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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Legal Practice Bill 2002
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. Interpretation 2
4. Meaning of "engage in legal practice" 9
5. Notes 10
Part 2 -- The Legal Practice Board
6. Legal Practice Board established 11
7. Members of the Board 11
8. Who may vote in election 11
9. Functions of the Board 11
10. Committees 12
11. Delegation 12
12. Powers of the Board 13
13. Application of funds 13
14. Accounts and records 13
15. Audit 14
16. Execution of documents by the Board 14
17. Annual and other reports 15
18. Protection from liability 15
Part 3 -- Articled clerks
19. Who may be an articled clerk 17
20. Who may have an articled clerk 17
21. Articles of clerkship 19
22. Continuation of articles 19
23. Articled clerk not to undertake other employment
without consent 20
24. Service under articles to accord with Act 21
page i
154 -- 3
Legal Practice Bill 2002
Contents
25. Reports to Board 21
26. Cancellation of articles 21
Part 4 -- Admission of legal
practitioners
27. Qualifications for admission of legal practitioners 22
28. Admission of legal practitioner 23
29. Objection to admission 24
30. Admission by Full Court 24
31. Roll of Practitioners 25
32. Certificate of admission 25
33. Restrictions on entitlement to practise 25
34. Re-admission as a legal practitioner 26
Part 5 -- Practice certificates
35. Requirement to hold practice certificate 28
36. Legal practitioner employed by this State 28
37. Application for practice certificate 28
38. Refusal of application 29
39. Unfit, incapable or insolvent practitioners 30
40. Conditions may be imposed upon practice certificate 31
41. Board's powers of inquiry 33
42. Duration of practice certificate 34
43. Suspension or cancellation of practice certificate after
disciplinary proceedings 34
44. Appeals 34
Part 6 -- Business structures
Division 1 -- General
45. Practitioner may practise under any business structure 36
46. Obligations of individual legal practitioners not
affected 36
Division 2 -- Incorporated legal practices
47. Nature of incorporated legal practice 36
48. Services and businesses of incorporated legal
practices 37
49. Corporations eligible to be incorporated legal
practices 37
50. Notice by corporation 38
51. Responsibilities of legal practitioner director 38
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Legal Practice Bill 2002
Contents
52. Obligations of legal practitioner director relating to
unsatisfactory conduct 39
53. Absence of legal practitioner director 39
54. Obligations of legal practitioners who are officers or
employees 40
55. Professional privileges 40
56. Pro bono services 41
57. Conflicts of interest 41
58. Disclosure obligations 41
59. Application of rules to incorporated legal practice 43
60. Requirements relating to professional indemnity
insurance 43
61. Requirements relating to advertising 43
62. Requirements relating to legal fees and costs 44
63. Requirements relating to trust accounts 44
64. Part 11 (except section 150) does not apply to
incorporated legal practice 45
65. Extension of vicarious liability of incorporated legal
practice 45
66. Prohibition on association with prohibited persons 46
67. Investigative powers relating to incorporated legal
practices 46
68. Audit of incorporated legal practice 47
69. Banning of incorporated legal practice 48
70. Disqualification from managing incorporated legal
practice 49
71. Disclosure of information to ASIC 50
72. Relationship to Corporations legislation and certain
other instruments 50
73. Undue influence 51
Division 3 -- Multi-disciplinary partnerships
74. Nature of multi-disciplinary partnerships 51
75. Conduct of multi-disciplinary partnerships 51
76. Responsibilities of legal practitioner partner 52
77. Obligations of legal practitioner partner related to
unsatisfactory conduct 52
78. Actions that may be taken by non-legal partner 53
79. Professional obligations and privileges of legal
practitioners who are partners or employees 53
80. Conflicts of interest 54
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Legal Practice Bill 2002
Contents
81. Disclosure obligations 54
82. Application of rules to legal practitioner partners and
employees 55
83. Requirements relating to advertising 56
84. Requirements relating to legal fees and costs 56
85. Requirements relating to trust accounts 56
86. Prohibited person must not act as employee or partner 57
87. Prohibition on partnerships with certain non-legal
partners 58
88. Undue influence 58
Part 7 -- Interstate practitioners
Division 1 -- Preliminary
89. When an interstate practitioner establishes an office 60
Division 2 -- Legal practice by interstate
practitioners
90. Interstate practitioner may practise in this State 60
91. Notification of establishment of office required 61
92. Requirements relating to professional indemnity
insurance 61
93. Requirements relating to Guarantee Fund 62
Division 3 -- Complaints and discipline
94. Local practitioners 62
95. Referral of complaints and disciplinary matters to
regulatory authorities in other States 63
96. Dealing with matters referred by regulatory authorities
in other States 63
97. Furnishing information 64
Division 4 -- Miscellaneous
98. Local practitioners are subject to interstate regulatory
authorities 65
99. Local practitioner receiving trust moneys interstate 65
100. Regulatory authority may exercise powers conferred
by law of another State 66
Part 8 -- Foreign lawyers
Division 1 -- Preliminary
101. Practice of foreign law defined 67
102. Who may practise foreign law 67
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Legal Practice Bill 2002
Contents
Division 2 -- Registration of foreign lawyers
103. Applying for registration 68
104. Registration fee 70
105. Registration 70
106. Conditions may be imposed on registration 71
107. Applicant to be notified of decision 71
108. Fees to be paid by registered foreign lawyers 72
109. Register 72
110. Suspending registration 72
111. Effect of suspension 73
112. Cancelling registration 74
113. Appeals 75
Division 3 -- Practising foreign law
114. Scope of practice allowed 76
115. Form of practice 77
116. Letterhead and other identifying documents 77
117. Designation 78
118. Employment of certificated practitioners by registered
foreign lawyers 79
119. Employment of registered foreign lawyers by
certificated practitioners etc. 79
120. Professional indemnity insurance 80
121. Trust accounts 80
122. Exemption may be granted by Board 80
Part 9 -- Unqualified and prohibited
practice
123. Prohibition on unqualified legal practice 81
124. No liability in certain cases 81
125. Offence by corporation 82
126. Certificated practitioner acting as agent for
unqualified person 83
127. Allowing unqualified person to act as practitioner 84
128. Unqualified person making false representation to be
practitioner 84
129. Practitioner making false representation to be
certificated 85
130. Sharing receipts 85
131. Employment or engagement of practitioner without
practice certificate 85
page v
Legal Practice Bill 2002
Contents
132. Prohibition on employment or engagement of certain
non-legal persons 86
133. Associates who are prohibited persons 86
134. Part does not affect operation of Fair Trading Act 87
135. Appeal 87
Part 10 -- Trust accounts
136. Interpretation 88
137. Trust moneys to be paid to trust account 88
138. Application of trust moneys to payment of costs 89
139. Banks not to be concerned as to the application of, or
to have recourse against, trust moneys 89
140. Legal practitioners to maintain books of account 90
141. Receipt of cheques 90
142. Board may appoint accountant to examine books of
account 91
143. Examiner may require production of books and
documents 92
144. Limitation on disclosure of matters revealed in the
course of examinations 93
145. Action on examiner's report 93
146. Legal practitioners to make payments towards
Guarantee Fund 94
147. Accountant's certificate 94
Part 11 -- Supervisors and managers
148. Interpretation 96
149. Restraint on bank accounts 96
150. Control of trust moneys by Legal Contribution Trust 97
151. Special powers of the Board 98
152. Functions of supervising solicitor 100
153. Payment of moneys out of separate account 101
154. Power of Board to appoint legal practitioner to inquire
into and report on practice 101
155. Board may apply to Judge for an order 103
156. Power of Judge 103
157. Effect of certain orders 104
158. Offence 105
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Legal Practice Bill 2002
Contents
Part 12 -- Complaints and discipline
Division 1 -- General
159. Interpretation 106
160. Application 106
161. Jurisdiction of Supreme Court not affected 107
Division 2 -- Disciplinary bodies
Subdivision 1 -- Complaints Committee
162. Complaints Committee established 107
163. Members of the Complaints Committee 107
164. Functions of the Complaints Committee 108
165. Constitution and procedure of Complaints Committee 109
166. Reports 109
167. The Law Complaints Officer 110
Subdivision 2 -- The Disciplinary Tribunal
168. Disciplinary Tribunal established 111
169. Composition of Disciplinary Tribunal 111
170. Chairperson of the Disciplinary Tribunal 111
171. Constitution and procedure of Disciplinary Tribunal 112
172. Functions of the Disciplinary Tribunal 113
173. Registrar 113
174. Annual report 113
Division 3 -- Complaints about legal practitioners
175. Making of complaints 114
Division 4 -- Conciliation and disciplinary
proceedings -- Complaints Committee
176. Conciliation 115
177. Summary professional disciplinary jurisdiction 116
178. Finding where legal practitioner convicted of an
offence 117
179. Disciplinary action against foreign lawyer 118
180. Referral by Committee to Disciplinary Tribunal 119
181. Complainant may refer complaint to Disciplinary
Tribunal 119
182. Interim restrictions on practice 120
Division 5 -- Disciplinary proceedings before
Disciplinary Tribunal
183. Referral to be dealt with expeditiously 120
184. Proceedings before the Disciplinary Tribunal 120
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Legal Practice Bill 2002
Contents
185. Powers of the Disciplinary Tribunal in relation to
individual legal practitioner 121
186. Disciplinary action against foreign lawyer 121
187. Orders of the Tribunal 122
188. Other powers of Tribunal in relation to insolvent,
incapable and unfit practitioners 124
189. Powers of Tribunal in relation to legal practitioner
director where practice has not complied with
insurance obligations 126
190. Finding where legal practitioner convicted of an
offence 127
191. Costs and expenses 128
192. Enforcement of orders 129
193. Contempt of Tribunal 129
194. Court to punish 130
Division 6 -- Practice and procedure of
disciplinary bodies generally
195. Summons 130
196. Representation 131
197. Hearings generally not to be public 131
198. Powers of disciplinary bodies 132
199. Possession of records and other things 135
200. Evidentiary material 135
201. Claims of privilege 136
Division 7 -- Miscellaneous
202. Appeals 136
203. Effect of striking off or suspension 136
204. Legal practitioners struck off or suspended in other
jurisdictions 137
205. Protection of persons 139
Part 13 -- Costs
Division 1 -- The Legal Costs Committee and
determination of remuneration
206. Interpretation 140
207. Legal Costs Committee established 140
208. Nominations 141
209. Constitution and procedure 141
210. Legal costs determinations 142
211. Review of determinations 143
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Legal Practice Bill 2002
Contents
212. Inquiries by the Legal Costs Committee 143
213. Notice and submissions in respect of determination 144
214. Report and publication of legal costs determinations 145
215. Effect of determination 145
216. Reports 146
217. Use of staff and facilities of departments 147
218. Funds 147
219. Application of Financial Administration and Audit
Act 1985 148
Division 2 -- Entitlement to remuneration
220. Interpretation 148
221. Costs agreement 148
222. Review of costs agreement 149
223. Saving in certain cases 149
224. Avoidance of costs agreement in certain cases 150
225. Security for costs 151
226. Costs where legal practitioner employed by this State
in a salaried capacity 151
227. Act not to validate purchase of client's interest, nor
agreement for payment only in event of success 152
Division 3 -- Taxation and recovery of costs
228. Interpretation 153
229. Taxing officer's discretionary powers 154
230. Bill of costs to be served before suit 154
231. Party may request bill for detailed items 154
232. Party charged with itemised bill may give notice of
intention to tax 155
233. Party not served with requested itemised bill may
have lump sum bill taxed 156
234. Taxing officer may order more detailed bill 156
235. Effect of costs agreement 156
236. Stay of recovery proceedings 157
237. Bill of costs to be lodged with taxing officer 157
238. Time and place of taxation 157
239. Costs of taxation 158
240. Certification, interest, amount, how recovered 158
241. Taxation of Legal Aid Commission bill of costs 159
242. Review of taxation 159
243. Overpayments to be returnable 159
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Legal Practice Bill 2002
Contents
Division 4 -- General
244. Legal practitioner's costs to be a first charge on the
property recovered or preserved 160
245. Town agent entitled to prior charge 160
246. Legal practitioner may charge interest on moneys
disbursed 160
Part 14 -- Professional indemnity
insurance
247. Regulations as to professional indemnity insurance 161
Part 15 -- Miscellaneous
248. Evidentiary material 164
249. Judicial notice 165
250. Contempt of the Supreme Court 166
251. Laying documents before House of Parliament that is
not sitting 166
252. Rules 167
253. Regulations 169
Schedule 1 -- Provisions as to the
constitution and procedure of the
Board 171
1. Chairperson and deputy chairperson 171
2. Casual vacancies 171
3. Meetings where chairperson and deputy chairperson
are absent 171
4. Quorum 171
5. Voting 171
6. Saving 172
Schedule 2 -- Provisions as to the
constitution and procedure of the
Complaints Committee 173
Division 1 -- Constitution 173
1. Term of appointment -- representative of the
community 173
2. Deputy chairperson 173
3. Deputies of representative of the community 173
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Legal Practice Bill 2002
Contents
4. Removal or resignation 174
5. Leave of absence 174
6. Termination of office may be deferred 175
7. Remuneration and allowances 175
8. Saving 175
Division 2 -- Procedure 175
9. Quorum 175
10. Complaints Committee not bound by rules of
evidence 176
11. Meetings 176
12. Divisions 176
13. Voting 176
14. Complaints Committee may determine its own
procedure 177
15. Records 177
Schedule 3 -- Provisions as to the
constitution and procedure of the
Disciplinary Tribunal 178
Division 1 -- Constitution 178
1. Term of appointment -- chairperson 178
2. Term of appointment -- legal practitioners 178
3. Term of appointment -- representative of the
community 178
4. Deputy chairperson 178
5. Deputies of representative of the community 179
6. Removal or resignation 179
7. Leave of absence 180
8. Termination of office may be deferred 180
9. Remuneration and allowances 180
10. Saving 180
Division 2 -- Procedure 181
11. Quorum 181
12. Meetings 181
13. Divisions 181
14. Voting 182
15. Records 182
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Legal Practice Bill 2002
Contents
Schedule 4 -- Provisions as to
constitution and procedure of the
Legal Costs Committee 183
Division 1 -- Constitution 183
1. Term of office 183
2. Deputy chairperson 183
3. Deputy members 183
4. Removal and resignation 184
5. Leave of absence 184
6. Remuneration and allowances 184
7. Saving 184
Division 2 -- Procedure 185
8. Meetings 185
9. Voting 185
10. Quorum 185
11. Legal Costs Committee to determine procedures 185
Defined Terms
page xii
Western Australia
LEGISLATIVE ASSEMBLY
(As amended in Committee)
Legal Practice Bill 2002
A Bill for
An Act to regulate legal practice, and for related purposes.
The Parliament of Western Australia enacts as follows:
page 1
Legal Practice Bill 2002
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the Legal Practice Act 2002.
2. Commencement
5 (1) This Act comes into operation on a day fixed by proclamation.
(2) Different days may be fixed under subsection (1) for different
provisions.
3. Interpretation
In this Act, unless the contrary intention appears --
10 "Australia" includes the external Territories within the
meaning of the Acts Interpretation Act 1901 of the
Commonwealth;
"articled clerk" means a person who is subject to articles of
clerkship under Part 3;
15 "bank" means --
(a) an ADI (authorised deposit-taking institution) as
defined in section 5 of the Banking Act 1959 of the
Commonwealth; or
(b) a bank constituted by a law of a State or the
20 Commonwealth;
"Board" means the Legal Practice Board established under
section 6;
"certificated practitioner" means --
(a) a legal practitioner who holds a current practice
25 certificate; or
(b) an interstate practitioner who practises in this State;
"complaint" means a complaint to the Complaints Committee
made under section 175;
page 2
Legal Practice Bill 2002
Preliminary Part 1
s. 3
"Complaints Committee" means the committee established
under section 162;
"corporation" means --
(a) a company within the meaning of the Corporations
5 Act;
(b) an industrial organisation incorporated under a law of
the Commonwealth or a State; or
(c) any other body corporate, or body corporate of a
kind, prescribed by the regulations;
10 "Corporations Act" means the Corporations Act 2001 of the
Commonwealth;
"costs agreement" means an agreement made under
section 221(1);
"director" means a director within the meaning of the
15 Corporations Act;
"Disciplinary Tribunal" means the body established under
section 168;
"disqualified person" means a person who --
(a) has been struck off the Roll of Practitioners or a roll
20 kept outside this State that corresponds to the Roll of
Practitioners (unless the person has been
re-admitted); or
(b) is suspended, disqualified or otherwise prohibited
from engaging in legal practice in this State or in any
25 other place (whether in or outside Australia);
"engage in legal practice" has the meaning given by section 4;
"examiner" means a person appointed under section 142;
"foreign law" means law of a place outside Australia;
"foreign lawyer" means a natural person, other than a legal
30 practitioner, who is registered to practise law in a place
outside Australia by a foreign registration authority;
page 3
Legal Practice Bill 2002
Part 1 Preliminary
s. 3
"foreign registration authority" means a person or authority
in a place outside Australia having the function conferred
by law of registering persons to practise law in that place;
"Full Court" has the same meaning as in the Supreme Court
5 Act 1935;
"Guarantee Fund" means the Solicitor's Guarantee Fund
established under section 16 of the Legal Contribution
Trust Act 1967;
"home registration authority" of a foreign lawyer means the
10 foreign registration authority stated in the foreign lawyer's
registration notice under section 103;
"incorporated legal practice" means a corporation that
provides legal services as provided by section 47;
"interstate practice certificate" means a certificate issued by a
15 regulatory authority of another State that confers authority
to engage in legal practice, whether --
(a) generally or of a particular type; or
(b) unconditionally or subject to conditions, restrictions
or limitations;
20 "interstate practitioner" means a person --
(a) who has been admitted to legal practice in another
State;
(b) who is not a local practitioner;
(c) who holds a current interstate practice certificate; and
25 (d) whose principal place of practice is in that State;
"Law Complaints Officer" means the person holding the
office of that name under section 167;
"Law Society" means the Law Society of Western Australia
(Inc.);
30 "Legal Contribution Trust" means the body established by
section 5 of the Legal Contribution Trust Act 1967;
page 4
Legal Practice Bill 2002
Preliminary Part 1
s. 3
"Legal Costs Committee" means the Legal Costs Committee
established under section 207;
"legal costs determination" means a determination made by
the Legal Costs Committee under section 210;
5 "legal practitioner" means a person --
(a) who is admitted as a legal practitioner, whose name
is on the Roll of Practitioners and who is not a
disqualified person; or
(b) who is an interstate practitioner who practises in this
10 State;
"legal practitioner director" means a director of an
incorporated legal practice who is a legal practitioner
permitted under the laws of this State or any other State to
practise on his or her own account as a legal practitioner;
15 "legal practitioner partner" means a partner of a
multi-disciplinary partnership who is a legal practitioner
permitted under the laws of this State or any other State to
practise on his or her own account as a legal practitioner
and who engages in legal practice as part of the partnership
20 business;
"local practitioner" means a person --
(a) who holds a current practice certificate; and
(b) whose principal place of practice is in this State;
"mental disability" includes intellectual disability, a
25 psychiatric condition, acquired brain injury and dementia;
"multi-disciplinary partnership" has the meaning given by
section 74;
"officer" of a corporation means a director or other officer
(within the meaning of the Corporations Act) of the
30 corporation;
"practice certificate" means a practice certificate issued by the
Board under Part 5;
page 5
Legal Practice Bill 2002
Part 1 Preliminary
s. 3
"practise foreign law" means to do any work or transact any
business in this State concerning foreign law, being work
or business of a kind that, if it concerned the law of this
State, would be required to be done or transacted by a
5 certificated practitioner;
"practising on his or her own account" in relation to a legal
practitioner means carrying on business consisting of the
provision of legal services as a legal practitioner, and not as
an employee, whether --
10 (a) alone; or
(b) together with one or more other persons;
"practitioner" has the same meaning as "legal practitioner";
"professional obligations" of a legal practitioner include --
(a) duties to the court;
15 (b) obligations in connection with conflicts of interest;
(c) duties to clients, including disclosure; and
(d) ethical rules required to be observed by a legal
practitioner;
"prohibited person" means a person who --
20 (a) is a disqualified person;
(b) is or was an employee of a legal practitioner and who
has been convicted of any fraudulent conduct in
respect of any money or property belonging to or
held or controlled by the legal practitioner by whom
25 that person is or was employed or a client of that
legal practitioner; or
(c) is the subject of an order in force under section 132;
"public officer" has the same meaning as in The Criminal
Code;
30 "record" means any thing or process --
(a) upon or by which information is recorded or stored;
or
page 6
Legal Practice Bill 2002
Preliminary Part 1
s. 3
(b) by means of which a meaning can be conveyed by
any means in a visible or recoverable form,
whether or not the assistance of some electronic, electrical,
mechanical, chemical or other machine or process is
5 required to convey the information or meaning;
"registered", when used in connection with a place outside
Australia, means having all the necessary licences,
approvals, admissions, certifications or other forms of
authorisation (including practice certificates) required
10 under the law of that place for practising law in that place;
"registered foreign lawyer" means a person who is registered
as a foreign lawyer under Part 8 Division 2;
"regulatory authority" --
(a) of this State, means the Supreme Court, the Board,
15 the Disciplinary Tribunal or the Complaints
Committee;
(b) of another State, means a person or body in that State
having a function conferred by legislation relating to
regulation of legal practice that corresponds to such a
20 function exercised by a regulatory authority of this
State;
"related body corporate", in relation to a body corporate, has
the same meaning as in the Corporations Act;
"Roll of Practitioners" or "Roll" means the Roll of
25 Practitioners kept under section 31;
"rules" means rules made by the Board under section 252;
"State" means a State or Territory of the Commonwealth;
"trust account" means a bank account maintained in this State,
for the purpose of setting apart, and dealing with, trust
30 moneys under Part 10;
"trust moneys" means --
(a) moneys that are received by --
(i) a legal practitioner;
page 7
Legal Practice Bill 2002
Part 1 Preliminary
s. 3
(ii) an interstate practitioner;
(iii) an incorporated legal practice;
(iv) a firm of legal practitioners;
(v) a multi-disciplinary partnership; or
5 (vi) an employee, officer or agent of a legal
practitioner, incorporated legal practice, firm
of legal practitioners or multi-disciplinary
partnership,
in the course of legal practice in this State for the use
10 or benefit of a person or persons other than the
recipient but so as to be under the exclusive control
of the legal practitioner, interstate practitioner,
practice, firm or partnership;
(b) moneys that are received by --
15 (i) a registered foreign lawyer; or
(ii) an employee or agent of a registered foreign
lawyer,
in the course of practising foreign law for, or on
behalf of, a person or persons other than the recipient
20 but so as to be under the exclusive control of the
registered foreign lawyer;
"unqualified practice" means practising as a legal
practitioner --
(a) unlawfully contrary to section 123; or
25 (b) in a manner that but for the exception created by
subsection 123(3) would be so unlawful.
"unsatisfactory conduct" includes --
(a) unprofessional conduct on the part of a legal
practitioner, whether occurring before or after
30 admission as a legal practitioner;
(b) illegal conduct on the part of a legal practitioner,
whether occurring before or after admission as a legal
practitioner;
page 8
Legal Practice Bill 2002
Preliminary Part 1
s. 4
(c) neglect, or undue delay, in the course of legal
practice;
(d) a contravention of this Act, the regulations or the
rules; and
5 (e) conduct occurring in connection with legal practice
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.
4. Meaning of "engage in legal practice"
10 A person engages in legal practice if the person directly or
indirectly --
(a) whether in the name of that person or that of any other
person --
(i) sues out any writ or process;
15 (ii) commences, carries on, solicits, defends, or
appears, in any action, suit, or other proceedings
in any court of civil or criminal jurisdiction in
this State; or
(iii) acts as a barrister or solicitor of the Supreme
20 Court in any cause, matter or suit, information or
complaint, civil or criminal, or under any
commission for the examination in this State of
witnesses, or others, issued by any court in or out
of this State;
25 (b) performs or carries out or is engaged in any work in
connection with the administration of law; or
(c) draws or prepares any deed, instrument, or writing
relating to or in any manner dealing with or affecting --
(i) real or personal estate or any interest in real or
30 personal estate; or
(ii) any proceedings at law, civil or criminal, or in
equity.
page 9
Legal Practice Bill 2002
Part 1 Preliminary
s. 5
5. Notes
Notes do not form part of this Act.
page 10
Legal Practice Bill 2002
The Legal Practice Board Part 2
s. 6
Part 2 -- The Legal Practice Board
6. Legal Practice Board established
(1) A body called the Legal Practice Board is established.
(2) The Board is a body corporate with perpetual succession.
5 (3) Proceedings may be taken by or against the Board in its
corporate name.
7. Members of the Board
(1) The Board consists of --
(a) the Attorney General;
10 (b) the Solicitor General, or, if there is no Solicitor General,
the State Solicitor;
(c) each Queen's Counsel, and each Senior Counsel, whose
principal place of practice is in this State and who is not
a full-time judicial officer; and
15 (d) 12 legal practitioners of at least 3 years' standing and
practice in this State who are elected as members.
(2) Subject to the rules, an elected member of the Board holds
office for a term of 2 years from the date of becoming a member
and is eligible for re-election.
20 (3) Schedule 1 has effect with respect to the constitution and
procedure of the Board.
8. Who may vote in election
Any legal practitioner who is on the Roll of Practitioners and
whose principal place of practice is in this State is eligible to
25 vote in an election for a member under section 7(1)(d).
9. Functions of the Board
The Board's functions are as set out in this Act and in any other
written law.
page 11
Legal Practice Bill 2002
Part 2 The Legal Practice Board
s. 10
10. Committees
(1) The Board may --
(a) appoint committees of members of the Board; and
(b) discharge, alter or reconstitute any committee.
5 (2) A committee is to comply with any direction or requirement of
the Board.
(3) A committee may, with the approval of the Board, invite any
person, including a member of staff, to participate in a meeting
of the committee but such a person cannot vote on any
10 resolution before the committee.
(4) Subject to subsection (2), a committee may determine its own
procedures.
11. Delegation
(1) The Board may delegate to a committee established under
15 section 10 any power or duty of the Board under this Act other
than this power of delegation.
(2) The delegation must be in writing executed by the Board.
(3) A committee to whom a power or duty is delegated under this
section cannot delegate that power or duty.
20 (4) A committee exercising or performing a power or duty that has
been delegated to that committee under this section is to be
taken to do so in accordance with the terms of the delegation
unless the contrary is shown.
(5) Nothing in this section limits the ability of the Board to perform
25 a function through an officer or agent in the normal course of
business.
(6) This section does not apply to the execution of documents but
authority to execute documents on behalf of the Board can be
given under section 16.
page 12
Legal Practice Bill 2002
The Legal Practice Board Part 2
s. 12
12. Powers of the Board
(1) The Board has all the powers it needs to perform its functions.
(2) Without limiting subsection (1), the Board may for the purpose
of performing its functions --
5 (a) acquire, hold, manage, improve, develop and dispose of
any real or personal property;
(b) enter into leases, contracts and arrangements;
(c) provide, take and arrange security;
(d) employ and engage staff; and
10 (e) do anything incidental to any of its powers.
13. Application of funds
The money received by the Board under this Act must be
applied by the Board for the purposes of this Act, which
include --
15 (a) the administration and enforcement of regulations made
under section 247 and the rules; and
(b) the provision and maintenance of the Law Library at the
Supreme Court.
14. Accounts and records
20 (1) The Board must --
(a) cause to be kept proper accounts of the financial
transactions of the Board;
(b) cause to be kept proper records of the business of the
Board; and
25 (c) prepare financial statements in accordance with
Australian Accounting Standards.
(2) Unless the Board determines otherwise, the financial statements
must be prepared on an accrual basis.
page 13
Legal Practice Bill 2002
Part 2 The Legal Practice Board
s. 15
15. Audit
The accounts and financial statements of the Board must be
audited at least once a year, at the expense of the Board, by an
auditor appointed by the Board with the prior approval of the
5 Attorney General.
16. Execution of documents by the Board
(1) The Board is to have a common seal.
(2) A document is duly executed by the Board if --
(a) the common seal of the Board is affixed to it in
10 accordance with subsections (3) and (4); or
(b) it is signed on behalf of the Board by a person or
persons authorised to do so under subsection (5).
(3) The common seal of the Board is not to be affixed to any
document except as authorised by the Board.
15 (4) The common seal of the Board is to be affixed to a document in
the presence of 2 members of the Board, and each of them is to
sign the document to attest that the common seal was so affixed.
(5) The Board may, by writing under its seal, authorise a member or
members or a staff member or staff members to sign documents
20 on behalf of the Board, either generally or subject to such
conditions or restrictions as are specified in the authorisation.
(6) A document purporting to be executed in accordance with this
section is to be presumed to be duly executed until the contrary
is shown.
25 (7) A document executed by a person under this section without the
common seal of the Board is not to be regarded as a deed unless
the person executes it as a deed and is authorised under
subsection (5) to do so.
(8) When a document is produced bearing a seal purporting to be
30 the common seal of the Board, it is to be presumed that the seal
is the common seal of the Board until the contrary is shown.
page 14
Legal Practice Bill 2002
The Legal Practice Board Part 2
s. 17
17. Annual and other reports
(1) On or before 31 December in each year the Board must make
and submit to the Attorney General an annual report of its
proceedings for the preceding year ending on 30 June together
5 with a copy of the financial statements and the auditor's report.
(2) The Attorney General must within 14 days after the day on
which a copy of an annual report, financial statement or
auditor's report is received by the Attorney General cause a
copy of the report or statement to be laid before each House of
10 Parliament or dealt with under section 251.
(3) The Board may from time to time report to the Attorney General
its views as to the jurisdiction conferred and the carrying out of
the functions required by Part 12, or any matter connected with
that jurisdiction or that Part.
15 18. Protection from liability
(1) An action in tort does not lie against --
(a) the Board;
(b) a member of the Board; or
(c) an employee of the Board,
20 for anything that the Board or person has done, in good faith, in
the performance or purported performance of a function under
this Act.
