Legal Profession Reform Act 1993 (NSW)

LEGAL PROFESSION REFORM ACT 1993 No. 87

NEW SOUTH WALES

TABLE OF PROVISIONS

1. Short title
2. Commencement
3. Amendment of Legal Profession Act 1987 No. 109

4. Amendment of other Acts

SCHEDULE 1—REFORMS RELATING TO THE STRUCTURE AND

REGULATION OF THE LEGAL PROFESSION

SCHEDULE 2—REFORMS RELATING TO COMPLAINTS AND DISCIPLINE SCHEDULE 3—REFORMS RELATING TO LEGAL FEES AND OTHER COSTS SCHEDULE 4—MISCELLANEOUS AND CONSEQUENTIAL AMENDMENTS SCHEDULE 5—AMENDMENT OF OTHER ACTS RELATING TO JUDICIAL

AND OTHER APPOINTMENTS

SCHEDULE 6—CONSEQUENTIAL AMENDMENT OF OTHER ACTS

LEGAL PROFESSION REFORM ACT 1993 No. 87

NEW SOUTH WALES

Act No. 87, 1993

An Act to amend the Legal Profession Act 1987 in relation to the structure, regulation and discipline of the legal profession, the making and handling of complaints about legal practitioners and the regulation of legal fees and other costs; and for other purposes. [Assented to 29 November 1993]

See also Maintenance and Champerty Abolition Act 1993.

Legal Profession Reform Act 1993 No. 87

The Legislature of New South Wales enacts:

Short title

1. This Act may be cited as the Legal Profession Reform Act 1993.

Commencement

2. This Act commences on a day or days to be appointed by

proclamation.

Amendment of Legal Profession Act 1987 No. 109

3. The Legal Profession Act 1987 is amended as set out in

Schedules 1–4.

Amendment of other Acts

4. The Acts specified in Schedules 5 and 6 are amended as set out in

those Schedules.

SCHEDULE l—REFORMS RELATING TO THE STRUCTURE

AND REGULATION OF THE LEGAL PROFESSION

Amendment of Legal Profession Act 1987

(Sec. 3)

(1) Section 3 (Definitions):

(a) From section 3 (l), omit the definitions of “Admission Board”, “barrister”, “legal practitioner”, “solicitor”, “unrestricted practising certificate”.

(b) In section 3 ( l ) , insert in alphabetical order:

“Admission Board” means the Legal Practitioners Admission Board constituted under Part 2;

“admission rules” means rules made under this Act by the Admission Board;

“barrister” means a legal practitioner who holds a current practising certificate as a barrister;

“barristers rules” means rules made under this Act by the Bar Council;

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“joint rules” means rules made under this Act jointly by the Bar Council and the Law Society Council;

“legal practitioner” means a person enrolled in the Supreme Court as a legal practitioner;

“solicitor” means a legal practitioner who holds a current practising certificate as a solicitor, and includes a solicitor corporation;
“solicitors rules” means rules made under this Act by

the Law Society Council;

“unrestricted practising certificate’’ means a practising certificate that is not subject to a condition, other than a condition requiring the holder of the certificate to undertake and complete one or more courses of continuing legal education.

(2) Part 2:

Omit the Part, insert instead:

PART 2—ADMISSION OF LEGAL

PRACTITIONERS

Division l—Role of Supreme Court

Admission of legal practitioners

4. (1) The Supreme Court may admit and enrol natural persons as legal practitioners in accordance with subsection (2).

(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.

Legal practitioners to be officers of Supreme Court

5. A legal practitioner is, on and from admission, an officer of the Supreme Court.

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Division 2—Legal Practitioners Admission Board

Rules for registration and admission
6. 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.

Provisions applying to admission rules

7. 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.

Note. 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.

Examiners

8. 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.

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Constitution of Admission Board
9. (1) There is constituted by this Act the Legal Practitioners Admission Board.
(2) The Admission Board has and may exercise the functions conferred or imposed on it by or under this or any other Act.
(3) The Admission Board is not and does not represent the Crown for any purpose.

(4) The Admission Board is a body corporate.

(5) Schedule 2 has effect with respect to the Admission

Board.

Membership of Admission Board

10. (1) The Admission Board is to consist of 9 members.

(2) 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.

Division 3—Character

Character of candidates

11. 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.

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Declaration on character

12. (1) 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.

(2) Unless the Admission Board declares that it is satisfied that the candidate is of good fame and character, it must refuse to approve of the application for' admission.

(3) 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).

Early consideration of character

13. (1) 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.

(2) Such an application can be made on applying for registration as a student-at-law or after being registered as a student-at-law.

(3) The applicant must serve a copy of the application on the Bar Council and the Law Society Council in accordance with the admission rules.

(4) The Admission Board is to consider each application under this section and make the declaration sought or refuse to do so.

Appeals

14. (1) 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.

(2) If a declaration sought under section 13 is refused, the applicant may appeal to the Supreme Court against the refusal of the declaration.

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(3) 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.

(4) 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.

(5) 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.
(6) On an appeal under this section, the Supreme Court

may make such order or declaration as it thinks fit.

Binding effect of declaration

15. A declaration made under section 13, or an order or declaration of the Supreme Court under section 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.

Representation by Councils

16. (1) A Council is entitled to be represented before, and to be heard by, the Supreme Court on an appeal under section 14.

(2) 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.

(3) The applicant concerned in the matter before the Admission Board is also entitled to be represented and heard at the inquiry and to make representations.

Division 4—Miscellaneous

Miscellaneous provisions respecting admission

17. (1) Persons cannot be admitted or enrolled as barristers or solicitors.

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(2) Any inherent power or jurisdiction of the Supreme Court to admit barristers and solicitors (or legal practitioners) is revoked.

(3) 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.

References to barristers and solicitors
18. (1) 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 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 reference to a solicitor, or a solicitor or barrister, within the meaning of this Act.

(2) 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.

Cancellation of practising certificates

19. A practising certificate is automatically cancelled if the holder ceases to be a legal practitioner.

(3) Part 3, heading:

Omit the heading, insert instead “PART 3—LEGAL
PRACTICE”.

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(4) Part 3, Divisions 1–1B:

Omit Division 1 of Part 3, insert instead:

Division l—Practising certificates

Requirement for practising certificate
25. (1) A legal practitioner must not practise as a barrister
or solicitor without being the holder of a current practising
certificate.

(2) A legal practitioner must not hold himself or herself out to be a barrister without being the holder of a current practising certificate as a barrister.

(3) A legal practitioner must not hold himself or herself out to be a solicitor without being the holder of a current practising certificate as a solicitor.

(4) A legal practitioner who contravenes this section wilfully and without reasonable excuse is guilty of professional misconduct.

Election to practise as barrister or solicitor

26. (1) A legal practitioner may, subject to this Act, elect to practise as a barrister or as a solicitor.

(2) A legal practitioner is, subject to this Act, entitled to be
issued with a practising certificate as a barrister or solicitor.

Note. A person may not hold current practising certificates at the same time as a barrister and as a solicitor, see section 38D.

Barristers

27. (1) The Bar Council may, on application, grant a practising certificate to a legal practitioner authorising the practitioner to practise as a barrister.

(2) 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.

(3) 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.

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(4) Subsection (3) does not prevent the Bar Council from accepting an application made after the prescribed period and before the next 1 July.

Solicitors
28. (1) The Law Society Council may, on application, grant a practising certificate to a legal practitioner authorising the practitioner to practise as a solicitor.

(2) A legal practitioner who does not hold a current practising certificate as a solicitor 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.

(3) A legal practitioner who holds a current practising certificate as a solicitor may, during the prescribed period before the certificate expires, apply to the Law Society Council for a new practising certificate.

(4) Subsection (3) does not prevent the Law Society Council from accepting an application made after the prescribed period and before the next 1 July.

(5) In this section, “legal practitioner” includes a solicitor corporation.

Fees

29. (1) An application for a practising certificate must be
accompanied by a fee of such amount as is determined by the
Council concerned and approved by the Attorney General.
(2) A Council may determine different fees according to

such different factors as are specified in the determination

and approved by the Attorney General.

(3) If an application for a practising certificate is accepted by a Council after the end of the prescribed period during which the application is authorised to be made, payment of a prescribed late fee may, if the Council thinks fit, be required as a condition of acceptance of the application.

Refusal of application for practising certificate as barrister or solicitor

30. (1) A Council must refuse to issue a practising certificate if the application for it:

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(a) is not accompanied by the appropriate fee; or

(b) is not accompanied by, or does not contain, such information as may be prescribed by the regulations.

(2) A Council may refuse to issue a practising certificate (3) 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:

applied for by the holder of a suspended practising
certificate.

a fine imposed because of the finding has not been
paid; or
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
any costs of an inspection or investigation payable
under section 55 by the applicant have not been paid;

or

by the applicant have not been paid.

any expenses of receivership payable under section 110

(4) Other sections of this Act also provide for the refusal of applications for the issue of practising certificates.

Non-payment of contributions and levies by solicitors in respect of Indemnity Fund or Fidelity Fund

31. The Law Society Council may refuse to issue a practising certificate if

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
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

77 is unpaid.

any levy payable by the applicant under section 46 or

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Conditions may be imposed on practising certificates

32. (1) A practising certificate may be issued unconditionally or subject to conditions.
(2) 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.

(3) A condition cannot be attached to a practising certificate unless it is of a kind authorised by this Act to be attached.

(4) The practising certificate issued to a solicitor corporation is not to be subject to any condition.

(5) 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 on practising certificates generally

33. (1) 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.

(2) Other sections of this Act also provide for conditions

that may be attached to practising certificates.

Additional conditions on practising certificates of barristers

34. (1) Conditions of the following kinds can be attached to the practising certificate of a barrister:

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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;

a condition requiring the holder to sit for and pass any examination set by the Bar Council as part of a reading program;

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.
(3) 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).

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Additional conditions on practising certificates of solicitors

35. 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 under particular conditions as to employment.

