Queensland Law Society Act and Another Act Amendment Act 1988 (Qld)

1348 (1 ueen tanb ANNO TRICESIMO SEPTIMO ELIZA ET AE SEC N AE ®E INAE i o An Act to amend the Queensland Law Society Act 1952- 1985 and the Legal Assistance Act 1965- 1981 each in certain particulars [ASSENTED TO 1ST DECEMBER, 1988]

Queensland Law Society Act and Another Act Amendment 1349Act 1988, No. 93 BE IT ENACTED by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Assembly of Queensland in Parliament assembled , and by the authority of the same , as follows:- PART I-PRELIMINARY 1. Short title . This Act may be cited as the Queensland Law Society Act and Another Act Amendment Act 1988. 2. Arrangement . This Act is arranged as follows:- PART I-PRELIMINARY ( ss. 1-2); PART II-AMENDMENT OF QUEENSLAND LAW SOCIETY ACT 1952-1985 (ss. 3-15); PART III-AMENDMENT OF LEGAL ASSISTANCE ACT 1965-1981 (ss. 16-17). PART II-AMENDMENT OF QUEENSLAND LAW SOCIETY ACT 1952-1985 3. Citation. (1) In this Part the Queensland Law Society Act 1952- 1985 is referred to as the Principal Act. (2) The Principal Act as amended by this Part may be cited as the Queensland Law Society Act 1952-1988. 4. Amendment of s. 5. Council of the Society. Section 5 of the Principal Act is amended by- (a) in subsection (9) (i)- (i) inserting in paragraph (g) after the words "practising fee" the words "and to impose levies"; (ii) in paragraph (hb) (ii)- (A) inserting after the words "practising practitioners" the words "or members"; (B) omitting the words "paragraph (a) of'; (iii) inserting after paragraph (hb) the following paragraphs:- "(hc) To provide for and with respect to- (i) requirements in respect of applications for the issue of certificates pursuant to section 40, including and without limiting the generality thereof requirements in respect of compliance with all or any part of the Indemnity Rules and the Continuing Legal Education Rules and the obtaining or holding of any form of accreditation or certificate pursuant to the Continuing Legal Education Rules; (ii) conditions imposed upon any holder of a certificate issued pursuant to section 40 in respect of the nature of the

1350 Queensland Law Society Act and Another Act Amendment Act 1988, No. 93 practice authorised by such certificate and in respect of the entitlement of the holder of any such certificate ordinarily to be left in charge of the office of a practitioner in private practice or to be authorised as a signatory upon the trust account of such a practitioner; (iii) classes of certificates issued pursuant to section 40; (hd) To provide for and with respect to the authority of the Council to waive compliance with Rules in whole or in part, absolutely or conditionally, in respect of a practitioner or a member of a class of practitioner; (he) To provide for and with respect to the authority of the Council to create classes of practising practitioners and the amount of the annual practising fees which shall be payable by members of each such class;"; (b) inserting in subsection (9) after paragraph (viii) the following paragraphs:- "(ix) Rules made under paragraph (i) in pursuance of subparagraph (hb) as in force for the time being are in this Act referred to as the "Continuing Legal Education Rules". (x) Without limiting the generality of subsection (hb) of paragraph (i), the Continuing Legal Education Rules- (a) may specify the fields of legal practice in which a specialist accreditation may be available to practising practitioners and may provide for minimum standards of education, forms of assessment and examination necessary to obtain or renew accreditation to a recognized specialty; (b) may provide for the form of accreditation (whether by way of certificate or otherwise) to be issued to practising practitioners in respect of any specialist accreditation in a field of legal practice and may give authority to the Council to attach conditions to such accreditation; (c) may provide for the administration and management of courses of study for practitioners in fields of law, aspects of legal practice and legal practice management, including enrolment procedures, fees payable, minimum course attendance requirements, examination and assessment and procedures relating to review of assessments and appeals against assessments; (d) may require practitioners or any specified class of practitioners to undertake and satisfactorily complete a specified course of study as a condition precedent to the issue of a certificate pursuant to section 40; (e) may provide for the form of accreditation (whether by way of certificate or otherwise) to be issued to practising practitioners in respect of accreditation as

