Legal Profession Act 2004 No 112



An Act to provide for the regulation of legal practice in New South Wales and to facilitate the regulation of legal practice on a national basis, to repeal the Legal Profession Act 1987; and for other purposes.
Chapter 1 Introduction
Part 1.1 Preliminary
1   Name of Act
This Act is the Legal Profession Act 2004.
2   Commencement
This Act commences on a day or days to be appointed by proclamation.
3   Purposes
The purposes of this Act are as follows:
(a)  to provide for the regulation of legal practice in this jurisdiction in the interests of the administration of justice and for the protection of clients of law practices and the public generally,
(b)  to facilitate the regulation of legal practice on a national basis across State and Territory borders.
Part 1.2 Interpretation
4   Definitions
(1)  In this Act:
accountant means an accountant who is a registered company auditor within the meaning of the Corporations Act 2001 of the Commonwealth.
ADI means an authorised deposit-taking institution within the meaning of the Banking Act 1959 of the Commonwealth.
Admission Board means the Legal Profession Admission Board constituted under Part 7.1.
admission rules means rules relating to the admission of local lawyers and associated matters made under Part 2.3 (Admission of local lawyers).
admission to the legal profession means admission by the Supreme Court under this Act as a lawyer or by a Supreme Court under a corresponding law as:
(a)  a lawyer, or
(b)  a legal practitioner, or
(c)  a barrister, or
(d)  a solicitor, or
(e)  a barrister and solicitor, or
(f)  a solicitor and barrister,
but does not include the grant or issue of a practising certificate under this Act or a corresponding law; and admitted to the legal profession has a corresponding meaning.
Advisory Council means the Legal Profession Advisory Council constituted under this Act.
affairs of a law practice includes the following:
(a)  all accounts and records required under this Act or the regulations to be maintained by the practice or an associate or former associate of the practice,
(b)  other records of the practice or an associate or former associate of the practice,
(c)  any transaction:
(i)  to which the practice or an associate or former associate of the practice was or is a party, or
(ii)  in which the practice or an associate or former associate of the practice has acted for a party.
amend includes:
(a)  in relation to a practising certificate:
(i)  impose a condition on the certificate, and
(ii)  amend or revoke a condition already imposed on the certificate, and
(b)  in relation to registration as a foreign lawyer:
(i)  amend the lawyer’s registration certificate, and
(ii)  impose a condition on the registration, and
(iii)  amend or revoke a condition already imposed on the registration.
appropriate Council means:
(a)  in relation to matters relating to barristers or former barristers (including an application for a practising certificate to practise as a barrister)—the Bar Council, or
(b)  in relation to matters relating to solicitors or former solicitors (including an application for a practising certificate to practise as a solicitor)—the Law Society Council.
approved form—see section 734 (Approved forms).
associate—see section 7 (Terms relating to associates and principals of law practices).
Australian lawyer—see section 5 (Terms relating to lawyers).
Australian legal practitioner—see section 6 (Terms relating to legal practitioners).
Australian practising certificate means a local practising certificate or an interstate practising certificate.
Australian-registered foreign lawyer means a locally registered foreign lawyer or an interstate-registered foreign lawyer.
Australian roll means the local roll or an interstate roll.
Australian trust account means a local trust account or an interstate trust account.
Bar Association means the New South Wales Bar Association.
Bar Council means the Council of the Bar Association.
barrister means:
(a)  a local legal practitioner who holds a current local practising certificate to practise as a barrister, or
(b)  an interstate legal practitioner who holds a current interstate practising certificate that entitles the practitioner to engage in legal practice only as or in the manner of a barrister.
barristers rules means:
(a)  the legal profession rules made by the Bar Council, and
(b)  the joint rules so far as they apply to barristers.
client means a person to or for whom legal services are provided, and includes a person who is legally liable to pay for the services even if the services are not provided to or for that person.
Commissioner means the Legal Services Commissioner appointed under Part 7.3.
community legal centre—see definition of complying community legal centre.
compliance certificate—see section 36 (Compliance certificates).
complying community legal centre—see section 240 (Community legal centres).
conditions means conditions, limitations or restrictions.
contravene includes fail to comply with.
conviction—see section 11 (References to convictions for offences).
corresponding authority means:
(a)  a person or body having powers or functions under a corresponding law, or
(b)  when used in the context of a person or body having powers or functions under this Act (the local authority):
(i)  a person or body having corresponding powers or functions under a corresponding law, and
(ii)  without limiting subparagraph (i), if the powers or functions of the local authority relate to local lawyers or local legal practitioners generally or are limited to any particular class of local lawyers or local legal practitioners—a person or body having corresponding powers or functions under a corresponding law regardless of whether they relate to interstate lawyers or interstate legal practitioners generally or are limited to any particular class of interstate lawyers or interstate legal practitioners.
corresponding disciplinary body means:
(a)  a court or tribunal having powers or functions under a corresponding law that correspond to any of the powers and functions of the Tribunal, or
(b)  the Supreme Court of another jurisdiction exercising:
(i)  its inherent jurisdiction or powers in relation to the control and discipline of any Australian lawyers, or
(ii)  its jurisdiction or powers to make orders under a corresponding law of the other jurisdiction in relation to any Australian lawyers.
corresponding foreign law means the following:
(a)  a law of a foreign country that corresponds to the relevant provisions of this Act or, if a regulation is made declaring a law of the foreign country to be a law that corresponds to this Act, the law declared under that regulation for the foreign country,
(b)  if the term is used in relation to a matter that happened before the commencement of the law of a foreign country that, under paragraph (a), is the corresponding law for the foreign country, a previous law applying to legal practice in the foreign country.
corresponding law means the following:
(a)  a law of another jurisdiction that corresponds to the relevant provisions of this Act or, if a regulation is made declaring a law of the other jurisdiction to be a law that corresponds to this Act, the law declared under that regulation for the other jurisdiction,
(b)  if the term is used in relation to a matter that happened before the commencement of the law of another jurisdiction that, under paragraph (a), is the corresponding law for the other jurisdiction, a previous law applying to legal practice in the other jurisdiction.
costs—see definition of legal costs.
Council means the Bar Council or the Law Society Council.