Duration of practising certificates
36. ( 1) 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.

(2) Any other practising certificate takes effect on the date it bears, and remains in force until immediately before the next relevant date.

(3) 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.

(4) In this section, “relevant date” means:

(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.

(5) A regulation which specifies another date may contain savings and transitional provisions consequent on the change in the date and, in particular, may specify the period for which practising certificates in force when the change is made are to remain in force.

Refusal, suspension or cancellation of practising certificate generally

37. (1) A Council may refuse to issue, may cancel or may
suspend a practising certificate if the applicant or holder:

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is required by the Council to explain specified conduct by the barrister or solicitor as a barrister or solicitor and fails, and continues to fail, to give an explanation satisfactory to the Council; or

has, in the opinion of the Council, failed to comply
with a condition attached to the certificate; or

has contravened an order made in respect of the

applicant or holder by the Tribunal; or
is a disqualified person within the meaning of section
48K; or
has had the applicant’s or holder’s right to practise as a
solicitor, barrister or legal practitioner in another State
or a Territory suspended or cancelled; or
has contravened a provision of this Act; or
is in prison.

(2) 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.

Refusal, suspension or cancellation of practising certificate as solicitor-trust accounts etc.

38. The Law Society Council may refuse to issue, may cancel or may suspend a practising certificate as a solicitor 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.

Refusal, suspension or cancellation of practising certificate—infirmity

38A. (1) A Council may refuse to issue, may cancel or may suspend a practising certificate (other than that of a solicitor corporation) 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

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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.

Before acting under subsection (l), a Council:
may require the applicant or holder to be medically
examined by a medical practitioner nominated by the
Council; and

may hold an inquiry.

Council as evidence of the unfitness of the person to practise

requirement for medical examination may be accepted by a A refusal or failure by a person to comply with a

as a barrister or solicitor.

Appeals relating to practising certificates
38B. (1) 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.

(2) The Supreme Court may make such order in the matter as it thinks fit.

(3) 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.
(4) This section does nut apply if a Council acts in

conformity with a decision of the Tribunal that is in force.

Registers of barristers and solicitors

38C. 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.

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Dual certificates
38D. (1) A legal practitioner may not at the same time

hold current practising certificates as barrister and solicitor.

(2) 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.

Injunctions
practitioner from contravening section 25 or 32.
38E. (1) The Supreme Court may, on the application of a
Council, grant an injunction, in such terms as the Supreme

(2) No undertaking as to damages or costs is required.

Application of provisions of Division

38F. (1) 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.

(2) 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.

(3) Subsection (2) applies only while the person is a legal practitioner to whom at least one of the paragraphs of that subsection applies.

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Division 1AA—Application of Trade Practices

Act 1974

Commencement of Division

38FA. This Division does not have effect until:

31 July 1994; or

the date on which the Federal Court, the Trade Practices Commission and the Trade, Practices Tribunal

are, by a Commonwealth law, permitted to exercise the

jurisdiction, powers and functions conferred on them under the restrictive trade practices laws for the purposes of this Division,

whichever is the later.

Definitions

38FB. In this Division:

“conduct” has the same meaning as in the restrictive

trade practices laws;

“professional association” means the Bar Association,
the Bar Council, the Law Society, the Law Society

Council or any other association of legal practitioners;

“restrictive trade practices laws” —see section 38FC.

Application of restrictive trade practices laws

38FC. (1) The restrictive trade practices laws apply as a law of the State to the conduct of legal practitioners and of any professional association in connection with the provision of legal services.

(2) For the purposes of this Division, the restrictive trade practices laws are the provisions of the Trade Practices Act 1974 of the Commonwealth (and the regulations made under that Act), as amended and in force from time to time and as modified by this section.

(3) The provisions referred to in subsection (2) are modified for the purposes of this Division as follows:

(a) references to corporations include legal practitioners and professional associations (whether incorporated or not);

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(b)	references to interstate trade or commerce include the provision of legal services by legal practitioners (including legal services supplied only within the State);
(c)	section 51 (1) (Exceptions) does not apply to acts -or things specifically authorised or approved by barristers rules, solicitors rules, joint rules or the conditions of practising certificates;
(d)	the provisions of Part 5 and any provisions relating only to goods do not apply.

The regulations under this Act may make other modifications of those provisions.

(4) The Acts Interpretation Act 1901 of the Commonwealth applies to the interpretation of the restrictive trade practices laws.

Exercise of jurisdiction and powers by Federal Court and
the restrictive trade practices laws.
by Trade Practices Commission and Tribunal
38FB. (1) The Federal Court has, for the purposes of this
(2) The Trade Practices Commission and the Trade Practices Tribunal may, for the purposes of this Division only, exercise the powers and functions conferred on them by the restrictive trade practices laws.

(3) This section has effect to the extent that the Federal Court, the Trade Practices Commission and the Trade Practices Tribunal are permitted by Commonwealth law to exercise that jurisdiction and those powers and functions for the purposes of this Division.

Exceptions
38FE. (1) This Division does not apply to any conduct
exempted from this Division by the regulations.

(2) Before any such regulation is made, the Attorney General must certify to the Governor that:

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(a)	he or she has consulted with the Trade Practices Commission, the Advisory Council, the Bar Council and the Law Society Council on the proposed regulation; and
(b)	the public benefit of any conduct proposed to be exempted outweighs the detriment to the public

constituted by any lessening of competition that would
result from the proposed conduct.

(3) 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 service, with the Crown (whether in right of New South Wales or in another right).

Division 1A—Practice as a barrister or solicitor

Practice as a barrister

38G. (1) Practice as a barrister is subject to the barristers

rules.
(2) 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

38H. (1) Practice as a solicitor is subject to the solicitors

rules.

(2) Practice as a solicitor is not subject to any other rules, practice guidelines or rulings of the Law Society or Law Society Council.

Note. 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.

Client access

38I. (1) Barristers. Barristers may accept any clients, subject to the barristers rules and the conditions of any relevant practising certificate.

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(2) Solicitors. Solicitors may accept any clients, subject to the solicitors rules and the conditions of any relevant practising certificate.

(3) Contracts. 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.

(4) Barristers contracts. A barrister may enter into a contract with a client even though the barrister has accepted a brief from a solicitor in the matter.

(5) Immunity. Nothing in this section affects any law relating to immunity to suit in relation to advocacy.

Advertising
38J. (1) A barrister or solicitor may advertise in any way
the barrister or solicitor thinks fit.

(2) 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; or

(c) in contravention of any requirements of the regulations.

Specialisation

38K. A barrister or solicitor may advertise or hold himself or herself out as being a specialist or as offering specialist services, but only if the barrister or solicitor:

(a) has appropriate expertise and experience; or

(b) is appropriately accredited under an accreditation scheme conducted by the Bar Council or Law Society Council.

Advocates
38L. (1) Barristers and solicitors may act as advocates.
(2) Barristers and solicitors may appear, and have a right
of audience, in any court as advocates.

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(3) Joint rules may be made about ethical rules to be observed by barristers and solicitors in the practice of advocacy.

(4) This section does not apply to solicitor corporations. Joint advocates

38M. (1) In any proceedings, more than one barrister or solicitor or a solicitor and barrister may appear together as advocates.

(2) The appearance together as advocates of a barrister and solicitor may be regulated by joint rules, but not by barristers rules or solicitors rules.

Attendance
38N. (1) 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.

(2) Nothing in this section prevents arrangements being made between individual legal practitioners with regard to attendance on each other.

Prohibition of official schemes for recognition of seniority or status

38O. ( I ) 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.

(2) Nothing in this section affects the appointment of a person who was appointed as Queen’s Counsel before the commencement of this section.

(3) Nothing in this section abrogates any prerogative right or power of the Crown to revoke such an appointment.

(4) 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.

(5) 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.

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(6) 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.

(7) In this section:
“executive or judicial officers” includes the Governor,

Ministers of the Crown, Parliamentary Secretaries, statutory office holders, persons employed in the Public Service or by the State, an authority of the State or another public employer, and also includes judicial

office holders or persons acting under the direction of the Chief Justice of New South Wales or other judicial office holder;

“Queen’s Counsel” means one of Her Majesty’s
Counsel learned in the law for the State of New South

Wales and extends to King’s Counsel where appropriate.

Barristers receiving money on behalf of other

38P. (1) 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.

(2) 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.

Service with the Crown

38Q. Nothing in this Division affects:

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

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).
Division 1B—Barristers’ indemnity insurance

Indemnity insurance
38R. (1) The Bar Council may not issue a practising
certificate to an insurable barrister unless it is satisfied that

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there is, or will be, in force with respect to the barrister an

approved indemnity insurance policy.

A policy of indemnity insurance is approved i f :

the policy is not to expire before the expiration of the practising certificate of the barrister to whom the policy relates; and

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

any conditions imposed by the order are complied
with.

The Bar Council may not issue a practising certificate

certificate is not accompanied by evidence that there is, or insurable barrister whose application for the practising

will be, in force with respect to the barrister an approved

indemnity insurance policy.

(4) In this section, “insurable barrister” means a
barrister required by the regulations to be an insured barrister.

(5) Part 3, Division 3:
After Division 2 of Part 3, insert:

Division 3—Crown Solicitor

Crown Solicitor

48A. ( 1) The Crown Solicitor may, in his or her official capacity, act as solicitor for:

the State of New South Wales; or
a person suing or being sued on behalf of the State of
New South Wales; or
a Minister of the Crown in his or her official capacity
as such a Minister; or
a body established by an Act or other law of New

South Wales; or

body established by an Act or other law of New South

other service of the State of New South Wales or of a an officer or employee of the Public Service or any

Wales; or

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(f)	a person holding office under an Act or other law of New South Wales or because of the person’s appointment to that office by the Governor or a Minister of the Crown; or
(g)	any other person or body, or any other class of persons or bodies, approved by the Attorney General.

