Legal Profession Regulation 2005 (NSW)
This Regulation is the Legal Profession Regulation 2005.
This Regulation commences on 1 October 2005.
In this Regulation:
(a) the County of Cumberland,
(b) the City of Blue Mountains,
(c) such part of the City of Wollongong as comprises postcode areas 2508 and 2515,
(d) such part of the City of Hawkesbury as comprises Main Road No 184 (Bells Line of Road) and the land lying between that road and the City of Blue Mountains.
A reference in this Regulation to a form followed by a number is a reference to the form of that number in Schedule 5.
Notes included in this Regulation do not form part of the Regulation.
In this Regulation:
(a) any offence under the road transport legislation (within the meaning of the Road Transport Act 2013) other than the following:
(i) any offence under section 54 (1), (3) or (4) of the Road Transport Act 2013 (which relates to driving while unlicensed and other relevant matters),
(ii) any offence under section 110 of the Road Transport Act 2013 (which relates to the presence of a prescribed concentration of alcohol in a person’s breath or blood),
(iii) any offence under section 112 (1) of the Road Transport Act 2013 (which relates to driving etc while under the influence of alcohol or any other drug),
(iv) any offence under section 117 (1) of the Road Transport Act 2013 relating to driving a motor vehicle negligently on a road or road related area if the person concerned is, by way of penalty, sentenced to imprisonment or fined a sum of not less than $200,
(v) any offence under section 117 (2) of the Road Transport Act 2013 (which relates to driving a motor vehicle on a road or road related area furiously, recklessly or at a speed or in a manner dangerous to the public),
(vi) any offence under section 118 of the Road Transport Act 2013 (which relates to menacing driving),
(vii) any offence under section 146 of the Road Transport Act 2013 (which relates to failing to stop and give assistance after an accident),
(viii) any offence under section 175 of the Road Transport Act 2013 (which relates to refusing to comply with a requirement to produce a driver licence, or to state name and home address, or stating a false name and home address),
(ix) any other offence under the road transport legislation if the court orders the disqualification of the person concerned from holding a driver licence,
(b) any offence relating to the parking of motor vehicles.
For the purposes of the definition of
(a) a reference to an offence under the road transport legislation includes a reference to an offence under:
(i) the road transport legislation (within the meaning of the Road Transport (General) Act 2005), as previously in force, and
(ii) the Traffic Act 1909, or the regulations under that Act, as previously in force, and
(b) a reference to an offence under a provision of an Act specified in paragraph (a) of that definition includes a reference to an offence under a corresponding provision of road transport legislation (within the meaning of the Road Transport (General) Act 2005) or the Traffic Act 1909 (or the regulations under that Act), as previously in force.
The following laws are prescribed for the purposes of the definition of
(a) the Queensland Law Society Act 1952, the Trust Accounts Act 1973 and the Legal Profession Act 2007 of Queensland,
(b) the Legal Practitioners Act 1981 of South Australia,
(c) the Legal Profession Act 1993 of Tasmania,
(d) the Legal Practice Act 1996 and the Legal Profession Act 2004 of Victoria,
(e) the Legal Practice Act 2003 of Western Australia,
(f) the Legal Practitioners Act 1970 of the Australian Capital Territory,
(g) the Legal Practitioners Act of the Northern Territory.
(Repealed)
This clause applies to an associate of a law practice who is neither an Australian legal practitioner nor an Australian-registered foreign lawyer, where:
(a) section 8 (4) (b) of the Act is applicable to the associate, and
(b) the home jurisdiction for the associate can be determined under neither subparagraph (i) nor subparagraph (ii) of that paragraph.
For the purposes of section 8 (4) (b) (iii) of the Act, the home jurisdiction for the associate is to be determined in accordance with the following criteria:
(a) the jurisdiction of the associate’s place of residence in Australia,
(b) if the associate does not have a place of residence in Australia, the jurisdiction of the associate’s last place of residence in Australia.
For the purposes of section 16 (2) of the Act, the kinds of persons specified in the third column of the table to this subclause are persons who are entitled, in the circumstances specified opposite in the fourth column, to take or use a name, title or description specified opposite in the second column.
Table
First column | Second column | Third column | Fourth column |
Item No | Name, title or description | Kinds of persons who are entitled to take or use name, title or description | Circumstances in which the persons are entitled to take or use name, title or description |
1 | legal practitioner | Australian legal practitioner | all circumstances (no restriction) |
2 | legal practitioner | Australian lawyer | when the Australian lawyer, not holding an Australian practising certificate, engages in legal practice as an employee of a government agency in circumstances in which an Australian law permits an Australian lawyer to engage in legal practice of that kind without having to hold an Australian practising certificate |
3 | barrister and solicitor, or solicitor and barrister, or solicitor, or attorney | Australian legal practitioner | when the Australian legal practitioner holds an Australian practising certificate and engages in legal practice in the manner of a solicitor |
4 | barrister and solicitor, or solicitor and barrister, or solicitor, or attorney | Australian lawyer | when the Australian lawyer, not holding an Australian practising certificate, engages in legal practice in the manner of a solicitor as an employee of a government agency in circumstances in which an Australian law permits an Australian lawyer to engage in legal practice of that kind without having to hold an Australian practising certificate |
5 | barrister | Australian legal practitioner | when the local legal practitioner holds a local practising certificate that restricts the practitioner to legal practice in the manner of a barrister |
6 | barrister | interstate legal practitioner | when the interstate legal practitioner holds an Australian practising certificate and engages in legal practice in the manner of a barrister |
7 | barrister | Australian lawyer | when the Australian lawyer, not holding an Australian practising certificate, engages in legal practice in the manner of a barrister as an employee of a government agency in circumstances in which an Australian law permits an Australian lawyer to engage in legal practice of that kind without having to hold an Australian practising certificate |
8 | counsel | Australian legal practitioner | all circumstances (no restriction) |
9 | counsel | Australian lawyer | when the Australian lawyer, not holding an Australian practising certificate, engages in legal practice as an employee of a government agency in circumstances in which an Australian law permits an Australian lawyer to engage in legal practice of that kind without having to hold an Australian practising certificate |
10 | counsel | Australian lawyer | when the Australian lawyer, not holding an Australian practising certificate, provides legal services to his or her employer, or to a related entity, in the ordinary course of his or her employment and for no fee, gain or reward other than his or her ordinary remuneration as an employee |
11 | Senior Counsel or SC | Australian lawyer | when the Australian lawyer currently holds the status of Senior Counsel, as recognised by the High Court or a Supreme Court of any jurisdiction |
12 | Queen’s Counsel or QC, or King’s Counsel or KC, or Her Majesty’s Counsel, or His Majesty’s Counsel | Australian lawyer | when the Australian lawyer currently holds the appropriate status, as conferred by the Crown in any capacity or as recognised by the High Court or a Supreme Court of any jurisdiction |
13 | attorney | Australian-registered foreign lawyer | when entitled to use the name, title or description under section 191 of the Act |
14 | attorney | patent attorney | when using the expression “patent attorney” |
15 | attorney | donee of a power of attorney | when indicating that the donee holds or is acting under a power of attorney |
16 | attorney | Attorney-General of any jurisdiction, the Commonwealth or a foreign country | all circumstances (no restriction) |
17 | solicitor | Solicitor-General of any jurisdiction, the Commonwealth or a foreign country | all circumstances (no restriction) |
18 | lawyer | Australian lawyer | all circumstances (no restriction) |
19 | lawyer | Australian-registered foreign lawyer | all circumstances (no restriction) |
In this clause:
(a) the person works full-time, part-time, or on a temporary or casual basis, or
(b) the person is a law clerk or articled clerk.
(a) a government department of the Commonwealth or of a State or Territory, or
(b) a body that is established by or under the law of the Commonwealth or of a State or Territory for a public purpose or to exercise governmental functions,
and includes a body or organisation (or a class of bodies or organisations) prescribed by the regulations as being within the definition of
For the purposes of section 14 (2) (h) of the Act, legal practice engaged in by an industrial organisation registered under the Industrial Relations Act 1996, or an organisation registered under Schedule 1 to the Workplace Relations Act 1996 of the Commonwealth, is prescribed as a kind of legal practice to which section 14 (1) of the Act does not apply, but only to the extent that:
(a) the legal services concerned are provided to members of the organisation, and
(b) the legal services are not provided for fee, gain or reward to the organisation (other than standard membership fees), and
(c) the legal services are provided by Australian legal practitioners, and
(d) if any of the legal services are provided by an Australian legal practitioner who does not hold an unrestricted practising certificate—those legal services are provided under the supervision of an Australian legal practitioner who holds an unrestricted practising certificate.
