Legal Practitioners Amendment (Disciplinary and Miscellaneous Provisions) Act 1992 (WA)

WESTERN AUSTRALIA

LEG P CTITI

AMENDMENT (DISCIPLINARY

AND MISCELLANEOUS PROVISIONS) ACT 1992

No. 48 of 1992

AN ACT to amend the Legal PractWoners Act 1893, and to make a consequential amendwes t to the Consumer Affairs Act 1971.

[Assented to 10 December 1992.]

The Parliament of Western Australia enacts as follows :

No . 48]

Legal Practitioners Amendment (Disciplinary

and Miscellaneous Provisions) Act 1992

PART 1 - PRELIMINARY

Short title

1. This Act may be cited as the Legal Practitioners Amendment

(Disciplinary and Miscellaneous Provisions) Act 1992 .

Principal Act

2. In this Act, other than in Part 6, the Legal Practitioners Act

1893* is referred to as the principal Act.

[* Reprinted as approved 12 January 1981 .

For subsequent amendments see 1991 Index to

Legislation of Western Australia pp . 114-115.]

Commencement

3. The provisions of this Act come into operation -

(a)	in relation to Part 1, and to Parts 2 and 3, on such day as is fixed by proclamation ;
(b)	in relation to Part 4, on such respective days as are fixed by proclamation;
(c)	in relation to Part 5, on such day as is fixed by proclamation being a day not earlier than the day fixed in relation to section 52 ; and
(d)	in relation to Part 6, on such day as is fixed by proclamation being a day not earlier than the day fixed in relation to Part 2 .

Legal Practitioners Amendment (Disciplinary [No . 48

and Miscellaneous Provisions) Act 1992

PART 2 - DISCIPLINARY MNI I bRS

Section 3 amended

4. Section 3 of the principal Act is amended -

(a)	by deleting the definition of "Board" and substituting the following definition -

"Board" means The Legal Practice Board constituted under section 4;" ;

and

(b)	byinserting,intheirrespectiveappropriate alphabetical sequence, the following definitions -

"Complaints Committee" means the

Legal Practitioners Complaints

Committee established under

section

25 ;

"Disciplinary Tribunal" means the Legal Practitioners Disciplinary Tribunal established under Part IV ;

"Law Complaints Officer" means the

person holding or acting in the office

of that name established under

section

26 ;

"the tribunal" means the Disciplinary

Tribunal ;

No. 48]

Legal Practitioners Amendment (Disciplinary

and Miscellaneous Provisions) Act 1992

Heading to Part I amended

5. The principal Act is amended by deleting the heading to Part

I and substituting the following heading -

11 11

PART I - THE LEGAL PRACTICE BOARD

Section 4 amended

(1)

Section 4 of the principal Act is amended, in subsection

(1) --

(a)

by deleting "The Barristers' Board," and substituting the following -

The Legal Practice Board,

"; and

(b)

in paragraph (a), by deleting ", who shall be ex officio chairman of the Board" .

(2)	Section 4 of the principal Act is further amended by

inserting after subsection (1) the following sections -

(la) The body previously known as The Barristers' Board, as constituted under subsection (1) prior to the coming into operation of the Legal Practitioners Amendment (Disciplinary and Miscellaneous Provisions) Act 1992 is preserved and continued -

(a)	underthe nameThe Legal Practice Board, as the body for the purposes of subsection (1) ;

and

Legal Practitioners Amendment (Disciplinary

[No. 48

and Miscellaneous Provisions) Act 1992

(b)	so that its identity and its rights and obligations are not affected by that amendment of the subsection .

(lb) The members of The Barristers' Board shall continue to hold office as members of The Legal Practice Board, but where such a member was elected under subsection (1) (d) or appointed under subsection (2) that member shall do so only for the balance of the term for which he or she was so elected or appointed as a member of The Barristers' Board.

(3)	Section 4 of the principal Act is further amended, in

subsection (3) -

(a)	by deleting "In the absence of the Attorney-General," and substituting the following -

The chairman and the deputy chairman of the Board for the time being shall be appointed by the Board from amongst its members, but in the absence of both the chairman and the deputy chairman

and

(b)

by inserting before "Each member,"the subsection

designation

"(4)" .

(4)

Section 4 of the principal Act is further amended by adding after subsection (4) the subsection following -

(5)

Subject to the chairman, or in the absence of the chairman, a person appointed to be the deputy

No, 48]

Legal Practitioners Amendment (Disciplinary

and Miscellaneous Provisions) Act 1992

chairman of the Board has and may exercise all the

functions of the chairman of the Boa :d,

Section 6 amended

7. Section 6 of the principal Act is amended, in subsection

(1) -

(a)	by insertingafter paragraph(e) the paragraph following -

(ea) for requiring, and encouraging the maintenance of, proper professional standards in the practice of the law ;

(h)	in paragraph(f),by deleting "investigationof the conduct of practitioners with respect to the practice of their profession, and for" and substituting the collowirg -

((

supervision and investigation of the conduct of practitioners and of the practice

of the law under this Act, including

and

(c)	by inserting after paragraph (ga) the paragraphs following -

(gb) for regulating the processes and proceedings to be used in relation to conciliation and the negotiation of settlements, and for securing the attendance of persons and the production of records or other things, for the purposes of section 28B;

Legal Practitioners Amendment (Disciplinary

[No. 48

and Miscellaneous Provisions) Act 1992

(gc) for regulating all matters relevant to the functions of the Complaints Committee and, subject to the concurrence of the chairman of the. Disciplinary Tribunal, to the convening and functions of the

Disciplinary Tribunal ;

Heading to Part IV amended

8. Part IV of the principal Act is amended by deleting the heading "PART IV -SUSPENSION AND STRIKING OFF ROLL." and substituting the following heading and subheading -

PART IV - PROFESSIONAL CONDUCT

AND DISCIPLINE

Division 1 - Inquiry as to complaints

Sections 25, 25A, 26 and 27 repealed, and new sections substituted

Sections 25, 25A, 26 and 27 of the principal Act are repealed and the following sections are substituted -

The Complaints Committee

25. (1) There shall be established a committee, to be known as the Legal Practitioners Complaints Committee, the functions of which are -

(a)

to supervise the conduct of practitioners and the practice of the law ;

(b)

to receive complaints from -

(i)	the Attorney General ;

No. 48]

Legal Practitioners Amendment (Disciplinary

and Miscellaneous Provisions) Act 1992

(ii) the Board;

(iii)the Executive Directorof the Law Society of Western Australia (Inc.), in respect of matters where the making of the complaint has been authorized by a resolution of the Council of that Society ;

(iv) any practitioner; or

(v) any client of a practitioner or other complainant, or subject to section 27 (1) (d) any other person on behalf of a complainant, the complainant being a person who has or had a direct personal interest in the matters alleged in the complaint,

as to any illegal or unprofessional conduct on the part of any practitioner, whether occurring before or after admission as a practitioner, or as to any neglect, or any undue delay, in the course of the practice of the law, alleged as giving grounds for complaint;

(c)

to inquire into such complaints and, where the committee so determines whether for cause or not and whether the committee has received a complaint or not, any -

(i)	conduct on the part of a practitioner ;

(ii) matters relating to the practice of the law,

Legal Practitioners Amendment (Disciplinary

[No. 48

and Miscellaneous Provisions) Act 1992

for the purpose of determining whether it may constitute illegal or unprofessional conduct, or neglect, or undue delay in the course of the practice of the law ;

(d)

where appropriate-

(i)	to conciliate between a practitioner and a complainant or other person affected by the conduct of the practitioner; or
(ii)	to refer a matter for conciliation by the Law Society of Western Australia (Inc.) or another appropriate person or body;

(e)

with the consent of the practitioner, to exercise the summary professional disciplinary jurisdiction conferred by

section

28A ;

(f)

where appropriate, and whether or not it has conducted an enquiry, to institute -

(i)

professional disciplinary proceedings against a practitioner before the tribunal ;

(ii)	proceedingsbeforethe Supreme Court;

(g)	to supervise and direct the Law Complaints Officer in the performance of the functions of that officer; and

No. 48]

Legal Practitioners Amendment (Disciplinary

and Miscellaneous Provisions) Act 1992

(h)	to comment upon, and make recommendations in respect of, this Act and the rules made under this Act in so far as they may affect the functions of the committee .

(2) The Complaints Committee shall consist of the following members -

(a)	a chairman and not less than 6 other practitioners appointed by the Board from amongst its membership from time to time;

and

(b)	notlessthan2otherpersonsas representatives of the community, none of whom shall be a person who is or has been a practitioner.

(3) Each member of the Complaints Committee who is to hold office as a representative of the community shall -

(a)	be a person appointed as such by the Attorney General, after consultation with the Minister responsible for consumer affairs ;
(b)	hold the office, subject to this Act, for such term of not more than 3 years as may be specified in the instrument of appointment;

and

(c)	be eligible, subject to subsection (4), to be re-appointed .

Legal Practitioners Amendment (Disciplinary

[No. 48

and Miscellaneous Provisions) Act 1992

(4)

The number of persons to be appointed to the Complaints Committee as representatives of the community shall not exceed one quarter of the total membership of the Complaints Committee for the time being, and no person who has held office as such a representative for 6 years in total shall again be eligible to hold that office, or office under section 28E (1) (c), thereafter .

(5)

At any meeting of the Complaints Committee a quorum is constituted by 3 members, of whom -

(a)	2 are persons appointed under section 25 (2) (a) ; and
(b)	one is a representative of the community.

Part C of Schedule 2 shall have effect with

respect to the constitution of the Complaints

Committee .

(6)

(7)

Part D of Schedule 2 shall have effect with respect to the procedure of the Complaints Committee .

(8)	The Complaints Committee shall report -

(a)	in writing annually in accordance with section 31G, and at such other times and in such manner as may be requested, to the Attorney General ; and
(b)	at such times and in such manner as may be requested, to the Board,

on all matters relating to its functions and the operation of the provisions of this Act regulating the conduct and disciplining of practitioners, and may so report on any such matter at discretion .

No. 48]

Legal Practitioners Amendment (Disciplinary

and Miscellaneous Provisions) Act 1992

(9)

Where a report is to be made under subsection (8) any member of the Complaints Committee may request that the report include such matters as that member considers appropriate, and effect shall be given to the request.

The Law Complaints Officer

26. (1)

The Board shall, under section 8, appoint a

person in the office of Law Complaints Officer who -

(a)	shall be a person who is a legal practitioner with experience in the conduct of a legal practice; and
(b)	subject to the directions of the Complaints Committee, may exercise the functions of that committee, other than the exercise of summary professional disciplinary jurisdiction, and from time to time on its behalf and in its stead carry out its duties and exercise its powers in relation to those functions .

(2)	The Law Complaints Officer may appear at

any investigation, inquiry or hearing under this Part

either in person or by counsel.

