Queensland Law Society Acts Amendment Act of 1962 (Qld)

291 @u.emslanh ANNO UNDECIMO ELIZABETHAE SECUNDAE REGINAE ···············••t••······················'········· No. 37 of 1962 An Act to Amend "The Queensland Law Society Acts, 1952 to 1961," in certain particulars [ASSENTED TO 21ST DECEMBER, 1962] 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:- 1. (1) Short title. This Act may be cited as "The Queensland Law Society Acts Amendment Act of 1962." (2) Principal Act. " The Queensland Law Society Act of 1952 " (as subsequently amended) is in this Act referred to as the Principal Act. (3) Collective title. The Principal Act and this Act may be collectively cited as "The Queensland LAw Society Acts, 1952 to 1962." 2. Amendments of s. 10. Section 10 of the Principal Act is amended- (a) by repealing subsection (11) thereof and inserting, in lieu of the repealed subsection, the following subsection:- " (11) Where a written copy of any resolution as referred to in this section or a notice in writing as referred to in subsection (4) of section 1lA of this Act (with a certificate of appointment of receiver within the meaning of that section attached or appended thereto) is served on the manager or

292 Queensland Law Society Acts Amendment Act of 1962, No. 37 other principal officer of the office or branch of a bank, then neither that bank nor any manager or principal officer or other officer thereof shall incur any liability for dishonouring or refusing or otherwise failing to make payment by reason of such resolution or notice on a cheque or other instrument drawn on a trust account if such dishonour or refusal or other failure occurs, in the case of a trust account to which subsection (3) of this section applies, within twelve months after such service and, in a case of a trust account to which subsection (3) of this section or subsection (4) of section l lA of this Act as the case requires appiies, before a notice in writing is served on the manager or other principal officer of the office or branch of the bank by the Secretary of the Council that the resolution appointing the Council's nominee under this section or, as the case requires, the resolution appointing a receiver under section 1 lA of this Act, has ceased to be effective, or, in the case of an appointment or termination of the receiver by the Court, before a copy of the order of the Court terminating the appointment of the receiver without making any further appointment is served on any officer aforesaid of the bank."; (b) by inserting in subsection (12) thereof after the words "A person appointed under this section to be the Council's nominee " the words "and a person appointed under section llA of this Act to be a receiver". 3. New s. llA. The following section is inserted after section 11 of the Principal Act:- " [llA.] Appointment of receiver of trust property. (1) (a) In this section, unless the context otherwise indicates or requires, the following terms shall have the meanings respectively assigned to them:- " Certificate of appointment of receiver "-In relation to a receiver, a copy of the order of the Court appointing the receiver, or, where the receiver is appointed by a resolution of the Council, a certificate in writing of his appointment as receiver under this section, as referred to in paragraph (a) of subsection (3) hereof, including a copy of such certificate; "Court "-Includes a Judge; " Former practitioner •·-A person who immediately prior to his being struck off the roll or suspension from practice or death was a practitioner and in relation to whom a receiver is appointed under paragraph (b) of this subsection; " Receiver "-A person who holds at any material time the appointment of receiver under and for the purposes of this section. (b) An appointment of a receiver under and for the purposes of this section may be made by- (i) The Council where a person who has been a practitioner- (A) Has been and remains struck off the roll; or (B) Has been and remains suspended from practice; or (C) Having been and remaining struck off the roll or suspended from practice, dies; or (ii) The Court, on the application of the Council, where a practitioner dies.

Queensland Law Society Acts Amendment Act of 1962, No. 37 293 (c) The provisions of paragraph (b) of this subsection shall not apply to a practitioner who at the time when he was struck off the roll or suspended from practice or at the time of his death was in partnership with any other practitioner. (d) The Society or any officer of the Society or any person may be appointed a receiver. (2) (a) A person appointed under and for the purposes of this section as receiver shall be a receiver of all or any property, being of such a nature as is specified in paragraph (b) of this subsection, which belongs to or is held by the former practitioner, or by some person on his behalf, or is recoverable by the former practitioner, or where the former practitioner is dead, which by reason of such death is or may be held or recoverable by the personal representative of the deceased former practitioner. (b) The property referred to in paragraph (a) of this subsection is- (i) Moneys in a trust account in any bank in the name or firm name of the former practitioner or in the name of his personal representative and, except in the case of a former practitioner who has died, other property, whether moneys or not, held by him in trust for another person; (ii) Ledgers, books of account, vouchers, records, deeds, wills, files, and other documents and writings of any description. (3) (a) When a receiver is appointed by resolution of the Council, the Secretary of the Council may from time to time issue a certificate in writing of such appointment, and any certificate of appointment of receiver may certify the nature of his authority in relation to any trust account or accounts or other property according to the purpose for which such certificate is to be used. Any document or part of or endorsement on any document which purports to be a certificate of appointment of receiver purporting to be under the hand of the Secretary of the Council shall be received as evidence of the matter or matters certified to therein and, in the absence of evidence in rebuttal thereof, shall be conclusive evidence of such matter or matters; and the signature thereon, purporting to be that of the secretary, shall be taken to be the signature it purports to be until the contrary is proved. (b) A certificate of appointment of receiver shall, if and as soon as such service is reasonably practicable, be served on the former practitioner, or if he is dead, on his personal representative, if any, as well as on any other person to whom in the opinion of the Council or the Court, as the case may be, it is desirable that notice of the appointment of the receiver should be given. (4) (a) The receiver may serve on the manager or other principal officer of the office or branch of a bank a notice in writing, with a certificate of appointment of receiver attached or appended thereto, forbidding any dealing, including in any case the completion of any uncompleted dealing commenced before the service of the notice, except by the receiver, with any trust account in the name or the firm name