For the purposes of section 24 of the Act, the agreed standards referred to in section 24 (5) of the Act are the standards established from time to time by the Law Admissions Consultative Committee, being a committee constituted under the auspices of the Council of Chief Justices.
For the purposes of section 32 of the Act, the following information is to be included in the local roll in relation to each person who is admitted as a lawyer under the Act:
(a) the lawyer’s name,
(b) the lawyer’s date of birth,
(c) the lawyer’s signature,
(d) the lawyer’s date of admission,
(e) a unique identifying number for the lawyer,
(f) such other information as the Supreme Court considers appropriate to include in the roll in relation to the lawyer.
For the purposes of section 45 (10) of the Act, Australian lawyers of the following classes or descriptions are prescribed as being eligible to apply for the grant or renewal of local practising certificates:
(a) Members of the Parliament of the State,
(b) Members of the Parliament of the Commonwealth who reasonably expect to reside in New South Wales during the currency of the local practising certificate or renewal applied for.
A Council has a discretion as to whether or not to grant or renew a local practising certificate to a person in his or her capacity as an Australian lawyer of a class or description referred to in subclause (1).
An application for the grant or renewal of a local practising certificate must be in a form that is approved by the appropriate Council, and signed by the applicant, and (subject to any determination under subclause (4A)) must provide or be accompanied by the following:
(a) the name of the applicant, together with the applicant’s residential address and personal telephone number,
(b) the name of any law practice of which the applicant is an associate,
(c) particulars of any incorporated legal practice of which the applicant is an officer or employee, including its Australian Company Number (ACN) and the names of the directors of the incorporated legal practice,
(d) the address of the office or offices at which the applicant practises or provides legal services and, if more than one office, an indication as to which of those addresses is that of the principal office,
(e) in the case of an applicant who is a member of, or employed by, a partnership or is an officer or employee of an incorporated legal practice—the address of the office or offices at which the partnership or incorporated legal practice practises or provides legal services and, if more than one office, an indication as to which of those addresses is that of the principal office,
(f) in the case of an applicant who is employed otherwise than by a partnership or incorporated legal practice—the name of the employer and the address of the principal office of the employer,
(g) the telephone number, facsimile number (if any) and email address (if any) of the applicant at the office or offices at which the applicant practises or provides legal services,
(h) the number of the DX box (if any) that is used by the applicant,
(i) if the applicant does not have a DX box in New South Wales, the name of the applicant’s Sydney agent (if any),
(j) if the applicant has been convicted of any offence (other than an excluded offence)—the nature of the offence,
(k) if a show cause event has happened in relation to the applicant—details of the event,
(l) if a pre-admission event has happened in relation to the applicant—details of the event,
(m) if:
(i) the applicant is a legal practitioner director of an incorporated legal practice, and
(ii) a financial report and director’s report is required to be prepared in respect of the incorporated legal practice under section 292 of the Corporations Act 2001 of the Commonwealth,
a copy of those reports (being the reports most recently lodged with the Australian Securities and Investments Commission),
(n) the date of the applicant’s admission as an Australian lawyer and the jurisdiction in which the applicant was admitted.
Subclause (1) (j):
(a) applies to an offence committed in New South Wales or to an offence committed outside New South Wales (so long as it would have been an offence, other than an excluded offence, if committed in New South Wales), and
(b) applies to a conviction even if other persons are prohibited from disclosing the identity of the offender, and
(c) extends to an indictable offence committed before 1 October 2005 (and so extends whether the conviction occurred before, on or after that date), and
(d) extends to an offence (other than an indictable offence) committed after 8 March 1991, and
(e) does not apply to a conviction previously disclosed to the appropriate Council:
(i) under section 55 (Statutory condition regarding notification of offence) of the Act, or
(ii) under Division 7 (Special powers in relation to local practising certificates—show cause events) of Part 2.4 of the Act, or
(iii) in an application for a practising certificate under the new Act or the old Act, or
(iv) under clause 133 (Duty to report offences) of the former Legal Profession Regulation 2002.
Neither paragraph (k) or (l) of subclause (1) requires the disclosure of any information previously disclosed to the appropriate Council:
(a) under Division 7 (Special powers in relation to local practising certificates—show cause events) of Part 2.4 of the Act, or
(b) in an application for a practising certificate under the new Act or the old Act, or
(c) under clause 134 (Duty to report bankruptcy) of the former Legal Profession Regulation 2002.
Both paragraphs (k) and (l) of subclause (1) apply to events whether occurring before or after the commencement of this clause.
A Council may determine that applications made to it for the grant or renewal of a local practising certificate by specified applicants or by applicants of a specified class need not provide, or be accompanied by, particulars of a specified kind that would otherwise be required by subclause (1), if:
(a) the Council reasonably believes that special circumstances warrant the particulars not being disclosed to it (for example, on privacy, safety or security grounds), and
(b) the Council considers that the public interest and administrative convenience in having the particulars disclosed to it are outweighed by any individual interest in the particulars not being disclosed.
If a Council determines under subclause (4A) that particulars of an applicant’s residential address need not be disclosed, the application must include or be accompanied by a statement:
(a) indicating whether or not the applicant resides in Australia, and
(b) specifying the jurisdiction in which the applicant resides if the applicant indicates that he or she resides in Australia.
In this clause,
For the purposes of section 47 (1) of the Act:
(a) the period prescribed as the standard renewal period for making an application for renewal of a local practising certificate for a barrister is the period commencing on 1 April and ending on 7 June before the current local practising certificate expires, and
(b) the period prescribed as the late fee period for making such an application is the period commencing on 8 June and ending on 30 June before the current local practising certificate expires.
For the purposes of section 47 (1) of the Act:
(a) the period prescribed as the standard renewal period for making an application for renewal of a local practising certificate for a solicitor is the period commencing on 1 April and ending on 15 May before the current local practising certificate expires, and
(b) the period prescribed as the late fee period for making such an application is the period commencing on 16 May and ending on 30 June before the current local practising certificate expires.
For the purposes of sections 53 and 102 of the Act, completion by a person of a period or periods of supervised legal practice equivalent to the required period of 18 months or 2 years is to be worked out by satisfying the requirements of this clause.
The person satisfies the requirements of this clause if the person completes:
(a) one period of supervised legal practice, worked on a full-time basis, that is equal to the required period worked out on a full-time basis, or
(b) one period of supervised legal practice, worked on a part-time basis, that is equivalent to the required period worked out on a full-time basis, or
(c) two or more periods of supervised legal practice, worked on either or both of those bases, that together are equal or equivalent to the required period.
For the purposes of this clause:
(a) public holidays during a relevant period are to be included as days of supervised legal practice, whether or not the person engaged in legal practice on those days, and
(b) normal periods of leave taken during a relevant period by the person are to be included as periods of supervised legal practice.
The appropriate Council may accept from the holder of a current local practising certificate the surrender of the certificate and an application for a new certificate and, in that event, must issue a new practising certificate for the rest of the term of the surrendered certificate.
The appropriate Council may also accept from the holder of a current local practising certificate the surrender of the certificate if:
(a) the Council is satisfied that there is good reason for the surrender of the certificate (for example, that the holder is retiring from practice as a barrister or solicitor in this jurisdiction), and
(b) the Council is not aware of any circumstances that would give rise to the conducting of an investigation, or the taking of disciplinary action, under the Act.
The appropriate Council may, by notice in writing served on the holder of a practising certificate, require the certificate to be surrendered to the Council within a period specified in the notice.
A person must not fail to comply with a requirement made under subclause (3).
Maximum penalty: 10 penalty units.
The appropriate Council may require a certificate to be surrendered under subclause (3) only if satisfied that the holder of the certificate is not entitled to continue practising as a barrister or solicitor.
The Council may refund the whole or a part of the fee paid in respect of a certificate surrendered under this clause if the Council considers that the refund should be made.