(2) The protection given by subsection (1) applies even though the
thing done as described in that subsection may have been
25 capable of being done whether or not this Act had been enacted.
(3) In this section a reference to the doing of anything includes a
reference to the omission to do anything.
(4) A person who --
(a) performs any function in relation to an inquiry before
30 the Board under this Act; or
page 15
Legal Practice Bill 2002
Part 2 The Legal Practice Board
s. 18
(b) is otherwise concerned in an inquiry before the Board
under this Act,
has, in respect of any such function or concern, the same
protection and immunity as a member or an officer of the
5 Supreme Court, or a witness or a party before the Supreme
Court, would have in respect of a function or concern of a like
nature related to the jurisdiction of the Supreme Court.
page 16
Legal Practice Bill 2002
Articled clerks Part 3
s. 19
Part 3 -- Articled clerks
19. Who may be an articled clerk
(1) A person must not be articled to a legal practitioner until the
person has --
5 (a) provided to the Board such evidence as the Board may
require showing to the satisfaction of the Board that the
person --
(i) is of good fame and character; and
(ii) has reached the age of 16 years;
10 (b) passed to the satisfaction of the Board any examination
required by the rules; and
(c) paid to the Board the fee prescribed by the rules.
(2) The Board may, but is not required to, hold an inquiry as to
whether a person seeking to be articled to a legal practitioner is
15 of good fame and character.
(3) Section 41 applies to an inquiry under subsection (2) as if the
inquiry were held under Part 5.
(4) If the Board decides, upon inquiry under this section, that a
person is not of good fame and character, that person must not
20 be articled to a legal practitioner.
20. Who may have an articled clerk
(1) Subject to subsections (5) and (6), a legal practitioner must not
take, have or retain an articled clerk unless that legal
practitioner is --
25 (a) of not less than 2 years' standing as a legal practitioner;
(b) an individual practising on his or her own account in this
State or a legal practitioner director; and
(c) approved to take, have and retain an articled clerk by the
Board.
page 17
Legal Practice Bill 2002
Part 3 Articled clerks
s. 20
(2) The Board may, but is not required to, hold an inquiry as to
whether a legal practitioner should be approved under
subsection (1)(c).
(3) Section 41 applies to an inquiry under subsection (2) as if the
5 inquiry were held under Part 5.
(4) The Board may revoke an approval under subsection (1)(c) at
any time.
(5) The Board may, by notice in writing and subject to such
conditions as are specified in the notice, permit a person to be
10 articled to a legal practitioner even though the legal practitioner
is of less than 2 years' standing as a legal practitioner or
practises otherwise than on his or her own account or as a legal
practitioner director.
(6) A legal practitioner who --
15 (a) is the State Solicitor of this State;
(b) is the Director of Legal Aid appointed under section 18
of the Legal Aid Commission Act 1976;
(c) is the Director of Public Prosecutions appointed under
section 5 of the Director of Public Prosecutions
20 Act 1991;
(d) is the person acting in this State as a Director of the
Australian Government Solicitor within the meaning of
the Judiciary Act 1903 of the Commonwealth; or
(e) is the Regional General Counsel of the Australian
25 Securities and Investments Commission in Western
Australia,
may take, have and retain one or more articled clerks.
(7) No person, other than an individual referred to in subsection (6),
may take, have or retain more than 2 articled clerks at any one
30 time unless that person has the approval of the Board.
page 18
Legal Practice Bill 2002
Articled clerks Part 3
s. 21
(8) If --
(a) a legal practitioner ceases to be a person practising on
his or her own account or to be a legal practitioner
director; or
5 (b) a person is a disqualified person,
that person must not take, have or retain an articled clerk.
(9) A person aggrieved by a decision of the Board to refuse to
approve a legal practitioner under subsection (1)(c), or to revoke
an approval under subsection (4), may appeal to the Supreme
10 Court.
21. Articles of clerkship
(1) All articles of clerkship and every assignment of articles must
be made by deed and registered under the rules.
(2) Registration of articles of clerkship or the assignment of articles
15 takes effect on a day determined under the rules.
(3) Service under articles of clerkship or the assignment of articles
does not commence until the articles are, or the assignment is,
registered under the rules.
22. Continuation of articles
20 If, before the expiration of an articled clerk's term of service --
(a) the legal practitioner to whom the articled clerk is
articled --
(i) dies;
(ii) is incapacitated by reason of mental disability;
25 (iii) becomes a disqualified person; or
(iv) ceases to practise in this State on his or her own
account or to be a legal practitioner director;
(b) the Board revokes its approval of the legal practitioner
to whom the articled clerk is articled; or
page 19
Legal Practice Bill 2002
Part 3 Articled clerks
s. 23
(c) for any other reason the Board gives consent,
the clerk's service may, subject to section 21, be continued
under assignment of the articles to, or fresh articles with,
another legal practitioner.
5 23. Articled clerk not to undertake other employment without
consent
(1) An articled clerk must not, except with the written consent of
the legal practitioner with whom the articles are served, hold
any office or undertake any employment other than --
10 (a) as an articled clerk to the legal practitioner with whom
the articles are served for the time being; or
(b) in the capacity of an articled clerk to --
(i) a legal practitioner who is a partner of the legal
practitioner with whom the articles are served for
15 the time being; or
(ii) a legal practitioner director who is a legal
practitioner director of the same incorporated
legal practice as the legal practitioner director
with whom the articles are served for the time
20 being.
(2) An articled clerk must file any consent given to that articled
clerk under subsection (1) with the Board within 14 days of the
consent being given.
(3) Subject to subsection (5) the written consent of a legal
25 practitioner must not be given to an articled clerk unless the
hours of such other office or employment are outside working
hours.
(4) In subsection (3) --
"working hours" means the hours between 9 a.m. and 5 p.m.
30 on those week days (excluding Saturdays, Sundays and
public holidays) when the offices of legal practitioners are
normally open to the public.
page 20
Legal Practice Bill 2002
Articled clerks Part 3
s. 24
(5) If, in the opinion of the Board, there are special circumstances
the Board may determine that subsection (3) does not apply in
relation to an articled clerk.
(6) The Board must not make a determination under subsection (5)
5 without the consent of the legal practitioner to whom the
articled clerk is articled.
(7) A determination under subsection (5) may be made conditional
upon such requirements as the Board thinks fit and may include
a requirement that the period of service under articles of
10 clerkship be extended.
(8) If a legal practitioner refuses to give consent under
subsection (1) or (6) the articled clerk may appeal to the Board.
24. Service under articles to accord with Act
Service under articles is not valid unless the service is
15 performed in accordance with this Act.
25. Reports to Board
If an articled clerk ceases to perform valid service under the
articles for a period of one month, the legal practitioner to
whom the clerk is articled must give a written report to the
20 Board on that cessation.
26. Cancellation of articles
(1) Upon the application of an articled clerk, or of the legal
practitioner to whom the clerk is articled, the Board may cancel
the articles of the clerk upon such terms as the Board thinks fit.
25 (2) A person aggrieved by a decision of the Board under this
section may appeal to the Supreme Court.
page 21
Legal Practice Bill 2002
Part 4 Admission of legal practitioners
s. 27
Part 4 -- Admission of legal practitioners
27. Qualifications for admission of legal practitioners
(1) A person cannot be admitted as a legal practitioner unless the
person has reached the age of 21 years.
5 (2) Subject to subsection (1), a person is qualified to be admitted as
a legal practitioner if that person --
(a) has --
(i) fulfilled the requirements as to the taking of a
degree in law at a university specified in the
10 rules together with such other academic
requirements, if any, as may be specified in the
rules either generally or in respect of a degree in
law of a university specified in the rules; or
(ii) such other qualification as in the opinion of the
15 Board is substantially equivalent to that degree,
and has served for the term prescribed by the rules under
articles of clerkship to a legal practitioner and at any
time during that term has satisfied the requirements for
practical legal training prescribed by the rules; or
20 (b) is a person who --
(i) has a qualification that in the opinion of the
Board is substantially equivalent to that referred
to in paragraph (a)(i); or
(ii) is experienced in legal practice in a place where
25 the system of jurisprudence is substantially
equivalent to the system of jurisprudence
administered in this State,
and has met the requirements of the Board, if any,
imposed in respect of that person under subsection (3).
page 22
Legal Practice Bill 2002
Admission of legal practitioners Part 4
s. 28
(3) The Board may require a person to do all or any of the
following --
(a) to obtain qualifications, pass examinations, or fulfil
other requirements specified by the Board, in addition to
5 the qualifications referred to in subsection (2)(b);
(b) to serve a term of articles specified by the Board in
addition to the qualifications referred to in
subsection (2)(b),
before that person can be qualified to be admitted as a legal
10 practitioner under subsection (2)(b).
28. Admission of legal practitioner
(1) A person may be admitted by the Full Court as a legal
practitioner if that person --
(a) is qualified under section 27 to be admitted;
15 (b) has provided to the Board such evidence as the Board
may require showing to the satisfaction of the Board that
the person is of good fame and character and fit and
proper to be so admitted;
(c) has obtained from the Board a certificate that the person
20 has --
(i) provided the evidence required under
paragraph (b); and
(ii) observed and complied with the provisions of
this Act and the rules;
25 (d) has advertised in the manner and for the period required
by the rules a notice of intention to apply for admission;
and
(e) has paid to the Board the fee, if any, prescribed by the
rules.
30 (2) The Board may, but is not required to, hold an inquiry as to
whether a person seeking a certificate under subsection (1)(c) is
of good fame and character and fit and proper to be admitted.
page 23
Legal Practice Bill 2002
Part 4 Admission of legal practitioners
s. 29
(3) Section 41 applies to an inquiry under subsection (2) as if the
inquiry were held under Part 5.
(4) If --
(a) a person fails to produce evidence required by the Board
5 under subsection (1)(b) showing to the satisfaction of
the Board that the person is of good fame and character
and fit and proper to be admitted; or
(b) the Board decides, upon inquiry under subsection (2),
that a person is not of good fame and character and fit
10 and proper to be admitted,
the Board may refuse to grant a certificate under
subsection (1)(c).
(5) A person to whom the Board has refused to grant a certificate
under subsection (1)(c) may appeal to the Supreme Court.
15 29. Objection to admission
(1) Any person may, on reasonable grounds, object to the admission
of a person as a legal practitioner.
(2) A notice, stating the grounds of the objection, must be lodged in
the Supreme Court at least 7 days before the day on which the
20 application for admission is made.
(3) A person objecting under this section is entitled to be heard to
oppose the admission personally or by counsel, with or without
witnesses.
30. Admission by Full Court
25 (1) No person is to be admitted as a legal practitioner except by the
Full Court.
(2) Where an applicant for admission as a legal practitioner is
admitted to practise as a barrister or solicitor, or as a barrister
and solicitor, of --
30 (a) a superior court of another State; or
page 24
Legal Practice Bill 2002
Admission of legal practitioners Part 4
s. 31
(b) the High Court of Australia,
the application for admission may be made by counsel on behalf
of the applicant without personal attendance by the applicant at
the hearing of the application.
5 31. Roll of Practitioners
(1) Subject to any rule referred to in subsection (2), a person must,
immediately after being admitted as a legal practitioner, sign the
Roll of Practitioners.
(2) The Supreme Court may make rules providing for the manner in
10 which a person admitted under section 30(2) as a legal
practitioner without personal attendance as an applicant may --
(a) make oath or affirmation; and
(b) provide a signature to the Roll of Practitioners.
(3) The Roll of Practitioners is to be kept in the custody of the
15 Principal Registrar of the Supreme Court.
(4) The Roll of Practitioners must, during office hours, be open to
inspection by any person without fee.
(5) A certificate of a Registrar of the Supreme Court as to any
matter in the Roll of Practitioners is conclusive evidence of that
20 matter.
32. Certificate of admission
(1) Every person who is admitted as a legal practitioner is entitled
to obtain from a Registrar of the Supreme Court a certificate of
that admission.
25 (2) The certificate is to be in a form prescribed by the rules.
33. Restrictions on entitlement to practise
(1) A legal practitioner qualified to be admitted under
section 27(2)(a) --
(a) is not entitled to practise; and
page 25
Legal Practice Bill 2002
Part 4 Admission of legal practitioners
s. 34
(b) must not practise,
on his or her own account until he or she has completed, after
being admitted, a term of 12 months as an employed legal
practitioner in the office of a legal practitioner authorised under
5 this Act to take, have and retain an articled clerk.
(2) If a person is qualified to be admitted as a legal practitioner
under section 27(2)(b) the Board may, in writing, require the
person to complete, after being admitted, a term of a specified
period as an employed legal practitioner in the office of a legal
10 practitioner authorised under this Act to take, have and retain an
articled clerk.
(3) The specified term the Board may require a person to complete
under subsection (2) must not exceed 12 months.
(4) A person required to complete a term as an employed legal
15 practitioner under subsection (2) --
(a) is not entitled to practise; and
(b) must not practise,
on his or her own account until that requirement has been
complied with to the satisfaction of the Board.
20 34. Re-admission as a legal practitioner
(1) A person who has been struck off the Roll of Practitioners may
apply to the Full Court for re-admission as a legal practitioner.
(2) A person applying for re-admission must produce to the Full
Court a certificate from the Board certifying that --
25 (a) the applicant for re-admission has satisfied the Board
upon inquiry that he or she is, in the opinion of the
Board, a fit and proper person to be re-admitted; and
(b) the rules relating to re-admission have been complied
with.
page 26
Legal Practice Bill 2002
Admission of legal practitioners Part 4
s. 34
(3) The provisions of section 41(2) apply to an inquiry under
subsection (2)(a) as if the inquiry were made under Part 5.
(4) A person to whom the Board has refused to grant a certificate
under subsection (2) may appeal to the Supreme Court.
page 27
Legal Practice Bill 2002
Part 5 Practice certificates
s. 35
Part 5 -- Practice certificates
35. Requirement to hold practice certificate
(1) Subject to subsection (2), a practice certificate is required to be
held by every legal practitioner --
5 (a) who is engaged in legal practice in this State, whether or
not as an employee; or
(b) who is prepared, or purports to be prepared, to be
retained for fee, gain or reward in legal practice in this
State.
10 (2) Subsection (1) does not apply to --
(a) a legal practitioner who is merely seeking a position as
an employee;
(b) a legal practitioner taken to be a certificated practitioner
under section 36; or
15 (c) an interstate practitioner.
36. Legal practitioner employed by this State
A legal practitioner employed by this State in a salaried
capacity, while acting in an official capacity as a legal
practitioner so employed, is taken to be a certificated
20 practitioner.
37. Application for practice certificate
(1) An application for a practice certificate may only be made by a
legal practitioner.
(2) An application for a practice certificate must --
25 (a) be made to the Board in a form approved by the Board;
(b) contain, or be accompanied by, such information as is
prescribed by the rules;
(c) be accompanied by the application fee prescribed by the
rules; and
page 28
Legal Practice Bill 2002
Practice certificates Part 5
s. 38
(d) be signed by the applicant.
(3) An application for a practice certificate may be made at any
time unless subsection (4) applies.
(4) Subject to subsections (5) and (6), a legal practitioner who holds
5 a practice certificate must apply for the issue of a further
practice certificate --
(a) by such date (if any) as is prescribed by the rules for
applications; or
(b) prior to the date of expiry of the current certificate,
10 whichever is the earlier date.
(5) If a legal practitioner satisfies the Board that he or she is no
longer engaged in legal practice in this State and is not
prepared, and does not purport to be prepared, to be retained for
fee, gain or reward in legal practice in this State, the legal
15 practitioner is not required to apply for the issue of a further
practice certificate.
(6) Despite subsection (4) the Board may, in its discretion, accept
an application for a practice certificate by a legal practitioner
whose practice certificate has expired and who has paid the late
20 fee (if any) prescribed by the rules.
38. Refusal of application
(1) The Board must refuse to issue a practice certificate if --
(a) the application is not made in accordance with
section 37; or
25 (b) the applicant is a disqualified person.
(2) The Board may refuse to issue a practice certificate if an order
in respect of the legal practitioner has been made under
section 177, 185 or 191 and --
(a) a fine imposed by the order has not been paid;
30 (b) costs awarded against the legal practitioner by the order
have not been paid; or
page 29
Legal Practice Bill 2002
Part 5 Practice certificates
s. 39
(c) expenses payable by the legal practitioner pursuant to an
order made under section 177(2)(e) or 191(1)(b) have
not been paid.
(3) The Board may refuse to issue a practice certificate under
5 regulations made under section 247 as to professional indemnity
insurance.
(4) The Board may refuse to issue a practice certificate if --
(a) the applicant for the practice certificate has not been a
certificated practitioner during the 5 years preceding the
10 application; and
(b) the Board is not satisfied that the applicant is a fit and
proper person and competent to practice in this State.
39. Unfit, incapable or insolvent practitioners
(1) In this section --
15 "impairment" means --
(a) mental disability;
(b) injury;
(c) physical illness;
(d) dependence on alcohol;
20 (e) addiction to a deleterious drug or substance;
"incapable practitioner" means a legal practitioner whose
impairment is such that the ability of the person to practise
as a legal practitioner is, or is likely to be, adversely
affected;
25 "insolvent practitioner" means --
(a) a legal practitioner who is an insolvent under
administration within the meaning of the
Corporations Act;
(b) a legal practitioner director of an incorporated legal
30 practice that is insolvent within the meaning of the
Corporations Act;
page 30
Legal Practice Bill 2002
Practice certificates Part 5
s. 40
"unfit practitioner" means a legal practitioner who --
(a) is not a fit and proper person to hold a practice
certificate;
(b) has failed to comply with a condition to which the
5 issue of the practitioner's practice certificate was
subject;
(c) has contravened an order made in respect of the
practitioner by the Complaints Committee or
Disciplinary Tribunal;
10 (d) has contravened a provision of this Act;
(e) is in prison; or
(f) is otherwise unfit to engage in legal practice.
(2) If an applicant for, or holder of, a practice certificate is an
insolvent practitioner, the Board may apply to the Disciplinary
15 Tribunal for a hearing and determination under section 188.
(3) If the Board suspects or believes that --
(a) an applicant for, or holder of, a practice certificate is an
incapable practitioner or an unfit practitioner; and
(b) it would --
20 (i) be in the public interest or in the interest of the
legal practitioner's clients or potential clients; or
(ii) protect the integrity of the legal profession or the
administration of justice,
if the application were refused, or the practice certificate
25 suspended or cancelled,
the Board may, without further inquiry, apply to the
Disciplinary Tribunal for a hearing and determination under
section 188.
40. Conditions may be imposed upon practice certificate
30 (1) The Board may issue a practice certificate unconditionally or
subject to conditions.
page 31
Legal Practice Bill 2002
Part 5 Practice certificates
s. 40
(2) The Board may, by notice in writing given to the holder of a
practice certificate, add to, vary or revoke a condition of a
practice certificate, whether or not the certificate was originally
issued unconditionally.
5 (3) Without limiting subsection (1), the conditions that may be
imposed include --
(a) restricting the entitlement of the holder of the certificate
to practise to certain specified classes of legal practice;
(b) prohibiting the holder of the certificate from engaging in
10 certain specified classes of legal practice;
(c) requiring the holder of the certificate to undertake all
legal practice or certain specified classes of legal
practice subject to supervision of a specified type;
(d) requiring the holder of the certificate to engage in legal
15 practice only in a type or types of legal practice or in the
employment of a specified person;
(e) requiring the holder of the certificate to undertake and
complete to the satisfaction of the Board continuing
legal education or training of a type or types specified
20 by the Board;
(f) requiring the holder of the certificate to cease employing
a specified person or persons.
(4) Where an order of the Disciplinary Tribunal is made against a
legal practitioner under section 187(1)(b), or an order of a Judge
25 is made under section 156(1)(e), imposing conditions or
restrictions on the right of a legal practitioner to practise, the
Board must impose conditions or restrictions on the practice
certificate of that legal practitioner to give effect to that order.
(5) A legal practitioner who is the holder of a practice certificate
30 must not contravene a condition imposed on the certificate.
page 32
Legal Practice Bill 2002
Practice certificates Part 5
s. 41
41. Board's powers of inquiry
(1) The Board may, but is not required to, hold an inquiry as to --
(a) whether an application should be made to the
Disciplinary Tribunal under section 39; or
5 (b) whether, and what, conditions should be imposed on a
practice certificate under section 40.
(2) For the purposes of enabling the Board to make the inquiry, the
Board may --
(a) by summons require any person to attend before the
10 Board as a witness and give evidence or to produce any
record in the possession or control of that person that
relates to a matter in question at the inquiry;
(b) examine the witness on oath or affirmation.
(3) Before determining whether to make an application under
15 section 39 in respect of an applicant for, or holder of, a practice
certificate whom the Board suspects or believes may be an
incapable practitioner, the Board may require the applicant or
holder to be medically examined by a medical practitioner
nominated by the Board.
20 (4) A refusal or failure by a person to comply with a requirement
for a medical examination may be accepted by the Board as
evidence that the person is an incapable practitioner.
(5) For the purposes of subsection (2)(b) a member of the Board
may administer oaths or affirmations.
25 (6) The provisions of section 195 apply to a summons issued by the
Board under this section.
page 33
Legal Practice Bill 2002
Part 5 Practice certificates
s. 42
42. Duration of practice certificate
A practice certificate --
(a) if issued on application by a certificated practitioner --
(i) takes effect on the day next succeeding the
5 expiry of the current certificate held by that
practitioner; and
(ii) subject to this Act, remains in force for
12 months or such shorter period as is specified
in the practice certificate;
10 (b) if issued on application by a legal practitioner other than
a certificated practitioner --
(i) takes effect on the day on which it is issued, or
on such earlier day as is determined by the
Board; and
15 (ii) subject to this Act, remains in force until 30 June
next succeeding.
43. Suspension or cancellation of practice certificate after
disciplinary proceedings
(1) If the name of a person is removed from the Roll of
20 Practitioners the practice certificate held by the person is
automatically cancelled.
(2) If the right of a person to practise in this State as a legal
practitioner is suspended, the legal practitioner is to be taken,
during the period of suspension, not to hold a current practice
25 certificate.
44. Appeals
A legal practitioner may appeal to the Supreme Court against a
decision of the Board --
(a) to refuse to issue a practice certificate to the legal
30 practitioner;
page 34
Legal Practice Bill 2002
Practice certificates Part 5
s. 44
(b) to issue a practice certificate to the legal practitioner
subject to conditions; or
(c) to vary the conditions subject to which a practice
certificate is issued to the legal practitioner.
page 35
Legal Practice Bill 2002
Part 6 Business structures
Division 1 General
s. 45
Part 6 -- Business structures
Division 1 -- General
45. Practitioner may practise under any business structure
(1) Subject to this Act, a certificated practitioner may engage in
5 legal practice under any form of business structure recognised
by law including, but not limited to --
(a) a practice on his or her own account;
(b) a partnership; or
(c) a corporation.
10 (2) Nothing in this section authorises a person to do any thing the
person is prohibited from doing under this Act or any other law
under which the person is incorporated or the person's affairs
are regulated.
46. Obligations of individual legal practitioners not affected
15 Except as provided by this Part, nothing in this Part affects any
obligation imposed on a legal practitioner under this Act or any
other written law.
Division 2 -- Incorporated legal practices
47. Nature of incorporated legal practice
20 (1) Subject to subsection (2) and sections 48(3), 69(6) and 70(3), if
a corporation provides legal services in this State (whether or
not it provides other services) it is an incorporated legal
practice.
(2) Subsection (1) does not apply in respect of a corporation if --
25 (a) the corporation does not receive any form of, or have an
expectation of, a fee, gain or reward for the legal
services it provides;
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Business structures Part 6
Incorporated legal practices Division 2
s. 48
(b) the only legal services that the corporation provides are
legal services concerning a proceeding or transaction to
which the corporation (or a related body corporate) is a
party (in-house legal services);
5 (c) the only legal services that the corporation provides are
services that --
(i) are not legally required to be provided by a legal
practitioner; and
(ii) are provided by an officer or an employee who is
10 not a legal practitioner;
or
(d) the regulations so provide.
Note: Under section 123, the prohibition on engaging in legal practice except
as a certificated practitioner extends to legal services provided by an
15 incorporated legal practice.
48. Services and businesses of incorporated legal practices
(1) An incorporated legal practice may provide any service and
conduct any business that the corporation may lawfully provide
or conduct, except as provided by this section.
20 (2) The regulations may prohibit an incorporated legal practice or a
related body corporate from providing a service or conducting a
business of a kind specified by the regulations.
(3) A corporation ceases to be an incorporated legal practice if the
corporation or a related body corporate contravenes this section
25 or a regulation made under this section.
49. Corporations eligible to be incorporated legal practices
(1) Any corporation is eligible to be an incorporated legal practice.
(2) This section does not authorise a corporation to provide legal
services if the corporation is prohibited from doing so by any
30 Act or law (whether of this State, the Commonwealth or any
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Legal Practice Bill 2002
Part 6 Business structures
Division 2 Incorporated legal practices
s. 50
other State) under which it is incorporated or its affairs are
regulated.
50. Notice by corporation
(1) A corporation must, before commencing to provide legal
5 services in this State, notify the Board in writing of its intention
to do so.
Penalty: $50 000.
(2) The notice must include the particulars prescribed by the
regulations.
10 51. Responsibilities of legal practitioner director
(1) Subject to section 53, an incorporated legal practice is required
to have at least one legal practitioner director.
(2) Each legal practitioner director of an incorporated legal practice
is, for the purposes only of this Act, responsible for the
15 management of the legal services provided in this State by the
incorporated legal practice.
(3) Each legal practitioner director of an incorporated legal practice
must ensure that appropriate management systems are
implemented and maintained to enable the provision of legal
20 services by the incorporated legal practice --
(a) in accordance with the professional obligations of legal
practitioners and other obligations imposed under this
Act; and
(b) so that the obligations of legal practitioners who are
25 officers or employees of the incorporated legal practice
are not adversely affected by other officers or employees
of the practice.
(4) A legal practitioner director of an incorporated legal practice
must not remain as a director of the practice if it becomes
30 apparent that the provision of legal services by the incorporated
legal practice will result in breaches of the professional
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Legal Practice Bill 2002
Business structures Part 6
Incorporated legal practices Division 2
s. 52
obligations of legal practitioners or other obligations imposed
under this Act.
(5) Nothing in this Part derogates from the obligations or liability of
a director of an incorporated legal practice under any other law.
5 52. Obligations of legal practitioner director relating to
unsatisfactory conduct
(1) Each of the following is capable of constituting unsatisfactory
conduct by a legal practitioner director of an incorporated legal
practice --
10 (a) unsatisfactory conduct by a legal practitioner employed
or engaged by the incorporated legal practice;
(b) conduct of any other director (not being a legal
practitioner) of the incorporated legal practice that
adversely affects the provision of legal services by the
15 incorporated legal practice;
(c) the unsuitability of any other director (not being a legal
practitioner) of the incorporated legal practice to be a
director of a corporation that provides legal services.
(2) A legal practitioner director of an incorporated legal practice
20 must ensure that all reasonable action available to the legal
practitioner director is taken to deal with any unsatisfactory
conduct of a legal practitioner employed or engaged by the
practice.
53. Absence of legal practitioner director
25 (1) An incorporated legal practice commits an offence if the
incorporated legal practice does not have a legal practitioner
director for a period exceeding 7 days.
Penalty: $25 000.
(2) If an incorporated legal practice ceases to have a legal
30 practitioner director, the incorporated legal practice must notify
the Board.
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Part 6 Business structures
Division 2 Incorporated legal practices
s. 54
Penalty: $10 000.
(3) The Board may, if it thinks it appropriate, appoint a certificated
practitioner who is an officer or employee of the incorporated
legal practice or another person nominated by the Board, in the
5 absence of a legal practitioner director, to exercise the functions
conferred on a legal practitioner director under this Division.
(4) The appointment under this section of a person to exercise the
functions of a legal practitioner director of an incorporated legal
practice does not, for any other purpose, confer on the person
10 any of the other functions of a director of the incorporated legal
practice.
54. Obligations of legal practitioners who are officers or
employees
(1) A legal practitioner who engages in legal practice as an officer
15 or employee of an incorporated legal practice is not excused
from compliance with the professional obligations of a legal
practitioner or any other obligations of a legal practitioner under
any law.
(2) For the purpose only of the application of those obligations, a
20 person provided with legal services by an incorporated legal
practice is taken to be a client of the legal practitioner engaged
in providing those services.
55. Professional privileges
(1) A legal practitioner who engages in legal practice as an officer
25 or employee of an incorporated legal practice, does not lose the
professional privileges of a legal practitioner.
(2) For the purpose only of the application of those privileges, a
person provided with legal services by an incorporated legal
practice is taken to be a client of the legal practitioner engaged
30 in providing those services.
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Legal Practice Bill 2002
Business structures Part 6
Incorporated legal practices Division 2
s. 56
(3) To avoid doubt, the law relating to client legal privilege (or
other legal professional privilege) is not excluded or otherwise
affected by the fact that a legal practitioner engages in legal
practice as an officer or employee of an incorporated legal
5 practice.
56. Pro bono services
The directors of incorporated legal practice do not breach their
duties as directors merely because legal services are provided
pro bono by the incorporated legal practice.
10 57. Conflicts of interest
(1) For the purposes of the application of any law or rule relating to
conflicts of interest to the conduct of --
(a) a legal practitioner director of an incorporated legal
practice; or
15 (b) a legal practitioner who is an officer or employee of an
incorporated legal practice,
the interests of the incorporated legal practice, or any other
officer or employee of the incorporated legal practice (whether
or not a legal practitioner), are taken to be the same as those of
20 the legal practitioner concerned.
(2) Rules may be made for or with respect to additional duties and
obligations in connection with conflicts of interest arising out of
the conduct of an incorporated legal practice.
Note: Under section 54, a legal practitioner who is an officer or employee of
25 an incorporated legal practice must comply with the same professional
obligations as other legal practitioners in connection with conflicts of
interest.
58. Disclosure obligations
(1) If a person engages an incorporated legal practice to provide
30 legal services, each legal practitioner director of the practice,
and any legal practitioner who provides legal services as an
officer or employee of the incorporated legal practice, must
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Legal Practice Bill 2002
Part 6 Business structures
Division 2 Incorporated legal practices
s. 58
ensure that a disclosure is made to the person in connection with
the provision of legal services.
