a student).
77K—Appeal against determination of Commissioner
(1) Subject to subsection (3), an appeal to the Tribunal against a determination of the Commissioner under section 77J(1)(a) or (3)(a)(i) may be instituted by—
(a) the legal practitioner or former legal practitioner in relation to whom the determination was made; or
(b) the complainant.
(2) Subject to subsection (3), an appeal to the Tribunal against a determination of the Commissioner under section 77J(1)(b), (2) or (3)(a)(ii) or (b) after conducting an investigation into the conduct of a legal practitioner or former legal practitioner following receipt of a complaint may be instituted by the person who made the complaint.
(3) An appeal must be instituted within 1 month of the date on which the appellant is notified of the determination unless the Tribunal is satisfied that there is good reason to dispense with the requirement that the appeal should be so instituted.
(4) The Tribunal may, on the hearing of the appeal—
(a) affirm, vary, quash or reverse the determination subject to the appeal and administer any reprimand, or make any order, that should have been administered or made in the first instance; and
(b) make such orders as to costs as it considers appropriate.
(5) Section 85(2) to (4) (inclusive) apply in relation to an order as to costs made under subsection (4).
77L—Commissioner must lay charge in certain circumstances
If, after conducting an investigation into conduct by a legal practitioner or former legal practitioner under this Division, the Commissioner is satisfied that—
(a) there is evidence of unsatisfactory professional conduct or professional misconduct by the practitioner or former practitioner; and
(b) the conduct in question cannot be adequately dealt with under section 77J,
the Commissioner must, subject to section 82(2a), lay a charge before the Tribunal in relation to the conduct unless the Commissioner determines that it would not be in the public interest to do so.
77M—Commissioner to provide reasons
If the Commissioner determines—
(a) not to investigate a complaint; or
(b) to close a complaint under section 77C; or
(c) after conducting an investigation into conduct by a legal practitioner or former legal practitioner under this Division that is the subject of a direction from the Attorney-General or the Society or a complaint—
(i) that there is no evidence of unsatisfactory professional conduct or professional misconduct; or
(ii) that there is evidence of unsatisfactory professional conduct or professional misconduct but—
(A) the conduct in question cannot be adequately dealt with under section 77J; and
(B) it would not be in the public interest to lay a charge in relation to the conduct before the Tribunal,
the Commissioner must provide the complainant and the legal practitioner or former legal practitioner with written reasons for the determination.
Subdivision 4—Complaints of overcharging
77N—Investigation of allegation of overcharging
(1) Subject to subsections (2) and (3) and section 77C, if a complaint of overcharging is made against a legal practitioner or former legal practitioner, the Commissioner must investigate the complaint unless the complaint is received by the Commissioner more than 2 years after the final bill to which the complaint relates was delivered to the client or the complaint is resolved before the Commissioner commences an investigation.
(2) The Commissioner may require a complainant to pay a reasonable fee, fixed by the Commissioner, for investigation of the complaint and decline to proceed with the investigation unless the fee is paid.
(3) The Commissioner may not proceed with the investigation of a complaint of overcharging while the bill to which the complaint relates is the subject of an application for adjudication of costs before the Supreme Court under Schedule 3.
(4) For the purposes of an investigation the Commissioner may do either or both of the following:
(i) require the legal practitioner or former legal practitioner to make a detailed report to the Commissioner, within the time specified in the notice, on the work carried out for the client to whom the bill was delivered; and
(ii) require the legal practitioner or former legal practitioner to produce to the Commissioner, within the time specified in the notice, documents relating to the work;
(b) arrange for the costs that are the subject of the complaint of overcharging to be assessed by a legal practitioner who is, in the opinion of the Commissioner, qualified to make such an assessment.
(5) A legal practitioner or former legal practitioner must comply with a requirement under subsection (4)(a).
Maximum penalty: $10 000 or imprisonment for 1 year.
(6) At the conclusion of the investigation, the Commissioner—
(a) must report to the complainant and the legal practitioner or former legal practitioner on the results of the investigation; and
(b) may recommend that the legal practitioner or former legal practitioner reduce a charge or refund an amount to the complainant or the client to whom the bill was delivered.
(a) the amount in dispute in a complaint of overcharging is no more than $10 000; and
(b) the costs the subject of the complaint have been assessed by a legal practitioner in accordance with subsection (4)(b); and
(c) the Commissioner has, by written notice, given the complainant and the legal practitioner or former legal practitioner details of the assessment and invited them to make written submissions within the period (which must be at least 7 days) specified in the notice,
the Commissioner may, after the end of the specified period and after having regard to any submissions received, make a determination as to whether or not there has been overcharging and, if so, the amount that has been overcharged.
(8) If the Commissioner makes a determination under subsection (7)—
(a) the Commissioner must give the complainant and the legal practitioner or former legal practitioner a certificate certifying the determination; and
(b) the determination is binding on, and enforceable by or against, the legal practitioner or former legal practitioner in relation to whom the complaint was made and the client to whom the bill was delivered.
(9) Subsection (8)(b) does not apply if the Supreme Court has adjudicated and settled the bill that is the subject of the complaint of overcharging.
(10) If a complaint of overcharging made against a legal practitioner or former legal practitioner results in a determination or finding that there has been overcharging or a recommendation, order or agreement that the legal practitioner or former legal practitioner reduce a charge or refund an amount to the complainant—
(a) the complainant is entitled to a refund of any fee paid to the Commissioner for investigation of the complaint; and
(b) the amount of the fee refunded to the complainant is recoverable from the legal practitioner or former legal practitioner as a debt due to the Commissioner.
(11) The provisions of Schedule 4 apply to an investigation under this section.
Subdivision 5—Conciliation
77O—Commissioner may conciliate complaints
(1) The Commissioner may, at any time, arrange for a conciliation to be conducted in relation to a matter before the Commissioner.
(2) Nothing said or done in the course of a conciliation under this section can subsequently be given in evidence in any proceedings (other than proceedings for a criminal offence).
(3) A person who has been involved in a conciliation in relation to a matter under this section is disqualified from investigating or further investigating the matter and from otherwise dealing with the matter.
(4) If agreement is reached through a conciliation under this section—
(a) the agreement must be recorded in writing and signed by the parties to the agreement and the Commissioner or on behalf of the Commissioner by a person authorised by the Commissioner for the purpose; and
(b) a copy of the agreement must be given to each of the parties.
(5) An apparently genuine document purporting to be an agreement signed in accordance with this section and providing for the payment of a monetary sum by a party to the agreement, will be accepted in legal proceedings, in the absence of proof to the contrary, as proof of such a debt.
(6) If a legal practitioner contravenes or fails to comply with the terms of an agreement reached following conciliation under this section, the contravention or non-compliance is professional misconduct.
(7) The fact that a conciliation is conducted or an agreement is reached in relation to a matter does not prevent investigation or further investigation or the laying of a charge in relation to conduct to which the matter relates.