Legal Practice (Amendment) Act 1997 (Vic)
Legal Practice (Amendment) Act 1997
Act No. 102/1997
TABLE OF PROVISIONS
Section Page
1. Purpose 1 2. Commencement 2 3. Principal Act 2 4. Definitions 2 5. New section 3A inserted 6 3A. When does a practitioner establish a practice? 6 6. Amendments to sections 4 and 5 7 7. The Register 7 8. New section 13A inserted 8 13A. Notification of changes by interstate practitioners and
registered foreign practitioners 8
9. Practising certificates 9 10. Suspension and cancellation of practising certificates for insolvency 10 11. New section 34A inserted 11 34A. Expungement of record of suspension or variation under
section 34 11
12. Suspension of practising certificates 12 13. Re-allocation of practitioners and firms 13 14. New Part 2A inserted to replace Division 6 of Part 2 14 PART 2A—INTERSTATE PRACTICE 14 Division 1—Preliminary 14 53. Purposes of this Part 14 Division 2—Legal practice by interstate practitioners 14 54. Status of interstate practitioners 14 55. Interstate practitioner may practise in Victoria 15 56. Notification requirements for interstate practitioners 16 57. RPA allocation 18 Division 3—Disputes, complaints and discipline 19 58. Current practitioners practising interstate 19 59. Referral of disputes and disciplinary matters to interstate
regulatory authorities 20
i
Section Page
60. Dealing with matters referred by interstate regulatory
authorities 20 61. Furnishing information 21 Division 4—Further provisions for current practitioners in relation to interstate practice 22 62. Current practitioners are subject to interstate regulatory
authorities 22
63. Current practitioner receiving trust money interstate 23 63A. Current practitioner's professional indemnity insurance 23 Division 5—General 23 63B. Victorian regulatory authority may exercise powers conferred by interstate law 24
63C. Agreements and arrangements with interstate regulatory
authorities 24 63D. Mutual recognition laws not affected 24 63E. Transitional 24
15. New Part 2B inserted 25 PART 2B—PRACTICE OF FOREIGN LAW 25 Division 1—Preliminary 25 63F. Purpose of this Part 25 63G. Definitions 25 63H. What is the practice of foreign law? 26 Division 2—Unqualified foreign law practice 26 63I. Prohibition on unqualified foreign law practice 27 Division 3—Registration of foreign practitioners 28 63J. Registration notice 28 63K. Fees and Fidelity Fund contributions 31 63L. Registration and RPA allocation 31 63M. Conditions 34 63N. Notification of decision 34 63O. Effect of registration and annual fee 35 63P. Suspension of registered foreign practitioner 35 63Q. Effect of suspension 37 63R. Cancellation of registration 37 63S. Application to Full Tribunal 39 63T. Appeal to Court of Appeal 41 Division 4—Practice of foreign law 41 63U. Scope of practice 41 63V. Form of practice 42
ii
Section Page
63W. Letterhead and other identifying documents 43 63X. Designation 43 63Y. Employment of current and interstate practitioners by foreign practitioners 45 63Z. Employment of foreign practitioners by current
practitioners, interstate practitioners and firms 45 63ZA. Professional indemnity insurance 46 63ZB. Trust money 46 63ZC. Exemption by Board 46
16. Information for clients 46 17. Clerks may sign bills of costs 47 18. Disciplinary proceedings 47 19. New section 169A inserted 48 169A. Orders for costs in disputes appeals 48 20. Application of Part 5 49 21. New section 171A inserted 49 171A. Application of Part to foreign practitioners 49 22. Trust money matters 51 23. New section 178 substituted 51 178. Unqualified trust money receipt 52 24. New section 183 substituted 54 183. Annual audit of trust accounts 54 25. Fidelity Fund contributions and levies 55 26. New section 207A inserted 57 207A. Definitions 57 27. Fidelity Fund claims 58 28. Professional indemnity insurance 59 29. New section 229A inserted 60 229A. Exemption from insurance requirements 60 30. Legal Practitioners' Liability Fund and Committee 60 31. Appointment of receivers 61 32. Appointment of managers 64 33. Incorporated practitioners 64 34. RPAs 65 35. Unqualified practice and conveyancing 65 36. Funds 66 37. New sections 384A and 384B inserted 67 384A. Board may take into account previous funding 67 384B. Timing of payments and instalments 67 38. Further amendments to funding provisions 68 39. Constitution of Tribunal 69 40. New section 413A inserted 69 413A. Interim orders 69 41. Ex-gratia payments by Legal Ombudsman 69 42. Service of notices and evidentiary matters 69 43. New section 441 substituted 70
iii
Section Page
441. Who may prosecute offences? 70
44. Liability for negligence 71 45. Supreme Court—limitation of jurisdiction 71 46. Amendment of Schedule 2 71 47. Statute law revision 72 48. Repeal of spent provisions 72 49. Consequential amendments 72
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SCHEDULE 73
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NOTES 75
iv
Victoria
No. 102 of 1997
Legal Practice (Amendment) Act 1997†
[Assented to 16 December 1997]
The Parliament of Victoria enacts as follows:
1. Purpose
The purpose of this Act is to amend the Legal
Practice Act 1996—
(a)
to make new provision for interstate practitioners to engage in legal practice in Victoria and to make provision for Victorian practitioners practising interstate;
(b)
to regulate the practice of foreign law in Victoria by foreign lawyers;
Legal Practice (Amendment) Act 1997
Act No. 102/1997 s. 2
(c)
generally to improve the operation of the Act.
2. Commencement
(1) This Act (except section 47) comes into operation
on the day on which it receives the Royal Assent.(2) Section 47 is deemed to have come into operation
on 6 November 1996.
No. 35/1996
3. Principal Act as amended
by Nos
In this Act, the Legal Practice Act 1996 is called 59/1996, the Principal Act. 44/1997 and
48/1997.
4. Definitions
In section 3(1) of the Principal Act—
(a) insert the following definitions—
' "engage in the practice of foreign law"has the meaning given in section 63H;
"establish a practice" has the meaning given in section 3A;
"foreign practitioner" has the meaning given in section 63G;
"home State"—
(a)
of a current practitioner means Victoria;
(b) of an interstate practitioner
means—
(i) person, the State in which
they have been admitted to
legal practice or, if they have
been admitted to practice inin the case of a natural State in which they have
Legal Practice (Amendment) Act 1997
| s. 4 | Act No. 102/1997 |
their principal place of
practice; or
(ii) corporate, the State in which
they are incorporated or
registered or, if they are
registered in more than one
State, the State in which theyin the case of a body practice;
"interstate practising certificate" means a
certificate or other form of
authorisation issued by an interstate
regulatory authority that confers an
authority to engage in legal practice in
the State in which it is issued,
whether—
(a) generally or of a particular type; or (b) unconditionally or subject to
conditions, restrictions or
limitations;"interstate regulatory authority" means a person or body in another State having the function conferred by law of
admitting persons to legal practice,
issuing interstate practising certificates
to persons, making rules for engaging
in legal practice or receiving
complaints against, investigating the
conduct of, or disciplining, persons
engaged in legal practice in that State;
"registered foreign practitioner" has the meaning given in section 63G;
Legal Practice (Amendment) Act 1997
Act No. 102/1997 s. 4 "State" means a State or Territory of the Commonwealth;
"Victorian regulatory authority" means
the Board, an RPA, the Legal
Ombudsman, the Tribunal or the
Supreme Court;';
(b) the definitions of "home jurisdiction", "registered interstate practitioner" and "registered" are repealed; (c) for the definition of "current practitioner" ' "current practitioner" means a legal
practitioner who holds a practising
certificate;';
(d) practitioner" for "a registered interstate
in the definition of "incorporated practitioner";
(e) for the definition of "interstate practitioner" ' "interstate practitioner" means a
person—
(a) who—
(i) person, has been admitted to
in the case of a natural State; or
(ii) corporate, has been
incorporated or registeredin the case of a body State; and
(b)
who holds an interstate practising certificate, or is otherwise entitled
Legal Practice (Amendment) Act 1997
| s. 4 | Act No. 102/1997 |
to engage in legal practice in that
State; and
(c) who is not a current practitioner—
other than a person who is licensed in another State to perform legal work in relation to conveyancing but is not
entitled to engage generally in legal
practice in that State;'.
(f) for the definition of "legal practitioner" ' "legal practitioner" means a person
admitted to legal practice in Victoria or
an incorporated practitioner andincludes—
(a)
an interstate practitioner in Parts 2B, 3, 4, 5, 9, 12 and 19;
(b)
an interstate practitioner who has established a practice in Victoria in Part 6 (except section 178);';
(g) "registered interstate practitioner" (wherever
in the definition of "nominee mortgage" for practitioner";
(h) for "registered interstate practitioner or firm"
(where twice occurring) substitutein the definition of "regulated practitioner" foreign practitioner";
(i) "registered interstate practitioner" (where
in the definition of "trust money" for practitioner";
Legal Practice (Amendment) Act 1997
Act No. 102/1997 s. 5
(j) in the definition of "trust money" at the end "or
(c) money given or paid to a registered foreign practitioner— (i) in the course of engaging in the practice of foreign law for, or on behalf of, a person or body other than the practitioner; or
(ii) on account of legal costs in advance of legal services to be provided in the course of engaging in the practice of foreign law;".
5. New section 3A inserted
After section 3 of the Principal Act insert—
"3A. When does a practitioner establish a
practice?
(1) For the purposes of this Act and subject to sub-section (3), a current practitioner or an interstate practitioner establishes a practice in a State other than their home State when the practitioner first offers and provides legal
services to the public in that State.
(2) For the purposes of this Act and subject to
sub-section (3), a foreign practitioner
establishes a practice in Victoria when the
practitioner first offers and provides legal
services to the public in Victoria.
(3) A practitioner is not to be taken to establish a practice in a State—
(a)
if the practitioner provides legal services in that State to one client only; or
Legal Practice (Amendment) Act 1997
| s. 6 | Act No. 102/1997 |
(b)
if the practitioner provides legal services in that State only in connection with one transaction or a series of associated transactions.".