Director-General means the Director-General of the Attorney General’s Department.
disqualified person means any of the following persons whether the thing that has happened to the person happened before or after the commencement of this definition:
(a)  a person whose name has (whether or not at his or her own request) been removed from an Australian roll and who has not subsequently been admitted or re-admitted to the legal profession under this Act or a corresponding law, or
(b)  a person whose Australian practising certificate has been suspended or cancelled under this Act or a corresponding law and who, because of the cancellation, is not an Australian legal practitioner or in relation to whom that suspension has not finished, or
(c)  a person who has been refused a renewal of an Australian practising certificate under this Act or a corresponding law, and to whom an Australian practising certificate has not been granted at a later time, or
(d)  a person who is the subject of an order under this Act or a corresponding law prohibiting a law practice from employing or paying the person in connection with the relevant practice, or
(e)  a person who is the subject of an order under this Act or a corresponding law prohibiting an Australian legal practitioner from being a partner of the person in a business that includes the practitioner’s practice, or
(f)  a person who is the subject of an order under section 154 (Disqualification from managing incorporated legal practice) or section 179 (Prohibition on partnerships with certain partners who are not Australian legal practitioners) or under provisions of a corresponding law that correspond to section 154 or 179.
document means any record of information, and includes:
(a)  anything on which there is writing, and
(b)  anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them, and
(c)  anything from which sounds, images or writings can be reproduced with or without the aid of anything else, and
(d)  a map, plan, drawing or photograph,
and a reference in this Act to a document (as so defined) includes a reference to:
(e)  any part of the document, and
(f)  any copy, reproduction or duplicate of the document or of any part of the document, and
(g)  any part of such a copy, reproduction or duplicate.
engage in legal practice includes practise law.
exercise of a function includes, where the function is a duty, the performance of the duty.
fee, gain or reward includes any form of, and any expectation of, a fee, gain or reward.
Fidelity Fund means the fund established under Part 3.4 (Fidelity cover).
financial year means a year ending on 30 June.
foreign country means:
(a)  a country other than Australia, or
(b)  a state, province or other part of a country other than Australia.
foreign lawyer—see the definitions of Australian-registered foreign lawyer, interstate-registered foreign lawyer and locally registered foreign lawyer.
foreign roll means an official roll of lawyers (whether admitted, practising or otherwise) kept in a foreign country, but does not include a prescribed roll or a prescribed kind of roll.
function includes a power, authority or duty.
home jurisdiction—see section 8 (Home jurisdiction).
incorporated legal practice has the same meaning as in Part 2.6 (Incorporated legal practices and multi-disciplinary partnerships).
Indemnity Fund has the same meaning as in Part 3.3 (Professional Indemnity Insurance).
information notice—see section 10 (Information notices).
insolvent under administration means:
(a)  a person who is an undischarged bankrupt within the meaning of the Bankruptcy Act 1966 of the Commonwealth (or the corresponding provisions of the law of a foreign country or external territory), or
(b)  a person who has executed a deed of arrangement under Part X of the Bankruptcy Act 1966 of the Commonwealth (or the corresponding provisions of the law of a foreign country or external territory) if the terms of the deed have not been fully complied with, or
(c)  a person whose creditors have accepted a composition under Part X of the Bankruptcy Act 1966 of the Commonwealth (or the corresponding provisions of the law of a foreign country or external territory) if a final payment has not been made under that composition, or
(d)  a person for whom a debt agreement has been made under Part IX of the Bankruptcy Act 1966 of the Commonwealth (or the corresponding provisions of the law of a foreign country or external territory) if the debt agreement has not ended or has not been terminated, or
(e)  a person who has executed a personal insolvency agreement under Part X of the Bankruptcy Act 1966 of the Commonwealth (or the corresponding provisions of the law of a foreign country or external territory) but not if the agreement has been set aside or terminated or all of the obligations that the agreement created have been discharged.
interstate lawyer—see section 5 (Terms relating to lawyers).
interstate legal practitioner—see section 6 (Terms relating to legal practitioners).
interstate practising certificate means a practising certificate granted under a corresponding law.
interstate-registered foreign lawyer means a person who is registered as a foreign lawyer under a corresponding law.
interstate roll means a roll of lawyers maintained under a corresponding law.
interstate trust account means a trust account maintained under a corresponding law.
investigator—see section 658 (Definitions).
joint rules means the legal profession rules made jointly by the Bar Association and the Law Society Council.
jurisdiction means a State or Territory of the Commonwealth.
law firm means a partnership consisting only of:
(a)  Australian legal practitioners, or
(b)  one or more Australian legal practitioners and one or more Australian-registered foreign lawyers.
law practice means:
(a)  an Australian legal practitioner who is a sole practitioner, or
(b)  a law firm, or
(c)  a multi-disciplinary partnership, or
(d)  an incorporated legal practice, or
(e)  a complying community legal centre.
Law Society means the Law Society of New South Wales.
Law Society Council means the Council of the Law Society.
lay associate—see section 7 (Terms relating to associates and principals of law practices).
lay person means a person who is not an Australian lawyer.
legal costs means amounts that a person has been or may be charged by, or is or may become liable to pay to, a law practice for the provision of legal services including disbursements but not including interest.
legal practitioner associate—see section 7 (Terms relating to associates and principals of law practices).
legal practitioner director, in relation to an incorporated legal practice, has the meaning given in Part 2.6 (Incorporated legal practices and multi-disciplinary partnerships).
legal practitioner partner, in relation to a multi-disciplinary partnership, has the meaning given in Part 2.6 (Incorporated legal practices and multi-disciplinary partnerships).
legal profession rules means rules made under Part 7.5 (Legal profession rules).
legal services means work done, or business transacted, in the ordinary course of legal practice.
Legal Services Division of the Tribunal means the Legal Services Division of the Tribunal established by the Administrative Decisions Tribunal Act 1997.
local lawyer—see section 5 (Terms relating to lawyers).
local legal practitioner—see section 6 (Terms relating to legal practitioners).
local practising certificate means a practising certificate granted under this Act.
local roll means the roll of persons admitted as lawyers under this Act.
local trust account means a trust account maintained under this Act.
locally registered foreign lawyer means a person who is registered as a foreign lawyer under this Act.
managed investment scheme has the same meaning as in Chapter 5C of the Corporations Act 2001 of the Commonwealth.
Manager, Costs Assessment means the person holding office as Manager, Costs Assessment in the Attorney General’s Department, and includes a delegate of that person.
modifications includes modifications by way of alteration, omission, addition or substitution.
mortgage means an instrument under which an interest in real property is charged, encumbered or transferred as security for the payment or repayment of money, and includes:
(a)  any instrument of a kind that is prescribed by the regulations as being a mortgage, and
(b)  a proposed mortgage.
mortgage financing means facilitating a loan secured or intended to be secured by mortgage by:
(a)  acting as an intermediary to match a prospective lender and borrower, or
(b)  arranging the loan, or
(c)  receiving or dealing with payments for the purposes of, or under, the loan,
but does not include providing legal advice or preparing an instrument for the loan.
multi-disciplinary partnership has the meaning given in Part 2.6 (Incorporated legal practices and multi-disciplinary partnerships).
practical legal training means:
(a)  legal training by participation in course work, or
(b)  legal training under the supervision of an Australian lawyer, whether involving articles of clerkship or otherwise,
or a combination of both.
pre-admission event, in relation to an applicant for or holder of a local practising certificate, means a show cause event (as defined in Division 7 of Part 2.4) in relation to the applicant or holder before the applicant or holder was first admitted to the legal profession in this or another jurisdiction.
principal—see section 7 (Terms relating to associates and principals of law practices).
professional misconduct—see section 497 (Professional misconduct).