Complaints procedure

27. (1)A complaint under this Part-

(a)	should normally be made in writing, but the Complaints Committee or the Law Complaints Officer may formulate in writing any oral complaint received ;
(b)	shall set out briefly the allegations upon which the complaint is grounded ;

Legal Practitioners Amendment (Disciplinary

[No. 48

and Miscellaneous Provisions) Act 1992

(c)

maybemadedirecttotheComplaints Committee or through the Law Complaints Officer;

(d)

may be made-

(i)	by the complainant personally;
(ii)	by a practitioner with the authority of the complainant; or

(iii) where a person who might have been a complainant has died or is otherwise unable to act, by or on behalf of that person by a personal representative or any other relative or representative of that person ;

and

(e)	may be made even though the complainant may bring proceedings in any court with respect to the same matter .

Subject to this Act, and the rules made under this Act, in the exercise of its functions the Complaints Committee may determine its own procedure and is not required to conduct any proceedings in a formal manner .

(2)

(3) The Complaints Committee is not bound by

the Rules of Evidence but may inform itself in any

manner it considers just .

Section 28 amended

10. Section 28 of the principal Act is amended by deleting "by

the Board and signed by the secretary, or other authorized

officer," and substituting the following -

11 11

under this Part,

No. 481

Legal Practitioners Amendment (Disciplinary

and Miscellaneous Provisions) Act 1992

New sections added

11. The principal Act is amended by inserting, after section 28,

the following subheading and new Division -

Division 2 - Disciplinary proceedings

Summary professional disciplinary jurisdiction

28A. (1)

The Complaints Committee shall have, and subject to the consent of the practitioner concerned may exercise, jurisdiction summarily to make a finding, arising out of an inquiry under this Part, that a practitioner has been guilty of -

(a)	illegal conduct ;

(b) unprofessional conduct; or

(c)	neglect, or undue delay, in the course of the practice of the law .

(2)

The jurisdiction of the Complaints Committee under subsection (1) includes the power to

(a)	order the practitioner to pay to the Board a fine not exceeding $500 ;
(b)	reprimand the practitioner ;
(c)	order thatthe practitionerseekand implement, within a period specified in the order, advice from the Board, or from a person specified in the order, in relation to the management and conduct of the practice, or the specific part or aspect of the practice, specified in the order ;

Legal Practitioners Amendment (Disciplinary

[No. 48

and Miscellaneous Provisions) Act 1992

(d)	orderthatthepractitioner,withinsuch limits (if any) as may be fixed by the rules, reduce or refund any fees, charges or disbursements in respect of business to which the inquiry relates ; or
(e)	order that the practitioner pay all or any specific part of the expense incurred by either or both the complainant or the Complaints Committee in relation to the inquiry.

(3)

An order of the kind referred to in subsection (2) (e) may be made, even where no finding is made against the practitioner, if the Complaints Committee is of the opinion that the conduct of the practitioner gave reasonable cause for the inquiry .

(4) An order made by the Complaints Committee may be enforced in the same manner as an order of the Court made under this Act.

(5)

An appeal lies to a judge of the Supreme

Court against any finding or order made by the

Complaints Committee under this section .

Complaints Committee may

give effect to a negotiated

settlement

28B. (1) Where the Complaints Committee is of the opinion that a complaint may be resolved by conciliation, the committee may for that purpose -

(a)	cause conferences of the persons concerned, or their representatives, to be arranged and to be presided over by a person acceptable to the committee ;

No. 481 Legal Practitioners Amendment (Disciplinary

and Miscellaneous Provisions) Act 1992

(b)

givesuchadviceandmakesuch recommendations to the persons concerned as may establish or maintain adequate communication between them and encourage them to exchange or divulge information likely to assist in the reaching of agreement; and

(c)

cause persons concerned, or any of them, either separately or together, to appear before the Law Complaints Officer or the

Complaints

Committee .

(2) Where the Complaints Committee, with the consent of each of the parties to that settlement, by order gives effect to a settlement negotiated under this Part -

(a)	thetermsof thesettlementreached between the parties referred to in the order are final and binding on those parties ;
(b)	the order may include any provision that might have been ordered by the Disciplinary Tribunal ; and
(c)	the order of the committee may be enforced as if it had been an order made by the Disciplinary Tribunal .

Evidence of anything lawfully said or done, or any record prepared and produced for the purpose of conciliation, by a person in the course of any conciliation proceedings under this Part shall not be used in any subsequent consideration of the complaint by the committee or the tribunal nor, unless that person waives the right to object, be admissible in evidence against that person in any subsequent civil proceedings concerning the subject matter of the complaint.

(3)

Legal Practitioners Amendment (Disciplinary [No

. 48

and Miscellaneous Provisions) Act 1992

References for hearing by the Disciplinary Tribunal

28C. (1) Where the Complaints Committee determines that a matter should be heard by the Disciplinary Tribunal the committee shall, by a reference in the manner prescribed by the rules, initiate proceedings against the practitioner before the Disciplinary Tribunal, and in so doing is not limited by the terms of any complaint it has received or by the subject matter of any inquiry it has conducted .

(2) Where the Complaints Committee, after inquiry, determines that a matter of complaint should neither be dealt with summarily under section 28A nor referred to the Disciplinary Tribunal -

(a)	thecommittee shallcausetheLaw Complaints Officer to give, in writing to the complainant and to the practitioner concerned, notice of that determination together with short particulars of the reasons for the determination ; and
(b)	acomplainantaggrievedbythe determination may, subject to subsection (3) and section 31, by a reference in the manner prescribed by the rules initiate proceedings against the practitioner before the Disciplinary Tribunal .

(3) Where the Complaints Committee, in its reason for the determination, specifically finds the complaint -

(a)

to be trivial, unreasonable, vexatious or

frivolous ;

No. 481 Legal Practitioners Amendment (Disciplinary

and Miscellaneous Provisions) Act 1992

(b)	to relate to conduct or events too remote in time to justify investigation ; or
(c)	to be a matter in which the complainant does not have a sufficient interest to justify the complaint,

no reference initiating proceedings before the Disciplinary Tribunal shall be made, and if made shall not be given effect, unless with the consent of the

Attorney

General .

When a reference initiating proceedings before the Disciplinary Tribunal is made in the manner prescribed by the rules the Disciplinary Tribunal shall hear and determine the matter as expeditiously as is practicable .

(4)

The Disciplinary Tribunal

28D.

(1)

For the purposes of this Part there shall be a tribunal, to be known as the Legal Practitioners Disciplinary Tribunal, and all summonses, orders and other processes issued out of that tribunal shall be stamped with the seal of the tribunal .

The function of the Disciplinary Tribunal is, in accordance with this Part, to hear and determine all matters referred to the tribunal for hearing and to make and enforce such orders in respect of those matters as seem appropriate to the tribunal .

(2)

Subject to this Act, and the rules made under

this Act, in the exercise of its function the Disciplinary

Tribunal may determine its own procedure .

(3)

(4)

The Disciplinary Tribunal is not bound by the Rules of Evidence but may inform itself in any manner it considers just .

Legal Practitioners Amendment (Disciplinary

[No. 48

and Miscellaneous Provisions) Act 1992

Composition, constitution and procedure

of the Disciplinary Tribunal

28E. (1) The Disciplinary Tribunal shall consist of

the following members -

(a)

the chairman, and a deputy chairman if appointed;

(b)

the members for the time being of the Board, other than -

(i)	those who hold office as members of the Complaints Committee ; or
(ii)	thosewho,inrelationtothe particular matter, have been participating in any endeavours at conciliation under this Part ;

and

(c)

oneormoreotherpersonsas representatives of the community, none of whom shall be a person who is or has been a practitioner or holds current office as a representative of the community in the

Complaints

Committee .

(2)

The chairman of the Disciplinary Tribunal

shall be appointed by the Governor but shall not be

eligible to be so appointed unless he or she is -

(a)	a judge of the Supreme Court ;
(b)	a former judge of the Supreme Court, the Federal Court of Australia or the High Court of Australia ; or

No. 48]

Legal Practitioners Amendment (Disciplinary

and Miscellaneous Provisions) Act 1992

(c)	apractitionerofnotlessthan8years' standing,

and shall hold office, subject to Schedule 2, for such term of not more than 3 years as may be specified in the instrument of appointment but may from time to time be re-appointed .

(3) Each member of the Disciplinary Tribunal who is to hold office as a representative, of the community shall -

(a)	be a person appointed as such by the Attorney General, after consultation with the Minister responsible for consumer affairs ;
(b)	hold office, subject to this Act, for such term of not more than 3 years as may be specified in the instrument of appointment ;

and

(c)	be eligible, subject to subsection (4), to be re-appointed .

(4) No person who has held office as a representative of the community on the tribunal for 6 years in total shall again be eligible to hold that office, or office under section 25 (2) (b), thereafter.

At any meeting of the Disciplinary Tribunal a quorum is constituted by -

(5)

(a)	the chairman or deputy chairman of the tribunal, or a person acting as chairman ;

Legal Practitioners Amendment (Disciplinary

[No. 48

and Miscellaneous Provisions) Act 1992

(b)	2 persons who are members of the tribunal by reason of their membership of the Board; and
(c)	a member appointed as representative of the community.

(6) Subject to the rules, the chairman of the Disciplinary Tribunal may -

(a)	givedirectionsgenerallyastothe procedure to be adopted to select members, and to constitute the tribunal for the purpose of hearing and determining any matter; and
(b)	select which of the members shall sit in relation to a matter, notwithstanding those directions,

and for the purposes of any matter it shall be sufficient if members constituting not less than a quorum are so selected.

(7) The Board may appoint a person to be Registrar of the Disciplinary Tribunal, who shall perform such functions as are contemplated by the rules or required by the tribunal .

Part C of Schedule 2 shall have effect with

respect to the constitution of the Disciplinary

Tribunal .

(8)

Part D of Schedule 2 shall have effect with respect of the procedure of the Disciplinary Tribunal .

(9)

No. 48]

Legal Practitioners Amendment (Disciplinary

and Miscellaneous Provisions) Act 1992

Section 29 repealed and new sections substituted

12. Section 29 of the principal Act is repealed and the following

sections are substituted -

Proceedings before the Disciplinary Tribunal

29. (1) Notice of any hearing before the Disciplinary Tribunal shall be given in the manner prescribed by the rules -

(a)	to the practitioner concerned; and
(b)	to any person concerned as complainant,

setting out the time and place of the hearing and

short particulars as to the matter to be heard .

If a person acts, or fails to act, in any way which would constitute contempt if a hearing being conducted by the tribunal were civil proceedings in the Supreme Court the tribunal may report the act, or the failure to act, to the Supreme Court and the Supreme Court may, upon motion and upon reading that report, deal with the person in any manner that would be appropriate had the person been in contempt of the Court.

(2)

Where, in any proceedings before the tribunal,

a person properly claims privilege in respect of any

information -

(3)

(a)	the tribunal may require that person to disclose the information; and
(b)	if the information is then disclosed, no question or answer relating to that information may be used in any other proceedings or be reported .

Legal Practitioners Amendment (Disciplinary

[No. 48

and Miscellaneous Provisions) Act 1992

Powers of the Disciplinary Tribunal

29A. (1) The Disciplinary Tribunal shall have jurisdiction to make a finding that a practitioner has been guilty of-

(a)	illegal conduct ;

(b) unprofessional conduct; or

(c)	neglect, or undue delay, in the course of the practice of the law .