For the purposes of section 91 of the Act, the following costs of the Bar Association (including any ancillary costs and costs of an administrative nature) may be recovered by the charging of practising certificate fees (in addition to the costs of or associated with the regulatory functions of the Bar Council or Bar Association):
(a) the costs associated with the maintenance and operation of the library of the Bar Association, but only if the library service is available to all barristers,
(b) the costs associated with providing or assisting in providing any scheme under which legal services (including referral services) are provided to the public pro bono or at reduced rates, or are provided to a court or tribunal, but only if the scheme does not provide any greater benefit to barristers who are members of the Bar Association than it does to other barristers and the costs are not otherwise recoverable by the Bar Association,
(c) the costs associated with providing or assisting in providing any information, scheme or program relating to the law, legal practice or conflict resolution that is provided for the information or education of the public, but only if the information, scheme or program does not provide any greater benefit to barristers who are members of the Bar Association than it does to other barristers and the costs are not otherwise recoverable by the Bar Association,
(d) the costs associated with assisting the State or Commonwealth Government or a Parliamentary Committee of the State or Commonwealth with law reform initiatives, activities and programs, but only if the Attorney General is satisfied that the assistance is provided for the public benefit.
In this clause,
For the purposes of section 91 of the Act, the following costs of the Law Society (including any ancillary costs and costs of an administrative nature) may be recovered by the charging of practising certificate fees (in addition to the costs of or associated with the regulatory functions of the Law Society Council or Law Society):
(a) the costs associated with the maintenance and operation of the library of the Law Society, but only if the library service is available to all solicitors,
(b) the costs associated with providing or assisting in providing any scheme under which legal services (including referral services) are provided to the public pro bono or at reduced rates, but only if the scheme does not provide any greater benefit to solicitors who are members of the Law Society than it does to other solicitors and the costs are not otherwise recoverable by the Law Society,
(c) the costs associated with providing or assisting in providing any information, scheme or program relating to the law, legal practice or conflict resolution that is provided for the information or education of the public, but only if the information, scheme or program does not provide any greater benefit to solicitors who are members of the Law Society than it does to other solicitors and the costs are not otherwise recoverable by the Law Society,
(d) the costs associated with assisting the State or Commonwealth Government or a Parliamentary Committee of the State or Commonwealth with law reform initiatives, activities and programs, but only if the Attorney General is satisfied that the assistance is provided for the public benefit.
In this clause,
For the purposes of section 92 of the Act, the late fee is an amount determined by the appropriate Council.
The appropriate Council may determine a scale of late fees in respect of applications, so that the greater the time that has elapsed since the end of the prescribed period the higher the late fee.
For the purposes of section 92A of the Act, the fee that may be required as a condition of acceptance of an application for the grant of a local practising certificate, where the applicant was the holder of a local practising certificate in respect of the previous financial year, is an amount determined by the appropriate Council.
(Repealed)
For the purposes of section 104 (4) of the Act, a document is identified as a protocol if the document describes itself as a protocol and is executed by or on behalf of either or both of the Councils and by or on behalf of one or more regulatory authorities of other jurisdictions.
For the purposes of section 106 (2) (b) of the Act, the particulars referred to in subclauses (2) and (3) are prescribed as information to be included in the register kept under section 106 of the Act in relation to a local legal practitioner, except where the appropriate Council is required by subclause (6) not to include them in the register.
The particulars to be included in the register are as follows:
(a) the name of the local legal practitioner,
(b) the type of local practising certificate held by the practitioner,
(c) the contact details of the office of the practitioner in this jurisdiction,
(d) any other particulars about the practitioner that the appropriate Council considers should be included.
In the case of a local legal practitioner who is a solicitor, the register must also contain the following particulars:
(a) the name of the law practice of which the solicitor is an associate or, if the solicitor is not an associate of a law practice, the name of the entity of which the solicitor is a director, officer or employee or with which the solicitor is otherwise engaged in legal practice,
(b) by way of a separate additional entry, the name of the law practice or other entity and the contact details of the office of the law practice or other entity:
(i) in this jurisdiction, and
(ii) in any other jurisdictions in which it has an office, except where the appropriate Council considers those particulars need not be included in respect of an entity that is not a law practice,
(c) any other particulars about the law practice or other entity that the appropriate Council considers should be included.
Contact details of an office are the following:
(a) its street address (the address where the office is physically located),
(b) its postal address (a post office box number and the location and postcode of the post office), if any,
(c) its DX address (the number of its DX box), if any.
A local legal practitioner may, by notice in writing to the appropriate Council, request the Council not to include any or any specified particulars about the practitioner, law practice or other entity in the register, on the ground that special circumstances warrant the particulars not being publicly available (for example, if the safety or well-being of a person would be substantially affected by making the particulars publicly available).
If the appropriate Council is satisfied that those special circumstances exist, the Council is required not to include the particulars concerned in the register unless the Council considers that the public interest in maintaining public access to the particulars outweighs any individual interest in the particulars not being publicly available.
A local legal practitioner must notify the appropriate Council, in writing, of any change in the particulars relating to the practitioner (as disclosed in the practitioner’s last application for a local practising certificate) within 7 days after the change occurs.
A local legal practitioner must also notify the appropriate Council, in accordance with any request from that Council, of the following particulars:
(a) particulars relating to any change to or dissolution of a partnership, formation of a new partnership, or acquisition of the practice of an Australian legal practitioner, by the practitioner,
(b) particulars relating to the formation of an incorporated legal practice, or the commencement of the provision of legal services by an incorporated legal practice, or any change to or winding up of an incorporated legal practice, including any change in the directors of the incorporated legal practice.
The request must be in the form of a notice served on the local legal practitioner and must specify which particulars are requested.
An application by the Crown Solicitor for a practising certificate must be accompanied by a report of the Auditor-General stating:
(a) that the Auditor-General has inspected the records kept under clause 106 during the year that ended on the last preceding 31 March, and
(b) whether the Auditor-General is of the opinion that the records have been kept as directed under clause 106.
A report under this clause may be provided by the Deputy Auditor-General or an Assistant Auditor-General if the Auditor-General so approves.
The Australian Government Solicitor is prescribed as being within the definition of
In this Division:
(a) publish in a newspaper, magazine, journal, periodical, directory or other printed publication, or
(b) disseminate by means of the exhibition or broadcast of a photograph, slide, film, video recording, audio recording or other recording of images or sound, either as a public exhibition or broadcast or as an exhibition or broadcast to persons attending a place for the purpose of receiving professional advice, treatment or assistance, or
(c) broadcast by radio or television, or
(d) display on an internet website or otherwise publicly disseminate by means of the internet, or
(e) publicly exhibit in, on, over or under any building, vehicle or place or in the air in view of persons in or on any street or public place, or
(f) display on any document (including a business card or letterhead) gratuitously sent or gratuitously delivered to any person or thrown or left on any premises or on any vehicle, or
(g) display on any document provided to a person as a receipt or record in respect of a transaction or bet.
(a) a partnership of which a solicitor is a member (but only if the business of the partnership includes business of a kind ordinarily conducted by a solicitor),
(b) a solicitor corporation,
(c) an incorporated legal practice.
A barrister or solicitor must not publish or cause or permit to be published an advertisement that promotes the availability or use of a barrister or solicitor to provide legal services if the advertisement includes any reference to or depiction of any of the following:
(a) personal injury,
(b) any circumstance in which personal injury might occur, or any activity, event or circumstance that suggests or could suggest the possibility of personal injury, or any connection to or association with personal injury or a cause of personal injury,
(c) a
personal injury legal service (that is, any legal service that relates to recovery of money, or any entitlement to recover money, in respect of personal injury).
Maximum penalty: 200 penalty units.
A contravention of this clause by a barrister or solicitor is declared to be professional misconduct.
A contravention of clause 75 of the Workers Compensation Regulation 2003 can also be a contravention of this clause.
Evidence that a barrister or solicitor has been convicted of an offence under this clause or under clause 75 of the Workers Compensation Regulation 2003 is sufficient evidence of a contravention of this clause by the barrister or solicitor for the purposes of any proceedings under Chapter 4 (Complaints and discipline) of the Act.
This Subdivision does not apply to the publication by or on behalf of a complying community legal centre of an advertisement that would constitute a contravention of clause 24 by reason only that it advertises or promotes services provided by the community legal centre in connection with:
(a) domestic violence, or
(b) discrimination, or
(c) sexual assault, or
(d) victims of crime.
This Subdivision does not prevent the publication of an advertisement that advertises a barrister or solicitor as being a specialist or offering specialist services, but only if the advertisement is published by means of:
(a) an entry in a practitioner directory that states only the name and contact details of the barrister or solicitor and any area of practice or accredited specialty of the barrister or solicitor, or
(b) a sign displayed at a place of business of the barrister or solicitor that states only the name and contact details of the barrister or solicitor and any accredited specialty of the barrister or solicitor, or
(c) an advertisement on an internet website operated by the barrister or solicitor the publication of which would be prevented under this Subdivision solely because it refers to personal injury or personal injury legal services in a statement of accredited specialty of the barrister or solicitor.
