Legal Practitioners Act Amendment Act 1944 (WA)

LEGAL PRACTITIONERS.

8° and 9° GEO. VI., No. XLV.

No. 45 of 1944.

AN ACT to constitute a legal practitioners' guarantee fund, and to amend sections three and six of the Legal Practitioners Act, 1893.

[Assented to 24th January, 1945.]

BE it enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Legis- lative Council and Legislative Assembly of Western Australia, in tins present Parliament assembled, and by the authority of the same, as follows:—

1. (a) This Act may be cited as the Legal Prac- Shortle

titioners Act Amendment Act, 1944, and shall be read as one with the Legal Practitioners Act, 1893 (Act No. 57 Victoria No. 12 as amended by the Acts No. 37 of 1909 and. No. 48 of 1926 and consolidated in the sessional volume of statutes for the year One thousand nine hun- dred and twenty-seven), hereinafter referred to as the principal Act.

(b) (i) The provisions of this Act relating to the ic:10er once-

Legal Practitioners' Guarantee Fund shall come into operation on a date to be fixed by proclamation.

(ii) All other provisions of this Act shall come into operation on receiving the Governor's assent.

No. 45.] Legal Practitioners. [1944.

Amendment

of s. 3 of the 2. Section three of the principal Act is hereby

principal Act. amended

(a) by adding after the definition of "certificated practitioner" the following new term and definition:—

"Fund" means the Legal Practitioners' Guarantee Fund established under Part V. of this Act.

(b) by adding after the definition of "rules" the

following new term and definition:

"Trustees" means the trustees of the fund

appointed under Part V. of this Act.

Amendment 3. Section six of the principal Act is hereby

of s. 6 of the

principal Act. amended

(a) by deleting the whole of paragraph (g) and insert- ing a new paragraph as follows:

(g) For the issue of annual practice certificates

commencing on the first day of July in every

yearly period, and for fixing an annual fee to be paid to the Board for the issue of such certificates subject, however, to the following provisions, namely:

The annual fee fixed as aforesaid shall not exceed. the sum of ten pounds.

(i)

Where an annual practice certificate is issued after the thirty-first day of December in any year the fee payable shall be one-half part only of the prescribed annual fee.

(ii)

Annual practice certificates which have been issued before and are current at the com- mencement of this paragraph shall expire on the thirtieth day of June next following the date of the commencement of this paragraph notwithstanding that but for this subpara- graph they would continue in operaulon for a period after the said thirtieth day of June : but in any such case the practitioner shall be entitled to receive from the Board a refund of that part of the annual fee paid for such certificate which bears to the whole of such fee the same ratio as the unexpired portion of the term of the certificate after the said thirtieth day of June bears to a whole year ; and

(iii)

1944.] Legal Practitioners. [No. 45.

(iv) Where an annual practice certificate is issued after the commencement of tins paragraph and before the first day of July next following the date of the commencement of this paragraph such certificate shall expire on the thirtieth day of June next following the date of the commencement of this paragraph but the amount of the fee payable in respect of such certificate shall be such amount as bears to the whole of the prescribed annual fee the same ratio as the period for which the certificate will be current bears to a whole year.

(b) by renumbering paragraph (h) of the principal

Act to stand as paragraph (p).

(c) by adding after paragraph (g) the following para-

graphs :-

(h) for prescribing the annual contributions to be paid to the fund by legal practitioners to whom this Act applies and the terms and con- ditions and the method of payment and re- covery of any such contributions, and for the apportionment of the prescribed contribution for periods less than a year ;

(i)    empowering the Board to refuse to issue any annual practice certificate under this Act until the applicant shall have paid the annual con- tribution to the fund, and has satisfied the Board that he complies with section 28A and where his trust moneys are banked, together with any levy then made by the trustees under this Act and then owing and unpaid by the applicant;

(j)	for providing for the investment of so much of the fund as is not immediately required for the purposes thereof ;
(k)	for prescribing forms of notice to be given to the trustees in relation to claims against the fund and the conditions subject to which and the extent to which the trustees may settle ally such claims without recourse being had to legal proceedings;

(1) prescribing the duties of accountants appointed

to conduct an examination of any accounts

No. 45.] Legal Practitioners. [1944.

pursuant to section twenty-eight W hereof; and prescribing also the duties of the legal practitioner or practitioners concerned in re- lation thereto and the circumstances in which such practitioner or practitioners may be re- quired to pay the costs of such examination;

(m)	for the conduct of inquiries as to the com- pliance or non-compliance by practitioners with the provisions of sections twenty-eight A, twenty-eight B, and twenty-eight C of this Act;
(n)	prescribing the terms and conditions under which any payments may be made from the fund on the death or retirement from practice of any practitioner under this Act;
(o)	providing for the appropriation towards the establishment and carrying on of a benevolent fund for the relief of distress amongst prac- titioners and their dependants of any accumu- lations of the fund beyond the sum of ten thousand pounds.