Prothonotary means:
(a)  the officer of the Supreme Court with that title, except where paragraph (b) applies, or
(b)  a registrar or other officer of the Supreme Court prescribed by rules of the Supreme Court in relation to specified provisions of this Act.
Public Purpose Fund means the Public Purpose Fund established under Division 7 of Part 3.1.
Register means the Register of Disciplinary Action referred to in section 577 (Register of Disciplinary Action).
regulatory authority means:
(a)  in relation to this jurisdiction:
(i)  an authority having functions under this Act, or
(ii)  a person or body prescribed by the regulations as a regulatory authority of this jurisdiction, or
(b)  in relation to another jurisdiction, means:
(i)  an authority having functions under a corresponding law of that jurisdiction, or
(ii)  a person or body prescribed by the regulations as a regulatory authority of that jurisdiction.
related entity, in relation to a person, means:
(a)  if the person is a company within the meaning of the Corporations Act 2001 of the Commonwealth—a related body corporate within the meaning of section 50 of that Act, or
(b)  if the person is not a company with the meaning of that Act—a person specified or described in the regulations.
rules—see definition of admission rules and legal profession rules.
serious offence means an offence whether committed in or outside this jurisdiction that is:
(a)  an indictable offence against a law of the Commonwealth or any jurisdiction (whether or not the offence is or may be dealt with summarily), or
(b)  an offence against a law of another jurisdiction that would be an indictable offence against a law of this jurisdiction if committed in this jurisdiction (whether or not the offence could be dealt with summarily if committed in this jurisdiction), or
(c)  an offence against a law of a foreign country that would be an indictable offence against a law of the Commonwealth or this jurisdiction if committed in this jurisdiction (whether or not the offence could be dealt with summarily if committed in this jurisdiction).
sole practitioner means an Australian legal practitioner who engages in legal practice on his or her own account.
solicitor means:
(a)  a local legal practitioner who holds a current local practising certificate to practise as a solicitor and barrister, or
(b)  an interstate legal practitioner who holds a current interstate practising certificate that does not restrict the practitioner to engage in legal practice only as or in the manner of a barrister.
solicitors rules means:
(a)  the legal profession rules made by the Law Society Council, and
(b)  the joint rules so far as they apply to solicitors.
suitability matter—see section 9 (Suitability matters).
supervised legal practice means legal practice by a person who is an Australian legal practitioner:
(a)  as an employee of, or other person working under supervision in, a law practice, where:
(i)  at least one partner, legal practitioner director or other employee of the law practice is an Australian legal practitioner who holds an unrestricted practising certificate, and
(ii)  the person engages in legal practice under the supervision of an Australian legal practitioner referred to in subparagraph (i), or
(b)  as a partner in a law firm, where:
(i)  at least one other partner is an Australian legal practitioner who holds an unrestricted practising certificate, and
(ii)  the person engages in legal practice under the supervision of an Australian legal practitioner referred to in subparagraph (i), or
(c)  in a capacity approved under a legal profession rule.
tax offence means any offence under the Taxation Administration Act 1953 of the Commonwealth, whether committed in or outside this jurisdiction.
this jurisdiction means this State.
Tribunal means the Administrative Decisions Tribunal established by the Administrative Decisions Tribunal Act 1997.
trust money has the meaning given in Part 3.1 (Trust money and trust accounts).
trust property means property entrusted to a law practice in the course of or in connection with the provision of legal services by the practice for or on behalf of another person, but does not include trust money.
unrestricted practising certificate means an Australian practising certificate that:
(a)  is not subject to a condition under section 53 (Statutory condition regarding practice as solicitor) or a similar condition under a corresponding law, and
(b)  is not subject to a condition that restricts the holder of the certificate to practise as or in the manner of a barrister, and
(c)  is not subject to any other condition, except any of the following conditions:
(i)  a condition requiring the holder of the certificate to undertake and complete one or more courses of continuing legal education,
(ii)  a condition under section 55 (Statutory condition regarding notification of offence),
(iii)  a condition under section 41 (4),
(iv)  a condition of a kind prescribed by the regulations, and
(d)  in the case of an interstate practising certificate—is not subject to a condition similar to a condition under section 53 and whose holder would not be subject to a condition under that section if the holder were to apply for and be granted a local practising certificate.
unsatisfactory professional conduct—see section 496 (Unsatisfactory professional conduct).
(2)  Notes included in this Act do not form part of this Act.
s 4: Am 2005 No 46, Sch 1 [1]–[4]; 2005 No 64, Sch 2.33 [1].
5   Terms relating to lawyers
For the purposes of this Act:
(a)  an Australian lawyer is a person who is admitted to the legal profession under this Act or a corresponding law, and
(b)  a local lawyer is a person who is admitted to the legal profession under this Act (whether or not the person is also admitted under a corresponding law), and
(c)  an interstate lawyer is a person who is admitted to the legal profession under a corresponding law, but not under this Act.
6   Terms relating to legal practitioners
For the purposes of this Act:
(a)  an Australian legal practitioner is an Australian lawyer who holds a current local practising certificate or a current interstate practising certificate, and
(b)  a local legal practitioner is an Australian lawyer who holds a current local practising certificate, and
(c)  an interstate legal practitioner is an Australian lawyer who holds a current interstate practising certificate, but not a local practising certificate.
Note—
The application of Chapter 4 (Complaints and discipline) to conduct of Australian legal practitioners is broadened by Division 2 of Part 4.1 of that Chapter.
7   Terms relating to associates and principals of law practices
(1)  For the purposes of this Act, an associate of a law practice is:
(a)  an Australian legal practitioner who is:
(i)  a sole practitioner (in the case of a law practice constituted by the practitioner), or
(ii)  a partner in the law practice (in the case of a law firm), or
(iii)  a legal practitioner director in the law practice (in the case of an incorporated legal practice), or
(iv)  a legal practitioner partner in the law practice (in the case of a multi-disciplinary partnership), or
(v)  an Australian legal practitioner whose services are made use of by the law practice to provide legal services (in the case of a complying community legal centre), or
(vi)  an employee of the law practice, or
(b)  an agent of the law practice who is not an Australian legal practitioner, or
(c)  an employee of, or person paid in connection with, the law practice who is not an Australian legal practitioner, or
(d)  an Australian-registered foreign lawyer who is a partner in the law practice, or
(e)  an Australian-registered foreign lawyer who has a relationship with the law practice, being a relationship that is of a class prescribed by the regulations, or
(f)  a person (not being an Australian legal practitioner) who is a partner in a business that includes the law practice, or
(g)  a person (not being an Australian legal practitioner) who shares the receipts, revenue or other income arising from the law practice.
(2)  For the purposes of this Act:
(a)  a legal practitioner associate of a law practice is an associate of the practice who is an Australian legal practitioner, and
(b)  a lay associate of a law practice means an associate of the practice who is not an Australian legal practitioner.