Penalty: $25 000.
(2) The disclosure must be made by giving the person a notice in
5 writing setting out the following:
(a) the legal services to be provided;
(b) the non-legal services (if any) to be provided in
connection with the provision of legal services;
(c) that this Act applies to the provision of legal services but
10 not to the provision of the non-legal services;
(d) whether any financial benefit or commission (other than
fees for the provision of the legal services or the
non-legal services) has been or is to be received by the
incorporated legal practice, any employee or officer of
15 the incorporated legal practice or any related body
corporate, as a result of the provision of the legal
services or non-legal services or any referral by any
such employee, officer or related body corporate related
to that provision;
20 (e) the amount or value of any such financial benefit or
commission, if known, or, if not known, the method by
which it is to be calculated.
(3) The regulations may make provision for or with respect to the
following matters:
25 (a) the manner in which disclosure is to be made;
(b) additional matters required to be disclosed by an
incorporated legal practice in connection with the
provision of legal services or non-legal services by an
incorporated legal practice.
30 (4) Without limiting subsection (2), the additional matters may
include the kind of services provided by the incorporated legal
practice and whether those services are or are not covered by the
insurance or other provisions of this Act.
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Legal Practice Bill 2002
Business structures Part 6
Incorporated legal practices Division 2
s. 59
59. Application of rules to incorporated legal practice
(1) Any rules that apply to legal practitioners apply to legal
practitioners who are officers or employees of an incorporated
legal practice.
5 (2) The rules cannot --
(a) regulate any services that an incorporated legal practice
may provide (other than the provision of legal services,
or other services in circumstances where a conflict of
interest relating to the provision of legal services may
10 arise); or
(b) regulate or prohibit the conduct of officers or employees
of an incorporated legal practice (other than in
connection with the provision of legal services, or other
services in circumstances where a conflict of interest
15 relating to the provision of legal services may arise).
60. Requirements relating to professional indemnity insurance
(1) An incorporated legal practice is required to comply with the
regulations made under section 247 as to professional indemnity
insurance that apply to an incorporated legal practice.
20 (2) Nothing in this section affects any obligation of a legal
practitioner who is an officer or employee of an incorporated
legal practice to obtain professional indemnity insurance in
accordance with regulations made under section 247.
(3) If an incorporated legal practice fails to comply with the
25 requirement under subsection (1), the Board may apply to the
Disciplinary Tribunal for a hearing and determination under
section 189.
61. Requirements relating to advertising
(1) Any restriction imposed under this Act or any other written law
30 in connection with advertising by legal practitioners applies to
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Legal Practice Bill 2002
Part 6 Business structures
Division 2 Incorporated legal practices
s. 62
advertising by an incorporated legal practice with respect to the
provision of legal services.
(2) Any such advertisement is, for the purposes of disciplinary
proceedings taken against a legal practitioner, taken to have
5 been authorised by each legal practitioner director of the
incorporated legal practice.
62. Requirements relating to legal fees and costs
(1) Unless the regulations otherwise provide, the provisions of this
Act, and any other written law, relating to legal costs and
10 remuneration of legal practitioners apply to an incorporated
legal practice, and to an external administrator of an
incorporated legal practice, in the same way that they apply to a
legal practitioner.
(2) The regulations may make provision with respect to the
15 application or modification of the provisions of this Act relating
to legal costs and remuneration of legal practitioners.
63. Requirements relating to trust accounts
(1) Unless the regulations otherwise provide --
(a) Part 10 and any rules relating to requirements for trust
20 accounts apply to an incorporated legal practice in the
same way as they apply to a legal practitioner, but only
in connection with legal services provided by the
practice; and
(b) money received by a legal practitioner on behalf of
25 another person in the course of legal practice includes
money received by any officer or employee of the
incorporated legal practice on behalf of another person
in the course of providing legal services.
(2) An examination under section 142 that relates to trust accounts
30 may extend to all of the affairs of an incorporated legal practice
and to all of its documents.
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Legal Practice Bill 2002
Business structures Part 6
Incorporated legal practices Division 2
s. 64
(3) Without limiting the powers of the Complaints Committee or
Disciplinary Tribunal, the Complaints Committee and the
Disciplinary Tribunal may exercise their disciplinary powers
with respect to breaches of trust account requirements with
5 respect to a legal practitioner director of an incorporated legal
practice for any relevant failure of the practice or any officer or
employee of the practice.
(4) The regulations may make provision with respect to the
application or modification of the provisions of this Act relating
10 to trust accounts for the purposes of this section.
64. Part 11 (except section 150) does not apply to incorporated
legal practice
(1) Part 11 (other than section 150) does not apply to a corporation
that is or was an incorporated legal practice.
15 (2) Section 150 applies to a corporation that is or was an
incorporated legal practice in the same way as it applies to a
person who is or was a legal practitioner.
(3) An application may be made, and directions may be given,
under section 153(b) in relation to an order made under
20 section 150 in respect of the trust account of an incorporated
legal practice.
65. Extension of vicarious liability of incorporated legal practice
(1) This section applies to any of the following proceedings (being
proceedings based on the vicarious liability of an incorporated
25 legal practice) --
(a) civil proceedings relating to a failure to account for, pay
or deliver money or other valuable property received by
or entrusted to, the practice (or to any legal practitioner
or other officer or employee of the practice) in the
30 course of the provision of legal services by the practice,
being money or other valuable property under the direct
or indirect control of the practice;
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Legal Practice Bill 2002
Part 6 Business structures
Division 2 Incorporated legal practices
s. 66
(b) civil proceedings for any other debt owed, or damages
payable, to a client as a result of a dishonest act or
omission by a legal practitioner who is an officer or
employee of the practice in connection with the
5 provision of legal services to the client.
(2) If the incorporated legal practice would not (but for this section)
be vicariously liable for any acts or omissions of its officers and
employees in any such proceedings, but would be liable for
those acts or omissions if the practice and those officers and
10 employees were carrying on business in partnership, the practice
is taken to be vicariously liable for those acts or omissions.
66. Prohibition on association with prohibited persons
An incorporated legal practice is guilty of an offence if a
prohibited person or a person who is the subject of an order
15 under section 70 or 87 --
(a) is an officer or employee of the incorporated legal
practice (whether or not the person engages in legal
practice) or is an officer or employee of a related body
corporate;
20 (b) is a partner of the incorporated legal practice in a
business that includes the provision of legal services;
(c) shares the receipts of the provision of legal services by
the incorporated legal practice; or
(d) is engaged or paid in connection with the provision of
25 legal services by the incorporated legal practice.
Penalty: $25 000.
67. Investigative powers relating to incorporated legal practices
(1) The regulations may make provision for or with respect to --
(a) audits conducted under section 68;
30 (b) investigations, and examinations under Part 10, relating
to the trust accounts of an incorporated legal practice;
and
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Legal Practice Bill 2002
Business structures Part 6
Incorporated legal practices Division 2
s. 68
(c) inquiries relating to a complaint made under this Act in
relation to an incorporated legal practice.
(2) Without limiting subsection (1), regulations under that
subsection may be made to extend powers conferred under this
5 Act by reference to and modification of any of the provisions of
the Australian Securities and Investments Commission Act 2001
of the Commonwealth relating to --
(a) examination of persons;
(b) inspection of books; and
10 (c) holding of hearings.
68. Audit of incorporated legal practice
(1) The Board may audit --
(a) an incorporated legal practice (and its officers and
employees) to check its compliance with the
15 requirements of this Act in connection with the
provision of legal services by the practice; and
(b) the management of the provision of legal services by the
incorporated legal practice, including the supervision of
officers and employees in relation to the services.
20 (2) An audit may be conducted whether or not a complaint has been
made with respect to the provision of legal services by the
incorporated legal practice.
(3) A report of an audit --
(a) is to be provided to the incorporated legal practice
25 concerned by the Board;
(b) may be provided to the Complaints Committee by the
Board; and
(c) may be taken into account in connection with any
disciplinary proceedings taken against a legal
30 practitioner director or other legal practitioner or in
connection with the issue, suspension or cancellation of
practice certificates.
page 47
Legal Practice Bill 2002
Part 6 Business structures
Division 2 Incorporated legal practices
s. 69
69. Banning of incorporated legal practice
(1) The Supreme Court may, on the application of the Board, make
an order disqualifying a corporation from providing legal
services in this State for the period the Court considers
5 appropriate if the Court is satisfied that --
(a) a ground for disqualifying the corporation under this
section has been established; and
(b) the disqualification is justified.
(2) An order under this section may, if the Court thinks it
10 appropriate, be made --
(a) subject to conditions as to the conduct of an
incorporated legal practice;
(b) subject to conditions as to when or in what
circumstances the order is to take effect; or
15 (c) together with orders to safeguard the interests of clients,
employees and officers of the incorporated legal
practice.
(3) The grounds for disqualifying an incorporated legal practice
are --
20 (a) that a legal practitioner director or a legal practitioner
who is an officer or employee of the corporation has
been found guilty of unsatisfactory conduct;
(b) that the Board is satisfied, after conducting an audit of
the incorporated legal practice, that the incorporated
25 legal practice has failed to implement satisfactory
management and supervision of its provision of legal
services;
(c) that an incorporated legal practice has contravened
section 66;
30 (d) that a person who is the subject of an order under
section 70 or 87 is acting in the management of the
incorporated legal practice.
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Legal Practice Bill 2002
Business structures Part 6
Incorporated legal practices Division 2
s. 70
(4) A corporation that is disqualified from providing legal services
in another State is taken to be disqualified from providing legal
services in this State.
(5) A corporation that provides legal services in contravention of an
5 order made under this section is guilty of an offence.
Penalty: $50 000.
(6) A corporation that is disqualified under this section ceases to be
an incorporated legal practice.
(7) The regulations may make provision for or with respect to the
10 publication and notification of orders made under this section,
including notification of regulatory authorities in other States.
70. Disqualification from managing incorporated legal practice
(1) The Supreme Court may, on the application of the Board, make
an order disqualifying a person from managing a corporation
15 that is an incorporated legal practice for the period the Court
considers appropriate if the Court is satisfied that --
(a) the person is a person who could be disqualified under
section 206E of the Corporations Act from managing
corporations; and
20 (b) the disqualification is justified.
(2) The Supreme Court may, on the application of the person
subject to an order under subsection (1), revoke the order.
(3) A corporation ceases to be an incorporated legal practice for the
purposes of this Act if a person who is subject to a
25 disqualification order under subsection (1) is an officer of the
corporation.
(4) A disqualification order made under this section has effect for
the purposes only of this Act and does not affect the
Corporations Act.
30 (5) The regulations may make provision for or with respect to the
publication and notification of orders made under this section.
page 49
Legal Practice Bill 2002
Part 6 Business structures
Division 2 Incorporated legal practices
s. 71
71. Disclosure of information to ASIC
(1) The Board, the Complaints Committee, or the Law Complaints
Officer exercising the power of that committee, the Disciplinary
Tribunal or an examiner appointed under section 142 may
5 disclose to the Australian Securities and Investment
Commission information concerning an incorporated legal
practice or a former incorporated legal practice that has been
acquired in connection with the exercise of functions under this
Act.
10 (2) The information may be provided despite any law relating to
secrecy or confidentiality (including any provisions of this Act).
72. Relationship to Corporations legislation and certain other
instruments
(1) The provisions of this Act that apply to or in respect of an
15 incorporated legal practice prevail, to the extent of any
inconsistency, over the constitution or other constituent
documents of the incorporated legal practice.
(2) The regulations may declare any provision of this Act to be a
Corporations legislation displacement provision for the
20 purposes of section 5G of the Corporations Act.
(3) The regulations may declare any matter relating to an
incorporated legal practice that is prohibited, required,
authorised or permitted under this Act to be an excluded matter
for the purposes of section 5F of the Corporations Act in
25 relation to --
(a) the whole of the Corporations legislation;
(b) a specified provision of the Corporations legislation;
(c) the Corporations legislation other than a specified
provision; or
30 (d) the Corporations legislation other than to a specified
extent.
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Legal Practice Bill 2002
Business structures Part 6
Multi-disciplinary partnerships Division 3
s. 73
(4) In this section --
"matter" includes act, omission, body, person or thing.
73. Undue influence
An officer or employee of an incorporated legal practice must
5 not cause or induce a legal practitioner director of the
incorporated legal practice, or a legal practitioner employed or
engaged by the incorporated legal practice, to contravene this
Act or to breach his or her professional obligations as a legal
practitioner.
10 Penalty: $25 000.
Division 3 -- Multi-disciplinary partnerships
74. Nature of multi-disciplinary partnerships
A multi-disciplinary partnership is a partnership between one or
more legal practitioners and one or more other persons who are
15 not legal practitioners, where the partnership business includes
the provision of legal services as well as other services.
Note: Under section 123, the prohibition on engaging in legal practice except
as a certificated practitioner extends to legal services provided by a
multi-disciplinary partnership.
20 75. Conduct of multi-disciplinary partnerships
(1) A legal practitioner may be in partnership with a person who is
not a legal practitioner.
(2) The regulations may prohibit a legal practitioner from being in
partnership with a person providing a service or conducting a
25 business of a kind specified by the regulations.
(3) This section applies only if the business of the partnership
concerned includes the provision of legal services.
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Legal Practice Bill 2002
Part 6 Business structures
Division 3 Multi-disciplinary partnerships
s. 76
76. Responsibilities of legal practitioner partner
(1) Each legal practitioner partner of a multi-disciplinary
partnership is, for the purposes only of this Act, responsible for
the management of the legal services provided in this State by
5 the partnership.
(2) Each legal practitioner partner of a multi-disciplinary
partnership must ensure that appropriate management systems
are implemented and maintained to enable the provision of legal
services by the partnership --
10 (a) in accordance with the professional obligations of legal
practitioners and the other obligations imposed under
this Act; and
(b) so that the professional obligations of legal practitioner
partners and employees who are legal practitioners are
15 not adversely affected by other partners and employees
of the practice.
77. Obligations of legal practitioner partner related to
unsatisfactory conduct
(1) Each of the following is capable of constituting unsatisfactory
20 conduct by a legal practitioner partner of a multi-disciplinary
partnership --
(a) unsatisfactory conduct by a legal practitioner employed
by the multi-disciplinary partnership;
(b) conduct of any other partner (not being a legal
25 practitioner) of the multi-disciplinary partnership that
adversely affects the provision of legal services by the
partnership;
(c) the unsuitability of any other partner (not being a legal
practitioner) of the multi-disciplinary partnership to be a
30 member of a partnership that provides legal services.
(2) A legal practitioner partner of a multi-disciplinary partnership
must ensure that all reasonable action available to the legal
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Legal Practice Bill 2002
Business structures Part 6
Multi-disciplinary partnerships Division 3
s. 78
practitioner partner is taken to deal with any unsatisfactory
conduct of a legal practitioner employed by the practice.
78. Actions that may be taken by non-legal partner
A partner of a multi-disciplinary partnership who is not a legal
5 practitioner does not contravene a provision of this Act merely
because --
(a) the partner is a member of a partnership where the
partnership business includes the provision of legal
services;
10 (b) the partner receives any fee, gain or reward for business
of the partnership that is the business of a legal
practitioner;
(c) the partner holds out, advertises or represents himself or
herself as a member of the partnership where the
15 partnership business includes the provision of legal
services; or
(d) the partner shares with any other partner of the
multi-disciplinary partnership the receipts of business of
the partnership that is the business of a legal
20 practitioner.
79. Professional obligations and privileges of legal practitioners
who are partners or employees
(1) A legal practitioner who engages in legal practice as a partner or
an employee of a multi-disciplinary partnership is not excused
25 from compliance with the professional obligations of a legal
practitioner, or any other obligations of a legal practitioner
under any law, and does not lose the professional privileges of a
legal practitioner.
(2) To avoid doubt, the law relating to client legal privilege (or
30 other legal professional privilege) is not excluded or otherwise
affected because the legal practitioner is engaging in legal
practice as a partner or employee of a multi-disciplinary
partnership.
page 53
Legal Practice Bill 2002
Part 6 Business structures
Division 3 Multi-disciplinary partnerships
s. 80
80. Conflicts of interest
(1) For the purposes of the application of any law or rule relating to
conflicts of interest to the conduct of --
(a) a legal practitioner partner of a multi-disciplinary
5 partnership; or
(b) a legal practitioner who is an employee of a
multi-disciplinary partnership,
the interests of any partner of the multi-disciplinary partnership,
or any other employee of the partnership (whether or not a legal
10 practitioner), are taken to be the same as those of the legal
practitioner concerned.
(2) Rules may be made for or with respect to additional duties and
obligations in connection with conflicts of interest arising out of
the conduct of a multi-disciplinary partnership.
15 Note: Under section 79, a legal practitioner who is an officer or employee of
an incorporated legal practice must comply with the same professional
obligations as other legal practitioners in connection with conflicts of
interest.
81. Disclosure obligations
20 (1) If a person engages a multi-disciplinary partnership to provide
legal services, each legal practitioner partner of the partnership,
and any legal practitioner employee of the partnership who
provides legal services, must ensure that a disclosure is made to
the person in connection with the provision of legal services.
25 Penalty: $25 000.
(2) The disclosure must be made by giving the person a notice in
writing setting out the following:
(a) legal services to be provided;
(b) the non-legal services (if any) to be provided in
30 connection with the provision of legal services;
(c) that this Act applies to the provision of legal services but
not to the provision of the non-legal services;
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Legal Practice Bill 2002
Business structures Part 6
Multi-disciplinary partnerships Division 3
s. 82
(d) whether any financial benefit or commission (other than
fees for the provision of the legal services or the
non-legal services) has been or is to be received by any
partner or employee of the multi-disciplinary partnership
5 or any related body corporate of any partner of the
partnership as a result of the provision of the legal
services or non-legal services or any referral by any
such partner, employee or related body corporate related
to that provision;
10 (e) the amount or value of any such benefit or commission,
if known, or, if not known, the method by which it is to
be calculated.
(3) The regulations may make provision for or with respect to the
following matters:
15 (a) the manner in which disclosure is to be made;
(b) additional matters required to be disclosed in connection
with the provision of legal services or non-legal services
by a multi-disciplinary partnership.
(4) Without limiting subsection (2), the additional matters may
20 include the kind of services provided by the multi-disciplinary
partnership and whether those services are or are not covered by
the insurance or other provisions of this Act.
82. Application of rules to legal practitioner partners and
employees
25 (1) To avoid doubt, the rules that apply to legal practitioners apply
to legal practitioner partners and legal practitioners who are
employees of a multi-disciplinary partnership.
(2) The rules cannot --
(a) regulate any services that partners or employees of a
30 multi-disciplinary partnership may provide (other than
the provision of legal services, or other services in
circumstances where a conflict of interest relating to the
provision of legal services may arise); or
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Legal Practice Bill 2002
Part 6 Business structures
Division 3 Multi-disciplinary partnerships
s. 83
(b) regulate or prohibit the conduct of partners or employees
of a multi-disciplinary partnership (other than in
connection with the provision of legal services, or other
services in circumstances where a conflict of interest
5 relating to the provision of legal services may arise).
83. Requirements relating to advertising
(1) Any restriction imposed under this Act or any other written law
in connection with advertising by legal practitioners applies to
advertising by a multi-disciplinary partnership with respect to
10 the provision of legal services.
(2) Any such advertisement is, for the purposes of disciplinary
proceedings taken against a legal practitioner, taken to have
been authorised by each legal practitioner partner of the
partnership.
15 84. Requirements relating to legal fees and costs
(1) Unless the regulations provide otherwise, the provisions of this
Act and any other written law relating to legal costs and
remuneration of legal practitioners apply to legal practitioner
partners, and legal practitioner employees of a
20 multi-disciplinary partnership, in the same way as they apply to
any legal practitioner.
(2) The regulations may make provision with respect to the
application or modification of the provisions of this Act relating
to legal costs and remuneration of legal practitioners for the
25 purposes of this section.
85. Requirements relating to trust accounts
(1) Unless the regulations otherwise provide --
(a) Parts 10 and 11 and any rules relating to requirements
for trust accounts apply to legal practitioner partners and
30 legal practitioner employees of a multi-disciplinary
partnership in the same way as they apply to any legal
page 56
Legal Practice Bill 2002
Business structures Part 6
Multi-disciplinary partnerships Division 3
s. 86
practitioner, but only in connection with legal services
provided by the partnership;
(b) money received by a legal practitioner on behalf of
another person in the course of legal practice includes
5 money received by any employee of the
multi-disciplinary partnership on behalf of another
person in the course of providing legal services.
(2) An examination under section 142 that relates to trust accounts
may extend to all of the affairs of a multi-disciplinary
10 partnership and to all of its documents.
(3) Without limiting the powers of the Complaints Committee and
the Disciplinary Tribunal, the Complaints Committee and the
Disciplinary Tribunal may exercise their disciplinary powers
with respect to breaches of trust account requirements with
15 respect to a legal practitioner partner of a multi-disciplinary
partnership for any relevant failure of the partnership or any
partner or employee of the partnership.
(4) The regulations may make provision with respect to the
application or modification of the provisions of this Act relating
20 to trust accounts for the purposes of this section.
86. Prohibited person must not act as employee or partner
A legal practitioner who is a partner in a multi-disciplinary
partnership must not, knowing a person to be a prohibited
person or a person who is the subject of an order under
25 section 70 or 87 --
(a) be a partner of that person in the multi-disciplinary
partnership;
(b) share with that person the receipts of the provision of
legal services by the multi-disciplinary partnership; or
30 (c) employ or pay that person in connection with the
provision of legal services by the multi-disciplinary
partnership.
page 57
Legal Practice Bill 2002
Part 6 Business structures
Division 3 Multi-disciplinary partnerships
s. 87
87. Prohibition on partnerships with certain non-legal partners
(1) This section applies to a person who --
(a) is not a legal practitioner and is or was a partner of a
legal practitioner; or
5 (b) has engaged in unqualified practice.
(2) On application by the Board, the Supreme Court may make an
order prohibiting any legal practitioner from being a partner, in
a business that includes a legal practitioner's practice, of a
specified person to whom this section applies if --
10 (a) the Court is satisfied that the person is not a fit and
proper person to be such a partner;
(b) the Court is satisfied that the person has been guilty of
conduct that, if the person were a legal practitioner,
would have constituted unsatisfactory conduct; or
15 (c) in the case of a corporation, if the Court is satisfied that
the corporation is disqualified from providing legal
services in this State or there are grounds for
disqualifying the corporation from providing legal
services in this State.
20 (3) An order made under this section may be revoked by the
Supreme Court on application by the Board or by the person
against whom the order was made.
(4) The death of a legal practitioner does not prevent an application
being made for, or the making of, an order under this section in
25 relation to a person who was a partner of a legal practitioner.
(5) The regulations may make provision for or with respect to the
publication and notification of orders made under this section.
88. Undue influence
A partner, or an employee, of a multi-disciplinary partnership
30 must not cause or induce a legal practitioner partner, or any
legal practitioner employee of a multi-disciplinary partnership,
page 58
Legal Practice Bill 2002
Business structures Part 6
Multi-disciplinary partnerships Division 3
s. 88
to contravene this Act or to breach his or her professional
obligations as a legal practitioner.
Penalty: $25 000.
page 59
Legal Practice Bill 2002
Part 7 Interstate practitioners
Division 1 Preliminary
s. 89
Part 7 -- Interstate practitioners
Division 1 -- Preliminary
89. When an interstate practitioner establishes an office
For the purposes of this Part, an interstate practitioner
5 establishes an office in this State when the interstate practitioner
offers and provides legal services to the public in this State from
an office maintained by the interstate practitioner, or by the
employer or a partner in legal practice of the interstate
practitioner, for that purpose in this State.
10 Division 2 -- Legal practice by interstate practitioners
90. Interstate practitioner may practise in this State
(1) An interstate practitioner is entitled to engage in legal practice
in this State --
(a) as if the interstate practice certificate held by the
15 interstate practitioner were a practice certificate within
the meaning of this Act; and
(b) as if the terms of the interstate practitioner's entitlement
to practise in the State in which the interstate
practitioner has his or her principal place of practice
20 were the terms of his or her entitlement to practise in
this State.
(2) Without limiting anything in this Part, in so doing, the interstate
practitioner --
(a) must comply with this Act and any other written law
25 that relates to legal practice as if the interstate
practitioner were a local practitioner; and
(b) is subject to any condition, limitation, restriction or
prohibition imposed on the interstate practitioner in
respect of his or her practice by a regulatory authority of
page 60
Legal Practice Bill 2002
Interstate practitioners Part 7
Legal practice by interstate practitioners Division 2
s. 91
this or any other State (whether as a result of
disciplinary action or otherwise).
(3) A regulatory authority of this State must not impose a condition,
restriction, limitation or prohibition on an interstate practitioner
5 in respect of his or her practice that is more onerous than it
would impose on a local practitioner in the same or similar
circumstances.
91. Notification of establishment of office required
(1) An interstate practitioner who establishes an office in this State,
10 must give written notice to the Board within 28 days after
establishing the office.
Penalty: $2 500.
(2) A notice under this section must specify --
(a) the residential address of the interstate practitioner;
15 (b) the address at which the interstate practitioner practises,
or proposes to practise, in this State;
(c) each place at which the interstate practitioner practises
outside this State;
(d) if the interstate practitioner practises in partnership with
20 other persons -- the names of those other persons and
the name under which the partnership is carried on; and
(e) such other particulars as are prescribed by the rules.
92. Requirements relating to professional indemnity insurance
(1) This section applies to an interstate practitioner --
25 (a) who establishes an office in this State; and
(b) who, if he or she --
(i) were a local practitioner; and
(ii) did not hold a valid current certificate of
insurance as required under section 247,
30 would be refused a practice certificate.
page 61
Legal Practice Bill 2002
Part 7 Interstate practitioners
Division 3 Complaints and discipline
s. 93
(2) An interstate practitioner to whom this section applies must not
engage in legal practice unless he or she has appropriate
indemnity insurance in respect of his or her practice in this
State.
5 Penalty: $2 500.
(3) An interstate practitioner to whom this section applies has
appropriate indemnity insurance in respect of his or her practice
in this State during a period if, in respect of that period, there is
in force in respect of the interstate practitioner a certificate of
10 insurance that provides the same or a higher level of indemnity
as, and the terms of which are broadly equivalent to, a
certificate of insurance that would satisfy the Board if it were
issuing a practice certificate to the interstate practitioner.
93. Requirements relating to Guarantee Fund
15 (1) A notice under section 91 must be accompanied by an amount
for application to the Guarantee Fund that is the same as the
amount that would have to be paid under section 146 if the
person giving the notice were a legal practitioner required to
pay the amount under that section.
20 (2) An interstate practitioner practising in this State must pay for
each of the 4 years following the year in which payment is made
under subsection (1) an amount for application to the Guarantee
Fund that is the same as the amount that would have to be paid
under section 146 if the interstate practitioner were a legal
25 practitioner required to pay the amount under that section.
Division 3 -- Complaints and discipline
94. Local practitioners
(1) A dispute between a person and a local practitioner in
connection with the local practitioner's legal practice in another
30 State may be resolved by conciliation under Part 12 as if the
dispute were a complaint.
page 62
Legal Practice Bill 2002
Interstate practitioners Part 7
Complaints and discipline Division 3
s. 95
(2) A complaint about the conduct of a local practitioner in respect
of his or her legal practice in another State may be made and
dealt with under Part 12.
(3) An inquiry in relation to the conduct of a local practitioner in
5 respect of his or her legal practice in another State may be
undertaken under Part 12.
(4) A referral in relation to the conduct of a local practitioner in
respect of his or her legal practice in another State may be made
to the Disciplinary Tribunal and dealt with under Part 12.
10 95. Referral of complaints and disciplinary matters to
regulatory authorities in other States
(1) If it considers it appropriate to do so, the Complaints Committee
may refer a complaint lodged with it in relation to a local
practitioner or an interstate practitioner to a regulatory authority
15 of another State, to be dealt with according to the law of that
State.
(2) If it considers it appropriate to do so, the Complaints Committee
may request a regulatory authority of another State to
investigate the conduct of a local practitioner or an interstate
20 practitioner in accordance with the law of that State.
(3) After a referral under subsection (1) or a request under
subsection (2) has been made, no further action may be taken by
the Complaints Committee in relation to the subject matter of
the referral or request, other than action required to comply with
25 section 98, unless the regulatory authority of the other State
declines to deal with the matter.
96. Dealing with matters referred by regulatory authorities in
other States
(1) The Complaints Committee may resolve a dispute between a
30 person and a local practitioner or an interstate practitioner
referred to it by a regulatory authority of another State whether
page 63
Legal Practice Bill 2002
Part 7 Interstate practitioners
Division 3 Complaints and discipline
s. 97
or not the subject matter of the dispute arose in or outside this
State as if the dispute were a complaint.
(2) The Complaints Committee may investigate a complaint against
a local practitioner or an interstate practitioner referred to it by a
5 regulatory authority of another State whether or not the subject
matter of the complaint allegedly occurred in or outside this
State.
(3) If a regulatory authority of another State requests the
Complaints Committee to investigate the conduct of a local
10 practitioner or an interstate practitioner, the Complaints
Committee may investigate that conduct whether or not the
conduct allegedly occurred in or outside this State.
97. Furnishing information
(1) A regulatory authority of this State must furnish without delay
15 any information about a local practitioner or an interstate
practitioner reasonably required by a regulatory authority of
another State in connection with actual or possible disciplinary
action against the practitioner.
(2) A regulatory authority may provide the information despite any
20 law of this State relating to secrecy or confidentiality.
(3) Nothing in this section affects any obligation or power to
provide information apart from this section.
(4) A regulatory authority of this State must notify the appropriate
regulatory authority of each other State of any condition,
25 restriction, limitation or prohibition imposed by it on a local
practitioner or an interstate practitioner in respect of his or her
legal practice as a result of disciplinary action against the
practitioner.
page 64
Legal Practice Bill 2002
Interstate practitioners Part 7
Miscellaneous Division 4
s. 98
Division 4 -- Miscellaneous
98. Local practitioners are subject to interstate regulatory
authorities
(1) A local practitioner, in engaging in legal practice in this State,
5 must comply with any condition, restriction, limitation or
prohibition in respect of his or her practice imposed by a
regulatory authority of another State as a result of disciplinary
action against the local practitioner.