6. Amendments to sections 4 and 5
In the Principal Act—
(a)
(b) in section 4(2)—in section 4(1) for "registered interstate practitioner";
(i) for "or registered interstate
practitioner" substitute ", interstate
practitioner or registered foreign
practitioner";(ii) after "Victoria" insert "(or, in the case of a registered foreign practitioner, in the course of or in connection with engaging in the practice of foreign law in Victoria)";
(iii) in paragraph (b) for "or interstate practitioner or foreign practitioner";
(c) in section 4(3)(b) for "or interstate practitioner or foreign practitioner";
(d) in section 5 for "registered interstate practitioner, registered foreign practitioner".
7. The Register
(1) In section 9(1) of the Principal Act for "and
registered interstate practitioners" substitute
", interstate practitioners and registered foreign
practitioners".
Legal Practice (Amendment) Act 1997
Act No. 102/1997 s. 8 (2) In section 9 of the Principal Act, for sub-section
(6) substitute—
"(6) The following information must be included
on the Register in respect of each interstate
practitioner who gives notice to the Boardunder section 56—
(a)
the information specified in section 56(2); and
(b)
the RPA to which the practitioner has been allocated or, if they have been allocated to the Board, that fact; and
(c)
any other condition, restriction or limitation to which the practitioner is subject in respect of their legal practice; and
(d) the prescribed information (if any).
(7) The following information must be included on the Register in respect of each registered foreign practitioner—
(a)
the information specified in section 63L(6); and
(b)
any other condition, restriction or limitation to which the practitioner is subject in respect of their practice of foreign law; and
(c) the prescribed information (if any).".
(3) In section 13(1) of the Principal Act omit "or registered interstate practitioner".
8. New section 13A inserted
After section 13 of the Principal Act insert—
"13A. Notification of changes by interstate practitioners and registered foreign practitioners
Legal Practice (Amendment) Act 1997
| s. 9 | Act No. 102/1997 |
(1) An interstate practitioner who engages in legal practice in Victoria must notify the Board of any change to any of the particulars
on the Register in respect of the practitioner
(other than a re-allocation of the practitioner)
within 14 days after becoming aware of thechange.
(2) If an interstate practitioner who has ceased to
commences to engage in legal practice in
Victoria, the practitioner must notify theengage in legal practice in Victoria re- on the Register in respect of the practitioner (other than a re-allocation of the practitioner) within 14 days after that re-commencement. (3) A registered foreign practitioner must notify
the Board of any change to any of the
particulars on the Register in respect of the
practitioner (other than a re-allocation of the
practitioner) within 28 days after becoming
aware of the change.
(4) If the Board approves a form of notice for the purposes of this section, a notice under sub-section (1), (2) or (3) must be in that
form.
(5) Sub-section (1) or (2) does not apply to an
interstate practitioner if an interstate
regulatory authority has notified the Board of
the change.".
9. Practising certificates
(1) In section 20(2) of the Principal Act after "issues"
insert "or varies".
(2) In section 21 of the Principal Act for sub-section (3) substitute—
Legal Practice (Amendment) Act 1997
Act No. 102/1997 s. 10 "(3) If an application by a current practitioner for
a practising certificate has not been finally determined before the end of the calendar year in which it was made, the practising certificate already held by the practitioner remains in force, unless suspended or
cancelled sooner, until the application has
been finally determined.(4) For the purposes of sub-section (3), an application is finally determined—
(a)
by the issue of a new practising certificate to the applicant; or
(b)
by the exhaustion of all rights of appeal in relation to a refusal to issue a new practising certificate to the applicant.".
(3) After section 30(3)(e) of the Principal Act
insert—
"(f) may make any other order the Tribunal
thinks fit.".
(4) After section 33(3) of the Principal Act insert—
"(4) If a practising certificate is surrendered
under sub-section (2), the Board may refund
the whole or part of the fee paid for the
certificate, as determined by the Board, to
the practitioner.".
10. Suspension and cancellation of practising certificates for insolvency
(1) In section 34 of the Principal Act—
(a)
in sub-section (1) for "cancel" substitute "suspend";
(b) in sub-section (2)—
(i) for "cancelled" substitute "suspended";
(ii) for "cancel" substitute "suspend";
Legal Practice (Amendment) Act 1997
| s. 11 | Act No. 102/1997 |
(c)
in sub-section (3) for "cancellation" substitute "suspension";
(d) in sub-section (4)—
(i) for "cancels" substitute "suspends";
(ii) for "cancellation" substitute
"suspension".(2) After section 34(4) of the Principal Act insert—
"(5) Section 40 does not apply to a suspension under this section.
(6) If an RPA or the Board that has varied the conditions of a practising certificate under this section is satisfied that the grounds for variation do not or no longer exist, the RPA or the Board must vary the conditions back (so that the practitioner is authorised to
receive trust money) immediately by giving
written notice to the practitioner. 1(7) No fee is payable by a practitioner for a variation back under sub-section (6).
(8) An RPA that varies a condition back under
sub-section (6) must also give written notice
to the Board.".
11. New section 34A inserted
After section 34 of the Principal Act insert—
"34A. Expungement of record of suspension or variation under section 34
(1) If—
(a) a suspension of a practitioner's lifted; or
Legal Practice (Amendment) Act 1997
Act No. 102/1997 s. 12
(b)
a practitioner's practising certificate is varied back under section 34(6)—
the practitioner may apply to the Full the record of the suspension or original variation from the Register.
(2) On an application under sub-section (1), the Full Tribunal, if satisfied that it is appropriate to do so, may order that the Board expunge the record of the suspension or original variation from the Register.".
12. Suspension of practising certificates
(1) In section 37 of the Principal Act, for sub-section
(4) substitute—
"(4) An RPA or the Board must give written
notice of a suspension under this section to
the practitioner.".
(2) After section 37(5) of the Principal Act insert—
"(6) Subject to sub-section (7) and section 40, asuspension under this section takes effect 14 days after the day notice is given under sub- section (4).
(7) An RPA or the Board may determine that a suspension take effect immediately notice is given under sub-section (4) if satisfied that
immediate suspension is necessary—
(a)
for the protection of the practitioner's clients or members of the public generally; or
(b)
to protect the integrity of the legal profession or the administration of justice.".
(3) After section 40(2)(e) of the Principal Act
insert—
Legal Practice (Amendment) Act 1997
| s. 13 | Act No. 102/1997 |
"(f) may make any other order the Tribunal
thinks fit.".
13. Re-allocation of practitioners and firms
(1) In the Principal Act—
(a) in the heading to Division 5 of Part 2 omit "legal"; (b) in section 42(1) for "regulated practitioner" "incorporated practitioner";
(c) in section 43(2) after "legal practitioner" insert ", interstate practitioner and registered foreign practitioner (if any)"; (d) practitioner" substitute ", corporate
in section 44(1) for "or corporate registered foreign practitioner".
(2) After section 44(2) of the Principal Act insert—
"(3) Sub-section (1) does not apply in the case of an interstate practitioner or registered foreign practitioner who is a partner or an employee
of a firm or an employee of an incorporated
practitioner.".
(3) In the Principal Act—
(a)
in section 46(1) after "legal practitioner" insert ", interstate practitioner, registered foreign practitioner";
(b) in section 49(1)—
(i) after "(being a natural person)" insert ", an interstate practitioner or a registered foreign practitioner";
(ii) for "him or her" substitute "them";
Legal Practice (Amendment) Act 1997
Act No. 102/1997 s. 14
(c)
in section 49(3) for "he or she intends" substitute "they intend";
(d)
in section 50(1) for "him or her" substitute "them";
(e)
in section 51(1) and (2) after "legal practitioner" insert ", interstate practitioner, registered foreign practitioner".
14. New Part 2A inserted to replace Division 6 of Part 2
For Division 6 of Part 2 of the Principal Act substitute—
"PART 2A—INTERSTATE PRACTICE
Division 1—Preliminary
53. Purposes of this Part
The main purposes of this Part are—(a) engage in legal practice in Victoria
without having to be admitted into allow interstate practitioners to certificates; and
(b) to recognise disciplinary action taken interstate authorities.
Division 2—Legal practice by interstate
practitioners2
54. Status of interstate practitioners
(1) An interstate practitioner who engages inlegal practice in Victoria is an officer of the Supreme Court and is subject to the Court's jurisdiction as such.
Legal Practice (Amendment) Act 1997
| s. 14 | Act No. 102/1997 |
(2) Sub-section (1) confers on an interstate
practitioner the same rights and privileges
and imposes on the practitioner the same
duties as are conferred and imposed on a
legal practitioner as an officer of the
Supreme Court.
55. Interstate practitioner may practise in Victoria
(1) An interstate practitioner is entitled to
engage in legal practice in Victoria, subject to this Act, in accordance with the terms of the practitioner's entitlement to practise in their home State.
(2) In so doing, the practitioner—
(a) must comply with this Act and the regulations and with any other Act that relates to legal practice; and (b) must comply with the practice rules of the Victorian regulatory authority to which they have been allocated; and (c) restriction imposed on the practitioner
in respect of their practice by a
Victorian regulatory authority or an
interstate regulatory authority as ais subject to any condition, limitation or practitioner.
(3) A Victorian regulatory authority must not
impose a condition, restriction or limitation
on an interstate practitioner in respect of
their practice that is more onerous than it
would impose on a current practitioner in the
same or similar circumstances.
Legal Practice (Amendment) Act 1997
Act No. 102/1997 s. 14
56. Notification requirements for interstate
practitioners(1) An interstate practitioner must give written
notice to the Board within 28 days after first
engaging in legal practice in Victoria.
