Legal Practitioners Act Amendment Act (No. 2) 1967 (WA)

No. 791 Legal Practitioners (No. 2). [1967.

LEGAL PRACTITIONERS (No. 2).

No. 79 of 1967.

AN ACT to amend the Legal Practitioners Act,

1893-1967.

[Assented to 11th December, 1967.]

BE it enacted by the Queen's Most Excellen&Majesty, by and with the advice and consent of the Legislative Council and the Legislative Assembly of Western Australia, in this present Parliament assembled, and by the authority of the same, as follows:—

Short title

and 1. (1) This Act may be cited as the Legal

citation. Practitioners Act Amendment Act (No. 2), 1967.

Vol. 6 of the	(2) In this Act, the Legal Practitioners Act,
Reprinted

Acts.	1893-1967, is referred to as the principal Act.
Approved
for reprint

30th Sep-	(3) The principal Act as amended by this Act
tember, 1953
and further

amended	may be cited as the Legal Practitioners Act, 1893-
by Acts	1967.
Nos. 9 of 1955, 11 of 1957,4 and 27 of 1958, 16 of 1960, 15 of 1963, 74 of 1964, 18 of 1966 and 21 of

1967.] Legal Practitioners (No. 2). [No. 79.

Commence-

This Act shall come into operation on the

day on which Part III of the Legal Contribution

Trust Act, 1967, comes into operation.

ment.

S. 1

2.

Section one of the principal Act is amended by substituting for the passage, "LEGAL PRACTITIONERS' GUARANTEE FUND, Ss. 34-58." in lines ten and eleven, the passage, "PRACTI- TIONERS' TRUST ACCOUNTS, Ss. 34-41.". emended.

3.

4. Section three of the principal Act is -mended.

amended

(a)	by deleting the interpretation, "Fund";
(b)	by adding, at the end of the interpretation, "practitioner", the passage, "and for the purposes of Part V of this Act, the expression includes a firm of practitioners";
(c)	by adding, after the interpretation, "rules", the following interpretations

"trust account" means a bank account maintained within the State, for the purpose of setting apart, and dealing with, trust moneys, pursuant to Part V of this Act;

"trust moneys" means moneys that are paid and entrusted to a practitioner or a firm of practitioners or to a clerk, servant or agent of a practitioner or firm of practitioners, in the course of legal practice for the use or benefit of a person or persons other than the practitioner or firm of practitioners, but so as to be under the exclusive control of the practitioner or firm of practitioners. ;

and

(d) by deleting the interpretation, "trustees".

5. Section six of the principal Act is amended, &m ended.

as to subsection (1),-

(a) by deleting the words, "and prescribe", in

line two; and

No. 79.] Legal Practitioners (No. 2). [1967.

(b) by deleting paragraphs (i) to (q), inclusive, and substituting the following para- graphs

(i)    prescribing all matters and things that are necessary and convenient to be prescribed for the better administration of Part V of this Act; and

(j) generally, for carrying into effect the objects of this Act. .

Part V

repealed and 6. Part V of the principal Act is repealed and

re-enacted. re-enacted with amendments, as follows

PART V-PRACTITIONERS' TRUST ACCOUNTS.

Trust

moneys to	34. (1) Every practitioner who, practising unless then dealing with them as directed by the person from whom, or for whose use or benefit, they are received, forthwith deposit them to the credit of a trust account, whether a general account or an account maintained for one or other of those persons, specifically, and there retain them, until such time as they are dealt with, as so directed or until they are otherwise dealt with according to law.
be paid to
a trust	within the State, receives trust moneys shall,
account.
(2) Trust moneys are not available for the satisfaction of any debt due to, or any claim or demand made by, a person other than the person for whose use or benefit they are received and shall not be attached or taken in execution at the instance of any other person; but nothing in this subsection affects any lien or valid claim that a practitioner may have over or against trust moneys under his control.

A reference in this Part to trust moneys received by a practitioner includes moneys received, in the course of legal practice, by a partner, clerk, servant or agent of the practi- tioner or by a practitioner with whom he shares remuneration, other than as principal and agent.

(3)

1967.] Legal Practitioners (No. 2). [No. 79.

maintains a trust account is not obliged to concerned35. (1) A bank with which a practitioner 13:glersnot

inquire into the application of moneys deposited glegtiml

to the credit of that account and is in no way have re-

liable in respect of any misapplication of those ]tigirt.

moneys.	moneys.
(2) Except as regards the operation of the account, a bank has no right of recourse against moneys standing to the credit of an account that is designated as, or is evident as being, a trust account.

Every practitioner shall maintain books ID= to of account of all trust moneys received, To2rolin deposited and disbursed or otherwise dealt with account

36.

by him, in such a manner as to disclose the true position as regards those moneys and to enable the books to be readily and conveniently audited.

37.    A practitioner who fails to comply with s:i!iietnit

the provisions of section thirty-four or thirty- with

six of this Act may be dealt with under the 34 or 36.

provisions of Part IV of this Act.