New part. 4. A new part is inserted in the principal Act to

stand as part V.

PART V.—LEGAL PRACTITIONERS' GUARANTEE FUND.

28A. (1) Every practitioner shall, so long as he carries on the practice of his profession in Western Aus- tralia, keep a trust account in a bank in Western Aus- tralia to be used exclusively for trust moneys from time to time paid to him or held by him as a practitioner or as a trustee. All moneys received for or on behalf of any person by such practitioner acting professionally or as a trustee shall be trust moneys for the purpose of this Act, and shall be held by him in trust for such person to be paid or applied as he directs and until so paid or applied all such moneys shall be paid into and retained in such trust account.

(2) The trust moneys shall not be available for the payment of the debts of any other creditor of such prac- titioner or be liable to be attached or taken in execution under the order or process of any court at the instance of any such creditor.

1944.] Legal Practitioners. [No. 45.

Nothing in -ads section shall be construed to take

away or affect any just claim or lien which any prac-

titioner may have against any trust moneys.

(3)

The bank into which trust moneys are paid by a practitioner under this section shall not be under any obligation to inquire into the application of such moneys or be in any manner liable in respect of any misapplica- tion thereof by the practitioner.

(4)

(5)

All of the provisions of this Act relating to trust funds and the audit thereof shall apply matatis mittandis to a firm of practitioners and in the case where trust moneys are paid to or held by a practitioner jointly with a person who is not a practitioner.

28B. Every practitioner shall keep an account of all trust moneys so received by him, and of all operations on such account, in such a manner as to disclose the true position in regard thereto and to enable the account to be conveniently and properly audited.

280. Any practitioner who fails to comply with the provisions of section twenty-eight A or section twenty- eight B may be dealt with under the provisions of section fifty-one of this Act, and the matter shall be subject to inquiry by the Board under the provisions of this Act if the Board shall think necessary.

28D. There is hereby established a fund, to be known The fund.

as the Legal Practitioners' Guarantee Fund.

28E. All moneys belonging to the fund shall, pending rund. to be

the investm ent or application thereof in accordance with r:ceictottinititsvcial Bank,

this Act, be paid by the trustees into a bank or banks in 'Western Australia. Such moneys shall be kept in a separate account at the bank to be entitled the "Legal Practitioners' Guarantee Fund Account."

Bow fund

28F. The fund shall consist of— made uP.

(a)	all sums paid to or on account of the fund by legal practitioners, either as an annual con- tribution or as levies in accordance with the provisions of this Part;
(b)	the interest from time to time accruing from the investment of the fund as hereinafter appearing.;

No. 45.] Legal Practitioners. [1944.

(c) all moneys recovered by the trustees of the fund

in exercise of any right ,	of action conferred
by this Act;

(d) any other moneys that may be lawfully paid

into the fund.

A Pnlieat ion

of fund. 28G. There shall from time to time be paid out of the fund as required

(a)	the amount of all claims, including costs, allowed or established against the fund as hereinafter provided ;
(b)	all legal expenses incurred in defending claims made against the fund or otherwise incurred in relation to the fund;
(c)	all premiums payable in respect of contracts of insurance entered into by the trustees in pur- suance of section twenty-eight T hereof;
(d)	all refunds made to practitioners or to their personal representatives pursuant to section twenty-eight V hereof ;
(e)	the expenses involved in the administration of the fund, including allowances to the trustees in respect of their services and their reason- able travelling expenses in connection with the management of the fund;
(f)	all other expenses properly incurred in or in- cidental to the carrying out of the provisions of this Act relating to the fund.

Annual ;tudit

of fund by	28H. The accounts of the fund shall be audited an- 281. (1) The fund shall be administered by three trustees, who shall be legal practitioners. The trustees shall be appointed as follows:—
Auditor
General.	nually by the Auditor General.

(a) one shall be appointed by the Governor;

(b) one shall be nominated in the prescribed

manner by the Barristers' Board;

(c) one shall be nominated in the prescribed manner

by the Law Society of Western Australia.

(2) The Governor shall appoint one of the trustees to be chairman. The chairman shall have a deliberative as well as a casting vote. Two trustees shall form a quorum.

