Legal Profession Act 1987 (NSW)
An Act to regulate the admission and practice of barristers and solicitors; to repeal the Legal Practitioners Act 1898; and for other purposes.
This Act may be cited as the Legal Profession Act 1987.
Sections 1 and 2 shall commence on the date of assent to this Act.
Except as provided by subsection (1), this Act shall commence on such day as may be appointed by the Governor and notified by proclamation published in the Gazette.
In this Act, except in so far as the context or subject-matter otherwise indicates or requires:
(a) a legal practitioner who holds a current practising certificate as a barrister, or
(b) an interstate legal practitioner who practises as a barrister in this State.
(a) an act of bankruptcy committed by a person before being admitted as a legal practitioner, or
(b) a finding of guilt against a person before being admitted as a legal practitioner (where the person was found guilty of an indictable offence or a tax offence).
(a) a legal practitioner who holds a current practising certificate as a solicitor and barrister, or
(b) an interstate legal practitioner who practises as a solicitor and barrister in this State.
In this Act:
(a) a reference to a function includes a reference to a power, authority and duty, and
(b) a reference to the exercise of a function includes, if the function is a duty, a reference to the performance of the duty.
For the purposes of this Act, a person is taken to have committed an
(a) is bankrupt or the subject of a creditor’s petition presented to the Court under section 43 of the Bankruptcy Act 1966 of the Commonwealth, or
(b) has presented (as a debtor) a declaration to the Official Receiver under section 54A of the Bankruptcy Act 1966 of the Commonwealth of his or her intention to present a debtor’s petition or presented (as a debtor) such a petition under section 55 of that Act, or
(c) has applied to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounded with his or her creditors or made an assignment of his or her remuneration for their benefit.
The matter appearing under the heading “Note” in this Act does not form part of this Act.
The Supreme Court may admit and enrol natural persons as legal practitioners in accordance with subsection (2).
The Supreme Court is, on any day appointed by the Supreme Court for the purpose, to hear and determine any application made for the admission as a legal practitioner of a person approved by the Admission Board as a suitable candidate for admission.
A legal practitioner is, on and from admission, an officer of the Supreme Court.
An interstate legal practitioner who practises as a barrister or solicitor and barrister in this State is an officer of the Supreme Court.
A locally registered foreign lawyer who practises foreign law in the State is not an officer of the Supreme Court.
The Admission Board may make rules for or with respect to all or any of the following:
(a) the qualifications for registration, and registration, as a student-at-law,
(b) the qualifications for admission as a legal practitioner,
(c) without limiting paragraphs (a) and (b), the examination in such branches of knowledge as the Board thinks fit of candidates for admission as students-at-law or legal practitioners,
(d) the establishment and conduct of boards or other bodies with functions concerning:
(i) the examination of candidates for admission as legal practitioners, and
(ii) the approval of a properly qualified person to be admitted as a legal practitioner,
(e) applications for admission as a legal practitioner and the approval of such applications,
(f) the fees payable to the Board in relation to registration, admission, examination and certificates,
(g) any other matters relating to the exercise of its functions.
Part 6 of the Interpretation Act 1987 applies to a rule made under section 6 in the same way as it applies to a statutory rule within the meaning of that Act.
Part 6 of the Interpretation Act 1987 contains provisions relating to the publication and Parliamentary disallowance of statutory rules and other standard provisions relating to the making, amendment and repeal of statutory rules.
The Admission Board may delegate the examination of candidates for admission as legal practitioners to such persons as it considers competent to examine the candidates.
There is constituted by this Act the Legal Practitioners Admission Board.
The Admission Board has and may exercise the functions conferred or imposed on it by or under this or any other Act.
The Admission Board is not and does not represent the Crown for any purpose.
The Admission Board is a body corporate.
Schedule 2 has effect with respect to the Admission Board.
The Admission Board is to consist of 9 members.
The members of the Admission Board are:
(a) the Chief Justice of New South Wales, and
(b) 3 Judges of the Supreme Court for the time being nominated by the Chief Justice of New South Wales, and
(c) the Attorney General or a person for the time being nominated by the Attorney General, and
(d) 2 persons for the time being nominated by the Committee of NSW Law Deans, and
(e) 2 barristers for the time being nominated by the Bar Council, and
(f) 2 solicitors for the time being nominated by the Law Society Council.
A candidate, however qualified in other respects, must not be admitted as a legal practitioner unless the Admission Board is satisfied that the candidate is of good fame and character and is otherwise suitable for admission.
When the Admission Board considers an application for admission as a legal practitioner, it must consider whether it is satisfied that the candidate is of good fame and character and is otherwise suitable for admission.
Unless the Admission Board declares that it is satisfied that the candidate is of good fame and character and is otherwise suitable for admission, it must refuse to approve of the application for admission.
The Admission Board must notify the Bar Council and the Law Society Council in accordance with the admission rules of any application for admission (unless a declaration has been made under section 13 with respect to the applicant).
A person may apply to the Admission Board for a declaration that matters disclosed by the person will not, without more, adversely affect an assessment by the Board of his or her good fame or character or suitability for admission.
(Repealed)
The applicant must serve a copy of the application on the Bar Council and the Law Society Council in accordance with the admission rules.
The Admission Board is to consider each application under this section and make the declaration sought or refuse to do so.
The Admission Board may refer to the Supreme Court any application for admission as a legal practitioner if, in the opinion of the Admission Board, it would be more practical in the circumstances of the case for the Supreme Court to consider whether or not the candidate is of good fame and character or is otherwise suitable for admission.
The Supreme Court has the same powers as the Admission Board to deal with an application and its decision on an application is taken to be a decision of the Admission Board.
On a referral under this section, the Supreme Court may make such order or declaration as it thinks fit.
Nothing in this section affects the operation of section 17.
If approval of an application for admission as a legal practitioner is refused by the Admission Board under section 12, the applicant may appeal to the Supreme Court against the refusal.
If a declaration sought under section 13 is refused, the applicant may appeal to the Supreme Court against the refusal of the declaration.
If a declaration is made under section 12 or 13, a Council may appeal to the Supreme Court against the making of the declaration. The applicant is entitled to be represented and to be heard on the appeal.
An appeal under this section is to be by way of rehearing and fresh evidence, or evidence in addition to or substitution for the evidence before the Admission Board, may be given on the appeal.
A Judge is disqualified from hearing an appeal under this section if the Judge was a member of the Admission Board when it made the decision to which the appeal relates.
On an appeal under this section, the Supreme Court may make such order or declaration as it thinks fit.
A declaration made under section 13, or an order or declaration of the Supreme Court under section 13A or 14, is binding on the Admission Board unless the applicant failed to make a full and fair disclosure of all matters relevant to the declaration sought on the application or appeal.
A Council is entitled to be represented before, and to be heard by, the Supreme Court at an inquiry under section 13A or on an appeal under section 14.
A Council is entitled to be represented before, and to be heard by, the Admission Board at an inquiry into a matter under this Division. A Council may make representations in writing to the Admission Board on any such matter.
The applicant concerned in the matter before the Admission Board, or before the Supreme Court under section 13A, is also entitled to be represented and heard at the inquiry and to make representations.
Persons cannot be admitted or enrolled as barristers or solicitors.
Any inherent power or jurisdiction of the Supreme Court to admit barristers and solicitors (or legal practitioners) is revoked.
The Supreme Court Charter remains revoked in New South Wales in so far as it relates to the admission of barristers, advocates, proctors, solicitors and attorneys.
The regulations may require a reference in any other Act or in any instrument under any other Act to a barrister or solicitor to be construed as a reference to a specified class of legally qualified persons, including:
(a) as a reference to a legal practitioner within the meaning of this Act, or
(b) in the case of a reference to a barrister—as a reference to a barrister, or a barrister or solicitor, within the meaning of this Act, or
(c) in the case of a reference to a solicitor—as a reference to a solicitor, or a solicitor or barrister, within the meaning of this Act.
Subject to any such regulation, a reference in any other Act or in any instrument under any other Act to a barrister or solicitor is, so far as the reference relates to a barrister or solicitor of New South Wales, taken to be a reference to a legal practitioner within the meaning of this Act. This subsection has effect except in so far as the context or subject-matter otherwise indicates or requires.
A practising certificate is automatically cancelled if the holder ceases to be a legal practitioner.