(2) A regulatory authority of another State --
10 (a) that has jurisdiction to suspend, cancel, vary the
conditions of or impose further conditions on, or order
the suspension, cancellation, variation of the conditions
of or imposition of further conditions on, an interstate
practice certificate; and
15 (b) to which a local practitioner is subject,
may suspend, cancel, vary the conditions of or impose further
conditions on, or order the suspension, cancellation, variation of
the conditions of or the imposition of further conditions on, the
local practitioner's practice certificate.
20 (3) The Board must comply with an order of a regulatory authority
of another State under subsection (2).
(4) A regulatory authority of another State that has jurisdiction to
order the removal of the name of a person from the roll in that
State that corresponds to the Roll of Practitioners in this State
25 may order that the name of a local practitioner be removed from
the Roll of Practitioners.
(5) If an order is made under subsection (4) , the practitioner's
name must be removed from the Roll of Practitioners.
99. Local practitioner receiving trust moneys interstate
30 A local practitioner must deal with trust moneys received in the
course of engaging in legal practice outside this State (other
page 65
Legal Practice Bill 2002
Part 7 Interstate practitioners
Division 4 Miscellaneous
s. 100
than trust moneys received in the course of engaging in legal
practice in another State in which the local practitioner has
established an office) in accordance with Part 10 as if the trust
moneys had been received in the course of engaging in legal
5 practice in this State.
100. Regulatory authority may exercise powers conferred by law
of another State
A regulatory authority of this State may exercise in respect of an
interstate practitioner any power conferred on it by a law of
10 another State relating to the regulation of legal practice.
page 66
Legal Practice Bill 2002
Foreign lawyers Part 8
Preliminary Division 1
s. 101
Part 8 -- Foreign lawyers
Division 1 -- Preliminary
101. Practice of foreign law defined
(1) For the purposes of this Act a person engages in the practice of
5 foreign law in this State if the person does any work or transacts
any business in this State concerning foreign law of a kind that,
if it concerned the law of this State, would constitute engaging
in legal practice.
(2) Engaging in the practice of foreign law may consist of a single
10 act.
102. Who may practise foreign law
(1) In this section --
"migration restriction" means a restriction imposed on a
person who is not an Australian citizen under the Migration
15 Act 1958 of the Commonwealth that has the effect of
limiting the period during which work may be done, or
business may be transacted, in Australia by the person.
(2) A person must not practise foreign law in this State unless --
(a) the person is a certificated practitioner;
20 (b) the person is a registered foreign lawyer; or
(c) the person is a foreign lawyer who practises foreign law
in this State on a temporary basis or who is subject to a
migration restriction and who --
(i) does not maintain an office for the purpose of
25 practising as a legal practitioner in this State; or
(ii) does not have a commercial legal presence in this
State.
Penalty: $10 000.
page 67
Legal Practice Bill 2002
Part 8 Foreign lawyers
Division 2 Registration of foreign lawyers
s. 103
(3) A person who contravenes subsection (2) is not entitled to
recover any amount in respect of anything done during the
course of that contravention and must repay any amount so
received to the person from whom it was received.
5 (4) If a person does not repay an amount required by subsection (3)
to be repaid, the person entitled to be repaid may recover the
amount from the person as a debt in a court of competent
jurisdiction.
Division 2 -- Registration of foreign lawyers
10 103. Applying for registration
(1) A foreign lawyer may apply for registration under this Division
by lodging a written notice with the Board.
(2) The notice must --
(a) state the applicant's educational and professional
15 qualifications;
(b) state that the applicant is registered to practise law in a
place outside Australia by a specified foreign
registration authority in that place;
(c) state whether the applicant is the subject of any
20 disciplinary proceedings in that place (including any
preliminary investigations or action that might lead to
disciplinary proceedings) in relation to that registration
and, if so, give details of those proceedings or
investigations or that action;
25 (d) state whether the applicant is a party in any pending
criminal or civil proceeding that might result in
disciplinary action being taken against the applicant and,
if so, give details of that proceeding;
(e) state that the applicant's registration in that place is not
30 cancelled or currently suspended as a result of
disciplinary action;
page 68
Legal Practice Bill 2002
Foreign lawyers Part 8
Registration of foreign lawyers Division 2
s. 103
(f) state whether or not the applicant is otherwise prohibited
from practising law in that place or bound by any
undertaking not to practise law in that place, or is
subject to any conditions in practising law in that place
5 as a result of criminal, civil or disciplinary proceedings
in that place;
(g) specify any conditions imposed as a restriction on legal
practice by the applicant or any undertaking given by
the applicant restricting the applicant's legal practice;
10 (h) contain an address in this State for service of notices and
other documents on the applicant;
(i) give consent to the making of inquiries of, and the
exchange of information with, the applicant's home
registration authority regarding the applicant's activities
15 in practising law in that place or otherwise regarding
matters relevant to the notice; and
(j) contain any other information required by the Board.
(3) The notice must be accompanied by an original instrument, or a
copy of an original instrument, from the applicant's home
20 registration authority --
(a) verifying the applicant's educational and professional
qualifications or, if it is not in a position to do so, stating
that fact;
(b) verifying the applicant's registration by the authority to
25 practise law in the place concerned and the date of that
registration; and
(c) stating whether there is any matter known to the
authority that, in its opinion, may render the applicant
unfit to practise law in the place concerned or to practise
30 foreign law and, if so, giving details of that matter.
(4) The applicant must certify in the notice that the accompanying
instrument is the original or a complete and accurate copy of the
original.
page 69
Legal Practice Bill 2002
Part 8 Foreign lawyers
Division 2 Registration of foreign lawyers
s. 104
(5) The Board may require the applicant to verify the statements in
the notice by statutory declaration or another manner specified
by the Board.
(6) If the accompanying instrument is not in English it must be
5 accompanied by a translation in English that is authenticated or
certified to the satisfaction of the Board.
104. Registration fee
(1) A notice under section 103 is to be accompanied by --
(a) any application fee that is payable under the rules; and
10 (b) any registration fee that is payable under the rules.
(2) The combined amount of the application fee and the registration
fee is not to be greater than the maximum fee for a practice
certificate.
(3) If an application for registration is refused, the Board must
15 refund the fees paid under subsection (1)(b).
105. Registration
(1) As soon as practicable after receiving a notice under
section 103, the Board must register the applicant as a foreign
lawyer if --
20 (a) the Board is satisfied that the applicant is registered to
practise law in a place outside Australia;
(b) the Board considers that an effective system exists in
that place for the regulation of legal practice in that
place;
25 (c) the Board considers that the applicant is not, or is not
likely to become, subject to any conditions in practising
law in that place or any undertakings concerning his or
her legal practice in that place that would make it
inappropriate to register the applicant; and
30 (d) the applicant demonstrates to the satisfaction of the
Board an intention to practise foreign law in this State
page 70
Legal Practice Bill 2002
Foreign lawyers Part 8
Registration of foreign lawyers Division 2
s. 106
and to establish an office or a commercial legal presence
in this State within a reasonable period after the grant of
registration.
(2) Residence or domicile in this State is not a pre-requisite for, or a
5 factor in determining entitlement to, registration as a foreign
lawyer.
(3) The Board must refuse to register a foreign lawyer if the
application is made within a period specified by the Disciplinary
Tribunal under section 186(4).
10 (4) In considering whether or not to register an applicant, the Board
may rely on --
(a) any material provided by or on behalf of the applicant;
(b) any further investigations it considers necessary to
undertake; and
15 (c) any investigations undertaken by it in relation to other
applicants for registration or registered foreign lawyers.
106. Conditions may be imposed on registration
(1) The Board, by notice in writing, may at any time impose a
condition on the registration of a foreign lawyer and may at any
20 time revoke or vary such a condition.
(2) The Board must not impose a condition on a foreign lawyer in
respect of his or her practice of foreign law that is more onerous
than it would impose on a certificated practitioner in the same or
similar circumstances.
25 107. Applicant to be notified of decision
(1) The Board must give an applicant written notice of its decision
to register the applicant as a foreign lawyer, to refuse
registration or to impose conditions on registration.
(2) If notice is not given to an applicant within 90 days after the
30 applicant lodges a notice in accordance with section 103, the
Board is taken to have refused to register the applicant.
page 71
Legal Practice Bill 2002
Part 8 Foreign lawyers
Division 2 Registration of foreign lawyers
s. 108
108. Fees to be paid by registered foreign lawyers
(1) A registered foreign lawyer must pay an annual registration fee.
(2) The annual registration fee is not to be greater than the
maximum fee for a practice certificate.
5 (3) Payment of the annual registration fee must be made on or
before a date notified in writing to the registered foreign lawyer
by the Board.
109. Register
(1) The Board must keep, in such form as it thinks fit, a register of
10 persons registered as foreign lawyers under this Part.
(2) The register must be made available for public inspection during
office hours.
110. Suspending registration
(1) The Board may suspend a registered foreign lawyer from
15 practising foreign law by giving written notice to the lawyer, if
it is of the opinion that there is sufficient reason for doing so.
(2) Without limiting the grounds for suspension, a registered
foreign lawyer may be suspended from practising foreign law
if --
20 (a) the registered foreign lawyer's registration by the
lawyer's home registration authority lapses;
(b) the registered foreign lawyer's home registration
authority suspends or cancels registration of the lawyer
as a result of criminal, civil or disciplinary proceedings;
25 (c) the registered foreign lawyer has not established an
office to practise foreign law, or a commercial legal
presence, in this State within a reasonable period after
being registered;
page 72
Legal Practice Bill 2002
Foreign lawyers Part 8
Registration of foreign lawyers Division 2
s. 111
(d) the registered foreign lawyer fails to comply with any
condition imposed on the registered foreign lawyer's
registration under this Act;
(e) the registered foreign lawyer fails to comply with any
5 requirement of this Act; or
(f) the registered foreign lawyer becomes an insolvent
under administration within the meaning of the
Corporations Act.
(3) A registered foreign lawyer is not to be suspended on the
10 ground referred to in subsection (2)(a) if the lawyer
demonstrates to the satisfaction of the Board that the lapse did
not result from any criminal, civil or disciplinary proceedings
against the lawyer, but from circumstances beyond the lawyer's
control.
15 (4) Subject to subsection (5), a suspension under this section takes
effect 28 days after the day notice is given under subsection (1).
(5) The Board may determine that a suspension take effect
immediately notice is given under subsection (1) if satisfied that
immediate suspension is necessary --
20 (a) for the protection of the foreign registered lawyer's
clients or members of the public generally; or
(b) to protect the integrity of the legal profession or the
administration of justice.
111. Effect of suspension
25 (1) A registered foreign lawyer who is suspended under section 110
is deemed not to be registered under this Division during the
period of suspension.
(2) If the Board is satisfied that the grounds for the suspension do
not or no longer exist, the Board must lift the suspension
30 immediately by giving written notice to the lawyer.
page 73
Legal Practice Bill 2002
Part 8 Foreign lawyers
Division 2 Registration of foreign lawyers
s. 112
112. Cancelling registration
(1) The Board, by written notice to a registered foreign lawyer, may
cancel the lawyer's registration if it is of the opinion that there
is sufficient reason for doing so.
5 (2) Without limiting the grounds for cancellation, registration may
be cancelled if --
(a) the registered foreign lawyer's registration by the
lawyer's home registration authority lapses;
(b) the registered foreign lawyer's home registration
10 authority cancels registration of the lawyer as a result of
criminal, civil or disciplinary proceedings;
(c) the registered foreign lawyer has not established an
office to practise foreign law, or a commercial presence,
in this State within a reasonable period after being
15 registered;
(d) the registered foreign lawyer fails to comply with any
condition imposed on the lawyer's registration under
this Act;
(e) the registered foreign lawyer fails to comply with any
20 requirement of this Act; or
(f) the registered foreign lawyer becomes an insolvent
under administration within the meaning of the
Corporations Act.
(3) Registration is not to be cancelled on the ground referred to in
25 subsection (2)(a) if the registered foreign lawyer demonstrates
that the lapse did not result from any criminal, civil or
disciplinary proceedings against the lawyer, but from
circumstances beyond the lawyer's control.
(4) Registration as a foreign lawyer is automatically cancelled if the
30 lawyer --
(a) becomes a certificated practitioner; or
(b) in writing requests cancellation.
page 74
Legal Practice Bill 2002
Foreign lawyers Part 8
Registration of foreign lawyers Division 2
s. 113
(5) Cancellation of registration at the request of a registered foreign
lawyer --
(a) takes effect when the request is received by the Board;
and
5 (b) does not prevent any disciplinary proceedings being
instituted against the lawyer or affect the continuity of
any proceedings already instituted.
(6) Subject to subsection (7), cancellation of registration under
subsection (1) takes effect 28 days after the day notice is given
10 to the registered foreign lawyer.
(7) The Board may determine that cancellation take effect
immediately notice is given under subsection (1) if satisfied that
immediate cancellation is necessary --
(a) for the protection of the lawyer's clients or members of
15 the public generally; or
(b) to protect the integrity of the legal profession or the
administration of justice.
(8) If a lawyer's registration is cancelled, the Board may refund the
whole or part of the last annual registration fee paid by the
20 lawyer, as determined by the Board.
113. Appeals
If under this Part the Board --
(a) refuses to register a foreign lawyer;
(b) imposes or varies a condition on the registration of a
25 foreign lawyer; or
(c) suspends or cancels the registration of a foreign lawyer,
the foreign lawyer may appeal to the Supreme Court.
page 75
Legal Practice Bill 2002
Part 8 Foreign lawyers
Division 3 Practising foreign law
s. 114
Division 3 -- Practising foreign law
114. Scope of practice allowed
(1) A registered foreign lawyer may only provide any or all of the
following legal services --
5 (a) legal services consisting of doing any work, or
transacting any business, in this State concerning the
law of the place in which the lawyer is registered by his
or her home registration authority;
(b) legal services (including appearances) in relation to
10 arbitration proceedings in this State of a kind prescribed
by the regulations;
(c) legal services (including appearances) in relation to
proceedings before bodies other than courts, being
proceedings in which the body concerned is not required
15 to apply the rules of evidence and in which knowledge
of the foreign law of the place referred to in
paragraph (a) is essential;
(d) legal services in relation to conciliation, mediation and
other forms of consensual dispute resolution in this State
20 of a kind prescribed by the regulations;
(e) legal services consisting of advice on the effect of the
law of this State or another Australian jurisdiction, if --
(i) the giving of the advice is necessarily incidental
to the practice of foreign law; and
25 (ii) the advice is expressly based on advice given to
the lawyer by a certificated practitioner who is
not his or her employee.
(2) Nothing in this Act authorises a registered foreign lawyer to
appear in any court (except on the lawyer's own behalf) or to
30 engage in legal practice.
page 76
Legal Practice Bill 2002
Foreign lawyers Part 8
Practising foreign law Division 3
s. 115
115. Form of practice
A registered foreign lawyer may (subject to any condition
imposed under section 106) practise foreign law --
(a) as a foreign lawyer on the lawyer's own account;
5 (b) in partnership with other registered foreign lawyers or
with certificated practitioners (or both);
(c) as a director of an incorporated legal practice or a
partner in a multi-disciplinary partnership; or
(d) as an employee of a certificated practitioner, a firm of
10 legal practitioners or a multi-disciplinary partnership or
as an employee or officer of an incorporated legal
practice.
116. Letterhead and other identifying documents
(1) In this section --
15 "public document" includes any business letter, statement of
account, invoice, business card and promotional and
advertising material.
(2) A registered foreign lawyer may describe himself or herself and
any partnership or body corporate with which the foreign lawyer
20 is associated only in one or more of the ways designated in
section 117.
(3) A registered foreign lawyer must indicate in any public
document issued by the lawyer, the fact that the lawyer is a
registered foreign lawyer and is restricted to the practice of
25 foreign law.
(4) Subsection (3) is satisfied if the lawyer includes in the
document the words --
(a) "registered foreign practitioner" or "registered foreign
lawyer"; and
30 (b) "entitled to practise foreign law only".
page 77
Legal Practice Bill 2002
Part 8 Foreign lawyers
Division 3 Practising foreign law
s. 117
117. Designation
(1) A registered foreign lawyer may use the following
designations --
(a) the registered foreign lawyer's own name;
5 (b) the title or any business name that the registered foreign
lawyer is authorised or permitted by law to use in the
place outside Australia in which the lawyer is registered
by his or her home registration authority;
(c) subject to subsection (2), the name of any partnership or
10 body corporate outside Australia with which the lawyer
is affiliated or associated;
(d) if the lawyer is a member of a partnership or body
corporate in Australia that includes legal practitioners
and registered foreign lawyers, a description of the
15 partnership or body that includes the title used by legal
practitioners and registered foreign lawyers (for
example, "Solicitors and registered foreign lawyers" or
"Australian Solicitors and US Attorneys").
(2) A registered foreign lawyer who is a member of a partnership or
20 body corporate outside Australia may use the name of the
partnership or body corporate in practising foreign law in this
State, or use the name in connection with the practice, only if --
(a) the registered foreign lawyer has provided the Board
with a copy of the partnership agreement or other
25 acceptable evidence that the lawyer is a member of the
partnership or body; and
(b) use of that name complies with any requirements of this
State's law concerning the use of business names and
will not lead to any confusion with the name of any
30 partnership or incorporated legal practice.
(3) A registered foreign lawyer who is a member of a partnership or
body corporate may use the name of the partnership or body as
referred to in this section whether or not other members are
registered foreign lawyers.
page 78
Legal Practice Bill 2002
Foreign lawyers Part 8
Practising foreign law Division 3
s. 118
118. Employment of certificated practitioners by registered
foreign lawyers
(1) A registered foreign lawyer may employ one or more
certificated practitioners.
5 (2) Employment of a certificated practitioner does not entitle a
registered foreign lawyer to engage in legal practice in this
State.
(3) Subject to subsection (4), a certificated practitioner employed
by a registered foreign lawyer must not provide advice on the
10 law of this State or another Australian jurisdiction to, or for use
by, the foreign lawyer or otherwise engage in legal practice in
this State in the course of that employment.
(4) Subsection (3) does not apply to a certificated practitioner
employed by a firm, a partner of which is a registered foreign
15 lawyer, if at least one other partner is a certificated practitioner.
(5) A period of employment by a registered foreign lawyer may not
be used by a legal practitioner to satisfy any requirements
concerning a period of supervised practice imposed on the legal
practitioner under this Act.
20 119. Employment of registered foreign lawyers by certificated
practitioners etc.
(1) A certificated practitioner, firm of legal practitioners,
incorporated legal practice or multi-disciplinary practice may
employ one or more registered foreign lawyers.
25 (2) Employment by a certificated practitioner, firm of legal
practitioners, incorporated legal practice or multi-disciplinary
practice does not entitle a registered foreign lawyer to engage in
legal practice in this State.
page 79
Legal Practice Bill 2002
Part 8 Foreign lawyers
Division 3 Practising foreign law
s. 120
120. Professional indemnity insurance
A registered foreign lawyer who practises foreign law in this
State must maintain professional indemnity insurance on terms
and conditions approved by the Board.
5 121. Trust accounts
Parts 10 and 11 apply to a registered foreign lawyer who
receives trust moneys as if a reference in those Parts to a legal
practitioner were a reference to the registered foreign lawyer.
122. Exemption may be granted by Board
10 The Board may exempt a registered foreign lawyer or class of
registered foreign lawyers from compliance with a specified
provision, or part of a provision, of this Act that would
otherwise apply to the lawyer.
page 80
Legal Practice Bill 2002
Unqualified and prohibited practice Part 9
s. 123
Part 9 -- Unqualified and prohibited practice
123. Prohibition on unqualified legal practice
(1) A person must not engage in legal practice unless the person is a
certificated practitioner.
5 Penalty: $10 000.
(2) Subsection (1) extends to legal services provided by an
incorporated legal practice or a multi-disciplinary partnership.
(3) Nothing in subsection (1) is to be construed as preventing a
person from --
10 (a) appearing or defending in person in a court;
(b) addressing the court if permitted to do so under
section 29 of the Local Courts Act 1904; or
(c) appearing for a person before a court, or providing
advice or other services, if that appearance or the
15 provision of that advice or service, is authorised by a
written law.
124. No liability in certain cases
(1) In this section --
"work" means --
20 (a) any work in connection with the administration of
law;
(b) drawing or preparing any deed, instrument or writing
relating to or in any manner dealing with or
affecting --
25 (i) real or personal estate or any interest in real or
personal estate; or
(ii) any proceedings at law, civil or criminal, or in
equity.
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Legal Practice Bill 2002
Part 9 Unqualified and prohibited practice
s. 125
(2) Nothing in section 123 is to be construed as affecting --
(a) a public officer doing work in the discharge of his or her
official duty;
(b) a person doing work --
5 (i) under the supervision of a certificated
practitioner, as a paid employee of a certificated
practitioner, a firm of legal practitioners, an
incorporated legal practice or a
multi-disciplinary partnership; or
10 (ii) as an articled clerk of a certificated practitioner;
or
(c) a person drawing or preparing a transfer under the
Transfer of Land Act 1893.
(3) It is a defence to a charge under section 123(1) in respect of the
15 doing of work to show that the person who did the work has not
directly or indirectly been paid or remunerated or promised or
expected pay or remuneration for the work so done (the
"unpaid work").
(4) Subsection (3) does not apply if the person directly or indirectly
20 receives, expects, or is promised, pay or remuneration for or in
respect of other work or services relating to, connected with or
arising out of the same transaction or subject matter as that to
which the unpaid work relates.
125. Offence by corporation
25 (1) Subject to subsections (2), (4) and (5), a corporation must not
provide legal services, or hold itself out, advertise or represent
itself as providing, legal services.
Penalty: $25 000.
(2) Subsection (1) does not apply to or in respect of --
30 (a) an incorporated legal practice that has at least one legal
practice director; or
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Legal Practice Bill 2002
Unqualified and prohibited practice Part 9
s. 126
(b) a corporation that does not receive any form of, or have
an expectation or promise of, pay or remuneration for
the legal services it provides.
(3) An incorporated legal practice does not contravene
5 subsection (1) because it ceases to have any legal practitioner
directors if --
(a) a new legal practitioner director is appointed within the
time prescribed by section 53(1); or
(b) an employee or other person is appointed under
10 section 53(3) to exercise the functions of a legal
practitioner director.
(4) A corporation may be exempted by the regulations from all or
part of subsection (1).
(5) A corporation may provide legal services if the only legal
15 services that the corporation provides are legal services
concerning a proceeding or transaction to which the corporation
(or a related body corporate) is a party ("in-house legal
services") but that corporation must not hold itself out, advertise
or represent itself as providing legal services.
20 Penalty: $25 000.
126. Certificated practitioner acting as agent for unqualified
person
(1) A certificated practitioner must not act as an agent for a person
other than a certificated practitioner or an incorporated legal
25 practice in or concerning any matter which under this Act may
only be done for profit by a certificated practitioner.
Penalty: $2 500.
(2) A certificated practitioner must not allow --
(a) the name of that practitioner;
30 (b) the name of an incorporated legal practice in which that
practitioner is an officer or employee; or
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Legal Practice Bill 2002
Part 9 Unqualified and prohibited practice
s. 127
(c) the name of a firm in which that practitioner is a partner
or employee,
to be made use of, in any manner whatever, in or concerning
any matter to which subsection (1) applies upon the account of
5 any person other than a certificated practitioner.
Penalty: $2 500.
(3) An incorporated legal practice must not allow the name of that
practice to be made use of, in any manner whatever, in or
concerning any matter to which subsection (1) applies upon the
10 account of any person other than a certificated practitioner.
Penalty: $10 000.
127. Allowing unqualified person to act as practitioner
A certificated practitioner must not do or allow to be done any
act which enables or tends to enable a person other than a
15 certificated practitioner to appear, act, or practise in any respect
as a certificated practitioner in any matter or proceeding, civil or
criminal.
Penalty: $10 000.
128. Unqualified person making false representation to be
20 practitioner
A natural person who is not a legal practitioner must not --
(a) purport or pretend to be a legal practitioner; or
(b) advertise or use any name, title, addition, or description
implying or tending to the belief that the person is a
25 legal practitioner or is recognised at law as a legal
practitioner.
Penalty: $2 500.
page 84
Legal Practice Bill 2002
Unqualified and prohibited practice Part 9
s. 129
129. Practitioner making false representation to be certificated
A legal practitioner who is not a certificated practitioner must
not --
(a) purport or pretend to be a certificated practitioner; or
5 (b) advertise or use any name, title, addition, or description
implying or tending to the belief that the person is a
certificated practitioner or is recognised at law as a
certificated practitioner.
Penalty: $2 500.
10 130. Sharing receipts
(1) A legal practitioner may share with any other person the
receipts of a business ordinarily conducted by a legal
practitioner, except to the extent (if any) that the regulations or
rules otherwise provide.
15 (2) Nothing in this Act prevents --
(a) a legal practitioner from sharing with an incorporated
legal practice receipts arising from the provision of legal
services; or
(b) a legal practitioner partner, or a legal practitioner who is
20 an employee, of a multi-disciplinary partnership from
sharing receipts arising from the provision of legal
services with a person or persons who are not legal
practitioners.
(3) Subsections (1) and (2) do not extend to the sharing of receipts
25 in contravention of section 66, 86 or 133.
131. Employment or engagement of practitioner without practice
certificate
Except as provided by the rules, a certificated practitioner or
incorporated legal practice must not employ or engage a legal
30 practitioner who is not a certificated practitioner to engage in
legal practice.
Penalty: $10 000.
page 85
Legal Practice Bill 2002
Part 9 Unqualified and prohibited practice
s. 132
132. Prohibition on employment or engagement of certain
non-legal persons
(1) This section applies to a person who --
(a) is not a legal practitioner and is or was an employee of a
5 legal practitioner; or
(b) has engaged in unqualified practice.
(2) The Supreme Court may, on the application of the Board, make
an order prohibiting (without approval of the Board under
section 133) any legal practitioner from employing or paying in
10 connection with his or her practice, a specified person to whom
this section applies if --
(a) the Supreme Court is satisfied that the person is not a fit
and proper person to be employed or paid in connection
with a legal practitioner's practice; or
15 (b) the Supreme Court is satisfied that the person has been
guilty of conduct which, if the person were a legal
practitioner, would have constituted unsatisfactory
conduct.
(3) An order under this section may be revoked by the Supreme
20 Court on application by the person against whom the order was
made.
(4) The death of a legal practitioner does not prevent an application
being made for, or the making of, an order under this section in
relation to a person who was an employee of the legal
25 practitioner.
133. Associates who are prohibited persons
(1) In this section --
"associate", in relation to a legal practitioner, means a person
who --
30 (a) is employed or engaged by the legal practitioner;
(b) is a partner of the legal practitioner;
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Legal Practice Bill 2002
Unqualified and prohibited practice Part 9
s. 134
(c) shares the receipts of the legal practitioner's business;
or
(d) is otherwise paid,
in connection with the legal practitioner's practice.
5 (2) Subject to subsection (3), a legal practitioner must not have as
an associate a person who is a prohibited person.
Penalty: $25 000.
(3) Subsections (2) and (5) do not apply to a person approved to be
an associate by the Board.
10 (4) An approval under subsection (3) may be subject to specified
limitations or conditions.
(5) A prohibited person must not seek to become an associate of a
legal practitioner unless the person first informs the legal
practitioner that the person is a prohibited person.
15 Penalty: $10 000.
134. Part does not affect operation of Fair Trading Act
Nothing in this Part affects the operation of the Fair Trading
Act 1987.
135. Appeal
20 A person aggrieved by --
(a) the refusal of the Board to approve a person to be an
associate under section 133; or
(b) the limitations or conditions imposed by the Board on an
approval under section 133,
25 may appeal to the Supreme Court.
page 87
Legal Practice Bill 2002
Part 10 Trust accounts
s. 136
Part 10 -- Trust accounts
136. Interpretation
(1) In this Part --
"legal practitioner" includes --
5 (a) a former legal practitioner;
(b) a firm of legal practitioners;
(c) except in relation to anything done or omitted to be
done by the legal practitioner, the personal
representative of a deceased legal practitioner.
10 (2) Sections 63, 85, 90 and 121 apply the provisions of this Part to
incorporated legal practices, multi-disciplinary partnerships,
interstate practitioners and registered foreign lawyers
respectively.
(3) A reference in this Part to trust moneys received by a legal
15 practitioner includes moneys received in the course of legal
practice --
(a) by a partner, officer, employee or agent of the legal
practitioner; or
(b) by a person with whom the legal practitioner shares
20 receipts, other than as principal and agent.
137. Trust moneys to be paid to trust account
(1) Every legal practitioner practising in this State who receives
trust moneys must --
(a) deposit the moneys to the credit of a trust account,
25 whether a general account or an account maintained for
one or other of the persons from whom, or for whose use
or benefit the moneys are received, specifically; and
(b) retain the moneys in the account until --
(i) they are dealt with as directed by the person from
30 whom or for whose use or benefit they are
received; or
page 88
Legal Practice Bill 2002
Trust accounts Part 10
s. 138
(ii) they are otherwise dealt with according to law.
(2) Subsection (1) does not apply when a legal practitioner deals
with the trust moneys as directed by the person from whom, or
for whose use or benefit, the trust moneys are received.
5 (3) Trust moneys --
(a) are not available for the satisfaction of any debt due to,
or any claim or demand made by, a person other than the
person for whose use or benefit they are received; and
(b) must not be attached or taken in execution at the
10 instance of any other person.
(4) Nothing in subsection (3) affects a lien or valid claim that a
legal practitioner may have over or against trust moneys under
the control of that legal practitioner.
