Professional Standards Amendment Act 2010 (WA)

Western Australia

Professional Standards Amendment Act 2010

Western Australia

Professional Standards Amendment Act 2010

CONTENTS

Part 1 — Preliminary

1.	Short title	2
2.	Commencement	2
3.	Act amended	2
Part 2 — Amendments relating to

defence costs

4.	Section 4 amended	3
5.	Section 34 replaced	4

34. Limitation of liability by insurance

arrangements

6.	Section 35 amended	5
7.	Section 36 amended	5
8.	Section 40A inserted	7

40A.

Liability in damages not reduced to below

relevant limit

9.	Section 41 amended	7
Part 3 — Amendments relating to

mutual recognition

10.	Section 4 amended	8
11.	Section 12 amended	8
12.	Section 12A inserted	9

12A.

Cooperation with authorities in other

jurisdictions

13.	Section 20 amended	9
14.	Section 21 amended	9

Professional Standards Amendment Act 2010

Contents

15.	Section 23 amended	10
16.	Section 25 amended	11
17.	Section 26 amended	11
18.	Section 27 amended	11
19.	Section 28 amended	12
20.	Section 29 amended	13
21.	Section 29A amended	13
22.	Sections 30A and 30B inserted	14

30A.	Notification of revocation of schemes	14
30B.	Termination of operation of interstate
schemes in this jurisdiction	14

23.	Section 44A amended	15
Part 4 — Amendments for

consistency with the national

model legislation and for other

purposes

24.	Section 5 amended	17
25.	Section 17 amended	17
26.	Section 31 amended	18
27.	Section 34A inserted	18

34A.

Extension of liability limitation to other

persons to whom scheme applies

28.	Section 42 amended	19
Part 5 — Amendments providing for

transitional matters

29.	Schedule 4 amended	20
Division 1 — Provisions relating to the *Professional*

Standards Amendment Act 2004

Division 2 — Provisions relating to the Professional

Standards Amendment Act 2010

7.	Terms used	20
8.	Personal injury claims	21
9.	Application of schemes to officers,
partners, employees and associates	21
10.	Associated defendants	21
11.	Expiry date of existing schemes	21
12.	Application of clause 6	21

Western Australia

Professional Standards Amendment Act 2010

No. 3 of 2010

An Act to amend the Professional Standards Act 1997.

[Assented to 7 April 2010]

The Parliament of Western Australia enacts as follows:

Professional Standards Amendment Act 2010

Part 1	Preliminary
s. 1

Part 1 — Preliminary

1. Short title

This is the Professional Standards Amendment Act 2010.

2. Commencement

This Act comes into operation as follows —

(a)	Part 1 — on the day on which this Act receives the Royal Assent;
(b)	the rest of the Act — on the day after that day.

3. Act amended

This Act amends the Professional Standards Act 1997.

Professional Standards Amendment Act 2010

Amendments relating to defence costs

Part 2

s. 4

Part 2 — Amendments relating to defence costs

4. Section 4 amended

(1)	In section 4:

(a)	delete “In this” and insert:

(1) In this

(b)	delete the definition of *damages*;
(c)	insert in alphabetical order:

costs includes fees, charges, disbursements and

expenses;

damages means —

(a)	damages awarded in respect of a claim or counter-claim or claim by way of set-off; and
(b)	costs in or in relation to the proceedings ordered to be paid in connection with such an award (other than costs incurred in enforcing a judgment or incurred on an appeal made by the defendant); and
(c)	any interest payable on the amount of those damages or costs;

(2)

At the end of section 4 insert:

(2)	When this Act refers to the *amount payable* under an insurance policy in respect of an occupational liability it includes —

(a)	defence costs payable in respect of a claim, or notification that may lead to a claim (other than reimbursement of the defendant for time spent in relation to the claim), but only if those costs

Professional Standards Amendment Act 2010

Part 2	Amendments relating to defence costs
s. 5

are payable out of the one sum insured under

the policy in respect of the occupational

liability; and

(b)	the amount payable under or in relation to the policy by way of excess.