(3)  For the purposes of this Act, a principal of a law practice is an Australian legal practitioner who is:
(a)  a sole practitioner (in the case of a law practice constituted by the practitioner), or
(b)  a partner in the law practice (in the case of a law firm), or
(c)  a legal practitioner director in the law practice (in the case of an incorporated legal practice), or
(d)  a legal practitioner partner in the law practice (in the case of a multi-disciplinary partnership), or
(e)  the person who is generally responsible for the provision of legal services by the law practice (in the case of a complying community legal centre).
(4)  For the purposes of this Act, an associate of an Australian lawyer is:
(a)  a person who is a partner, agent or employee of the Australian lawyer, or
(b)  a person who is an associate of a law practice of which the Australian lawyer is also an associate.
8   Home jurisdiction
(1)  This section has effect for the purposes of this Act.
(2)  The home jurisdiction for an Australian legal practitioner is the jurisdiction in which the practitioner’s only or most recent current Australian practising certificate was granted.
(3)  The home jurisdiction for an Australian-registered foreign lawyer is the jurisdiction in which the lawyer’s only or most recent current registration was granted.
(4)  The home jurisdiction for an associate of a law practice who is neither an Australian legal practitioner nor an Australian-registered foreign lawyer is:
(a)  where only one jurisdiction is the home jurisdiction for the only associate of the practice who is an Australian legal practitioner or for all the associates of the practice who are Australian legal practitioners—that jurisdiction, or
(b)  where no one jurisdiction is the home jurisdiction for all the associates of the practice who are Australian legal practitioners:
(i)  the jurisdiction in which the office is situated at which the associate performs most of his or her duties for the law practice, or
(ii)  if a jurisdiction cannot be determined under subparagraph (i)—the jurisdiction in which the associate is enrolled under a law of the jurisdiction to vote at elections for the jurisdiction, or
(iii)  if a jurisdiction can be determined under neither subparagraph (i) nor subparagraph (ii)—the jurisdiction determined in accordance with criteria specified or referred to in the regulations.
9   Suitability matters
(1)  Each of the following is a suitability matter in relation to a natural person:
(a)  whether the person is currently of good fame and character,
(b)  whether the person is or has been an insolvent under administration,
(c)  whether the person has been convicted of an offence in Australia or a foreign country, and if so:
(i)  the nature of the offence, and
(ii)  how long ago the offence was committed, and
(iii)  the person’s age when the offence was committed,
Note—
The rules may make provision for the convictions that must be disclosed by an applicant and those that need not be disclosed. Section 11 (References to convictions for offences) provides that reference to a conviction includes a finding of guilt, or the acceptance of a guilty plea, whether or not a conviction is recorded.
(d)  whether the person engaged in legal practice in Australia:
(i)  when not admitted, or not holding a practising certificate, as required under this Act or a previous law of this jurisdiction that corresponds to this Act or under a corresponding law, or
(ii)  if admitted, in contravention of a condition on which admission was granted, or
(iii)  if holding an Australian practising certificate, in contravention of a condition of the certificate or while the certificate was suspended,
(e)  whether the person has practised law in a foreign country:
(i)  when not permitted by or under a law of that country to do so, or
(ii)  if permitted to do so, in contravention of a condition of the permission,
(f)  whether the person is currently subject to an unresolved complaint, investigation, charge or order under any of the following:
(i)  this Act or a previous law of this jurisdiction that corresponds to this Act, or
(ii)  a corresponding law or corresponding foreign law,
(g)  whether the person:
(i)  is the subject of current disciplinary action, however expressed, in another profession or occupation in Australia or a foreign country, or
(ii)  has been the subject of disciplinary action, however expressed, relating to another profession or occupation that involved a finding of guilt,
(h)  whether the person’s name has been removed from:
(i)  a local roll, and whether the person’s name has since been restored to or entered on a local roll, or
(ii)  an interstate roll, and whether the person’s name has since been restored to or entered on an interstate roll, or
(iii)  a foreign roll,
(i)  whether the person’s right to engage in legal practice has at any time been suspended or cancelled in Australia or a foreign country,
(j)  whether the person has contravened, in Australia or a foreign country, a law about trust money or trust accounts,
(k)  whether, under this Act, a law of the Commonwealth or a corresponding law, a supervisor, manager or receiver, however described, is or has been appointed in relation to any legal practice engaged in by the person,
(l)  whether the person is or has been subject to an order, under this Act, a law of the Commonwealth or a corresponding law, disqualifying the person from being employed by, or a partner of, an Australian legal practitioner or from managing a corporation that is an incorporated legal practice,
(m)  whether the person currently is unable to carry out the inherent requirements of practice as an Australian legal practitioner and that inability arises from infirmity, injury or mental or physical illness, impairment or disability.
(2)  A matter is a suitability matter even if it happened before the commencement of this section.
10   Information notices
For the purposes of this Act, an information notice is a written notice to a person about a decision stating:
(a)  the decision, and
(b)  the reasons for the decision, and
(c)  the rights of appeal or review available to the person in respect of the decision and the period within which any such appeal or review must be made or applied for.
11   References to convictions for offences
(1)  A reference in this Act to a conviction includes a finding of guilt, or the acceptance of a guilty plea, whether or not a conviction is recorded.
(2)  Without limiting subsection (1), a reference in this Act to the quashing of conviction for an offence includes a reference to the quashing of:
(a)  a finding of guilt in relation to the offence, or
(b)  the acceptance of a guilty plea in relation to the offence.
(3)  However, a reference in this Act to the quashing of a conviction for an offence does not include a reference to the quashing of a conviction where:
(a)  a finding of guilt in relation to the offence, or
(b)  the acceptance of a guilty plea in relation to the offence,
remains unaffected.
Chapter 2 General requirements for engaging in legal practice
Part 2.1 Preliminary
12   Simplified outline of Chapter
(1)  This Chapter sets out general requirements for engaging in legal practice in this jurisdiction.
(2)  The following is a general outline of the contents of this Chapter:
  Part 2.2 provides for the reservation of legal work and legal titles to properly qualified persons and bodies,
  Part 2.3 sets out the qualifications and procedure for admission to legal practice in this jurisdiction,
  Part 2.4 provides for the grant, renewal, amendment, suspension and cancellation of practising certificates in this jurisdiction and sets out the entitlements of holders of interstate practising certificates to engage in legal practice in this jurisdiction,
  Part 2.5 provides a scheme for notification of and response to action taken by courts and other authorities in this and other jurisdictions regarding admission to the legal profession and the right to engage in legal practice,
  Part 2.6 regulates the provision of legal services in this jurisdiction by corporations (which are called “incorporated legal practices”) and by partnerships that provide legal services and non-legal services (called “multi-disciplinary partnerships”),
  Part 2.7 regulates the practice of the law of a foreign country in this jurisdiction,
  Part 2.8 regulates community legal centres.
(3)  Subsection (2) is intended only as a guide to readers as to the general scheme of this Chapter.
Part 2.2 Reservation of legal work and legal titles
Division 1 Preliminary
13   Purposes
The purposes of this Part are as follows:
(a)  to protect the public interest in the proper administration of justice by ensuring that legal work is carried out only by those who are properly qualified to do so,
(b)  to protect clients of law practices by ensuring that persons carrying out legal work are entitled to do so.