No privilege from suit in any court or tribunal is to be allowed to any legal practitioner by reason only that he or she is an officer of the Supreme Court.
(Repealed)
A legal practitioner whose sole or principal place of legal practice is this State must not practise as a barrister or solicitor and barrister without being the holder of a current practising certificate.
A legal practitioner whose sole or principal place of legal practice is this State must not hold himself or herself out to be a barrister without being the holder of a current practising certificate as a barrister.
A legal practitioner whose sole or principal place of legal practice is this State must not hold himself or herself out to be a solicitor without being the holder of a current practising certificate as a solicitor and barrister.
An interstate legal practitioner must not practise as a barrister or solicitor in this State without being the holder of a current interstate practising certificate issued by a regulatory authority of another State or a Territory.
An interstate legal practitioner must not hold himself or herself out to be a barrister in this State without being the holder of a current interstate practising certificate issued by a regulatory authority of another State or a Territory.
An interstate legal practitioner must not hold himself or herself out to be a solicitor in this State without being the holder of a current interstate practising certificate issued by a regulatory authority of another State or a Territory.
A legal practitioner or interstate legal practitioner who contravenes this section wilfully and without reasonable excuse is guilty of professional misconduct.
A legal practitioner may, subject to this Act, elect to practise as a barrister or as a solicitor and barrister.
A legal practitioner is, subject to this Act, entitled to be issued with a practising certificate as a barrister or solicitor and barrister.
An interstate legal practitioner may, subject to this Act, elect to practise in this State as a barrister or as a solicitor and barrister.
A person may not hold current practising certificates at the same time as a barrister and as a solicitor and barrister, see section 38D.
The Bar Council may, on application, grant a practising certificate to a legal practitioner authorising the practitioner to practise as a barrister.
A legal practitioner who does not hold a current practising certificate as a barrister may at any time apply to the Bar Council for a practising certificate unless there is in force an order of the Tribunal preventing the issue of the certificate.
A legal practitioner who holds a current practising certificate as a barrister may, during the prescribed period before the certificate expires, apply to the Bar Council for a new practising certificate.
Subsection (3) does not prevent the Bar Council from accepting an application made after the prescribed period and before the next 1 July.
The Law Society Council may, on application, grant a practising certificate to a legal practitioner authorising the practitioner to practise as a solicitor and barrister.
A legal practitioner who does not hold a current practising certificate as a solicitor and barrister may at any time apply to the Law Society Council for a practising certificate unless there is in force an order of the Tribunal preventing the issue of the certificate.
A legal practitioner who holds a current practising certificate as a solicitor and barrister may, during the prescribed period before the certificate expires, apply to the Law Society Council for a new practising certificate.
Subsection (3) does not prevent the Law Society Council from accepting an application made after the prescribed period and before the next 1 July.
(Repealed)
(Repealed)
A fee is payable for the issue of a practising certificate authorising a legal practitioner to practise as a barrister of such amount as is determined by the Bar Council and approved by the Attorney General.
The Bar Council may determine different practising certificate fees according to such different factors as are specified in the determination and approved by the Attorney General.
The Bar Council may waive payment of the practising certificate fee or any part of the fee.
Subject to the regulations (if any), the Bar Council is to determine the practising certificate fee on a cost recovery basis, with the fee being such amount as is required from time to time for the purpose of recovering the costs of or associated with the regulatory functions of the Bar Council or Bar Association.
The
The practising certificate fee is not to include any charge for membership of the Bar Association and is not to include any amount that is required for the purpose of recovering any costs of or associated with providing services or benefits to which barristers become entitled as members of the Bar Association.
Section 57M provides for membership of the Bar Association. It is not compulsory for barristers to be members of the Bar Association.
In addition, in determining the practising certificate fee, the Bar Council must exclude costs that are otherwise recoverable under this Act (for example, costs payable from the Public Purpose Fund under Division 2 of Part 6).
The regulations may make provision for or with respect to the determination of practising certificate fees, including by specifying the costs that may or may not be recovered by the charging of practising certificate fees.
In this section,
A fee is payable for the issue of a practising certificate authorising a legal practitioner to practise as a solicitor of such amount as is determined by the Law Society Council and approved by the Attorney General.
The Law Society Council may determine different practising certificate fees according to such different factors as are specified in the determination and approved by the Attorney General.
The Law Society Council may waive payment of the practising certificate fee or any part of the fee.
Subject to the regulations (if any), the Law Society Council is to determine the practising certificate fee on a cost recovery basis, with the fee being such amount as is required from time to time for the purpose of recovering the costs of or associated with the regulatory functions of the Law Society Council or Law Society.
The
The practising certificate fee is not to include any charge for membership of the Law Society and is not to include any amount that is required for the purpose of recovering any costs of or associated with providing services or benefits to which solicitors become entitled as members of the Law Society.
Section 57MA provides for membership of the Law Society. It is not compulsory for solicitors to be members of the Law Society.
In addition, in determining the practising certificate fee, the Law Society Council must exclude any costs that are otherwise recoverable under this Act (for example, costs payable from the Public Purpose Fund under Division 2 of Part 6).
The regulations may make provision for or with respect to the determination of practising certificate fees, including by specifying the costs that may or may not be recovered by the charging of practising certificate fees.
In this section,
If an application for a practising certificate is accepted by a Council after the end of the period prescribed by the regulations during which the application is authorised to be made, payment of a late fee prescribed by the regulations may, if the Council thinks fit, be required as a condition of acceptance of the application.
The Attorney General may from time to time require a Council to prepare and submit a budget to the Attorney General, in respect of such period as the Attorney General directs, relating to any costs (or projected costs) that are recoverable (or are proposed to be recovered) by the charging of a practising certificate fee.
The budget is to include such information as the Attorney General directs. In particular, the Attorney General may require the provision of information about the administration of the Council (including the Bar Association and the Law Society).
The Attorney General may refuse to approve the amount of a practising certificate fee under section 29A or 29B if the relevant Council has failed to submit a budget as required under this section.
In this section:
The Attorney General may appoint an appropriately qualified person to conduct an audit of all or any particular activities of a Council for the purpose of determining the following:
(a) whether any activities the costs of which are recoverable, or are proposed to be recovered, by the charging of a practising certificate fee are being carried out economically and efficiently and in accordance with the relevant laws,
(b) whether practising certificate fees are being expended for the purpose of defraying the costs in respect of which the fees are charged.
A Council is to provide all reasonable assistance to the person appointed to conduct the audit.
The person appointed to conduct the audit is to report to the Attorney General on the result of the audit.
An audit may be conducted under this section whenever the Attorney General considers it appropriate.
In this section:
A Council must refuse to issue a practising certificate if the application for it:
(a) is not accompanied by the appropriate fee (unless payment of the fee has been waived by the Council), or
(b) is not accompanied by, or does not contain, such information as may be prescribed by the regulations.
A Council may refuse to issue a practising certificate applied for by the holder of a suspended practising certificate.
A Council may refuse to issue a practising certificate if a finding of unsatisfactory professional conduct or professional misconduct has been made in respect of the applicant and:
(a) a fine imposed because of the finding has not been paid, or
(b) costs awarded against the applicant because of the finding have been assessed but have not been paid or, if an arrangement for their payment has been made, the applicant is in default under the arrangement, or
(c) any costs of an inspection or investigation payable under section 55 by the applicant have not been paid, or
(d) any expenses of receivership payable under section 110 by the applicant have not been paid.
Other sections of this Act also provide for the refusal of applications for the issue of practising certificates.
Without limiting subsection (1) (b), information prescribed by the regulations may include details of, or details of the nature of, pre-admission events, whether occurring before or after the commencement of this subsection.
The Law Society Council may refuse to issue a practising certificate if:
(a) the applicant is required by section 45 to contribute to the Indemnity Fund and the application is not accompanied by the contribution payable under that section, or
(b) the applicant is required by section 76 to contribute to the Fidelity Fund and the application is not accompanied by the contribution payable under that section, or
(c) any levy payable by the applicant under section 46, 46A or 77 is unpaid.
Part 9 sets out further grounds on which the Law Society Council must refuse to issue a practising certificate to a solicitor or suspend a solicitor’s practising certificate. These grounds relate to a failure by the solicitor to obtain fidelity insurance in respect of a regulated mortgage.
A practising certificate may be issued unconditionally or subject to conditions.