5. Section 34 replaced

Delete section 34 and insert:

34. Limitation of liability by insurance arrangements

A scheme may provide that if a person to whom the

scheme applies and against whom a proceeding relating

to occupational liability is brought is able to satisfy the

court concerned that —

(a)	that person has the benefit of an insurance policy insuring that person against the occupational liability to which the cause of action relates; and
(b)	the amount payable under the policy in respect of that occupational liability is not less than the amount of the monetary ceiling specified in the scheme in relation to the class of person and the kind of work to which the cause of action

relates,

that person is not liable in damages in relation to that

cause of action above the amount of the monetary

ceiling so specified.

Professional Standards Amendment Act 2010

Amendments relating to defence costs

Part 2

s. 6

6. Section 35 amended

In section 35:

(a)	in paragraph (a) delete “relates at the time at which the act or omission giving rise to the cause of action occurred; or” and insert:

relates; or

(b)	in paragraph (b)(i) delete “that occupational liability; and” and insert:

the occupational liability to which the

cause of action relates; and

(c)	delete paragraph (b)(ii) and insert:

(ii) the net current market value of the business assets and the amount payable under the policy in respect of that occupational liability, if combined, would total an amount that is not less than the amount of the monetary ceiling specified in the scheme in relation to the class of person and the kind of work to which the cause of action relates,

7. Section 36 amended

In section 36(1):

(a)	in paragraph (a)(i) delete “that occupational liability; and” and insert:

the occupational liability to which the

cause of action relates; and

Professional Standards Amendment Act 2010

Part 2	Amendments relating to defence costs
s. 7

(b)	delete paragraph (a)(ii) and insert:

(ii)	respect of that occupational liability is not less than an amount (the *limitation* *amount*), being a reasonable charge for the services which were provided by

under which the amount payable in to provide, and to which the cause of action relates, multiplied by the multiple specified in the scheme in relation to the class of person and the kind of work to which the cause of action relates;

(c)	in paragraph (aa) delete “that person” and insert:

that that person

(d)	in paragraph (b)(i) delete “that occupational liability; and” and insert:

the occupational liability to which the

cause of action relates; and

(e)	delete paragraph (b)(ii) and insert:

Professional Standards Amendment Act 2010

Amendments relating to defence costs

Part 2

s. 8

8. Section 40A inserted

After section 39 insert:

40A.

Liability in damages not reduced to below relevant

limit

The liability in damages of a person to whom a scheme

applies is not reduced below the relevant limitation

imposed by a scheme in force under this Act because

the amount available to be paid to the claimant under

the insurance policy required for the purposes of this

Act in respect of that liability is less than the relevant

limitation.

9. Section 41 amended

In section 41(2) delete “at the time of the relevant act or

omission.” and insert:

at the time at which the act or omission giving rise to

the cause of action concerned occurred.

Professional Standards Amendment Act 2010

Part 3	Amendments relating to mutual recognition
s. 10

Part 3 — Amendments relating to mutual recognition

10. Section 4 amended

In section 4:

(a)	insert in alphabetical order:

another jurisdiction means any State or Territory,

other than this jurisdiction;

appropriate Council, in relation to another jurisdiction,

means the authority that, under the corresponding law

of that jurisdiction, has functions that are substantially

the same as the Council’s functions under this Act;

corresponding law means a law of another jurisdiction

that corresponds to this Act, and includes a law of

another jurisdiction that is declared by the regulations

to be a corresponding law of that jurisdiction for the

purposes of this Act;

interstate scheme means a scheme —

(a)	that has been prepared under the corresponding law of another jurisdiction; and
(b)	that operates, or indicates an intention to operate, as a scheme of this jurisdiction;

this jurisdiction means Western Australia.

(b)	in the definition of *scheme* delete “association.” and insert:

association, and includes an interstate scheme;

11. Section 12 amended

(1)	In section 12(1)(a)(i) delete “by it”.

Professional Standards Amendment Act 2010

Amendments relating to mutual recognition	Part 3
s. 12

(2)	In section 12(4) delete “Act.” and insert:
Act or law.