Penalty: 10 penalty units in the case of a
natural person;
20 penalty units in the case of a
body corporate.(2) A notice under this section must contain—
(a) in the case of a natural person—
(i) the name, date of birth and date of admission of the practitioner in their home State; and
(ii) practitioner is a partner or
employee, any incorporatedthe name of any firm of which the director or an employee or any other person or body of which they are an employee; and
(iii) their own account, any business
if the practitioner practises on legal practice; and
(iv) restriction to which the
any condition, limitation or their legal practice in their home State or elsewhere; and
(v) an address in Victoria for service of notices and other documents on the practitioner; and
Legal Practice (Amendment) Act 1997
| s. 14 | Act No. 102/1997 |
(vi) a nomination—
(A) of an RPA of which thepractitioner is a member or is
eligible to be a member; or
(B) if there is no such RPA, the
Board—
to regulate the practitioner in
respect of their legal practice inVictoria; and
(vii) practitioner has established, or
a statement as to whether the Victoria; and
(viii) the prescribed information (if
any);(b) in the case of a body corporate—
(i) date of incorporation or
the name, A.C.N. or A.R.B.N. and its home State; and
(ii) the name and date of birth of each director of the practitioner; and
(iii) restriction to which the
any condition, limitation or their legal practice in their home State or elsewhere; and
(iv) an address in Victoria for service of notices and other documents on the practitioner; and
(v) a nomination—
Legal Practice (Amendment) Act 1997
Act No. 102/1997 s. 14 (A) of an RPA of which the
practitioner is a member or is
eligible to be a member; or
(B) if there is no such RPA, the
Board—
to regulate the practitioner in
respect of their legal practice inVictoria; and
(vi) practitioner has established, or
a statement as to whether the Victoria; and
(vii) the prescribed information (if
any).(3) A notice under this section must be accompanied by—
(a) satisfactory evidence, in a form approved by the Board, that the applicant has professional indemnity insurance as required by this Act; and
(b) intends to establish, a practice in
Victoria, the required contribution toif the practitioner has established, or 202(1A) (if any).
(4) If an interstate practitioner who has indicated that they do not intend to establish a practice in Victoria subsequently establishes a
practice in Victoria, they must give notice to
the Board within 14 days, accompanied by
the required contribution to the Fidelity Fundunder section 202(1A) (if any).
57. RPA allocation
Legal Practice (Amendment) Act 1997
| s. 14 | Act No. 102/1997 |
On receipt of a notice under section 56(1) from an interstate practitioner, the Board—
(a) must allocate the practitioner to the RPA nominated by the practitioner if satisfied that the practitioner is entitled to nominate that RPA; or (b) entitled to nominate the nominated
RPA, after consultation with the
practitioner, must allocate theif not satisfied that the practitioner is practitioner is entitled to nominate; or
(c)
if satisfied that there is no RPA that the practitioner is entitled to nominate, must allocate them to the Board.
Division 3—Disputes, complaints and
discipline3
58. Current practitioners practising interstate
(1) A dispute between a person and a current
practitioner in connection with the
practitioner's legal practice in another State
may be resolved under Division 1 of Part 5.(2) A complaint may be made under Division 2
of Part 5 about the conduct of a current
practitioner in respect of their legal practice
in another State.
(3) An investigation may be undertaken under Division 3 of Part 5 of the conduct of a current practitioner in respect of their legal practice in another State.
(4) A charge may be brought in the Tribunal against a current practitioner in respect of their legal practice in another State.
Legal Practice (Amendment) Act 1997
Act No. 102/1997 s. 14 (5) If a dispute, complaint or investigation of a
kind referred to in this section has been dealt with and finally determined in another State, no further action may be taken in relation to the subject-matter of the dispute, complaint or investigation under Part 5.
59. Referral of disputes and disciplinary matters to interstate regulatory authorities
(1) If it considers it appropriate to do so, a
Victorian regulatory authority may refer a dispute lodged with it in relation to a current practitioner or an interstate practitioner to an interstate regulatory authority, to be dealt with according to the law of the other State.
(2) If it considers it appropriate to do so, a
Victorian regulatory authority may refer a complaint made to it in relation to a current practitioner or an interstate practitioner to an interstate regulatory authority, to be dealt with according to the law of the other State.
(3) If it considers it appropriate to do so, a
Victorian regulatory authority may request
an interstate regulatory authority to
investigate the conduct of a current
practitioner or an interstate practitioner, in
accordance with the law of the other State.
(4) After a referral under sub-section (1) or (2) or a request under sub-section (3) has been made, no further action may be taken by any
Victorian regulatory authority in relation to the subject-matter of the referral or request, other than action required to comply with
section 62, unless the interstate regulatory authority declines to deal with the matter.
60. Dealing with matters referred by interstate regulatory authorities
Legal Practice (Amendment) Act 1997
| s. 14 | Act No. 102/1997 |
(1) A Victorian regulatory authority may resolve
a dispute between a person and a current
practitioner or an interstate practitioner
referred to it by an interstate regulatory
authority whether the subject-matter of the
dispute arose in or outside Victoria.
(2) A Victorian regulatory authority may
investigate a complaint against a current
practitioner or an interstate practitioner
referred to it by an interstate regulatory
authority and bring a charge in the Tribunal
against the practitioner as a result of such
investigation whether the subject-matter of
the complaint allegedly occurred in or
outside Victoria.
(3) If an interstate regulatory authority requests a Victorian regulatory authority to investigate the conduct of a current practitioner or an interstate practitioner, the
authority may investigate that conduct and
bring a charge in the Tribunal against the
practitioner as a result of such investigation
whether the conduct allegedly occurred in oroutside Victoria.
61. Furnishing information
(1) A Victorian regulatory authority must
furnish without delay any information about
a current practitioner or an interstate
practitioner reasonably required by an
interstate regulatory authority in connection
with actual or possible disciplinary action
against the practitioner.(2) A Victorian regulatory authority may notify
an interstate regulatory authority of any
condition, restriction, limitation or
prohibition imposed in Victoria on a current
Legal Practice (Amendment) Act 1997
Act No. 102/1997 s. 14 practitioner or an interstate practitioner in respect of their legal practice as a result of disciplinary action against the practitioner.
(3) Sub-sections (1) and (2) apply despite any law relating to secrecy or confidentiality.
(4) Nothing in this section affects any obligation
or power to provide information apart from
this section.
Division 4—Further provisions for current
practitioners in relation to interstate practice
62. Current practitioners are subject to interstate regulatory authorities
(1) A current practitioner, in engaging in legal practice in Victoria, must comply with any condition, restriction or limitation in respect
of their practice imposed by an interstate
regulatory authority as a result ofdisciplinary action against the practitioner.
(2) An interstate regulatory authority—
(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 practising certificate
issued to an interstate practitioner; and(b) to which a current 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 imposition of further
conditions on, the current practitioner's
practising certificate.
Legal Practice (Amendment) Act 1997
| s. 14 | Act No. 102/1997 |
(3) A Victorian regulatory authority must comply with an order of an interstate regulatory authority under sub-section (2).
(4) An interstate regulatory authority that has
jurisdiction to order the removal of the name of a person from the roll that corresponds to the roll of practitioners in Victoria may order
that the name of a current practitioner be removed from the roll. If it does so, the practitioner's name is to be removed from the
roll in Victoria.63. Current practitioner receiving trust money interstate
(1) A current practitioner must deal with trust
money received in the course of engaging in legal practice in another State in accordance with Part 6 as if the trust money had been
received in the course of engaging in legal
practice in Victoria.(2) Sub-section (1) does not apply to trust
money received in the course of engaging in
legal practice in another State that the
practitioner is required to deal with in
another manner under the law of that State.
63A. Current practitioner's professional indemnity insurance
Unless exempted by the Board under Part 8, a current practitioner must maintain professional indemnity insurance in Victoria that covers the provision of legal services in another State to a client resident in Victoria on instructions given to the practitioner in Victoria.
Division 5—General
Legal Practice (Amendment) Act 1997
Act No. 102/1997 s. 14 63B. Victorian regulatory authority may exercise powers conferred by interstate law
A Victorian regulatory authority may exercise in respect of a current practitioner or an interstate practitioner any function or power conferred on it by the law of another State.
63C. Agreements and arrangements with interstate regulatory authorities
A Victorian regulatory authority may make agreements or arrangements with an interstate regulatory authority for or with respect to—
(a) the investigation of complaints;
(b) professional indemnity insurance;
(c) fidelity fund contributions and
payments;(d) trust account inspections;
(e)
the appointment of managers and receivers;
(f)
the exchange of information under section 61.
63D. Mutual recognition laws not affected
Nothing in this Act affects the operation of
the Mutual Recognition (Victoria) Act1993.
63E. Transitional
A person who was a registered interstate practitioner under Division 6 of Part 2 immediately before the commencement of section 14 of the Legal Practice (Amendment) Act 1997 is deemed, on the commencement of that section, to be an
Legal Practice (Amendment) Act 1997
| s. 15 | Act No. 102/1997 |
interstate practitioner who has complied with
the requirements of section 56(1).".
15. New Part 2B inserted
Before Part 3 of the Principal Act insert—
'PART 2B—PRACTICE OF FOREIGN LAW
Division 1—Preliminary
63F. Purpose of this Part
The purpose of this Part is to encourage and facilitate the internationalisation of legal services and the legal services sector by providing a framework for the regulation of the practice of foreign law in Victoria by foreign-qualified lawyers as a recognised aspect of legal practice.
63G. Definitions
In this Part—
"Australia" includes the external Territorieswithin the meaning of the Acts Interpretation Act 1901 of the Commonwealth;
"engage in the practice of foreign law" has the meaning given in section 63H;
"foreign law" means law of a place outside
Australia;
"foreign practitioner" means a natural
person, other than a legal practitioner,
who is registered to engage in legal
practice in a place outside Australia by
a foreign registration authority;
"foreign registration authority" means a
person or authority in a place outside
Legal Practice (Amendment) Act 1997
Act No. 102/1997 s. 15 Australia having the function conferred by law of registering persons to engage in legal practice in that place; "home registration authority" of a foreign
practitioner means the foreign
registration authority stated in the
practitioner's registration notice under
section 63J;
"registered" when used in connection with
a place outside Australia, means having
all necessary licences, approvals,
admissions, certifications or other
forms of authorisation (including
practising certificates) required by or
under the law of that place for engaging
in legal practice in that place;
"registered foreign practitioner" means a
person who is registered as a foreign
practitioner under Division 3.
63H. What is the practice of foreign law?
(1) For the purposes of this Act, a person
engages in the practice of foreign law if the practice.
person does any work or transacts any
business in Victoria concerning foreign law
of a kind that, if it concerned the law of(2) Engaging in the practice of foreign law may consist of a single act.