On making a finding under subsection (1) the Disciplinary Tribunal shall have power -

(2)

(a)

to make and transmit a report thereon to the Full Court, including where appropriate a record of the evidence taken at the hearing, and pending the determination of the Court -

(i) to suspend

the practitioner from

practice; or

(ii) to restrict theentitlement of the practitioner to practise ;

(b)	todealwiththepractitionerunder subsection (3),

and may make an order as to costs and expenses in

accordance with subsection (4) .

No. 48]

Legal Practitioners Amendment (Disciplinary

and Miscellaneous Provisions) Act 1992

(3) The Disciplinary Tribunal may, pursuant to subsection (2) (b), order any one or more of the following -

(a)

thesuspensionofthepractitionerfrom practice -

(i)	for a period, not exceeding 2 years, specified in the order ; or
(ii)	until the Board is satisfied that any physical or mental disability, or any problem caused or affected by drugs or alcohol, which the tribunal has determined to have substantially and adversely affected the professional competence or reliability of the practitioner, has been overcome ;

(b)

the imposition of conditions or restrictions on the right of the practitioner to practise for a period, not exceeding 2 years, specified in the order ;

(c)

that the practitioner take advice in relation to the management and conduct of the practice, whether from the Board or a person named or approved by the Board or the Law Society of Western Australia (Inc .) ;

(d)

the payment by the practitioner to the Board of a fine not exceeding $10 000 ;

(e)

the reprimand of the practitioner ;

(f)

the practitioner,or thefirmof the practitioner -

(i)	if the client agrees, to undertake further work for the client at no cost

Legal Practitioners Amendment (Disciplinary

[No. 48

and Miscellaneous Provisions) Act 1992

or at an amount for costs and charges

to be determined by the Board ;

(ii) to pay, wholly or in part, for further work to be done for the client by another practitioner or firm of practitioners; or

(iii) to reduce or refund the amount of any fees, charges or disbursements payable or paid in respect of work done for the client, to such an extent as is ordered by the tribunal or as is to be determined by the Board ;

(g)

where it appears to the tribunal that a sum certain in money is owing or payable by the practitioner to the complainant or another person, the payment by the practitioner of that sum to the Board for the benefit of the complainant or that person;

(h)

if the conduct of thepractitioner has directly caused a person to suffer pecuniary loss and that person so requests, the payment by the practitioner to the Board for the benefit of that person compensation to be assessed by the tribunal, not exceeding such amount as may for the time being be prescribed under section 106C of the Local Courts Act 1904 as the maximum sum recoverable in respect of a liquidated demand in money in a claim heard under that Act by the Small Disputes Division, or not exceeding such greater amount as the parties to the proceedings before the tribunal may agree, subject to the person executing and lodging with the tribunal a document in a form satisfactory to the tribunal whereby that person renounces

No. 481

Legal Practitioners Amendment (Disciplinary

and Miscellaneous Provisions) Act 1992

irrevocably any right to recover from the practitioner damages by way of civil proceedings for the pecuniary loss in respect of which an order is made under this paragraph; or

on application to the tribunal being made

for that purpose by the practitioner, the Complaints Committee or the complainant, a variation of any order, or of the conditions applicable to any order, previously imposed .

The Disciplinary Tribunal may order that the practitioner pay all or part of -

(4)

(a)	the costs incurred by the party referring the matter to the tribunal, in respect of the proceedings before the tribunal; and
(b)	the expenses, including legal costs of either or both the complainant or the Complaints Committee, in respect of the inquiry,

and may do so even though a finding is not made against the practitioner, where it appears to the tribunal that the conduct of the practitioner concerned has been such as to give reasonable cause for the reference to the tribunal .

The Disciplinary Tribunal may order that any costs payable under this Part be taxed by the taxing officer of the Supreme Court, for which costs the taxing officer shall give an allocatur .

(5)

An order made by the Disciplinary Tribunal

may be enforced in the same manner as an order of

the Court made under this Act.

(6)

Legal Practitioners Amendment (Disciplinary [No . 48

and Miscellaneous Provisions) Act 1992

Where an order of the Disciplinary Tribunal is made against a practitioner under this section the Board shall revoke, suspend, refuse to issue or impose conditions on the practising certificate of that practitioner to accord with or give effect to that order .

(7)

(8)

Where the Board is directed or authorized, under subsection (3) (f), to make a determination, for the purposes of that determination the Board may require the attendance of persons and the production of records or other things, and in default may refer the matter back to the tribunal .

Appeals

29B. An appeal lies to the Full Court against any finding or order made by the Disciplinary Tribunal under this Part .

Section 30 amended

13. Section 30 of the principal Act is amended -

(a)	by inserting after the section designation"30."the subsection designation "(1)";
(b)	by deleting "Board make a report as aforesaid" and substituting the following -

Disciplinary Tribunal under section

29A (2) (a) makes and transmits a report,

(c)	by inserting after "such report shall be" the following -

taken, subject to section 29B, to be

No. 48]

Legal Practitioners Amendment (Disciplinary

and Miscellaneous Provisions) Act 1992

(d)	by deleting"Andthe"andsubstitutingthe following -

,,.

(2) The

(e)	by inserting after "such practitioner" the following -

or make any order which the Disciplinary Tribunal might make under section 29A (3)

and

(f)

by deleting "him" and substituting the following -

"	that practitioner

Section 31 repealed and new section substituted

14. Section 31 of the principal Act is repealed and the following

section substituted -

Complainant may be required to pay costs

31. (1) Where a reference is made to the Disciplinary Tribunal by a complainant under section 28C (2) (b) initiating proceedings against a practitioner the tribunal may make an order for the complainant to pay all or part of the costs of that practitioner in respect of the proceedings before the tribunal if no finding is made against the practitioner .

An order made under subsection (1) may fix the amount of the costs to be paid or provide for them to be taxed by the Taxing Officer of the Supreme Court, for which costs the taxing officer shall give an allocatur, and those costs may then be recovered as

(2)

Legal Practitioners Amendment (Disciplinary [No . 48

and Miscellaneous Provisions) Act 1992

though the order of the tribunal or the allocatur were a judgment of the Supreme Court for the payment of the sum there specified .

New subheading and sections inserted

15. The principal Act is amended by inserting, after section 31, the following subheading and new sections -

Division 3 - Provisions ancillary to

disciplinary proceedings

Protection of persons, etc .

31A. A person who, in relation to any investigation, inquiry or hearing under this Part -

(a)	performs any function under this Part ; or
(b)	is otherwiseconcernedin proceedings under this Part,

has, in respect of any such function or concern, the same protection and immunity as a member or an officer of that Court, or a witness or a party before the Court, would have in respect of a function or concern of a like nature related to the jurisdiction of the Supreme Court.

Representation of persons involved

31B. (1) Before -

(a)

the Complaints Committee-

(i)	a complainant;

No. 48]

Legal Practitioners Amendment (Disciplinary

and Miscellaneous Provisions) Act 1992

(ii) a person making a complaint on the authority of or on behalf of the complainant; or

(iii) any practitioner,

(b)	the Disciplinary Tribunal, any party to the proceedings,

may be represented by a practitioner or, subject to the approval of the chairman of the meeting, some other representative who is not a practitioner.

A representative who is not a practitioner is

not entitled to make a charge for that service, but may

be reimbursed for out of pocket expenses .

(2)

Hearings generally not to be public

31C. (1) Subject to this section, any inquiry or

hearing under this Part shall not be held in public .

(2) The Complaints Committee, or the Disciplinary Tribunal, in a particular case, or as to particular aspects of a particular case, may determine -

(a)	that any proceedings to be conducted before it under this Part shall be conducted in public; or
(b)	who, other than such persons or their representatives as this Act may require or authorize, may be present before it.

Legal Practitioners Amendment (Disciplinary

[No. 48

and Miscellaneous Provisions) Act 1992

In respect of proceedings conducted before it the Complaints Committee or the Disciplinary Tribunal may, if satisfied that it is appropriate to do so, order that -

(3)

(a)	any evidence given before it ;
(b)	any information,or any record or the contents of any record, produced or referred to before it; or
(c)	any information that might enable a person who has appeared before it to be identified,

shall not be published by any means, or shall not be published in such manner and to such persons as the order specifies, or otherwise disclosed or made available to any person or any specified person or class of persons .

(4) A person who contravenes an order made under this section shall be liable to be dealt with as though for a contempt of the Court .

The Disciplinary Tribunal shall, in respect of proceedings conducted before it, in the event of an adverse finding against a practitioner, unless it is of the opinion that the circumstances are of such a minor nature as not to so warrant, cause to be published -

(5)

(a)	the name of the practitioner ;
(b)	the nature of the finding ;
(c)	the penalty, if any, imposed; and
(d)	a summary of its reasons for its findings and including such details of the evidence that it considers helpful in understanding the nature of the case, but in doing so may

No. 48]

Legal Practitioners Amendment (Disciplinary

and Miscellaneous Provisions) Act 1992

withhold such details as it considers in the interests of the complainant should be withheld or which would prejudice the interests of any person other than the practitioner .

Powers to require production, and

the examination, of records and

to inspect practices

31D. (1) For the purposes of this Part, the Complaints Committee, or the Law Complaints Officer exercising the power of that committee, or the Disciplinary Tribunal or a member of that tribunal may -

(a)

take evidence on oath or affirmation and administer any oath or affirmation ;

(b)

summon any person to appear, or to give evidence, or to produce records or any other thing;

(c)

by notice require any practitioner or firm of practitioners to allow any member of the Disciplinary Tribunal or of the Complaints Committee, the Law Complaints Officer, or a person nominated in that notice -

(i)	to examine the conduct of any legal practice, or to inspect any record or other thing, specified, either particularly or by an appropriate general description, in that notice ;

and

(ii) forthatpurpose,toenterany premises where there is reasonable

Legal Practitioners Amendment (Disciplinary

[No. 48

and Miscellaneous Provisions; Act 1992

cause to believe that the practice is conducted or the record or other thing may be kept;

(d)

examinetherecords, includingaifiles, accounts (including the personal a -ounts of any practitioner or other person concerned in or sharing in the profits of that practice), and audit records and reports, relating to a legal practice ;

(e)

confer with, and make inquiry of, any existing or former client, accountant or auditor of a legal practice ;

(f)

in the case of any record kept otherwise than in a readily intelligible format, require a person to produce the record in a legible form or to provide an explanation of

the

record ;

(g)

make copies of, or take extracts from, any record;

(h)

take possession of and retain any record or other thing for such reasonable period as may be necessary for the purposes of this Act; and

if any record or other thing required to be

inspected under this section is not produced or delivered, require the person to whom that requirement was made known to state, to the best of the knowledge and belief of that person, where it is,

but shall endeavour to ensure that, so far as is practicable, the confidentiality of any record, and of any other thing, is not thereby prejudiced .

No. 48]

Legal Practitioners Amendment (Disciplinary

and Miscellaneous Provisions) Act 1992

(2) The Law Complaints Officer or a person nominated by the chairman of the Disciplinary Tribunal for that purpose may on behalf of the committee or tribunal take possession of, and retain or secure the retention of, any record or other thing required to be produced or delivered under this Part .

On possession of any record or other thing being taken under this section, the Law Complaints Officer shall cause notice of the taking to be given to the person from whom it was received .