12. Section 12A inserted

After section 12 insert:

12A.	Cooperation with authorities in other jurisdictions
For the purpose of dealing with a scheme that operates, or indicates an intention to operate, as a scheme of both this jurisdiction and another jurisdiction, the
Council —

(a)	may, in the exercise of its functions under this Act, act in conjunction with the appropriate Council for the other jurisdiction; and
(b)	may act in conjunction with the appropriate Council for the other jurisdiction in the exercise of that Council’s functions under the corresponding law of that jurisdiction.

13. Section 20 amended

After section 20(3) insert:

(4)	A scheme prepared under this section may indicate an intention to operate as a scheme of this jurisdiction only, or of this jurisdiction and another jurisdiction.

14. Section 21 amended

(1)	In section 21 delete “Before” and insert:
(1) Before

Professional Standards Amendment Act 2010

Part 3	Amendments relating to mutual recognition
s. 15

(2)

At the end of section 21 insert:

(2)

If the scheme indicates an intention to operate as a

scheme of both this jurisdiction and another

jurisdiction, the Council must also publish a similar

notice in the other jurisdiction in accordance with the

requirements of the corresponding law of that

jurisdiction that relate to the approval of a scheme

prepared in that jurisdiction.

15. Section 23 amended

(1)

In section 23 delete “Before” and insert:

(1) Before

(2)

At the end of section 23 insert:

(2)	If the scheme indicates an intention to operate as a scheme of both this jurisdiction and another jurisdiction —

(a)	the Council must also consider any matter that the appropriate Council for the other jurisdiction would have to consider under the provisions of the corresponding law of that jurisdiction that relate to the approval of a scheme prepared in that jurisdiction; and
(b)	the matters to be considered by the Council, whether under subsection (1) or paragraph (a), are to be considered in the context of each of the jurisdictions concerned.

Professional Standards Amendment Act 2010

Amendments relating to mutual recognition	Part 3
s. 16

16. Section 25 amended

(1)

In section 25 delete “The Council” and insert:

(1) The Council

(2)

At the end of section 25 insert:

(2)	If the scheme indicates an intention to operate as a scheme of both this jurisdiction and another jurisdiction, the Council may also submit the scheme to the Minister administering the corresponding law of the other jurisdiction.

17. Section 26 amended

(1)	In section 26(1) delete “Council.” and insert:

Council or, in the case of an interstate scheme, by the

appropriate Council for the jurisdiction in which the

scheme was prepared.

(2)

After section 26(2) insert:

(3)	In this section, a reference to an interstate scheme includes a reference to an instrument amending an interstate scheme.

18. Section 27 amended

Delete section 27(2) and insert:

(2)	This section is subject to any order made by the Supreme Court under section 28 and any order made

Professional Standards Amendment Act 2010

Part 3

Amendments relating to mutual recognition

s. 19

by the Supreme Court of another jurisdiction under the

corresponding law of that jurisdiction.

(3)	In this section, a reference to a scheme includes, in the case of an interstate scheme, a reference to an instrument amending that scheme.

19. Section 28 amended

(1)	Before section 28(1) insert:

(1A)

In this section —

scheme, in the case of an interstate scheme, includes an

instrument amending that scheme.

(2)	In section 28(1) after “section 26” insert:

(including a person who is or is reasonably likely to be

affected by a scheme that operates as a scheme of

another jurisdiction)

(3)

After section 28(3) insert:

(4)

The Court may not make an order that an interstate

scheme is void for want of compliance with this Act on

the ground that the scheme fails to comply with

Division 2, but may do so on the ground that the

scheme fails to comply with the provisions of the

corresponding law of the jurisdiction in which it was

prepared that relate to the contents of schemes prepared

in that jurisdiction.

(5)

This section does not prevent a scheme from being

challenged or called into question otherwise than under

this section.

Professional Standards Amendment Act 2010

Amendments relating to mutual recognition	Part 3
s. 20

20. Section 29 amended

Delete section 29(3) and insert:

(3)	A review may, but need not, be conducted in order to decide —

(a)	in the case of a scheme prepared under this Act, whether the scheme should be amended or revoked or whether a new scheme should be made; or
(b)	in the case of an interstate scheme, whether the operation of the scheme should be terminated in relation to this jurisdiction.