A Council may attach a condition to a practising certificate when it is issued or at any time after it is issued, and may at any time vary or revoke any such condition.
A condition cannot be attached to a practising certificate unless it is of a kind authorised by this Act to be attached.
(Repealed)
A legal practitioner who is the holder of a current practising certificate must not fail to comply with a condition to which the certificate is subject.
Conditions of the following kinds can be attached to the practising certificate of a barrister or solicitor:
(a) a condition requiring the holder to undertake and complete one or more courses of continuing legal education,
(b) a condition requiring the holder to undertake additional academic or training courses,
(c) a condition, of a kind authorised by the regulations, limiting the practising rights of the holder as determined by the Bar Council or the Law Society Council,
(d) any other condition agreed to by the holder.
Other sections of this Act also provide for conditions that may be attached to practising certificates.
Conditions of the following kinds can be attached to the practising certificate of a barrister:
(a) a condition requiring the holder to undertake and complete to the satisfaction of the Bar Council a full-time component or other component of a reading program applicable to the holder and determined or approved by the Bar Council,
(b) a condition requiring the holder to sit for and pass any examination set by the Bar Council as part of a reading program,
(c) a condition requiring the holder to read with a barrister of a specified class or description chosen by the holder (including a barrister chosen from a list of at least 10 barristers kept by the Bar Council for the purpose) for a specified period and to comply with such requirements as will enable the barrister, at the end of the specified period, to certify to the Bar Council that the holder is fit to practise as a barrister without restriction.
A condition of a kind referred to in subsection (1) which is attached to the practising certificate of a barrister may limit the practising rights of the barrister until the condition is complied with.
The following conditions may also be attached to the practising certificate of a barrister:
(a) a condition limiting the holder to practising as a barrister as the holder of a statutory office under the Crown (whether in right of New South Wales or in another right),
(b) a condition limiting the holder to practising as a barrister in any other office under a contract of service, or contract for services, with the Crown (whether in right of New South Wales or in another right),
(c) a condition limiting the holder to practising as parliamentary counsel under a contract of service, or contract for services, with the Crown (whether in right of New South Wales or in another right).
Conditions of the following kinds can be attached to the practising certificate of a solicitor:
(a) a condition requiring the holder to complete a period of supervised practice,
(b) a condition restricting the solicitor to acting as a solicitor and barrister under particular conditions as to employment.
A practising certificate issued on application by the holder of a current practising certificate takes effect on the relevant date next following the making of the application, and remains in force for 12 months or for such other period as may be specified by the regulations.
Any other practising certificate takes effect on the date it bears, and remains in force until immediately before the next relevant date.
If an application referred to in subsection (1) is not determined before the relevant date next following the making of the application, the practising certificate already held continues in force until a new practising certificate is issued or the application is refused.
In this section,
(a) subject to paragraph (b)—1 July, or
(b) another date specified by the regulations as the common date for the duration of practising certificates.
The regulations may contain savings and transitional provisions consequent on a change in the relevant date. In particular, the regulations may:
(a) specify the period for which practising certificates in force when the change is made are to remain in force, and
(b) specify the period for which practising certificates that take effect on the new relevant date are to remain in force, and
(c) modify the application of section 45 in respect of contributions payable in respect of any such certificates.
(Repealed)
A Council may refuse to issue, may cancel or may suspend a practising certificate if the applicant or holder:
(a) is required by the Council to explain specified conduct (whether or not related to practice as a barrister or solicitor) that the Council considers may indicate that the applicant or holder is not a fit and proper person to hold a practising certificate and fails, within the period specified by the Council, to give an explanation satisfactory to the Council, or
(b) has, in the opinion of the Council, failed to comply with a condition attached to the certificate, or
(c) has contravened an order made in respect of the applicant or holder by the Tribunal, or
(d) is a disqualified person within the meaning of section 48K, or
(e) has had the applicant’s or holder’s right to practise as a solicitor and barrister, barrister or legal practitioner in another State or a Territory suspended or cancelled, or
(f) has contravened a provision of this Act, or
(g) is in prison.
Subsection (1) (a) extends to pre-admission events occurring in relation to an applicant for or holder of a practising certificate, whether the events occurred before or after the commencement of this subsection.
Without limiting subsection (1), a Council may decide to take no action or no further action in connection with a pre-admission event occurring in relation to an applicant for or holder of a practising certificate, if satisfied that it is appropriate to do so given the passage of time and other circumstances the Council considers relevant.
If a Council acts under this section and, within 14 days after being notified of the action, the applicant or holder requires the Council to state its reasons for the action, the Council must comply with the requirement without delay.
The Law Society Council may refuse to issue, may cancel or may suspend a practising certificate as a solicitor and barrister if the applicant or holder fails, and continues to fail, to comply with section 61 or any other law relating to money received on behalf of another by the solicitor or by a partnership of which, at the time of the failure, the solicitor is or was a member.
A Council may refuse to issue, may cancel or may suspend a practising certificate if the Council is satisfied, on such evidence as to it seems proper:
(a) that the applicant or holder is, because of infirmity, injury or mental or physical illness, unfit to practise as a barrister or solicitor and barrister, and
(b) that it is in the public interest or the interest of the barrister’s or solicitor’s clients that the practising certificate should not be issued or should be cancelled or suspended.
For the purposes of this section, an applicant or holder is unfit to practise as a barrister or solicitor and barrister only if the applicant or holder, because of his or her infirmity, injury or mental or physical illness, would be unable to carry out the inherent requirements of practice as a barrister or solicitor and barrister.
The following are to be taken into account in determining whether an applicant or holder would be unable to carry out the inherent requirements of practice as a barrister or solicitor and barrister:
(a) the applicant’s or holder’s past training, qualifications and experience relevant to such practice,
(b) if the applicant or holder is already practising as a barrister or solicitor and barrister, the applicant’s or holder’s performance in such practice,
(c) all other relevant factors that it is reasonable to take into account.
Before acting under subsection (1), a Council:
(a) may require the applicant or holder to be medically examined by a medical practitioner nominated by the Council, and
(b) may hold an inquiry.
A refusal or failure by a person to comply with a requirement for medical examination may be accepted by a Council as evidence of the unfitness of the person to practise as a barrister or solicitor and barrister.
If a Council:
(a) refuses to issue a practising certificate, or
(b) refuses to issue a practising certificate of the kind applied for, or
(c) attaches a condition to a practising certificate or varies a condition attached to a practising certificate, or
(d) cancels or suspends a practising certificate,
the applicant for, or holder of, the practising certificate may appeal to the Supreme Court.
If the Commissioner:
(a) directs a Council to refuse to issue a practising certificate, or
(b) cancels or suspends a practising certificate,
the applicant for, or holder of, the practising certificate may appeal to the Supreme Court against the decision of the Commissioner to make the direction or to cancel or suspend the practising certificate.
An appeal may not be made under subsection (1) against the refusal of a Council to issue a practising certificate if the refusal was at the direction of the Commissioner.
The Supreme Court may make such order in the matter as it thinks fit.
Except to the extent (if any) that may be ordered by the Supreme Court, the lodging of an appeal does not stay the effect of the refusal, cancellation or suspension, or the attaching or variation of a condition, appealed against.
This section does not apply if a Council acts in conformity with a decision of the Tribunal that is in force.
A Council is required to keep, in such form as it thinks fit, a register of the legal practitioners to whom it has issued current practising certificates.
A Council is required to keep, in such form as it thinks fit, a register of the interstate legal practitioners who have given notice under section 48T that they have established an office in this State.
A legal practitioner may not at the same time hold current practising certificates as barrister and solicitor and barrister.
A practising certificate may be issued to a person on the condition that it does not have effect while another practising certificate is in force in relation to the person.
The Supreme Court may, on the application of a Council, grant an injunction, in such terms as the Supreme Court considers to be appropriate, restraining a legal practitioner from contravening section 25 or 32.
No undertaking as to damages or costs is required.
The Attorney General, while admitted as a legal practitioner, is entitled to an unconditional practising certificate. The Attorney General may elect to hold a practising certificate as a barrister or as a solicitor and barrister.