Division 2 General prohibitions on unqualified practice
14   Prohibition on engaging in legal practice when not entitled
(1)  A person must not engage in legal practice in this jurisdiction for fee, gain or reward unless the person is an Australian legal practitioner.
Maximum penalty: 200 penalty units.
(2)  Subsection (1) does not apply to engaging in legal practice of the following kinds:
(a)  legal practice engaged in under the authority of a law of this jurisdiction or of the Commonwealth,
(b)  legal practice engaged in by an incorporated legal practice in accordance with Part 2.6 (Incorporated legal practices and multi-disciplinary partnerships),
(c)  the practice of foreign law by an Australian-registered foreign lawyer in accordance with Part 2.7 (Legal practice by foreign lawyers),
(d)  legal practice engaged in by a complying community legal centre,
(e)  conveyancing work carried out in accordance with a licence in force under the Conveyancers Licensing Act 2003,
(f)  work performed by a land agent in respect of instruments he or she is entitled to draw, fill up or prepare, and to charge for, under the Land Agents Act 1927,
(g)  the drawing of instruments by an officer or employee in the service of the Crown (including the Public Service) in the course of his or her duty,
(h)  legal practice of a kind prescribed by the regulations.
(3)  Subsection (1) does not apply to:
(a)  a person who as an employee provides legal services to his or her employer or a related entity if he or she:
(i)  so acts in the ordinary course of his or her employment, and
(ii)  receives no fee, gain or reward for so acting other than his or her ordinary remuneration as an employee, or
(b)  a person or class of persons declared by the regulations to be exempt from the operation of subsection (1).
(4)  A person is not entitled to recover any amount in respect of anything the person did in contravention of subsection (1) and must repay any amount so received to the person from whom it was received.
(5)  A person may recover from another person, as a debt due to the person, any amount the person paid to the other person in respect of anything the other person did in contravention of subsection (1).
(6)  The regulations may make provision for or with respect to the application (with or without specified modifications) of provisions of this Act to persons engaged in legal practice of a kind referred to in subsection (2) (other than subsection (2) (b)–(f)) or persons referred to in subsection (3).
s 14: Am 2005 No 64, Sch 2.33 [2].
15   Prohibition on representing or advertising entitlement to engage in legal practice when not entitled
(1)  A person must not represent or advertise that the person is entitled to engage in legal practice unless the person is an Australian legal practitioner.
Maximum penalty: 100 penalty units.
(2)  A director, officer, employee or agent of a body corporate must not represent or advertise that the body corporate is entitled to engage in legal practice unless the body corporate is an incorporated legal practice or a complying community legal centre.
Maximum penalty: 100 penalty units.
(3)  Subsections (1) and (2) do not apply to a representation or advertisement about being entitled to engage in legal practice of a kind referred to in section 14 (2) (Prohibition on engaging in legal practice when not entitled) by a person so entitled.
(4)  A reference in this section to a person:
(a)  representing or advertising that the person is entitled to engage in legal practice, or
(b)  representing or advertising that a body corporate is entitled to engage in legal practice,
includes a reference to the person doing anything that states or implies that the person or the body corporate is entitled to engage in legal practice.
16   Presumptions about taking or using certain names, titles or descriptions specified in regulations
(1)  This section applies to the following names, titles and descriptions:
lawyer, legal practitioner, barrister, solicitor, attorney, counsel, Queen’s Counsel, King’s Counsel, Her Majesty’s Counsel, His Majesty’s Counsel, Senior Counsel
(2)  The regulations may specify the kind of persons who are entitled, and the circumstances in which they are entitled, to take or use a name, title or description to which this section applies.
(3)  For the purposes of section 15 (1) (Prohibition on representing or advertising entitlement to engage in legal practice when not entitled), the taking or using of a name, title or description to which this section applies by a person who is not entitled to take or use that name, title or description gives rise to a rebuttable presumption that the person represented that they are entitled to engage in legal practice.
(4)  For the purposes of section 15 (2), the taking or using of a name, title or description to which this section applies by a person in relation to a body corporate, of which the person is a director, officer, employee or agent, gives rise to a rebuttable presumption that the person represented that the body corporate is entitled to engage in legal practice.
Division 3 Prohibitions regarding associates, clerks and non-legal partners
17   Associates who are disqualified or convicted persons
(1)  A law practice must not have a lay associate whom any principal or legal practitioner associate of the law practice knows to be:
(a)  a disqualified person, or
(b)  a person who has been convicted of a serious offence,
unless the associate is approved by the relevant authority under subsection (3).
(2)  A contravention by a law practice of subsection (1) is capable of being unsatisfactory professional conduct or professional misconduct on the part of a principal or legal practitioner associate of the law practice involved in the contravention.
(3)  The relevant authority to approve a person for the purposes of subsection (1) is:
(a)  in the case of a disqualified person who is an associate of a barrister—the Bar Council, or
(b)  in the case of a disqualified person who is an associate of a solicitor—the Law Society Council, or
(c)  in the case of a person who has been convicted of a serious offence—the Tribunal.
(4)  If a Council decides to refuse an application by a person for approval under subsection (3) (a) or (b) or to grant the approval subject to conditions, the person may apply to the Tribunal for a review of the decision.
Note—
Reviews are carried out under Chapter 5 of the Administrative Decisions Tribunal Act 1997. Section 729A modifies the operation of that Act. An appeal lies to the Supreme Court under section 729A against a decision of the Administrative Decisions Tribunal.
(5)  An approval under this section may be subject to specified conditions.
(6)  A disqualified person, or a person convicted of a serious offence, must not seek to become a lay associate of a law practice unless the person first informs the law practice of the disqualification or conviction.
Maximum penalty: 100 penalty units.
(7)  Proceedings for an offence under subsection (6) may only be brought within 6 months after discovery of the offence by the law practice.
(8)  This section does not apply in circumstances prescribed by the regulations.
s 17: Am 2005 No 46, Sch 2 [1]; 2005 No 64, Sch 2.33 [3].
s 17, note: Ins 2005 No 46, Sch 2 [2].
18   Prohibition on employment of certain lay associates
(1)  This section applies to a person who is not an Australian legal practitioner and who is or was a lay associate of a law practice that:
(a)  engages in legal practice principally in this jurisdiction, or
(b)  employs or employed the person to work principally in this jurisdiction,
and so applies whether or not the law practice subsequently ceased to exist or engage in legal practice principally in this jurisdiction and whether or not any person ceases, by death or otherwise, to be a legal practitioner associate of the law practice.
(2)  On application by a Council, the Tribunal may make an order prohibiting (without approval under section 17 (Associates who are disqualified or convicted persons)) any law practice from employing or paying in connection with the legal practice engaged in by the law practice a specified person to whom this section applies, if:
(a)  the Tribunal is satisfied that the person is not a fit and proper person to be employed or paid in connection with that legal practice, or
(b)  the Tribunal is satisfied that the person has been guilty of conduct that, if the person were an Australian legal practitioner, would have constituted unsatisfactory professional conduct or professional misconduct.