38. (1) The Board may, of its own motion 131;101nIaY tn

or at the requirement of the Legal Contribution accountant

Trust established by the Legal Contribution books of

Trust Act, 1967, at any time after giving the account

practitioner an opportunity of being heard, appoint and authorise an accountant who is registered as a company auditor under section nine of the Companies Act, 1961 (in this Part called "the examiner") to examine a practi- tioner's books of account relating to his trust account or trust accounts and to furnish the Board with a confidential report on the matters and things disclosed by the examination.

An appointment made pursuant to subsection (1) of this section shall be in writing and be signed by the Chairman or by two members of the Board.

(2)

(3)

Where an examination is authorised under this section at the requirement of the Legal Contribution Trust, the Board may require that body to defray, and it shall there- upon defray, the costs of the examination; but,

No. 79.] Legal Practitioners (No. 2). [1967.

in any event, where the report of the examiner discloses that the practitioner to whom it relates

(a)	has failed to keep his books of account in conformity with the provisions of section thirty-six of this Act; or
(b)	has contravened the provisions of this or any other Act relating to trust accounts or trust moneys,

the Board may order the practitioner to pay the costs, or any part of the costs, of the examination.

Examiner

may require	39. (1) The examiner may, upon production the practitioner to whom the appoint- ment relates or, in the event of his absence, any of the practitioner's clerks, servants or agents to produce to the examiner any books, papers and documents relating to trust moneys or trust accounts that, in the opinion of the examiner, may be reasonably necessary for the purposes of the examination; and
production

of books and of his instrument of appointment, require

documents.	(a)
(b) the manager or principal officer of a bank in which the practitioner to whom the appointment relates has deposited money, notwithstanding any law or rule of law to the contrary, to disclose every account of the practi- tioner that, in the opinion of the examiner, may be relevant to the examination and to permit the making of a copy or extracts of any such account.

(2) A person who, being required to do any- thing pursuant to subsection (1) of this section, without lawful excuse of which the proof lies on him, refuses or fails to do the thing required or who hinders or obstructs the examiner in the exercise of his powers or

1967. 1 Legal Practitioners (No. 2). [No. 79.

hinders or obstructs the examiner or any person employed by him in the performance of his duties commits an offence.

Penalty: Two hundred dollars.

Limitation

40. (1) The examiner and a person employed by the examiner shall not, except in

on dis-

closure of

matters

revealed in

the course of the examiner's report to the

the course

of examina-

Board, or any inquiry into the report, disclose

tions.

or communicate to any person any matter of which he is informed or that comes to his knowledge in the course of an examination made pursuant to this Part.

Penalty: Two hundred dollars.

(2) Where the examiner commits an offence

against subsection (1) of this section, he is, without affecting any penalty to which he may be liable under that subsection, guilty of con- duct discreditable to an auditor, within the meaning of section nine of the Companies Act, 1961.

Action on

41.

(1) Upon receipt of the examiner's report, the Board shall consider it and may, where the circumstances so require, proceed to inquire into the matters revealed by the report, under the provisions of section twenty-six of this Act.

examiner's

reports.

(2)

Where it appears from the report of the examiner that an accountant or auditor has been guilty of neglect, breach of duty or any improper conduct, the Board may communi- cate that fact to the association of which the accountant or auditor is a member.

(3)

The Board or a member or servant of the Board shall not, except

(a)	in the course of any action taken by the Board as the result of an inquiry conducted pursuant to subsection (1) of this section;
(b)	to the Attorney General or an officer of the Crown;

No. 79.] Legal Practitioners (No. 2). [1967.

(c)	to the Legal Contribution Trust; or
(d)

as otherwise provided by this section, communicate to any person any matter appear- ing in the examiner's report; and a person to whom any such matter is communicated pursuant to this section shall not, except in the course of legal proceedings, communicate it to any other person, without the authority of the Board.

Penalty: Two hundred dollars.

Practitioners

to make	42. (1) Subject to subsection (3) of this
payments

towards	section, every practitioner who, on the thirtieth
Solicitors'
Guarantee	day of June in any year following the commence-
Fund.	ment of this section, has held a practice certificate for not less than two years shall, if and when paying the fee for his next annual practice certificate, pay to the Board, for application to the Solicitors' Guarantee Fund established under the Legal Contribution Trust Act, 1967, such amount not exceeding twenty dollars, as may from time to time be prescribed.

(2)

The Board shall not issue a practice certificate to a practitioner obliged to make a payment provided by subsection (1) of this section, until the payment is made; and shall pay to the Legal Contribution Trust established under the Legal Contribution Trust Act, 1967, all moneys received by it pursuant to that subsection.

(3) A practitioner who has made five annual payments, or has paid an amount equal to five annual payments as then prescribed, under subsection (1) of this section, is exempt from the requirement of making any further payment under that subsection. .

1967.] Legal Practitioners (No. 2). [No. 79.

7. Section sixty-four of the principal Act is Welnded.

amended by substituting for the words, "of the Supreme Court and the board may from time to time make any such general order as to a majority of them seems fit for", in lines one, two and three of subsection (1), the passage, ", or a majority of the judges, and the Board may, from time to time, make a general order".