In this clause:
This Subdivision does not prevent the publication of an advertisement:
(a) to any person who is already a client of the barrister or solicitor (and to no other person), or
(b) to any person on the premises of a place of business of the barrister or solicitor, but only if the advertisement cannot be seen from outside those premises, or
(c) in accordance with any order by a court, or
(d) pursuant to a disclosure made by a law practice under Division 3 (Costs disclosure) of Part 3.2 of the Act, or
(e) to the extent to which it relates only to the provision of legal aid or other assistance by an agency of the Crown and is published by or on behalf of that agency, or
(f) to the extent to which it relates only to legal education and is published to members of the legal profession by a person in the ordinary course of the person’s business or functions as a provider of legal education, or
(g) in accordance with any requirement imposed by or under a written law of the State.
For the purposes of this Subdivision, evidence that a person who is an employee of a barrister or solicitor, or a person otherwise exercising functions in the barrister’s or solicitor’s practice, published or caused to be published an advertisement is evidence (in the absence of evidence to the contrary) that the barrister or solicitor caused or permitted the publication of the advertisement.
For the purposes of this Subdivision, an advertisement is taken to have been published or caused to be published by a barrister or solicitor if:
(a) the advertisement advertises or otherwise promotes the availability or use of the barrister or solicitor (either by name or by reference to a business name under which the barrister or solicitor practises) for the provision of legal services in connection with the recovery of money, or an entitlement to recover money, in respect of personal injury, or
(b) the barrister or solicitor is a party to an agreement, understanding or other arrangement with the person who published the advertisement or caused it to be published that expressly or impliedly provides for the referral of persons to the barrister or solicitor for the provision of legal services in connection with the recovery of money, or an entitlement to recover money, in respect of personal injury, or
(c) the barrister or solicitor is a party to an agreement, understanding or other arrangement with the person who published the advertisement or caused it to be published that expressly or impliedly provides for the person to advertise on behalf of the barrister or solicitor.
This clause does not apply to an advertisement if the barrister or solicitor proves that the barrister or solicitor took all reasonable steps to prevent the advertisement being published.
A person who has been convicted of an offence under Part 18 of the Workers Compensation Regulation 2003 is not, if that offence would constitute an offence under this Subdivision in respect of the publication of an advertisement, liable to be convicted of an offence under this Subdivision in respect of that publication.
Anything that, immediately before 1 October 2005, had effect under Division 2 of Part 14 of the Legal Profession Regulation 2002 has effect for the purposes of this Subdivision.
In particular, this Subdivision does not prevent the publication of an advertisement in a printed publication the contents of which were finalised (by the publisher of that publication) before 9 May 2003.
This Subdivision does not apply to conduct of a barrister or solicitor.
In this Subdivision,
(a) personal injury, or
(b) any circumstance in which personal injury might occur, or any activity, event or circumstance that suggests or could suggest the possibility of personal injury, or any connection to or association with personal injury or a cause of personal injury.
A person must not publish or cause or permit to be published a personal injury advertisement if the advertisement:
(a) advertises or otherwise promotes the availability or use of a barrister or solicitor (whether or not a particular barrister or solicitor) to provide legal services, whether or not that is its purpose or only purpose and whether or not that is its effect or only effect, or
(b) includes any reference to or depiction of the recovery of money or a claim for money, or any entitlement to recover money or claim money, in respect of personal injury.
Maximum penalty: 200 penalty units.
A person must not publish or cause or permit to be published a personal injury advertisement if the person is engaged in a practice involving, or is a party to an agreement, understanding or other arrangement that provides for, the referral of persons to one or more barristers or solicitors for the provision of legal services in connection with the recovery of money, or an entitlement to recover money, in respect of personal injury.
Maximum penalty: 200 penalty units.
A person who is a member of a partnership or a director or officer of a body corporate must not expressly, tacitly or impliedly authorise or permit a contravention of subclause (1) or (2) by the partnership or body corporate or by an employee or agent of the partnership or body corporate on behalf of the partnership or body corporate.
Maximum penalty: 200 penalty units.
On 20 June 2008, the Supreme Court of New South Wales in The Council of the Law Society of New South Wales v Australian Injury Helpline Limited &Ors declared that “Regulation 34 of the Legal Profession Regulation 2005 is not authorised by the Legal Profession Act 2004 and is invalid”.
This Subdivision does not apply to the publication by or on behalf of a community legal centre of a personal injury advertisement by reason only that it advertises or promotes services provided by the community legal centre in connection with domestic violence or discrimination.
This Subdivision does not prevent the publication of an advertisement that advertises a barrister or solicitor as being a specialist or offering specialist services, but only if the advertisement is published by means of:
(a) an entry in a practitioner directory that states only the name and contact details of the barrister or solicitor and any area of practice or accredited specialty of the barrister or solicitor, or
(b) a sign displayed at a place of business of the barrister or solicitor that states only the name and contact details of the barrister or solicitor and any accredited specialty of the barrister or solicitor, or
(c) an advertisement on an internet website operated on behalf of the barrister or solicitor the publication of which would be prevented under this Subdivision solely because it refers to personal injury or legal services in a statement of accredited specialty of the barrister or solicitor.
In this clause:
This Subdivision does not apply to the publication of an advertisement:
(a) in accordance with any order by a court, or
(b) to the extent to which it relates only to the provision of legal aid or other assistance by an agency of the Crown and is published by or on behalf of that agency, or
(c) to the extent to which it relates only to legal education and is published to members of the legal profession by a person in the ordinary course of the person’s business or functions as a provider of legal education, or
(d) by an industrial organisation (within the meaning of the Industrial Relations Act 1996) if the advertisement (or so much of it as would otherwise contravene clause 34) relates only to the provision of advice or services by that organisation and states only the name and contact details of the industrial organisation along with a description of the services that it provides, or
(e) by a person in the ordinary course of the person’s business as an insurer or insurance agent or broker, to the extent only that it includes a reference to or depiction of the recovery of money under a policy of insurance, or
(f) in accordance with any requirement imposed by or under a written law of the State.
A contravention of clause 34 by a person who publishes an advertisement in the ordinary course of the person’s business as a publisher does not constitute an offence under this Subdivision (but is still a contravention of that clause for the purposes of section 85 of the Act).
Section 85 provides for the giving of directions to persons to prevent contraventions of this Subdivision. A publisher who contravenes a direction not to publish a particular advertisement will commit an offence.
A person who has been convicted of an offence under Part 18 of the Workers Compensation Regulation 2003 is not, if that offence would constitute an offence under this Subdivision in respect of the publication of an advertisement, liable to be convicted of an offence under this Subdivision in respect of that publication.
Anything that, immediately before 1 October 2005, had effect under Division 3 of Part 14 of the Legal Profession Regulation 2002 has effect for the purposes of this Subdivision.
In particular, this Subdivision does not prevent the publication of an advertisement in a printed publication if the contents of the publication were finalised (by the publisher of that publication) before 15 June 2005.
For the purposes of section 134 (2) (d) of the Act, the following corporations are not incorporated legal practices:
(a) the Law Society,
(b) the Bar Association.
For the purposes of section 134 (2) (d) of the Act, an organisation referred to in clause 8A is not an incorporated legal practice, but only to the extent that paragraphs (a)–(d) of that clause are satisfied.
Complying community legal centres are exempt by virtue of section 134 (2) (c) of the Act.
Section 135 (2) of the Act is declared to be a Corporations legislation displacement provision for the purposes of section 5G of the Corporations Act 2001 of the Commonwealth in relation to the Corporations legislation.
For the purposes of section 139 of the Act, the prescribed period within which a corporation must give a notice under that section is 14 days after it ceases to engage in legal practice in this jurisdiction.
(Repealed)
This clause applies to:
(a) an order made under section 153 of the Act disqualifying a corporation from providing legal services in this jurisdiction, or
(b) an order made under section 154 of the Act disqualifying a person from managing a corporation that is an incorporated legal practice, or
(c) an order made under section 179 of the Act prohibiting an Australian legal practitioner from being a partner of a specified person,
being an order made on the application of the Law Society Council or the Regulator.
The Law Society Council or the Regulator or both of them may publicise an order in any manner the Council or Regulator thinks fit.
The applicant for an order:
(a) must, as soon as practicable after the order is made, give written notice of the order to the corresponding authority of every other jurisdiction, and
(b) may give written notice of the order to any other regulatory authority of any jurisdiction.