(3)

Where any person from whom production of any record or other thing is required under this Part claims a lien upon it, the production of it shall be without prejudice to the lien .

(4)

A person who, being required to do anything pursuant to subsection (1), without lawful excuse of which the proof lies on that person, refuses or fails to do the thing required, or who hinders or obstructs a person exercising a power under this section, is, unless the matter is dealt with under Part IV, liable to be dealt with as though for a contempt of court .

(5)

Evidentiary material

31E. (1) In the course of any proceedings under this Part any evidence given by affidavit or statutory declaration may be received and admitted .

In all courts and before all persons or bodies authorized to receive evidence -

(2)

(a)

judicial notice shall be taken of the seal of the Disciplinary Tribunal, and of the signature of -

(i)	thechairman,andthedeputy chairman and other members,

Legal Practitioners Amendment (Disciplinary

[No. 48

and Miscellaneous Provisions) Act 1992

respectively of the Board, the Complaints Committee and the Disciplinary Tribunal ;

(ii) the Registrar of theDisciplinary Tribunal ;

(iii) the secretary to the Board ; and

(iv) the Law Complaints Officer;

(b)

a person purporting to hold office as a member of the Board, the Complaints Committee, or the Disciplinary Tribunal, or as the Registrar of the Disciplinary Tribunal, the secretary to the Board or the Law Complaints Officer, as the case may be, or to have performed any function in that capacity, shall, unless evidence to the contrary is shown, be presumed to be the lawful holder of that office and to have performed lawfully that function of the office ;

(c)

a certificate purporting to be issued by the secretary to the Board and stating that on any date or during any period specified in that certificate -

(i)	any person was the holder of an office to which that person was appointed under this Part ; or
(ii)	any person was appointed under this Act as a member of the Complaints Committee or of the Disciplinary Tribunal ;

No. 48]

Legal Practitioners Amendment (Disciplinary

and Miscellaneous Provisions) Act 1992

(d)

a document signed by -

(i)	the Law Complaints Officer; or
(ii)	the chairman of, or any 2 members present at, a meeting of the Ca rcplaints Committee ; or
(iii)	the _tegistrar of, c the chairman of, or any 2 members present at a meeting of, the Disciplinary Tribunal,

and purporting to be a record or copy of the finding, order or report of the Complaints Committee or of the Disciplinary Tribunal, respectively, or to set out the nature of the power exercised and the manner in which it was exercised, shall be admitted as a true copy of and evidence of the matters therein stated .

Interim restrictions on practice

31F. (1) The Complaints Committee may apply to the Supreme Court for an order suspending a practitioner from practice, or restricting the entitlement of a practitioner to practise, pending -

(a)

inquiry, and determination or referral of a matter, by the Complaints Committee ;

(b)

the hearing of a matter by the Disciplinary Tribunal; or

(c)

an appeal against a decision of the

Disciplinary

Tribunal .

(2)

the Supreme Court may make an order under section

58B as though it were an application by the Board .

On an application made under subsection (1),

Legal Practitioners Amendment (Disciplinary [No. 48

and Miscellaneous Provisions) Act 1992

Reports

31G. (1) In respect of the year ending on the

preceding 30 June -

(a)	the chairman of the Complaints Committee, in relation to the activities of that committee; and
(b)	the chairman of the Disciplinary Tribunal, in relation to the proceedings of that tribunal,

shall on or before 31 December in each year cause an annual report to be made and submitted in writing to the Attorney General .

(2)

The Attorney General shall cause a copy of each report submitted under subsection (1) to be laid before each House of Parliament within 14 sitting days of that House after receipt of the report .

The Board may from time to time report to the Attorney General its views as to the jurisdiction conferred and the carrying out of the functions required by this Part, or any matter connected with that jurisdiction or those functions .

(3)

Jurisdiction of the Supreme Court not affected

31H. Nothing in this Part affects the jurisdiction of the Supreme Court with respect to legal practitioners .

Section 32 repealed

16. Section 32 of the principal Act is repealed .

No. 48]

Legal Practitioners Amendment (Disciplinary

and Miscellaneous Provisions) Act 1992

New subheading inserted

17. The principal Act is amended by inserting, before section

32A, the following subheading -

Division 4 - Effect of striking off or suspension

Section 32A amended

18. Section 32A of the principal Act is amended by deleting

"Board" and substituting the following -

Disciplinary Tribunal

Section 33 amended

Section 33 of the principal Act is amended, in subsection

19.

(1), by deleting "by order of the Full Court" .

Section 58D amended

20. Section 58D of the principal Act is amended, in subsection

(1), by inserting, after "section", the following-

31F,

Section 581 amended

21. Section 581 of the principal Act is amended, in subsection

(1) (e), by inserting after "make" the following -

an order containing any other provision of a kind

referred to in section 29A (3) and

Legal Practitioners Amendment (Disciplinary

[No. 48

and Miscellaneous Provisions) Act 1992

Section 81 amended

22. Section 81 of the principal Act is amended -

(a)	by inserting, after "any rule,", the following -

or to any order of the Complaints Committee or of the Disciplinary

Tribunal,

(b)

by deleting "punished in a penalty not exceeding two thousand dollars" and substituting the following -

dealt with accordingly

"; and

(c)

by inserting, before "Board", the following -

Complaints Committee or the

Schedule 2 amended

23. Schedule 2 to the principal Act is amended by inserting the

following headings and clauses -

PART C

[sections 25(6) and 28E(8)}

Constitutional provisions relating to the Complaints Committee, or

to the Disciplinary Tribunal,

or to both

Deputy chairman

The Board may appoint a member as deputy

chairman of the Complaints Committee, who shall act

as chairman -

1 . (1)

(a)	during the incapacity or absence of the chairman of the committee ;

No. 48]

Legal Practitioners Amendment (Disciplinary

and Miscellaneous Provisions) Act 1992

(b)	if so requested by the chairman ; or
(c)

during a vacancy in the office of chairman,

and while so acting shall have, and may perform, the

functions of chairman .

(2) The Governor may appoint as deputy chairman of the Disciplinary Tribunal from time to time a person eligible for appointment under section 28E (2), who shall hold office at the pleasure of the Governor, and shall act as chairman of the tribunal -

(a)	during the incapacity or absence of the chairman;
(b)	if so requested by the chairman ; or
(c)

during a vacancy in the office of chairman,

and while so acting shall have, and may perform, the

functions of chairman .

Representatives of the community,

and their deputies

2. (1) On terms applicable to, and selected from persons eligible to be, a representative of the community one or more persons may be appointed to the Complaints Committee or the Disciplinary Tribunal, or both, as deputy representatives of the community.

(2)

With the concurrence of the chairman of the meeting, a person appointed as a deputy representative of the community may act at that meeting in the place of a representative of the

Legal Practitioners Amendment (Disciplinary

[No. 48

and Miscellaneous Provisions) Act 1992

community, and while so acting any such deputy shall have, and may perform, the functions of a representative of the community.

Removal or resignation, and leave

3. (1) Without limiting section 52 of the Interpretation Act 1984, the Attorney General may remove from office any member -

(a)

for -

(i)	neglect of duty ;

(ii) misconduct;

(iii) incompetence, including any mental or physical incapacity impairing the performance of the functions of the member; or

(b)

if -

(i)	the memberis, or becomes,an insolvent under administration within the meaning of that term under section 9 of the Corporations Law ; or
(ii)	the member has been absent from meetings, without leave, for more than 3 consecutive meetings .

(2) A member of the Complaints Committee or the Disciplinary Tribunal appointed by the Attorney General may resign office by notice in writing delivered to the Attorney General .

A reference in this clause to the office of a

member includes a reference to the office of a person

as a deputy member.

(3)

No. 48]

Legal Practitioners Amendment (Disciplinary

and Miscellaneous Provisions) Act 1992

Termination of office may be deferred

4. Notwithstanding that the term of office of a

member may have expired, a member shall continue

in the office -

(a)	until that member is re-appointed, or a successor is appointed ; and
(b)	in any event for the purpose of completing any part-hea.rd proceedings,

unless the Governor otherwise directs .

Remuneration

5. There shall be paid to -

(a)	the chairman of the Disciplinary Tribunal ;
(b)	a person for the time being holding office as deputy chairman of the tribunal ; and
(c)	persons appointed to the committee or to the tribunal as representatives of the community,

such fees and allowances as the Attorney General, after consultation with the Public Service Commissioner, may determine .

Legal Practitioners Amendment (Disciplinary

[No. 48

and Miscellaneous Provisions) Act 1992

PART D

[sections 25(7) and 28E(9)]

Procedural provisions relating

to the Complaints Committee, or

to the Disciplinary Tribunal,

or to both

Meetings

1. (1) The first meeting of the Complaints Committee shall be convened by the secretary of the Board, thereafter meetings shall be convened -

(a)	by the chairman of that committee ;
(b)	by the Law Complaints Officer; or
(c)	at such times and places as the committee determines .

(2)

Where -

(a) the chairman; or

(b) the deputy chairman,

is not present at a meeting the members who are present shall appoint one of their number to act as chairman at that meeting, and in relation to that meeting the acting chairman shall have, and may perform, the functions of chairman .

Divisions

2. (1) The Complaints Committee and the Disciplinary Tribunal may respectively sit and exercise jurisdictions as one or more Divisions where a quorum is present .

No. 48]

Legal Practitioners Amendment (Disciplinary

and Miscellaneous Provisions) Act 1992

(2) A reference in this Act, unless the context otherwise requires, to a meeting of the Complaints Committee or the Disciplinary Tribunal includes a reference to a meeting when that body is constituted as a Division .

(3) A determination made by that committee or that tribunal when sitting as a Division shall be taken to be the determination of that body as a whole

Quorum

3. (1) Where any inquiry or hearing under Part IV has been commenced and a member present at that commencement fails to continue to participate in the proceedings the determination of the matter may be completed by the remaining members if they constitute a quorum .

If an inquiry or hearing under Part IV is commenced and, upon the failure of a representative of the community to continue to participate in the proceedings, no quorum can be convened the determination of the matter may be completed by the

(2)

remaining

members .

(3) A vacancy in the membership of the Complaints Committee or of the Disciplinary Tribunal does not preclude either body from meeting, or from performing its functions, if a quorum is present .

Voting

4. (1) At any meeting of the Complaints Committee, subject to subclause (2), each member present is entitled to a deliberative vote .

Legal Practitioners Amendment (Disciplinary

[No .

and Miscellaneous Provisions) Act 1992

(2) Where the Complaints Committee is exercising the jurisdiction conferred by section 28A or determining an order under section 28B (2) only those members present who are also members of the Board shall be entitled to a deliberative vote.

At any meeting of the Disciplinary Tribunal the chairman of that meeting and each member present who is also a member of the Board is entitled to a deliberative vote .

(3)

(4) Any question shall be determined by a majority of the votes lawfully cast but when the deliberative votes cast on a question are equally divided the chairman of the meeting has also a casting vote.