(2) The Crown Solicitor may act. under subsection (1):
(a) with or without charge; or

(b) for a party in a matter that is not the subject of

litigation, even if also acting under that subsection for
another party in the matter.

(3) The Crown Solicitor may, in his or her official capacity, act as agent for:

(a) another State or a Territory; or

(b) at the request of another State or a Territory—an instrumentality of, or a person in the service of, that State or Territory.

(4) If, under subsection (1) (g), the Crown Solicitor is given approval to act as solicitor for a Minister of the Crown (otherwise than in his or her official capacity as such a Minister), the following must be included in the annual report under the Annual Reports (Departments) Act 1985 of the Crown Solicitor’s activities:

the name of the Minister;
the matter in which the Crown Solicitor acted (but
without disclosure of any confidential client

information);

the costs incurred by the Crown Solicitor in acting for

the Minister and the amount charged to the Minister for

so acting.

(5) In this section, a reference to a State or a Territory
includes a reference to the Crown in right of the State or
Territory and to the Government of the State or Territory.

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(6) Part 3A:

After Part 3, insert:

PART 3A—UNQUALIFIED PRACTITIONERS
Unqualified person acting as a barrister or solicitor

48B. (1) A person must not act as a barrister or solicitor unless the person holds a current practising certificate.

Maximum penalty: 20 penalty units.
(2) This section does not prevent a licensed conveyancer

from carrying out conveyancing work in accordance with a licence in force under the Conveyancers Licensing Act 1992.

(3) A person who contravenes this section is, whether or
not prosecuted or convicted for the contravention, guilty of

contempt of any court in relation to which the contravention

place.
If a person contravenes this section:
no action lies for the recovery of costs in respect of
anything done in the course of the contravention; and
if any such costs have been paid, the amount paid may
be recovered as a debt owed by the person to the other

person who paid them.

For the removal of doubt, it is declared that a reference

in this section to a person includes a reference to a body

corporate.

Unqualified person making false representations to be a barrister or solicitor

48C. (1) A person must not falsely pretend to be qualified to act as a barrister or solicitor.

(2) A person who does not hold a current practising certificate must not:

(a)	take or use a name, title, addition or description implying that the person is qualified to act as a barrister or solicitor; or
(b)	do anything, or permit anything to be done, that holds out, advertises or represents that the person is so qualified.

Maximum penalty: 20 penalty units.

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Offence by corporation or officers

48D. (1) A corporation must not do anything of a kind, or do anything in a manner, that is calculated to imply that the corporation is qualified to act as a barrister or solicitor.

Maximum penalty: 50 penalty units.

(2) A director, officer or employee of a corporation must

not:

(a) do anything of a kind, or do anything in a manner; or

(b) cause the corporation to do anything of a kind, or do anything in a manner,

that is calculated to imply that the corporation is qualified to

act as a barrister or solicitor.

Maximum penalty: 20 penalty units.

(3) In this section, “corporation” does not include a

solicitor corporation which holds an unrestricted practising

certificate.

Limitation on general legal work and probate work

48E. (1) In this section:

“fee” includes any form of, and any expectation of, a fee,

gain or reward;

“general legal work” means the work involved in drawing, filling up or preparing an instrument or other document that:

(a) is a will or other testamentary instrument; or

(b) creates, regulates or affects rights between parties (or purports to do so); or

(c) affects real or personal property; or

(d) relates to a legal proceeding;

“probate work” means the work involved in:

taking instructions for a grant of probate or letters

of administration; or

drawing or preparing papers on which to found or

oppose a grant of probate or letters of

administration.

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(2) A person must not directly or indirectly do any general legal work, or any probate work, for a fee unless the person is a barrister or solicitor.

Maximum penalty: 20 penalty units.
(3) Any general legal work or probate work is taken to

have been done for a fee if it relates to, or is done in conjunction with, other work done by the same person for a fee, unless it is proved that the general legal work or probate work:

(a) was done without the person who did it receiving any advantage or benefit; and

(b) was not offered as an inducement to do the other work.

(4) This section does not apply to:

(a) a public officer drawing instruments in the course of his or her duty; or

(b) a person employed merely to engross an instrument; or

(c)	a land agent in respect of an instrument he or she is entitled to draw, fill up or prepare, and to charge for, under the Land Agents Act 1927; or
(d)	a licensed conveyancer acting in accordance with a licence in force under the Conveyancers Licensing Act 1992.

(5) This section does not apply to a person acting as an employee if the person:

(a)	so acts in the ordinary course of his or her employment; and
(b)	receives no fee, gain or reward for so acting other than his or her ordinary remuneration as an employee.

(6) this section does not apply to a person or work, or a class of persons or work, declared by the regulations as being exempt from the operation of this section.

(7) For the removal of doubt, it is declared that a reference in this section to a person includes a reference to a body corporate.

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Sharing receipts

48F. (1) A barrister or solicitor may share with any other person the receipts of a business of the kind ordinarily conducted by a barrister or solicitor, except to the extent (if any) that the regulations, barristers rules, solicitors rules or joint rules otherwise provide.

(2) This section does not authorise a barrister or solicitor who is employed under a contract of .service by a person who is not a barrister or solicitor to share with the employer the receipts of any business conducted by the barrister or solicitor on behalf of the employer.
(3) However, this section does not affect any business conducted by barristers or solicitors on behalf of their employer if the business:

(a)	concerns a proceeding or transaction to which the employer or a related body is a party; or
(b)	is of a kind prescribed by the regulations or is carried out in circumstances of a kind prescribed by the regulations.

(4) For the purposes of this section, a body is related to an employer if the body and the employer are related to each other in terms of section 50 of the Corporations Law.

Multidisciplinary partnerships

48G. (1) A barrister or solicitor may be in partnership with a person who is not a barrister or solicitor, except to the extent (if any) that the regulations, barristers rules, solicitors rules or joint rules otherwise provide.

(2) This section applies only if the business of the partnership concerned includes business of a kind ordinarily conducted by a barrister or solicitor.
(3) The following provisions apply in respect of a partnership in which a barrister or solicitor is authorised by this section to be a member:

(a) A partner who is not a barrister or solicitor does not contravene this Part merely because the partner conducts business of the partnership that is the business of a barrister or solicitor.

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(b)	A partner who is not a barrister or solicitor does not contravene this Part merely, because the partner receives any fee, gain or reward for business of the partnership that is the business of a barrister or solicitor.
(c)	A partner who is not a barrister or solicitor does not contravene this Part merely because the partner holds out, advertises or represents himself or herself as a member of a partnership conducting the business of a barrister or solicitor.
(d)	A partner who is a barrister or solicitor does not contravene this Part merely because the partner shares with any other partner the receipts of business of the partnership that is the business of a barrister or solicitor.
(e)	Part 6 (Trust Accounts), Part 7 (Solicitors’ Fidelity Fund), Part 8 (Receivers) and Part 8A (Managers) apply, subject to the regulations, as if each partner who is not a solicitor were a solicitor. Those provisions so apply in connection with any business of the partnership (whether or not it is the business of a barrister or solicitor).

(4) This section has effect despite anything to the contrary in this Part (except sections 48J and 48K).

Community legal centres

48H. (1) An organisation, whether incorporated or not, is a

community legal centre which complies with this section if:

(a) it is held out or holds itself out as being a community legal centre (or a centre or establishment of a similar description); and

(b) it provides legal services:

(i)  which are directed generally to persons or organisations who or which lack the financial means to obtain privately funded legal services or whose cases are expected to raise issues of public interest or of general concern to disadvantaged groups in the community; and

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(ii)   which are made available to persons or organisations who or which have a special need arising from their location or the nature of the legal matter to be addressed or have a significant physical or social disability; and

(iii)   which are not intended, or likely, to be provided at a profit to the community legal centre and the income (if any) from which cannot or will not be distributed to any member or employee of the centre otherwise than by way of reasonable remuneration under a contract of service or for services; and

(iv)   which are funded or expected to be funded to a significant level by donations or by grants from government, charitable or other organisations; and

at least one of the persons who is employed or otherwise used by it to provide those legal services is a barrister or solicitor with a current practising certificate and is generally responsible for the provision of those legal services (whether or not the person has an unrestricted practising certificate).

A community legal centre which complies with this section does not contravene this Part merely because:	(a)	it employs, or otherwise uses the services of, solicitors or barristers (or both) to provide legal services to members of the public; or
(b)	it has a contractual relationship with a member of the public to whom those legal services are provided or receives any fee, gain or reward for providing those legal services; or
(c)	it shares with a solicitor or barrister employed or otherwise used by it to provide those legal services receipts from the business of the centre, being business of a kind usually conducted by a solicitor or barrister; or

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(d) it adopts or uses the word “legal” (or some related term) in its name or any registered business name under which it provides legal services to members of the public.

(3) This section has effect despite anything to the contrary in this Part.

Prohibition on employment of certain non-legal clerks

48I. (1) This section applies to a person who:
(a) is not a legal practitioner; and
(b) is or was a clerk to a barrister or solicitor.
(2) On application by a Council, the Tribunal may make an

order prohibiting (without approval under section 48K) any barrister or solicitor from, employing or paying in connection with his or her practice a specified person to whom this section applies if:

the Tribunal is satisfied that the person is not a fit and proper person to be employed or paid in connection with a barrister’s or solicitor’s practice; or

the Tribunal is satisfied that the person has been guilty of conduct which, if the person were a barrister or solicitor, would have constituted unsatisfactory professional conduct or professional misconduct within the meaning of Part 10.

An order made under this section may be revoked by the Tribunal on application by a Council or by the person

against whom the order was made.

(4) A person the subject of an order under this section may appeal to the Supreme Court against the order and the Supreme Court may stay the order pending determination of the appeal.

(5) The death of a barrister or solicitor does not prevent an application being made for, or the making of, an order under this section in relation to a person who was a clerk to the barrister or solicitor.