Section 33 (1) (b) and (c) and section 34 (1) do not apply to:
(a) a legal practitioner who is the holder of a statutory position under the Crown (whether in right of New South Wales or in another right), or
(b) a legal practitioner who acts as parliamentary counsel under a contract of service, or contract for services, with the Crown (whether in right of New South Wales or in another right), or
(c) a legal practitioner who is, or is a member of a class or description of legal practitioners, specified by the Bar Council or the Law Society Council for the purposes of this subsection, or
(d) a legal practitioner who is, or is a member of a class or description of legal practitioners, prescribed by the regulations for the purposes of this subsection.
Subsection (2) applies only while the person is a legal practitioner to whom at least one of the paragraphs of that subsection applies.
In this Division,
(a) the period of 3 months commencing on the date on which notification is given to the relevant Council of the commission of the act of bankruptcy or the finding of guilt of the indictable offence or tax offence concerned by the legal practitioner who committed the act of bankruptcy or the offence, or
(b) if the relevant Council has not received notification as referred to in paragraph (a) when it sends a notice under section 38FC (2) to that legal practitioner, the period of 3 months commencing on the date specified in the notice as the date of issue of the notice,
and includes any extension under subsection (2).
The Commissioner may extend the 3-month period referred to in subsection (1) to 4 months in relation to a particular matter at the request of the Council dealing with the matter or, if the Commissioner is dealing with the matter, on the Commissioner’s own motion.
If the Commissioner extends a period under subsection (2), the Commissioner must give notice in writing to the legal practitioner concerned of the extension of the period.
An applicant for a practising certificate who, since being admitted as a legal practitioner:
(a) has committed an act of bankruptcy, or
(b) has been found guilty of an indictable offence or a tax offence,
must provide a written statement, in accordance with the regulations, showing why, despite the act of bankruptcy or finding of guilt and any circumstances surrounding the act or finding, the applicant considers that he or she is a fit and proper person to hold a practising certificate.
An applicant for a practising certificate who has failed to notify a matter as required by the regulations (being a failure declared by the regulations to be professional misconduct) must provide a written statement, in accordance with the regulations, showing why, despite the failure to notify, the applicant considers that he or she is a fit and proper person to hold a practising certificate.
A barrister or solicitor who, since being admitted as a legal practitioner:
(a) has committed an act of bankruptcy, or
(b) has been found guilty of an indictable offence or a tax offence,
must provide a written statement, in accordance with the regulations, showing why, despite the act of bankruptcy or finding of guilt and any circumstances surrounding the act or finding, the barrister or solicitor considers that he or she is a fit and proper person to hold a practising certificate.
A barrister or solicitor who fails to notify a matter as required by the regulations (being a failure declared by the regulations to be professional misconduct) must provide a written statement, in accordance with the regulations, showing why, despite the failure to notify, the barrister or solicitor considers that he or she is a fit and proper person to hold a practising certificate.
A person is not required to comply with subsection (1), (2), (3) or (4) if the person has previously provided a written statement in accordance with this section to the appropriate Council showing why, despite the act of bankruptcy, finding of guilt or failure to notify concerned, the person considers that he or she is a fit and proper person to hold a practising certificate.
Subsections (1) and (3) extend to acts of bankruptcy occurring before the commencement of this section.
This section:
(a) applies to an indictable offence or a tax offence whether or not committed in the course of practice as a barrister or solicitor, and
(b) applies to a finding of guilt of an indictable offence or a tax offence whether or not the court proceeded to a conviction for the offence, and
(c) applies to an indictable offence committed in New South Wales or to an offence committed outside New South Wales (so long as it would have been an indictable offence if committed in New South Wales), and
(d) applies to a tax offence committed in or outside New South Wales, and
(e) applies to a finding of guilt of an indictable offence or a tax offence even if other persons are prohibited from disclosing the identity of the offender, and
(f) extends to an indictable offence or a tax offence committed before the commencement of this section (and so extends whether the finding of guilt was made before or after that commencement).
A Council must refuse to issue, or must cancel or suspend, a practising certificate if:
(a) the Council is aware that the applicant for or holder of the practising certificate has, since being admitted as a legal practitioner, committed an act of bankruptcy or been found guilty of an indictable offence or a tax offence, and
(b) the Council considers that the act of bankruptcy, indictable offence or tax offence was committed in circumstances that show that the applicant or holder is not a fit and proper person to hold a practising certificate.
A Council must, within 14 days after becoming aware that the applicant for or holder of a practising certificate has, since being admitted as a legal practitioner, committed an act of bankruptcy or been found guilty of an indictable offence or a tax offence, give notice in writing to the applicant or holder:
(a) if the Council has not received a statement under section 38FB in relation to the act of bankruptcy or the finding of guilt concerned, requiring the applicant or holder to make a statement in accordance with that section, and
(b) informing the applicant or holder that a determination in relation to the matter is required to be made under this section, and
(c) informing the applicant or holder of the relevant period in relation to the determination of the matter and that the applicant or holder will be notified of any extension of the relevant period, and
(d) informing the applicant or holder of the effect of the automatic suspension provisions in section 38FH in the event of the matter not being determined by the Council or the Commissioner within the relevant period.
Despite subsection (1), a Council may issue a practising certificate to an applicant referred to in that subsection who is a barrister or solicitor if the next relevant date (within the meaning of section 36) in relation to the barrister’s or solicitor’s current practising certificate is imminent and the Council has not made a determination under that section in relation to the applicant.
The issue of a practising certificate in the circumstances referred to in subsection (3) does not prevent a determination from subsequently being made under this Division to refuse to issue a practising certificate to the barrister or solicitor or to cancel or suspend the barrister’s or solicitor’s practising certificate.
Despite any other provision of this Act, a Council required to take action under subsection (1) in relation to a barrister or solicitor may, for the purpose of enabling the proper arrangement of the affairs of the barrister or solicitor:
(a) issue a practising certificate to the barrister or solicitor that remains in force for such period, specified in the practising certificate, as the Council considers necessary to achieve that purpose, or
(b) defer cancelling or suspending the practising certificate held by the barrister or solicitor for such period as the Council considers necessary to achieve that purpose.
If a Council acts under this section and, within 14 days after being notified of the action, the applicant or holder concerned requires the Council to state its reasons for the action, the Council must comply with the requirement without delay.
A Council is not required to take action under this section in relation to a person who has been bankrupt if the person was bankrupt because of an act of bankruptcy that has already been the subject of a determination under this section.
A Council may refuse to issue, or may cancel or suspend, a practising certificate if the applicant or holder has failed to notify a matter (being a failure declared by the regulations to be professional misconduct) and the Council considers that the failure to notify occurred without reasonable cause.
If a Council acts under this section and, within 14 days after being notified of the action, the applicant or holder concerned requires the Council to state its reasons for the action, the Council must comply with the requirement without delay.
A Council may refuse to issue, or may cancel or suspend, a practising certificate if the applicant or holder:
(a) is required by section 38FB to provide a written statement in relation to a matter and has failed to provide a written statement in accordance with that section, or
(b) has provided a written statement in accordance with section 38FB but, in the opinion of the Council to which the statement was provided, has failed to show in that statement that he or she is a fit and proper person to hold a practising certificate, or
(c) has failed to comply with a requirement under section 38FI or has wilfully contravened section 38FI (4).
If a Council acts under this section and, within 14 days after being notified of the action, the applicant or holder concerned requires the Council to state its reasons for the action, the Council must comply with the requirement without delay.
A Council that determines under section 38FC, 38FD or 38FE to refuse to issue a practising certificate to a person or to cancel a person’s practising certificate may also determine that the person is not entitled to apply for a practising certificate for a specified period (being a period not exceeding 5 years).
A person in respect of whom a determination has been made under this section is not entitled to apply for a practising certificate during the period specified in the determination.
The Commissioner may, at any time, take over the determination of a matter under section 38FC from a Council.
The Commissioner must take over the determination of a matter under section 38FC from a Council if the Council has not made the determination within the relevant period.
If the Commissioner takes over the determination of a matter from a Council:
(a) the Council is not required to make a determination in relation to the matter and is to cease to deal with the matter unless otherwise directed by the Supreme Court in an order under section 38FH (4), and
(b) the Commissioner may exercise any of the powers of the Council under this Division in relation to the matter (other than a refusal to issue a practising certificate), including powers under sections 38FD and 38FE if those powers are exercised in relation to a failure or contravention that is relevant to the matter, and
(c) the Commissioner may give a direction to the Council to refuse to issue a practising certificate to the legal practitioner concerned.
If the Commissioner gives a direction that the Council is to refuse to issue a practising certificate to a particular legal practitioner, the Council must refuse to issue the practising certificate.