21. Section 29A amended

(1)

In section 29A(1), (2), (3) and (4) delete “an amendment to or

revocation of ” and insert:

an instrument amending or revoking

(2)

Delete section 29A(5) and (6) and insert:

(5)

The provisions of sections 20 to 28 extend, with any

necessary modifications, to the amendment of a

scheme by an instrument under this section.

(6)

The provisions of sections 20 to 27 (other than

section 25(2)) extend, with any necessary

modifications, to the revocation of a scheme by an

instrument under this section.

(7)

The amendment or revocation of a scheme does not

affect a right or liability arising during the application

of the scheme to members of an occupational

association before the amendment or revocation.

Professional Standards Amendment Act 2010

Part 3	Amendments relating to mutual recognition
s. 22

(8)	This section does not apply to an interstate scheme.

22. Sections 30A and 30B inserted

At the end of Part 3 Division 1 insert:

30A.

Notification of revocation of schemes

(1)

On publication in the Gazette of an instrument

revoking a scheme (other than an interstate scheme)

that operates as a scheme of another jurisdiction, the

Minister must cause notice of that fact to be given to

the Minister administering the corresponding law of

that jurisdiction.

(2)

On receipt of notice that an interstate scheme has been

revoked under the corresponding law of the jurisdiction

in which it was prepared, the Minister must cause a

statement to that effect to be published in the Gazette.

30B.

Termination of operation of interstate schemes in

this jurisdiction

(1)

The Council may, on the application of an occupational

association, prepare an instrument terminating, in

relation to this jurisdiction, the operation of an

interstate scheme that relates to members of the

association.

(2)

The Minister may direct the Council to prepare an

instrument terminating the operation of an interstate

scheme in relation to this jurisdiction.

(3)

The Council must comply with any direction under

subsection (2) but may on its own initiative, at any time

while an interstate scheme remains in force, prepare an

instrument terminating the operation of the scheme in

relation to this jurisdiction.

Professional Standards Amendment Act 2010

Amendments relating to mutual recognition	Part 3
s. 23

(4)

The provisions of sections 21 to 26 (other than

section 25(2)) extend, with any necessary

modifications, to the termination of the operation of an

interstate scheme under an instrument under this

section.

(5)

The operation of an interstate scheme in respect of which an instrument under this section is published under section 26 (as applied by subsection (4)) is

terminated, in relation to this jurisdiction, as from —

(a)	a day specified in the instrument, being a day that is later than the day of its publication; or
(b)	if no day is specified, 2 months after the day of its publication.

23. Section 44A amended

Delete section 44A(1) and insert:

(1)	A scheme must specify the period (not exceeding 5 years) for which it is to remain in force after its commencement.

(2A)	Subject to subsection (2), a scheme (other than an interstate scheme) remains in force until —

(a)	the period specified under subsection (1) ends; or
(b)	the scheme is revoked; or
(c)	the scheme’s operation ceases because of the operation of another Act; or
(d)	the scheme is declared void, either by an order made by the Supreme Court under section 28 or by an order made by the Supreme Court of another jurisdiction under the corresponding law of that jurisdiction; or

Professional Standards Amendment Act 2010

Part 3

Amendments relating to mutual recognition

s. 23

(e)	the scheme is disallowed under the Interpretation Act 1984 section 42.

(2B)	Subject to subsection (2), an interstate scheme remains in force in this jurisdiction until —

(a)	the period specified under subsection (1) ends; or
(b)	the scheme’s operation in relation to this jurisdiction is terminated under section 30B; or
(c)	the scheme ceases to have effect in the jurisdiction in which it was prepared; or
(d)	the scheme is disallowed under the Interpretation Act 1984 section 42.

Professional Standards Amendment Act 2010

Amendments for consistency with the national model

Part 4

legislation and for other purposes

s. 24

Part 4 — Amendments for consistency with the

national model legislation and for other purposes

24. Section 5 amended

(1)	In section 5(1):

(a)	delete paragraph (b);
(b)	after paragraph (a) insert:

(2)

After section 5(2) insert:

(3)	Subsection (1)(a) does not operate to exclude from the operation of this Act liability for damages arising out of any negligence or other fault of a legal practitioner in acting for a client in a personal injury claim.