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Prohibition on partnerships with certain non-legal partners

48J. (1) This section applies to a person who:
(a) is not a legal practitioner; and
(b) is or was a partner of a barrister or solicitor.
(2) OR application by a Council, the Tribunal may make an

order prohibiting (without approval under section 48K) any barrister or solicitor from being a partner, in a business that includes the barrister’s or solicitor’s practice, of a specified

person to whom this section applies if:

(a)	the Tribunal is satisfied that the person is not a fit and proper person to be such a partner; or
(b)	the Tribunal is satisfied that the person has been guilty of conduct which, if the person were a barrister or solicitor, would have constituted unsatisfactory professional conduct or professional misconduct within the meaning of Part 10.

(3) An order made under this section may be revoked by the Tribunal on application by a Council or by the person against whom the order was made.

(4) A person the subject of an order under this section may appeal to the Supreme Court against the order which may confirm or revoke the order. The Supreme Court may stay the order pending determination of the appeal.

(5) The death of a barrister or solicitor does not prevent an application being made for, or the making of, an order under this section in relation to a person who was a partner of the barrister or solicitor.

Associates who are disqualified or convicted persons

48K. (1) It is professional misconduct if a barrister or

solicitor has an associate whom the barrister or solicitor
knows to be:

(a) a disqualified person; or

(b) a person who has been convicted of an indictable offence and does not hold a current practising certificate.

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Subsection (1) does not apply to an associate approved

in the case of a disqualified person who is an associate
of a barrister—the Bar Council; or
in the case of a disqualified person who is an associate
of a solicitor—the Law Society Council;
in the case of a person who has been convicted of an
indictable offence—the Tribunal; or
in any case-the Supreme Court on an appeal under

subsection (3).

person may appeal against the decision to the Supreme Court

application by a person for approval under this section, the If a Council or the Tribunal decides to refuse an

which may:

(a) confirm the decision appealed against; or
(b) approve of the associate.

(4) An approval under this section may be subject to

specified limitations or conditions.

(5) A disqualified person, or a person convicted of an indictable offence, must not seek to become an associate of a barrister or solicitor unless the person first informs the barrister or solicitor of the disqualification or conviction.

Maximum penalty: 10 penalty units.

(6) Proceedings for an offence under subsection (5) may

be brought at any time within 6 months after discovery of the

offence by the barrister or solicitor concerned.

(7) In this section:

“associate” of a solicitor or barrister means:

a person (not being a legal practitioner)	who is a
partner of the solicitor or barrister in a	business
that includes the barrister’s or solicitor’s	practice;

or
a person (not being a legal practitioner) who
shares the receipts of the barrister’s or solicitor’s

practice; or

with the barrister’s or solicitor’s practice;

a person who is employed or paid in connection

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“disqualified person” means a person (other than a person who has been convicted of an indictable offence):

(a) whose name has, otherwise than at his or her own request, been removed from the roll of legal practitioners in the Supreme Court; or

(b) whose name has been removed from a roll kept

outside the State that corresponds to the roll of
legal practitioners in the Supreme Court; or

(c)	who is suspended from practising as a barrister or solicitor in New South Wales or another State or Territory; or
(d)	who is the subject of an order in force under section 48I or 485; or
(e)	who is disqualified from holding a licence under the Conveyancers Licensing Act 1992 by virtue of an order in force under Part 6 of that Act.

Miscellaneous provisions—ss. 481–48K

48L. (1) The parties to an application to the Tribunal under sections 481–48K may be represented by a barrister or solicitor at the hearing of the application.

(2) On making an order under section 48I or 48J, the Tribunal may make an order for costs.

(3) A Council must:

(a)	retain in its office an order made under section 48I or 48J on its application; and
(b)	permit any such order to be inspected during office hours and without charge, but only if the inspection is made by a barrister or solicitor.

(4) In any proceedings under this Act, a document that purports:

(a) to be an order under section 48I or 48J; and

(b) to be signed by the member constituting, or presiding at the sitting of, the Tribunal when the order was made,

is, without further proof, evidence of the order it purports
to be.

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(5) For the purposes of sections 481–48K, the Tribunal is in each case to be constituted as determined by the President of the Tribunal.

Injunctions

48M. The Supreme Court may, on the application of any person, grant an injunction, in such terms as the Supreme Court considers to be appropriate, restraining a person from contravening this Part.

(7) Part 4, Divisions 4, 5:

After Division 3, insert:

Division 4—Rules

Rules of Bar Council

57A. (1) The Bar Council may make rules for or with respect to practice as a barrister.

(2) The power to make rules is not limited to the matters for which this Act specifically authorises the making of barristers rules.

Rules of Law Society Council

57B. ( 1) The Law Society Council may make rules for or with respect to practice as a solicitor.

(2) The power to make rules is not limited to the matters for which this Act specifically authorises the making of solicitors rules.

Joint rules

57C. (1) The Bar Council and Law Society Council may jointly make rules for or with respect to:

(a)	any matters about which joint rules are authorised to be made; or
(b)	any matters about which they may separately make rules.

(2) Joint rules may but need not apply in the same way to both barristers and solicitors.

(3) Joint rules prevail, to the extent of any inconsistency, over barristers rules or solicitors rules (whether made before or after the joint rules).

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(4) If joint rules are made, references in this Act to barristers rules or solicitors rules extend to any such joint rules.

Rules binding
57D. (1) Barristers rules are binding on barristers, solicitors rules are binding on solicitors and joint rules are binding on both barristers and solicitors.

(2) Any such rules are binding on legal practitioners acting as barristers or solicitors without a practising certificate as if those legal practitioners were barristers or solicitors.
(3) Any such rules are binding on barristers or solicitors even though they are not members of the Bar Association or the Law Society.

(4) Failure to comply with any such rules does not of itself amount to a breach of this Act. However, failure to comply is capable of being professional misconduct or unsatisfactory professional conduct.

Inconsistent rules

57E. Barristers rules, solicitors rules and joint rules do not have effect to the extent that they are inconsistent with this Act or the regulations.

Existing rules
57F. (1) The Bar Council may, by a notice published in the Gazette, designate rules of the Bar Association (as in force at the commencement of this section) as barristers rules. Those rules are, to the extent that they could be made under this Act, taken to be barristers rules made under this Act and this Act (including section 57E) applies to those rules accordingly.

(2) The Law Society Council may, by a notice published in the Gazette, designate rules, practice guidelines or rulings of the Council (as in force at the commencement of this section) as solicitors rules. Those rules are, to the extent that they could be made under this Act, taken to be solicitors rules made under this Act and this Act (including section 57E) applies to those rules accordingly.

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(3) Any such barristers or solicitors rules may be amended or revoked in the same way as any other barristers or solicitors rules made under this Act.

(4) Unless they are sooner revoked, any such barristers or solicitors rules expire on the second anniversary of the commencement of this section.

Initial review of rules
57G. (1) Within 12 months after the commencement of
this section, each Council is required to review its barristers
or solicitors rules for the purpose of determining whether it
considers any rule imposes restrictive or anti-competitive
practices which are not in the public interest or is not
otherwise in the public interest.

(2) Each Council must report to the Attorney General on completion of the review.

(3) The Attorney General must make each report public

within 28 days after it is received by the Attorney General.

Review of rules by Advisory Council

57H. (1) The Advisory Council may, from time to time, review the barristers rules, solicitors rules and joint rules. The Advisory Council is required to furnish reports to the Attorney General on any such review of those rules.

(2) The Advisory Council is required to conduct such a review and furnish a report if requested to do so by the Attorney General.
(3) The Attorney General must make each report public
within 28 days after it is received by the Attorney General.
(4) Without limiting the matters about which the Advisory
Council may report, the Advisory Council must report on
whether it considers any rule imposes restrictive or

anti-competitive practices which are not in the public interest

or is not otherwise in the public interest.

Rules may be declared inoperative

57I. (1) The Attorney General may, by order published in
the Gazette, declare any barristers or solicitors rule or joint

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rule, or part of any such rule, inoperative, but only if the Advisory Council has reported to the Attorney General that it imposes restrictive or anti-competitive practices which are not in the public interest or it is not otherwise in the public interest.

(2) A rule or part of a rule may be declared inoperative even though it deals with a matter for which this Act specifically authorises the making of rules.

(3) A declaration is effective to render the rule or the part of the rule inoperative.

(4) A declaration takes effect on the date of the publication of the order in the Gazette or on a later date specified in the order.

Publication of rules

57J. Barristers or solicitors rules or joint rules are to be published in the Gazette and in appropriate professional publications.

Commencement of rules

57K. (1) A barristers or solicitors rule or joint rule commences on the date specified in the rule for its commencement.

(2) The date so specified is not to be earlier than the date of its publication in the Gazette and, unless the Attorney General approves, is not to be earlier than 1 month after the date of that publication.

Other provisions as to rules

57L. Sections 42–45 of the Interpretation Act 1987 apply to barristers or solicitors rules or joint rules in the same way as they apply to statutory rules within the meaning of that Act.

Note. The above provisions of the Interpretation Act 1987 relate to standard provisions authorising the adoption of other publications by reference, the making of differential rules, the amendment or repeal of rules and judicial notice and presumptions as to validity for rules.

Legal Profession Reform Act 1993 No. 87

SCHEDULE l—REFORMS RELATING TO THE STRUCTURE AND REGULATION OF THE LEGAL PROFESSION—continued

Division 5—General

Membership of Bar Association or Law Society

57M. (1) A barrister is entitled to be a member of the Bar Association, and is so entitled without being required to pay any amount additional to that paid for issue of his or her practising certificate.

(2) A solicitor is entitled to be a member of the Law Society, and is so entitled without being required to pay any amount additional to that paid for issue of his or her practising certificate.

Continuing legal education

57N. Each Council may arrange for the establishment and administration of courses of continuing legal education.

(8) Section 58 (Constitution of the Advisory Council):

(a) Omit section 58 (2), insert instead:

(2) The Advisory Council is to consist of 11 members

appointed by the Attorney General.