294 Queensland Law Society Acts Amendment Act of 1962, No. 37 of the former practitioner or, where the former practitioner is dead, any trust account which is in his name or firm name or which was formerly in his name or firm name and is now in the name of his personal representative. (b) Upon service of such a notice and certificate the receiver shall be for all purposes a trustee of any trust account to which the notice relates in place of the former practitioner or his personal representative. (c) The bank on whose officer the notice is served shall not permit any such dealing with any trust account to which the notice relates except by the receiver. (d) The receiver may withdraw all the moneys in any such trust account or from time to time withdraw any of such moneys, and pay them into a special account or special accounts in his own name, and may operate on and otherwise deal with the special account or special accounts as the former practitioner might have operated on or dealt with the aforementioned trust account. (5) (a) The receiver may by separate advertisement in such form as the receiver considers sufficient or by advertisement jointly with the Council if the Council is advertising for claims in respect of the former practitioner, or otherwise as he thinks fit, require persons having any claims in respect of any moneys which have been held in any trust account as aforesaid or any other property of which he has been appointed receiver to submit their claims to him, and by such advertisement or otherwise a time may be specified, being in the case of an advertisement not less than thirty days from the date of its publication, within which such claims shall be submitted to the receiver. (b) The receiver may in administering any such moneys and other property disregard any claim not submitted to the receiver within the time so specified. (6) (a) The receiver may acquire or take possession of any property of which he has been appointed to be receiver: Provided that all ledgers, books of account, vouchers, records, deeds, wills, files, and other documents and writings (other than those relating either to any property referred to in subparagraph (i) of paragraph (b) of subsection (2) of this section or to the former practice of the former practitioner), shall, as soon as reasonably may, be returned to the former practitioner or his personal representative. (b) If the former practitioner or, as the case may be, his personal representative, or any other person, on being required by the receiver to transfer or deliver to the receiver, or to permit the receiver to take possession of, any such property in his possession or at his disposition or under his control, does not comply with the requirement, or if it appears to the receiver that any such person on being thus required has not fully complied with the requirement, the receiver may apply to the Court for an order for the transfer or delivery to him of such property, whereupon the Court may make such order as to the Court seems fit. (c) If it appears to the receiver that an order thus made by the Court is not complied with, the Court may on application by the receiver authorise any member of the Police Force and his assistants, or the receiver or some other person and any member of the Police Force and his assistants to enter any premises or other place specified in the order and to search for any property of which the receiver is entitled under the provisions

Queensland Law Society Acts Amendment Act of 1962, No. 37 of this section to take possession, and to seize such property and remove it to such place as the receiver thinks fit, and on such application the Court may make such further order in the matter as to the Court seems fit. (7) Any person who refuses or fails without lawful justification forthwith to transfer or deliver to the receiver any property which the receiver requires him to transfer or deliver to the receiver shall be guilty of an offence and shall be liable upon summary conviction to a fine of not more than two hundred pounds or to imprisonment for a term of not more than six months. (8) Any person who at any time, whether before or after a receiver has been appointed, with intent to defeat the purposes of this section- (i) Withdraws money from or makes any payment out of any trust account; or (ii) Destroys or conceals or removes from one place to another place or delivers into the possession or places under the control of any other person any property of which a receiver may be or has been appointed, shall be guilty of an offence and shall be liable upon conviction upon indictment to a fine of not more than five hundred pounds or to imprisonment for a term of not more than two years. If in any prosecution for any such offence it is proved that the person charged has done an act specified in paragraph (i) or paragraph (ii) of this subsection, he shall be deemed to have done the act with intent to defeat the purposes of this section unless he proves that he did the act without such intent. (9) The receiver may deal with any trust moneys and other property which he has acquired or of which he has taken possession under the provisions of this section in any manner in which the former practitioner might lawfully have dealt with the trust moneys and property. (10) The receiver, and the former practitioner, or if the latter is dead his personal representative, and any person who has submitted to the receiver a claim in respect of any trust account or other property, may each of them apply to the Court for directions to the receiver as to the manner in which he shall or may exercise any or all of the powers conferred or perform any or all of the duties imposed on him by this section, either generally or in respect of any particular matter specified in the application; whereupon the Court may make such order as to the Court seems fit. (11) (a) The receiver may give notice to the former practitioner or his personal representative that if he has any claims to moneys in a trust account or other property he shall, within a reasonable time (being not less than thirty days from the giving of the notice) to be specified in the notice, submit to the receiver full particulars of the moneys or other property claimed and the grounds of the claims. (b) If such notice has been given the receiver may disregard any such claim made by the former practitioner or his personal representative otherwise than in accordance with the terms of the notice. 295