(3)  An order under this section may apply to a specified law practice or specified class of law practices or may apply to law practices generally.
(4)  An order under this section may be revoked by the Tribunal on application by a Council or the person against whom the order was made.
s 18: Subst 2005 No 46, Sch 2 [3].
19   Prohibition on partnerships with certain non-legal partners
(1)  This section applies to a person who is not an Australian legal practitioner and who:
(a)  is or was a partner of a local legal practitioner, or
(b)  is or was a partner of an Australian legal practitioner and engaged in a business conducted by the partnership principally in this jurisdiction.
(2)  On application by a Council, the Tribunal may make an order prohibiting (without approval under section 17 (Associates who are disqualified or convicted persons)) any Australian legal practitioner from being a partner, in a business that includes the practitioner’s practice, of a specified person to whom this section applies if:
(a)  the Tribunal is satisfied that the person is not a fit and proper person to be such a partner, or
(b)  the Tribunal is satisfied that the person has been guilty of conduct which, if the person were an Australian legal practitioner, would have constituted unsatisfactory professional conduct or professional misconduct.
(3)  An order made under this section may be revoked by the Tribunal on application by a Council or by the person against whom the order was made.
(4)  The death of an Australian legal practitioner does not prevent an application being made for, or the making of, an order under this section in relation to a person who was a partner of the practitioner.
20   Proceedings on prohibition orders
(1)  The parties to an application to the Tribunal under this Division may be represented by an Australian legal practitioner at the hearing of the application.
(2)  On making an order under this Division, or on determining an application for approval under section 17 (Associates who are disqualified or convicted persons), the Tribunal may make orders for costs.
(3)  An order for costs:
(a)  may be for a specified amount or an unspecified amount, and
(b)  if for an unspecified amount, may specify the basis on which the amount is to be determined, and
(c)  may specify the terms on which costs must be paid.
(4)  A Council must:
(a)  retain in its office a register of orders made under section 18 or 19 on its application or approvals given by it under section 17, and
(b)  permit the register to be inspected during office hours and without charge, but only if the inspection is made by an Australian legal practitioner.
(5)  In any proceedings under this Act, a document that purports:
(a)  to be an order under section 18 or 19, and
(b)  to be signed by the member constituting, or presiding at the sitting of, the Tribunal when the order was made,
is, without further proof, evidence of the order it purports to be.
Division 4 General
21   Professional discipline
(1)  A contravention of this Part by an Australian lawyer who is not an Australian legal practitioner is capable of being professional misconduct.
(2)  Nothing in this Part affects any liability that a person who is an Australian lawyer but not an Australian legal practitioner may have under Chapter 4 (Complaints and discipline), and the person may be punished for an offence under this Part as well as being dealt with under Chapter 4 in relation to the same matter.
Part 2.3 Admission of local lawyers
Division 1 Preliminary
22   Purpose
(1)  The purpose of this Part is, in the interests of the administration of justice and for the protection of clients of law practices, to provide a system under which only applicants who have appropriate academic qualifications and practical legal training and who are otherwise fit and proper persons become qualified for admission and are admitted to the legal profession in this jurisdiction.
(2)  A person is admitted to the legal profession in this jurisdiction by being admitted as a local lawyer.
23   Definitions
In this Part:
admission means admission as a lawyer under this Act.
applicant or applicant for admission means an applicant for admission as a lawyer under this Act.
Division 2 Eligibility and suitability for admission
24   Eligibility for admission
(1)  A person is eligible for admission only if the person is a natural person aged 18 years or over and:
(a)  the person has attained:
(i)  approved academic qualifications, or
(ii)  corresponding academic qualifications, and
(b)  the person has satisfactorily completed:
(i)  approved practical legal training requirements, or
(ii)  corresponding practical legal training requirements.
(2)  In this section:
approved academic qualifications means academic qualifications that are approved, under the admission rules, for admission to the legal profession in this jurisdiction.
approved practical legal training requirements means legal training requirements that are approved, under the admission rules, for admission to the legal profession in this jurisdiction.
corresponding academic qualifications means academic qualifications that would qualify the person for admission to the legal profession in another jurisdiction if the Admission Board is satisfied that substantially the same minimum criteria apply for the approval of academic qualifications for admission in the other jurisdiction as apply in this jurisdiction.
corresponding practical legal training requirements means legal training requirements that would qualify the person for admission to the legal profession in another jurisdiction if the Admission Board is satisfied that substantially the same minimum criteria apply for the approval of legal training requirements for admission in the other jurisdiction as apply in this jurisdiction.
(3)  The admission rules must not require a person to satisfactorily complete before admission a period of supervised training that exceeds in length a period or periods equivalent to one full-time year (as determined in accordance with the admission rules).
(4)  The Admission Board may exempt a person from the requirements of subsection (1) (a) or (b) or both if satisfied that the person has:
(a)  sufficient academic qualifications, or
(b)  sufficient relevant experience in legal practice or relevant service with a government department or government agency,
or both so as to render the person eligible for admission, whether the qualifications or experience were obtained wholly or partly in Australia or overseas.
(4A)  An exemption under subsection (4) may be given unconditionally or subject to such conditions relating to the obtaining of further academic qualifications or further legal training as the Admission Board thinks appropriate.
(5)  For the purposes of subsection (2), the Admission Board may satisfy itself regarding the minimum criteria for the approval of academic qualifications, or legal training requirements, for admission in another jurisdiction by considering appropriate advice from an authority of the other jurisdiction that those criteria were established consistently with relevant agreed standards, and accordingly the Admission Board need not examine (in detail or at all) the content of courses of legal study or legal training requirements prescribed in the other jurisdiction. The regulations may identify or provide a means of identifying those agreed standards.
s 24: Am 2005 No 46, Sch 2 [4].
25   Suitability for admission
(1)  In deciding if an applicant is a fit and proper person to be admitted, the Admission Board:
(a)  must consider each of the suitability matters in relation to the applicant to the extent a suitability matter is appropriate, and
(b)  may consider any other matter it considers relevant.
(2)  However, the Admission Board may consider a person to be a fit and proper person to be admitted despite a suitability matter because of the circumstances relating to the matter.
26   Early consideration of suitability
(1)  A person may apply to the Admission Board for a declaration that matters disclosed by the person will not, without more, adversely affect an assessment by the Board as to whether the person is a fit and proper person to be admitted.
(2)  The Admission Board is to consider each application under this section and, subject to section 27 (Referral of matters to Supreme Court), make the declaration sought or refuse to do so.
27   Referral of matters to Supreme Court
(1)  The Admission Board may refer the issue of whether or not an applicant is a fit and proper person to be admitted to the Supreme Court for determination if, in the opinion of the Board, it would be appropriate for the Court to consider that issue.
(2)  The Admission Board may refer to the Supreme Court any application for a declaration under section 26 (Early consideration of suitability) if, in the opinion of the Board, it would be appropriate for the Court to consider the application.