The function of representatives

of the community

5. A representative of the community does not have

a deliberative vote on any question in the exercise of

disciplinary jurisdiction, but -

(a)

in all other respects, may participate fully in any meeting, whether or not being conducted as the hearing of a matter; and

(b)

may report independently, as an individual, to the Attorney General on any aspect of -

(i)	an alleged complaint ;
(ii)	anyinquiryorhearingasto disciplinary matters under this Act ;
(iii)	the rules made under this Act as they relate to disciplinary matters or the conduct of practice under this Act ; or

No. 48]

Legal Practitioners Amendment (Disciplinary

and Miscellaneous Provisions) Act 1992

(iv) theactivitiesorproceedingsof the Law Complaints Officer, the Complaints Committee or the Disciplinary Tribunal .

Records

6. (1) The member presiding at any meeting shall

cause an accurate record to be kept -

(a)	as minutes of the proceedings; and
(b)	in the case of a hearing, of the finding upon which any determination was based and of its reasons,

and a register of those records shall be maintained .

The Complaints Committee or the Disciplinary Tribunal may cause its records, or information related to any inquiry or proceeding or as to those records, to be published but shall ensure that the publication is so edited as to prevent -

(2)

(a)	the identification of persons,unless a determination to permit identifying publication has been made ; or
(b)	the revealing of confidential information .

Legal Practitioners Amendment (Disciplinary

[No. 48

and Miscellaneous Provisions) Act 1992

PART 3 - AMENDMENTS CONSEQUENTIAL ON PART 2

Section 16 amended

(b),

24. Section 16 of the principal Act is amended in paragraph

by deleting "Barristers'" .

Section 17 amended

25. Section 17 of the principal Act is amended by deleting

"Barristers'

" .

Section 19 amended

26. Section 19 of the principal Act is amended by deleting

"Barristers"' .

Section 41 amended

27. Section 41 of the principal Act is amended by deleting

"under the provisions of section twenty-six of this Act" and

substituting the following -

and may request the Complaints Committee to inquire

into the matter under Part IV

Part VI amended

28. Part VI of the principal Act is amended -

(a)	in section 58L, by deleting the definition of the term "Committee"; and

No. 481

Legal Practitioners Amendment (Disciplinary

and Miscellaneous Provisions) Act 1992

(b)

throughout sections 58L, 58M, 58P, 58R, 585, 58T, 58U, 58V, 58W, 58X, 58Y and 58ZA, except where it already appears, by inserting before "Committee" the following -

Legal Costs

Schedule 2 amended

29.	(1)	Schedule 2 to the principal Act is amended -
(a)	by deleting, opposite theheading, the reference "[sections 58M and 58R]" ;
(b)	by inserting, opposite the heading "Part A", the reference "[section 58M]" ;
(c)	in the subheading to Part A, by deleting "Committee" and substituting the following -

the Legal Costs Committee

;

(d)	by inserting, opposite the heading "Part B",the reference "[section 58R]" ;
(e)	intheheadingtoPartB,by deleting "Committee" and substituting the following -

Legal Costs Committee

"; and

(f)	throughout Part A and Part B, by inserting before "Committee" the following -

Legal Costs

Legal Practitioners Amendment (Disciplinary

[No. 48

and Miscellaneous Provisions) Act 1992

PART 4 - MISCELLANEOUS MATTERS

Section 3 amended

30.

(1)

Section 3 of the principal Act is amended by inserting

in their respective appropriate alphabetical positions the

definitions following -

"practising on their own account" in relation to a practitioner means carrying on business consisting of the provision of professional services as a practitioner, and not as an employee, whether -

(a)	alone; or
(b)	together with one or more other practitioners ;

"record" includes any book, account, file, document, paper or other source of information compiled, recorded or stored in written form, or on microfilm, or by electronic process, or in any other manner or by any

other

means ;

Section 3 of the principal Act is further amended, in the definition of "practitioner", by deleting "as a barrister, solicitor, attorney, and proctor of the Supreme Court of Western Australia, or in any one or more of these capacities and" and substituting the following -

(2)

as a barrister and solicitor of the Supreme Court of Western Australia, for the purposes of Part IV includes a person who is entitled by virtue of a law of the Commonwealth to perform in Western Australia the functions of a barrister or solicitor,

No. 481

Legal Practitioners Amendment (Disciplinary

and Miscellaneous Provisions) Act 1992

Section 6 amended

31. (1) Section 6 of the principal Act is amended, in

subsection (1) -

(a)	by repealing paragraph (h) and substitutingthe paragraph following -

(h)	for regulating the issue, review and renewal or refusal of practice certificates, the conditions to which such certificates may be made subject, and the fees to be charged ;

and

(b)	in paragraph (i) -

by deleting "necessary and convenient"

and

(i)

substituting the following -

necessary or convenient

" ; and

(ii) by deleting "Part V of this Act" and substituting the following -

this Act, other than Divisions 1 and 2

of Part VI

(2)	Section 6 of the principal Act is further amended by

adding the subsections following -

(3) required to be held by every practitioner -

Subject to section 62A, a practice certificate is

(a)	engaged in the practice of law in Western Australia, whether or not as an employee; or

Legal Practitioners Amendment (Disciplinary

[No. 48

and Miscellaneous Provisions) Act 1992

(b)	prepared, or purporting to be prepared, to be retained for reward in the practice of law in the State, otherwise than as a practitioner merely seeking a position as an employee.

(4) A practice certificate -

(a)

if issued on application by a certificated practitioner -

(i)	takes effect on 1 July next succeeding the expiry of the current certificate held by that practitioner; and
(ii)	subject to this Act, remains in force for 12 months ;

(b)

if issued on application by a person other than a certificated practitioner -

(i)	takes effect on the date on which it is issued, or on such earlier date as is determined by the Board; and
(ii)	subject to this Act, remains in force until 30 June next succeeding .

(5)

A certified practitioner shall apply for the issue of a further practice certificate -

(a)	by such date as may be prescribed for applications; or
(b)	prior to the date of expiry of the current certificate,

whichever is the earlier date, unless that practitioner has satisfied the Board that he or she is no longer engaged in the practice of law in Western Australia

No. 481 Legal Practitioners Amendment (Disciplinary

and Miscellaneous Provisions) Act 1992

and is not prepared, and does not purport to be prepared, to be retained for reward in the practice of law in the State.

Where a practitioner has not held a practice certificate, or been deemed to do so, during the 5 years preceding the application, the Board may issue a practice certificate subject to conditions or may withhold the issue of a practice certificate until satisfied as to the current fitness and competence of the applicant to practice in Western Australia, and if not so satisfied shall refuse to issue a practice certificate .

(6)

(7) A practitioner may appeal to the Supreme Court against a decision of the Board under subsection (6) to refuse to issue a practice certificate .

Section 10 substituted

32. Section 10 of the principal Act is repealed and the following

section is substituted -

Restrictions as to articled clerks

10. (1) Subject to subsection (2) and subsection (3), no practitioner shall take, have or retain an articled clerk unless that practitioner is of not less than 2 years' standing and is an individual practising on his or her own account .

The Board may, in writing and subject to such conditions as are there specified, permit a person to be articled to a practitioner, notwithstanding that the practitioner is of less than 2 years' standing as a practitioner or practises otherwise than on his or her own account.

(2)

Legal Practitioners Amendment (Disciplinary

[No. 48

and Miscellaneous Provisions) Act 1992

(3) A practitioner who -

(a)	is the Crown Solicitor of the State ;
(b)	is Director of Legal Aid, appointed under section 18 of the Legal Aid Commission Act 1976;
(c)	is authorized to act in the name of the Australian Government Solicitor, under section 55E (4) of the Judiciary Act 1903 of the Commonwealth; or
(d)	isthe RegionalGeneralCounselof the Australian Securities Commission in Western Australia,

may take, have and retain an articled clerk .

(4)

No person, other than an individual referred

to in subsection (3), shall take, have or retain more

than 2 articled clerks at any one time .

(5)	Where a practitioner -

(a)	ceases to be a person practising on his or her own account ;
(b)	is suspended from practice; or
(c)	is struck off the Roll of Practitioners,

that person shall not take, have or retain any articled

clerk .

No. 481

Legal Practitioners Amendment (Disciplinary

and Miscellaneous Provisions) Act 1992

Section 16 amended

33. Section 16 of the principal Act is amended -

(a)	in paragraph (b), by deleting "by the last preceding subsection" and substituting the following -

under this Act

"; and

(b)	by repealing the proviso .

Section 16A inserted

34. After section 16 of the principal Act the following section is

inserted -

Restrictions on entitlement to practise

16A. (1) A practitioner admitted under section

15 (2) (a) or 15 (2) (b) shall not -

(a)	be entitled to practise ; or

(b) practise,

on his or her own account until completing a term of 12 months as an employed practitioner in the office of a practitioner authorized by this Act to take, have and retain an articled clerk .

Where a person is admitted as a practitioner under section 15 (2) (c) or 15 (2) (d) the Board may, in writing, require that person to complete, after being admitted, a term of 12 months as an employed practitioner in the office of a practitioner authorized by this Act to take, have and retain an articled clerk, and a person so required shall not -

(2)

(a)	be entitled to practise ; or

Legal Practitioners Amendment (Disciplinary

[No. 48

and Miscellaneous Provisions) Act 1992

(b) practise,

on his or her own account until that requirement has

been complied with to the satisfaction of the Board

(3) A practitioner who -

(a) is bankrupt; or

(b)

applies to take the benefit of a law for the

relief of bankrupt or insolvent debtors,

shall not be entitled to practise unless the consent of the Board, which may be made subject to conditions,

is first obtained .

Section 22 amended

35. Section 22 of the principal Act is amended -

(a)	by inserting after the section designation "22." the subsection designation " (1) ';

and

(b)	by adding the subsection following -

(2) Where an applicant for admission as a practitioner is admitted to practice as a barrister or solicitor, or as a barrister and solicitor, of a superior court of -

(a)	another State or of a Territory ;
(b)	the Federal Court of Australia ;

No. 481

Legal Practitioners Amendment (Disciplinary

and Miscellaneous Provisions) Act 1992

(c)	the High Court of Australia,

the application for admission may be made by counsel on behalf of the applicant without personal attendance by the

applicant at the hearing of the application .

Section 23 amended

36. Section 23 of the principal Act is amended -

(a)	by inserting after the section designation "23." the subsection designation "(1)" ;
(b)	by deleting "Immediately after his admission every practitioner shall" and substituting the following -

((

Subject to any rule which may be made under subsection (2), every practitioner shall, immediately after being admitted,

(c)	by inserting after "Supreme Court ." the subsection following -

(2) The Supreme Court may make rules providing for the manner in which that person may -

(a)	make oath or affirmation; and
(b)	provide a signature to the Roll of Practitioners,

where, pursuant to subsection (2) of section 22, a person is admitted as a practitioner without personal attendance as applicant

9>,

at the hearing of the application .

and

Legal Practitioners Amendment (Disciplinary [No . 48

and Miscellaneous Provisions) Act 1992

(d)	bydeleting"Thesaidroll"andsubstituting the following -

(3) The Roll of Practitioners

Section 34A inserted

37. The principal Act is amended by inserting after section 34

the new section following -

The application of trust moneys to

the payment of costs, etc .