The notice under subclause (3) for an order made under section 153 of the Act:
(a) must state:
(i) the corporation’s name, and
(ii) the Australian Company Number (ACN) of the corporation, and
(iii) the office or business address of the corporation, as last known to the applicant for the order, and
(iv) the date of the order, and
(b) may contain other relevant information, and
(c) may be accompanied by a copy or summary of, or extract from, the order.
The notice under subclause (3) for an order made under section 154 or 179 of the Act:
(a) must state:
(i) the person’s name, and
(ii) the person’s address, as last known to the applicant for the order, and
(iii) the date of the order, and
(b) may contain other relevant information, and
(c) may be accompanied by a copy or summary of, or extract from, the order.
No liability is incurred by a protected person in respect of anything done or omitted to be done in good faith for the purpose of this clause.
In this clause,
(a) the State, or
(b) the Law Society Council, or
(c) the Regulator, or
(d) a person responsible for keeping the whole or any part of a register or any similar record in or by which an order is publicised, or
(e) an internet service provider or internet content host, or
(f) a person acting at the direction of the State or of any person or body referred to in this definition.
For the purposes of section 188 (1) (b) of the Act, the following kinds of arbitration proceedings are prescribed as kinds of arbitration proceedings in relation to which an Australian-registered foreign lawyer may provide legal services (including appearances):
(a) arbitration proceedings in which:
(i) the arbitrator is not required to apply the rules of evidence, and
(ii) knowledge of Australian law is not essential, and
(b) proceedings for the arbitration of industrial disputes in accordance with Chapter 3 of the Industrial Relations Act 1996.
For the purposes of section 188 (1) (d) of the Act, all forms of dispute resolution are prescribed as kinds of dispute resolution in relation to which an Australian-registered foreign lawyer may provide legal services, except to the extent to which:
(a) the provisions of other legislation applying to dispute resolution, or
(b) the requirements of a body responsible for dispute resolution, or
(c) the provisions of a contract that provides for dispute resolution,
restrict participation in dispute resolution to persons of a specified class that does not include Australian-registered foreign lawyers.
In this clause,
(a) the conciliation of industrial disputes undertaken in accordance with Chapter 3 of the Industrial Relations Act 1996, and
(b) mediation undertaken in accordance with Part 4 of the Civil Procedure Act 2005.
For the purposes of section 195 of the Act:
(a) the provisions of Part 3.1 (Trust money and trust accounts) of the Act, and
(b) any other provisions of the Act (other than Part 3.4 (Fidelity cover) of the Act) relating to trust money and trust accounts,
apply to Australian-registered foreign lawyers as if a reference in those provisions to a law practice or an Australian legal practitioner were a reference to an Australian-registered foreign lawyer.
The provisions of Part 8 of this Regulation accordingly apply to Australian-registered foreign lawyers as if a reference in those provisions to a law practice or an Australian legal practitioner were a reference to an Australian-registered foreign lawyer.
For the purposes of section 196 of the Act, an Australian-registered foreign lawyer who engages in legal practice in this jurisdiction:
(a) must have professional indemnity insurance that conforms with the requirements for professional indemnity insurance applicable to local legal practitioners or interstate legal practitioners, or
(b) must have some other professional indemnity insurance in respect of the practice of foreign law in this jurisdiction.
An Australian-registered foreign lawyer may not engage in legal practice in this jurisdiction in reliance on subclause (1) (a) unless he or she has satisfied the Law Society Council that he or she has the professional indemnity insurance referred to in that paragraph.
An Australian-registered foreign lawyer may not engage in legal practice in this jurisdiction on behalf of a client in reliance on subclause (1) (b) unless he or she has provided the client with a disclosure statement in respect of the professional indemnity insurance referred to in that paragraph.
A disclosure statement under subclause (3) is not valid unless:
(a) it is in writing, and
(b) it is in English or, if the client does not have a reasonable understanding of English, in some other language of which the client has a reasonable understanding, and
(c) it states that the lawyer is covered by professional indemnity insurance, but that the insurance does not conform with the requirements for professional indemnity insurance applicable to local legal practitioners or interstate legal practitioners, and
(d) if the insurance covers the lawyer for less than $1,500,000 (inclusive of any legal costs arising from claims under the insurance), it specifies the limit or limits of the insurance cover, and
(e) it specifies the insurer by whom the insurance cover is provided, and
(f) it indicates whether or not the insurance is provided in conformity with the requirements of a corresponding foreign law or the requirements of a foreign registration authority.
This clause applies to a locally registered foreign lawyer practising foreign law in this jurisdiction as an associate of a law practice.
A foreign lawyer to whom this clause applies must, when his or her application for the grant or renewal of registration as a foreign lawyer under the Act is granted by the domestic registration authority (being the Law Society Council) pay to the Law Society on account of the Fidelity Fund the appropriate contribution to the Fidelity Fund for the year ending on 30 June during which the registration is to be in force.
The amount of a contribution to the Fidelity Fund is the amount determined by the Law Society Council and approved by the Attorney General in accordance with section 430 (3) of the Act in respect of solicitors (other than solicitors who are interstate legal practitioners).
The Law Society Council may permit a contribution to be paid by instalments under an arrangement approved by the Council.
If the foreign lawyer is registered after 31 December in a year ending on 30 June, the amount of the contribution that would otherwise be payable for that year is reduced by one-half.
If a foreign lawyer to whom this clause applies has paid a contribution for a year ending on 30 June and ceases to practise as a locally registered foreign lawyer at any time before 30 June in that year, the Law Society may refund a part of the contribution at a rate determined by the Law Society Council.
Section 431 of the Act applies to a locally registered foreign lawyer practising in this jurisdiction as an associate of a law practice in the same way as it applies to a local legal practitioner.
Section 432 of the Act applies to a locally registered foreign lawyer practising foreign law in this jurisdiction as an associate of a law practice in the same way as it applies to a local legal practitioner, with the modification made by subclause (2).
Section 432 of the Act applies under this clause as if a reference in that section to a contribution required under section 430 of the Act were a reference to a contribution required under clause 47 of this Regulation.
This clause applies to a locally registered foreign lawyer practising foreign law in this jurisdiction otherwise than as an associate of a law practice.
A foreign lawyer to whom this clause applies may not practise foreign law in this jurisdiction on behalf of a client unless he or she has provided the client with a disclosure statement in respect of his or her lack of cover by the Fidelity Fund.
A disclosure statement under subclause (2) is not valid unless:
(a) it is in writing, and
(b) it is in English or, if the client does not have a reasonable understanding of English, in some other language of which the client has a reasonable understanding, and
(c) it states that the foreign lawyer is not covered by the Fidelity Fund with respect to the practice of foreign law in this jurisdiction, and
(d) it states that Australian legal practitioners generally are covered by the Fidelity Fund.
(Repealed)
For the purposes of section 232 (2) (b) of the Act, the particulars referred to in subclauses (2) and (3) are prescribed as particulars to be included in the register kept under section 232 of the Act in relation to a locally registered foreign lawyer, except where the domestic registration authority is required by subclause (6) not to include them in the register.
The particulars to be included in the register are as follows:
(a) the name of the foreign lawyer,
(b) the name of the partnership of which the lawyer is a member or employee or, if the lawyer is not a member or employee of a partnership, the name of the entity of which the lawyer is a director, officer or employee or with which the lawyer is otherwise engaged in legal practice,
(c) the contact details of the office of the partnership or other entity in this jurisdiction,
(d) by way of separate additional entry, the name of the partnership or other entity and the contact details of the office of the partnership or other entity:
(i) in this jurisdiction, and
(ii) in any other jurisdictions in which it has an office, except where the domestic registration authority considers those particulars need not be included in respect of an entity that is not a law practice,
(e) details of the foreign registration authority or authorities by which the lawyer is registered to engage in legal practice in a foreign country or foreign countries,
(f) any other particulars about the lawyer, partnership or other entity that the authority considers should be included.
(Repealed)
Contact details of an office are the following:
(a) its street address (the address where the office is physically located),
(b) its postal address (a post office box number and the location and postcode of the post office), if any,
(c) its DX address (the number of its DX box), if any.
A locally registered foreign lawyer may, by notice in writing to the domestic registration authority, request the authority not to include any or any specified particulars about the lawyer, partnership or other entity in the register, on the ground that special circumstances warrant the particulars not being publicly available (for example, if the safety or well-being of a person would be substantially affected by making the particulars publicly available).