138. Application of trust moneys to payment of costs
15 A legal practitioner under whose control trust moneys are held
may apply the trust moneys towards the payment of the costs
and disbursements charged against the person for whose use or
benefit the moneys are held if --
(a) that application is authorised by the client under the
20 terms on which the moneys are so held; and
(b) the legal practitioner within 14 days after so applying
the moneys causes to be served upon that person a bill
of costs in respect of those costs and disbursements
showing that trust moneys have been applied by the
25 legal practitioner towards the payment of those costs and
disbursements.
139. Banks not to be concerned as to the application of, or to
have recourse against, trust moneys
(1) A bank with which a legal practitioner maintains a trust account
30 is not obliged to inquire into the application of moneys
page 89
Legal Practice Bill 2002
Part 10 Trust accounts
s. 140
deposited to the credit of that account and is in no way liable in
respect of any misapplication of those moneys.
(2) Except as regards the operation of the account, a bank has no
right of recourse against moneys standing to the credit of an
5 account that is designated as, or is evident as being, a trust
account.
140. Legal practitioners to maintain books of account
A legal practitioner must maintain books of account of all trust
moneys received, deposited and disbursed or otherwise dealt
10 with by that legal practitioner, in such a manner as to disclose
the true position as regards those moneys and to enable the
books to be readily and conveniently audited.
141. Receipt of cheques
(1) In this section --
15 "direction in writing", in relation to a cheque received by a
legal practitioner, means a letter, authority or other writing
from the person from whom the cheque is received, or from
the person for whose use or benefit the cheque is received,
clearly indicating the manner in which the cheque is to be
20 dealt with.
(2) Where a legal practitioner receives a cheque from a person for
the use or benefit of a person other than the legal practitioner --
(a) the legal practitioner must cause an adequate record of
the receipt and disposition of the cheque to be made;
25 (b) if the cheque is made payable to the legal practitioner,
the legal practitioner must not deal with the cheque
unless the legal practitioner has a direction in writing;
and
(c) the legal practitioner must retain that record and, where
30 applicable, that direction for at least 7 years.
page 90
Legal Practice Bill 2002
Trust accounts Part 10
s. 142
(3) Subsection (2) does not apply in relation to a cheque that is paid
into a trust account.
(4) Despite subsection (2)(b), if the legal practitioner does not have
a direction in writing and it is necessary to deal with the cheque
5 without delay, the legal practitioner may deal with the cheque
but before doing so must send notice in writing of the intention
to deal with the cheque to the person from whom the cheque is
received or to the person for whose use or benefit the cheque is
received.
10 (5) A reference in subsection (2) to the receipt of a cheque by a
legal practitioner includes the receipt of a cheque in the course
of legal practice --
(a) by a partner, officer, employee or agent of the legal
practitioner; or
15 (b) by a person with whom the legal practitioner shares
receipts other than as principal and agent.
142. Board may appoint accountant to examine books of account
(1) The Board may, on its own initiative or at the request of the
Legal Contribution Trust, appoint and authorise an accountant
20 within the meaning of section 147(1) to examine the books of
account and records of a legal practitioner relating to any trust
accounts and to furnish the Board with a confidential report on
the matters and things disclosed by the examination.
(2) If an examination is authorised under this section at the request
25 of the Legal Contribution Trust, the Board may require that
body to pay part or all of the costs of the examination and the
Legal Contribution Trust must comply with that requirement.
(3) If the report of the examiner discloses that the legal practitioner
to whom it relates --
30 (a) has failed to keep books of account in accordance with
section 140; or
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Legal Practice Bill 2002
Part 10 Trust accounts
s. 143
(b) has contravened a provision of this or any other Act
relating to trust accounts or trust moneys,
the Board may order the legal practitioner to pay the costs, or
any part of the costs, of the examination and the legal
5 practitioner must comply with that order.
143. Examiner may require production of books and documents
(1) The examiner may require --
(a) the legal practitioner to whom the appointment relates
or, in the event of the absence of that legal practitioner,
10 any of the practitioner's employees, officers or agents to
produce to the examiner any records relating to trust
moneys or trust accounts that, in the opinion of the
examiner, may be reasonably necessary for the purposes
of the examination; and
15 (b) the manager or principal officer of a bank in which the
legal practitioner to whom the appointment relates has
deposited money, despite any law or rule of law to the
contrary, to --
(i) disclose every account of the legal practitioner
20 that, in the opinion of the examiner, may be
relevant to the examination; and
(ii) permit the making of a copy or extracts of any
such account.
(2) The examiner must, if requested, produce his or her instrument
25 of appointment to a person required to do anything under
subsection (1).
(3) If a person required to do anything under subsection (1), without
lawful excuse, proof of which lies on that person --
(a) refuses or fails to do the thing required;
30 (b) hinders or obstructs the examiner in the exercise of a
power under this Act; or
page 92
Legal Practice Bill 2002
Trust accounts Part 10
s. 144
(c) hinders or obstructs the examiner or any person
employed by the examiner in the performance of a duty
under this Act,
the person commits an offence.
5 Penalty: $5 000.
144. Limitation on disclosure of matters revealed in the course of
examinations
A person who is, or is employed by, an examiner must not,
except in the course of the examiner's report to the Board, or
10 any inquiry into the report, disclose or communicate to any
person any matter of which the person is informed or that comes
to the knowledge of that person in the course of an examination
made under this Part.
145. Action on examiner's report
15 (1) Upon receipt of the examiner's report, the Board must consider
it and may, where the circumstances so require, proceed to
inquire into the matters revealed by the report.
(2) The provisions of section 41(2) apply to an inquiry under
subsection (1) as if the inquiry were made under Part 5.
20 (3) The Board may, whether or not it has inquired into the matters
revealed by the report, request the Complaints Committee to
inquire into the matter under Part 12.
(4) Where it appears to the Board from the report of the examiner
that an accountant or auditor has been guilty of neglect, breach
25 of duty or any improper conduct, the Board may communicate
that fact to the professional association of which the accountant
or auditor is a member.
(5) The Board or a member or employee of the Board must not
communicate to any person any matter appearing in the
30 examiner's report, except --
(a) in the course of any action taken by the Board as the
result of an inquiry conducted under subsection (1);
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Legal Practice Bill 2002
Part 10 Trust accounts
s. 146
(b) to the Attorney General or a public officer;
(c) to the Legal Contribution Trust; or
(d) as otherwise provided by this section.
(6) A person to whom any matter appearing in the examiner's
5 report is communicated under this section must not, except in
the course of legal proceedings, communicate the matter to any
other person without the authority of the Board.
146. Legal practitioners to make payments towards Guarantee
Fund
10 (1) Subject to subsection (4), every legal practitioner who, on
30 June in any year has held a practice certificate for 2 years or
longer must, if and when paying the fee for any succeeding
practice certificate, pay to the Board, for application to the
Guarantee Fund, such amount not exceeding $20 as may be
15 prescribed by the rules.
(2) The Board must not issue a practice certificate to a legal
practitioner obliged to make a payment under subsection (1)
until the payment is made.
(3) The Board must pay to the Legal Contribution Trust all moneys
20 received by it under subsection (1).
(4) A legal practitioner who has made 5 payments, or has paid an
amount equal to 5 payments as then prescribed, under
subsection (1), is exempt from the requirement of making any
further payment under that subsection.
25 147. Accountant's certificate
(1) In this section --
"accountant" means --
(a) a person registered as an auditor, or taken to be
registered as an auditor, under Part 9.2 of the
30 Corporations Act; or
(b) a person approved for the purposes of section 72(2)
of the Real Estate and Business Agents Act 1978.
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Legal Practice Bill 2002
Trust accounts Part 10
s. 147
(2) Every legal practitioner who is required to maintain a trust
account must, when applying for a practice certificate, give to
the Board a certificate from an accountant to the effect that the
legal practitioner's books of account relating to that trust
5 account have been kept in accordance with the rules, if any,
relating to the keeping of trust accounts.
(3) Every legal practitioner director of an incorporated legal
practice that is required to maintain a trust account must, when
applying for a practice certificate, deliver to the Board from an
10 accountant a certificate to the effect that the incorporated legal
practice's books of account relating to its trust account have
been kept in accordance with the rules, if any, relating to the
keeping of trust accounts.
(4) If a satisfactory certificate is not delivered to the Board under
15 this section, the Board in its discretion may withhold the issue
of the practice certificate.
(5) Every legal practitioner who claims not to be required to
maintain a trust account must prove that fact to the satisfaction
of the Board, and pending such satisfaction the Board in its
20 discretion may withhold the issue of the practice certificate.
(6) A person who ceases to hold a practice certificate, and a person
administering the estate of a deceased legal practitioner,
must --
(a) deliver to the Board a certificate from an accountant
25 which fulfils the requirements of subsection (2) in
respect of any period during which the legal practitioner
held a practice certificate and in respect of which no
accountant's certificate has been received by the Board;
or
30 (b) satisfy the Board that the legal practitioner was not
required to maintain a trust account during the relevant
period.
Penalty: $2 500.
page 95
Legal Practice Bill 2002
Part 11 Supervisors and managers
s. 148
Part 11 -- Supervisors and managers
148. Interpretation
In this Part, unless the contrary intention appears --
"Board's appointee" means a certificated practitioner
5 appointed by the Board under section 154;
"legal practitioner" includes a registered foreign lawyer;
"practice" means, as the case requires, the practice of --
(a) a legal practitioner in respect of whose bank account
or accounts an order, other than an order for
10 revocation, has been made under section 149 or 150;
(b) a deceased legal practitioner or former incorporated
legal practice in respect of whose trust account an
order has been made under section 150;
(c) a legal practitioner in respect of whom an inquiry is
15 authorised under section 154;
(d) a legal practitioner in respect of whom, or in respect
of whose trust account, an order has been made under
section 156;
"supervising solicitor" means, as the case requires, a
20 certificated practitioner appointed by the Board --
(a) under section 151; or
(b) under powers conferred on the Board by
section 157(a),
to conduct a practice.
25 149. Restraint on bank accounts
(1) If a Judge, on the application of the Board, is satisfied --
(a) that there are reasonable grounds for believing --
(i) that there is, or may be, a deficiency in a trust
account of a legal practitioner; or
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Legal Practice Bill 2002
Supervisors and managers Part 11
s. 150
(ii) that there has been undue delay on the part of a
legal practitioner in properly paying or applying
trust moneys to or on behalf of a person or
persons for whose use or benefit they have been
5 received;
or
(b) that a legal practitioner is suspended from practising,
the Judge may make an order directed to that legal practitioner
and to the bankers of that legal practitioner and their respective
10 employees, officers and agents restraining dealings in all of the
bank accounts, or any specified bank accounts, of the legal
practitioner.
(2) An order under subsection (1) may be made subject to such
terms and conditions as the Judge thinks fit.
15 (3) A Judge may, on the application of the Board, the legal
practitioner, or any person interested, by further order revoke or
vary an order made under subsection (1).
(4) The legal practitioner and the bankers of that practitioner and
their respective employees, officers and agents must give effect
20 to an order made under this section according to its tenor.
150. Control of trust moneys by Legal Contribution Trust
(1) If a Judge is satisfied, on the application of the Board, that --
(a) there is a deficiency in a trust account of a legal
practitioner;
25 (b) a sole legal practitioner has died; or
(c) an incorporated legal practice has been deregistered or
dissolved,
the Judge may order that the Legal Contribution Trust --
(d) take possession of the moneys constituting the balance
30 of the account, or constituting the trust account of the
deceased legal practitioner or former incorporated legal
practice;
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Legal Practice Bill 2002
Part 11 Supervisors and managers
s. 151
(e) deposit the moneys in a separate account in the name of
the Legal Contribution Trust; and
(f) deal with those moneys according to law.
(2) If an order is made under subsection (1) the legal practitioner
5 and the bankers of that legal practitioner and their respective
employees, officers and agents, or the former employees,
officers and agents of the deceased legal practitioner or former
incorporated legal practice, and the employees, officers and
agents of those former bankers, must permit the Legal
10 Contribution Trust to give effect to the order according to its
tenor.
151. Special powers of the Board
(1) If an order other than an order for revocation is made under
section 149, 150 or 182, the Board, while the order is in
15 force --
(a) may appoint a certificated practitioner or registered
foreign lawyer (if the order is made in respect of the
practice of a registered foreign lawyer) to be supervising
solicitor of the practice;
20 (b) may authorise the Legal Contribution Trust to advance
money, out of the Guarantee Fund, to the supervising
solicitor.
(2) An appointment under subsection (1)(a) may be made on such
terms and conditions as to remuneration and indemnity as the
25 Board thinks fit.
(3) While an order referred to in subsection (1) is in force --
(a) the supervising solicitor may enforce the recovery of
profit costs earned by the legal practitioner;
(b) the legal practitioner remains liable, and the supervising
30 solicitor is not liable, for debts, liabilities and
professional obligations incurred, or arising out of
circumstances occurring, prior to the date of the order;
and
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(c) despite paragraph (b), the supervising solicitor may,
with the consent of the Legal Contribution Trust, pay the
debts or liabilities or meet the professional obligations
referred to in paragraph (b) where that is necessary or
5 convenient for the carrying on of the practice and those
sums are to be taken to form part of the proper expenses
of the supervising solicitor.
(4) The Board may determine --
(a) what, if any, proportion of any profit costs recovered on
10 account of the legal practitioner, or on account of the
personal representative of the deceased practitioner, are
payable to that person; and
(b) what proportion is to be paid to the Legal Contribution
Trust as a sum properly incurred by the Legal
15 Contribution Trust towards --
(i) expenses of the Legal Contribution Trust arising
under section 150;
(ii) the expenses and remuneration of the supervising
solicitor; and
20 (iii) the reimbursement of advances made out of the
Guarantee Fund and not otherwise recovered.
(5) A sum determined by the Board to be payable under
subsection (4)(b) in so far as not paid to the Legal Contribution
Trust by the supervising solicitor may be recovered by the Legal
25 Contribution Trust from the legal practitioner or the estate of the
deceased legal practitioner (as the case may require) --
(a) from any profit costs; or
(b) otherwise,
as a debt determined to have been properly incurred and to be
30 due to the Legal Contribution Trust.
(6) Persons acting judicially are to take judicial notice of a
determination under subsection (5).
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152. Functions of supervising solicitor
(1) A supervising solicitor of a practice must --
(a) conduct the practice for the purpose of concluding or
disposing of matters commenced but not concluded on
5 behalf of clients of the practice and, where necessary,
for the purpose of disposing of, or dealing with,
documents relevant to those matters; and
(b) in the case of the practice of a deceased legal
practitioner, carry on the practice until it can otherwise
10 be dealt with according to law.
(2) A supervising solicitor of a practice may require --
(a) the legal practitioner to whom the appointment in
respect of the practice relates;
(b) any employees, officers or agents of the legal
15 practitioner; and
(c) in the case of the practice of a deceased legal
practitioner, the personal representative or any of the
former employees or agents of the deceased legal
practitioner,
20 to produce to the supervising solicitor any records relating to the
practice that, in the opinion of the supervising solicitor, may be
reasonably necessary for the purposes of conducting the
practice.
(3) Despite any rule of law to the contrary, the supervising solicitor
25 of a practice may require a bank in which the legal practitioner
or deceased legal practitioner to whom the appointment in
respect of the practice relates has or had an account, to --
(a) disclose every account of that legal practitioner that, in
the opinion of the supervising solicitor, may be relevant
30 to the conduct of the practice; and
(b) permit the making of a copy or extracts of any such
account.
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(4) The supervising solicitor of a practice may --
(a) enter any premises of the legal practitioner to whom the
appointment in respect of the practice relates, or, in the
case of the practice of a deceased legal practitioner,
5 former premises; and
(b) take possession of all records or other things relating to
the practice that, in the opinion of the supervising
solicitor, may be relevant to or necessary for the conduct
of the practice.
10 (5) A power under subsection (2), (3) or (4) must not be exercised
before the supervising solicitor has, if so required, produced the
instrument by which the appointment in respect of the practice
was made.
153. Payment of moneys out of separate account
15 If an order is made under section 150 --
(a) the Legal Contribution Trust may, on the certificate of
the supervising solicitor, pay to the supervising solicitor
or as may be directed in the certificate, out of the
moneys deposited in the separate account under the
20 order, such amount or amounts as are specified in the
certificate, without enquiring as to, or being liable in
respect of, the correctness of the certificate or the
application of any money paid on the certificate; and
(b) a Judge may, on the application of the Board, the Legal
25 Contribution Trust, or any person interested, give such
directions as the Judge thinks fit for the payment by the
Legal Contribution Trust of any part of the moneys
deposited in the separate account under the order.
154. Power of Board to appoint legal practitioner to inquire into
30 and report on practice
(1) The Board may at any time appoint in writing --
(a) a certificated practitioner; or
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(b) in the case of an inquiry into a registered foreign lawyer,
a certificated practitioner or a registered foreign lawyer,
to inquire whether or not a legal practitioner is, for any reason,
incapable of properly conducting the practice carried on by that
5 legal practitioner, and to report on that inquiry to the Board.
(2) The Board's appointee may require --
(a) the legal practitioner to whom the inquiry relates; and
(b) any employee, officer or agent of the legal practitioner,
to produce to the Board's appointee any records relating to the
10 practice that, in the opinion of the Board's appointee, may be
reasonably necessary for the purposes of the inquiry.
(3) Despite any rule of law to the contrary, the Board's appointee
may require a bank in which the legal practitioner to whom the
inquiry relates has an account to --
15 (a) disclose every account of that legal practitioner that, in
the opinion of the Board's appointee, may be relevant to
the inquiry; and
(b) permit the making of a copy or extracts of any such
account.
20 (4) A power under subsection (2) or (3) must not be exercised
before the Board's appointee has, if so required, produced the
instrument by which the appointment in respect of the
practitioner was made.
(5) A person who, being required to do anything under
25 subsection (2) or (3), without lawful excuse, proof of which lies
on that person --
(a) refuses or fails to do the thing required; or
(b) hinders or obstructs the Board's appointee in the
exercise of a power under this section,
30 commits an offence.
Penalty: $5 000.
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155. Board may apply to Judge for an order
The Board must consider a report received from the Board's
appointee and may where the circumstances so require apply to
a Judge for an order under section 156.
5 156. Power of Judge
(1) If a Judge, on the application of the Board, is satisfied that there
are reasonable grounds for believing that a legal practitioner is,
for any reason, incapable of properly conducting the practice
carried on by that legal practitioner, the Judge may --
10 (a) suspend the legal practitioner from practising for the
period specified in the order or, in the case of a
registered foreign lawyer, suspend the registration of the
registered foreign lawyer for a period specified in the
order;
15 (b) restrain the legal practitioner and the bankers of that
practitioner and their respective employees, officers and
agents from dealing in all or any of the bank accounts of
the legal practitioner, subject to such terms and
conditions as the Judge thinks fit;
20 (c) authorise the Board to appoint a supervising solicitor;
(d) authorise the Board to suspend the legal practitioner
from practising until further notice or, in the case of a
registered foreign lawyer, to suspend the registration of
the registered foreign lawyer until further notice;
25 (e) make an order containing any other provision of a kind
referred to in section 187 and such further or other
orders as the Judge thinks fit.
(2) Section 153 applies to an order made under subsection (1)(b) as
if the order were made under section 150.
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(3) If the Judge authorises the Board to appoint a supervising
solicitor under subsection (1) the Judge may --
(a) order that the supervising solicitor is empowered to
withdraw moneys from any bank account of the legal
5 practitioner; and
(b) make an order like that which may be made under
section 150.
(4) A Judge may, on the application of the Board, the legal
practitioner, or any person interested, by further order revoke or
10 vary an order made under subsection (1) or (3).
(5) The Board must give a legal practitioner notice of any
application made by the Board under subsection (1) or (4) in
respect of the legal practitioner.
(6) A legal practitioner who makes an application under
15 subsection (4) must give the Board notice of the application.
(7) An interested person who makes an application under
subsection (4) in respect of a legal practitioner must give the
Board and the legal practitioner notice of the application.
(8) The legal practitioner, the bankers of that legal practitioner, and
20 their employees, officers and agents must give effect to an order
made under this section according to its tenor.
157. Effect of certain orders
If an order is made under section 156(1) --
(a) the Board has, with such modifications as are necessary,
25 like powers to those conferred by section 151; and
(b) a supervising solicitor appointed pursuant to the order
has like powers and duties to those conferred and
imposed on a supervising solicitor by section 152,
including carrying on the practice until it can be
30 otherwise dealt with according to law.
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158. Offence
If a person, without lawful excuse, proof of which lies on that
person --
(a) refuses or fails to do a thing required of that person by a
5 supervising solicitor under powers conferred on the
supervising solicitor under this Act;
(b) hinders or obstructs the supervising solicitor in the
exercise of a power under this Act; or
(c) hinders or obstructs the supervising solicitor, or any
10 person employed by the supervising solicitor, in the
performance of a duty under this Act,
the person commits an offence.
Penalty: $5 000.
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Division 1 General
s. 159
Part 12 -- Complaints and discipline
Division 1 -- General
159. Interpretation
In this Part, unless the contrary intention appears --
5 "legal practitioner" includes any person to whom this Part
applies.
160. Application
(1) This Part applies to --
(a) any person who is a legal practitioner, including a legal
10 practitioner who does not hold a practice certificate;
(b) a person who was a legal practitioner when the
unsatisfactory conduct the subject of a complaint
allegedly occurred but who is no longer a legal
practitioner;
15 (c) a deceased legal practitioner;
(d) a person who is entitled under a law of the
Commonwealth to perform in the State the functions of
a barrister or solicitor;
(e) a person who is an interstate practitioner if the person
20 engages in legal practice in this State; and
(f) a person who was an interstate practitioner engaged in
legal practice in this State when the unsatisfactory
conduct the subject of a complaint occurred but who is
no longer an interstate practitioner.
25 (2) For the purposes of the application of this Part to an interstate
practitioner, a reference in this Part to a practice certificate
includes a reference to an interstate practice certificate.
(3) This Part also applies --
(a) to a registered foreign lawyer; and
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(b) to a person who was a registered foreign lawyer engaged
in the practice of foreign law when the alleged
unsatisfactory conduct occurred but who is no longer a
registered foreign lawyer,
5 as if a reference in this Part to a legal practitioner were a
reference to a registered foreign lawyer and a reference to
engaging in legal practice or practising law were a reference to
engaging in the practice of foreign law or practising foreign law.
161. Jurisdiction of Supreme Court not affected
10 Nothing in this Part affects the jurisdiction of the Supreme
Court with respect to legal practitioners.
Division 2 -- Disciplinary bodies
Subdivision 1 -- Complaints Committee
162. Complaints Committee established
15 A committee called the Legal Practitioners Complaints
Committee is established.
163. Members of the Complaints Committee
(1) The Complaints Committee consists of the following
members --
20 (a) a chairperson, and not less than 6 other legal
practitioners, appointed by the Board from amongst its
members from time to time;
(b) not less than 2 representatives of the community, none
of whom is to be a person who is or has been a legal
25 practitioner.
(2) The Attorney General is to appoint the members as
representatives of the community after consultation with the
Minister responsible for consumer affairs.
(3) The number of persons to be appointed to the Complaints
30 Committee as representatives of the community must not
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exceed one quarter of the total membership of the Complaints
Committee for the time being.
164. Functions of the Complaints Committee
(1) The functions of the Complaints Committee are --
5 (a) to supervise the conduct of legal practitioners and the
practice of the law;
(b) to receive complaints under section 175;
(c) to inquire into such complaints and, where the
committee so determines whether for cause or not and
10 whether the Complaints Committee has received a
complaint or not, any --
(i) conduct on the part of a legal practitioner; or
(ii) matters relating to legal practice,
for the purpose of determining whether it may constitute
15 unsatisfactory conduct;
(d) if the Complaints Committee considers it appropriate to
do so --
(i) to conciliate between a legal practitioner and a
complainant or other person affected by the
20 conduct of the legal practitioner; or
(ii) to refer a matter for conciliation by the Law
Society or another appropriate person or body;
(e) to exercise summary professional disciplinary
jurisdiction in accordance with section 177;
25 (f) if the Complaints Committee considers it appropriate to
do so, and whether or not it has conducted an inquiry, to
institute --
(i) professional disciplinary proceedings against a
legal practitioner before the Disciplinary
30 Tribunal; or
(ii) proceedings before the Supreme Court;
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(g) to supervise and direct the Law Complaints Officer in
the performance of the functions of that officer; and
(h) to comment upon, and make recommendations in
respect of, this Act and the rules insofar as they may
5 affect the functions of the Complaints Committee.
(2) In addition to the functions set out in subsection (1) a member
appointed under section 163(2) may report independently, as an
individual to the Attorney General on any aspect of --
(a) an alleged complaint;
10 (b) an inquiry as to disciplinary matters under this Part;
(c) the rules as they relate to disciplinary matters or the
conduct of practice under this Act; or
(d) the activities of the Law Complaints Officer or the
Complaints Committee.
15 165. Constitution and procedure of Complaints Committee
(1) Schedule 2 Division 1 has effect with respect to the constitution
of the Complaints Committee.
(2) Schedule 2 Division 2 has effect with respect to the procedure
of the Complaints Committee.
20 166. Reports
(1) The chairperson of the Complaints Committee must on or
before 31 December in each year cause an annual report in
relation to the activities of the Complaints Committee in the
year ending on the preceding 30 June to be made and submitted
25 to the Attorney General.
(2) The Attorney General must within 14 days after the day on
which a copy of a report is received by the Attorney General
cause a copy of the report to be laid before each House of
Parliament or dealt with under section 251.
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(3) In addition to the annual report under subsection (1), the
Complaints Committee must report --
(a) at such other times and in such manner as may be
requested, to the Attorney General; and
5 (b) at such times and in such manner as may be requested,
to the Board,
on matters relating to its functions and the operation of the
provisions of this Act regulating the conduct and disciplining of
legal practitioners.
10 (4) The Complaints Committee may make a report under
subsection (3) of its own volition.
(5) Where a report is to be made under subsection (3) any member
of the Complaints Committee may request that the report
include such matters as that member considers appropriate, and
15 effect must be given to the request.
167. The Law Complaints Officer
(1) An office of Law Complaints Officer is established.
(2) The Board must appoint to the office of Law Complaints
Officer a legal practitioner with experience in the conduct of a
20 legal practice.
(3) Subject to the directions of the Complaints Committee, the Law
Complaints Officer may --
(a) exercise the functions of the Complaints Committee,
other than the exercise of summary professional
25 disciplinary jurisdiction; and
(b) from time to time on behalf of the Complaints
Committee and in its stead, carry out its duties and
exercise its powers in relation to those functions.
(4) The Law Complaints Officer may appear at any investigation,
30 inquiry or hearing under this Part either in person or by counsel.
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Subdivision 2 -- The Disciplinary Tribunal
168. Disciplinary Tribunal established
(1) A tribunal called the Legal Practitioners Disciplinary Tribunal is
established.
5 (2) All summonses, orders and other processes issued out of the
Disciplinary Tribunal must be stamped with the seal of the
Tribunal.
169. Composition of Disciplinary Tribunal
(1) The Disciplinary Tribunal consists of the following members --
10 (a) the chairperson appointed under section 170, and the
deputy chairperson of the Disciplinary Tribunal if
appointed;
(b) those members of the Board who are not members of the
Complaints Committee;
15 (c) any other legal practitioner appointed under
subsection (2);
(d) one or more other persons as representatives of the
community, none of whom is to be a person who is or
has been a legal practitioner or a person who holds
20 current office as a representative of the community on
the Complaints Committee.
(2) Each member of the Disciplinary Tribunal holding office under
subsection (1)(c) is to be appointed by the Board from amongst
certificated practitioners of not less than 8 years' standing.
25 (3) The Attorney General is to appoint the members as
representatives of the community after consultation with the
Minister responsible for consumer affairs.
170. Chairperson of the Disciplinary Tribunal
(1) The chairperson of the Disciplinary Tribunal is to be appointed
30 by the Governor.
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(2) A person is not eligible to be appointed as chairperson of the
Disciplinary Tribunal unless the person is --
(a) a Judge of the Supreme Court or District Court;
(b) a former Judge of the Supreme Court, the District Court,
5 the Federal Court of Australia or the High Court of
Australia; or
(c) a legal practitioner of not less than 8 years' standing.
171. Constitution and procedure of Disciplinary Tribunal
(1) Subject to the rules, the chairperson of the Disciplinary Tribunal
10 may --
(a) give directions generally as to the procedure to be
adopted to select members, and to constitute the
Tribunal for the purpose of hearing and determining any
matter; or
15 (b) in a particular matter, select which members are to
constitute the Tribunal for the purpose of hearing and
determining that matter,
and for the purpose of any matter, other than one for which the
Disciplinary Tribunal is constituted by the chairperson sitting
20 alone, it is sufficient if members constituting not less than a
quorum are selected.
(2) A member who, in relation to a particular matter, has been
participating in any endeavours at conciliation under this Part,
must not participate as a member of the Disciplinary Tribunal in
25 relation to that matter.
(3) When hearing or determining any matter of practice or
procedure or of an interlocutory nature, the Disciplinary
Tribunal may be constituted by the chairperson sitting alone.
(4) Schedule 3 Division 1 has effect with respect to the constitution
30 of the Disciplinary Tribunal.
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(5) Schedule 3 Division 2 has effect with respect to the procedure
of the Disciplinary Tribunal.
172. Functions of the Disciplinary Tribunal
(1) The functions of the Disciplinary Tribunal are --
5 (a) to hear and determine all matters referred to it, and
applications made to it, under this Act; and
(b) to make and enforce orders in respect of those matters.
(2) A member appointed under section 169(3) may report
independently, as an individual to the Attorney General on any
10 aspect of --
(a) an alleged complaint;
(b) an inquiry as to disciplinary matters under this Part;
(c) the rules as they relate to disciplinary matters or the
conduct of practice under this Act; or
15 (d) the activities of the Law Complaints Officer or the
Complaints Committee.
173. Registrar
(1) The Board may appoint a person to be the Registrar of the
Disciplinary Tribunal.
20 (2) The Registrar is to perform the functions contemplated by the
rules or required by the Tribunal.
174. Annual report
(1) The chairperson of the Disciplinary Tribunal must on or before
31 December in each year cause an annual report in relation to
25 the activities of the Disciplinary Tribunal in the year ending on
the preceding 30 June to be made and submitted to the Attorney
General.