(b) Omit section 58 (3), insert instead:

(3) Of the members:

(a)	1 is to be appointed as the Chairperson of the Advisory Council; and
(b)	2 are to be barristers, of whom 1 is to be selected from a panel of at least 5 persons nominated by the Bar Council; and
(c)	3 are to be solicitors, of whom 2 are to be selected from a panel of at least 5 persons nominated by the Law Society Council; and
(d)	5 are to be lay persons appointed to represent the community.

(9) Section 59 (Functions of the Advisory Council):

(a) In section 59 (2) (b), after “Attorney General”, insert “, including any matter relating to professional standards, advertising and the general regulation of the legal profession”.

Legal Profession Reform Act 1993 No. 87

SCHEDULE 1—REFORMS RELATING TO THE STRUCTURE AND REGULATION OF THE LEGAL PROFESSION—continued

(b) After section 59 (2), insert:

(3) The Advisory Council is to furnish a report to the
Attorney General on whether it considers any regulation

made under section 216 (3) (b) or any such proposed

regulation referred to it by the Attorney General imposes restrictive or anti-competitive practices which are not in the public interest or is not otherwise in the public interest. The Attorney General must make each report public within 28 days after it is received by the Attorney General.

(4) The Advisory Council may consult with representatives of the Bar Association, the Law Society or any other relevant organisation.

(5) The Advisory Council has such other functions as may be conferred or imposed on it by or under this or any other Act.

(10) Part 9 (Unqualified practitioners):

Omit the Part.

(11) Section 216 (Regulations):

(a) Omit section 216 (3) (b), (c) and (k), insert instead:

(b) matters for or with respect to which barristers rules, solicitors rules or joint rules have been or may be made;

(b) Omit section 216 (3) (h), insert instead:

(h) information to be provided to a Council by a barrister or solicitor (or former barrister or solicitor) about indemnity insurance;

(c) From section 216 (3) (i), omit “and” where lastly occurring.

(12) Schedule 2:

Omit the Schedule, insert instead:

SCHEDULE 2—THE LEGAL PRACTITIONERS

ADMISSION BOARD

(Sec. 9)

General procedure

1. The procedure for the calling of meetings of the
Admission Board and for conduct of business at those

Legal Profession Reform Act 1993 No. 87

SCHEDULE 1—REFORMS RELATING TO THE STRUCTURE AND REGULATION OF THE LEGAL PROFESSION— continued

meetings is, subject to this Act, to be as determined by the

Board.

Quorum

2. The quorum for a meeting of the Admission Board is 5

members including the member presiding at the meeting.

Presiding and deputy presiding member of Admission
Board

3. The Chief Justice of New South Wales may from time to time nominate one of the judicial members of the Admission Board to be the presiding member of the Board and another of the judicial members of the Board to be the deputy presiding member of the Board.

Presiding member

4. (1) The Chief Justice of New South Wales is to preside

at a meeting of the Admission Board if electing to be present
and electing to preside.

(2) Otherwise:

(a) the presiding member; or

(b) in the absence of the presiding member-the deputy

presiding member; or

(c) in the absence of both-a member elected by and from the members present and voting,

is to preside at the meeting.

(3) The member presiding at a meeting of the Admission Board has a deliberative vote and, in the event of an equality of votes, has a second or casting vote.

Voting

5. A decision supported by a majority of the votes cast at a meeting of the Admission Board at which a quorum is present is the decision of the Board.

Minutes

6. The Admission Board is to cause full and accurate minutes to be kept of the proceedings of each meeting of the Board.

Legal Profession Reform Act 1993 No. 87

SCHEDULE l—REFORMS RELATING TO THE STRUCTURE AND REGULATION OF THE LEGAL PROFESSION—continued

Reserve members

7. (1) For each member of the Admission Board, one or more reserve members may be nominated to act in the office of the member during the member’s illness or absence.

(2) While so acting, a reserve member has and may exercise all the functions of the member and is taken to be a member of the Admission Board.

(3) For a member who is the .Attorney General or a nominee of the Attorney General, the reserve member or members may be nominated by the Attorney General.

(4) For any other member, the reserve member or members are to be nominated by the person or body that nominated the member and must be qualified for nomination in the same way as the member.

(5) A person may be removed, by the nominating person or body, from any office for which the person was nominated under this clause.

(6) For the purposes of this clause, a vacancy in the office of a member of the Admission Board is taken to be an absence from office of the member.

Liability of members
8. (1) Subject to subclause (2), no matter or thing done by the Admission Board or any member of the Board is, if the matter or thing was done in good faith for the purpose of executing Part 2, to subject any such member personally to any action, liability, claim or demand.

(2) A judicial member of the Admission Board is, in the exercise of his or her functions under Part 2, to have the same protection and immunity as a Judge of the Supreme court.

Seal
9. The regulations may make provision for or with respect

to the custody and use of the seal of the Admission Board.

(13) Schedule 3 (The Legal Profession Advisory Council):

(a) Omit Part 1.

(b) Omit clause 8 (3).

Legal Profession Reform Act 1993 No. 8 7

SCHEDULE 1—REFORMS RELATING TO THE STRUCTURE AND REGULATION OF THE LEGAL PROFESSION—continued

(c) From clause 12, omit “5 members”, insert instead “6 members”.

(14) Schedule 8 (Savings, transitional and other provisions):

(a) Omit clauses 4 and 5.

(b) After Part 4, insert:

Part 5—Provisions consequent on enactment of

Schedule l to the Legal Profession Reform Act 1993

Barristers

30. (1) A person enrolled as a barrister at the commencement of Schedule 1 (2) to the Legal Profession Reform Act 1993 is taken to have been admitted as a legal practitioner on the day on which the person was admitted as a barrister.
(2) However, if the person has been on the roll of barristers or solicitors since the date of the person’s first admission as either a barrister or solicitor, the person is taken to have been admitted as a legal practitioner on the first date on which the person was admitted as either a barrister or solicitor.

(3) A person holding a practising certificate as a barrister at that commencement is taken to have been issued with a practising certificate as a barrister under this Act as amended by the Legal Profession Reform Act 1993. The certificate continues in force accordingly.

Solicitors

31. ( 1) A person enrolled as a solicitor at the commencement of Schedule 1 (2) to the Legal Profession Reform Act 1993 is taken to have been admitted as a legal practitioner on the day on which the person was admitted as a solicitor.

(2) However, if the person has been on the roll of barristers or solicitors since the date of the person’s first admission as either a barrister or solicitor, the person is taken to have been admitted as a legal practitioner on the first date on which the person was admitted as either a barrister or solicitor.

Legal Profession Reform Act 1993 No. 87

SCHEDULE l—REFORMS RELATING TO THE STRUCTURE AND REGULATION OF THE LEGAL PROFESSION— continued

(3) A person holding a practising certificate as a solicitor at that commencement is taken to have been issued with a practising certificate as a solicitor under this Act as amended by the Legal Profession Reform Act 1993. The certificate continues in force accordingly.

Admission Boards

32. (1) The Barristers Admission Board and Solicitors Admission Board are abolished.

(2) Anything done by, to or in relation to either of those Boards is taken to have been done by, to or in relation to the Legal Practitioners Admission Board, except as may be provided by the regulations.

(3) The Attorney General may call the first meeting of the Legal Practitioners. Admission Board in such way as the Attorney General thinks fit.

Students-at-law

33. (1) An application to be registered as a student-at-law pending at the commencement of Schedule 1 (2) to the Legal Profession Reform Act 1993 is taken to be an application to be registered as a student-at-law by the Admission Board.

(2) A person registered as a student-at-law at that commencement is taken to be registered as a student-at-law by the Admission Board.

Declarations as to character

(1) An application for a declaration under section 20 pending at the commencement of Schedule 1 (2) to the Legal Profession Reform Act 1993 is taken to be an application for a declaration by the Admission Board.

34.

(2) A declaration made by the Barristers Admission Board or the Solicitors Admission Board before that commencement and in force at that commencement is taken to be a declaration made by the Legal Practitioners Admission Board under section 12 of this Act as amended by the Legal Profession Reform Act 1993.

Legal Profession Reform Act 1993 No. 87

SCHEDULE 1—REFORMS RELATING TO THE STRUCTURE AND REGULATION OF THE LEGAL PROFESSION— continued

Legal Profession Advisory Council
35. (1) A person who held office as a member of the Advisory Council immediately before the commencement of Schedule 1 (8) to the Legal Profession Reform Act 1993 ceases to hold office on that commencement and is not entitled to any remuneration or compensation for the loss of that office.

(2) However, any such person is eligible (if otherwise qualified) to be appointed as a member of the Advisory Council after the commencement of Schedule 1 (8) to the Legal Profession Reform Act 1993.

(2) Except as provided by subsection (l) , the maximum aggregate amount that may be paid from the Fidelity Fund in respect of all failures to account by the same solicitor or firm of solicitors is such amount as the Law Society Council determines.

(3) The Law Society Council may make a payment from the Fidelity Fund that, but for this subsection, could not be made because of the limit otherwise imposed by this section, but may do so only if satisfied that it would be reasonable to do so after taking into account all ascertained and contingent liabilities of the Fidelity Fund.

Ceiling on payments from the Fidelity Fund—dishonest default

90. The maximum amount that may be paid from the Fidelity Fund under this Act in respect of a particular dishonest default by a solicitor must not exceed the maximum amount the Law Society Council determines for claims relating to dishonest defaults.

Subrogation

90A. (1) On payment of a successful claim against the Fidelity Fund, the Law Society is subrogated to the rights and remedies of the claimant against any person in relation to the failure to account or dishonest default.

(2) Subsection (1) extends, for example, to a right or remedy against any of the following:

(a) the solicitor or associate in respect of whom the claim was made;

Legal Profession Reform Act 1993 No. 87

SCHEDULE 4—MISCELLANEOUS AND CONSEQUENTIAL

AMENDMENTS— continued

(b)	the person authorised to administer the estate of any such solicitor who is deceased, bankrupt or insolvent;
(c)	the receiver, receiver and manager, official manager or liquidator of any such solicitor which is a solicitor corporation or a former solicitor corporation.