If the domestic registration authority is satisfied that those special circumstances exist, the authority is required not to include the particulars concerned in the register unless the authority considers that the public interest in maintaining public access to the particulars outweighs any individual interest in the particulars not being publicly available.
This Part has effect for the purposes of Part 3.1 of the Act, and accordingly applies to a law practice in respect of:
(a) trust money received by the practice in this jurisdiction, unless the practice has an office in one or more other jurisdictions but not in this jurisdiction, and
(b) trust money received by the practice in another jurisdiction, if the practice has an office in this jurisdiction but in no other jurisdiction, and
(c) trust money received by the practice in another jurisdiction, if the practice has an office in:
(i) this jurisdiction, and
(ii) one or more other jurisdictions, but not in the jurisdiction in which the money was received,
unless the money is dealt with in accordance with the corresponding law of a jurisdiction in which the practice has an office.
This Part (apart from clause 106) does not apply to the Crown Solicitor.
In this Part:
This Division applies where a law practice maintains trust records (including records relating to controlled money) by means of a computerised accounting system.
The law practice must print a paper copy of trust records as follows:
(a) trust account receipts and payments cash books are to be printed monthly as at the end of each named month, unless a copy of the books as at the end of the named month is kept in electronic form that is readable or reportable on demand,
(b) reconciliation statements prepared under clause 72 (Reconciliation of trust records) are to be printed as at the end of each named month,
(c) lists of trust account ledgers and their balances are to be printed monthly as at the end of each named month,
(d) lists of controlled money accounts and their balances are to be printed monthly as at the end of each named month,
(e) trust ledger accounts, the register of controlled money and the trust account transfer journal are to be printed before they are archived or deleted from the system,
(f) trust ledger account and controlled money account details are to be printed on request by and provided to an investigator as defined in section 658 of the Act.
The trust records printed monthly as at the end of a named month under subclause (1) (a)–(d) must be printed within 15 working days after the named month.
The paper copies printed under subclause (1) are to be kept by the law practice, except where they are printed on request under that subclause.
The electronic copy of the trust account cash books under subclause (1) (a) is to be kept by the law practice.
The law practice must maintain a record, compiled in chronological sequence, of the creation, amendment or deletion of information in its computerised accounting system in relation to the following:
(a) client name,
(b) client address,
(c) matter reference,
(d) matter description,
(e) ledger account number or other descriptor.
The record is to be kept by the law practice.
The law practice must ensure that its computerised accounting system is not capable of accepting, in respect of a trust ledger account, the entry of a transaction resulting in a debit balance to the account, unless a contemporaneous record of the transaction is made in a manner that enables the production in a permanent form, on demand, of a separate chronological report of all occurrences of that kind.
The law practice must ensure that the system is not capable of deleting a trust ledger account unless:
(a) the balance of the account is zero and all outstanding cheques have been presented, and
(b) when the account is deleted, a copy of the account is kept in a permanent form.
The law practice must ensure that any entry in a record produced in a permanent form appears in chronological sequence.
The law practice must ensure that each page of each printed record is numbered sequentially or is printed in such a way that no page can be extracted.
The law practice must ensure that its computerised accounting system is not capable of amending the particulars of a transaction already recorded otherwise than by a transaction separately recorded that makes the amendment.
The law practice must ensure that its computerised accounting system requires input in every field of a data entry screen intended to receive information required by this Part to be included in trust records.
The law practice must ensure that:
(a) a back-up copy of all records required by this Part is made not less frequently than once each month, and
(b) each back-up copy is kept by the law practice, and
(c) a complete set of back-up copies is kept in a separate location so that any incident that may adversely affect the records would not also affect the back-up copy.
A law practice may at any time establish a general trust account that satisfies the requirements of this clause, but must, as soon as practicable after receiving trust money that is required to be paid into a general trust account, establish a general trust account that satisfies those requirements if the practice does not already have such a general trust account.
A general trust account satisfies the requirements of this clause if:
(a) the account is established in this jurisdiction, before, on or after 1 October 2005, with an approved ADI, and
(b) the account is and is to be maintained in this jurisdiction, and
(c) the name of the account includes:
(i) the name of the law practice or the business name under which the law practice engages in legal practice, and
(ii) the expression “law practice trust account” or “law practice trust a/c”, and
(d) the account is of a kind that is for the time being approved by the Law Society Council.
Subclause (2) (c) does not apply to an account established in this jurisdiction before 1 October 2005.
Subclause (2) (c) (ii) does not require the repetition of the words “law practice” if those words form part of the name or business name of the law practice.
This clause applies if a law practice receives trust money that is required to be paid into a general trust account.
After receiving the trust money, the law practice must make out a receipt.
The receipt must be made out as soon as practicable:
(a) after the trust money is received, except as provided by paragraph (b), or
(b) in the case of trust money received by direct deposit—after the law practice receives or accesses notice or confirmation (in written or electronic form) of the deposit from the ADI concerned.
The receipt, containing the required particulars, must be made out in duplicate, whether by way of making a carbon copy or otherwise, unless at the time the receipt is made out those particulars are recorded by computer program in the trust account receipts cash book.
For the purposes of subclause (4), the
(a) the date the receipt is made out and, if different, the date of receipt of the money,
(b) the amount of money received,
(c) the form in which the money was received,
(d) the name of the person from whom the money was received,
(e) details clearly identifying the name of the client in respect of whom the money was received and the matter description and matter reference,
(f) particulars sufficient to identify the purpose for which the money was received,
(g) the name of the law practice, or the business name under which the law practice engages in legal practice, and the expression “trust account” or “trust a/c”,
(h) the name of the person who made out the receipt,
(i) the number of the receipt.
The original receipt is to be delivered, on request, to the person from whom the trust money was received.
Receipts must be consecutively numbered and issued in consecutive sequence.
If a receipt is cancelled or not delivered, the original receipt must be kept.
This clause applies if a law practice receives trust money that is required to be paid into a general trust account and the money is not paid into a general trust account by direct deposit.
A deposit record must be produced to the approved ADI at the time the deposit is made.
The following particulars must be recorded on the deposit record:
(a) the date of the deposit,
(b) the amount of the deposit,
(c) whether the deposit consists of cheques, notes or coins (and the amount of each),
(d) for each cheque:
(i) the name of the drawer of the cheque,
(ii) the name and branch (or BSB number) of the ADI on which the cheque is drawn,
(iii) the amount of the cheque.
The deposit record must be made out in duplicate, whether by way of making a carbon copy or otherwise.
The duplicate deposit record must be kept for each deposit to the general trust account and must be kept in a deposit book or be otherwise securely filed in the order in which the deposits were made.
For the purposes of section 254 (3) of the Act, the prescribed period for which a written direction referred to in section 254 (1) (a) of the Act is to be kept is 7 years after finalisation of the matter to which the direction relates.
(Repealed)
This clause applies to the withdrawal of trust money from a general trust account of a law practice by cheque.
A cheque:
(a) must be made payable to or to the order of a specified person or persons and not to bearer or cash, and
(b) must be crossed “not negotiable”, and
(c) must include:
(i) the name of the law practice or the business name under which the law practice engages in legal practice, and
(ii) the expression “law practice trust account” or “law practice trust a/c”.
A cheque must be signed:
(a) by an authorised principal of the law practice, or
(b) if a principal referred to in paragraph (a) is not available:
(i) by an authorised legal practitioner associate, or
(ii) by an authorised Australian legal practitioner who holds an unrestricted practising certificate authorising the receipt of trust money, or
(iii) by two or more authorised associates jointly.
A written record of the required particulars (which may be in the form of a cheque butt) must be kept of each payment made by cheque, whether by way of making a carbon copy or otherwise, unless at the time the cheque is issued those particulars are recorded by computer program in the trust account payments cash book.
If at the time the cheque is issued the required particulars are recorded by computer program in the trust account payments cash book, a written record must be kept that is sufficient to enable the accuracy of the particulars recorded by the computer program to be verified.
For the purposes of subclauses (4) and (5), the
(a) the date and number of the cheque,
(b) the amount ordered to be paid by the cheque,
(c) the name of the person to whom the payment is to be made or, in the case of a cheque made payable to an ADI, the name of the ADI and the name of the person receiving the benefit of the payment,
(d) details clearly identifying the name of the person on whose behalf the payment was made and the matter reference,
(e) details clearly identifying the ledger account to be debited,
(f) particulars sufficient to identify the purpose for which the payment was made.
Written records relating to payments by cheque (including cheque requisitions) must be kept in the order in which the cheques were issued.