The Commissioner may, in such a direction, specify a period during which the Council is not to issue the practising certificate.
If the Commissioner takes over the determination of a matter under section 38FC from a Council, the Council is to provide any assistance required by the Commissioner to investigate the matter (including copies of or access to all documents held by the Council that relate to the matter or are required for the purpose of investigating the matter).
This section applies to a matter to be determined under section 38FC in respect of the holder of a practising certificate.
If the relevant period in relation to a matter to be determined under section 38FC by a Council expires but no determination has been made under that section by the Council or the Commissioner, the practising certificate of the holder concerned is suspended until:
(a) the matter is determined by the Council or the Commissioner, or
(b) the suspension is removed by the Supreme Court under subsection (4),
whichever occurs first.
A barrister or solicitor whose practising certificate is suspended by the operation of subsection (2) may make an application to the Supreme Court to remove the suspension.
When dealing with an application under subsection (3), the Supreme Court may make any one or more of the following orders:
(a) an order removing the suspension on the grounds that the applicant is a fit and proper person to hold a practising certificate,
(b) an order continuing the suspension for a specified period,
(c) an order cancelling the practising certificate concerned on the ground that the applicant is not a fit and proper person to hold a practising certificate,
(d) an order remitting the matter to the Council originally dealing with it or the Commissioner,
(e) an order that the matter cease to be the subject of investigation by a Council or the Commissioner.
A Council or the Commissioner may investigate a matter under this Division and exercise powers under this Division in relation to the matter despite a suspension under subsection (2) of the practising certificate concerned unless the Supreme Court otherwise orders under subsection (4).
For the purpose of investigating a matter under this Division, a Council or the Commissioner may, by notice in writing served on any legal practitioner, require the legal practitioner to do any one or more of the following:
(a) to provide written information, by a date specified in the notice, and to verify the information by statutory declaration,
(b) to produce, at a time and place specified in the notice, any document (or copy of any document) specified in the notice,
(c) to otherwise assist in, or cooperate with, the investigation in a specified manner.
A Council or the Commissioner may inspect any document produced before the Council or the Commissioner under this section and may retain it for such period as the Council or Commissioner thinks necessary for the purposes of an investigation in relation to which it was produced. A Council or the Commissioner may make copies of the document or any part of the document.
A requirement under this section is to specify a reasonable time for compliance.
A legal practitioner must not mislead or obstruct a Council or the Commissioner in the exercise of any function under this Division.
Nothing in this Division prevents a complaint from being made under Part 10 involving a matter that requires a determination to be made under this Division or in respect of which a determination has been made under this Division.
Practice as a barrister is subject to the barristers rules.
Practice as a barrister is not subject to any other rules, practice guidelines or rulings of the Bar Association or Bar Council.
Practice as a solicitor is subject to the solicitors rules.
Practice as a solicitor is not subject to any other rules, practice guidelines or rulings of the Law Society or Law Society Council.
Barristers rules are made by the Bar Council and solicitors rules are made by the Law Society Council. The Bar Council and the Law Society Council may also make joint rules. See sections 57A–57C.
Barristers may accept any clients, subject to the barristers rules and the conditions of any relevant practising certificate.
Solicitors may accept any clients, subject to the solicitors rules and the conditions of any relevant practising certificate.
A barrister or solicitor may enter into a contract for the provision of services with a client or with another legal practitioner. The barrister or solicitor may accordingly sue and be sued in relation to the contract.
A barrister may enter into a contract with a client even though the barrister has accepted a brief from a solicitor in the matter.
Nothing in this section affects any law relating to immunity to suit in relation to advocacy.
A barrister or solicitor may advertise in any way the barrister or solicitor thinks fit, subject to any regulations under section 38JA.
However, an advertisement must not be of a kind that is or that might reasonably be regarded as:
(a) false, misleading or deceptive, or
(b) in contravention of the Trade Practices Act 1974 of the Commonwealth, the Fair Trading Act 1987 or any similar legislation.
(c) (Repealed)
A contravention by a barrister or solicitor of subsection (2) is capable of being professional misconduct or unsatisfactory professional conduct, whether or not the barrister or solicitor is convicted of an offence in relation to the contravention.
The regulations may make provision for or with respect to regulating or prohibiting conduct by any person that relates to the marketing of legal services, including (without limitation) regulating or prohibiting any of the following:
(a) advertising by a barrister or solicitor,
(b) advertising by any person for or on behalf of a barrister or solicitor,
(c) advertising by any person in connection with the provision of legal services,
(d) advertising by any person of services connected with personal injury.
The regulations under this section may create an offence punishable by a penalty not exceeding 200 penalty units.
The Minister may direct a person in writing not to engage in conduct described in the direction if the Minister is satisfied that:
(a) the conduct contravenes the regulations under this section, and
(b) the person has been engaging in conduct of that or a similar kind.
The Administrative Decisions Tribunal may, on application made under subsection (5), direct a barrister or solicitor not to engage in conduct described in the direction if the Tribunal is satisfied that:
(a) the conduct contravenes the regulations under this section or the regulations under section 142 of the Workplace Injury Management and Workers Compensation Act 1998, and
(b) the barrister or solicitor has been engaging in conduct of that or a similar kind.
An application to the Administrative Decisions Tribunal may be made under this section by:
(a) in the case of a barrister—the Bar Council, or
(b) in the case of a solicitor—the Law Society Council, or
(c) the Commissioner.
The Administrative Decisions Tribunal cannot deal with an application for a direction with respect to conduct that is the subject of a direction by the Minister under this section or under section 142 of the Workplace Injury Management and Workers Compensation Act 1998. Any such Ministerial direction may be given with respect to any conduct even if proceedings are pending in, or have been dealt with by, the Tribunal with respect to the conduct.
The following applies in connection with proceedings before the Administrative Decisions Tribunal under this section:
(a) the parties to the proceedings are the applicant and the person to whom the direction is proposed to be given,
(b) the matter is to be allocated to the Legal Services Division of the Tribunal,
(c) the Tribunal is to conduct an initial ex-parte hearing for the purposes of determining whether to issue a direction pending the final determination of the matter.
A person who contravenes a direction under this section is guilty of an offence.
Maximum penalty: 200 penalty units.
A barrister or solicitor is guilty of professional misconduct if the barrister or solicitor:
(a) contravenes a direction under this section or under section 142 of the Workplace Injury Management and Workers Compensation Act 1998, or
(b) contravenes a regulation under this section (or under section 142 of that Act), but only if the regulation declares the contravention to be professional misconduct.
The Minister is not required, before giving a direction under this section, to notify the person to whom the direction is given or any other person who may be affected by the direction.
A direction under this section may be amended or revoked.
Payments are to be made from the Public Purpose Fund for the purposes of meeting the costs and expenses of a Council or the Commissioner in exercising functions under this section (including the prosecution of offences under this section).
In this section:
A barrister or solicitor must not advertise or hold himself or herself out as being a specialist or as offering specialist services, unless the barrister or solicitor:
(a) has appropriate expertise and experience, or
(b) is appropriately accredited under an accreditation scheme conducted or approved by the Bar Council or Law Society Council.
The Bar Council or Law Society Council is required to approve an accreditation scheme if directed to do so by the Attorney General.
Barristers and solicitors may act as advocates.
Barristers and solicitors may appear, and have a right of audience, in any court as advocates.
Joint rules may be made about ethical rules to be observed by barristers and solicitors in the practice of advocacy.
(Repealed)
In any proceedings, more than one barrister or solicitor or a solicitor and barrister may appear together as advocates.
The appearance together as advocates of a barrister and solicitor may be regulated by joint rules, but not by barristers rules or solicitors rules.
There is no rule or practice that prevents a barrister from attending on another barrister or solicitor or a solicitor from attending on another barrister or solicitor.
Nothing in this section prevents arrangements being made between individual legal practitioners with regard to attendance on each other.
Any prerogative right or power of the Crown to appoint persons as Queen’s Counsel or to grant letters patent of precedence to counsel is abrogated.
Nothing in this section affects the appointment of a person who was appointed as Queen’s Counsel before the commencement of this section.
Nothing in this section abrogates any prerogative right or power of the Crown to revoke such an appointment.
No law or practice prevents a person who was Queen’s Counsel immediately before the commencement of this section from continuing to be Queen’s Counsel while a barrister or solicitor.