296 Queensland Law Society Acts Amendment Act of 1962, No. 37 (c) The former practitioner or his personal representative shall not be entitled to any payment or otherwise in respect of any such claim and shall not be entitled to a lien upon any document or writing held by the receiver unless the proper claims of all other persons are fully satisfied. (12) (a) If the former practitioner or his personal representative claims a right to payment of costs due to him from any person or persons entitled to moneys or other property held by the receiver pursuant to the provisions of this section, the receiver may by notice in writing require him to deliver to the receiver, within a reasonable time (being not less than thirty days from the giving of the notice) to be specified in the notice by the receiver, a detailed bill of costs in respect of each of his dealings with each of such persons, and may also by the same or a subsequent notice in writing require him to tax any such bill of costs within a reasonable time to be specified therein by the receiver. (b) If the former practitioner or his personal representative fails to comply with any such requirement the receiver may, in distributing the moneys and other property thus held by him, disregard any such claim for costs. (13) (a) If the former practitioner or his personal representative claims a lien for costs on any document or writing held by the receiver, the receiver may by notice in writing require him to give to the receiver, within a reasonable time (being not less than thirty days from the giving of the notice) to be specified in the notice by the receiver, particulars of all documents and writings on which he claims a lien and to deliver to the receiver, within a reasonable time (being not less than thirty days from the giving of the notice) to be specified in the notice by the receiver, a detailed bill of the costs in respect of which each lien is claimed, and may also, by the same or a subsequent notice in writing, require him to tax any such bill of costs within a reasonable time to be specified therein by the receiver. (b) If the former practitioner or his personal representative fails to comply with any such requirement in respect of any lien claimed by him the receiver may in dealing with such document or writing disregard the lien. (14) (a) The receiver may apply to the Court for an order that the former practitioner or his personal representative, as the case may be, do appear before the Court to be examined by the receiver as to any trust moneys or other property of which the receiver has been appointed to be receiver, whereupon the Court may make such order as to such examination of the former practitioner or his personal representative as to the Court seems fit. (b) In such examination before the Court the receiver may be represented by counsel, and the Court may put or allow such questions to be put as it thinks fit. (c) The former practitioner or his personal representative shall be examined upon oath and he shall answer all such questions as the Court puts or allows to be put to him.

Queensland Law Society Acts Amendment Act of 1962, No. 37 297 (d) Unless the Court otherwise directs, the former practitioner or his personal representative shall not be excused from answering any question put to him on the ground of any privilege claimed by him or on the ground that the answer to it may expose him to punishment. (15) (a) The Council may at any time terminate the appointment of a receiver appointed by the Council, and if such an appointment has been terminated by the Council or otherwise, except by order of the Court, the Council may appoint another person to be the receiver in his place. (b) The Council or the former practitioner or his personal representative may at any time apply to the Court for an order that the appointment of a receiver (whether made by the Council or by the Court) be terminated, whereupon the Court may make such order, including the appointment of another person or a direction to the Council to appoint another person, to be the receiver in his place, as to the Court seems fit. (c) If the appointment of a receiver appointed by the Court terminates otherwise than by order of the Court, the Council may apply to the Court for the appointment by the Court of another person to be the receiver in his place, whereupon the Court may make such order as to the Court seems fit. (d) If a receiver's appointment is terminated by the Council or by an order of the Court, and another person is appointed to be the receiver in his place, the former receiver shall, as soon as he reasonably may, and subject to any directions given by the Court under this section transfer or deliver to the receiver appointed in his place all trust moneys and other property as well as all documents and writings which he holds by virtue of his appointment as receiver. (16) Where the former practitioner has been suspended from practice and the period of his suspension has terminated, the receiver may, and upon demand in writing by the former practitioner shall, as soon as he reasonably may, and subject to any directions given by the Court under this section and subject unless the Council shall otherwise determine to the payment by the former practitioner of the receiver's remuneration expenses and costs set forth in subsection (19) of this section, transfer or deliver to the former practitioner all trust moneys and other property which he holds by virtue of his appointment as receiver, and upon such transfer or delivery being completed his appointment as receiver shall terminate. (17) If a receiver's appointment is terminated by the Council or by order of the Court and no other person is within fourteen days of such termination appointed to be receiver in his place, he may, and upon demand in writing by the former practitioner or his personal representative shall, as soon as he reasonably may, and subject to any directions given by the Court under this section, and subject unless the Council shall otherwise determine to the payment by the former practitioner or his personal representative of the receiver's remuneration expenses and costs set forth in subsection (19) of this section, transfer or deliver to the former practitioner or his personal representative all trust moneys and other property which he holds by virtue of his appointment as receiver. (18) If the trust moneys held by the receiver under the provisions of this section are insufficient to satisfy all proper claims in respect of them, the trust moneys so held by the receiver shall be distributed amongst