25. Section 17 amended

(1)

In section 17 delete “The provisions” and insert:

(1) The provisions

(2)

At the end of section 17 insert:

(2)

An annual report submitted by the accountable

authority of the Council under the Financial

Management Act 2006 Part 5 is to include details of

any forums conducted by the Council under

section 12(1)(h), and any committees established by

the Council under section 14, during the financial year

to which the report relates.

Professional Standards Amendment Act 2010

Part 4

Amendments for consistency with the national model

legislation and for other purposes

s. 26

26. Section 31 amended

In section 31(4) in the definition of officer delete paragraph (a)

and “and” after it and insert:

(a)	corporation as defined in the Corporations

in relation to a body corporate that is a meaning given in section 9 of that Act; and

27. Section 34A inserted

After section 33 insert:

34A.

Extension of liability limitation to other persons to

whom scheme applies

(1)

In this section —

associate, of a person, means someone who is

associated with the person under the regulations

referred to in section 42(4)(b);

officer —

(a)	corporation as defined in the Corporations

in relation to a body corporate that is a meaning given in section 9 of that Act; and

(b)	in relation to a body corporate that is not a corporation as so defined, means any person (by whatever name called) who is concerned in or takes part in the management of the body corporate.

(2)	limitation that applies under this Act to the occupational liability of a person as a member of an occupational association in respect of a cause of action (the *principal cause of action*) also applies, in respect of the principal cause of action and any related cause of

Professional Standards Amendment Act 2010

Amendments for consistency with the national model

Part 4

legislation and for other purposes

s. 28

action, to the liability of any other person to whom the

scheme concerned applies as a partner, officer,

employee or associate of the member (whether or not

the other person’s liability is an occupational liability).

(3)

A related cause of action is a cause of action in respect

of civil liability of the other person arising (in tort,

contract or otherwise) directly or vicariously from

anything done or omitted by that person that caused or

contributed to the loss or damage with which the

principal cause of action is concerned and that resulted

from the same or substantially the same event as that

from which the principal cause of action arose.

(4)

When this section refers to a person who is a partner,

officer, employee or associate of a member of an

occupational association it refers to a person who was

such a partner, officer, employee or associate at the

time of the event that gave rise to the principal cause of

action.

(5)

When this section refers to a limitation on liability that

applies to a person as a member of an occupational

association it includes a limitation on liability that

would apply to the person if a cause of action relating

to the liability were brought against the person.

28. Section 42 amended

After section 42(4)(a) insert:

(ba)	officers of the same body corporate or in the relationship of body corporate and officer of the body corporate (with *officer* having the meaning given in section 31); or

Professional Standards Amendment Act 2010

Part 5	Amendments providing for transitional matters
s. 29

Part 5 — Amendments providing for

transitional matters

29. Schedule 4 amended

(1)	This section amends Schedule 4.
(2)	Before clause 1 insert:

Division 1 — Provisions relating to the Professional

Standards Amendment Act 2004

(3)

In clause 1 delete “Schedule” and insert:

Division

Note:

The heading to amended clause 1 is to read

Terms used

(4)	In clause 6(2) and (3) delete “subsection” and insert:
subclause
(5)	After clause 6 insert:

Division 2 — Provisions relating to the Professional

Standards Amendment Act 2010

7. Terms used

In this Division —

amending Act means the Professional Standards

Amendment Act 2010;

commencement day means the day mentioned in the

amending Act section 2(b).

Professional Standards Amendment Act 2010

Amendments providing for transitional matters	Part 5
s. 29

8. Personal injury claims

Section 5, as in force immediately before commencement

day, continues to apply to a cause of action that arose before

commencement day.

9. Application of schemes to officers, partners, employees and associates

Section 34A, as in force on and from commencement day,

does not apply to a cause of action that arose before

commencement day.

10. Associated defendants

The application of section 42, as in force on and from

commencement day, extends to a cause of action that arose

before commencement day but not so as to affect any

decision of a court, or any compromise or settlement made

before commencement day.

11. Expiry date of existing schemes

Any period determined by the Council under

section 44A(1), as in force before commencement day, as

the period for which a scheme is to remain in force is to be

taken to be specified in the scheme.

12. Application of clause 6

The provisions of clause 6 apply in relation to the amending

Act as if those provisions were part of this Division.