Division 2—Unqualified foreign law practice
Legal Practice (Amendment) Act 1997
| s. 15 | Act No. 102/1997 |
63I. Prohibition on unqualified foreign law
practice
(1) A person must not engage in the practice of
foreign law in Victoria unless the person—(a) is a registered foreign practitioner; or
(b) is a foreign practitioner who—
(i) engages in the practice of foreign law in Victoria on a temporary basis or is subject to a migration restriction; and
(ii) does not establish a practice in Victoria; or
(c) practitioner (other than an interstate
practitioner who is suspended oris a current practitioner or an interstate practice in Victoria).
Penalty: Imprisonment for 2 years. (2) A person who contravenes sub-section (1) 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 wasreceived.
(3) If a person does not repay an amount
required by sub-section (2) 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.
(4) In this section—
Legal Practice (Amendment) Act 1997
Act No. 102/1997 s. 15
"migration restriction" means a restriction
imposed on a person who is not an Act 1958 of the Commonwealth that has the effect of limiting the period during which work may be done, or business transacted, in Australia by the person.
Division 3—Registration of foreign
practitioners
63J. Registration notice
(1) A foreign practitioner 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 qualifications; and (b) state that the applicant is registered to engage in legal practice in a place outside Australia by a specified foreign registration authority in that place; and (c) subject of any disciplinary proceedings
in that place (including any preliminary
investigations or action that might lead
to disciplinary proceedings) in relation
state whether the applicant is the details of those proceedings or investigations or that action; and
(d)
state whether the applicant is a party in any pending criminal or civil proceeding that is likely to result in disciplinary action being taken against
Legal Practice (Amendment) Act 1997
| s. 15 | Act No. 102/1997 |
| the applicant and, if so, give details of that proceeding; and |
(e) state that the applicant's registration in that place is not cancelled or currently suspended as a result of disciplinary action; and
(f)
state whether or not the applicant is otherwise prohibited from engaging in legal practice in that place or bound by any undertaking not to engage in legal practice in that place, or is subject to any conditions in engaging in that practice as a result of criminal, civil or disciplinary proceedings in that place; and
(g)
specify any conditions imposed as a restriction on the legal practice of the applicant or any undertaking given by the applicant restricting their legal practice; and
(h)
contain an address in Victoria for service of notices and other documents on the applicant; and
(i) contain a nomination—
(i) of an RPA of which the practitioner is a member or is eligible to be a member; or
(ii) if there is no such RPA, the Board—
to regulate the practitioner in respect of
their practice of foreign law; and
(j)
give consent to the making of enquiries of, and the exchange of information with, the applicant's home registration authority regarding the applicant's
Legal Practice (Amendment) Act 1997
Act No. 102/1997 s. 15 activities in engaging in legal practice
in that place or otherwise regarding
matters relevant to the notice; and
(k) 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
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; and (b) verifying the applicant's registration by the authority to engage in legal practice 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 engage in legal practice in the place concerned or to engage in the practice of 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.
(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 accompanied by a
Legal Practice (Amendment) Act 1997
| s. 15 | Act No. 102/1997 |
translation in English that is authenticated or
certified to the satisfaction of the Board.
63K. Fees and Fidelity Fund contributions
(1) A notice under section 63J is to be accompanied by—
(a) an application fee (if any) determined by the Board; and (b) a registration fee (if any) determined by the Board; and (c) the required contribution to the Fidelity Fund under section 202(1) (if any). (2) The combined amount of the application fee
and the registration fee is not to be greater
than the maximum fee for a practising
certificate.
(3) If an application for registration is refused,
the Board must refund the registration fee
and the Fidelity Fund contribution to the
applicant.
63L. Registration and RPA allocation
(1) As soon as practicable after receiving a
notice under section 63J but subject to sub-
section (2), the Board must register the
applicant as a foreign practitioner if—
(a)
the Board is satisfied that the applicant is registered to engage in legal practice in a place outside Australia; and
(b)
the Board considers that an effective system exists in that place for the regulation of legal practice in that place; and
(c)
the Board considers that the applicant is not, or is not likely to become, subject
Legal Practice (Amendment) Act 1997
Act No. 102/1997 s. 15 to any conditions in engaging in legal
practice 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
(d)
the applicant demonstrates to the satisfaction of the Board an intention to establish a practice in Victoria within a reasonable period after the grant of registration.
(2) The Board must refuse to register a foreign
practitioner if the application is made within a period specified by the Full Tribunal under section 171A(6) or by the Supreme Court.
(3) Residence or domicile in Victoria is not a
pre-requisite for, or a factor in determining
entitlement to, registration as a foreign
practitioner.
(4) In considering whether or not to register a
foreign practitioner, the Board may rely
on—
(a) any material provided by or on behalf of the practitioner; (b) any further investigations it considers necessary to undertake; (c) relation to other applicants for
any investigations undertaken by it in practitioners.
(5) If the Board registers a foreign practitioner, the Board—
(a)
must allocate the practitioner to the RPA nominated by the practitioner if
Legal Practice (Amendment) Act 1997
| s. 15 | Act No. 102/1997 |
| satisfied that the practitioner is entitled to nominate that RPA; or |
(b) entitled to nominate the nominated
RPA, after consultation with the
practitioner, must allocate theif not satisfied that the practitioner is practitioner is entitled to nominate; or
(c) if satisfied that there is no RPA that the practitioner is entitled to nominate, must allocate them to the Board. (6) The Board registers a foreign practitioner by
entering the following information on the
Register—
(a) the date of registration; and
(b) the practitioner's educational and
professional qualifications; and(c) the place outside Australia in which the practitioner is registered to engage in legal practice; and (d) the name and address of the authority; and
(e) practitioner by their home registration
any conditions imposed on the practice or any undertakings given by the practitioner in respect of that practice; and
(f)
any conditions imposed on the practitioner by a Victorian regulatory authority in respect of their practice of foreign law or any undertaking given by the practitioner in respect of that practice; and
Legal Practice (Amendment) Act 1997
Act No. 102/1997 s. 15
(g)
the RPA to which the practitioner has been allocated or, if they have been allocated to the Board, that fact; and
(h)
the practitioner's address for service of notices and other documents.
63M. Conditions
(1) At the time of registration, the Board may
impose any condition on the foreign
practitioner in respect of the practitioner's
practice of foreign law and may at any time
by notice in writing revoke or vary any such
condition.
(2) At any time, the RPA of which a registered
foreign practitioner is a regulated
practitioner or the Board, if the practitioner
is a regulated practitioner of the Board, may
impose any condition on the foreign
practitioner in respect of the practitioner's
practice of foreign law and may at any time
by notice in writing revoke or vary any such
condition.
(3) The Board or an RPA must not impose a
condition on a foreign practitioner in respect
of their practice of foreign law that is more
onerous than it would impose on a current
practitioner or interstate practitioner in the
same or similar circumstances.
(4) An RPA that imposes, varies or revokes a
condition under this section must notify the
Board.
63N. Notification of decision
Legal Practice (Amendment) Act 1997
| s. 15 | Act No. 102/1997 |
(1) The Board must give an applicant written
notice of its decision to register the applicant
as a foreign practitioner, to refuse
registration or to impose conditions on
registration.
(2) If notice is not given to an applicant within
45 days after the applicant lodges a notice in accordance with section 63J, the Board is to be taken to have refused to register the
applicant.
63O. Effect of registration and annual fee
(1) A registered foreign practitioner is entitled to
engage in the practice of foreign law in
accordance with Division 4.
(2) A registered foreign practitioner must pay—
(a) an annual fee determined by the Board; and (b) the required contribution to the Fidelity Fund under section 202(2A) (if any). (3) The annual fee is payable on or before the
date notified in writing to the registered
foreign practitioner by the Board.
(4) The annual fee is not to be greater than the
maximum fee payable for a practising
certificate.
63P. Suspension of registered foreign
practitioner
(1) The RPA of which a registered foreign
practitioner is a regulated practitioner or the practitioner of the Board, may suspend the practitioner from engaging in the practice of foreign law, by giving written notice to the
Legal Practice (Amendment) Act 1997
Act No. 102/1997 s. 15 practitioner, if it is of the opinion that there
is sufficient reason for doing so.(2) Without limiting the grounds for suspension,
a registered foreign practitioner may be
suspended from engaging in the practice of
foreign law if—
(a) authority suspends or cancels
the practitioner's home registration result of criminal, civil or disciplinary proceedings;
(b) the practitioner fails to comply with any requirement of this Act; (c) the practitioner's registration by the authority lapses;
(d) the practitioner does not establish a practice in Victoria within a reasonable period after being registered; or (e) any condition imposed on the
the practitioner fails to comply with Act;
(f) the practitioner becomes an insolvent under administration. (3) The practitioner is not to be suspended on
the ground referred to in sub-section (2)(c) if
the practitioner demonstrates to the
satisfaction of the RPA or the Board that the
lapse did not result from any criminal, civil
or disciplinary proceedings against the
practitioner, but from circumstances beyond
the practitioner's control.
Legal Practice (Amendment) Act 1997
| s. 15 | Act No. 102/1997 |
(4) An RPA that suspends a registered foreign
practitioner under this section must also give written notice of the suspension to the Board.
(5) Subject to sub-section (6) and section 63S, a suspension under this section takes effect 28 days after the day notice is given under sub- section (1).
(6) An RPA or the Board may determine that a suspension take effect immediately notice is given under sub-section (1) if satisfied that
immediate suspension is necessary—
(a)
for the protection of the practitioner's clients or members of the public generally; or
(b)
to protect the integrity of the legal profession or the administration of justice.
63Q. Effect of suspension
(1) A registered foreign practitioner who is
suspended under section 63P is deemed not
to be registered under this Division during
the period of suspension.
(2) If an RPA or the Board is satisfied that the
grounds for the suspension do not or no
longer exist, the RPA or the Board must lift
the suspension immediately by giving
written notice to the practitioner.
(3) An RPA that lifts a suspension must also give written notice to the Board.