Executive or judicial officers of the State have no authority to conduct a scheme for the recognition or assignment of seniority or status among legal practitioners.
Nothing in subsection (5) prevents the publication of a list of legal practitioners in the order of the dates of their admission, or a list of barristers or solicitors in the order of the dates of their becoming barristers or solicitors, or a list of Queen’s Counsel in their order of seniority.
In this section:
A barrister is not, in the course of practising as a barrister, to receive money on behalf of another person unless authorised under this section.
The regulations may authorise a barrister to do so. For that purpose, the regulations may apply to barristers any of the provisions of Part 6 (Trust Accounts) or make other provision relating to the matter.
Nothing in this Division affects:
(a) practice as a barrister as the holder of a statutory office under the Crown (whether in right of New South Wales or in another right), or
(b) practice as parliamentary counsel under a contract of service, or contract for services, with the Crown (whether in right of New South Wales or in another right).
The Bar Council may not issue a practising certificate to an insurable barrister unless it is satisfied that there is, or will be, in force with respect to the barrister an approved indemnity insurance policy.
A policy of indemnity insurance is approved if:
(a) the policy is not to expire before the expiration of the practising certificate of the barrister to whom the policy relates, and
(b) the level of insurance and type of policy have been approved by the Attorney General by order in writing given to the Bar Council, and
(c) any conditions imposed by the order are complied with.
The Bar Council may not issue a practising certificate to an insurable barrister whose application for the practising certificate is not accompanied by evidence that there is, or will be, in force with respect to the barrister an approved indemnity insurance policy.
In this section,
In this Division:
(a) HIH Casualty and General Insurance Limited, FAI General Insurance Company Limited or CIC Insurance Limited, or
(b) any corporation that is, with respect to one of the corporations referred to in paragraph (a), a related body corporate (within the meaning of the Corporations Law).
The Solicitors’ Mutual Indemnity Fund managed by the company consists of:
(a) the Solicitors’ Mutual Indemnity Fund established by the Legal Practitioners Act 1898,
(b) the money paid on account of the Indemnity Fund by insurable solicitors either as annual contributions or as levies under this Division,
(c) the interest or other income accruing from investment of the money in the Indemnity Fund,
(d) any other money lawfully paid into the Indemnity Fund,
(e) investments made under section 43, and
(f) such other assets as are acquired as part of the Indemnity Fund.
The company may arrange with an insurer for insurance of the Indemnity Fund or any part of it.
The Indemnity Fund is the property of the Law Society and may be used only for the purposes of this Division.
The Law Society Council must not issue a practising certificate to an insurable solicitor unless it is satisfied:
(a) that there is, or will be, in force with respect to the solicitor an approved insurance policy, and
(b) that any contribution or levy, or instalment of a contribution, that is payable by the solicitor under section 45, 46 or 46A has been paid to the company.
A policy of indemnity insurance is an approved insurance policy if:
(a) the policy is not to expire before the expiration of the practising certificate of the solicitor to whom the policy relates,
(b) the insurer and the terms of the policy have been approved by the Attorney General by order in writing given to the Law Society, and
(c) any conditions imposed by the order are complied with.
(Repealed)
The Law Society may negotiate with insurers and other persons in relation to the provision of indemnity insurance to any solicitor or former solicitor with respect to civil liability that may arise in connection with:
(a) the solicitor’s or former solicitor’s practice or former practice, or
(b) the solicitor’s or former solicitor’s administration of any trust or deceased estate of which the solicitor or former solicitor is or was a trustee or executor,
and may do any other thing necessary for or in connection with the Law Society Council’s functions under this section.
The company shall maintain with a bank, building society or credit union in New South Wales a separate account with the name “Solicitors’ Mutual Indemnity Fund”.
Money in the Indemnity Fund that is not immediately required for the purposes of the Fund may be invested:
(a) in any manner in which trustees are authorised by the Trustee Act 1925 to invest trust funds,
(b) on deposit with the Treasurer,
(c) in the purchase of securities or shares listed for quotation on a prescribed financial market (within the meaning of section 9 of the Corporations Act 2001 of the Commonwealth),
(d) in the acquisition of an interest in real estate in Australia, or
(e) in bills of exchange drawn, accepted or endorsed by a bank, building society or credit union.
There shall be paid from the Indemnity Fund in such order as the company decides:
(a) the expenses incurred by the company in carrying on its business, and
(a1) premiums in respect of any approved insurance policy required by section 41, and
(b) such amount as the company determines towards meeting any difference between the indemnity provided by the approved insurance policy required by section 41 and the liability of a person insured under the policy, and
(c) such other amounts as the company determines.
The company is required to pay from the Indemnity Fund the costs of an investigation of the Indemnity Fund, as referred to in section 47AA, in accordance with a direction given by the Attorney General under that section.
The company may make determinations under subsection (1):
(a) that differ according to different circumstances, or
(b) that are subject to compliance with conditions imposed by the company,
or that do both.
The company may:
(a) divide solicitors into classes approved by the Law Society Council, and
(b) under subsection (1) (b), make a different determination for each of the classes.
Payments must be made by the company from the Indemnity Fund for the purpose of indemnifying any person who is insured under an approved insurance policy that was issued or renewed by an HIH group member, to the extent of the indemnity provided by the approved insurance policy.
HIH Casualty and General Insurance Limited (HIH) was the insurer under the approved insurance policy for the period from 1 July 1998 to 1 July 2001. HIH, together with other HIH group members, were also insurers under approved policies that pre-date that period. A provisional liquidator was appointed in respect of the HIH and other HIH group members on 15 March 2001.
On the making of such a payment from the Indemnity Fund, the company is subrogated to the rights and remedies of the insured person under the approved insurance policy, in connection with the subject matter of the payment, subject to the terms of any agreement entered into under this section.
Subsection (2) extends, but is not limited to, a right or remedy against any of the following:
(a) an HIH group member,
(b) any insurer or re-insurer of an HIH group member,
(c) any person who, under any Act or other law, is liable for a failure of an HIH group member to satisfy its obligations under or in connection with an approved insurance policy.
The company may exercise its rights and remedies under this section in its own name or in the name of an insured person.
If the company exercises its rights and remedies under this section in the name of an insured person, the company is to indemnify the insured person against any liability incurred by the insured person as a result of the exercise of those rights and remedies.
The Law Society and the company may enter into an agreement with an HIH group member (including a provisional liquidator or liquidator of an HIH group member), or with any insured person, in connection with the payment of amounts from the Indemnity Fund under this section.
In particular, any such agreement may provide for the following:
(a) the assignment or subrogation to the company of the rights and remedies of an HIH group member or the insured person (or both) under or in connection with the approved insurance policy,
(b) the recovery by the company from an HIH group member of any amount paid from the Indemnity Fund under this section.
Any payment made from the Indemnity Fund under this section, and any agreement entered into with an insured person under this section, does not prevent the recovery by the company from an HIH group member of any amount that would have been recoverable by the insured person under or in connection with the approved insurance policy had the payment not been made or the agreement not been entered into.
Any amount recovered by the company as a result of the exercise of its functions under this section (including its functions under a subrogation or agreement referred to in this section) is to be paid into the Indemnity Fund. This does not apply to any amount that is payable to another person:
(a) under any other Act or law, or
(b) under any agreement referred to in this section, or
(c) under the regulations.
Payments may be made from the Indemnity Fund for the purpose of meeting any reasonable costs and expenses incurred by the company in exercising its functions under this section, including its functions under a subrogation or agreement referred to in this section.
Payments may be made by the company from the Indemnity Fund for the purpose of indemnifying any person who is insured under an approved insurance policy that was issued or renewed by a defaulting insurer, in accordance with arrangements approved from time to time by the Attorney General.
The Law Society and the company may enter into an agreement with a defaulting insurer (including a provisional liquidator or liquidator of a defaulting insurer), or with any insured person, in connection with the payment of amounts from the Indemnity Fund under this section.
In particular, any such agreement may provide for the following:
(a) the assignment or subrogation to the company of the rights and remedies of a defaulting insurer or the insured person (or both) under or in connection with the approved insurance policy,
(b) the recovery by the company from a defaulting insurer of any amount paid from the Indemnity Fund under this section.