(3) Subsection (1) does not extend to a right or remedy against a solicitor who is a partner of a claimant under section 81 and who, in the opinion of the Law Society Council, acted honestly and reasonably in relation to the failure to account.

(4) The Law Society may exercise its rights and remedies under this section in its own name or in the name of the claimant and must pay into the Fidelity Fund any money paid to it as a result of doing so.

(5) If the Law Society brings proceedings under this section in the name of a claimant, the Society must indemnify the claimant against any costs awarded against the claimant in the proceedings.

Sufficiency of Fidelity Fund

90B. If the Fidelity Fund is at any time insufficient to meet all outstanding judgments and claims then enforceable against it:

(a)	the Law Society Council may determine the manner of division among the successful claimants, or any of them to the exclusion of the others, of the money for the time being available in the Fidelity Fund; and
(b)	the judgments and claims are to be finally satisfied from future accumulations of the Fidelity Fund, subject to any limitations imposed by this Act.

Availability of property of the Law Society

90C. (1) The Fidelity Fund is the only property of the Law
Society available for the satisfaction of a successful claim.
(2) Proceedings based on, or for the enforcement of, a
judgment against the Law Society that is to be satisfied from

the Fidelity Fund may not be taken without the leave of the

Supreme Court.

Legal Profession Reform. Act 1993 No. 8 7

SCHEDULE 4—MISCELLANEOUS AND CONSEQUENTIAL

AMENDMENTS— continued

Proceedings against the Law Society

90D. (1) An action does not lie against the Law Society in relation to the Fidelity Fund except:

(a) with the leave of the Law Society Council; or
(b) as provided by this section.

(2) If the Law Society Council wholly or partly disallows a

claim, it must (without delay) give written notice of the
disallowance to the claimant.

(3) A claimant whose claim is wholly or partly disallowed, or whose claim is not determined by the Law Society Council with such period as is prescribed by the regulations, may appeal to the Supreme Court against the disallowance or the failure to determine the claim.

(4) On an appeal under this section, the Supreme Court may make such order as it thinks fit.
(5) If the Law Society Council wholly or partly disallows a claim relating to a failure to account in respect of which a solicitor or an associate has been convicted of an offence involving dishonesty:

(a)	the claimant may take proceedings in the Supreme Court as for a debt due by the Law Society; and
(b)	in any such proceedings, the defences that would have been available to the ,solicitor are available to the Law Society.

Any such claimant may take proceedings instead under subsection (3).

(11) Section 104 (Lien for costs on receivable property):

(a) From section 104 (2), omit “tax the bill of costs”, insert

instead “apply for	an assessment under Part 11 of the bill of
costs”.

(b) Omit section 104 (3), insert instead:

(3) If the solicitor requests the receiver in writing to allow such access to receivable property as is reasonably necessary to enable the solicitor to have a bill of costs assessed in compliance with a notice under subsection (1) or (2), the time allowed for assessment does not begin to run until the access is provided.

Legal Profession Reform Act 1993 No. 87

SCHEDULE 4—MISCELLANEOUS AND CONSEQUENTIAL

AMENDMENTS— continued

(12) Schedule 8 (Savings, transitional and other provisions):

(a) At the end of clause 1A (l), insert:

Legal Profession Reform Act 1993

(b) After clause 1A, insert:

Review of Legal Profession Reform Act 1993

1B. (1) The Attorney General is to review the Legal Profession Reform Act 1993 to determine’ whether the policy objectives of the Act remain valid and whether the Act remains appropriate for securing those objectives.

(2) The review is to be undertaken as soon as possible
after the period of 4 years from the date of assent to the Act.
(3) The Attorney General is to include the functions of the
Legal Services Commissioner, the Advisory Council, the
Attorney General’s Department and costs assessors in the

review.

(4) Any person may make a written submission to the Attorney General in connection with the review.

(5) A report of the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 4 years referred to in subclause (2).

SCHEDULE 5-AMENDMENT OF OTHER ACTS RELATING

TO JUDICIAL AND OTHER APPOINTMENTS

(Sec. 4)

Casino Control Act 1992 No. 15

Section 135 (Qualifications of members):

Omit section 135 (2), insert instead:

(2) At least one of the members of the Authority (other than the Chief Executive) must be a person who:

(a) is or has been a Judge; or

(b) is a legal practitioner of at least 7 years’ standing.

Legal Profession Reform Act 1993 No. 87

SCHEDULE 5—AMENDMENT OF OTHER ACTS RELATING TO

JUDICIAL AND OTHER APPOINTMENTS— continued

Chiropractors and Osteopaths Act 1991 No. 7

Section 45 (Chairperson and Deputy Chairpersons of the

Tribunal):

(a) Omit section 45 (l) , insert instead:

(1) The Governor may appoint:

(a) a qualified person as Chairperson of the Tribunal; and

(b) 1 or more qualified persons as Deputy Chairpersons of the Tribunal.

(1A) A person is qualified for appointment as Chairperson, or as a Deputy Chairperson, if the person:

(a) is or has been a Judge; or

(b) is a legal practitioner of at least 7 years’ standing.

(b) Omit section 45 (8).

Compensation Court Act 1984 No. 89

Section 8 (Appointment and qualification of Judges):

Omit section 8 (2), insert instead:

(2) A person is qualified for appointment as a Judge if the person is under 70 years of age and:

(a) is a Judge of the District Court; or

(b) is a legal practitioner of at least 7 years’ standing.

Crown Advocate Act 1979 No. 59

Section 3 (Appointment of Crown Advocate):

Omit section 3 ( l ) , insert instead:

(1) The Governor may appoint as Crown Advocate a legal practitioner of at least 7 years’ standing.

Director of Public Prosecutions Act 1986 No. 207

Schedule 1 (Provisions relating to senior officers):

(a) From clause 2 (2), omit “one of Her Majesty’s Counsel for the State”, insert instead “a legal practitioner of at least

7 years’ standing”.

Legal Profession Reform Act 1993 No. 8 7

SCHEDULE 5—AMENDMENT OF OTHER ACTS RELATING TO

JUDICIAL AND OTHER APPOINTMENTS— continued
(b) Omit clause 2 (3) and (4), insert instead:

(3) A person is not eligible to be appointed as a Deputy Director unless the person is a legal practitioner of at least 5 years’ standing.

(4) A person is not eligible to be appointed as Solicitor unless the person is a legal practitioner of at least 5 years’ standing.

District Court Act 1973 No. 9

Section 13 (Appointment and qualification of Judges):

Omit section 13 (1) and (2), insert instead:

(1) The Governor may, by commission under the public seal of the State, appoint as a Judge a Magistrate, or a legal practitioner of at least 7 years’ standing.

Guardianship Act 1987 No. 257

Section 49 (Constitution of the Board):

Omit section 49 (3) (a), insert instead:

(a) at least 3 shall be persons who are legal practitioners of

at least 7 years’ standing; and

Industrial Relations Act 1991 No. 34

Section 289 (The Judges):

(a) Omit section 289 (1) (c), insert instead:

(c) a person who is under 72 years of age and is a legal practitioner of at least 7 years’ standing.

(b) Omit section 289 (2) (c), insert instead:

(c) a person who is under 72 years of age and is a legal practitioner of at least 7 years’ standing.

(c) Omit section 289 (3) (b), insert instead:

(b) a person who is under 72 years of age and is a legal practitioner of at least 7 years’ standing.

(d) Omit section 289 (4).

Legal Profession Reform Act 1993 No. 8 7

SCHEDULE 5—AMENDMENT OF OTHER ACTS RELATING TO

JUDICIAL AND OTHER APPOINTMENTS— continued

Land and Environment Court Act 1979 No. 204

Section 8 (Appointment and qualification of Judges):

Omit section 8 (2), insert instead:
(2) A person is qualified for appointment as a Judge if the person is under 70 years of age and:

(a) is a Judge of the Supreme Court; or (b) ,is a Judge of the Industrial Court; or (c) is a legal practitioner of at least 7 years’ standing.

Mental Health Act 1990 No. 9

(1) Schedule 4 (Constitution, membership and meetings of the

Psychosurgery Review Board):

Omit clause 1 (2) (a), insert instead:

(a) a person appointed by the Minister as President of the Board, being a person who is a legal practitioner of at least 7 years’ standing; and

(2) Schedule 6 (Provisions relating to members of the Tribunal):

Omit clause 1 (l), insert instead:

(1) A person is qualified for appointment as President or as

a Deputy President if the person is a legal practitioner of at

least 7 years’ standing.

New South Wales Crime Commission Act 1985 No. 117

Section 3 (Definitions):

Omit section 3 (4) (b), (c) and (d), insert instead:

; or

(b) is a legal practitioner of at least 7 years’ standing,

Legal Profession Reform Act 1993 No. 87

SCHEDULE 5—AMENDMENT OF OTHER ACTS RELATING TO

JUDICIAL AND OTHER APPOINTMENTS— continued

Nurses Act 1991 No. 9

Section 60 (Chairperson and Deputy Chairpersons of the

Tribunal):

(a) Omit section 60 (l), insert instead:

(1) The Governor may appoint:

(a) a qualified person as Chairperson of the Tribunal; and

(b) 1 or more qualified persons as Deputy Chairpersons of the Tribunal.

(1A) A person is qualified for appointment as Chairperson, or as a Deputy Chairperson, if the person:

(a) is a Judge of the District Court; or

(b) is a legal practitioner of at least 7 years’ standing.

(b) Omit section 60 (8).

Radiation Control Act 1990 No. 13

(1) Section 20 (Special inquiries):

Omit section 20 (l), insert instead:

(1) The Minister may authorise a legal practitioner of at least 7 years’ standing to conduct an inquiry into any accident or incident involving a radioactive substance or radiation apparatus.