(2) The Attorney General must within 14 days after the day on
which a copy of a report is received by the Attorney General
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Division 3 Complaints about legal practitioners
s. 175
cause a copy of the report to be laid before each House of
Parliament or dealt with under section 251.
Division 3 -- Complaints about legal practitioners
175. Making of complaints
5 (1) A complaint to the Complaints Committee as to the conduct of a
legal practitioner, whether occurring before or after his or her
admission as a legal practitioner, may be made under this
section.
(2) A complaint may be made by --
10 (a) the Attorney General;
(b) the Board;
(c) the Executive Director of the Law Society in respect of
matters where the making of the complaint has been
authorised by a resolution of the Council of that Society;
15 (d) any legal practitioner; or
(e) any other person who has or had a direct personal
interest in the matters alleged in the complaint.
(3) A complaint --
(a) should normally be in writing, but the Complaints
20 Committee or the Law Complaints Officer may
formulate in writing any oral complaint received;
(b) must set out briefly the allegations upon which the
complaint is grounded;
(c) may be made direct to the Complaints Committee or
25 through the Law Complaints Officer;
(d) may be made --
(i) by the complainant personally;
(ii) by a legal practitioner with the authority of the
complainant; or
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(iii) where a person who might have been a
complainant has died or is otherwise unable to
act, by or on behalf of that person by a personal
representative or any relative or other
5 representative of that person;
and
(e) may be made even though the complainant may bring
proceedings in any court with respect to the same
matter.
10 Division 4 -- Conciliation and disciplinary proceedings --
Complaints Committee
176. Conciliation
(1) If the Complaints Committee believes that a complaint might be
resolved by conciliation, the Committee may --
15 (a) cause conferences of the persons concerned, or their
representatives, to be arranged and to be presided over
by a person acceptable to the Committee;
(b) give such advice and make such recommendations to the
persons concerned as may establish or maintain
20 adequate communication between them and encourage
them to exchange or divulge information likely to assist
in the reaching of an agreement; and
(c) cause the persons concerned, or any of them, either
separately or together, to appear before the Law
25 Complaints Officer or the Complaints Committee.
(2) If the Complaints Committee, with the consent of each of the
parties to the settlement, by order gives effect to a settlement
negotiated under this section --
(a) the terms of the settlement reached between the parties
30 referred to in the order are final and binding on those
parties;
(b) the order may include any provision that might have
been ordered by the Disciplinary Tribunal; and
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(c) the order of the Committee may be enforced as if it had
been an order of the Disciplinary Tribunal.
(3) Evidence of anything lawfully said or done, or any record
prepared and produced for the purpose of conciliation, by a
5 person in the course of any conciliation proceedings under this
section --
(a) must not be used in any subsequent consideration of the
complaint by the Committee or the Tribunal; and
(b) unless that person waives the right to object, is not
10 admissible in evidence against that person in any
subsequent civil proceedings concerning the subject
matter of the complaint.
177. Summary professional disciplinary jurisdiction
(1) The Complaints Committee has, and subject to the consent of
15 the legal practitioner concerned may exercise, jurisdiction
summarily to find, after an inquiry under this Part, that a legal
practitioner is guilty of unsatisfactory conduct.
(2) If the Complaints Committee makes a finding under
subsection (1) the Complaints Committee may --
20 (a) order the legal practitioner to pay to the Board a fine not
exceeding $2 500;
(b) reprimand the legal practitioner;
(c) order that the legal practitioner seek and implement,
within a period specified in the order, advice from the
25 Board, or from a person specified in the order, in
relation to the management and conduct of the practice,
or the specific part or aspect of the practice, specified in
the order;
(d) order that the legal practitioner, within such limits (if
30 any) as may be fixed by the rules, reduce or refund any
fees, charges or disbursements in respect of business to
which the inquiry relates; or
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s. 178
(e) order that the legal practitioner pay all or any specific
part of the costs of either or both the complainant or the
Complaints Committee in relation to the inquiry.
(3) The Complaints Committee may take action under one or more
5 of the paragraphs of subsection (2).
(4) An order may be made under subsection (2)(2)(e) even where
no finding is made under subsection (1) against the legal
practitioner, if the Complaints Committee is of the opinion that
the conduct of the legal practitioner gave reasonable cause for
10 the inquiry.
(5) An order made by the Complaints Committee may be enforced
in the same manner as an order of the Supreme Court made
under this Act.
178. Finding where legal practitioner convicted of an offence
15 (1) Without limiting its jurisdiction under section 177, the
Complaints Committee may make a finding that a legal
practitioner is guilty of unsatisfactory conduct on it being shown
that --
(a) the legal practitioner has been convicted of an offence
20 by or before a court exercising jurisdiction in any place,
whether in Australia or elsewhere; and
(b) the conviction occurred within the period of 10 years
before the commencement of the proceedings under this
Act in which that finding may be made.
25 (2) In any matter to which subsection (1) relates the Complaints
Committee --
(a) is not required to inquire as to the propriety of the
conviction; and
(b) may inform itself as to the circumstances giving rise to
30 the conviction from the transcripts or other records of --
(i) the court which convicted the legal practitioner;
or
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s. 179
(ii) any court which dealt with the conviction on
appeal,
and may make such inquiries or requests as are
necessary to obtain those transcripts or records.
5 (3) Where an appeal against the conviction of the legal practitioner
is pending the Complaints Committee may defer further
consideration of the consequences of the finding that the legal
practitioner is guilty of unsatisfactory conduct until the
determination of the appeal.
10 (4) Where in any proceedings to which subsection (1) relates a
finding (the "adverse finding") is made founded upon a
conviction that is subsequently quashed, set aside or changed
the Complaints Committee must reconsider the adverse finding
and --
15 (a) if the conviction was changed, may change the nature of
the adverse finding; and
(b) if the conviction was quashed or set aside, must quash or
set aside the adverse finding and any order made
consequential on that finding.
20 (5) Despite subsection (4), the Complaints Committee may
continue the original inquiry relating to the matter.
179. Disciplinary action against foreign lawyer
(1) In determining whether disciplinary action should be taken
against a registered foreign lawyer, the Complaints Committee
25 may take into account whether the conduct of the registered
foreign lawyer was consistent with the standards of professional
conduct of the legal profession in the lawyer's foreign place of
registration.
(2) If the Complaints Committee finds that a registered foreign
30 lawyer is guilty of unsatisfactory conduct it has, in addition to
its powers under section 177, the power to make an order
imposing any conditions of a kind referred to in section 106 on
the registered foreign lawyer.
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180. Referral by Committee to Disciplinary Tribunal
(1) If the Complaints Committee determines that a matter should be
heard by the Disciplinary Tribunal, the Committee must refer
the matter to the Disciplinary Tribunal.
5 (2) The Committee is not limited under subsection (1) by the terms
of any complaint it has received or by the subject matter of any
inquiry it has conducted.
(3) The referral must be made in the manner prescribed by the
rules.
10 181. Complainant may refer complaint to Disciplinary Tribunal
(1) If the Complaints Committee, after inquiry, determines that a
complaint should neither be dealt with summarily under
section 177 nor referred to the Disciplinary Tribunal, the
Committee must cause the Law Complaints Officer to give, in
15 writing to the complainant and to the legal practitioner
concerned, notice of that determination together with short
particulars of the reasons for the determination.
(2) A complainant aggrieved by a determination under
subsection (1) may refer the complaint to the Disciplinary
20 Tribunal.
(3) The referral must be made in the manner prescribed by the
rules.
(4) If the Complaints Committee, in its reasons for determination,
specifically finds the complaint --
25 (a) to be trivial, unreasonable, vexatious or frivolous;
(b) to relate to conduct or events too remote in time to
justify investigation; or
(c) to be a matter in which the complainant does not have a
sufficient interest to justify the complaint,
30 the complaint cannot be referred under subsection (2) without
the consent of the Attorney General.
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182. Interim restrictions on practice
(1) The Complaints Committee may apply to the Supreme Court for
an order suspending a legal practitioner from practice, or
restricting the entitlement of a legal practitioner to practise,
5 pending --
(a) inquiry, and determination or referral of a matter, by the
Complaints Committee;
(b) the hearing of a matter by the Disciplinary Tribunal; or
(c) an appeal against a decision of the Disciplinary
10 Tribunal.
(2) On an application under subsection (1), the Supreme Court may,
in addition to or instead of any other order it may make, make
an order under section 149 as though the application were an
application by the Board.
15 Division 5 -- Disciplinary proceedings before
Disciplinary Tribunal
183. Referral to be dealt with expeditiously
If a matter is referred, or an application is made, to the
Disciplinary Tribunal under this Act the Disciplinary Tribunal
20 must hear and determine the matter as expeditiously as is
practicable.
184. Proceedings before the Disciplinary Tribunal
(1) Notice of any hearing before the Disciplinary Tribunal must be
given in the manner prescribed by the rules --
25 (a) to the legal practitioner concerned;
(b) to any person concerned as a complainant; and
(c) in the case of an application to the Tribunal by the
Board, to the Board.
(2) The notice is to set out the time and place of the hearing and
30 short particulars of the matter to be heard.
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(3) Subject to this Act and the rules, the Disciplinary Tribunal may
determine its own procedure.
(4) The Disciplinary Tribunal is not bound by the rules of evidence
but may inform itself in any manner it considers just.
5 185. Powers of the Disciplinary Tribunal in relation to individual
legal practitioner
(1) The Disciplinary Tribunal has jurisdiction to make a finding that
a legal practitioner is guilty of unsatisfactory conduct.
(2) On making a finding in respect of a legal practitioner under
10 subsection (1) the Disciplinary Tribunal may --
(a) make and transmit a report on the finding to the Full
Court; or
(b) deal with the legal practitioner as specified in
section 187.
15 (3) If the Disciplinary Tribunal transmits a report in respect of a
legal practitioner to the Full Court under subsection (2)(a), the
Disciplinary Tribunal may, pending the determination of the
Full Court --
(a) suspend the legal practitioner from practice; or
20 (b) restrict the entitlement of the legal practitioner to
practise.
(4) Where appropriate, a report forwarded under subsection (2)(a)
may include a record of the evidence taken at the hearing.
186. Disciplinary action against foreign lawyer
25 (1) In determining whether a registered foreign lawyer is guilty of
unsatisfactory conduct, the Disciplinary Tribunal may take into
account whether the conduct of the registered foreign lawyer
was consistent with the standards of professional conduct of the
legal profession in the lawyer's foreign place of registration.
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(2) If the Disciplinary Tribunal finds that a registered foreign
lawyer is guilty of unsatisfactory conduct it has, in addition to
its powers under section 185, the power to make an order --
(a) imposing any conditions of a kind referred to in
5 section 106 on the registered foreign lawyer;
(b) suspending the registered foreign lawyer from engaging
in the practice of foreign law for the period specified in
the order; or
(c) cancelling the registered foreign lawyer's registration.
10 (3) A registered foreign lawyer who is suspended by the
Disciplinary Tribunal is taken not to be registered under Part 8
during the period of suspension.
(4) An order made under subsection (2)(c) may specify a period
during which the registered foreign lawyer may not apply to be
15 registered again.
187. Orders of the Tribunal
(1) The Disciplinary Tribunal may, under section 185(2)(b), order
any one or more of the following --
(a) the suspension of the legal practitioner from practice --
20 (i) for a period, not exceeding 2 years, specified in
the order; or
(ii) until the Board is satisfied that any injury or
mental or physical illness, or any problem caused
or affected by drugs or alcohol, which the
25 Tribunal has determined to have substantially
and adversely affected the professional
competence or reliability of the legal
practitioner, has been overcome;
(b) the imposition of conditions or restrictions on the right
30 of the legal practitioner to practise for a period, not
exceeding 2 years, specified in the order;
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(c) that the legal practitioner take advice in relation to the
management and conduct of the practice, whether from
the Board or a person named and approved by the Board
or the Law Society;
5 (d) the payment by the legal practitioner to the Board of a
fine not exceeding $25 000;
(e) the reprimand of the legal practitioner;
(f) the legal practitioner, or the firm or incorporated legal
practice of which the legal practitioner is a partner,
10 employee or officer --
(i) if the client agrees, to undertake further work for
the client at no cost or at an amount for costs and
charges to be determined by the Board;
(ii) to pay, wholly or in part, for further work to be
15 done for the client by another legal practitioner,
firm or incorporated legal practice;
(iii) to reduce or refund the amount of any fees,
charges or disbursements payable or paid in
respect of work done for the client, to such an
20 extent as is ordered by the Tribunal or as is to be
determined by the Board;
(g) where it appears to the Tribunal that a sum certain in
money is owing or payable by the legal practitioner, the
payment by the legal practitioner of that sum to the
25 Board for the benefit of the complainant or that person;
(h) if the conduct of the legal practitioner has directly
caused a person to suffer pecuniary loss, the payment by
the legal practitioner to the Board for the benefit of that
person of compensation in accordance with
30 subsection (2);
(i) on application to the Tribunal being made for that
purpose by the legal practitioner, the Complaints
Committee or the complainant, a variation of any order,
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or of the conditions applicable to any order, previously
imposed.
(2) Compensation for the purposes of subsection (1)(h) is to be --
(a) an amount assessed by the Tribunal, being not more than
5 $25 000 or the amount prescribed by the regulations,
whichever is the greater; or
(b) if the parties to the proceedings before the Tribunal
agree, such greater amount as is agreed.
(3) The Tribunal must not make an order under subsection (1)(h) in
10 respect of compensation referred to in subsection (2) unless the
person who suffered the pecuniary loss executes and lodges
with the Tribunal a document in a form satisfactory to the
Tribunal renouncing irrevocably any right to recover from the
legal practitioner damages by way of civil proceedings for the
15 pecuniary loss in respect of which the order is to be made.
(4) If the Board is directed or authorised under subsection (1)(f) to
make a determination, for the purposes of that determination the
Board may --
(a) exercise its powers of inquiry under section 41(2); and
20 (b) in default may refer the matter back to the Disciplinary
Tribunal.
188. Other powers of Tribunal in relation to insolvent, incapable
and unfit practitioners
(1) In this section a reference to clients of a legal practitioner
25 includes a reference to --
(a) potential clients of a legal practitioner; and
(b) in the case of a legal practitioner director of an
incorporated legal practice, clients and potential clients
of the incorporated legal practice.
30 (2) If an application for a hearing and determination is made by the
Board to the Disciplinary Tribunal under section 39(2) in
respect of a legal practitioner who is an applicant for, or holder
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of, a practice certificate, the Disciplinary Tribunal has
jurisdiction to make a finding that it would --
(a) be in the public interest or in the interest of the clients of
the legal practitioner; or
5 (b) protect the integrity of the legal profession or the
administration of justice,
if the application for the practice certificate were refused, the
practice certificate were suspended or cancelled, or conditions
were imposed on the practice certificate.
10 (3) If an application for a hearing and determination is made by the
Board to the Disciplinary Tribunal under section 39(3) in
respect of an applicant for, or holder of, a practice certificate,
the Disciplinary Tribunal has jurisdiction to make a finding
that --
15 (a) the applicant or holder is an unfit or incapable
practitioner within the meaning of section 39; and
(b) it would --
(i) be in the public interest or in the interest of the
legal practitioner's clients; or
20 (ii) protect the integrity of the legal profession or the
administration of justice,
if the application for the practice certificate were
refused, the practice certificate were suspended or
cancelled, or conditions were imposed on the practice
25 certificate.
(4) If an application has been made under section 39(2) or 39(3) in
respect of a legal practitioner, the Disciplinary Tribunal may
make an interim order suspending the practice certificate of the
legal practitioner pending the hearing and determination of the
30 application by the Disciplinary Tribunal.
(5) Before acting under subsection (3) the Disciplinary Tribunal
may require the applicant or holder to be medically examined
by a medical practitioner nominated by the Tribunal.
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(6) A refusal or failure by a person to comply with a requirement
for medical examination under subsection (5) may be accepted
by the Disciplinary Tribunal as adverse evidence of the person's
ability to practise.
5 (7) In making a finding under subsection (3) in respect of a person's
ability to practise the Disciplinary Tribunal is to take account
of --
(a) the person's past training, qualifications and experience
relevant to such practice;
10 (b) if the person is already practising, the person's
performance in such practice; and
(c) all other relevant factors that it is reasonable to take into
account.
(8) The Disciplinary Tribunal may deal with an application under
15 this section notwithstanding that the Complaints Committee or
the Disciplinary Tribunal is already dealing with a complaint or
referral including elements of the first-mentioned referral.
(9) On making a finding under subsection (2) or (3) the
Disciplinary Tribunal may, by order --
20 (a) refuse the application for the practice certificate;
(b) suspend the practice certificate;
(c) cancel the practice certificate; or
(d) order the Board to issue the practice certificate subject
to conditions specified by the Tribunal.
25 189. Powers of Tribunal in relation to legal practitioner director
where practice has not complied with insurance obligations
(1) If an application for a hearing and determination is made by the
Board to the Disciplinary Tribunal under section 60(3), the
Disciplinary Tribunal has jurisdiction to make a finding that an
30 incorporated legal practice has not complied with its obligation
under section 60(1).
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(2) On making a finding under subsection (1) the Disciplinary
Tribunal may order the suspension of a legal practitioner
director of the incorporated legal practice from practice.
190. Finding where legal practitioner convicted of an offence
5 (1) Without limiting its jurisdiction under section 185, the
Disciplinary Tribunal may make a finding that a legal
practitioner is guilty of unsatisfactory conduct on it being shown
that --
(a) the legal practitioner has been convicted of an offence
10 by or before a court exercising jurisdiction in any place,
whether in Australia or elsewhere; and
(b) the conviction occurred within the period of 10 years
before the commencement of the proceedings under this
Act in which that finding may be made.
15 (2) In any matter to which subsection (1) relates the Disciplinary
Tribunal --
(a) is not required to inquire as to the propriety of the
conviction; and
(b) may inform itself as to the circumstances giving rise to
20 the conviction from the transcripts or other records of --
(i) the court which convicted the legal practitioner;
or
(ii) any court which dealt with the conviction on
appeal,
25 and may make such inquiries or requests as are
necessary to obtain those transcripts or records.
(3) Where an appeal against the conviction of the legal practitioner
is pending the Disciplinary Tribunal may --
(a) defer further consideration of the consequences of the
30 finding that the legal practitioner has been guilty of
unsatisfactory conduct; and
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(b) suspend the legal practitioner from practice, or restrict
the entitlement of the legal practitioner to practise,
until the determination of the appeal.
(4) Where in any proceedings to which subsection (1) relates a
5 finding (the "adverse finding") is made founded upon a
conviction that is subsequently quashed, set aside or changed --
(a) the Disciplinary Tribunal must reconsider the adverse
finding and --
(i) if the conviction was changed, may change the
10 nature of the adverse finding; and
(ii) if the conviction was quashed or set aside, must
quash or set aside the adverse finding and any
order made consequential on that finding;
and
15 (b) where the adverse finding was reported to the Full Court
under section 185(2)(a), the Disciplinary Tribunal must
make and transmit a further report to the Full Court.
(5) On receiving a report under subsection (4)(b) the Full Court --
(a) must reconsider the matter to which those reports relate;
20 (b) may vary, quash or set aside any order previously made;
and
(c) may substitute another order.
(6) Despite subsection (5), the Disciplinary Tribunal may resume
the hearing of any reference relating to the matter.
25 191. Costs and expenses
(1) The Disciplinary Tribunal may order that a legal practitioner
who is a party to proceedings before the Tribunal pay all or part
of --
(a) the costs of the party referring the matter or applying to
30 the Tribunal, in respect of proceedings before the
Tribunal; and
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(b) the costs of either or both the complainant or the
Complaints Committee, in respect of the inquiry before
the Complaints Committee.
(2) The Disciplinary Tribunal may make an order under
5 subsection (1) even though a finding is not made against the
legal practitioner where it appears to the Tribunal that the
conduct of the legal practitioner concerned has been such as to
give reasonable cause for the reference or application to the
Tribunal.
10 (3) If a reference is made to the Disciplinary Tribunal by a
complainant under section 181 the Tribunal may order the
complainant to pay all or part of the costs of that legal
practitioner in respect of the proceedings before the Tribunal if
no finding is made against the legal practitioner.
15 (4) When making an order under subsection (1) or (3), the
Disciplinary Tribunal may --
(a) fix the amount of the costs to be paid; or
(b) order that any costs payable under this Part be taxed by
the taxing officer of the Supreme Court, for which costs
20 the taxing officer must give a certificate.
(5) The costs may be recovered as though the order of the Tribunal
or the certificate were a judgment of the Supreme Court for the
payment of the sum specified in the order or certificate.
192. Enforcement of orders
25 An order made by the Disciplinary Tribunal may be enforced in
the same manner as an order of the Supreme Court made under
this Act may be enforced.
193. Contempt of Tribunal
(1) If a person acts, or fails to act, in a way which would constitute
30 contempt if a hearing being conducted by the Tribunal were
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civil proceedings in the Supreme Court, the Tribunal may report
the act, or the failure to act, to the Supreme Court.
(2) The Supreme Court may, upon motion and upon reading that
report, deal with the person in any manner that would be
5 appropriate had the person been in contempt of the Supreme
Court.
194. Court to punish
(1) If the Disciplinary Tribunal under section 185(2)(a) or 190(4)(b)
makes and transmits a report in respect of a legal practitioner to
10 the Full Court, the report is to be taken, subject to
section 202(2), to be conclusive as to all facts and findings
mentioned or contained in the report.
(2) The Full Court may, upon motion and upon reading the report,
and without any further evidence, fine, suspend from practice,
15 or strike off the Roll of Practitioners the legal practitioner or
make any order which the Disciplinary Tribunal might make
under section 185(2)(b).
(3) The Full Court may make such order as to the payment of costs
by the legal practitioner as the Court thinks fit.
20 Division 6 -- Practice and procedure of disciplinary
bodies generally
195. Summons
(1) Every summons issued under this Part has the same effect as a
subpoena ad test or duces tecum, as the case may be, issued by
25 the Supreme Court for the attendance of a witness for
examination or production of documents in a civil action.
(2) Obedience to, or non-observance of, a summons issued under
this Part may be enforced and punished by a Judge in Chambers
in the same manner as in the case of obedience to, or
30 non-observance of, a subpoena issued by the Supreme Court.
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196. Representation
(1) Before --
(a) the Complaints Committee --
(i) a complainant;
5 (ii) a person making a complaint on the authority of
or on behalf of the complainant; or
(iii) any legal practitioner;
or
(b) the Disciplinary Tribunal, any party to the proceedings,
10 may be represented by a legal practitioner or, subject to the
approval of the relevant chairperson, a representative who is not
a legal practitioner.
(2) A representative who is not a legal practitioner is not entitled to
charge for that service but may be reimbursed for out of pocket
15 expenses.
197. Hearings generally not to be public
(1) Subject to this section, an inquiry or hearing under this Part
must not be held in public.
(2) The Complaints Committee, or the Disciplinary Tribunal, in a
20 particular case may determine --
(a) that the whole or part of proceedings before it under this
Part are to be conducted in public; or
(b) who, other than persons or their representative
authorised under this Act, may be present before it at
25 any stage of the proceedings.
(3) If the Complaints Committee or the Disciplinary Tribunal is
satisfied that it is appropriate to do so, the Complaints
Committee or Disciplinary Tribunal may order that --
(a) any evidence given before it;
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(b) any information, or any record or the contents of any
record, produced or referred to before it; or
(c) any information that might enable a person who has
appeared before it to be identified,
5 must not be published by any means, or must not be published
in such manner and to such persons as the order specifies, or
otherwise disclosed or made available to any person or any
specified person or class of persons.
(4) A person who contravenes an order made under this section
10 may be dealt with as though for a contempt of the Supreme
Court.
(5) If the Disciplinary Tribunal makes an adverse finding or order
against a person, unless it is of the opinion that the
circumstances are of such a minor nature as to not warrant
15 publication, the Tribunal must cause to be published --
(a) the name of the person;
(b) the nature of the finding or order;
(c) the penalty, if any, imposed; and
(d) a summary of its reasons for its finding.
20 (6) The summary referred to in subsection (5)(d) is to include such
details of the evidence as the Tribunal considers helpful in
understanding the nature of the case, but the Tribunal may
withhold such details as it considers --
(a) in the interests of the complainant should be withheld;
25 or
(b) would prejudice the interests of any person other than
the person against whom the finding or order is made.
198. Powers of disciplinary bodies
(1) For the purposes of this Part, the Complaints Committee, the
30 Law Complaints Officer exercising the power of that
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Committee, the Disciplinary Tribunal or a member of the
Tribunal may --
(a) take evidence on oath or affirmation;
(b) summon any person to appear, or to give evidence, or to
5 produce records or any other thing;
(c) by notice require any legal practitioner, firm of legal
practitioners, multi-disciplinary partnership or
incorporated legal practice to provide written
information, by a date specified in the notice, and to
10 verify the information by statutory declaration;
(d) by notice require any legal practitioner, firm of legal
practitioners, multi-disciplinary partnership or
incorporated legal practice to produce a record referred
to in the notice, by a date specified in the notice;
15 (e) by notice require any legal practitioner, firm of legal
practitioners, multi-disciplinary partnership or
incorporated legal practice to allow any member of the
Disciplinary Tribunal or the Complaints Committee, the
Law Complaints Officer or a person nominated in the
20 notice --
(i) to examine the conduct of any legal practice, or
to inspect any record or other thing, specified,
either particularly or by appropriate general
description, in that notice; and
25 (ii) for that purpose, to enter any premises where
there is reasonable cause to believe that the
practice is conducted or the record or other thing
may be kept;
(f) examine the records, including any files, accounts
30 (including the personal accounts of any legal
practitioner or other person concerned in or sharing in
the receipts of that practice), and audit records and
reports, relating to the legal practice;
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(g) confer with, and make inquiry of, any existing or former
client, accountant or auditor of a legal practice;
(h) in the case of a record kept otherwise than in a readily
legible form, require a person to produce the record in a
5 legible form or to provide an explanation of the record;
(i) make copies of, or take extracts from, any record;
(j) take possession of and retain any record or other thing
for such reasonable period as may be necessary for the
purposes of this Act; and
10 (k) if any record or other thing required to be inspected
under this section is not produced or delivered, require
the person to whom that requirement was made known
to state, to the best of the knowledge and belief of that
person, where it is.
15 (2) For the purposes of subsection (1)(a) a member of the
Complaints Committee or Disciplinary Tribunal, or the Law
Complaints Officer may administer an oath or affirmation.
(3) A person or body must endeavour to ensure that, so far as is
practicable, the confidentiality of any record, and of any other
20 thing, is not prejudiced by the exercise by it of a power under
subsection (1).
(4) A legal practitioner, firm of practitioners, multi-disciplinary
partnership or incorporated legal practice is not excused from
complying with a notice under subsection (1)(c) or (d) on the
25 ground that providing the information or producing the
document may tend to incriminate the practitioner, firm or
practice or render the person, firm or practice liable to a penalty.
(5) Information or a document provided or produced in compliance
with a notice under subsection (1)(c) or (d) is not admissible in
30 evidence in any proceedings against the person for an offence
except --
(a) an offence against this Act;
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(b) any other offence in relation to keeping of trust accounts
or the receipt of trust money; or
(c) perjury.
(6) If a person, without lawful excuse, proof of which lies on that
5 person --
(a) refuses or fails to do a thing required of the person under
subsection (1); or
(b) hinders or obstructs a person exercising a power under
subsection (1),
10 that person commits an offence.
Penalty: $5 000.
199. Possession of records and other things
(1) The Law Complaints Officer, or a person nominated by the
chairperson of the Disciplinary Tribunal for that purpose, may
15 on behalf of the Committee or Tribunal take possession of, and
retain or secure the retention of, any record or other thing
required to be produced or delivered under this Part.
(2) On possession of any record or other thing being taken under
this Part, the Law Complaints Officer must cause notice of the
20 taking to be given to the person from whom it was received.
(3) Where any person from whom production of any record or other
thing is required under this Part claims a lien upon it, the
production of it is without prejudice to the lien.
200. Evidentiary material
25 In the course of any proceedings under this Part any evidence
given by affidavit or statutory declaration may be received and
admitted.
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201. Claims of privilege
(1) If, in any inquiry or proceedings under this Part, a person
properly claims privilege in respect of any information --
(a) the Complaints Committee or Disciplinary Tribunal may
5 require that person to disclose the information; and
(b) if the information is then disclosed, no question or
answer relating to that information may be used in any
other proceedings or be reported.
(2) A legal practitioner, firm of practitioners, multi-disciplinary
10 partnership or incorporated legal practice is not excused from
complying with a notice under section 198(1)(c) or (d) on the
ground of legal professional privilege or any other duty of
confidence.
(3) Compliance with a notice under section 198(1)(c) or (d) does
15 not operate as a waiver of legal professional privilege.
Division 7 -- Miscellaneous
202. Appeals
(1) An appeal lies to the Supreme Court against a finding or order
made by the Complaints Committee under section 177.
20 (2) An appeal lies to the Full Court against any finding or order
made by the Disciplinary Tribunal under this Part.
203. Effect of striking off or suspension
(1) A legal practitioner struck off the Roll of Practitioners or
suspended from practice is not entitled --
25 (a) to engage in legal practice until the legal practitioner has
been re-admitted or the period of suspension has
elapsed,
as the case requires;
(b) without limiting paragraph (a) to represent any person in
30 a statutory tribunal or a court.
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(2) A legal practitioner struck off the Roll of Practitioners or
suspended from practice must not hold or obtain the office of
executor or trustee of any will or trust without the leave of the
Supreme Court.
5 (3) Nothing in subsection (2) --
(a) operates in respect of a person holding the office of
executor pursuant to probate granted by the Court before
the coming into operation of section 203 of the Legal
Practice Act 2002; or
10 (b) affects or invalidates any act by a person purporting to
act as the holder of an office of executor or trustee when
prohibited from so acting under subsection (2).
204. Legal practitioners struck off or suspended in other
jurisdictions
15 (1) In this section --
"outside this State" includes outside Australia;
"regulatory authority" means a body, in a jurisdiction outside
this State, which regulates in that jurisdiction the
professional conduct of persons in respect of functions
20 similar in kind to the functions of a legal practitioner.