Queensland Law Society Act and Another Act Amendment 1351Act 1988, No. 93 practitioners who have satisfactorily completed a specified course of study and may give authority to the Council to attach conditions to such accreditation; (f) may authorise the Council to determine a minimum standard of compliance with the Continuing Legal Education Rules and to determine assessment procedures in attainment of that standard and in undertaking and satisfactorily complying with any specified course of study; (g) may specify the circumstances in which practitioners are exempt from compliance, in whole or in part, with the Continuing Legal Education Rules and may authorise the Council to waive compliance with those Rules absolutely or conditionally in respect of any practitioner or members of a class of practitioners; (h) may contain incidental procedural or supplementary provisions.". 5. Amendment of s. 6. Section 6 of the Principal Act is amended in subsection (3) by- (a) inserting in paragraph (a) after the words "every such application" the words ", reference or appeal"; (b) inserting after paragraph (aa) the following paragraph:- "(ab) Where, as a consequence of any hearing under paragraph (a), the statutory committee finds that the practitioner is guilty of malpractice, professional misconduct, unprofessional conduct or practice or of any other charge for which he may be proceeded against under this Act, the statutory committee- (s) may order the practitioner to pay to the Society such sum, not exceeding the amount fixed by the Rules of Court, as the statutory committee thinks fit; and (ii) where the statutory committee does not strike the name of the practitioner off the roll, whether or not the practitioner is suspended from practice, may do any one or more of the following:- (A) censure the practitioner; (B) order the practitioner to make the ledgers, books of account, records, deeds, files and other documents relating to his practice available for inspection at such times and by such persons as are specified in the order; (C) order the practitioner to make reports on his practice in such manner and at such times and to such persons as are specified in the order; (D) order the practitioner to comply with conditions, including attendance at continuing legal education

1352 Queensland Law Society Act and Another Act Amendment Act 1988, No. 93 programmes and other educational programmes and seminars relating to legal education, practice management and other related topics, in respect of the conduct of his practice.". 6. Amendment of s. 6j. Powers of Tribunal. Section 61 of the Principal Act is amended in subsection (1) by- (a) inserting in paragraph (c) before the words "no other order" the word "make"; (b) inserting in paragraph (d) before the words "no other order" the word "make". 7. Amendment of s. 11 . Powers of the Council with respect to trust accounts of deceased practitioners , etc. Section 11 of the Principal Act is amended by inserting after subsection (3) the following subsection:- "(3A) In any case where- (a) a practitioner is, or if he has died was, the sole trustee of a trust account; and (b) the Council is of the opinion that special circumstances exist that require the immediate appointment of a trustee of the trust account, the Council may make that appointment notwithstanding that the period of fourteen days has not elapsed since the forwarding of the notices prescribed by subsection (3).". 8. Amendment of s. 11A. Appointment of receiver of trust property. Section 11A of the Principal Act is amended by- (a) in subsection (1) (a) omitting the expression "." occurring at the end of the meaning of the term "Former practitioner" and substituting the expression ";"; (b) in subsection (9) (b)- (i) omitting the words "may, for the purpose of performing his functions in paragraph (a)" and substituting the words "in the name of the former practitioner or in his own name may do all acts or things necessary or desirable in the exercise of his powers or the performance of his duties and, without limiting the generality thereof may"; (ii) inserting at the end of subparagraph (iii) the following expression and words:- (iv) bring or defend any legal proceedings; (v) execute all deeds and other documents;

Queensland Law Society Act and Another Act Amendment 1353Act 1988, No. 93 (vi) lodge any caveat and do any other act or thing necessary or desirable for the preservation of the property of which he has been appointed receiver; (vii) compromise any claim by him in respect of the property of which he has been appointed receiver which compromise is reasonably necessary or desirable for the preservation of that property"; (c) in subsection (18)- (i) inserting after the words "amounts of' the words "the balance of"; (ii) adding at the end thereof the following paragraph:- "For the purposes of this subsection, the amount of the balance of a claimant's proper claim shall be the amount of that claim less any amount the claimant has received or is entitled to receive from the Fund or by action against the Society in relation to the Fund as re-imbursement of pecuniary loss suffered by him so far as that loss related to trust moneys previously held by the former practitioner on behalf of the claimant."; (d) in subsection (19)- (i) omitting from paragraph (a) the words "Fund and any such payment" and substituting the words "Fund. All moneys paid out of the Fund pursuant to this paragraph and, where the receiver is the Society or an officer of the Society, such amounts as are reasonable recompense for the work done by the Society or that officer as that receiver"; (ii) omitting paragraph (c) (comprising two paragraphs) and substituting the following paragraph:- "(c) The receiver may from time to time submit to the Council an account for such remuneration and for such expenses and costs and in default of agreement between the Council and the receiver as to the amount to be paid to the receiver for such remuneration, expenses and costs, the Court may, on application by the Council or the receiver, determine the amount to be so paid.". 9. Amendment of s. 20. Administration of Fund. Section 20 of the Principal Act is amended by omitting from subsection (5) the expression "$3 000 000" and substituting the expression "$5 000 000". 10. Amendment of s. 24. Application of Fund. Section 24 of the Principal Act is amended by adding at the end thereof the following subsection:- "(5) Where a practising practitioner has paid an amount of money to or to the account of a person as reimbursement for