(2) Section 29 (Radiation Advisory Council):
Omit section 29 (2) (i), insert instead:

(i)  a person who is a legal practitioner of at least 7 years’ standing; and

Royal Commissions Act 1923 No. 29

Section 15 (Application of Division):

(a) Omit section 15 (3) (a), insert instead:

(a) the chairman of a commission or the sole commissioner is a legal practitioner of at least 7 years’ standing; and

(b) From the definition of “commissioner” in section 15 (4), omit “Judge or Queen’s Counsel”, insert instead “Judge or legal practitioner”.

Legal Profession Reform Act 1993 No. 87

SCHEDULE 5—AMENDMENT OF OTHER ACTS RELATING TO

JUDICIAL AND OTHER APPOINTMENTS— continued

Solicitor General Act 1969 No, 80

Section 2 (Appointment of Solicitor General):

Omit the first sentence of section 2 (l), insert instead:

The Governor may appoint as Solicitor General a legal practitioner of at least 7 years’ standing.

Special Commissions of Inquiry Act 1983 No. 90

Section 4 (Issue of commission):

Omit section 4 (2), insert instead:

(2) A commission may be issued only to a person who:
(a) is a Judge; or
(b) is a legal practitioner of at least 7 years’ standing.

(2A) A commission issued to a person who is a Judge does

not cease to have force only because the person ceases to be

a Judge.

Supreme Court Act 1970 No. 52

(1) Section 26 (Appointment and qualifications: Chief Justice and

other Judges):

Omit section 26 (2) and (3), insert instead:
(2) A person is qualified for appointment as Chief Justice if the person:

(a) is a Judge; or
(b) is a Judge of the Industrial Court; or
(c) is a legal practitioner of at least 7 years’ standing.

(3) A person is qualified for appointment as a Judge if the

person:

(a) is a Judge of the Industrial Court; or

(b) is a legal practitioner of at least 7 years’ standing.

(2) Section 111 (Appointment of masters and acting masters):

Omit section 111 (4).

Legal Profession Reform Act 1993 No. 87

SCHEDULE 6—CONSEQUENTIAL AMENDMENT OF OTHER

ACTS

(Sec. 4)

Compensation Court Act 1984 No. 89

(1) Section 18 (Costs):

(a) Omit section 18 (l), insert instead:

(1) In this section, a reference to costs is a reference to the costs payable by a party in or in relation to proceedings, including disbursements.

(b) Omit section 18 (2) (c), insert instead:

(c) the Court may order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on an indemnity basis.

(c) Omit section 18 (3).

(2) Section 19A (Interest after order for payment):

Omit section 19A (3), insert instead:

(3) Despite subsection (1) or (2), where:

(a)	the amount of any sum ordered to be paid (excluding the amount of costs to be assessed) is paid in full within 21 days after the sum becomes payable; or
(b)	the amount of costs assessed is paid in full within 21 days after that amount is' assessed,

interest is not payable on the amount so paid, unless the

Court otherwise orders.

(3) Section 43 (Rules):

(a) Omit section 43 (1) (a1) and (1A).
(b) After section 43 (4), insert:

(5) This section does not give power to make rules with respect to any matter relating to costs that is regulated by Part 11 of the Legal Profession Act 1987.

(6) A practice note (including any other document, however described, which regulates the practice or procedure of the Court, or of any class of proceedings in the Court, but excluding a decision of the Court) issued by or on behalf of the Court is taken to be a statutory rule for the purposes of

Legal Profession Reform Act 1993 No. 87

SCHEDULE 6—CONSEQUENTIAL AMENDMENT OF OTHER

ACTS— continued

Part 6 of the Interpretation Act 1987. This subsection does not apply to a practice note issued before the commencement of this subsection.

Consumer Claims Tribunals Act 1987 No. 206

(1) Section 3 (Definitions):

Omit section 3 (6) and (7).

(2) Section 10 (Jurisdiction):

After section 10 (4), insert:

(5) If a matter arises relating to the fairness or reasonableness of the costs charged by a barrister or solicitor for an item of business transacted by the barrister or solicitor, that matter is not within the jurisdiction of a tribunal.

Conveyancers Licensing Act 1992 No. 55

(1) Section 4 (Conveyancing work):

From section 4 (4), omit “Part 9”, insert instead “Part 3A”.

(2) Section 5 (Disqualified persons):

(a)	From section 5 (1) (e), omit “the roll of solicitors or the roll of barristers”, insert instead “the roll of legal practitioners”.
(b)	From section 5 (1) (g), omit “section 120”, insert instead “section 481”.

(3) Section 6 (Effect of licence):

Omit “Part 9” insert instead “Part 3A”.

(4) Section 16 (Withdrawal of certificates of eligibility):

(a)	From section 16 (d), omit “section 139”, insert instead “Part 6”.
(b)	From section 16 (e), omit “section 139”, insert instead “Part 6”.

(5) Section 20 (Suspension and cancellation of licences):

Omit “section 125, 130 or 139”, insert instead “Part 6”.

Legal Profession Reform Act 1993 No. 8 7

SCHEDULE 6—CONSEQUENTIAL AMENDMENT OF OTHER

ACTS— continued

(6) Section 23:

Omit the section, insert instead:
Fees

23. Part 11 of the Legal Profession Act 1987 applies to the fees charged by a licensee in the same way as it applies to the costs charged by a solicitor, subject to such modifications as are prescribed by the regulations.

(7) Sections 24–26:

Omit the sections, insert instead:
Conduct of conveyancing businesses

24. (1) The regulations may make provision for or with respect to the following matters:

(a)	the manner or capacity in which a licensee may conduct a conveyancing business;
(b)	attendance of licensees at premises on which a conveyancing business is conducted;
(c)	use of business names by licensees and approval of business names by the Committee.

(2) A licensee must not conduct a conveyancing business in contravention of the regulations under this section.

(8) Section 27 (Sharing of receipts with unqualified persons):

At the end of section 27 (2), insert:

(c) will be on the same basis as that on which receipts may be shared under section 48F of the Legal Profession Act 1987.

(9) Section 30:

Omit the section, insert instead:
Advertising

30. (1) A licensee may advertise in any way the licensee thinks fit.

(2) However, an advertisement must not be of a kind that is or that might reasonably be regarded as:

(a) false, misleading or deceptive; or

Legal Profession Reform Act 1993 No. 87

SCHEDULE 6—CONSEQUENTIAL AMENDMENT OF OTHER

ACTS— continued

(b) in contravention of the Trade Practices Act 1974 of the Commonwealth, the Fair Trading Act 1987 or any similar legislation; or

(c) in contravention of any requirements of the regulations. (3) The regulations may make provision for or with respect

to advertising by licensees.

(10) Section 32 (Committee may establish guidelines for conduct of

conveyancing business):

(a) In section 32 (2), after “‘rules”, insert “or guidelines”.
(b) Omit section 32 (3), insert instead:

(3) The Committee may, in an order establishing guidelines, specify .whether the guidelines are mandatory or for guidance only. If the order does not specify whether a guideline is mandatory or for guidance only, it is taken to be mandatory.

(4) A guideline which is expressed to be for guidance only is not required to be complied with.

(5) A licensee must not conduct a conveyancing business in contravention of any mandatory guidelines in force under this section.

(11) Section 33 (Money received by licensee on behalf of another):

At the end of section 33 (3), insert:

; and

(e) does not prevent a licensee from holding, or disposing of, a cheque or other negotiable instrument payable to a third party if the. licensee does so on behalf of a client and in accordance with directions given by the client.

(12) Section 43 (Secrecy):

From section 43 (5) (f), omit “the Panel, the Board”, insert instead “the Legal Services Commissioner”.

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(13) Part 6:

Omit the Part, insert instead:

PART 6—DISCIPLINARY PROCEEDINGS

Application of Legal Profession Act 1987
101. (1) Part 10 of the Legal Profession Act 1987 applies to licensees and to professional misconduct and unsatisfactory professional conduct of a licensee in the same way as it applies to solicitors and any such misconduct or conduct of a solicitor, subject to this Part and to such modifications as are prescribed by the regulations.

(2) For the purposes of the application of those provisions:

(a)	a reference to a solicitor is to be construed as a reference to a licensee; and
(b)	a reference to the practising certificate of a solicitor is to be construed as a reference to the certificate of eligibility and the licence of a licensee.

Composition of Disciplinary Tribunal

102. (1) For the purposes of conducting a hearing into a complaint against a licensee, the Disciplinary Tribunal is to be constituted by 1 of its solicitor members, 1 of its licensee members and 1 of its lay members.

(2) The solicitor member is to preside at the hearing.
(3) For the purposes of this section, the Disciplinary

Tribunal may include 1 or more licensee members (being the holder of a licence that is free of any conditions other than conditions of the kind referred to in section 13 (2) (d)).

Consultation with the Committee
103. The Council is not to make any decision with respect to a complaint against a licensee unless:

it has caused notice to be given to the Committee of the fact that it is conducting an investigation into the complaint and of its preliminary findings with respect to the complaint; and

it has given the Committee a reasonable opportunity (at

least 14 days) within which to comment on those

findings; and

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(c) it has given due consideration to any comments made

to it by the Committee.

(14) Section 156 (Delivery up of documents):

Omit section 156 (2), insert instead:

(2) This section does not affect the provisions of Division 6 of Part 11 of the Legal Profession Act 1987 with respect to the assessment of costs.

(15) Dictionary of Words and Expressions:

(a) Omit the definitions of “Board” and “Panel”.

(b) From the definition of “Tribunal”, omit “Legal Profession Disciplinary Tribunal”, insert instead “’Legal Services Tribunal”.

Conveyancers Licensing Regulation 1993

( 1) After clause 14, insert:

Nature of conveyancing business

14A. (1) A licensee must not conduct a Conveyancing business, or be involved in the conduct of a conveyancing business, otherwise than as a sole practitioner, in partnership with other licensees or as an employee of another licensee.