(2) A reference in subsection (3) to "striking off the roll" or
"suspension from practice", in relation to a jurisdiction outside
this State, includes a reference to any consequence of --
(a) judicial proceedings; or
25 (b) proceedings before a regulatory authority outside this
State,
which, however it may be described in that jurisdiction, is
substantially similar in effect to striking off or suspension.
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(3) A legal practitioner admitted to practice in this State who was,
in any other jurisdiction, struck off the roll or suspended from
practice --
(a) is not while so struck off or suspended entitled to engage
5 in legal practice in this State, whether or not as an
employee, unless the Board has consented to his or her
doing so; and
(b) is liable upon the report of the Disciplinary Tribunal to
the Full Court to be struck off the Roll of Practitioners,
10 or suspended from practice, as the case may require.
(4) The Board may exercise its powers of inquiry under
section 41(2) for the purposes of determining whether to give its
consent under subsection (3)(a) and may give that consent
subject to conditions.
15 (5) The Complaints Committee may inquire of a court or regulatory
authority outside the State as to --
(a) whether any determination, conviction or finding was
made; and
(b) the circumstances giving rise to, and the consequences
20 of, any determination, conviction, or finding that was
made,
in respect of a person referred to in subsection (3).
(6) The Complaints Committee may refer any matter to which this
section relates to the Disciplinary Tribunal, which has
25 jurisdiction to make a finding, and power to make and transmit
to the Full Court a report, with respect to the matter.
(7) For the purposes of subsection (6) the provisions of this Part
apply as though being struck off the roll or suspended from
practice in another jurisdiction constituted unsatisfactory
30 conduct.
(8) Nothing in this section affects the operation of section 98.
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Miscellaneous Division 7
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205. Protection of persons
A person who, in relation to any investigation, inquiry or
hearing under this Part --
(a) performs any function under this Part; or
5 (b) is otherwise concerned in proceedings under this Part,
has, in respect of any such function or concern, the same
protection and immunity as a member or an officer of the
Supreme Court, or a witness or a party before the Supreme
Court, would have in respect of a function or concern of a like
10 nature related to the jurisdiction of the Supreme Court.
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s. 206
Part 13 -- Costs
Division 1 -- The Legal Costs Committee and determination
of remuneration
206. Interpretation
5 In this Division --
"chairperson" means the chairperson of the Legal Costs
Committee;
"contentious business" means business carried out as a legal
practitioner in or for the purposes of any action, suit or
10 proceedings before a court, but does not include the
administration of estates and trusts;
"costs" includes fees, charges and disbursements;
"court" includes an arbitrator, tribunal or person having power
to require the production of documents or the answering of
15 questions;
"member" means a member of the Legal Costs Committee and
includes the chairperson and a deputy member;
"non-contentious business" means any business carried out in
the capacity of a legal practitioner which is not contentious
20 business.
207. Legal Costs Committee established
(1) A committee called the Legal Costs Committee is established.
(2) The Legal Costs Committee is to consist of the following
members --
25 (a) a chairperson who is to be --
(i) a Judge of the Supreme Court or the District
Court; or
(ii) a legal practitioner of not less than 8 years'
standing;
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(b) 2 legal practitioners in private practice nominated under
section 208; and
(c) 3 persons who are not legal practitioners, at least one of
whom is to be an accountant in private practice who is
5 an associate or fellow of the Institute of Chartered
Accountants or the Australian Society of Accountants.
(3) The members are to be appointed by the Governor.
208. Nominations
(1) If a nomination for appointment under section 207(2)(b) or
10 Schedule 4 Division 1 clause 3 is required to be made, the
Attorney General must, by written notice --
(a) request the Law Society to submit to the Attorney
General a list containing the names of not fewer than
twice the number of practitioners in private practice to
15 be appointed; and
(b) specify a time (being not less than 28 days after receipt
of the notice) within which the list must be submitted.
(2) If the Law Society has been requested by notice under
subsection (1) to submit a list, the Attorney General --
20 (a) must, if the list is submitted within the time specified in
the notice, nominate for appointment one or more, as the
case requires, of the practitioners whose names appear
on the list; and
(b) may, if the panel is not submitted within the time
25 specified in the notice, nominate for appointment a
practitioner or practitioners as the Attorney General
thinks fit.
209. Constitution and procedure
(1) Schedule 4 Division 1 has effect with respect to the constitution
30 of the Legal Costs Committee.
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Division 1 The Legal Costs Committee and determination of
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s. 210
(2) Schedule 4 Division 2 has effect with respect to the procedure
of the Legal Costs Committee.
210. Legal costs determinations
(1) In this section --
5 "remuneration" includes the reimbursement of expenses
properly incurred in the course of, or in connection with,
business carried out by a legal practitioner for a client,
whether incurred --
(a) by the practitioner on behalf of the client; or
10 (b) by the client.
(2) The Legal Costs Committee may make legal costs
determinations regulating the remuneration of legal practitioners
in respect of --
(a) non-contentious business carried out by practitioners;
15 (b) contentious business carried out by practitioners in or
for the purposes of proceedings before --
(i) the Supreme Court;
(ii) the District Court;
(iii) a Local Court;
20 (iv) a court of petty sessions;
(v) a review officer or compensation magistrate's
court within the meaning of the Workers'
Compensation and Rehabilitation Act 1981;
(vi) any other court declared by the Attorney General
25 under subsection (5) to be a court to which this
section applies.
(3) If --
(a) another written law refers to a determination under this
section or a legal costs determination within the
30 meaning of this Act; and
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(b) the determination is for purposes of the written law that
are, or include, purposes other than the purposes of
subsection (2) (the "other purposes"),
the Legal Costs Committee may make a determination for the
5 other purposes.
(4) A legal costs determination may be amended or revoked by a
subsequent determination.
(5) For the purposes of subsection (2)(b)(vi), the Attorney General
may, by order published in the Gazette, declare any court to be a
10 court in respect of which the Legal Costs Committee may make
a legal costs determination under this section and may, by
subsequent order so published, vary or revoke that order.
(6) A provision of a legal costs determination may authorise any
matter or thing to be determined, applied or regulated by a
15 specified person or body.
211. Review of determinations
(1) The Legal Costs Committee must review each legal costs
determination in force at least once in the period of 2 years after
it was made and in each period of 2 years after that period.
20 (2) The Attorney General may at any time direct the Legal Costs
Committee to review a legal costs determination in force and
the Legal Costs Committee must carry out that review as soon
as practicable after being so directed.
212. Inquiries by the Legal Costs Committee
25 (1) Before making or reviewing a legal costs determination the
Legal Costs Committee must --
(a) give public notice under section 213 of its intention to
make or review the determination;
(b) if the determination is to be made or reviewed in respect
30 of proceedings before a court, consult with that court;
and
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s. 213
(c) make such other inquiries as it considers necessary to
facilitate the making or review of the determination.
(2) Subject to subsection (1) the Legal Costs Committee --
(a) may inform itself as it thinks fit;
5 (b) must take into consideration submissions received by it
in relation to the remuneration of legal practitioners,
whether or not those submissions were received in
response to a notice under section 213;
(c) is not required to conduct any proceedings in a formal
10 manner; and
(d) is not bound by the rules of evidence.
213. Notice and submissions in respect of determination
(1) The Legal Costs Committee must --
(a) give written notice of its intention to make or review a
15 legal costs determination to the Law Society; and
(b) publish notice of its intention in 2 issues of a daily
newspaper circulating throughout this State.
(2) A notice under subsection (1) must --
(a) state that submissions on the intended legal costs
20 determination or review may be made to the Legal Costs
Committee;
(b) specify the manner in which the submissions may be
made; and
(c) specify the period within which the submission may be
25 made (being a period of not less than 30 days after the
day on which the notice is last published under
subsection (1)(b)).
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214. Report and publication of legal costs determinations
(1) As soon as practicable after making a legal costs determination
the Legal Costs Committee must report to the Attorney
General --
5 (a) the determination; and
(b) the reasons for its decisions in respect of the
determination.
(2) The report is to be published in the Gazette as soon as
practicable after it is received by the Attorney General.
10 (3) A legal costs determination takes effect on and from --
(a) the day on which the report of the determination is
published under subsection (2); or
(b) if a later day is specified in the report, the later day.
(4) Judicial notice is to be taken of --
15 (a) a legal costs determination made under section 210 and
published in a report in the Gazette; and
(b) the day of publication of the report.
215. Effect of determination
(1) Subject to sections 221 and 241 of this Act and section 14 of the
20 Legal Aid Commission Act 1976 --
(a) the taxation of bills of costs of legal practitioners, as
between legal practitioner and client or party and party;
and
(b) any other aspect of the remuneration of legal
25 practitioners the subject of a determination,
is regulated by a legal costs determination in force under
section 210.
(2) Despite subsection (1), if a court or judicial officer is of the
opinion that the amount of costs allowable in respect of a matter
30 under a legal costs determination is inadequate because of the
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s. 216
unusual difficulty, complexity or importance of the matter, the
court or officer may do all or any of the following --
(a) order the payment of costs above those fixed by the
determination;
5 (b) fix higher limits of costs than those fixed in the
determination;
(c) remove limits on costs fixed in the determination;
(d) make any order or give any direction for the purposes of
enabling costs above those in the determination to be
10 ordered or taxed.
(3) Nothing in subsection (1) is to be construed as limiting the
power of a court, a judicial officer or a taxing officer of a court
to determine in any particular case before that court or judicial
officer the amount of costs allowed.
15 (4) If a legal costs determination is in force under section 210 in
respect of any business referred to in section 210(2), any other
subsidiary legislation fixing or purporting to regulate the
remuneration of legal practitioners in respect of that kind of
business is of no force or effect.
20 216. Reports
The Legal Costs Committee may investigate and report and
make recommendations to the Attorney General on any matter
relating to --
(a) bills of costs generally and, in particular, the desirability
25 of the use of scales in the calculation and fixing of bills
of costs;
(b) the basis on which costs are or should be calculated and
fixed; and
(c) any other aspect of the remuneration of legal
30 practitioners.
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s. 217
217. Use of staff and facilities of departments
(1) The Legal Costs Committee may by arrangement with the
relevant employer make use of the services of any officer or
employee --
5 (a) in the department of the Public Service principally
assisting the Attorney General in the administration of
this Act; or
(b) in an agency or instrumentality established or
constituted under any written law administered by the
10 Attorney General.
(2) The Legal Costs Committee may by arrangement with --
(a) the department referred to in subsection (1); or
(b) any agency or instrumentality referred to in that
subsection,
15 make use of any facilities of the department, agency or
instrumentality.
(3) The Legal Costs Committee must not enter into an arrangement
under subsection (1) or (2) without the prior approval of the
Attorney General.
20 (4) An arrangement under subsection (1) or (2) is to be made on
such terms as are agreed to by the parties.
218. Funds
(1) The funds available for the purpose of enabling the Legal Costs
Committee to perform its functions consist of --
25 (a) moneys from time to time appropriated by Parliament;
(b) other moneys lawfully made available to the Legal Costs
Committee.
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(2) The funds referred to in subsection (1) are to be credited to an
account called the "Legal Costs Committee Account" --
(a) forming part of the Trust Fund constituted under section
9 of the Financial Administration and Audit Act 1985;
5 or
(b) with the approval of the Treasurer, at a bank.
(3) The Account is to be charged with --
(a) the remuneration and allowances payable under
Schedule 4 Division 1 clause 6; and
10 (b) all other expenditure lawfully incurred by the Legal
Costs Committee in the performance of its functions.
219. Application of Financial Administration and Audit Act 1985
The provisions of the Financial Administration and Audit
Act 1985 regulating the financial administration, audit and
15 reporting of statutory authorities apply to and in respect of the
Legal Costs Committee and its operations.
Division 2 -- Entitlement to remuneration
220. Interpretation
In this Division --
20 "legal practitioner" includes an incorporated legal practice in
connection with legal services provided by the practice.
221. Costs agreement
(1) A legal practitioner may make a written agreement (a "costs
agreement") with any client of the legal practitioner in respect
25 of the amount and manner of payment for the whole or any part
or parts of any past or future services, fees, charges or
disbursements in respect of business done or to be done by the
legal practitioner, either by a gross sum or otherwise.
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Entitlement to remuneration Division 2
s. 222
(2) A costs agreement excludes any future claim of the legal
practitioner in respect of any services, fees, charges or
disbursements in relation to the conduct and completion of the
business in reference to which the costs agreement is made,
5 except services, fees, charges or disbursements excepted by the
costs agreement.
(3) A client who enters into a costs agreement is not entitled to
recover from any other person, under any order, judgment, or
agreement for the payment of costs, any costs which are the
10 subject of that agreement beyond the amount payable by the
client to the legal practitioner under that agreement.
(4) A costs agreement must not exempt a legal practitioner from
liability for negligence.
(5) Nothing in this section affects the operation of sections 230,
15 231, 232 or 234.
222. Review of costs agreement
(1) A costs agreement may be reviewed by the Supreme Court upon
application by summons or on a reference under section 235(2).
(2) If, in the opinion of the Supreme Court, the costs agreement is
20 unreasonable --
(a) the Supreme Court may reduce the amount payable or
cancel the costs agreement; and
(b) the costs may be taxed in the ordinary way.
(3) The Supreme Court may make such order as to the costs of and
25 relating to the review, and the proceedings on the review, as the
Court thinks fit.
223. Saving in certain cases
Nothing in section 221 prejudices or affects --
(a) a legal practitioner employed by this State in a salaried
30 capacity; or
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Division 2 Entitlement to remuneration
s. 224
(b) a legal practitioner acting for a person or corporation in
a salaried capacity.
224. Avoidance of costs agreement in certain cases
(1) Subject to subsection (4), a costs agreement ceases to be of
5 effect and is void if, after the costs agreement is made and
before it is fully performed --
(a) the legal practitioner with whom the costs agreement is
made --
(i) dies;
10 (ii) becomes incapable to act (unless the incapacity
is caused by the legal practitioner being struck
off the Roll of Practitioners or suspended from
practice); or
(iii) ceases to practise in this State;
15 or
(b) the client with whom the costs agreement is made dies
or changes legal practitioner.
(2) If a costs agreement ceases to be of effect and is void under
subsection (1) --
20 (a) the relevant legal practitioner is entitled to charge the
client, or a person who is authorised to administer the
estate of any such client who is deceased or insolvent,
for all services, fees, charges, or disbursements
performed, paid or incurred; and
25 (b) the costs to which the cost agreement related may be
taxed and must be dealt with as if the costs agreement
had never been made.
(3) In subsection (2)(a) --
"relevant legal practitioner" means --
30 (a) the legal practitioner with whom the cost agreement
was made;
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Entitlement to remuneration Division 2
s. 225
(b) a person who is authorised to administer the estate of
any such legal practitioner who is deceased or
insolvent; or
(c) an assignee of that legal practitioner.
5 (4) If --
(a) a costs agreement provides for payment after the
completion, or partial completion, of any of the services
to which the costs agreement relates; and
(b) any payment becomes due under that agreement prior to
10 the time at which that agreement, but for this subsection,
would have become void under subsection (1),
then, insofar as the services to which the costs agreement relates
have been performed and payment has become due in
accordance with the agreement, the costs agreement may be
15 enforced.
225. Security for costs
A legal practitioner may take security from a client or any other
person for future services, fees, charges, or disbursements.
226. Costs where legal practitioner employed by this State in a
20 salaried capacity
In all actions, causes, suits or matters of whatever kind in which
a legal practitioner employed by this State in a salaried capacity
acts, performs any work or renders any services in an official
capacity for --
25 (a) this State, the Commonwealth, or any other State;
(b) an agent of this State;
(c) a body, whether corporate or not, established under any
Act, the whole or main portion of the revenue of which
body is provided, under an Act, from the Consolidated
30 Fund or money appropriated by Parliament at the time
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s. 227
when the work is or the services are done, rendered or
commenced; or
(d) a party who is or may be indemnified, or entitled to be
indemnified, by this State, or by an agent of this State,
5 or by a body referred to in paragraph (c),
the party for whom the legal practitioner so acts is entitled to,
and may, recover counsel fees, costs, charges, disbursements
and other remuneration in respect of any work performed or
services rendered by the legal practitioner for the party in the
10 same manner and to the same extent as if the legal practitioner
so employed were a certificated practitioner in private practice
engaged by that party.
227. Act not to validate purchase of client's interest, nor
agreement for payment only in event of success
15 (1) Nothing in this Act is to be construed to give validity to --
(a) a purchase by a legal practitioner of the interest or any
part of the interest of a client of that practitioner in any
suit, action or other contentious proceeding to be
brought or maintained; or
20 (b) any agreement by a practitioner for payment only in the
event of success in any suit, action or other contentious
proceedings.
(2) If an agreement is entered into with the Executive Director of
the Law Society by the client of a legal practitioner, for
25 purposes pertaining to the Litigation Assistance Fund operated
by the Law Society, in relation to a contentious proceeding
undertaken by the client, the agreement may provide for
payment under the Litigation Assistance Fund to the Law
Society of a contribution which is to be dependent upon the
30 result of, or payable only in the event of success in, that
contentious proceeding.
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Taxation and recovery of costs Division 3
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(3) Nothing in subsection (2) is to be construed as relating to an
agreement by the legal practitioner for payment to that legal
practitioner.
Division 3 -- Taxation and recovery of costs
5 228. Interpretation
(1) In this Division --
"taxing officer" means a taxing officer of the Supreme Court.
(2) For the purposes of this Division --
(a) a reference to the person or party charged includes a
10 reference to --
(i) a person who has paid the bill to which the
charge relates;
(ii) any other person who is authorised to administer
the estate or affairs of any such person who is
15 deceased, incapable or insolvent;
(iii) a person liable to pay or to reimburse another for
costs in a bill; or
(iv) a person who is a beneficiary of a trust estate or
fund against which costs may be chargeable;
20 (b) a reference to the legal practitioner includes a reference
to --
(i) another person who is authorised to administer
the estate or affairs of any such person who is
deceased, incapable or insolvent or who is an
25 assignee of the legal practitioner as the case may
be; and
(ii) an incorporated legal practice in connection with
legal services provided by the practice;
and
30 (c) where a legal practitioner performs services by way of
legal assistance under Part V Division 3 of the Legal Aid
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Division 3 Taxation and recovery of costs
s. 229
Commission Act 1976, a reference to the person or party
charged includes a reference to the Legal Aid
Commission established under section 6 of that Act.
229. Taxing officer's discretionary powers
5 A taxing officer may --
(a) enlarge the time prescribed for the taking of any step in
this Division;
(b) give direction for substituted service of any notice or
document required to be served.
10 230. Bill of costs to be served before suit
(1) A legal practitioner must not sue for the recovery of any
services, fee, charges or disbursements until a bill for the
services, fee, charges or disbursements has been served upon the
party charged.
15 (2) The bill may be --
(a) a bill containing detailed items; or
(b) a bill for a lump sum.
231. Party may request bill for detailed items
(1) A legal practitioner must include in each bill of costs for a lump
20 sum served under section 230(2)(b) a notice to the person
charged in the following form --
"
Within 30 days of receipt of this account you may
require me by notice in writing to provide to you an
25 itemised bill of costs the subject of this account. Within
30 days of receiving an itemised bill of costs, you may
require me by notice in writing to submit the bill of
costs to a taxing officer of the Supreme Court for
review of the amount of costs charged to you, the
30 subject of this account.
".
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Taxation and recovery of costs Division 3
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(2) The notice must appear on the face page of each bill of costs in
at least 10 point type size.
(3) At any time within 30 days from the service of the bill for a
lump sum the party charged may require the legal practitioner to
5 serve upon the party charged, in lieu of the lump sum bill, a bill
containing detailed items.
(4) Upon a requirement being made under subsection (3) the lump
sum bill is of no effect except that proceedings for recovery
already instituted under section 230 may be continued unless
10 stayed by the court in which those proceedings were instituted
or under section 236.
232. Party charged with itemised bill may give notice of intention
to tax
(1) Where a bill of costs contains detailed items, the legal
15 practitioner must include a notice to the person charged in the
following form --
"
Within 30 days of receiving this account you may
require me by notice in writing to submit the bill of
20 cost to a taxing officer of the Supreme Court for review
of the amount of costs charged to you, the subject of
this bill of costs.
".
(2) The notice must appear on the face page of each bill of costs in
25 at least 10 point type size.
(3) A person charged with a bill of costs that contains detailed items
may --
(a) serve upon the legal practitioner, within 30 days from
the service of the itemised bill, a written notice of
30 intention to have the bill taxed; and
(b) upon service of that notice, have the bill taxed by the
taxing officer.
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233. Party not served with requested itemised bill may have lump
sum bill taxed
If --
(a) a person, under section 231(3), has requested a legal
5 practitioner to serve a bill of costs containing detailed
items in lieu of a lump sum bill; and
(b) the itemised bill is not served upon that person within
30 days from the serve of the request upon the legal
practitioner,
10 the person may apply to have the lump sum bill taxed by the
taxing officer by lodging the bill with the taxing officer.
234. Taxing officer may order more detailed bill
If a lump sum bill or an itemised bill of costs does not contain
adequate detail to enable the taxing officer to tax the bill, the
15 taxing officer may --
(a) order the legal practitioner to remedy the deficiency
within a time specified in the order; and
(b) in default of a sufficiently detailed account being filed,
reduce the amount of the costs that might otherwise
20 have been certified by a proportion not greater than
25%.
235. Effect of costs agreement
(1) When taxing an itemised bill of costs a taxing officer must give
effect to any costs agreement made as to the costs specified in
25 the bill.
(2) A taxing officer, at the request of the party charged with a bill
of costs, may refer any costs agreement made as to the costs
specified in the bill to the Supreme Court for review of the
agreement under section 222.
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236. Stay of recovery proceedings
A taxing officer taxing a bill of costs under this Division may
order that any proceedings for the recovery of the costs be
stayed until such time as the taxing officer may direct, and the
5 order has effect accordingly.
237. Bill of costs to be lodged with taxing officer
(1) Within one month after service of the notice referred to in
section 232(3) the legal practitioner must lodge the bill of costs
with a taxing officer.
10 (2) Within the period of one month permitted under subsection (1)
the legal practitioner may serve upon the party charged an
amended bill of costs.
(3) If an amended bill of costs is served under subsection (2), the
amended bill must be treated as, and be in lieu of, the original
15 bill of costs and be subject to the provisions of the Division as
to taxation, except this subsection.
238. Time and place of taxation
(1) Upon a bill of costs being lodged under section 233 or 237, a
taxing officer may --
20 (a) appoint a day, time and place for the taxation of the bill
of costs; or
(b) remit the bill of costs to an officer of the court or
tribunal in the jurisdiction to which the bill relates for
the purposes of that officer taxing the bill of costs.
25 (2) The taxing officer must give at least 7 days' notice of a day,
time and place appointed under subsection (1)(a) to both parties.
(3) The taxing officer may --
(a) refer the bill of costs to an officer of the court or tribunal
in which the costs were incurred for a report as to the
30 bill of costs; and
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Division 3 Taxation and recovery of costs
s. 239
(b) in his or her discretion, have regard to that report when
taxing a bill of costs.
(4) The referral of a bill of costs under subsection (3)(a) to an
officer of a court or tribunal for a report as to the bill of costs
5 does not confer on that officer or that court or tribunal any
jurisdiction in relation to that bill of costs.
(5) If under subsection (1)(b) a bill of costs is remitted by a taxing
officer to an officer of a court or tribunal in the jurisdiction to
which the bill relates for taxing by that officer, the officer has,
10 in relation to that bill, the same functions as those exercisable
by the taxing officer.
239. Costs of taxation
The costs of and incidental to the taxation of a bill of costs are
in the discretion of the taxing officer.
15 240. Certification, interest, amount, how recovered
(1) The taxing officer must certify in writing the amount at which a
bill of costs, and the costs of and incidental to the taxation of the
bill of costs, are respectively allowed by the taxing officer.
(2) A certificate under subsection (1) is binding and conclusive on
20 both parties.
(3) A certificate under subsection (1) bears interest, and may be
enforced by either party against the person liable to pay, as if it
were a judgment of the Supreme Court for the payment of the
amount mentioned in the certificate.
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Taxation and recovery of costs Division 3
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241. Taxation of Legal Aid Commission bill of costs
If a taxing officer taxes a bill of costs with which the Legal Aid
Commission is charged for services by way of legal assistance
under Part V Division 3 of the Legal Aid Commission
5 Act 1976 --
(a) the taxing officer must give effect to section 14(1) of
that Act, other than the requirement under
paragraph (a)(ii) of that section that fees be approved, in
determining the amount at which the bill of costs is
10 allowed; and
(b) the amount certified by the taxing officer, or an order
made in respect of that amount under section 242, is
conclusive and binding on the Legal Aid Commission
and the practitioner despite the provisions of the Legal
15 Aid Commission Act 1976.
242. Review of taxation
(1) The taxation of a bill of costs may be reviewed by the Supreme
Court in accordance with its rules of court.
(2) An order made upon review may be enforced in the same
20 manner as the certificate of a taxing officer under section 240.
243. Overpayments to be returnable
If a bill of costs is taxed under this Division and, as a result of
that taxation, the amount which has been paid or deducted in
respect of that bill is more than the amount authorised by the
25 taxation, to the extent of the excess, the person charged has a
claim for repayment which may be certified and enforced under
section 240 as though allowed under that section.
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Division 4 -- General
244. Legal practitioner's costs to be a first charge on the
property recovered or preserved
(1) In every case in which a legal practitioner is employed to
5 prosecute or defend any suit, matter or proceeding in a court, the
practitioner --
(a) is entitled to a first charge upon the property recovered
or preserved; and
(b) has a prior right to payment out of the property
10 recovered or preserved for the taxed costs, charges and
expenses as between practitioner and client of or in
reference to the suit, matter or proceeding.
(2) The court before which the suit, matter or proceeding has been
heard or is pending, or judge of the court in chambers, may
15 make ex parte any order for taxation of, and for raising and
paying the costs, charges and expenses referred to in
subsection (1)(b) out of, the property as the court or judge
thinks just and proper.
245. Town agent entitled to prior charge
20 In every case in which a legal practitioner acts as town agent for
another legal practitioner, the agent is entitled to apply on
summons and obtain a charging order for costs and expenses in
so acting, in priority to the costs and expenses of the legal
practitioner on whose behalf the agent acts.
25 246. Legal practitioner may charge interest on moneys disbursed
A legal practitioner is entitled to charge interest on moneys
disbursed in connection with litigious or other business, at the
rate from time to time allowed on judgment debts.
page 160
Legal Practice Bill 2002
Professional indemnity insurance Part 14
s. 247
Part 14 -- Professional indemnity insurance
247. Regulations as to professional indemnity insurance
(1) In this section --
"employee" includes an officer and a former employee or
5 officer;
"legal practitioner" includes, except in subsection (4)(d) --
(a) a former legal practitioner;
(b) an incorporated legal practice; and
(c) a former incorporated legal practice.
10 (2) The Governor may make regulations concerning indemnity
against loss arising from claims in respect of any description of
civil liability incurred by --
(a) a legal practitioner in connection with the practice of
that legal practitioner; or
15 (b) an employee of a legal practitioner in connection with
the practice of the legal practitioner.
(3) For the purpose of providing the indemnity referred to in
subsection (1), regulations made under this section may --
(a) authorise or require the Law Society to make
20 arrangements with one or more insurers for the
provision to legal practitioners of professional indemnity
insurance and may authorise that Society to do such acts
and things as may be necessary or expedient for giving
effect to those arrangements; and
25 (b) require legal practitioners, or any prescribed category of
legal practitioner, to take out and maintain professional
indemnity insurance in accordance with the
requirements of the regulations and either in accordance
with the arrangements made under the regulations or in
30 accordance with a scheme or policy of insurance
approved under the regulations.
page 161
Legal Practice Bill 2002
Part 14 Professional indemnity insurance
s. 247
(4) Without prejudice to the generality of subsections (1) and (2),
regulations made under this section may --
(a) specify the terms and conditions on and subject to which
professional indemnity insurance is to be provided,
5 including the amounts of insurance cover to be taken out
and maintained by legal practitioners or prescribed
categories of legal practitioner and the periods during
which such insurance cover is to be maintained;
(b) specify classes or categories of legal practitioner or
10 practice to which different provisions or obligations
under the regulations may apply;
(c) provide for and regulate the approval of insurers and the
issue of certificates of insurance to persons and firms
covered by professional indemnity insurance and
15 prescribe the form of the certificates;
(d) empower the Board to refuse to issue a practice
certificate except to a legal practitioner who --
(i) satisfies the Board that the legal practitioner
holds a valid current certificate of insurance for
20 the category of practice the legal practitioner
intends to engage in;
(ii) is covered by such a certificate issued in respect
of every firm of legal practitioners of which the
legal practitioner is a member, every
25 multi-disciplinary partnership of which the legal
practitioner is a member and every incorporated
legal practice of which the legal practitioner is a
legal practitioner director; or
(iii) is exempt under the regulations;
30 (e) may specify circumstances in which legal practitioners
are exempt from the regulations or empower the Board
to exempt any legal practitioner or class of legal
practitioners in whole or in part from any provision of
the regulations either for a specified or indefinite period
page 162
Legal Practice Bill 2002
Professional indemnity insurance Part 14
s. 247
or subject to any condition which may be imposed by
the Board;
(f) empower the Board to vary or revoke any exemption
made by the Board under the regulations;
5 (g) empower the Board to take such steps as it considers
necessary or expedient to ascertain whether or not the
regulations are being complied with; and
(h) contain incidental, procedural and supplementary
provisions.
page 163
Legal Practice Bill 2002
Part 15 Miscellaneous
s. 248
Part 15 -- Miscellaneous
248. Evidentiary material
(1) A certificate issued by the Board that states that on a date or
during a period specified in the certificate --
5 (a) a specified person was or was not the holder of a
practice certificate;
(b) a specified practice certificate was or was not subject to
a specified condition;
(c) a specified person was or was not a registered foreign
10 lawyer; or
(d) a specified registered foreign lawyer was or was not
subject to a specified condition,
is admissible in any proceedings under Part 12 or other legal
proceedings and is evidence of the fact or facts so stated.