63R. Cancellation of registration
(1) The Board, by written notice to a registered
foreign practitioner, may cancel the
practitioner's registration if it is of the
Legal Practice (Amendment) Act 1997
Act No. 102/1997 s. 15 opinion that there is sufficient reason for
doing so.(2) Without limiting the grounds for
cancellation, registration may be cancelled
if—
(a) the practitioner's home registration authority cancels registration of the practitioner as a result of criminal, civil or disciplinary proceedings;
(b) the practitioner fails to comply with any requirement of this Act; (c) the practitioner's registration by the authority lapses;
(d) the practitioner does not establish a practice in Victoria within a reasonable period after being registered; (e) any condition imposed on the
the practitioner fails to comply with Act;
(f) the practitioner becomes an insolvent under administration. (3) Registration is not to be cancelled on the
ground referred to in sub-section (2)(c) if the
practitioner demonstrates that the lapse did
not result from any criminal, civil or
disciplinary proceedings against the
practitioner, but from circumstances beyond
the practitioner's control.
(4) Registration as a foreign practitioner is automatically cancelled if the practitioner—
(a) becomes a current practitioner; or
(b) requests cancellation.
Legal Practice (Amendment) Act 1997
| s. 15 | Act No. 102/1997 |
(5) Cancellation of registration at the request of a practitioner—
(a) takes effect when the request is received by the Board; and (b) proceedings being instituted against the
does not prevent any disciplinary any proceedings already instituted.
(6) Subject to sub-section (7) and section 63S,
cancellation of registration under sub-section
(1) takes effect 28 days after the day notice
is given to the practitioner.
(7) The Board may determine that cancellation
take effect immediately notice is given under
sub-section (1) if satisfied that immediate
cancellation is necessary—
(a) for the protection of the practitioner's clients or members of the public generally; or (b) to protect the integrity of the legal profession or the administration of justice. (8) If a practitioner's registration is cancelled, the Board may refund the whole or part of the last fee paid by the practitioner, as
determined by the Board.
63S. Application to Full Tribunal
(1) If the Board—
(a)
refuses to register a foreign practitioner under this Division; or
(b)
cancels the registration of a foreign practitioner under this Division—
Legal Practice (Amendment) Act 1997
Act No. 102/1997 s. 15 the foreign practitioner may apply to the Full Tribunal for a review of the Board's decision.
(2) If the Board or an RPA—
(a) imposes conditions on a foreign under section 63M; or
(b) suspends a registered foreign
practitioner under section 63P—the foreign practitioner may apply to the Full Tribunal for a review of the Board's decision.
(3) An application—
(a) under sub-section (1)(a) must be made within 28 days after— (i) the day notice of refusal to register is given to the applicant; or
(ii) the expiration of the 45 day period referred to in section 63N(2);
(b)
under sub-section (1)(b) or (2) must be made within 28 days after the day notice of the cancellation, imposition, variation or suspension is given to the practitioner.
(4) For the purposes of a review, the Full
Tribunal has all the powers and discretions of the Board and may—
(a) make an order—
(i) confirming the decision under
review;(ii) setting aside the decision and, in the case of a decision to refuse
Legal Practice (Amendment) Act 1997
| s. 15 | Act No. 102/1997 |
registration, directing the Board to
register the practitioner;
(iii) Board or an RPA could have
imposing any conditions that the section 63M;
(b) make any other order it thinks fit.
63T. Appeal to Court of Appeal
(1) Any party may appeal to the Court of
Appeal, on a question of law, from an order of the Full Tribunal under section 63S.
(2) If the Full Tribunal gives oral reasons for
making the relevant order and a party then
requests it to give written reasons under
section 409, the time for instituting the
appeal4 runs from the time when the party
receives the written reasons.
Division 4—Practice of foreign law5
63U. Scope of practice
(1) A registered foreign practitioner may only provide any or all of the following—
(a) legal services consisting of doing any work, or transacting any business, in Victoria concerning the law of the place in which the practitioner is
registered by their home registration
authority;(b) legal services (including appearances) in relation to arbitration proceedings in Victoria of a kind prescribed by the regulations;
(c) legal services (including appearances)
in relation to proceedings before bodies
Legal Practice (Amendment) Act 1997
Act No. 102/1997 s. 15 other than courts, being proceedings in
which the body concerned is not
required 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) mediation and other forms of
consensual dispute resolution inlegal services in relation to conciliation, regulations;
(e)
legal services consisting of advice on the effect of the law of Victoria or another Australian jurisdiction, if—
(i) the giving of the advice is practice of foreign law; and
(ii) the advice is expressly based on advice given to the practitioner by a current practitioner or interstate practitioner who is not his or her employee.
(2) Nothing in this Act authorises a registered foreign practitioner to appear in any court (except on the practitioner's own behalf) or
to engage in legal practice.
63V. Form of practice
A registered foreign practitioner may engage in the practice of foreign law—
(a)
as a foreign practitioner on the practitioner's own account; or
(b) in partnership with—
(i) other registered foreign
practitioners; or
Legal Practice (Amendment) Act 1997
| s. 15 | Act No. 102/1997 |
(ii) current practitioners; or
(iii) interstate practitioners; or(iv) any combination of (i), (ii) and (iii); or
(c) as an employee of a current firm.
63W. Letterhead and other identifying documents
(1) A registered foreign practitioner may
describe themselves and any partnership or
body corporate with which they are
associated only in one or more of the ways
designated in section 63X.
(2) In addition, a registered foreign practitioner
must indicate in each public document
distributed by them in connection with their
practice of foreign law the fact that they are
registered under this Act and that they are
restricted to the practice of foreign law.
(3) Sub-section (2) is satisfied if the practitioner includes in the document the words—
(a) "registered foreign practitioner" or
"registered foreign lawyer"; and(b) "entitled to practise foreign law only". (4) In this section, "public document" includes
any business letter, statement of account,
invoice, business card and promotional andadvertising material.
63X. Designation
(1) A registered foreign practitioner may use the following designations—
(a) the practitioner's own name;
Legal Practice (Amendment) Act 1997
Act No. 102/1997 s. 15
(b) the title or any business name that the practitioner is authorised or permitted by law to use in the place outside Australia in which the practitioner is registered by their home registration authority;
(c) any partnership or body corporate
subject to sub-section (2), the name of practitioner is affiliated or associated;
(d) partnership or body corporate in
Australia that includes legal
practitioners and registered foreign
practitioners, a description of the
if the practitioner is a member of a title used by legal practitioners and registered foreign practitioners.
(2) A registered foreign practitioner who is a
member of a partnership or body corporate outside Australia may use the name of the partnership or body corporate in engaging in
the practice of foreign law, or use the namein connection with the practice, only if—
(a)
the practitioner has provided the Board with a copy of the partnership agreement or other acceptable evidence that the practitioner is a member of the partnership or body; and
(b)
use of that name complies with any requirements of Victorian law concerning the use of business names and will not lead to any confusion with the name of any firm or incorporated practitioner.
Legal Practice (Amendment) Act 1997
| s. 15 | Act No. 102/1997 |
(3) A registered foreign practitioner 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
practitioners.
63Y. Employment of current and interstate
practitioners by foreign practitioners(1) A registered foreign practitioner may employ
one or more current practitioners or
interstate practitioners or both.
(2) Employment of a current practitioner or interstate practitioner does not entitle a registered foreign practitioner to engage in
legal practice in Victoria.
(3) Subject to sub-section (4), a current practitioner or interstate practitioner employed by a registered foreign practitioner
must not provide advice on the law of
Victoria or another Australian jurisdiction to,
or for use by, the foreign practitioner or
otherwise engage in legal practice in
Victoria in the course of that employment.(4) Sub-section (3) does not apply to a current
practitioner or interstate practitioner
employed by a firm a partner of which is a
registered foreign practitioner if at least one
other partner is a legal practitioner.
63Z. Employment of foreign practitioners by
current practitioners, interstate
practitioners and firms
(1) A current practitioner, interstate practitioner
or firm may employ one or more registered
foreign practitioners.
Legal Practice (Amendment) Act 1997
Act No. 102/1997 s. 16 (2) Employment by a current practitioner,
interstate practitioner or firm does not entitle a registered foreign practitioner to engage in legal practice in Victoria.
63ZA. Professional indemnity insurance
A registered foreign practitioner who practises foreign law in Victoria must maintain professional indemnity insurance
that contains at least the minimum terms and
conditions set by the Board under section228(1).
63ZB. Trust money
Part 6 applies to a registered foreign practitioner who receives trust money as if a reference in that Part to a legal practitioner were a reference to the registered foreign practitioner.
63ZC. Exemption by Board
(1) The Board may exempt a registered foreign
practitioner or class of registered foreign
practitioners from compliance with a
specified provision of this Act or the
regulations, or from compliance with a
specified practice rule or part of a practice
rule that would otherwise apply to the
practitioner.
(2) The Board must give notice of an exemption under sub-section (1) to each RPA as soon as practicable after giving the exemption.
(3) Each RPA must publish a copy of the notice in its next available official publication after receiving the notice.'.
16. Information for clients
Legal Practice (Amendment) Act 1997
| s. 17 | Act No. 102/1997 |
(1) In section 86(3)(a) of the Principal Act, for
"perform the work" (where twice occurring)
substitute "provide the legal services".
(2) In section 90 of the Principal Act—
(a) in sub-section (1)—
(i) in paragraph (b) for "(2)" substitute "(3)";
(ii) in paragraph (c) after "foreign company" insert ", a subsidiary of a foreign company";
(b)
in sub-section (2) for "(2)" (where secondly occurring) substitute "(3)".
17. Clerks may sign bills of costs
In section 107(2) of the Principal Act, for
paragraph (a) substitute—"(a) must be signed by—
(i) the legal practitioner; or
(ii) another legal practitioner authorised by the legal practitioner; or
(iii) an approved clerk; or".
18. Disciplinary proceedings
(1) In section 137 of the Principal Act, in the
definition of "misconduct", in paragraph (a)(iii) for "failure (whether or not wilful or reckless)" substitute "wilful or reckless failure".
(2) After section 152(3) of the Principal Act insert— "(4) The Legal Ombudsman, an RPA or the
Board must give written notice to a practitioner or firm of a decision under section 151(3)(c) or (5) not to take any further action against them.".