(3)  The Supreme Court has the same powers as the Admission Board to deal with an application referred to it under this section and its decision on the application is taken to be a decision of the Board.
(4)  On a referral under this section, the Supreme Court may make an order or declaration as it thinks fit.
(5)  The Admission Board is to bear the costs of a referral under this section.
28   Appeals
(1)  An applicant for admission may appeal to the Supreme Court against the refusal of the Admission Board to give a compliance certificate in respect of the applicant.
(2)  An applicant for a declaration sought under section 26 (Early consideration of suitability) may appeal to the Supreme Court against the refusal of the Admission Board to make the declaration.
(3)  A Council may appeal to the Supreme Court against the giving of a compliance certificate.
(4)  A Council may appeal to the Supreme Court against the making of a declaration under section 26 (Early consideration of suitability).
(5)  An appeal under this section is to be by way of rehearing, and fresh evidence or evidence in addition to or in substitution for the evidence before the Admission Board may be given on the appeal, and the decision of the Supreme Court is taken to be a decision of the Admission Board.
(6)  On an appeal under this section, the Supreme Court may make an order or declaration as it thinks fit.
29   Binding effect of declaration or order
A declaration made under section 26, or an order or declaration under section 27 or 28, is binding on the Admission Board unless the applicant failed, on the application or appeal, to make a full and fair disclosure of all matters relevant to the declaration sought.
30   Entitlement to be represented, heard and make representations
(1)  A Council and the applicant concerned are entitled:
(a)  to make representations in writing to the Admission Board in relation to any matter under consideration by the Board under this Division, and
(b)  to be represented and heard at any inquiry or appeal under this Division.
(2)  The Admission Board must notify each Council in accordance with the admission rules of:
(a)  any application for a declaration under section 26 (Early consideration of suitability), and
(b)  any declaration made under that section.
(3)  The Admission Board may notify a Council of any application for admission.
Division 3 Admission to the legal profession
31   Admission
(1)  The Supreme Court may admit persons as lawyers in accordance with this Part.
(2)  The Supreme Court may admit an applicant as a lawyer if the Admission Board advises the Court that the Board considers that the applicant:
(a)  is eligible for admission, and
(b)  is a fit and proper person to be admitted.
(3)  The advice of the Admission Board is to be given by means of a compliance certificate in the form prescribed by the admission rules.
32   Roll of local lawyers
(1)  The Supreme Court is to maintain a roll of persons admitted as lawyers under this Act (referred to in this Act as the local roll).
(2)  When a person is admitted under this Act, the Supreme Court is to cause the person’s name to be entered on the local roll.
(3)  A person admitted as a lawyer under this Act must sign the local roll.
(4)  The admission of a person as a lawyer under this Act is effective from the time the person signs the local roll.
(5)  The local roll must be available for inspection, without charge, during normal business hours.
(6)  The Supreme Court may publish the name of persons admitted as lawyers under this Act and any relevant particulars concerning those persons.
(7)  The Supreme Court’s functions under this section may be exercised by a person or body designated by the Court for the purpose.
(8)  The regulations may make provision for or with respect to:
(a)  the information that may or must be included in the local roll,
(b)  publication of information contained in the local roll.
33   Local lawyer is officer of Supreme Court
A person becomes an officer of the Supreme Court on being admitted as a lawyer under this Act.
34   Miscellaneous provisions respecting admission
(1)  The Supreme Court can only admit or enrol persons as lawyers, and cannot admit or enrol persons as barristers, solicitors or legal practitioners.
(2)  Any inherent power or jurisdiction of the Supreme Court to admit or enrol persons as barristers, solicitors or legal practitioners is and remains revoked.
(3)  The Supreme Court Charter is and remains revoked in New South Wales in so far as it relates to the admission of barristers, advocates, proctors, solicitors and attorneys.
(4)  In this section:
Supreme Court Charter means the Charter dated 13 October 1823 under the Imperial Act 4 Geo IV c 96 establishing Courts of Justice in New South Wales.
Division 4 Legal Profession Admission Board
Note—
Provisions for the constitution of the Admission Board are located in Part 7.1 and Schedule 2.
35   Determination of applications for admission
(1)  The Admission Board is to advise the Supreme Court whether or not the Board considers:
(a)  an applicant for admission is:
(i)  eligible for admission (under section 24), and
(ii)  a fit and proper person to be admitted (in accordance with section 25), and
(b)  the application is made in accordance with the admission rules and the applicant has complied with the admission rules.
(2)  The Admission Board may refuse:
(a)  to consider the application if it is not made in accordance with the admission rules, or
(b)  to advise that the applicant is eligible for admission if the person has not complied with the admission rules.
(3)  The Admission Board may require an applicant to provide such further information as it considers relevant to its determination of the application within such time as it specifies.
s 35: Am 2005 No 46, Sch 2 [5].
36   Compliance certificates
(1)  If, after considering an application for admission, the Admission Board considers:
(a)  the applicant is:
(i)  eligible for admission, and
(ii)  a fit and proper person to be admitted, and
(b)  the application conforms with the requirements of the admission rules and there are no grounds for refusing to give a certificate for the applicant,
the Board must, within the time specified in or determined in accordance with the admission rules, advise the Supreme Court to that effect by filing with the Prothonotary a certificate in the approved form (a compliance certificate).
(2)  If the Admission Board refuses to give a compliance certificate for the applicant, the Board must, within the time specified in or determined in accordance with the admission rules, give the Prothonotary and the applicant an information notice about the refusal.
37   Consideration of applicant’s eligibility and suitability
(1)  To help it consider whether or not an applicant is eligible for admission or is a fit and proper person to be admitted, the Admission Board may, by notice to the applicant, require:
(a)  the applicant to give it specified documents or information, or
(b)  the applicant to co-operate with any inquiries by the Board that it considers appropriate.
(2)  An applicant’s failure to comply with a notice under subsection (1) by the date specified in the notice and in the way required by the notice is a ground for refusing to approve the applicant as a suitable candidate for admission.
(3)  The Admission Board may refer a matter to the Supreme Court for directions.
37A   Communication with other authorities
(1)  Without limiting any other functions that it has to seek or obtain information, the Admission Board may communicate with and obtain relevant information from such Australian or overseas authorities as it thinks appropriate in connection with an application under this Part.
(2)  Without limiting any other power that it has to disclose information under this Act, the Admission Board may disclose information to such Australian and overseas authorities as it thinks appropriate in response to a request for relevant information, but may do so only if satisfied that it is not likely that the information provided will be inappropriately disclosed by such an authority.
(3)  Section 722 (1) extends to the disclosure of information received under subsection (1).
s 37A: Ins 2005 No 46, Sch 2 [6].
Division 5 Admission rules
38   Admission rules
(1)  The Admission Board may make rules for the admission of persons as lawyers under this Act.
