Legal Profession Amendment Act 2002 (TAS)

Legal Profession Amendment Act 2002

An Act to amend the Legal Profession Act 1993

[Royal Assent 28 June 2002]

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

1Short titleThis Act may be cited as the Legal Profession Amendment Act 2002 . 2CommencementThis Act commences on the day on which this Act receives the Royal Assent. 3Principal ActIn this Act, the Legal Profession Act 1993 is referred to as the Principal Act. 4Section 107 amended (Solicitors' Guarantee Fund) Section 107 of the Principal Act is amended as follows: (a) by inserting the following subsection after subsection (1) : (1A)  The primary purpose of the Guarantee Fund is to provide compensation or exoneration as specified in section 112 . (b) by omitting subsection (2) . 5Section 108 amended (Application of funds of Guarantee Fund) Section 108 of the Principal Act is amended as follows: (a) by inserting in subsection (2)(a)(ii) "a liquidator appointed in the circumstances referred to in subparagraph (iii) , a person appointed as manager under section 119(2)(b) ," after "by"; (b) by inserting the following subparagraph after subparagraph (ii) in subsection (2)(a) : (iii) remuneration payable to, and costs incurred by, a liquidator appointed under section 601EE of the Corporations Act 2001 of the Commonwealth, to wind up an unregistered managed investment scheme operated by a firm, a legal practitioner corporation or a manager, on the application of the Australian Securities and Investments Commission or a member of that scheme; and (c) by omitting from subsection (2)(b) "referred to in section 107 (2) ," and substituting "of $3.5 million or such greater amount as the Minister and the Council agree,"; (d) by inserting the following subsections after subsection (2) : (2A)  For the purpose of subsection (2)(a)(iii) , manager means a person appointed as manager under section 119(2)(b) . (2B)  If a liquidator has been appointed in the circumstances referred to in subparagraph (iii) of subsection (2)(a) before the commencement of the Legal Profession Amendment Act 2002 , the remuneration and costs referred to in that subparagraph incurred by that liquidator in the winding up of an unregistered managed investment scheme before that commencement must be paid by the Trust under that subparagraph to the liquidator. (2C)  If the Trust pays an amount in accordance with subsection (2)(a)(iii) , the Trust may make an application to the Supreme Court for an order that that amount or a lesser amount be paid to the Trust by the firm, a member or former member of the firm or the legal practitioner corporation which, at any time, operated the unregistered managed investment scheme to which a liquidator has been appointed under section 601EE of the Corporations Act 2001 of the Commonwealth. 6Section 111 amended (Default order and Court fund) Section 111 of the Principal Act is amended as follows: (a) by omitting from subsection (1)(c)(ii) "default." and substituting "default;"; (b) by inserting the following paragraph after paragraph (c) in subsection (1) : (d) a liquidator appointed in the circumstances referred to in section 108(2)(a)(iii) . (c) by omitting from subsection (3) "is a right" and substituting "gives rise to an additional right"; (d) by omitting from subsection (5)(b) "the Supreme Court orders" and substituting "is necessary"; (e) by omitting subsection (6) and substituting the following subsections: (6)  The Trust must pay into a Court fund such amount from the Guarantee Fund as is sufficient to enable the payment of 100 cents in the dollar in respect of – (a) compensation and exoneration specified in section 112 to each person entitled to make, and who makes, a claim on that Court fund in the amount accepted and in accordance with any terms or conditions imposed under section 114 , subject to any orders made under section 115 ; and (b) costs and compensation for lost interest directed by the Supreme Court under section 112(3) . (6A)  The amount referred to in subsection (6) must be paid by the Trust notwithstanding that that amount exceeds the sum standing to the credit of the Guarantee Fund as at the close of business on the day on which an application was made for a default order in respect of which the Court fund was established. (6B)  The Trust may determine the time or times at which such amounts are to be paid. (6C)  In making a determination under subsection (6B) , the Trust may take into account – (a) any other known fiduciary default and the likely claims resulting from it; and (b) the amount of any other Court fund and any claims made or likely to be made on it; and (c) the Trust’s obligations to make payments under section 108(2)(a) ; and (d) the Trust’s obligations to pay the remuneration of a manager appointed under section 119(2)(b) or to indemnify the manager against liability pursuant to an order made by a judge under section 119(2)(b) . (f) by omitting subsection (7) ; (g) by omitting from subsection (8) "to recover that amount or a lesser amount from a firm or legal practitioner corporation" and substituting "that that amount or a lesser amount be paid to the Trust by a firm, a member or former member of a firm or a legal practitioner corporation"; (h) by omitting from subsection (9) "if any amount is recoverable under subsection (8) ," and substituting "whether to make an order on an application under subsection (8) or section 108(2C) ,"; (i) by inserting the following paragraph after paragraph (b) in subsection (9) : (ba) the membership of the firm at any relevant time; and 7Section 112 amended (Application of Court fund) Section 112 of the Principal Act is amended as follows: (a) by omitting from subsection (1) "as" first occurring and substituting "by"; (b) by omitting from subsection (1) "directs"; (c) by omitting subsection (2) and substituting the following subsection: (2)  Compensation payable under subsection (1) does not include compensation for the loss of interest unless the Supreme Court directs otherwise under subsection (3) . 8Section 113 amended (Vesting in Trust of rights) Section 113 of the Principal Act is amended as follows: (a) by omitting "On the making of a default order" and substituting "If a default order has been made"; (b) by inserting "when an amount is paid out of a Court fund to that person and only to the extent of that amount" after "Trust". 9Section 114 amended (Claims against Court fund) Section 114 of the Principal Act is amended by omitting subsection (4) and substituting the following subsections: (3A)  If the Trust is of the opinion that there is a reasonable possibility that the person lodging the claim may recover part or all of the loss to which the claim relates, the Trust may impose terms or conditions on the acceptance of the claim. (4)  If the Trust rejects a claim or imposes terms or conditions on the acceptance of a claim, it must notify in writing the person lodging the claim of the reasons for the rejection or the imposition of the terms or conditions. 10Section 115 amended (Review of rejection of claim or imposition of terms or conditions) Section 115 of the Principal Act is amended as follows: (a) by inserting in subsection (1) ", or to impose terms or conditions on the acceptance of a claim," after "claim"; (b) by omitting from subsection (2) "of the rejection of a claim under section 114 ," and substituting "under section 114(4) ,"; (c) by inserting in subsection (3)(a) ", or to impose terms or conditions on the acceptance of the claim," after "claim". 11Section 116 amended (Administration of Court fund) Section 116 of the Principal Act is amended by omitting subsection (3) and substituting the following subsections: (3)  The Trust may enter into an agreement for the compromise or settlement of – (a) any claim made; or (b) any right to make a claim – against a Court fund whether or not the loss to which the claim relates has been ascertained. (3A)  The Trust may do all things necessary or convenient to enter into or perform an agreement under subsection (3) including entering into an agreement with a liquidator appointed in the circumstances referred to in section 108(2)(a)(iii) or a manager appointed under section 119(2)(b) . 12Section 122A insertedAfter section 122 of the Principal Act , the following section is inserted in Division 7: 122ACertain orders taken to be judgments of Supreme Court An order made by the Supreme Court under section 108(2C) or section 111(8) is taken to be a judgment of the Supreme Court and is enforceable under the Supreme Court Civil Procedure Act 1932 .

[Second reading presentation speech made in:

House of Assembly on 18 JUNE 2002

Legislative Council on 19 JUNE 2002]