Legal Practice (Amendment) Act 1997
Act No. 102/1997 s. 19
(3) In section 160(1)(c) of the Principal Act—
(a)
for sub-paragraph (ii) substitute— "(ii) make an order suspending the
practitioner's practising certificate for a
period specified in the order;";
(b)
for sub-paragraph (v) substitute— "(v) in the case of an incorporated
practitioner, make an order that the
practitioner be de-registered;(vi) in the case of an interstate practitioner, make an order that the practitioner be suspended from engaging in legal practice in Victoria for a period specified in the order or an order that the practitioner be prohibited from engaging in legal practice in Victoria;".
(4) In section 169(1) of the Principal Act, for
paragraph (b) substitute—
"(b) in the case of a dispute, the Full Tribunal
may—
(i) make any order that the Tribunal could have made under Division 1 at first instance (other than an order referred to in section 134); and
(ii) make an order for costs under section 169A;".
19. New section 169A inserted
After section 169 of the Principal Act insert—
"169A. Orders for costs in disputes appeals6
(1) In an appeal under this Division in the case
of a dispute, the Full Tribunal may order the payment of the costs of and incidental to the appeal.
Legal Practice (Amendment) Act 1997
| s. 20 | Act No. 102/1997 |
(2) Subject to this section, the costs are in the discretion of the Full Tribunal.
(3) The Full Tribunal must not make an order for costs against an RPA, the Board or the Legal Ombudsman unless satisfied that
special circumstances make it appropriate to
do so.(4) The Full Tribunal may fix the amount of costs itself or order that bills of costs be assessed or settled by the registrar or deputy
registrar.".
20. Application of Part 5
In section 171 of the Principal Act for paragraph
(c) substitute—"(c) an interstate practitioner;".
21. New section 171A inserted
After section 171 of the Principal Act insert—
"171A. Application of Part to foreign practitioners
(1) Subject to this section, this Part also
applies—
(a) to a registered foreign practitioner; and
(b)
to a person who was a registered foreign practitioner engaged in the practice of foreign law when the subject-matter of the dispute or the alleged misconduct or unsatisfactory conduct occurred but who is no longer such a practitioner (in which case this Part applies as if the person were still a registered foreign practitioner)—
as if a reference in this Part to a legal
practitioner were a reference to the
registered foreign practitioner and a
Legal Practice (Amendment) Act 1997
Act No. 102/1997 s. 21 reference to engaging in legal practice were
a reference to engaging in the practice of
foreign law.(2) Despite anything to the contrary in section 151(2), the Legal Ombudsman, an RPA or the Board is not in any circumstances
obliged to bring a charge in the Tribunal against a registered foreign practitioner.
(3) In determining whether disciplinary action should be taken against a registered foreign practitioner, the body responsible for taking that action may take into account whether
the conduct of the practitioner was consistent with the standards of professional conduct of the legal profession in the practitioner's
foreign place of registration.
(4) If the Full Tribunal finds a registered foreign
practitioner guilty of misconduct it has, in addition to its other powers under section 160, the power to make an order—
(a) imposing any conditions of a kind referred to in section 63M on the practitioner; or (b) suspending the practitioner from for the period specified in the order; or
(c) cancelling the practitioner's
registration.(5) A registered foreign practitioner who is
suspended by the Tribunal is deemed not to
be registered under Part 2B during the period
of suspension.
(6) An order under sub-section (4)(c) may specify a period during which the
Legal Practice (Amendment) Act 1997
| s. 22 | Act No. 102/1997 |
practitioner may not apply to be registered
again.".
22. Trust money matters
(1) In section 173(1) of the Principal Act after
"money" (where secondly occurring) insert "that
is required to be paid to a trust account".
(2) After section 173(1) of the Principal Act insert—
"(1A) Sub-section (1) does not apply if the Board
exempts the approved clerk, legal
practitioner or firm from the requirement to
establish a trust account.".
(3) In section 174 of the Principal Act—
(a) after sub-section (2)(b) insert— "(c) in any case, if— (i) the money is in the form of a cheque payable to a person other than the legal practitioner, firm or approved clerk; or
(ii) practitioner, firm or approved
the Board has exempted the legal establish a trust account.";
(b)
in sub-section (3)(e) for "Part II" substitute "Part 3";
(c)
in sub-section (4)(c) for "Part II" substitute "Part 3".
23. New section 178 substituted
For section 178 of the Principal Act substitute—
Legal Practice (Amendment) Act 1997
Act No. 102/1997 s. 23
"178. Unqualified trust money receipt
(1) A legal practitioner (other than an
incorporated practitioner) who does not hold a practising certificate authorising the receipt of trust money must not receive trust money.
Penalty: Imprisonment for 2 years. (2) An interstate practitioner must not receive trust money unless the practitioner—
(a)
is authorised to receive trust money in the practitioner's home jurisdiction; and
(b)
has paid the required contributions (if any) to the Fidelity Fund under section 202.
Penalty: imprisonment for 2 years in the
case of a natural person;
240 penalty units in the case of a
body corporate.(3) A firm, a legal practitioner or an interstate
practitioner must not permit an employee of the firm or practitioner who does not hold a practising certificate authorising the receipt of trust money to receive trust money.
Penalty: 240 penalty units.
(4) Sub-sections (1), (2) and (3) do not apply in
the case of a receipt of money by a legal
practitioner or interstate practitioner if the
practitioner as soon as practicable after
receipt—
(a) pays the money into a trust account; or
(b)
gives the money to a legal practitioner or interstate practitioner who is authorised to receive trust money or to
Legal Practice (Amendment) Act 1997
| s. 23 | Act No. 102/1997 |
| an approved clerk and that practitioner or clerk accepts the money. |
(5) Sub-section (3) does not apply in the case of a receipt of trust money—
(a) by an employee (other than a legal practitioner or interstate practitioner) if the employee as soon as practicable after receipt— (i) pays the money into a trust account; or
(ii) practitioner or interstate
practitioner who is authorised togives the money to a legal practitioner accepts the money;
(b)
by an employee who is an interstate practitioner, if the employee—
(i) is authorised to receive trust jurisdiction; and
(ii) has paid the required contributions (if any) to the Fidelity Fund under section 202.
(6) A firm must not receive trust money unless
each partner of the firm whose principal
place of legal practice is in Victoria (other
than a partner who is a registered foreign
practitioner) holds a practising certificate
authorising the receipt of trust money.
Penalty: 240 penalty units.
Legal Practice (Amendment) Act 1997
Act No. 102/1997 s. 24 (7) An incorporated practitioner must not
receive trust money unless the practitioner
and each legal practitioner who is a director
of the practitioner hold a practising
certificate authorising the receipt of trust
money.
Penalty: 240 penalty units.
(8) A person who has been an approved clerk
must not receive trust money as an approved
clerk after ceasing to be an approved clerk.
Penalty: Imprisonment for 2 years.".
24. New section 183 substituted
For section 183 of the Principal Act substitute—
"183. Annual audit of trust accounts
(1) A person or firm that is required to maintain
a trust account must have it audited by an approved auditor in respect of each audit year in accordance with the practice rules that apply to the person or firm.
(2) For the purposes of an audit under this
section, a practitioner, a firm or an approved
clerk must—
(a)
produce for inspection by the auditor any accounting or other records relating to the practitioner's or firm's legal practice or the clerk's business; and
(b)
give the auditor any other information the auditor reasonably requires.
Penalty: 50 penalty units.
(3) For the purposes of an audit under this
section, a financial institution, despite any
duty of confidence to the contrary, must
without charge—
Legal Practice (Amendment) Act 1997
| s. 25 | Act No. 102/1997 |
(a)
produce for inspection by the auditor any records held by the financial institution relating to the trust account of, or any trust money deposited with it by, a practitioner, a firm or an approved clerk; and
(b)
provide the auditor with full details of any transactions relating to the trust account or trust money.
Penalty: 50 penalty units.
(4) An auditor may make copies of, or take
extracts from, any records or other
documents produced to the auditor in the
course of an audit.
(5) An auditor must not knowingly employ or
engage a person to assist them in the conduct
of an audit unless the person has
satisfactorily completed a course required by
the Board under section 187.
Penalty: 20 penalty units.".
25. Fidelity Fund contributions and levies
(1) In section 200(1) of the Principal Act—
(a)
for "or of registered interstate practitioners" substitute ", interstate practitioners who have established or intend to establish a practice in Victoria or registered foreign practitioners";
(b)
in paragraph (b) for "or for registration as a registered interstate practitioner" substitute "or for registration as a registered foreign
practitioner or, in the case of interstate
practitioners, notifications of establishing or
intending to establish a practice in Victoria";
Legal Practice (Amendment) Act 1997
Act No. 102/1997
(c) in paragraph (h) for "home jurisdiction" substitute "home State". (2) In section 202(1) of the Principal Act for "as a
registered interstate practitioner" substitute "as a
registered foreign practitioner".
(3) After section 202(1) of the Principal Act insert—
"(1A) An interstate practitioner—
(a)
who gives notice of establishing or intending to establish a practice in Victoria; and
(b)
who is a member of a class determined by the Board under section 200(1)—
must pay in respect of the notification the
contribution determined by the Board under
section 201(1) as the contribution payable by
members of that class.".
(4) In section 202 of the Principal Act, for sub-section
(2) substitute—
"(2) An interstate practitioner who is a member
of a class determined by the Board under contribution payable in respect of that year by members of that class.
section 200(1) must, in respect of each
calendar year in which the practitioner
engages in legal practice in Victoria after the
calendar year in which the practitioner gave
notice of establishing or intending to
establish a practice in Victoria, pay to the(2A) A registered foreign practitioner who is a
member of a class determined by the Board
under section 200(1) must, in respect of each
calendar year after the calendar year in
Legal Practice (Amendment) Act 1997
s. 25
| s. 26 | Act No. 102/1997 |
which the practitioner was registered, pay to that year by members of that class.".
the Board, for payment into the Fidelity
(5) In section 202(4) of the Principal Act after "sub-
section (2)" insert ", (2A)".
(6) In section 203(1) of the Principal Act for "or registered interstate practitioners" substitute ", interstate practitioners or registered foreign practitioners".