15 (2) A certificate issued by a regulatory authority of another State
that states that on a date or during a period specified in the
certificate --
(a) a specified person was or was not the holder of an
interstate practice certificate; or
20 (b) a specified interstate practice certificate was or was not
subject to a specified condition,
is admissible in any proceedings under Part 12 and in any legal
proceedings and is evidence of the fact or facts so stated.
(3) A certificate issued by the Board that states that on a date or
25 during a period specified in the certificate a person specified in
the certificate was the holder of an office as --
(a) a member of the Board;
(b) a member of the Complaints Committee;
(c) a member of the Disciplinary Tribunal;
30 (d) the Registrar of the Disciplinary Tribunal;
page 164
Legal Practice Bill 2002
Miscellaneous Part 15
s. 249
(e) the secretary to the Board; or
(f) the Law Complaints Officer,
is admissible in any proceedings under Part 12 and in any legal
proceedings and is evidence of the facts so stated.
5 (4) A document signed by --
(a) the Law Complaints Officer;
(b) the chairperson of, or any 2 members present at, a
meeting of the Complaints Committee; or
(c) the Registrar, chairperson, or any 2 members present at
10 a meeting of, the Disciplinary Tribunal,
and purporting to be a record or copy of the finding, order or
report of the Complaints Committee or of the Disciplinary
Tribunal, or to set out the nature of the power exercised and the
manner in which it was exercised, must be admitted as a true
15 copy of and evidence of the matters stated in the document.
249. Judicial notice
All courts and persons acting judicially must take judicial
notice of --
(a) the seal of the Disciplinary Tribunal; and
20 (b) the signature of --
(i) the chairperson, the deputy chairperson and other
members, of the Board, the Complaints
Committee and the Disciplinary Tribunal;
(ii) the Registrar of the Disciplinary Tribunal;
25 (iii) the secretary to the Board; and
(iv) the Law Complaints Officer.
page 165
Legal Practice Bill 2002
Part 15 Miscellaneous
s. 250
250. Contempt of the Supreme Court
Without limiting the operation of other provisions of this Act, a
person who contravenes --
(a) the terms of this Act, or any provision of or obligation
5 imposed under this Act; or
(b) an order of the Complaints Committee or of the
Disciplinary Tribunal,
is guilty of a contempt of the Supreme Court and may be dealt
with accordingly by the Supreme Court or a Judge in Chambers
10 on the motion of the Complaints Committee or the Board.
251. Laying documents before House of Parliament that is not
sitting
(1) If section 17(2), 166(2) or 174(2) requires the Attorney General
to cause the text of a document to be laid before each House of
15 Parliament, or dealt with under this section, within a period
and --
(a) at the commencement of the period, a House of
Parliament is not sitting; and
(b) the Attorney General is of the opinion that the House
20 will not sit during that period,
the Attorney General is to transmit a copy of the text of the
document to the Clerk of that House.
(2) A copy of the text of a document transmitted to the Clerk of a
House is to be regarded --
25 (a) as having been laid before that House; and
(b) as being a document published by order or under the
authority of that House.
(3) The laying of a copy of the text of a document that is regarded
as having occurred under subsection (2)(a) is to be recorded in
30 the Minute, or Votes and Proceedings, of the House on the first
sitting day of the House after the Clerk received the copy.
page 166
Legal Practice Bill 2002
Miscellaneous Part 15
s. 252
252. Rules
(1) The Board may make rules for or with respect to all or any of
the following --
(a) the election of members of the Board;
5 (b) the annual election of the chairperson and deputy
chairperson of the Board;
(c) the examination of articled clerks and their conduct and
training under articles of clerkship;
(d) what portion, if any, of the articles to be served by an
10 articled clerk may be served as a student of law
attending a university prescribed by the rules;
(e) what portion of the articles to be served by an articled
clerk may be served by an articled clerk with a legal
practitioner other than the legal practitioner to whom
15 that person is articled, and the conditions of that service;
(f) the qualification, examination and training of candidates
for admission as legal practitioners;
(g) the admission of legal practitioners;
(h) the issue, review and renewal or refusal of practice
20 certificates, the conditions to which such certificates
may be made subject, and the fees to be charged;
(i) the accreditation of continuing legal education and
training programmes, courses and providers;
(j) information required to be provided to the Board by
25 legal practitioners, the time, manner and form in which
the information is to be provided, and the manner in
which the information may be dealt with;
(k) fees to be payable to the Board --
(i) under this Act, otherwise than under the scale
30 referred to in subsection (2); or
(ii) in respect of services provided, or to be provided,
by the Board to legal practitioners or other
persons;
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Legal Practice Bill 2002
Part 15 Miscellaneous
s. 252
(l) the management of trust moneys and the operation of
trust accounts;
(m) the maintenance of proper professional standards in the
practice of the law;
5 (n) the supervision and investigation of the conduct of legal
practitioners and of the practice of the law under this
Act;
(o) applications for re-admission and conditions to be
observed by applicants for re-admission;
10 (p) the cases and conditions in which certificated legal
practitioners are not to share the whole or any part of the
receipts arising from or in connection with any act,
matter, or thing which under this Act may only be done
for profit by a certificated practitioner;
15 (q) the names under which certificated practitioners and
incorporated legal practices may practise or which
certificated practitioners or incorporated legal practices
may use in connection with their legal practice;
(r) the meetings and proceedings of the Board;
20 (s) the control and use of the Law Library at the Supreme
Court, the persons permitted to use the Library, and the
removal of books from the Library;
(t) the practice and procedure to be used in relation to
conciliation and the negotiation of settlements, and for
25 securing the attendance of persons and the production of
records or other things, for the purposes of section 176;
(u) matters relevant to the functions of the Complaints
Committee and, subject to the concurrence of the
chairperson of the Disciplinary Tribunal, to the
30 convening and functions of the Disciplinary Tribunal;
(v) the provision of legal services by or in connection with
an incorporated legal practice or by a legal practitioner
partner or employee of a multi-disciplinary partnership;
page 168
Legal Practice Bill 2002
Miscellaneous Part 15
s. 253
(w) the provision of other services by or in connection with
an incorporated legal practice or by a legal practitioner
partner or employee of a multi-disciplinary partnership
in circumstances where a conflict of interest relating to
5 the provision of legal services may arise;
(x) without limiting paragraphs (v) and (w), professional
obligations relating to legal services provided by or in
connection with an incorporated legal practice or a
multi-disciplinary partnership;
10 (y) the practice, conduct and discipline of registered foreign
lawyers;
(z) the accounts (if any) to be kept by a registered foreign
lawyer in the course of practising as a registered foreign
lawyer, the operation of any trust account required to be
15 kept by the registered foreign lawyer and the
authorisation of a person to operate such a trust account.
(za) the imposition and recovery of fines and penalties;
(zb) matters and things necessary or convenient to be
prescribed for the better administration of this Act or for
20 carrying into effect the purposes of this Act.
(2) The Board may prescribe a scale of fees to be charged for or in
respect of proceedings under this Act.
(3) The rules are subsidiary legislation within the meaning of the
Interpretation Act 1984.
25 253. Regulations
(1) The Governor may make regulations prescribing all matters that
are required or permitted by this Act to be prescribed, or are
necessary or convenient to be prescribed, for giving effect to the
purposes of this Act.
30 (2) Without limiting subsection (1) the Governor may make
regulations as to --
(a) legal services provided by incorporated legal practices;
page 169
Legal Practice Bill 2002
Part 15 Miscellaneous
s. 253
(b) legal services provided by legal practitioner partners or
employees of multi-disciplinary partnerships;
(c) legal services provided by registered foreign lawyers.
(3) The regulations may create offences and may provide for a
5 penalty not exceeding $5 000.
(4) A regulation prevails over any inconsistent provision of the
rules.
page 170
Legal Practice Bill 2002
Provisions as to the constitution and procedure of the Board Schedule 1
Schedule 1 -- Provisions as to the constitution and
procedure of the Board
[s. 7(3)]
1. Chairperson and deputy chairperson
5 (1) The members of the Board are to elect a chairperson and a deputy
chairperson from amongst their number.
(2) The chairperson and deputy chairperson each holds office for one year
except where he or she sooner resigns.
(3) A member of the Board --
10 (a) may not hold office as chairperson for more than
5 consecutive annual terms; and
(b) may not hold office as deputy chairperson for more than
5 consecutive annual terms.
(4) Subject to the direction of the chairperson, or in the absence of the
15 chairperson, the deputy chairperson has and may exercise all of the
functions of the chairperson.
2. Casual vacancies
If a casual vacancy occurs in the office of an elected member of the
Board, the Board may appoint a legal practitioner who would be
20 eligible for appointment to act as a member of the Board for the
balance of the term of that elected member.
3. Meetings where chairperson and deputy chairperson are absent
If both the chairperson and the deputy chairperson are absent from a
meeting the members present are to elect one of their number to
25 preside at the meeting.
4. Quorum
Any 4 members of the Board form a quorum.
5. Voting
(1) Each member of the Board has one vote.
page 171
Legal Practice Bill 2002
Schedule 1 Provisions as to the constitution and procedure of the Board
(2) In the case of an equality of votes, the chairperson has a casting vote
in addition to a deliberative vote.
(3) All questions at a meeting of the Board are to be decided by a
majority of the votes of the members present.
5 6. Saving
No act or omission of a person acting in the place of another under
clause 1 or 2 is to be questioned on the ground that the occasion for
acting had not arisen or had ceased.
page 172
Legal Practice Bill 2002
Provisions as to the constitution and procedure of the Schedule 2
Complaints Committee
Schedule 2 -- Provisions as to the constitution and
procedure of the Complaints Committee
[s. 165]
Division 1 -- Constitution
5 1. Term of appointment -- representative of the community
(1) Subject to this Act, a member of the Complaints Committee appointed
under section 163(2) --
(a) holds office for a term of not more than 3 years specified in
the instrument of appointment; and
10 (b) is eligible for reappointment.
(2) A member who has held office as a representative of the community
for 6 years in total is not eligible to hold that office again, or to hold
office under section 169(1)(d).
2. Deputy chairperson
15 (1) The Board may from time to time appoint a member of the Board as
deputy chairperson of the Complaints Committee.
(2) The deputy chairperson may act as chairperson --
(a) in the absence of the chairperson of the Complaints
Committee;
20 (b) if so requested by the chairperson of the Complaints
Committee; or
(c) during a vacancy in the office of chairperson of the
Complaints Committee.
(3) While acting as chairperson of the Complaints Committee the deputy
25 chairperson has, and may perform, the functions of chairperson.
3. Deputies of representative of the community
(1) One or more persons may be appointed as deputies of the
representative of the community on the Complaints Committee.
page 173
Legal Practice Bill 2002
Schedule 2 Provisions as to the constitution and procedure of the
Complaints Committee
(2) A person appointed as a deputy representative of the community is to
be appointed on terms applicable to, and is to be selected from
persons eligible to be, a representative of the community.
(3) A person may be appointed as a deputy representative of the
5 community on both the Complaints Committee and the Disciplinary
Tribunal.
(4) A person appointed as a deputy representative of the community may
act in the place of a representative of the community at a meeting of
the Complaints Committee if the person has the concurrence of the
10 chairperson of the meeting.
(5) While acting as a deputy representative of the community, the deputy
has and may perform, the functions of a representative of the
community on the Complaints Committee.
4. Removal or resignation
15 (1) The Attorney General may remove a member of the Complaints
Committee from office --
(a) if the member is an insolvent under administration within the
meaning of the Corporations Act;
(b) on the grounds of neglect of duty, misconduct, incompetence
20 or mental or physical disability impairing the performance of
the functions of that member and proved to the satisfaction of
the Attorney General; or
(c) if the member has been absent from meetings, without leave,
for more than 3 consecutive meetings.
25 (2) A member of the Complaints Committee appointed by the Attorney
General may resign office by notice in writing delivered to the
Attorney General.
(3) A reference in this clause to a member includes a reference to a
deputy member.
30 5. Leave of absence
The Attorney General may grant leave of absence to a member of the
Complaints Committee on such terms and conditions as the Attorney
General thinks fit.
page 174
Legal Practice Bill 2002
Provisions as to the constitution and procedure of the Schedule 2
Complaints Committee
6. Termination of office may be deferred
Despite the term of office of a member of the Complaints Committee
having expired by effluxion of time, the member continues in
office --
5 (a) until the member is reappointed, or a successor is appointed;
and
(b) in any event for the purpose of completing any part-heard
proceedings,
unless the Governor otherwise directs.
10 7. Remuneration and allowances
A person appointed to the Complaints Committee as a representative
of the community is to be paid such remuneration and allowances as
the Attorney General from time to time, after consultation with the
Minister for Public Sector Management, may determine.
15 8. Saving
No act or omission of a person acting in the place of another under
clause 2 or 3 is to be questioned on the ground that the occasion for
acting had not arisen or had ceased.
Division 2 -- Procedure
20 9. Quorum
(1) At any meeting of the Complaints Committee a quorum is constituted
by 3 members, of whom --
(a) 2 are persons appointed under section 163(1)(a); and
(b) one is a representative of the community.
25 (2) Where an inquiry under Part 12 is commenced and a member present
at that commencement fails to continue to participate in the
proceedings the determination of the matter may be completed by the
remaining members if they constitute a quorum.
(3) Where an inquiry under Part 12 is commenced and, upon the failure
30 of a representative of the community to continue to participate in the
proceedings, no quorum can be convened the determination of the
matter may be completed by the remaining members.
page 175
Legal Practice Bill 2002
Schedule 2 Provisions as to the constitution and procedure of the
Complaints Committee
10. Complaints Committee not bound by rules of evidence
The Complaints Committee is not bound by the rules of evidence but
may inform itself in any manner it considers just.
11. Meetings
5 (1) Meetings of the Complaints Committee may be convened --
(a) by the chairperson of the Complaints Committee;
(b) by the Law Complaints Officer; or
(c) at such times and places as the Complaints Committee
determines.
10 (2) The chairperson presides at all meetings of the Complaints Committee
at which he or she is present.
(3) If the chairperson and deputy chairperson are absent from a meeting
of the Complaints Committee the members present may appoint one
of their number to act as chairperson.
15 (4) A person appointed under subclause (3) has, and may perform, the
functions of chairperson.
12. Divisions
(1) The Complaints Committee may sit and exercise jurisdiction as one or
more Divisions where a quorum is present.
20 (2) A reference in this Act, unless the context otherwise requires, to a
meeting of the Complaints Committee includes a reference to a
meeting when the Complaints Committee is constituted as a Division.
(3) A determination made by the Complaints Committee when sitting as a
Division is taken to be a determination of the Complaints Committee
25 as a whole.
13. Voting
(1) At a meeting of the Complaints Committee, subject to subclause (2),
each member present is entitled to a deliberative vote.
(2) Any question is to be determined by a majority of the votes lawfully
30 cast but when the deliberative votes cast on a question are equally
divided the chairperson has a casting vote.
page 176
Legal Practice Bill 2002
Provisions as to the constitution and procedure of the Schedule 2
Complaints Committee
14. Complaints Committee may determine its own procedure
Subject to this Act and the rules, in the exercise of its functions the
Complaints Committee may determine its own procedure and is not
required to conduct any proceedings in a formal manner.
5 15. Records
(1) The member presiding at any meeting of the Complaints Committee
must cause an accurate record to be kept of the proceedings.
(2) A register of the records is to be maintained.
(3) Subject to subclause (4), the Complaints Committee may cause its
10 records, or information related to any inquiry or proceeding or as to
those records, to be published.
(4) The Complaints Committee must ensure that a publication under
subclause (3) is edited to prevent --
(a) the identification of persons, unless a determination to permit
15 identifying publication has been made; and
(b) the revealing of confidential information.
page 177
Legal Practice Bill 2002
Schedule 3 Provisions as to the constitution and procedure of the
Disciplinary Tribunal
Schedule 3 -- Provisions as to the constitution and
procedure of the Disciplinary Tribunal
[s. 171(4), (5)]
Division 1 -- Constitution
5 1. Term of appointment -- chairperson
Subject to this Act, the chairperson of the Disciplinary Tribunal --
(a) holds office for a term of not more than 3 years specified in
the instrument of appointment; and
(b) is eligible for reappointment.
10 2. Term of appointment -- legal practitioners
Subject to this Act, a member of the Disciplinary Tribunal appointed
under section 169(2) --
(a) holds office for a term of not more than 3 years specified in
the instrument of appointment; and
15 (b) is eligible for reappointment.
3. Term of appointment -- representative of the community
(1) Subject to this Act, a member of the Disciplinary Tribunal appointed
under section 169(3) --
(a) holds office for a term of not more than 3 years specified in
20 the instrument of appointment; and
(b) is eligible for reappointment.
(2) No member who has held office as a representative of the community
for 6 years in total is eligible to hold that office again, or office under
section 163(2).
25 4. Deputy chairperson
(1) The Governor may appoint a person eligible for appointment under
section 170 as deputy chairperson of the Disciplinary Tribunal.
(2) The deputy chairperson may act as chairperson --
(a) in the absence of the chairperson of the Disciplinary Tribunal;
page 178
Legal Practice Bill 2002
Provisions as to the constitution and procedure of the Schedule 3
Disciplinary Tribunal
(b) if so requested by the chairperson of Disciplinary Tribunal; or
(c) during a vacancy in the office of chairperson of the
Disciplinary Tribunal.
(3) While acting as chairperson of the Disciplinary Tribunal the deputy
5 chairperson has, and may perform, the functions of chairperson.
5. Deputies of representative of the community
(1) One or more persons may be appointed as deputies of the
representatives of the community on the Disciplinary Tribunal.
(2) A person appointed as a deputy representative of the community is to
10 be appointed on terms applicable to, and is to be selected from
persons eligible to be, a representative of the community.
(3) A person may be appointed as a deputy representative of the
community on both the Complaints Committee and the Disciplinary
Tribunal.
15 (4) A person appointed as a deputy representative of the community may
act in the place of a representative of the community at a meeting of
the Disciplinary Tribunal if the person has the concurrence of the
chairperson of the meeting.
(5) While acting as a deputy representative of the community, the deputy
20 has and may perform, the functions of a representative of the
community on the Disciplinary Tribunal.
6. Removal or resignation
(1) The Attorney General may remove a member of the Disciplinary
Tribunal from office --
25 (a) if the member is an insolvent under administration within the
meaning of the Corporations Act; or
(b) on the grounds of neglect of duty, misconduct, incompetence
or mental or physical disability impairing the performance of
the functions of that member and proved to the satisfaction of
30 the Attorney General.
(2) A member of the Disciplinary Tribunal appointed by the Attorney
General may resign office by notice in writing delivered to the
Attorney General.
page 179
Legal Practice Bill 2002
Schedule 3 Provisions as to the constitution and procedure of the
Disciplinary Tribunal
(3) A reference in this clause to a member includes a reference a deputy
member.
7. Leave of absence
The Attorney General may grant leave of absence to a member of the
5 Disciplinary Tribunal on such terms and conditions as the Attorney
General thinks fit.
8. Termination of office may be deferred
Despite the term of office of a member of the Disciplinary Tribunal
having expired by effluxion of time, the member may continue in
10 office --
(a) until the member is reappointed, or a successor is appointed;
and
(b) in any event for the purpose of completing any part-heard
proceedings,
15 unless the Governor otherwise directs.
9. Remuneration and allowances
The chairperson of the Disciplinary Tribunal, deputy chairperson of
the Disciplinary Tribunal and persons appointed to the Disciplinary
Tribunal as representatives of the community are to be paid such
20 remuneration and allowances as the Attorney General from time to
time, after consultation with the Minister for Public Sector
Management, may determine.
10. Saving
No act or omission of a person acting in the place of another under
25 clause 4 or 5 is to be questioned on the ground that the occasion for
acting had not arisen or had ceased.
page 180
Legal Practice Bill 2002
Provisions as to the constitution and procedure of the Schedule 3
Disciplinary Tribunal
Division 2 -- Procedure
11. Quorum
(1) At any meeting of the Disciplinary Tribunal a quorum is constituted
by --
5 (a) the chairperson or deputy chairperson of the Tribunal, or a
person acting as chairperson;
(b) 2 persons who are members of the Tribunal by reason of their
membership of the Board or their membership under
section 169(2); and
10 (c) a member appointed as a representative of the community.
(2) If a hearing under Part 12 is commenced and, upon the failure of a
member present at that commencement to continue to participate in
the proceedings, a quorum cannot be convened, the determination of
the matter may be completed by the remaining members.
15 12. Meetings
(1) The chairperson presides at all meetings of the Disciplinary Tribunal
at which he or she is present.
(2) If the chairperson and deputy chairperson are absent from a meeting
of the Disciplinary Tribunal the members present may appoint one of
20 their number to act as chairperson.
(3) A person appointed under subclause (2) has, and may perform, the
functions of chairperson.
13. Divisions
(1) The Disciplinary Tribunal may sit and exercise jurisdiction as one or
25 more Divisions where a quorum is present.
(2) A reference in this Act, unless the context otherwise requires, to a
meeting of the Disciplinary Tribunal includes a reference to a meeting
when the Disciplinary Tribunal is constituted as a Division.
(3) A determination made by the Disciplinary Tribunal when sitting as a
30 Division is taken to be a determination of the Disciplinary Tribunal as
a whole.
page 181
Legal Practice Bill 2002
Schedule 3 Provisions as to the constitution and procedure of the
Disciplinary Tribunal
14. Voting
(1) At a meeting of the Disciplinary Tribunal the chairperson of that
meeting and each member present is entitled to a deliberative vote.
(2) Any question is to be determined by a majority of the votes lawfully
5 cast but when the deliberative votes cast on a question are equally
divided the chairperson has a casting vote.
15. Records
(1) The member presiding at any meeting of the Disciplinary Tribunal
must cause an accurate record to be kept --
10 (a) as minutes of the proceedings; and
(b) in the case of a hearing, of the finding upon which any
determination was based and of its reasons.
(2) A register of the records is to be maintained.
(3) Subject to subclause (4), the Disciplinary Tribunal may cause its
15 records, or information related to any inquiry or proceeding or as to
those records, to be published.
(4) The Disciplinary Tribunal must ensure that a publication under
subclause (3) is edited to prevent --
(a) the identification of persons, unless a determination to permit
20 identifying publication has been made; and
(b) the revealing of confidential information.
page 182
Legal Practice Bill 2002
Provisions as to constitution and procedure of the Legal Costs Schedule 4
Committee
Schedule 4 -- Provisions as to constitution and procedure
of the Legal Costs Committee
[s. 208, 209, 218(3)(a)]
Division 1 -- Constitution
5 1. Term of office
(1) Subject to clause 4, a member of the Legal Costs Committee --
(a) holds office for a term of not more than 3 years specified in
the instrument of appointment; and
(b) is eligible for reappointment.
10 (2) Subject to clause 4, a person appointed under clause 2 or 3 --
(a) holds office for a term specified in the instrument of
appointment; and
(b) is eligible for reappointment.
2. Deputy chairperson
15 (1) The Governor may appoint as deputy chairperson of the Legal Costs
Committee a person qualified for appointment as chairperson under
section 207(2)(a).
(2) The deputy chairperson may act as chairperson --
(a) in the absence of the chairperson of the Legal Costs
20 Committee; or
(b) during a vacancy in the office of chairperson of the Legal
Costs Committee.
(3) While acting as chairperson of the Legal Costs Committee the deputy
chairperson has, and may perform, the functions of the chairperson.
25 3. Deputy members
(1) The Governor may appoint a person having a like qualification or
being nominated in the same manner as the member for whom the
person is a deputy to act in the place of a member of the Legal Costs
Committee.
page 183
Legal Practice Bill 2002
Schedule 4 Provisions as to constitution and procedure of the Legal Costs
Committee
(2) A person appointed under subclause (1) is, during the absence of the
member of the Legal Costs Committee for whom the person is the
deputy, entitled to act as a member in place of that member.
(3) While acting as a deputy of a member, the deputy has and may
5 perform, the functions of that member.
4. Removal and resignation
(1) The Governor may remove a member of the Legal Costs Committee
or person appointed under clause 2 from office --
(a) if the member is an insolvent under administration within the
10 meaning of the Corporations Act; or
(b) on the grounds of neglect of duty, misconduct, incompetence
or mental or physical disability impairing the performance of
the functions of that member and proved to the satisfaction of
the Governor.
15 (2) A member of the Legal Costs Committee may resign office by notice
in writing delivered to the Governor.
(3) A reference in this clause to a member includes a reference to a
deputy member.
5. Leave of absence
20 The Attorney General may grant leave of absence to a member of the
Legal Costs Committee on such terms and conditions as the Attorney
General thinks fit.
6. Remuneration and allowances
A member or deputy member of the Legal Costs Committee is to be
25 paid such remuneration and allowances as the Attorney General from
time to time, after consultation with the Minister for Public Sector
Management, may determine.
7. Saving
No act or omission of a person acting in the place of another under
30 clause 2 or 3 may be questioned on the ground that the occasion for
acting had not arisen or had ceased.
page 184
Legal Practice Bill 2002
Provisions as to constitution and procedure of the Legal Costs Schedule 4
Committee
Division 2 -- Procedure
8. Meetings
(1) Meeting of the Legal Costs Committee may be held at such times and
places as the Legal Costs Committee determines.
5 (2) The chairperson presides at all meetings of the Legal Costs
Committee at which he or she is present.
(3) If the chairperson and deputy chairperson are absent from a meeting
of the Legal Costs Committee the members present may appoint one
of their number to act as chairperson.
10 (4) A person appointed under subclause (3) has, and may perform, the
functions of chairperson.
(5) The Legal Costs Committee must cause accurate minutes to be kept of
the proceedings at its meetings.
9. Voting
15 At a meeting of the Legal Costs Committee --
(a) each member present is entitled to a deliberative vote;
(b) if the votes cast on a question are equally divided, the
chairperson has a casting vote; and
(c) if the votes cast on a question from which the chairperson and
20 deputy chairperson are absent are equally divided, the
question remains unresolved until the next meeting at which
the chairperson is present.
10. Quorum
At a meeting of the Legal Costs Committee 4 members, of whom 2
25 are legal practitioners and 2 are members appointed under
section 207(2)(c), constitute a quorum.
11. Legal Costs Committee to determine procedures
Subject to this Act, the Legal Costs Committee may determine its own
procedures.
page 185
Legal Practice Bill 2002
Defined Terms
Defined Terms
[This is a list of terms defined and the provisions where they are defined.
The list is not part of the law.]
Defined Term Provision(s)
accountant ...........................................................................................................146(1)
adverse finding....................................................................................... 177(4), 189(4)
articled clerk ............................................................................................................... 3
associate..............................................................................................................133(1)
Australia...................................................................................................................... 3
bank ............................................................................................................................ 3
Board........................................................................................................................... 3
Board's appointee ................................................................................................... 147
certificated practitioner ............................................................................................... 3
chairperson.............................................................................................................. 205
complaint .................................................................................................................... 3
Complaints Committee ............................................................................................... 3
contentious business ............................................................................................... 205
corporation .................................................................................................................. 3
costs ........................................................................................................................ 205
costs agreement...............................................................................................3, 220(1)
court ........................................................................................................................ 205
direction in writing..............................................................................................140(1)
director........................................................................................................................ 3
Disciplinary Tribunal.................................................................................................. 3
disqualified person ...................................................................................................... 3
employee.............................................................................................................246(1)
engage in legal practice............................................................................................... 3
examiner...................................................................................................................... 3
foreign law .................................................................................................................. 3
foreign lawyer ............................................................................................................. 3
foreign registration authority....................................................................................... 3
Full Court.................................................................................................................... 3
Guarantee Fund........................................................................................................... 3
home registration authority ......................................................................................... 3
impairment............................................................................................................39(1)
incapable practitioner............................................................................................39(1)
incorporated legal practice .......................................................................................... 3
insolvent practitioner.............................................................................................39(1)
interstate practice certificate ...................................................................................... 3
interstate practitioner................................................................................................... 3
investigation..........................................................................................................67(3)
Law Complaints Officer.............................................................................................. 3
Law Society ................................................................................................................ 3
Legal Contribution Trust............................................................................................. 3
legal Costs Committee ................................................................................................ 3
legal costs determination............................................................................................. 3
page 186
Legal Practice Bill 2002
Defined Terms
legal practitioner ........................................................ 3, 135(1), 147, 158, 219, 246(1)
legal practitioner director ............................................................................................ 3
legal practitioner partner ............................................................................................. 3
local practitioner ......................................................................................................... 3
matter ....................................................................................................................72(4)
member ................................................................................................................... 205
mental disability.......................................................................................................... 3
migration restriction............................................................................................102(1)
multi-disciplinary partnership ..................................................................................... 3
non-contentious business ........................................................................................ 205
officer.......................................................................................................................... 3
other purposes .....................................................................................................209(3)
practice.................................................................................................................... 147
practice certificate....................................................................................................... 3
practise foreign law..................................................................................................... 3
practising on his or her own account........................................................................... 3
practitioner .................................................................................................................. 3
professional obligations .............................................................................................. 3
prohibited person ........................................................................................................ 3
public document..................................................................................................116(1)
public officer............................................................................................................... 3
record .......................................................................................................................... 3
registered..................................................................................................................... 3
registered foreign lawyer ............................................................................................ 3
regulatory authority.........................................................................................3, 203(1)
related body corporate................................................................................................. 3
related services..................................................................................58(1)(b), 81(1)(b)
relevant legal practitioner....................................................................................223(3)
remuneration .......................................................................................................209(1)
Roll ............................................................................................................................. 3
Roll of Practitioners .................................................................................................... 3
rules ............................................................................................................................ 3
State ............................................................................................................................ 3
supervising solicitor ................................................................................................ 147
taxing officer.......................................................................................................227(1)
trust account................................................................................................................ 3
trust moneys................................................................................................................ 3
unfit practitioner....................................................................................................39(1)
unpaid work ........................................................................................................124(3)
unsatisfactory conduct................................................................................................. 3
work ....................................................................................................................124(1)
working hours .......................................................................................................23(4)
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