(2) A licensee must not falsely represent, or permit any other person to falsely represent, that another person is a partner of the licensee.

Attendance at business premises
14B. A licensee must not permit conveyancing work to be carried out at any premises at which the licensee conducts a conveyancing business unless the licensee, or some other licensee, gives reasonable attendance at those premises.
Business names
14C. (1) A licensee must not conduct a conveyancing business under a business name that is not approved by the Committee.
(2) The Committee is not to approve a proposed business
name for a conveyancing business if the name is so similar to

that of another business name under which another

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conveyancing business is conducted as to suggest that there
is a relationship between the two businesses.

(3) A licensee must not enter into any arrangement under which some other person, whether or not a licensee, is authorised by the licensee to conduct a conveyancing business under the same business name, or under a substantially similar business name, as that under which the licensee conducts a conveyancing business.

(2) Clause 15 (Advertising):

Omit the clause.

Defamation Act 1974 No. 18

(1) Section 17J (Matters arising under the Legal Profession Act

1987):

(a) Omit section 17J (1) (a) (iii), (iv) and (v), insert instead:

(iv) the Legal Services Commissioner;
(v) the Legal Services Tribunal; or

(b) In section 17J (1) (b), after “body”, insert “or person”. (c) From section 17J (1) (b), omit “its”, insert instead “the”.

(d) In section 17J (1) (b), after “determination” where firstly occurring, insert “of the body or person”.

(2) Schedule 2 (Proceedings of public concern and official and

public documents and records):

(a) From item 2 (16), omit paragraphs (c), (d) and (e), insert instead:

(d) the Legal Services Commissioner; or

(e) the Legal Services Tribunal,

(b) From item 3 (5), omit paragraphs (c), (d) and (e), insert instead:

(d) the Legal Services Commissioner; or
(e) the Legal Services Tribunal,

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(c) From item 3 (5) omit “its”, insert instead “the”.
(d)	In item 3 (5) after “determination” where firstly occurring, insert “of that body or person”.

District Court Act 1973 No. 9

(1) Section 43 (Right of appearance):

From section 43 (5), omit “between party and party”.

(2) Section 85 (Interest on judgment debt):
Omit section 85 (3), insert instead:

(3) Despite subsection (1) or (2), where:

(a)	the mount of a judgment debt (excluding the amount of costs to be assessed) is paid in full within 21 days after the judgment debt becomes payable; or
(b)	the amount of costs assessed is paid in full within 21 days after that amount is assessed,

interest is not payable on the amount so paid, unless the

Court otherwise orders.

(3) Section 138 (Rules):

At the end of the section, insert:

(2) This section does not give power to make rules with respect to any matter relating to costs that is regulated by Part 11 of the Legal Profession Act 1987.

(4) Section 142 (Rules):

At the end of the section, insert:

(2) This section does not give power to make rules with respect to any matter relating to costs that is regulated by Part 11 of the Legal Profession Act 1987.

(5) Section 142F (Rules in relation to hearing etc. of proceedings

in the Court in its special civil jurisdiction):

At the end of the section, insert:

(2) This section does not give power to make rules with respect to any matter relating to costs that is regulated by Part 11 of the Legal Profession Act 1987.

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(6) Section 148A:

Omit the section, insert instead:
Definition of “costs”

148A. In this Division (except section 148E), a reference to costs is a reference to the costs payable by a party in or in relation to proceedings, including disbursements.

(7) Section 148B (Costs to be in discretion o f the Court):

(a) Omit section 148B (1) (c), insert instead:

(c) the Court may order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on an indemnity basis.

(b) Omit section 148B (2).

(8) Section 148E (Costs—liability of solicitor):

Omit section 148E (2), insert instead:

(2) The Court may refer the matter to a costs assessor under the Legal Profession Act 1987 for inquiry and report before making such an order.

(9) Section 161 (Civil procedure rules):

(a) Omit section 161 (2) (aa), (ab) and (3).
(b) After section 161 (5), insert:

(6) This section does not give power to make rules with respect to any matter relating to costs that is regulated by Part 11 of the Legal Profession Act 1987.

(7) A practice note (including any other document, however described, which regulates the practice or procedure of the Court, or of any class of proceedings in the Court, but excluding a decision of the Court) issued by or on behalf of the Court is taken to be a statutory rule for the purposes of Part 6 of the Interpretation Act 1987. This subsection does not apply to a practice note issued before the commencement of this subsection.

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Freedom of Information Act 1989 No. 5

Schedule 2 (Exempt bodies and offices):

At the end of the Schedule, insert:

The office of Legal Services Commissioner-the complaint handling, investigative, review and reporting functions of that office.

Land and Environment Court Act 1979 No. 204

(1) Section 69 (Costs):

Omit section 69 (2) (c), insert instead:

(c) the Court may order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on an indemnity basis.

(2) Section 73 (Procedure o n transfer):

From section 73 (c) (ii), omit “ , according to the scale of costs in the Supreme Court”.

(3) Section 74 (Rules):

After section 74 (5), insert:
(6) This section does not give power to make rules with respect to any matter relating to costs that is regulated by Part 11 of the Legal Profession Act 1987.

(7) A practice note (including any other document, however described, which regulates the practice or procedure of the Court, or of any class of proceedings in the Court, but excluding a decision of the Court) issued by or on behalf of the Court is taken to be a statutory rule for the purposes of Part 6 of the Interpretation Act 1987. This subsection does not apply to a practice note issued before the commencement of this subsection.

Legal Aid Commission Act 1979 No. 78

(l)	Section 40 (Assessment of costs):
(a) From section 40 (l), omit “tax a bill of costs under Division 5 of Part 11 of the Legal Profession Act 1987”, insert instead “have a bill of costs assessed under Division 6 of Part l l of the Legal Profession Act 1987”.

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(b) From section 40 (2),omit “taxation”, insert instead “assessment”.

(2) Section 43 (Payment of costs by certain legally assisted

persons):

From section 43 (2), omit “taxed”, insert instead “assessed”. (3) Section 46 (Liability of legally assisted person to pay costs and

expenses):

(a) From section 46 (2) (a), omit “, assessed as between solicitor and client,”.

(b) From section 46 (2) (b), omit “(including barrister’s fees)”.
(c) Omit section 46 (4), insert instead:

(4) For the purposes of subsection (2), a reference to costs is a reference to costs assessed as if the legally assisted person were not a legally assisted person.

(4) Section 48 (Repayment of costs and expenses to Commission

when legal aid terminated):

From section 48 (1) (a), omit “ , assessed as between solicitor and client,”.

Local Courts (Civil Claims) Act 1970 No. 11

(1) Section 33:

Omit the section, insert instead:

Definition of “costs”

33. In this Division, a reference to costs is a reference to the costs payable by a party in or in relation to proceedings, including disbursements.

(2) Section 34 (Costs to be in discretion of court):

(a) Omit section 34 (1) (c), insert instead:

(c) a court may order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on an indemnity basis.

(b) Omit section 34 (3).

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(3) Section 84 (Rules):

After section 84 (3), insert:

(4) This section does not give power to make rules with respect to any matter relating to costs that is regulated by Part 11 of the Legal Profession Act 1987.

(5) A practice note (including any other document, however described, which regulates the practice or procedure of a Local Court, any Division of a Local Court or of any class of proceedings in a Local Court, but excluding a decision of a Local Court) issued by or on behalf of all or any Local Courts is taken to be a statutory rule for the purposes of Part 6 of the Interpretation Act 1987. This subsection does not apply to a practise note issued before the commencement of this subsection.

Ombudsman Act 1974 No. 68

Schedule 1 (Excluded conduct of public authorities):

At the end of the Schedule, insert:

26. Conduct of the Legal Services Commissioner or a
member of staff of the Commissioner, when exercising

functions under Part 10 of the Legal Profession Act 1987.

Public Notaries Act 1985 No. 6

Omit section 13, insert instead:

Fees chargeable by public notaries

13. The regulations may make provision for or with respect to the determination of fees to be charged by public notaries.

Supreme Court Act 1970 No. 52

(1) Section 76 (Costs):

Omit section 76 (1) (c), insert instead:

(c) the Court may order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on an indemnity basis.

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(2) Section 76C (Costs—liability of solicitor):

Omit section 76C (2), insert instead:

(2) The Court may refere the matter to a costs assessor under the Legal Profession Act 1987 for inquiry and report before making such an order;

(3) Section 95 (Interest on debt under judgment or order):

From section 95 (3), omit "taxation", insert instead “assessment under Division 6 of Part 11 of the Legal Profession Act 1987” .

(4) Section 101 (Appeal in proceedings in the Court):

Omit section 101 (2) (d).

(5) Section 124 (Rule-making power):

(a) Omit section 124 (1) (k) and (ka).
(b) After section 124 (9), insert:

(10) This section does not give power to make rules with

respect to any matter relating to costs that is regulated by Part
11 of the Legal Profession Act 1987.

(1 1) A practice note (including any other document, however described, which regulates the practice or procedure of the Court, any Division of the Court or of any class of proceedings in the Court, but excluding a decision of the Court) issued by or on behalf of the Court is taken to be a statutory rule for the purposes of Part 6 of the Interpretation Act 1987. This subsection does not apply to a practice note issued before the commencement of this subsection, but extends to a practice note so issued if it commences on or after 19 November 1993 (whether or not published in the Gazette).

Workers Compensation Act 1987 No. 70

(1) Section 122 (Solicitor/client costs in compensation

proceedings):

Omit section 122 (3), insert instead:

(3) Any sum so awarded is subject to assessment in accordance with Division 6 of Part l1 of the Legal Profession Act 1987.

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(4) This section prevails to the extent of any inconsistency with Part 11 of the Legal Profession Act 1987.

(2) Section 151T (Costs):

Omit section 151T (2).

[Minister's second reading speech made in—

Legislative Council on 27 October 1993

Legislative Assembly on 9 November 1993]