(7) In section 204 of the Principal Act—
(a) practitioner" substitute ", an interstate
in sub-section (1) for "or registered interstate practitioner";
(b)
in sub-section (4) for "during the whole period of their engagement in legal practice or carrying on the business of an approved clerk (as the case may be)" substitute "in total".
26. New section 207A inserted
After the heading to Division 2 of Part 7 of the
Principal Act insert—
'207A. Definitions
In this Division—
"contributing foreign practitioner" means
a foreign practitioner who has paid a
contribution or levy to the FidelityFund under Division 1;
"contributing interstate practitioner"
means an interstate practitioner who has paid a contribution or levy to the Fidelity Fund under Division 1;
Legal Practice (Amendment) Act 1997
Act No. 102/1997 s. 27 "practitioner" includes a contributing
foreign practitioner and a contributing
interstate practitioner.'.
27. Fidelity Fund claims
(1) In section 208(1) of the Principal Act—
(a)
after paragraph (c) insert— "(ca) by a contributing interstate practitioner;
or
(cb) by a contributing foreign practitioner;
or";
(b)
for paragraph (e) substitute— "(e) by a current practitioner, contributing
interstate practitioner or contributing
foreign practitioner with whom a
practitioner referred to in paragraph (a),
(c), (ca) or (cb), or a firm or any partner
of a firm referred to in paragraph (b),shares income from any business.".
(2) In section 208(2) of the Principal Act—
(a) after "(c)," insert "(ca), (cb),";
(b)
for "current practitioner" (wherever occurring) substitute "practitioner".
(3) After section 208(2) of the Principal Act insert—
"(2A) Without limiting sub-section (1), a claim lies
against the Fidelity Fund—
(a) in relation to a loss occurring wholly in Victoria from a defalcation committed (whether or not in Victoria) by a current practitioner, a contributing
Legal Practice (Amendment) Act 1997
| s. 28 | Act No. 102/1997 |
| interstate practitioner or a contributing foreign practitioner; or |
(b) in relation to a loss from a defalcation committed (whether or not in Victoria) by a current practitioner, if— (i) the loss occurred both in Victoria and another State; or
(ii) the loss occurred in Victoria or another State or both, but it cannot be determined precisely where the loss occurred; or
(c) agreement or arrangement under
in the circumstances where an payable.".
(4) In section 208(3) of the Principal Act for "current
practitioner" (wherever occurring) substitute
"practitioner".
(5) In sections 209(1) and (6), 210(1), 211(4), (5) and
(6), 213(1) and (2), 218(3) and 219(3) of the occurring) substitute "practitioner".
(6) In section 222 of the Principal Act—
(a)
in sub-section (2)(a) for "legal practitioners" substitute "practitioners";
(b)
in sub-section (3) for "legal practitioner" substitute "practitioner".
28. Professional indemnity insurance
(1) After section 224(3) of the Principal Act insert—
"(4) This section does not apply to the extent thatthe Board exempts the firm from compliance
under section 229A.".
(2) After section 225(3) of the Principal Act insert—
Legal Practice (Amendment) Act 1997
Act No. 102/1997 s. 29 "(4) This section does not apply to the extent that
the Board exempts the incorporated
practitioner from compliance under section
229A.".
(3) After section 226(3) of the Principal Act insert—
"(4) This section does not apply to the extent thatthe Board exempts the legal practitioner from compliance under section 229A.".
(4) After section 227(3) of the Principal Act insert—
"(4) This section does not apply to the extent that
the Board exempts the firm or legal
practitioner from compliance under section
229A.".
(5) In section 229(1) and (3) of the Principal Act for
"A registered interstate practitioner" substitute
"An interstate practitioner".
(6) After section 229(3) of the Principal Act insert—
"(4) This section does not apply to the extent thatthe Board exempts the interstate practitioner
from compliance under section 229A.".
29. New section 229A inserted
After section 229 of the Principal Act insert—
"229A. Exemption from insurance requirementsThe Board may exempt legal practitioners,
firms or interstate practitioners or classes of
legal practitioners, firms or interstate
practitioners from the requirement to obtain
or maintain professional indemnity insurance
or from any of the minimum terms andconditions of that insurance.".
30. Legal Practitioners' Liability Fund and Committee
Legal Practice (Amendment) Act 1997
| s. 31 | Act No. 102/1997 |
In the Principal Act—
(a)
in section 231(a) for "and legal practitioners" substitute ", legal practitioners, interstate practitioners and foreign practitioners";
(b)
in section 232(b) for "or legal practitioners" substitute ", legal practitioners, interstate practitioners or foreign practitioners";
(c) in section 236—
(i) in sub-section (1)(a) and (b) for "and legal practitioners" substitute ", legal practitioners, interstate practitioners
and foreign practitioners";
(ii) practitioner" substitute ", legal
in sub-section (4) for "or legal foreign practitioner";
(d) practitioner" substitute ", legal practitioner,
in section 246(2)(b) for "or legal practitioner".
31. Appointment of receivers
(1) In section 248 of the Principal Act—
(a) before the definition of "legal practitioner" ' "legal practice", in relation to a regulated
practitioner who is a registered foreign practitioner, means practice of foreign law;';
(b) the definition of "legal practitioner" is repealed; (c) in the definition of "property" for "legal "regulated practitioner";
Legal Practice (Amendment) Act 1997
Act No. 102/1997 s. 31
(d)
after the definition of "property" insert— ' "regulated practitioner" includes—
(a) representation) or administrator
the executor (original or by regulated practitioner or of his or her estate;
(b) the administrator, or receiver, or receiver and manager, or official manager, of the property of a regulated practitioner that is a
body corporate;(c) the liquidator of a regulated corporate that is being or has been wound up.'.
(2) In section 249(1)(c) of the Principal Act for sub-
paragraph (v) substitute—
"(v) the suspension or prohibition from engaging
in legal practice in Victoria of a regulated
practitioner who is an interstate practitioner
or the suspension or cancellation of
registration of a regulated practitioner who is
a registered foreign practitioner; or".(3) In section 249 of the Principal Act for sub-section
(2) substitute—
"(2) The Board may also apply under sub-section
(1) with respect to a regulated practitioner of
an RPA.".(4) In section 250 of the Principal Act for "legal practitioner" (wherever occurring) substitute "practitioner".
(5) In section 250 of the Principal Act, for sub-section (2) substitute—
Legal Practice (Amendment) Act 1997
| s. 31 | Act No. 102/1997 |
"(2) If the receiver appointed is—
(a) a current practitioner; or
(b) foreign practitioner (if the regulated
a current practitioner or registered practitioner)—
the Supreme Court may, by the order appointing the receiver, authorise the receiver to carry on the legal practice of the
regulated practitioner.".
(6) In section 250(3) of the Principal Act, for
paragraph (a) substitute—
"(a) authorise—(i) a current practitioner named in the order; or
(ii) foreign practitioner (if the regulated
a current practitioner or registered practitioner) named in the order—
to carry on the legal practice of the regulated practitioner on behalf of the receiver for such period and so far as it is necessary or
desirable in order to wind up the practice
properly in the interests of the practitioner'sclients; and".
(7) In section 252 of the Principal Act—
(a) in sub-section (3)—
(i) occurring) substitute "current
for "legal practitioner" (where first practitioner";
(ii) for "legal practitioner" (where secondly occurring) substitute "practitioner";
Legal Practice (Amendment) Act 1997
Act No. 102/1997 s. 32
(b) in sub-sections (4) and (5) for "legal or registered foreign practitioner".
(8) In section 257 of the Principal Act for sub-section
(4) substitute—
"(4) The Board may also apply under sub-section
(1) with respect to a regulated practitioner of
an RPA.".
32. Appointment of managers
(1) In section 278(1)(c) of the Principal Act for sub-
paragraph (v) substitute—
"(v) the suspension or prohibition from engaging
in legal practice in Victoria of a regulated
practitioner who is an interstate practitioner
or the suspension or cancellation of
registration of a regulated practitioner who is
a registered foreign practitioner; or".(2) In section 278 of the Principal Act for sub-section
(2) substitute—
"(2) The Board, in accordance with sub-section
(1), may also appoint a manager for the legal
practice of a regulated practitioner of anRPA.".
33. Incorporated practitioners
In the Principal Act—
(a)
in section 293(2) after "legal practice" insert "or the practice of foreign law, or both";
(b)
in section 295(1)(a) for "any" substitute "an";
Legal Practice (Amendment) Act 1997
| s. 34 | Act No. 102/1997 |
(c)
after section 295(1)(a) insert— "(ab) by a registered foreign practitioner who
is an employee of the incorporated
practitioner; or".
34. RPAs
In the Principal Act—
(a) in section 299(1)(a)(i) of the Principal Act for "and registered interstate practitioners" substitute ", interstate practitioners and registered foreign practitioners";
(b)
in section 308(1), (3) and (4) after "legal practitioner" insert ", interstate practitioner and registered foreign practitioner (if any)".
35. Unqualified practice and conveyancing
(1) In section 314 of the Principal Act—
(a) in sub-section (1) for paragraph (c) "(c) is an interstate practitioner (other than
an interstate practitioner who is
suspended or prohibited from engagingin legal practice in Victoria).";
(b) in sub-section (2) for paragraph (c) "(c) is an interstate practitioner (other than
an interstate practitioner who is
suspended or prohibited from engagingin legal practice in Victoria).".
(2) In section 315(1)(d) of the Principal Act after
"authority" insert "or in the performance of duties
under an appointment by the Governor in
Council".
Legal Practice (Amendment) Act 1997
Act No. 102/1997 s. 36
(3) After section 315(1)(e) of the Principal Act
insert—
"(f) a registered foreign practitioner who engages
in the practice of foreign law.".
(4) In section 317(5) of the Principal Act after
"interstate practitioner" insert "or registered
foreign practitioner".(5) In section 318(1) and (4) and section 324(1) of the
Principal Act for "a registered interstate
practitioner" substitute "an interstate
practitioner".
(6) In section 326 of the Principal Act, in the
definition of "conveyancer" for "registered
interstate practitioner" substitute "interstatepractitioner".