34A. A practitioner may apply trust moneys towards the payment of the costs and disbursements charged against the person for whose use or benefit the moneys are held by or under the control of the practitioner if-

(a)	that is authorised by the client under the terms on which the moneys are so held under the control of that practitioner; and
(b)	a practitioner within14days thereafter causes to be served upon that person a bill of costs in respect of those costs and disbursements showing that trust moneys have been applied by the practitioner towards the payment of those costs and

disbursements,

No . 48]

Legal Practitioners Amendment (Disciplinary

and Miscellaneous Provisions) Act 1992

Section 38 amended

38. Section 38 of the principal Act is amended -

(a)	in subsection (1) -

(i) by deleting "registered company auditor within the meaning ascribed to that expression by the Companies Act 1961" and substituting the following -

person registered as an auditor, or taken to be registered as an auditor, under Part 9 .2 of the Corporations Law

(ii) by deleting "by the Minister under the provisions of section fourteen G of the Land Agents Act 1921" and substituting the following -

for the purposes of section 72 (2) of the Real Estate and Business Agents Act 1978

and

(iii)by deleting "a practitioner's booksofaccount relating to his trust account or trust accounts" and substituting the following -

the books of account and records of a practitioner relating to any trust accounts

and

(b)	in subsection (3) (a), by deleting "his" .

Legal Practitioners Amendment (Disciplinary

[No. 48

and Miscellaneous Provisions) Act 1992

Section 40 amended

39. Section 40 (2) of the principal Act is amended, by deleting

"paragraph (b) of subsection (1) of section 30D of the Companies

(Western Australia) Code" and substituting the following -

"	section 1292 (1) (d) of the Corporations Law

Section 42A amended

40. Section 42A of the principal Act is amended -

(a)	in subsection (1) -

(i) by deleting "registered company auditor within the meaning ascribed to that expression by the Companies (Western Australia) Code" and substituting the following -

person registered as an auditor, or taken to be registered as an auditor, under Part 9.2 of the Corporations Law

(ii) by deleting "by the Minister under the provisions of section fourteen G of the Land Agents Act 1921" and substituting the following -

for the purposes of section 72 (2) of the Real Estate and Business Agents

Act 1978

;

and

(iii) bydeleting"his"andsubstitutingthe following -

that

and

No. 48]

Legal Practitioners Amendment (Disciplinary

and Miscellaneous Provisions) Act 1992

(b)	by adding the subsection following -

A practitioner who ceases to hold a practice certificate, and a person administering the estate of a deceased practitioner, shall -

(4)

(a)	deliver to the Board a certificate from an accountant which fulfils the requirements of subsection (1) in respect of any period during which the practitioner held a practice certificate and in respect of which no accountant's certificate has been received by the Board ; or
(b)	satisfy the Board that the practitioner was not required to maintain a trust

account during the relevant period .

Section 58B amended

41. Section 58B of the principal Act is amended -

(a)	in subsection (1) -

(i) by deleting "satisfied that" and substituting the following -

satisfied -

(a) that

(ii) by deleting the paragraph designation"(a)"and substituting the subparagraph designation "(i)" ;

(iii)deleting "there is a deficiency" and substituting the following -

there is, or may be, a deficiency

Legal Practitioners Amendment (Disciplinary

[No. 48

and Miscellaneous Provisions) Act 1992

(iv) by deleting the paragraph designation "(b)" and substituting the subparagraph designation "(ii)" and at the end of that subparagraph deleting the comma and substituting a semicolon ;

(v) by inserting after subparagraph (a)(ii) the following -

(b)	a practitioner is suspended from practising,

and

(vi) by deleting "his ba kers" and substituting the following -

to the bankers of that practitioner

and

(b)	insubsection(3),deleting"hisbankers"and substituting the following -

"	the bankers of that practitioner

Section 58D amended

42. Section 58D of the principal Act is amended -

(a)	in subsection (1), by deleting paragraph (c);

and

No. 48]

Legal Practitioners Amendment (Disciplinary

and Miscellaneous Provisions) Act 1992

(b)	by adding the subsections following -

(3)	Where an order to which subsection

(1) applies is made -

(a)	the supervisingsolicitor may enforce the recovery of profit costs earned by the practitioner ;
(b)	the practitioner remains liable, and the supervising solicitor shall not be liable, for debts, liabilities and professional obligations incurred, or arising out of circumstances occurring, prior to the date of the order ;

and

(c)

notwithstanding paragraph(b), the supervising solicitor may, with the consent of the Trust, pay the debts or liabilities or meet the professional obligations referred to in paragraph (b) where that is necessary or convenient for the carrying on of the practice and those sums shall be taken to form part of the proper expenses of the

supervising

solicitor .

(4) The Board, during the currency of the order, may determine -

(a)	what, if any, proportion of any profit costs recovered on account of the practitioner, or on account of the personal representative of

Legal Practitioners Amendment (Disciplinary

[No. 48

and Miscellaneous Provisions) Act 1992

the deceased practitioner, shall

be payable to that person; and

(b)

what proportion shall be paid to the Trust as a sum properly incurred by the Trust towards -

(i)

expenses of theTrust

arising under section 58C ;

(ii)

the expenses and remuneration of the supervising solicitor ; and

(iii)

there-imbursementof advances made out of the Solicitors' Guarantee Fund and not otherwise recovered .

A sum determined by the Board to be payable pursuant to paragraph (b) of subsection (4) in so far as not paid to the Trust by the supervising solicitor may be recovered by the Trust from the practitioner or the estate of the deceased practitioner (as the case may require) -

(5)

(a)	from any profit costs ; or

(b) otherwise,

as a debt determined to have been properly incurred and to be due to the Trust, and persons acting judicially shall take judicial notice of any such determination .

No. 48]

Legal Practitioners Amendment (Disciplinary

and Miscellaneous Provisions) Act 1992

Section 58E amended

43. Section 58E of the principal Act is amended, in subsection

(2)-

(a)	by deleting "of his instrument of appointment" and substituting the following -

, if so required, of the instrument by which

the appointment in respect of the practice

was made

(b)	by deleting "books, files, papers, or documents" in subparagraph (a) (i) and substituting the following -

records

"; and

(c)	by deleting "books, files, papers, documents, and other things relating to the practice, and" in paragraph (b) and substituting the following -

records or other things relating to the

practice

Section 58G amended

44. Section 58G of the principal Act is amended -

(a)	in subsection (3) -

(i) by deleting "of his instrument of appointment" and substituting the following -

, if so required, of the instrument by which the appointment in respect of the practice was made

and

Legal Practitioners Amendment (Disciplinary [No . 48

and Miscellaneous Provisions) Act 1992

(ii) in paragraph (a), by deleting "books, files, papers or documents" and substituting the following -

records

and

(b)	in subsection (4), by deleting "Penalty : Two hundred dollars" and substituting the following -

Penalty:

$2 000 " .

Section 58K amended

45. Section 58K of the principal Act is amended by deleting

11 Penalty: Two hundred dollars	" and substituting the
following -

1 t Penalty: $2 000

Sections 58Q and 58S amended

46. Section 58Q and section 58S of the principal Act are respectively amended by deleting "Board" and substituting the following -

Commissioner

Section 61 amended

47. Section 61 of the principal Act is amended -

(a)	by inserting after the section designation "61." the subsection designation "(1)" ;

No. 48]

Legal Practitioners Amendment (Disciplinary

and Miscellaneous Provisions) Act 1992

(b)	bydeleting"aforesaid"andsubstitutingthe following -

is referred to in section 59 is made

(c)

byinserting,after "theagreementshall",the following -

, subject to subsection (2),

; and

(d)	by adding the subsection following -

(2) Where any such agreement as is referred to in section 59 is entered into after the coming into operation of section 44 of the Legal Practitioners Amendment (Disciplinary and Miscellaneous Provisions) Act 1992 if -

(a)	theagreementprovidesfor payment after the completion, or partial completion, of any of the services to which the agreement relates; and
(b)	any payment becomes due under that agreement prior to the time at which that agreement would have become void under subsection (1) had this subsection not been enacted,

then, in so far as the services to which the agreement relates have been performed and payment has become due in accordance with the agreement, the agreement may be

„

enforced .

Legal Practitioners Amendment (Disciplinary

[No. 48

and Miscellaneous Provisions) Act 1992

Section 65 amended

48. Section 65 of the principal Act is amended -

(a)	in subsection(1),by deleting "signed by that practitioner,";
(b)	in subsection(2),by deleting "section66A" and substituting the following -

section 66B

(c)	in subsection (3), by deleting paragraphs (a) and (b) and substituting the following -

(a)	where the bill of costs is for a lump sum, a notice to the person charged in the following form -

Within 30 days of receipt of this account you may require me by notice in writing to provide to you an itemised account of the costs the subject of this account.

Within 30 days of receiving an itemised account, you may require me by notice in writing to submit the account to the taxing officer of the Supreme Court of Western Australia for review of the amount of costs charged to you, the subject of this account . ";

and

No. 481

Legal Practitioners Amendment (Disciplinary

and Miscellaneous Provisions) Act 1992

(b)	where the bill of costs contains detailed items, a notice to the person charged in the following form -

Within 30 days of receiving this account you may require me by notice in writing to submit the account to the taxing officer of the Supreme Court for review of the amount of costs charged to you, the subject of this account. ",

and any such notice to be given by a practitioner under this subsection shall appear on the face page of each bill of costs in a type print size of not less than 10 point .

and

(d)	by adding the subsection following -

(5) Where a lump sum bill or an itemised bill of costs does not contain adequate detail to enable the taxing officer to tax the bill, the taxing officer may -

(a)	order the practitioner to remedy the deficiency within a time specified in the order ; and
(b)	indefaultofanaccount sufficiently detailed being filed, reduce the amount of the costs that might otherwise have been certified by a proportion not

greater than 25 per cent .

Legal Practitioners Amendment (Disciplinary

[No. 48

and Miscellaneous Provisions) Act 1992

Section 68 amended

49. Section 68 of the principal Act is amended -

(a)	insubsection(1),bydeleting"parties"and substituting the following -

{(

parties,

but the bill may be remitted by the taxing officer to an officer of the court or tribunal in the jurisdiction to which the bill relates

(b)	in subsection(2),by inserting after "as to" the following -

, or for the purpose of that officer taxing,

(c)	in subsection (4), by inserting after "tribunal", where it first occurs, the following -

for a report as to the bill

"; and

(d)

by adding the subsection following -

(5)

Where the bill is remitted by the taxing officer to an officer of the court or tribunal in the jurisdiction to which the bill relates for taxing by that officer the officer has, in relation to that bill, like functions and powers to those exercisable by the taxing officer.