1944.] Legal Practitioners. [No. 45.

(3) The trustees shall, subject as hereinafter pro- vided, hold office for three years from the date of their appointment.

(4) The trustees shall be a body corporate, with per- petual succession and a common seal under the name "The Trustees of the Legal Practitioners' Guarantee Fund," and shall be capable of acquiring and disposing of real and personal property and of suing and being sued and of entering into contracts and of doing all such acts and things as bodies corporate may by law do or suffer.

(5) A trustee shall cease to hold office if he-

(i)    becomes insane or incapable of managing his

affairs; or

(ii)    becomes bankrupt or takes any relief under the

law relating to insolvent debtors; or

(iii)    is convicted of any crime or misdemeanour.

(6) In the event of the death or resignation of a trustee during his term of office, or in the event of a trustee ceasing to hold office under the provisions of the preceding subsection, a new trustee shall be appointed or nominated by the Governor, the Board or the Law Society of Western Australia, as the case requires, to fill the vacancy so created, and shall hold office for the unexpired period of the term of office of his predecessor.

(7) If the Board or the said Society neglects for three months to appoint any trustee in pursuance of this sec- tion, then the Governor may make the appointment.

28J. (1) Except as provided in the next succeeding section every practitioner on making application in any year for a certificate under any rules prescribed pursuant to paragraph (g) of section six of this Act shall pay such contribution not exceeding ten pounds as may from time to time be prescribed for the purpose of this Act, and no such certificate shall be issued unless and until the prescribed contribution is paid. Such contribu- tion shall be in addition to any other fees payable by such practitioner.	Contribution,
to he made.
(2) (i) All sums payable by way of contribution shall be paid to the Board, which shall pay the same to the trustees of the fund.
(ii) The trustees shall apply the moneys so received in accordance with sections twenty-eight B and twenty- eight G.

No. 45.] Legal Practitioners. [1944.

Any contribution payable by a practitioner under this section and not paid shall be a debt owing to the trustees by such practitioner, and shall be recoverable at the snit of the trustees in any court of competent jurisdiction.

(3)

(4) Nothing contained in subsection (3) hereof shall affect the liability of a practitioner who neglects or fails to pay any contribution owing by him to attachment and prosecution under this Act.

No contribu-

tions while	28K. No further contributions in accordance with the last preceding section shall be made to the fund at any time while the fund including the investments thereof is not less than ten thousand pounds.
fund stands
at 10,000.
Provision for
levies where	28L. (1) If at any time the fund is not sufficient to the trustees with the consent of the Governor may impose on every legal practitioner in respect of whom this part of this Act applies for payment into the fund a levy of such amount as the trustees think fit, not ex- ceeding ten pounds.
fund in-
sufficient to	satisfy the liabilities of the trustees in relation thereto,
meet claims.

The amount of such levy shall be payable on a date and in a manner to be fixed by the trustees, and if not theretofore paid shall be paid to the Board to- gether with the next annual contribution payable to the fund pursuant to the provisions of section twenty-eight

(2)

J.

No practitioner shall be required to pay by way of levy under this section more than ten pounds in any year or more than fifty pounds during the whole period of his practice as a legal practitioner.

(3)

Any levy payable by a practitioner under this section, and not paid, shall be a debt owing to the trustees by such practitioner, and shall be recoverable at the suit of the trustees in any court of competent jurisdiction.

(4)

Nothing contained in subsection (4) hereof shall affect the liability of a practitioner who neglects or fails to pay any levy owing by him to attachment and prose- cution under this Act.

(5)

Practitioner

to register	28M. For the purpose of this Act every certificated
office and

notify	practitioner shall within the prescribed time and man-
change of
address or	ner

retirement. (a) register with the trustees the situation of or

any change of the situation of the place or

1944.] Legal Practitioners. [No. 45.

principal place where his professional office

is situate from time to time; and

(b) notify any intention on his part to retire from practice and give such other particulars in connection therewith as may be prescribed, and notwithstanding that a practitioner may have ceased actively to practice his profes- sion his liability to make payment to the fund shall continue until he gives the notice pre- scribed by this paragraph.

28N. Any moneys in the fund that are not immedi-	Investment
of moneys in

ately required for the purposes thereof may be invested	the fund.
with the Public Trustee or in any manner in which trustees are for the time being authorised to invest trust funds.