36. Funds
In the Principal Act—
(a)
in section 376(1), 377(1), 378(1) and 379(1) omit "on or before 30 September in";
(b) in section 380—
(i) in sub-section (1) for "On or before the prescribed date in" substitute "In";
(ii) sub-sections (2) and (3) are repealed; (c) in section 381—
(i) in sub-section (1) omit "on or before the prescribed date in";
(ii) sub-sections (2), (3) and (4) are repealed;
(d) in section 382—
(i) in sub-section (1) omit "on or before the prescribed date in";
Legal Practice (Amendment) Act 1997
| s. 37 | Act No. 102/1997 |
(ii) sub-sections (2), (3) and (4) are repealed;
(e) in section 383—
(i) in sub-section (1) omit "on or before the prescribed date in";
(ii) sub-sections (2), (3) and (4) are repealed.
37. New sections 384A and 384B inserted
After section 384 of the Principal Act insert—
"384A. Board may take into account previous
funding
(1) In determining the amounts to be credited to an account in the Public Purpose Fund or to be paid to another body under this Division, the Board may take into account—
(a) to an account, the balance of the
in the case of an amount to be credited it;
(b) in the case of an amount to be paid to another body, the extent to which any amount previously paid to the body under this Division has not been spent
or committed to expenditure.(2) Nothing in sub-section (1) limits the factors
that the Board may take into account in
determining amounts to be credited to an
account or paid to a body under this
Division.
384B. Timing of payments and instalments
Unless another provision of this Division provides to the contrary, the Board may—
Legal Practice (Amendment) Act 1997
Act No. 102/1997 s. 38
(a)
determine the timing of the crediting of an amount to an account or the payment of an amount to another body under this Division; and
(b)
credit or pay the amount in a single sum or by instalments.".
38. Further amendments to funding provisions
In the Principal Act—
(a)
in section 385 for paragraph (a) substitute— "(a) that the income of the Fidelity Fund
from contributions and levies paid or
payable under Division 1 of Part 7 is or
is likely to be insufficient to satisfy
claims made against the Fidelity Fundas and when they fall due; or";
(b) in section 389(1)—
(i) substitute "practitioner (within the
in paragraph (a) for "legal practitioner" natural person";
(ii) practitioner" substitute "a practitioner
in paragraph (b) for "an incorporated that is a body corporate";
(c) in section 390(1) for paragraph (a) "(a) that the income of the Fidelity Fund
from contributions and levies paid or
payable under Division 1 of Part 7 and
the net assets of the Fidelity Fund are
or are likely to be sufficient to satisfy
claims made against the Fidelity Fund
as and when they fall due; and";
Legal Practice (Amendment) Act 1997
| s. 39 | Act No. 102/1997 |
(d)
in section 391(3)(c) for "or 32(2)" substitute ", 32(2) or 33(4)";
(e)
in section 392(1) for "legal practitioners and firms" substitute "the RPA's regulated practitioners".
39. Constitution of Tribunal
In section 400 of the Principal Act for sub-section
(3) substitute—
"(3) Unless a party objects, in a matter before theFull Tribunal the chairperson or a deputy chairperson may sit alone for the purpose of making an interim order, giving directions or adjourning proceedings.".
40. New section 413A inserted
After section 413 of the Principal Act insert—
"413A. Interim orders
The Tribunal may make any interim orders it thinks fit in any proceedings before it.".
41. Ex-gratia payments by Legal Ombudsman
In section 430 of the Principal Act—
(a)
in sub-section (1) for "a legal practitioner or firm" substitute "a legal practitioner, an interstate practitioner, a registered foreign practitioner or a firm";
(b)
in sub-section (3)(a) for "legal practitioner" substitute "practitioner".
42. Service of notices and evidentiary matters
In the Principal Act—
(a)
in section 431(1) after "(being a natural person)" insert "or a registered foreign practitioner";
Legal Practice (Amendment) Act 1997
Act No. 102/1997 s. 43 (b) in section 431(3)—
(i) for "an incorporated practitioner" body corporate)";
(ii) in paragraphs (a) and (b) for "practitioner";
(c)
in section 435(1) after "legal practitioner" insert ", registered foreign practitioner".
43. New section 441 substituted
For section 441 of the Principal Act substitute—
"441. Who may prosecute offences?
(1) A charge against a person for an offence
under this Act (other than section 438(e)) or
the regulations may only be filed—
(a) by the Board; or
(b) by a member of the police force; or
(c)
by the Director of Public Prosecutions; or
(d)
if, at the time of the alleged offence, the person was a regulated practitioner of an RPA, by—
(i) that RPA; or
(ii) a person referred to in paragraph (a), (b) or (c).
(2) A charge against a person for an offence
under section 438(e) may only be filed by
the Board.
(3) The Board, on behalf of the Attorney-
General, may apply to the Supreme Court for
punishment of a person for a contravention
of a provision of this Act that, by force of
Legal Practice (Amendment) Act 1997
| s. 44 | Act No. 102/1997 |
this Act, constitutes a contempt of the
Supreme Court.".
44. Liability for negligence
In section 442 of the Principal Act, for sub-section
(2) substitute—"(2) A legal practitioner, registered foreign
practitioner or firm must not make any
agreement or arrangement with a client to
the effect that the practitioner or firm will
not be liable to the client for any loss or
damage caused to the client in connection
with legal services to be provided on or after
the date of the agreement or arrangement to
the client for which, but for the agreement or
arrangement, the practitioner or firm wouldbe liable.".
45. Supreme Court—limitation of jurisdiction
In section 444 of the Principal Act for "209(6),
218, 222(3)" substitute "209(6) (as amended by
section 27(5) of the Legal Practice
(Amendment) Act 1997), 218 (as amended by
section 27(5) of the Legal Practice
(Amendment) Act 1997), 222(3) (as amended by
section 27(6)(b) of the Legal Practice(Amendment) Act 1997)".
46. Amendment of Schedule 2
(1) In Schedule 2 to the Principal Act after clause 30
insert—
"30A. Expungement of records of suspensions
(1) The Society may expunge its records of the
suspension of the practising certificate of a person by
force of section 61C of the old Act if the Society is
satisfied that—
(a)
the person's failure to pay the contribution required under section 61A of the old Act by 31
Legal Practice (Amendment) Act 1997
Act No. 102/1997 s. 47 March 1996 was inadvertent or due to circumstances beyond the person's control; and
(b) the person paid that contribution by 31 December 1996. (2) The Society must notify the Board of an expungement under sub-clause (1) and, upon notification, the Board must expunge the record of the suspension in the
Register.".
(2) In Schedule 2 to the Principal Act, in clause
35(1)—
(a) after "Part 8" insert "but subject to sub- clause (3)"; (b) for "31 December 1997" substitute "31 December 1998".
(3) In Schedule 2 to the Principal Act, after clause 35(2) insert—
"(3) The Board may exempt legal practitioners or firms, or
classes of legal practitioners or firms, from the
requirement to insure with the Liability Committee
under sub-clause (1).".
(4) In Schedule 2 to the Principal Act, in clause 41(4)
for "1997" substitute "1999, unless revoked
sooner,".
47. Statute law revision
In section 93(b) of the Principal Act after "scale of" insert "costs".
48. Repeal of spent provisions
In the Principal Act, Part 20, sections 452 and 453 and Schedule 1 are repealed.
49. Consequential amendments
An Act specified in the heading to an item in the
Schedule is amended as set out in that item.
__________________
Legal Practice (Amendment) Act 1997
| Sch. | Act No. 102/1997 |
SCHEDULE
Section 49
CONSEQUENTIAL AMENDMENTS
1. Domestic Building Contracts and Tribunal Act 1995
In section 34(4)(b) for "registered interstate practitioner" substitute "interstate practitioner".
2. Evidence Act 1958
2.1 In section 21D, in the definition of "private practitioner", in
paragraph (e) for "a registered interstate practitioner"
substitute "an interstate practitioner".
2.2 In section 123C(1)(g) for "registered interstate practitioner"
substitute "interstate practitioner".
3. Legal Aid Act 1978
In section 2(1)—
(a) in the definition of "current practitioner", in substitute "an interstate practitioner";
(b)
in the definition of "private practitioner", in paragraph (a) for "a registered interstate practitioner" substitute "an interstate practitioner".
4. Small Claims Tribunals Act 1973
In section 30(3) for "registered interstate practitioner" substitute "interstate practitioner".
5. Supreme Court Act 1986
In section 3(1), in the definition of "court official", in paragraph (a) for "registered interstate practitioner" substitute "interstate practitioner".
6. Transfer of Land Act 1958
In Schedule 5A for "a registered interstate practitioner"
(wherever occurring) substitute "an interstate practitioner".
Legal Practice (Amendment) Act 1997
Act No. 102/1997 Sch.
7. Trustee Companies Act 1984
In section 20A for "registered interstate practitioner" substitute "interstate practitioner".
═══════════════
Legal Practice (Amendment) Act 1997
| Notes | Act No. 102/1997 |
NOTES
†
Minister's second reading speech—
Legislative Assembly: 16 October 1997
Legislative Council: 19 November 1997
The long title for the Bill for this Act was "to amend the Legal Practice
Act 1996 and for other purposes."
Constitution Act 1975:
Section 85(5) statement:
Legislative Assembly: 16 October 1997
Legislative Council: 19 November 1997
Absolute majorities:
Legislative Assembly: 13 November 1997 and 4 December 1997
Legislative Council: 2 December 1997
1 Section 39(2) provides similarly to this sub-section in a case of suspension
of the practising certificate.
2 Other Parts of this Act impose requirements on interstate practitioners in
relation to their legal practice in Victoria. For example, Part 6 requires interstate practitioners who establish a practice in Victoria to deal with trust money in accordance with that Part, Part 7 requires certain interstate
practitioners to contibute to the Fidelity Fund and Part 8 requires interstate practitioners to have professional indemnity insurance.
3 The provisions of Part 5, which deals with disputes and discipline, apply
generally to interstate practitioners practising in Victoria.
4 See note 6 (in the Notes to the Principal Act).
5 Section 171A provides that Part 5 (disputes and discipline) applies to
registered foreign practitioners engaged in the practice of foreign law.
6 The Full Tribunal has a similar power to order costs in relation to appeals in
disciplinary matters (see section 162).
0
0
0