1354 Queensland Law Society Act and Another Act Amendment Act 1988, No. 93 pecuniary loss suffered or incurred by that person by reason of the stealing or fraudulent misappropriation by- (a) a practising practitioner who at the material time was the partner of the firstmentioned practising practitioner; or (b) a clerk or servant at the material time of- (i) the firstmentioned practising practitioner; or (ii) a partnership of which the firstmentioned practising practitioner was a partner, and that person would otherwise have been entitled to claim and receive reimbursement of an amount from the Fund pursuant to subsection (1) the Council, if- (c) all claims against the Fund arising out of that stealing or fraudulent misappropriation ( other than claims under this subsection ) have been determined; and (d) the Council is of the opinion that the firstmentioned practising practitioner- (i) was in no way a party to the stealing or fraudulent misappropriation; (ii) had acted honestly and reasonably; and (iii) had not knowingly assisted in or contributed towards the stealing or fraudulent misappropriation, may reimburse out of the Fund the firstmentioned practising practitioner the amount paid by him in respect of which the person could have so sought reimbursement from the Fund.". 11. Amendment of s. 31 . Council may appoint public accountant to investigate affairs of practitioner . Section 31 of the Principal Act is amended by omitting subsections (4) and (5). 12. Amendment of s. 38. Section 38 of the Principal Act is amended by- (a) inserting in and at the beginning of the section the note "Prohibition on practising without practising certificate."; (b) in subsection (1), inserting in provision (b) after the word "Act" the words "or a condition prescribed by or imposed pursuant to the rules"; (c) omitting the note to subsection (2).

Queensland Law Society Act and Another Act Amendment 1355Act 1988, No. 93 13. Amendment of s. 40. Application for and issue of certificate. Section 40 of the Principal Act is amended by- (a) omitting all words from and including the words "and on production" to and including the words "to insurance,"; (b) inserting in paragraphs (a), (b), (ba), (c), (d) and (e) after the words "in the form prescribed" the words "endorsed with such conditions as may apply pursuant to the rules" in each case. 14. Amendment of s. 49. Protection for acts and omissions under Act. Section 49 of the Principal Act is amended by omitting from subsection (2) the word "employe" and substituting the word "employee". 15. New s. 50. The Principal Act is amended by adding after section 49 the following section:- "50. Confidentiality . (1) For the purposes of this section, any information, document or matter is confidential as respects an official if it was acquired by him, was furnished to him, is in his custody or he has access to it by reason of his office, appointment, employment or his being authorized in that respect in the making of an examination of accounts and a report thereon under section 31 or, as the case may be, an investigation of a complaint to which subsection (2) (b) (i) refers. (2) For the purposes of this section, the expression "official means- (a) every person who is an accountant appointed under section 31 to make an examination of accounts of a practitioner; (b) every person who is employed, appointed or authorized to perform any function in relation to- (i) the investigation of a complaint against a practitioner concerning any matter relating to his conduct or his practice in his profession; (ii) an examination of the accounts of a practitioner and the report thereon in pursuance of section 31; (c) every person who is a member of the Council; (d) every person who is a member of a Committee of the Council; and (e) every person who is an officer of the Council. (3) An official- (a) shall not- (i) communicate to any person any confidential information; (ii) produce to any person any confidential document, relating to the affairs of another person, except in the performance of his functions under this Act;

1356 Queensland Law Society Act and Another Act Amendment Act 1988, No. 93 (b) shall not- (i) be required to produce in any court or other court or tribunal (other than a court in the exercise of its criminal jurisdiction) any confidential document; (ii) communicate to any court or other court or tribunal (other than a court in the exercise of its criminal jurisdiction) any confidential information or matter, relating to the affairs of another person, except where, in the opinion of the Council it is necessary so to do to carry the provisions of this Act into effect. Penalty: 10 penalty units.". PART III-AMENDMENT OF LEGAL ASSISTANCE ACT 1965- 1981 16. Citation . (1) In this Part the Legal Assistance Act 1965-1981 is referred to as the Principal Act. (2) The Principal Act as amended by this Part may be cited as the Legal Assistance Act 1965-1988. 17. Amendment of s. 10 . Solicitors Trust Bank Accounts , &c. Section 10 of the Principal Act is amended by omitting from the second paragraph of subsection (5) the expression "$3 000 000" and the words "Legal Assistance Act Amendment Act 1981" and substituting the expression "$5 000 000" and the words "Queensland Law Society Act and Another Act Amendment Act 1988" respectively.