Subclause (2) (c) does not apply to an account established in this jurisdiction before 1 October 2005.
Subclause (2) (c) (ii) does not require the repetition of the words “law practice” if those words form part of the name or business name of the law practice.
In this clause:
This clause applies to the withdrawal of trust money from a general trust account of a law practice by electronic funds transfer.
An electronic funds transfer must be effected by, under the direction of or with the authority of:
(a) an authorised principal of the law practice, or
(b) if a principal referred to in paragraph (a) is not available:
(i) an authorised legal practitioner associate, or
(ii) an authorised Australian legal practitioner who holds an unrestricted practising certificate authorising the receipt of trust money, or
(iii) two or more authorised associates jointly.
A written record of the required particulars must be kept of each payment unless at the time the electronic funds transfer is effected those particulars are recorded by computer program in the trust account payments cash book.
If at the time the electronic funds transfer is effected the required particulars are recorded by computer program in the trust account payments cash book, a written record must be kept that is sufficient to enable the accuracy of the particulars recorded by the computer program to be verified.
For the purposes of subclauses (3) and (4), the
(a) the date and number of the transaction,
(b) the amount transferred,
(c) the name and number of the account to which the amount was transferred and relevant BSB number,
(d) the name of the person to whom the payment was made or, in the case of a payment to an ADI, the name or BSB number of the ADI and the name of the person receiving the benefit of the payment,
(e) details clearly identifying the name of the person on whose behalf the payment was made and the matter reference,
(f) details clearly identifying the ledger account to be debited,
(g) particulars sufficient to identify the purpose for which the payment was made.
Written records relating to payments by electronic funds transfer (including transfer requisitions) must be kept in the order in which the transfers were effected.
In this clause:
A law practice that maintains a general trust account must keep the following trust account cash books:
(a) a trust account receipts cash book in accordance with clause 68,
(b) a trust account payments cash book in accordance with clause 69.
The following particulars must be recorded in a law practice’s trust account receipts cash book in respect of each receipt of trust money:
(a) the date a receipt was made out for the money and, if different, the date of receipt of the money,
(b) the receipt number,
(c) the amount of money received,
(d) the form in which the money was received,
(e) the name of the person from whom the money was received,
(f) details clearly identifying the name of the client in respect of whom the money was received and the matter description and matter reference,
(g) particulars sufficient to identify the purpose for which the money was received,
(h) details clearly identifying the ledger account to be credited.
The date and amount of each deposit in the general trust account must be recorded in the trust account receipts cash book.
The particulars in respect of receipts must be recorded in the order in which the receipts are made out.
The particulars in respect of a receipt must be recorded within 5 working days counting from and including the day the receipt was made out.
The following particulars must be recorded in a law practice’s trust account payments cash book in respect of each payment of trust money by cheque:
(a) the date and number of the cheque,
(b) the amount ordered to be paid by the cheque,
(c) the name of the person to whom the payment is to be made or, in the case of a cheque made payable to an ADI, the name or BSB number of the ADI and the name of the person receiving the benefit of the payment,
(d) details clearly identifying the name of the person on whose behalf the payment was made and the matter reference,
(e) details clearly identifying the ledger account to be debited,
(f) particulars sufficient to identify the purpose for which the payment was made.
The following particulars must be recorded in a law practice’s trust accounts payments cash book in respect of each payment of trust money by electronic funds transfer:
(a) the date and number of the transaction,
(b) the amount transferred,
(c) the name and number of the account to which the amount was transferred and the relevant BSB number,
(d) the name of the person to whom the payment was made or, in the case of a payment to an ADI, the name or BSB number of the ADI and the name of the person receiving the benefit of the payment,
(e) details clearly identifying the name of the person on whose behalf the payment was made and the matter reference,
(f) details clearly identifying the ledger account to be debited,
(g) particulars sufficient to identify the purpose for which the payment was made.
The particulars in respect of payments must be recorded in the order in which the payments are made.
The particulars in respect of a payment must be recorded within 5 working days counting from and including the day the payment was made.
A law practice that maintains a general trust account must keep a trust account ledger containing separate trust ledger accounts in relation to each client of the practice in each matter for which trust money has been received by the practice.
The following particulars must be recorded in the title of a trust ledger account:
(a) the name of the person for or on behalf of whom the trust money was paid,
(b) the person’s address,
(c) particulars sufficient to identify the matter in relation to which the trust money was received.
Details of any changes in the title of a trust ledger account must be recorded.
The following particulars must be recorded in the trust ledger account in respect of each receipt of trust money for the matter:
$266 | |
Costs on issue of warrant for arrest of judgment debtor including drawing/typing/checking of notice of motion for issue of warrant | $266 |
Costs of taking instructions, preparing documents and filing notice of motion for writ of execution (whether or not the matter was contested) including drawing/typing/checking of notice of motion, affidavit and cheque for payment of proceeds to plaintiff | $476 |
No | Item | Amount |
Costs of taking instructions, preparing documents and filing statement of claim for recovery of lump sum debt including drawing/typing/checking of originating process and cheque to pay account of process server | $602 | |
Costs on applying for default judgment for recovery of lump sum debt or claim for detention of goods, including all matters listed in item 1 plus drawing/typing/checking affidavit of service, notice of motion and affidavit in support | $872 | |
Costs on obtaining judgment in undefended proceedings including all matters listed in items 1 and 2 | $1,505 | |
Items 1, 2 and 3 are alternatives, and only one of them is applicable in respect of any matter. If, in respect of any of those items, if the amount at issue in the proceedings:
| ||
Costs of issuing an examination notice and obtaining an order for examination, including drawing/typing/checking of notice of motion and cheque to pay account of process server | $358 | |
Costs on examination of judgment debtor by solicitor | $261 | |
Costs on attending examination of judgment debtor where the judgment debtor fails, without reasonable excuse:
| $190 | |
Costs on issue of warrant for arrest of judgment debtor including drawing/typing/checking of notice of motion for issue of warrant | $190 | |
Costs of taking instructions, preparing documents and filing notice of motion for writ of execution (whether or not the matter was contested) including drawing/typing/checking of notice of motion, affidavit and cheque for payment of proceeds to plaintiff | $242 |
(Clause 113)
No | Item | Amount |
Drawing/typing/checking originating process, notice of appeal to the court, notice of application for leave to make an appeal to the court, or third or subsequent party notice | $56 | |
Drawing/typing/checking any document, including any notice of subpoena or document necessarily or properly filed or delivered to another party or to counsel or the court, but excluding a certificate of readiness, per page | $17 | |
Drawing/typing/checking certificate of readiness where required | $39 | |
If the certificate of readiness is special or necessarily long, such allowance as the registrar thinks proper, not exceeding per page | $17 | |
Short letter (up to one folio in length) | $17 | |
Circular, being identical (save for address details) with any other letter | $8 | |
Any other letter, per folio | $17 | |
Not requiring skill | $14 | |
Requiring skill or legal knowledge: | ||
| $20 | |
| $14 | |
Perusal of court documents (being any document filed in court), per page or part of a page | $15 | |
Perusal of other documents, including correspondence, per folio | $5 | |
Where it is not necessary to peruse but it is necessary to scan a document, per page | $36 | |
Being a photographic reproduction, carbon or other copy of a document including copies for use in court, copies of doctors’ reports for use on hearing, sending or receiving facsimile transmission, including the time reasonably spent by an Australian legal practitioner or clerk in preparing, sorting and collating such documents for copying, per page | $1 | |
In respect of facsimile transmissions, STD and IDD transmission fees may be claimed as disbursements. | ||