298 Queensland Law Society Acts Amendment Act of 1962, No. 37 the claimants making such claims in such manner that the deficiency shall be borne by them in proportion to the amounts of their respective proper claims in respect of such trust moneys. (19) (a) All moneys payable to the receiver as remuneration for his services as such and expenses and costs of legal proceedings incurred by him as such, may be paid to him by the Society out of the Fund and any such payment shall, notwithstanding any other provision of this Act, be a first charge on the sum of money which under the provisions of section twenty-four of this Act may be applied from the Fund for the purpose of reimbursing persons who have suffered pecuniary loss through stealing or fraudulent misappropriation by the former practitioner or by his clerk or servant of any money or other property entrusted to him or to his clerk or servant in the circumstances set forth in that section. (b) Any amount thus paid shall be recoverable by the Society from the former practitioner or his personal representative as a debt owing by him to the Society. (c) In default of agreement between the Council and the receiver as to the amount to be paid to the receiver as such remuneration and for such expenses and costs, the Court may, on application by the Society or the receiver, determine the amount to be so paid. (20) In any proceedings in the Court under the provisions of this section the Court may make such order as to the payment of costs of the proceedings and costs incurred in the execution of any order made by the Court as to the Court seems fit. (21) If any claim or charge is made by any person against the receiver for any act or omission by the receiver or by his servants or agents done or made by him or them in good faith and in the execution or purported execution of the powers conferred or duties imposed on him by or under this section, the Society may reimburse the receiver out of the Fund for all or any costs, charges, expenses, or damages which he may have incurred in relation to such claim or charge. (22) For the carrying out of the objects of this section or the proper administration by a receiver of all or any trust funds or other property and without derogating from any other provision of this section the Court may authorise the receiver to do such things (in addition to the powers conferred upon the receiver by this section) and may give such directions as it deems fit. (23) (a) Any application under this section to the Court shall be by summons in chambers and an order may be made pursuant to any such application notwithstanding that such summons has not been served upon the former practitioner or his personal representative or upon any other person. (b) An application to the Court by the Council may be made, in its own name, or by its secretary or any person thereunto authorised in writing under the hand of the president or vice-president, and the provisions of subsection (11) of section five of this Act relating to the taking of judicial notice of the signature of the president or vice-president and it being unnecessary to prove the appointment or election of the members, president, vice-president, secretary, or other officers shall, with all necessary adaptations, apply and extend in relation to any such application.

Queensland Law Society Acts Amendment Act of 1962, No. 37 (24) Where a former practitioner dies or has died, then a receiver, in the execution or purported execution of the powers conferred or duties imposed on him by or under this section, shall be deemed not to be a personal representative of the former practitioner. (25) Trust moneys and other property held by the receiver under the provisions of this section shall not be levied upon or taken or attached under any judgment. (26) Subject to such directions as the Court may see fit to make, every receiver shall at such times as the Court or the Council appointing him to be a receiver may determine, furnish to the said Court or Council, as the case may be, a report of his receivership containing such information as the said Court or Council, as the case may be, may require, and upon the conclusion of his receivership shall forthwith lodge with the said Court or Council, as the case may be, in addition to his final report, all documents and writings in his possession or under his control relating to his receivership and, subject to any order of the Court for their destruction or otherwise, such documents and writings shall be kept in the custody of the Court or Council, as the case may be. (27) Without derogating from the powers of the Court, any person who contravenes or fails to comply with any provision of this section shall be guilty of an offence against this Act, and shall be liable, if no specific penalty is provided for that offence, to a penalty not exceeding one hundred pounds." 299