280. (1) Subject to the provisions of this Act the Purpose of

fund shall be held and applied for the purpose of reim- bursing persons who may suffer pecuniary loss by reason of theft or fraud by any certificated practitioner or by his servant or agent in respect of any money or other valu- able property entrusted to him, or to his servant or agent in the course of his practice as a practitioner in- cluding any money or other valuable property entrusted to him as a trustee : Provided that a co-trustee of a certificated practitioner shall not be deemed to be a ser- vant or agent of a certificated practitioner merely because he is a co-trustee.

Provided also that the maximum liability of the fund to any one person shall be limited where the theft or fraud occurs

before the 30th day of June, 1951, to one thousand

pounds;

in the twelve months ending the 30th day of June, 1952, to one thousand two hundred and fifty pounds;

in the twelve months ending the 30th day of June,

1953, to one thousand five hundred pounds ;

in the twelve months ending the 30th day of June, 1954, to one thousand seven hundred and fifty pounds ;

in the twelve months ending the 30th day of June,

1955, to two thousand pounds;

No. 45.] Legal Practitioners. [1944.

after the 30th day of June, 1955, to two thousand two hundred and fifty pounds.

For the purpose of the preceding proviso, where two or more persons are jointly entitled to any fund or pro- perty, they shall be considered as one person.

(2) No person shall have any claim against the fund in respect of any theft or fraud

(a)	that may be committed before the commence- ment of this Part; or
(b)	unless notice of such claim is given in. writing to the trustees within twelve months after the claimant has become aware of the theft or fraud.

Conditions on

which claim

may be 28P. (1) The trustees may receive and settle any

settled. claim against the fund at any time after the commission of the theft or fraud in respect of which such claim arose, but no person shall be entitled without leave of the trustees to commence any action in relation to the fund until the claimant has exhausted all relevant rights of action and other legal remedies available against the defaulting practitioner' or any other person in respect of the loss suffered by him.

(2)

No person shall be entitled to recover from the fund by action as aforesaid an amount greater than the balance of the loss suffered by him after deducting from the total amount of such loss the amount or value of all moneys or other benefits received or receivable by him from any source other than the fund in reduction of such loss.

(3)

No amount shall be paid or payable out of the

fund as interest on the amount of any judgment obtained

or of any claim admitted against the fund.

(4)

No right of action shall lie in relation to the fund in respect of any loss suffered by any person by reason of any theft or fraud that may be committed by a prac- titioner at any time after the claimant or his agent or any person through whom lie claims has received a notifi- cation in writing from the trustees warning him or them against the employment or continued employment of such practitioner.

(5)

No action for damages shall lie against the trustees or any member or servant of the trustees for any notifica- tion given in good faith and without malice for the pur- pose of the last preceding subsection.

1944.] Legal Practitioners. [No. 45.

28Q. In an action brought against the trustees in Tatseae,s„M

relation to the fund, all defences which would have been fiegen:rsgr,y;

available to the defaulting practitioner shall be available aai	gnst a
ciamant. any
to the trustees.

28R. On payment out of the fund of any moneys in r,f11;;',stleort

extent of such payment to all the rights and remedies of claimant against the practitioner in relation to whom the claim arose, or in the event of his death or insolvency or other disability against his personal representatives or other persons having authority to administer his estate.

settlement in whole or in part of any claim under this subrogation,

Trustees

(1) No moneys or other property belonging to the trustees or to the Board or to the Law Society of

Board and

Law Society

not liable.

Western Australia other than the fund shall be available for the satisfaction of any judgment obtained against the trustees in relation to the fund or for the payment of any claim allowed by the trustees; but if at any time the fund is not sufficient to provide for the satisfaction of all. such judgments and claims they shall to the extent to which they are not so satisfied but subject to the limi- tation prescribed in section twenty-eight 0 be charged against future accumulations of the fund.

28S.

(2)

The trustees may in their absolute discretion, hav- ing regard to the rules hereinafter set forth, determine the order in which the judgments and claims charged against the fund shall be satisfied, and may if the amount accumulated is not sufficient to satisfy all such judgments and claims in full satisfy any such judgment or claim in whole or in part.

(3) Without limiting the discretion of the trustees they may, in applying the fund towards the settlement of such judgments and claims, have regard to the fol- lowing rules

(a)

they may take into consideration the relative degrees of hardship suffered or likely to be suffered by the several claimants in the event of their claims against the fund not being satisfied in whole or in part;

(b)

claims for amounts not exceeding five hundred

pounds may, unless in special circumstances,

be satisfied in full before claims for amounts

No. 45.] Legal Practitioners. [1944.

exceeding five hundred pounds are satisfied to

a greater extent than five hundred pounds ;

(c) where all other considerations are equal claim- ants shall have priority as between themselves, according to the dates of the judgments or dates when the claims were admitted by the trustees, as the case may be.