No. 48]

Legal Practitioners Amendment (Disciplinary

and Miscellaneous Provisions) Act 1992

Section 68A amended

50. Section 68,1 of the principal Act is amended -

(a)	in paragraph (a) -

(i) byinsertingbefore"partycharged"the following -

person or

"; and

(ii) by deleting "to his executor or administrator as the case may be" and substituting the following -

to -

(i) a person who has paid the bill to which the charge relates ;

(ii) anyotherpersonwhois authorised to administer the estate or affairs of any such person who is deceased, incapable or insolvent ;

(iii) a person liable to pay or to reimburse another for costs in a bill; or

(iv) a person who is a beneficiary of a trust estate or fund against

which costs may be chargeable;

Legal Practitioners Amendment (Disciplinary [No . 48

and Miscellaneous Provisions) Act 1992

S.5

(b)	inparagraph(b),bydeleting"hisexecutor, administrator or assignee" and substituting the following -

another person who is authorised to administer the estate or affairs of any such person who is deceased, incapable or insolvent or who is an assignee of the practitioner

(c)

in paragraph (c), by deleting "to him at his" and substituting the following -

the person at the person's

;

(d)	in paragraph (d), by deleting "in his discretion may" and substituting the following -

has a discretionary power to

and

by inserting

the

(e)	at the end of paragraph(d), following -

and

" .

Section 72 inserted

51. The principal Act is amended by inserting after section 71

the new section following -

Overpayments to be returnable

72. Where under this Division a bill of costs is taxed and as a result of that taxation the amount which has been paid or deducted in respect of that bill is more than the amount authorized by the taxation, to the

No. 481

Legal Practitioners Amendment (Disciplinary

and Miscellaneous Provisions) Act 1992

extent of the excess the person charged has a claim for repayment which may be certified and enforceable under section 70 (1) as though allowed under that subsection .

Section 79 amended

52. Section 79 of the principal Act is amended by deleting the

paragraph designated as "(5)" and substituting the paragraph

following -

(5)	practice -

(a)

under a name, or use in connection with the practice carried on by that practitioner a name, whether alone or in combination with any other name, not being -

(i)	the name of the practitioner ;
(ii)	the name of another, or of a former, certificated practitioner which the first mentioned practitioner is lawfully entitled to use in connection with the practice ;

(iii) the name of a deceased or retired partner of that practitioner or of a legal firm of which that practitioner is a partner; or

(iv)	the name of a legal firm, whether practising in Western Australia or elsewhere, or part of the name of that firm, which the practitioner or a legal firm of which the practitioner is a partner is lawfully entitled to use in connection with the practice,

Legal Practitioners Amendment (Disciplinary

[No. 48

and Miscellaneous Provisions) Act 1992

without the written consent of the Board ;

(b)	with any person other than a certificated practitioner, or purport so to be in practice ; or

Section 81 amended

53. Section 81 of the principal Act is amended by deleting "or

any section or part thereof" and substituting the following -

or to any provision of or obligation imposed by or

under this Act

Section 83 amended

54. Section 83 of the principal Act is amended by adding after

"Act" the following -

or who is aggrieved by a decision of the Board refusing

the issue or renewal of a practice certificate

No. 481

Legal Practitioners Amendment (Disciplinary

and Miscellaneous Provisions) Act 1992

PART 5 - FURTHER MISCELLANEOUS AMENDMENTS

Amendments, by way of revision

55. The principal Act is further amended, as follows -

Section 3 .

By -

(a)

in the definition of "certificated practitioner" -

(i)	deleting "who is the holder of' and substituting the following -

holding

"; and

(ii) deleting "he" and substituting the following -

the practitioner

(b)

in the definition of "practitioner" -

(i)	deleting "of this Act, the expression" ;
(ii)	inserting after "firm of practitioners" the following -

" ;

and

of which the person is a member

(iii) deleting "of this Act the expression" ;

and

(c)

in the definition of "trust account", deleting "trust, moneys, pursuant to Part V of this Act" and substituting the following -

trust moneys under Part V

Section 6 (1) .

By -

(a)

in paragraph (da) -

(i)	deleting "his" and substituting the following -

the

; and

Legal Practitioners Amendment (Disciplinary [No

. 48

and Miscellaneous Provisions) Act 1992

(ii) deleting "he" and substituting the following - 11

that person

and

(b)	in paragraph (fa), deleting "paragraph (4) of section seventy-nine" and substituting the following -

section 79 (4)

Section 7.

By repealing the section and re-enacting it with amendments, as follows -

Application of funds

7. The money received by the Board under this Act shall be applied by the Board for the purposes of this Act, which include the administration and enforcement of regulations or rules made under this Act, and for the provision and maintenance of the Law Library.

Section

9 .

By inserting after "he", in paragraph (a), the following -

or she

Section

11 .

By -

(a)	deleting "become lunatic" and substituting the following- "

be incapacitated by reason of mental disability

(b)

deleting "rolls" and substituting the following -

Roll of Practitioners

;

(c)	deleting "his" and substituting the following -

their

No. 48]

Legal Practitioners Amendment (Disciplinary

and Miscellaneous Provisions) Act 1992

(d)	deleting "or for any other reason with the consent of the Board" and substituting the following -

or where for any other reason the Board gives

consent

and

(e)	deleting "as aforesaid" .

Section 13.

By -

(a)

in subsection (1) -

(i)	deleting "to whom he is articled" in both places where it occurs and substituting the following -

with whom the articles are served

and

(ii) deleting "his partner" and substituting the following -

11 ,

a partner of that practitioner

and

(b)	in subsection (4), deleting "his consent" and substituting the following -

the consent sought

Section 14B.

By deleting "his" and substituting the following -

the

Legal Practitioners Amendment (Disciplinary [No . 48

and Miscellaneous Provisions) Act 1992

Section 14C.

By -

(a)	inserting after the section designation "14C." the subsection designation "(1)";

and

(b)	deleting "Provided that there" and substituting the following -

(2) There

Section 15.

By -

(a)	in subsection (1), inserting after "he" the following -

or she

"; and

(b)

in subsection (2) -

(i)	inserting after "as a practitioner if' the following -

11 ,

that person

(ii) in paragraphs (a), (b), (c) and (d), deleting the word "he" at the commencement of each paragraph ;

and

(iii) in paragraph (c), deleting "he is" and substituting the following -

that person was there

Section 16.

By deleting "he", in paragraph (b), and substituting the following -

the person

No. 481

Legal Practitioners Amendment (Disciplinary

and Miscellaneous Provisions) Act 1992

Section 17.

By -

(a)	deleting "set forth in subsection (b) of' and substituting the following -

as to the qualifications and fitness for admission of a

person to be admitted a practitioner referred to in

and

(b)

deleting "his" and substituting the following -

the

Section 19.

By -

(a)

inserting after the section designation "19." the subsection designation "(1)";

(b)

deleting "years prescribed in subsection (a) of section sixteen hereof:" and substituting the following -

10 years prescribed in paragraph (a) of section 16 .

and

(c)	deleting "Provided that such" and substituting the following -

(2)	For the purposes of subsection (1), the

Section 20.

By -

(a)	deleting "and until he" and substituting the following -

that person

(b)	in paragraph (b), deleting "he" and substituting the following -

the person

Legal Practitioners Amendment (Disciplinary [No . 48

and Miscellaneous Provisions) Act 1992

(c)

in paragraph (c), deleting "notice of his" and substituting the following -

a notice of

;

and

(d)

in paragraph (d) -

(i)	deleting " ; provided that this paragraph shall not apply to" and substituting the following-

except in the case of

"; and

(ii) deleting "of this Act" .

Section

21 .

By-

(a)	inserting after the section designation "21 ." the subsection designation "(1)" ;
(b)	deleting `by himself or" and substituting the following -

personally or by

,'.

(c)

deleting the colon after "admission" and substituting a full stop ; and

(d)

deleting "Provided that written" and substituting the following -

(2) A

Section 24.

By -

(a)

inserting after "Every" the following -

person who is admitted as a

' ;

and

(b)

deleting "his" and substituting the following -

that

No. 481

Legal Practitioners Amendment (Disciplinary

and Miscellaneous Provisions) Act 1992

Section 25.

By deleting "by himself or" and substituting the following -

personally or by an

Section 25A.

By deleting "his".

Section 30.

By deleting "him" and substituting the following -

11 the practitioner

Section

31 .

By deleting "his" and substituting the following -

11 11

Section

33 .

By-

(a)	in subsection (1) -

(i) deleting "he", where it first occurs, and substituting the following -

the practitioner

(ii)

deleting

"his" ;

(iii) deleting "may be. Every" and substituting the following -

requires, and each

(iv) deleting "provided that" and substituting the following -

but

Legal Practitioners Amendment (Disciplinary

[No. 48

and Miscellaneous Provisions) Act 1992

(v) inserting after "he", in the second place where it occurs, the following -

or she

and

(b)	in subsection (2) (a), deleting "documents in his possession or power" and substituting the following -

records in the possession or power of that person

Section 34.

By -

(a)	in subsection (2), deleting "his control" and substituting the following -

the control of that practitioner

and

(b)	in subsection (3), deleting "he" and substituting the following -

11 11

the practitioner

Section 36.

By deleting "him" and substituting the following -

"	that practitioner

Section 37.

By -

(a)

in subsection (1) -

(i)	deleting "or the firm of practitioners of which the practitioner is a member"; and
(ii)	in paragraph (b) -

(A)	deleting "or the firm"; and

No. 48] Legal Practitioners Amendment (Disciplinary

and Miscellaneous Provisions) Act 1992

(B)	deleting "he" and substituting the following-
11

the practitioner

(b)

in subsection (3) -

(i)	deleting "he" ; and
(ii)	deleting "his intention to deal" and substituting the following -

the intention of that practitioner in dealing

and

(c)

in subsection (4), deleting "he" and substituting the following -

the practitioner

Section	39 .
By -

(a)

in subsection (1) -

(i)	deleting "his", where it first occurs, and substituting the following -

the written

"; and

(ii) in paragraph (a), deleting "his absence" and substituting the following -

the absence of that practitioner

and

(b)

in subsection (2) -

(i)	deleting "him", where it first occurs, and substituting the following -

11 11

that person

;

(ii) deleting "his powers" and substituting the fol owing -

any power under this Act

Legal Practitioners Amendment (Disciplinary

[No. 48

and Miscellaneous Provisions) Act 1992

(iii) deleting "him", in the second place where it occurs, and substituting the following -

the examiner

"; and

(iv) deleting "his duties" and substituting the following -

any duty under this Act

Section 40.

By-

(a)

in subsection (1) -

(i)	deleting "The examiner and a person employed by" and substituting the following -

"	A person who is, or is employed by,

(ii) deleting "he" and substituting the following -

the person

' ;

and

(iii) deleting "his knowledge" and substituting the following -

the knowledge of that person

and

(b)

in subsection (2), deleting "he", in both places where it occurs, and substituting the following -

the examiner

Section 42 (1) .

By deleting "his next" and substituting the following -

11 11

any succeeding

Section 58A.

By deleting the definition of "section" .

No. 48] Legal Practitioners Amendment (Disciplinary

and Miscellaneous Provisions) Act 1992

Section 58C.

By -

(a)	in subsection (1), inserting a comma after "died" ;

and

(b)	in subsection (2), deleting "his bankers" and substituting the following -

the bankers of that practitioner

Section 58E (2).

By -

(a)	deleting "of his", in subparagraph (a) (i) ;
(b)	inserting after "agents", where it first occurs in subparagraph (a) (i), the following-

of the practitioner

(c)	deleting "his personal representative" and substituting the following -

the personal representative

and

(d)	in paragraph (b), deleting "his" .

Section 58F.