Time reasonably spent by a legal practitioner (not being time spent at a conciliation conference) including travelling, waiting time, other than work referred to in items 1–6 inclusive, per quarter hour or part of a quarter hour | $35 | |
Time spent by an Australian legal practitioner at a conciliation conference, per hour or part of an hour | $250 | |
Time reasonably spent by a clerk including travelling, waiting time on work other than work referred to in items 1–6 inclusive, per six minute unit | $4 | |
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Where any individual item merits any particular skill or attention an additional allowance is to be made in addition to any general allowance under item 9 | ||
Such sum as may be reasonable, having regard to all of the circumstances of the case and in particular to the following:
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Any disbursement necessarily incurred is to be allowed except in so far as any such disbursement is of an unreasonable amount or has been unreasonably incurred and any doubts which the taxing officer/costs assessor may have as to whether any disbursement was reasonably incurred or was reasonable in amount are to be resolved in favour of the receiving party | ||
An allowance under items 1, 2 and 3 includes any file copy. | ||
In this Part: |
No | Item | Amount |
Brief fees are to be calculated on the nature of the relief obtained, in accordance with the following scale: | ||
Scale A | $620 | |
Scale B | $850 | |
Scale C | $980 | |
The scale appropriate for the relief obtained is to be as follows: | ||
| A | |
| A | |
| A | |
| A | |
| C | |
| C | |
| B | |
| C | |
| C | |
| A | |
| C | |
| A | |
| C | |
To appear in respect of any motion, or at any conciliation conference, where the court certifies that the matter is appropriate for an advocate | $370 | |
To attend any second or subsequent conference in respect of the applicant, if certified | $125–$310 | |
To advise on evidence | $125–$310 | |
For drawing, settling any necessary document, conferences, advice (not including advice on evidence), pleadings or for any work involving an advocate in his or her chambers or offices, views, including travelling time, taking a reserved judgment, appearing at call overs, mentions and adjournments, other than any work referred to in items 1–3 inclusive—per hour | $140 | |
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For the purposes of item 8 of Part 2 of this Schedule, the loading for attending a hearing at any of the following locations, for the first day is: | |
Albury | $723 |
Armidale | $663 |
Bateman’s Bay | $662 |
Bathurst | $525 |
Bega | $799 |
Bourke | $1,141 |
Broken Hill | $1,232 |
Campbelltown | $63 |
Casino | $745 |
Cessnock | $411 |
Cobar | $1,049 |
Coffs Harbour | $584 |
Condobolin | $889 |
Cooma | $882 |
Coonamble | $850 |
Cootamundra | $603 |
Cowra | $464 |
Deniliquin | $777 |
Dubbo | $615 |
Forbes | $615 |
Glen Innes | $584 |
Gosford | $176 |
Goulburn | $434 |
Grafton | $715 |
Griffith | $588 |
Gundagai | $690 |
Gunnedah | $680 |
Hay | $761 |
Inverell | $683 |
Katoomba | $239 |
Kempsey | $629 |
Lismore | $658 |
Lithgow | $273 |
Maitland (including East Maitland) | $411 |
Moree | $616 |
Moruya | $516 |
Moss Vale | $284 |
Mudgee | $490 |
Murwillumbah | $761 |
Muswellbrook | $436 |
Narrabri | $572 |
Narrandera | $568 |
Newcastle | $411 |
Nowra | $411 |
Nyngan | $977 |
Orange | $468 |
Parkes | $633 |
Penrith | $63 |
Port Macquarie | $530 |
Queanbeyan | $526 |
Singleton | $632 |
Tamworth | $613 |
Taree | $490 |
Tweed Heads | $714 |
Wagga Wagga | $544 |
Wentworth | $1,154 |
Wollongong | $260 |
Yass | $463 |
Young | $603 |
If the advocate is a senior counsel—add $75 per day to the relevant loading. | |
For each additional day attending a hearing at any of the locations listed above—add $163. | |
Where the NRMA car rental discount is applicable, the amount of the loading is to be reduced by an amount that is calculated by subtracting the discount amount paid from the amount allowed in the loading of $99. |
Barristers, solicitors, accountants, medical practitioners, surveyors, architects, pharmacists and other professional persons attending to give evidence | $160–$300 |
or per hour | $125–$200 |
Whenever a barrister, solicitor, accountant, surveyor, architect, pharmacist, or other professional person (not being a medical practitioner) prepares a report, the fee for the preparation of the report is to be allowed at a rate per hour or part of an hour | $125–$200 |
Whenever the persons mentioned in item 1 are called to give expert evidence and not evidence of fact: | |
| $250–$400 |
| $125–$200 |
| |
Travelling and other allowances:
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Other witnesses:
| |
The following fees may vary within the stated range, depending on the complexity of the matter, the number of documents to be studied and the amount of research needed to give the medical opinion: | |
| |
| $120–$160 |
| $80–$120 |
| $60–$80 |
| |
| $200–$300 |
| $150–$250 |
| $100–$175 |
| |
| $220–$500 |
| $200–$450 |
| $100–$215 |
Attending a joint examination (including travelling time where the distance does not exceed 8 kilometres): | |
| $300–$500 |
| $130–$175 |
| $100–$175 |
Where special circumstances are shown to exist, eg, as in the case of a psychiatrist or psychologist necessitating prolonged or repeated attendances in a particular case, fees may be charged in accordance with item 1 | |
Allowances for interpreters: | |
| $250 |
| |
| $80 |
| $30 |
| $22 |
|
(Clause 114)
Disclosed value of assets | Costs payable |
Not exceeding $30,000 | $560 Plus $13.33 for each $1,000 up to $30,000 |
Exceeding $30,000 but not exceeding $150,000 | $960 Plus $5.90 for each $1,000 in excess of $30,000 |
Exceeding $150,000 but not exceeding $1,000,000 | $1,670 Plus $4.47 for each $1,000 in excess of $150,000 |
Exceeding $1,000,000 but not exceeding $3,000,000 | $5,470 Plus $1.66 for each $1,000 in excess of $1,000,000 |
Exceeding $3,000,000 but not exceeding $5,000,000 | $8,800 Plus $1.10 for each $1,000 in excess of $3,000,000 |
Exceeding $5,000,000 but not exceeding $10,000,000 | $11,000 Plus $0.90 for each $1,000 in excess of $5,000,000 |
Exceeding $10,000,000 | $15,500 |
Value of assets remaining at the time of application | Costs payable |
Not exceeding $30,000 | $460 Plus $10.83 for each $1,000 up to $30,000 |
Exceeding $30,000 but not exceeding $150,000 | $785 Plus $4.88 for each $1,000 in excess of $30,000 |
Exceeding $150,000 but not exceeding $1,000,000 | $1,370 Plus $3.65 for each $1,000 in excess of $150,000 |
Exceeding $1,000,000 but not exceeding $3,000,000 | $4,480 Plus $1.37 for each $1,000 in excess of $1,000,000 |
Exceeding $3,000,000 but not exceeding $5,000,000 | $7,230 Plus $0.91 for each $1,000 in excess of $3,000,000 |
Exceeding $5,000,000 but not exceeding $10,000,000 | $9,060 Plus $0.72 for each $1,000 in excess of $5,000,000 |
Exceeding $10,000,000 | $12,685 |
Such amount as is allowed under Part 1 for the first time grant of probate and, if a law practice is required to perform any work in addition to that for which Part 1 makes provision, such additional amount as is allowed under Table 1 in Schedule G to the Supreme Court Rules 1970.
(Clause 3 (2))
(Clause 94)
I, [
DO SOLEMNLY AND SINCERELY DECLARE THAT:
1 I am or was a principal of a law practice that on [
insert date ] *ceased to be authorised to receive trust money/*ceased to be engaged in legal practice in this jurisdiction.2 The law practice does not now hold any trust money, all such trust money having been applied in accordance with the Legal Profession Act 2004.
AND I make this solemn declaration conscientiously believing the same to be true, and by virtue of the provision of the Oaths Act 1900.
DECLARED AT [
in the State of New South Wales
on [
Before:
[
a person authorised to witness the signing of a statutory declaration.
*
*
I [
1 *I saw the face of the person
or *I did not see the face of the person because the person was wearing a face covering, but I am satisfied that the person had a special justification for not removing the covering.2 *I have known the person for at least 12 months
or *I have confirmed the person’s identity using an identification document and the document I relied on was [describe identification document relied on ].
[
Date:
(Clause 109A)
You have the right to:
• negotiate a costs agreement with us
• receive a bill of costs from us
• request an itemised bill of costs after you receive a lump sum bill from us
• request written reports about the progress of your matter and the costs incurred in your matter
• apply for costs to be assessed within 12 months if you are unhappy with our costs
• apply for the costs agreement to be set aside
• accept or reject any offer we make for an interstate costs law to apply to your matter
• notify us that you require an interstate costs law to apply to your matter
For more information about your rights, please read the fact sheet titled Legal Costs—your right to know. You can ask us for a copy, or obtain it from your local law society or law institute (or download it from their website).
(Clause 111A)
The following avenues are available to you if you are not happy with this bill:
• requesting an itemised bill
• discussing your concerns with us
• having our costs assessed
• applying to set aside our costs agreement
There may be other avenues available in your State or Territory (such as mediation).
For more information about your rights, please read the fact sheet titled Your right to challenge legal costs. You can ask us for a copy, or obtain it from your local law society or law institute (or download it from their website).
(Repealed)
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