Trustees may

obtain 28T. (1) Notwithstanding anything to the contrary in

insurance. the foregoing provisions, the trustees may in their dis- cretion enter into any contract or contracts of insurance with any company carrying on business under the Insur- ance Companies Act, 1918, in Western Australia whereby the trustees and the fund may be indemnified to the extent and in manner provided by such contract or con- tracts against liability to pay claims under this Act.

Any such contract of insurance may be entered into in relation to legal practitioners generally or in re- lation to any practitioner or practitioners named therein.

(2)

No action shall lie against the trustees, the Board, or the Law Society of Western Australia, or any mem- ber or officer of any of the said bodies for injury alleged to have been suffered by any practitioner by reason of the publication in accordance with fact of a statement that any contract of insurance entered into under this section does or does not apply with respect to such prac- titioner :

(3)

Provided that in the event of any contract of insurance being entered into in respect of any specified practitioner or practitioners, the trustees shall on the application of any other practitioner enter into a like contract of insur- ance in respect of such last-mentioned practitioner, if the insurer signifies that the insurer is willing to enter into such contract on the like terms and conditions.

In case of	2813. No claimant against the fund shall have any
claim lies

insurance no

against	right of action against any insurance company or other
company but
shall be made	person with whom a contract of insurance is made under
against the
fund.	this Part in respect of such contract, or have any right to claim any moneys paid by the insurer in accordance with any such contract of insurance; but all such moneys shall be paid into the fund and shall be applied in or towards the settlement of relevant claims.

1944.] Legal Practitioners. [No. 45.

28V. If and when the fund amounts to Ten thousand Payment to practitioner on

pounds then in the event of :—	retirement in
necessitous

(a) the death of a certificated practitioner the ease'

Trustees shall pay to his personal representa- tive a sum equal to the aggregate amount of his contributions to the fund; and

(b) the voluntary retirement from practice of a cer- tificated. practitioner the Trustees may in their discretion pay to him a sum not exceeding the aggregate amount of his contributions to the fund.

Audit.

Trustees may

28W. (1) For the purpose of safeguarding the fund established under this Part the trustees may at any time	appoint
auditor.
appoint a practising accountant to audit the accounts of any practitioner and to furnish them with a confidential report as to any irregularity in the accounts of such practitioner that may be disclosed by such examination, or as to any other matter that in the opinion of such ac- countant should in the interests of the fund be further investigated.

(2)

Every appointment made under this section shall lie in writing signed by at least two of the trustees.

(3) Upon production by such accountant of the instrument of his appointment, he may require the prac- titioner or practitioners in respect of whom the appoint- ment is made or any servant or agent of such practi- tioner or practitioners to produce to him all books, papers, accounts, securities or other documents relating to the business or accounts of such practitioner or prac- titioners, and to give all information in relation thereto that may be reasonably required of him or them, and if any such person without lawful justification or excuse, the proof whereof shall be on him, refuses or fails so to do or otherwise hinders, obstructs or delays the account- ant in the performance of his duties or the exercise of his powers under this section he shall lie guilty of an offence.

(4 No accountant appointed to make an examination of accounts for the purposes of this section shall com- municate any matter which may come to his knowledge in the course of such examination to any person except in the course of his report to the trustees.

No. 45] Legal Practitioners. [1944.

On receipt of the report the trustees shall con- sider the same, but it shall not be lawful for any trustee or any officer employed by the trustees to publish to any person any information disclosed in such report except in performance of his duty.

(5)

Every person who commits a breach of any of the provisions of this section commits an offence.

(6)

Penalty—Fifty pounds.

Accounts to 28X.

The trustees shall cause proper accounts to be kept of their administration of the fund, and shall before the thirtieth day of September in each year forward to the Minister for Justice or the Attorney General as the case may be, for presentation to Parliament a report of their proceedings and operations for the preceding twelve months.

be kept.

Appropriation

Notwithstanding anything contained in the Fines and Penalties Appropriation Act, 1909 (No. 4 of 1909), all penalties imposed in respect of any offence against this Act or the regulations from time to time made there- under shall be paid to the fund until the fund reaches the sum of ten thousand pounds, or until the Board ceases to make the annual contribution to the University of Western Australia as authorised in paragraph (ii) of section seven of this Act, whichever first happens.

of penalties. 28Y.

Citation of

Principal	5. The principal Act as amended by this Act may be
Act as

amended. cited as the Legal Practitioners Act, 1893-1944.