Any payment made from the Indemnity Fund under this section, and any agreement entered into with an insured person under this section, does not prevent the recovery by the company from a defaulting insurer of any amount that would have been recoverable by the insured person under or in connection with the approved insurance policy had the payment not been made or the agreement not been entered into.
Any amount recovered by the company as a result of the exercise of its functions under this section (including its functions under an agreement referred to in this section) is to be paid into the Indemnity Fund. This does not apply to any amount that is payable to another person:
(a) under any other Act or law, or
(b) under any agreement referred to in this section, or
(c) under the regulations.
Payments may be made from the Indemnity Fund for the purpose of meeting any reasonable costs and expenses incurred by the company in exercising its functions under this section, including its functions under an agreement referred to in this section.
For the purposes of this section, an insurer under an approved insurance policy is a
(a) the insurer is unwilling or unable to meet any claims or other liabilities under the approved insurance policy, or
(b) a liquidator or provisional liquidator has been appointed in respect of the insurer, or
(c) the insurer has been dissolved.
An insurable solicitor is liable to pay to the Indemnity Fund an annual contribution of an amount determined by the company and approved by the Law Society Council. An insurable solicitor is also liable to pay to the Indemnity Fund such further amounts in respect of the annual contribution as may be determined by the company and approved by the Law Society Council.
The company may make a different determination under subsection (1) for a particular solicitor or class of solicitors.
If a solicitor applies for a practising certificate that will be in force for part only of a year commencing on the relevant date, the contribution is such proportion of the total amount determined for the solicitor under subsection (1) as is borne to 1 year by the number of days for which the practising certificate will be in force.
A contribution required to be paid under this section must be paid to the company on account of the Indemnity Fund.
The company may permit a contribution to be paid by instalments under an arrangement approved by the Law Society Council.
In this section,
If the company is at any time of the opinion that the assets of the Indemnity Fund may be insufficient to meet its liabilities, the company may impose on each insurable solicitor a levy payable to the company on account of the Indemnity Fund.
In this Part:
The amendments made to section 203 by the amending Act extend to applications made before the commencement of those amendments.
Section 208JAA, as inserted by the amending Act, does not apply to any certificate issued (whether before or after the commencement of that section) in respect of an application for an assessment that is made before the commencement of that section.
Section 208J (5), as inserted by the amending Act, extends to any determination made before the commencement of that subsection in respect of which a certificate has not, before that commencement, been issued under section 208J.
Subdivision 4A of Division 6 of Part 11, as inserted by the amending Act, does not apply in respect of a determination of a costs assessor if the application for assessment was made before the commencement of section 208KA.
Accordingly, a review is not available under that Subdivision in respect of such a determination.
Schedule [16] to the amending Act does not affect any payment made or required to be made to the Law Society for the credit of the Statutory Interest Account under section 208U (2), as in force immediately before the commencement of Schedule [16], except as otherwise provided by this clause.
Section 208U (2), as inserted by Schedule 1 [16] to the amending Act, extends to any application fee for an assessment, or payment for the costs of a costs assessor, that was payable before the commencement of Schedule 1 [16] and which, at the commencement of Schedule 1 [16], has not been received by the proper officer of the Supreme Court. Accordingly, if such a fee or payment is received by the proper officer after the commencement of Schedule 1 [16] to the amending Act it is to be dealt with as required by section 208U (2), as inserted by Schedule 1 [16] to the amending Act.
The Director-General of the Attorney General’s Department may direct that there is to be deducted from any amount received before the commencement of Schedule 1 [16] to the amending Act that is to be paid to the Law Society for the credit of the Statutory Interest Account under section 208U (2), as in force immediately before the commencement of Schedule 1 [16], such amount or proportion of that payment as the Director-General considers to be attributable to the costs of administration of Division 6 of Part 11, including the costs of enforcing determinations of costs assessors.
Any amount or proportion so deducted is to be paid to the working account provided for by section 208U (as amended by Schedule 1 [16] to the amending Act).
In this Part:
The Public Purpose Fund is a continuation of the Statutory Interest Account and accordingly the following provisions have effect:
(a) the assets and liabilities of the Statutory Interest Account are the assets and liabilities of the Public Purpose Fund,
(b) a reference in any instrument (other than this Act) to the Statutory Interest Account is taken to be a reference to the Public Purpose Fund.
The Public Purpose Fund is a continuation of the Solicitors’ Trust Account Fund and accordingly the following provisions have effect:
(a) the assets and liabilities of the Solicitors’ Trust Account Fund are the assets and liabilities of the Public Purpose Fund,
(b) a reference in any instrument (other than this Act) to the Solicitors’ Trust Account Fund is taken to be a reference to the Public Purpose Fund.
Any agreement relating to the payment of interest on general trust accounts kept by solicitors for the purposes of section 61 that had effect immediately before the commencement of section 69E (as inserted by the Legal Profession Amendment Act 1998), and that is approved by the trustees of the Public Purpose Fund for the purposes of section 69E (whether before or after the commencement of that section), is taken to be an agreement for the purposes of section 69E.
Any bank, building society or credit union that is a party to such an agreement is taken to be an approved financial institution for the purposes of section 61.
A reference in Division 2 of Part 6, as inserted by the Legal Profession Amendment Act 1998, to a general trust account kept by a solicitor for the purposes of section 61 (1) (a) extends to a general trust account kept by a solicitor for the purposes of section 61 (2) (a), as in force before the commencement of Schedule 4 [6] to the Legal Profession Amendment Act 1996.
Section 208S (5), as inserted by the Legal Profession Amendment Act 1998, does not affect any proceedings instituted before the commencement of that subsection.
Section 208JB, as inserted by the Legal Profession Amendment Act 1998, does not apply to a determination made by a costs assessor before the commencement of that section.
Section 208KHA, as inserted by the Legal Profession Amendment Act 1998, does not apply to a determination made by a panel before the commencement of that section.
In this Part:
Section 61A:
(a) applies only to money received by a solicitor on or after the commencement of that section, and
(b) applies even if the costs referred to in that section were awarded by the Compensation Court before the commencement of that section.
Section 122 (2), as inserted by the amending Act, applies in respect of an advance of money made or proposed to be made on or after the relevant commencement date by a solicitor to a borrower for a State regulated mortgage even if:
(a) the money was entrusted to the solicitor by the client before the relevant commencement date, or
(b) an authority to advance the money was given to the solicitor by the client before the relevant commencement date, or
(c) the regulated mortgage was entered into before the relevant commencement date.
An authority given by a client before the relevant commencement date in accordance with clause 55 of the Legal Profession Regulation 1994 is taken to be an authority for the purpose of section 122 (2) (b) but not if it is a general lending authority given under clause 55 of the Legal Profession Regulation 1994.
In this clause, the
Section 122B, as inserted by the amending Act, applies to money entrusted to a solicitor by a client after the commencement of that section, and section 122C applies accordingly.
In this Part:
Any investigation or decision of a Council, the Commissioner, the Administrative Decisions Tribunal, the former Legal Services Tribunal or any court with respect to a complaint made or initiated before 4 February 2000 is not invalid because the complaint was made or initiated more than 3 years after the conduct concerned was alleged to have occurred, whether or not the Commissioner accepted the complaint in accordance with section 138 (as in force before its amendment by the amending Act).
The variation of an information by the Administrative Decisions Tribunal or the former Legal Services Tribunal before 4 February 2000 to include an additional allegation is not invalid because the alleged conduct concerned occurred more than 3 years before the variation was made.
This clause does not operate to reverse the decision of a court in a particular case in which proceedings were finally determined before the commencement of this clause. However, this subclause does not preclude further complaints with respect to the same or any related conduct.
A complaint that was made or initiated under Division 3 of Part 10 and that was not determined before the substitution of that Division by the amending Act is taken to be a complaint made under that Division, as substituted by the amending Act.
Sections 147A (1A), 155A and 160 (1) (c3), as inserted by the amending Act, extend to a complaint made before the commencement of those provisions.
Sections 167A (3) and 167B, as inserted by the amending Act, extend to an information laid before the commencement of those provisions.
In this Part:
This clause applies to a solicitor corporation that was formed under Division 1 of Part 10A of this Act and that was in existence immediately before the repeal of that Part by the amending Act.
Any such solicitor corporation is not dissolved by the repeal of Part 10A of this Act, but that Part continues to apply to the solicitor corporation (despite its repeal) until the winding up of the corporation in accordance with that Part or with the regulations made under this Schedule. Any such regulations may apply provisions of the Corporations Act 2001 of the Commonwealth or any other Act, with or without modification.