By -

(a)

in paragraph (a), deleting "to him or as he directs" and substituting the following -

to the supervising solicitor or as may be directed

and

(b)

in paragraph (b), deleting "he" and substituting the following -

the Judge

Legal Practitioners Amendment (Disciplinary

[No. 48

and Miscellaneous Provisions) Act 1992

Section 58G.

By -

(a)

in subsection (1), deleting "his practice" and substituting the following -

11 ,

the practice carried on by that other practitioner

(b)

in subsection (3) -

(i)	deleting "of his" in paragraph (a) ; and
(ii)	inserting after "agents" the following -

of the practitioner

and

(c)

in subsection (4) -

(i)	deleting "him", where it first occurs, and substituting the following -

11 11

that person

;

(ii) deleting "his powers" and substituting the following -

any power under this Act

;

deleting "hum", in the second place where it occurs, and

substituting the following -

the Board's appointee

'; and

(iv) deleting "his duties" and substituting the following -

any duty

Section 58H.

By deleting "of the Board's appointee" and substituting the following -

from the practitioner appointed under section 58G

No. 48]

Legal Practitioners Amendment (Disciplinary

and Miscellaneous Provisions) Act 1992

Section 581.

By -

(a)

in subsection (1) -

(i)	deleting "his practice" and substituting the following -

the practice carried on by that practitioner

and

(ii) in paragraph (b), deleting "his bankers" and substituting the following -

the bankers of that practitioner

and

(b)	in subsection (4), deleting "his bankers" and substituting the following -

the bankers of that practitioner

Section 58J.

By deleting, in paragraph (a), "paragraphs (a), (b) and (c), of' .

Section 58N (2) .

By -

(a)

in paragraphs (a) and (b), deleting "to him" in each place where it

occurs ;

and

(b)

in paragraph (b) -

(i)	deleting "he", where it first occurs, and substituting the following -

the Attorney General

'; and

(ii) deleting "he", in the second place where it occurs, and substituting the following -

the person

Legal Practitioners Amendment (Disciplinary

[No. 48

and Miscellaneous Provisions) Act 1992

Section 580.

By -

(a)

deleting "to him", where it first occurs, and substituting the following -

to that person

(b)

deleting "to him", in the second place where it occurs ;

and

(c)

deleting

"his" .

Section 58V.

By -

(a)	in subsection (1) (c), deleting "to him" and substituting the following -

to the Attorney General

" ;

and

(b)	in subsection (2), deleting "his" and substituting the following -

the

Section 59.

By -

(a)	inserting after the section designation "59." the subsection designation "(1)";
(b)	deleting "his client" and substituting the following-

any client of that practitioner

(c)	deleting "Such an agreement shall exclude" and substituting the following -

(2)	An agreement made under subsection (1)

excludes

No. 48]

Legal Practitioners Amendment (Disciplinary

and Miscellaneous Provisions) Act 1992

(d)	deleting "agreement : Provided always, that the client who has entered into such agreement" and substituting the following -

agreement.

(3)	A client who enters into an agreement made

11 ,

under subsection (1)

(e)	deleting "such first mentioned written agreement" and substituting the following -

that agreement

;

(f)	deleting "the said practitioner under the same .	And provided,
also, that no" and substituting the following -
11

the practitioner under that agreement .

(4) No

and

(g)	deleting "Any such agreement" and substituting the following -

(5)	An agreement made under subsection (1)

Section 61.

By -

(a)	deleting "his", where it first occurs ;
(b)	deleting "his executors, administrators, or assigns," and substituting the following -

a person who is authorised to administer the estate of any such practitioner who is deceased or insolvent, or an assignee of that practitioner,

and

(c)	deleting "such client, or his executors or administrators," and substituting the following -

the client, or a person who is authorised to administer the estate of any such client who is deceased or insolvent,

Legal Practitioners Amendment (Disciplinary

[No. 48

and Miscellaneous Provisions) Act 1992

Section 62.

By -

(a)	deleting "his", where it first occurs, and substituting the following -

;and

(b)	deleting "his", in the second place where it occurs .

Section 62A (1) .

By deleting "his" and substituting the following -

Section 66.

By -

(a)

in subsection (1), deleting "his"; and

(b)

in subsection (2) -

(i)	deleting "Any person who" and substituting the following -

"	Where a person

(ii) deleting "upon him" ;

(iii) deleting "may"; and

(iv) inserting before "have" the following -

the person charged may apply to

Section 67.

By -

(a)	inserting after the section designation "67 ." the subsection designation "(1Y;

No. 481

Legal Practitioners Amendment (Disciplinary

and Miscellaneous Provisions) Act 1992

(b)	deleting "Provided that within the month aforesaid" and substituting the following -

(2)	Within the period of one month permitted

under subsection (1)

;

and

(c)

deleting "proviso" and substituting the following -

subsection

Section 70.

By -

(a)

in subsection (1) -

(i)	deleting "he allows"; and
(ii)	inserting after "taxation" the following -

11 11

are respectively allowed by the taxing officer

;

and

(b)

in subsection (2) (a) -

(i)	deleting "he allows"; and
(ii)	inserting after "costs" the following -

is allowed

Section 74.

By-

(a)	deleting ", he" and substituting the following -

for another practitioner, the agent

(b)	deleting "his costs and expenses" and substituting	the
following -
'C

any costs and expenses in so acting

Legal Practitioners Amendment (Disciplinary [No . 48

and Miscellaneous Provisions) Act 1992

(c)

deleting "he acts as agent" and substituting the following -

"	the agent acts

Section 75.

By deleting "by him" .

Section 76.

By-

(a)	inserting after the section designation "78." the subsection designation "(1)";
(b)	deleting "in the name of himself or of any other person" and substituting the following -

, whether in their own name or that of any other

person

(c)	deleting "Western Australia: Provided that nothing herein contained shall prevent" and substituting the following -

Western Australia .

(2)	Nothing in subsection (1) shall be construed

as preventing

and

(d)	deleting 'by leave under the provisions of section thirty of the Small Debts Ordinance 1863" and substituting the following -

if permitted to do so pursuant to section 29 of the

Local Courts Act 1904

Section 77.

By-

(a)	inserting after the section designation "77." the subsection designation "(1)"; and

No. 48]

Legal Practitioners Amendment (Disciplinary

and Miscellaneous Provisions) Act 1992

(b)	deleting "equity : Provided that nothing herein contained" and

substituting the following -

equity .

(2)	Nothing in subsection (1)

Section 78.

By-

(a)

inserting after the section designation "78 ." the subsection designation "(1)";

(b)

deleting "he" and substituting the following -

the person

and

(c)	inserting before "Where" the subsection designation "(2)".

Section 79.

By-

(a)	deleting "No certificated practitioner shall -

(1) act as agent for any person not being a duly

qualified"

and substituting the following -

A certificated practitioner shall not act as agent for any person other than a

(1)

(b)	deleting "it is herein provided shall" and substituting the following -

under this Act may only

;

(c)	deleting "duly qualified", in the second place where it occurs ;
(d)	deleting "only; or" and substituting a full stop ;

Legal Practitioners Amendment (Disciplinary

[No. 48

and Miscellaneous Provisions) Act 1992

(e)	deleting "(2) permit or suffer his name or the name of his firm" and substituting the following -

(2)

A certificated practitioner shall not permit or suffer the name of that practitioner, or the name of a firm in which that practitioner is a partner or employee,

(f)

deleting "such matter" and substituting the following -

11 ,

matter to which subsection (1) applies

(g)	deleting "practitioner; or" and substituting the following -

"	practitioner .

;

(h)

in the paragraph designated as "(3)" -

(i)

inserting after that designation, as the

subsection

designation, the following -

A certificated practitioner shall not

(ii) deleting "such person" and substituting the following -

a person other than a certificated practitioner

and

(iii) deleting "; or" and substituting a full stop ;

in the paragraph designated as "(4)" -

(f)	inserting after the designation, as the subsection designation, the following-

"	A certificated practitioner shall not,

(ii) deleting "his executors and administrators" and substituting the following -

the person authorised to administer the estate

of any such practitioner who is deceased

(iii) deleting "it is herein provided shall" and substituting the following -

under this Act may only

; and

No. 481

Legal Practitioners Amendment (Disciplinary

and Miscellaneous Provisions) Act 1992

(iv) deleting "only; or" and substituting a full stop ;

(k)	in the paragraph designated as "(5)", inserting after that designation, as the subsection designation, the following -

A certificated practitioner shall not

" ;

and

(1)

in the paragraph designated as "(6)" -

(i)	inserting after that designation, as the subsection designation, the following -

A certificated practitioner shall not,

(ii) deleting "his practice as a" and substituting the following -

the practice of that

"; and

(iii) in paragraph (b), deleting "he" and substituting the following -

that person

Section 80.

By -

(a)

deleting "hold himself out as or pretend to be" and substituting the following -

purport or pretend to be,

(b)

deleting "he is" and substituting the following -

the person is,

"; and

(c)	deleting "is", in the second place where it occurs .

Section 83.

By inserting before "of section sixteen" the following -

of subsection (1)

Legal Practitioners Amendment (Disciplinary

[No. 48

and Miscellaneous Provisions) Act 1992

Section 85.

By -

(a)	in subsection (1), in paragraph (a), deleting "his practice" and substituting the following -

the practice of that practitioner or former

practitioner

and

(b)	in subsection (3) (d), deleting "he", wherever it occurs, and substituting the following -

the practitioner

Schedule 2, Part A.

By-

(a)

in clause 1 (1) and (2) -

(i)	deleting "his", wherever it occurs, and substituting the following -

the

and

(ii) deleting "he" wherever it occurs ;

(b)	in clause 3 (1) and (2), deleting "he", wherever it occurs, and substituting the following -

the person

(c)

in clause 4 (1) (a) -

(i)	deleting "he" and substituting the following -

the member

" ;

and

(ii) deleting "the Companies (Western Australia) Code" and substituting the following -

that term under section 9 of the Corporations Law

No. 48]

Legal Practitioners Amendment (Disciplinary

and Miscellaneous Provisions) Act 1992

(d)

in clause 4 (1) (b), deleting "his functions" and substituting the following -

the functions of that member

(e)	in clause 4 (2), deleting "his" ;
U)	in clause 5, deleting "he" and substituting the following -

the Attorney General

"; and

(g)	in clause 6, deleting "his".

Schedule 2, Part B.

By deleting "he" in clause 1 (2), and substituting the following -

the chairman

Legal Practitioners Amendment (Disciplinary

[No. 48

and Miscellaneous Provisions) Act 1992

PART 6 - CONSUMER AFFAIRS ACT 1971

Principal Act

56. In this Part the Consumer Affairs Act 1971* is referred to

as the principal Act .

[* Act No. 68 of 1971 reprinted as at 22 May 1984 .

For amendments to 6 May 1992 see 1991 Index to

Legislation of Western Australia, p . 44.1

Section 4 amended

57.

Section 4 of the principal Act is amended by inserting after

subsection (2a) the subsection following -

(2b)

On and after the coming into operation of Part 2 of the Legal Practitioners Amendment (Disciplinary and Miscellaneous Provisions) Act 1992 the definition "services" shall be taken not to include a service to which Part IV of the Legal Practitioners

Act 1893 applies .