Until the dissolution of any such solicitor corporation, any other provision of this Act relating to solicitor corporations that is repealed by the amending Act continues to apply, subject to the regulations made under this Schedule, to the solicitor corporation (despite the repeal of the provision).
The transfer, in accordance with the Corporations Act 2001 of the Commonwealth, of the incorporation of any such solicitor corporation to incorporation under the Corporations Act 2001 of the Commonwealth is authorised.
In this Part,
Any written statement that:
(a) was provided before the commencement of section 38FB, and
(b) is a statement as to why, despite the commission of an act of bankruptcy or a finding of guilt of the commission of an indictable offence or a tax offence, the person making the statement considers that he or she is a fit and proper person to hold a practising certificate,
is taken to be a statement provided in accordance with section 38FB in relation to that act of bankruptcy or finding of guilt.
For the purposes of the definition of
A Council or the Commissioner is not required to make a determination under section 38FC in relation to a legal practitioner who has committed an act of bankruptcy or been found guilty of an indictable offence or a tax offence if, before the commencement of that section:
(a) the commission of the act of bankruptcy or the finding of guilt was considered by the Council, and
(b) a determination was made by the Council as to whether, despite the act of bankruptcy or finding of guilt, the legal practitioner was a fit and proper person to hold a practising certificate.
The person holding office as Legal Services Commissioner immediately before the repeal of section 129 by the amending Act is taken to have been appointed to that office under section 59B and holds that office for the duration of the term for which the person was appointed under section 129.
A person holding office as acting Legal Services Commissioner immediately before the repeal of section 130 by the amending Act is taken to have been appointed to that office under section 59C and holds that office for the duration of the term for which the person was appointed under section 130.
A person employed as a member of staff of the Legal Services Commissioner under section 132 (2) immediately before the repeal of that subsection by the amending Act is taken to be employed as a member of staff under section 59H (2).
A delegation made by the Commissioner under section 133 and in force immediately before the repeal of that section by the amending Act is taken to have been made under section 59I.
An appeal made under section 171F before the commencement of an amendment made to that section by the amending Act is to be dealt with as if the amendment had not been made to that section.
A reference in section 36 (5), as substituted by the Legal Profession Amendment (Professional Indemnity Insurance) Act 2001, to a change in the relevant date includes a change in the relevant date that was made before the substitution of that subsection.
An indemnity agreement referred to in Schedule 2A may be entered into on or after the commencement of that Schedule and may have effect in relation to the whole of the extension period (within the meaning of that Schedule), even if entered into after the commencement of the extension period.
Section 208NC, as inserted by the Courts Legislation Amendment Act 2001, applies to an appeal under section 208M made before the commencement of that section.
Division 5B (Maximum costs in personal injury damages matters) of Part 11 does not apply in respect of legal services provided before 7 May 2002 but extends to legal services provided on or after that date even if the legal services are provided in connection with a claim that arose before that date (and whether or not proceedings on the claim were commenced before that date).
Division 5C (Costs in civil claims where no reasonable prospects of success) of Part 11 extends to legal services provided on or after 20 March 2002 even if the legal services are provided in connection with a claim that arose before that date (and whether or not proceedings on the claim were commenced before that date).
However, section 198L (2) and (3) do not apply in respect of proceedings commenced before the date of assent to the Civil Liability Act 2002.
An order may not be made under section 198M (and an application for such an order may not be made) before the date of assent to the Civil Liability Act 2002.
In the application of Division 5B of Part 11 to a claim for personal injury damages that straddles 7 May 2002, the following provisions have effect in respect of the costs for legal services provided to a party in connection with the claim:
(a) the costs for legal services provided on or after 7 May 2002 are to be determined as a proportion of the total costs for legal services provided to the party (that is, for legal services provided before, on or after 7 May 2002),
(b) the proportion determined under paragraph (a) is to be applied to the maximum costs for legal services that would (apart from this clause) be applicable in respect of the claim under section 198D, so as to arrive at a
reduced maximum amount for costs in respect of legal services provided on or after 7 May 2002,(c) that reduced maximum amount becomes, for the purposes of section 198D, the maximum costs for legal services provided to the party in connection with the claim on or after 7 May 2002.
Section 198D does not apply to costs for legal services provided before 7 May 2002.
After the date of assent to the Civil Liability Act 2002, a solicitor or barrister must not provide a legal service to a party in connection with a claim for personal injury damages that straddles 7 May 2002 unless the party has been notified in writing by the solicitor or barrister of the effect of Divisions 5B and 5C of Part 11.
A claim
Section 29, as in force immediately before its repeal by the Legal Profession Amendment (National Competition Policy Review) Act 2002, continues to apply in respect of practising certificates issued by the Bar Council before the commencement of section 29A, as inserted by that Act.
Section 29, as in force immediately before its repeal by the Legal Profession Amendment (National Competition Policy Review) Act 2002, continues to apply in respect of practising certificates issued by the Law Society Council before the commencement of section 29B, as inserted by that Act.
Section 38J (3), as inserted by the Legal Profession Amendment (National Competition Policy Review) Act 2002, applies only in respect of contraventions of section 38J (2) that occur after the commencement of section 38J (3).
Section 171OA (4) and (5), as in force immediately before the repeal of section 171OA by the Legal Profession Amendment (National Competition Policy Review) Act 2002, continues to apply in respect of anything done before the repeal of section 171OA.
The amendment made to section 60 by the Miscellaneous Acts Amendment (Relationships) Act 2002 does not apply in respect of money or other valuable property received by or paid or entrusted to a solicitor or an associate of a solicitor before the commencement of the amendment.
In this Part,
An application made in accordance with section 203 before the amendment of that section by the 2002 amending Act is taken to have been made in accordance with that section, as amended by that Act.
An application made in accordance with section 208KA before the amendment of that section by the 2002 amending Act is taken to have been made in accordance with that section, as amended by that Act.
Section 204, as amended by the 2002 amending Act, extends to any application for assessment made before the commencement of that amendment.
The amendments to sections 208JB and 208KHA made by the 2002 amending Act do not affect any judgment that has been varied under either of those sections before the commencement of those amendments.
In this Part,
A regulation made before the commencement of the amendment made by the amending Act to section 30 is and is taken always to have been as valid as it would be or would have been if the amendment had been in force when the regulation was made.
Anything done or omitted to be done under section 37 before the commencement of the amendments made by the amending Act to that section is and is taken always to have been as valid as it would be or would have been if the amendments had been in force when the thing was done or omitted.
Sections 155 and 160 as amended by the amending Act extend to conduct occurring before the commencement of the amendments.
Section 167AA as inserted by the amending Act extends to decisions made to institute proceedings in the Tribunal before the commencement of that section (whether or not the proceedings were instituted or purported to be instituted before that commencement), as if that section had been in force when the decisions were made.
Without limiting subclause (1), if proceedings referred to in that subclause:
(a) were instituted or purported to be instituted in the Tribunal before the commencement of section 167AA, and
(b) were pending in the Tribunal immediately before that commencement,
the proceedings are taken to have been as validly instituted in the Tribunal as they would have been had that section been in force when they were instituted or purported to be instituted.
However, section 167AA does not apply to proceedings instituted or purporting to be instituted in the Tribunal before the commencement of that section where the Tribunal has before that commencement made an order or decision to the effect that the proceedings were not validly instituted.
Section 171 as inserted by the amending Act extends to:
(a) procedural lapses occurring before the commencement of the amendment, and
(b) complaints made before that commencement, and
(c) proceedings pending in the Tribunal at that commencement.
Section 171C (3)–(5) as inserted by the amending Act apply to disciplinary action taken after the commencement of those subsections in proceedings commenced before or after that commencement, but nothing in those subsections or this clause implies that the matters referred to in those subsections relating to disciplinary action taken before that commencement cannot be published or included in the register of disciplinary action.
An appeal pending under old section 171F immediately before the commencement of new section 171F is to be dealt with as if old section 171F had not been omitted and replaced by the amending Act.
New section 171F extends to decisions of the Tribunal made before the commencement of the section, where an appeal had not been made under old section 171F before its omission and replacement by the amending Act.
The amending Act does not affect any appeal pending in, or right of appeal to, the Supreme Court from a decision of an Appeal Panel.
In this clause:
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