(2)  Without limiting subsection (1), rules may be made about any of the following:
(a)  the procedure for admission, including:
(i)  how an application is to be made, and
(ii)  giving notice of the application to an entity or public notice of the application, and
(iii)  the affidavits or certificates the applicant must provide with or for the application,
(b)  admission requirements regarding, and the approval of, academic qualifications and practical legal training,
(c)  the examination of applicants for admission and the assessment of their qualifications,
(d)  the disclosure of matters that may affect consideration of the eligibility of an applicant for admission, or affect consideration of the question whether the applicant is a fit and proper person to be admitted, including convictions that must be disclosed and those that need not be disclosed,
(e)  applications for admission under the trans-Tasman mutual recognition legislative scheme,
(f)  the assessment of the qualifications and practical legal training of overseas qualified or trained applicants against the academic requirements and practical legal training requirements that apply to local applicants,
(g)  the conferral of a right of objection to an applicant’s admission on persons of appropriate standing,
(h)  the procedure to be adopted in the conduct of inquiries under this Part,
(i)  registration and deregistration as, and the discipline of, students-at-law and the qualifications for registration,
(j)  the examination and assessment in academic subjects of candidates for registration, students-at-law or applicants for admission,
(k)  the establishment and conduct of boards or other bodies with functions concerning:
(i)  the examination of applicants for admission, and
(ii)  the assessment of applicants as to whether they are eligible for admission and as to whether they are fit and proper persons to be admitted,
(l)  the exemption by the Board of a person from the requirements of section 24 (1) (a) or (b) as provided by section 24 (4),
(m)  accreditation of legal education and practical legal training courses,
(n)  prescribing the fees and costs to be payable under the rules and providing for the refund or remission of fees,
(o)  any other matters relating to the functions of the Board.
(3)  Without limiting subsection (1), the rules may provide for abridging, in specified circumstances, any period of practical legal training required by the rules.
(3A)  Without limiting subsection (1) or the power of the Admission Board to delegate functions under section 718, the rules may:
(a)  provide for the establishment, dissolution and procedures of committees and subcommittees of the Board, and
(b)  confer or provide for conferring functions on any such committee or subcommittee, including any functions of the Board, and
(c)  provide that a committee or subcommittee exercises any of its functions in an advisory capacity or as delegate of the Board.
(4)  Part 6 of the Interpretation Act 1987 applies to a rule made under this section in the same way as it applies in relation to a statutory rule within the meaning of that Act.
Note—
Part 6 of the Interpretation Act 1987 contains provisions relating to the publication and parliamentary disallowance of statutory rules and other standard provisions relating to the making, amendment and repeal of statutory rules.
s 38: Am 2005 No 46, Sch 2 [7]–[9].
Division 6 Miscellaneous
ch 2, pt 2.3, div 6 (s 38A): Ins 2005 No 46, Sch 2 [10].
38A   Non-compellability of certain witnesses
(1)  A person referred to in section 601 (Protection from liability) is not compellable in any legal proceedings to give evidence or produce documents in respect of any matter in which the person was involved in the course of the administration of this Part.
(2)  This section does not apply to:
(a)  proceedings under Part 3 of the Royal Commissions Act 1923, or
(b)  proceedings before the Independent Commission Against Corruption, or
(c)  a hearing under the Special Commissions of Inquiry Act 1983, or
(d)  an inquiry under the Ombudsman Act 1974.
ch 2, pt 2.3, div 6 (s 38A): Ins 2005 No 46, Sch 2 [10].
Part 2.4 Legal practice by Australian legal practitioners
Division 1 Preliminary
39   Purposes
The purposes of this Part are as follows:
(a)  to facilitate the national practice of law by ensuring that Australian legal practitioners can engage in legal practice in this jurisdiction and to provide for the certification of Australian lawyers whether or not admitted in this jurisdiction,
(b)  to provide a system for the granting and renewing of local practising certificates.
Division 2 Legal practice in this jurisdiction by Australian legal practitioners
40   Entitlement of holder of Australian practising certificate to practise in this jurisdiction
An Australian legal practitioner is, subject to this Act, entitled to engage in legal practice in this jurisdiction.
Division 3 Local practising certificates generally
41   Local practising certificates
(1)  Practising certificates may be granted under this Part.
(2)  The Bar Council may, on application, grant a practising certificate to an Australian lawyer authorising the lawyer to practise as a barrister.
(3)  The Law Society Council may, on application, grant a practising certificate to an Australian lawyer authorising the lawyer to practise as a solicitor and barrister.
(4)  It is a statutory condition of a local practising certificate that the holder must not hold another local practising certificate, or an interstate practising certificate, that is in force during the currency of the first-mentioned local practising certificate.
(5)    (Repealed)
s 41: Am 2005 No 46, Sch 2 [11].
42   Suitability to hold local practising certificate
(1)  This section has effect for the purposes of section 48 (Grant or renewal of local practising certificate) or any other provision of this Act where the question of whether or not a person is a fit and proper person to hold a local practising certificate is relevant.
(2)  A Council may, in considering whether or not the person is a fit and proper person to hold a local practising certificate, take into account any suitability matter relating to the person, and any of the following, whether happening before or after the commencement of this section:
(a)  whether the person obtained an Australian practising certificate because of incorrect or misleading information,
(b)  whether the person has contravened a condition of an Australian practising certificate held by the person,
(c)  whether the person has contravened this Act or a corresponding law or the regulations or legal profession rules under this Act or a corresponding law,
(d)  whether the person has contravened:
(i)  an order of the Tribunal, or
(ii)  an order of a corresponding disciplinary body or of another court or tribunal of another jurisdiction exercising jurisdiction or powers by way of appeal or review of an order of a corresponding disciplinary body,
(e)  without limiting any other paragraph:
(i)  whether the person has failed to pay a required contribution or levy to the Fidelity Fund, or
(ii)  whether the person has contravened a requirement of, or imposed under, this Act or the regulations, about professional indemnity insurance, or
(iii)  whether the person has contravened a requirement of this Act or the regulations about trust money, or
(iv)  whether the person has failed to pay other costs, expenses or fines for which the person is liable under this Act or the regulations,
(f)  other matters the Council thinks appropriate.
(3)  A person may be considered a fit and proper person to hold a local practising certificate even though the person is within any of the categories of the matters referred to in subsection (2), if the Council considers that the circumstances warrant the determination.
(4)  If a matter was:
(a)  disclosed in an application for admission to the legal profession in this or another jurisdiction, and
(b)  determined by a Supreme Court or by the Admission Board or a corresponding authority not to be sufficient for refusing admission,
the matter cannot be taken into account as a ground for refusing to grant or renew or for suspending or cancelling a local practising certificate unless the matter was a pre-admission event (whether it happened before or after the commencement of this section), but the matter may be taken into account when considering other matters in relation to the person concerned.
(5)  A Council may decide to take no action or no further action in connection with a pre-admission event, if satisfied that it is appropriate to do so given the passage of time and other circumstances the Council considers relevant.
43   Duration of local practising certificate
(1)  A local practising certificate granted under this Act is in force from the date specified in it until the end of the financial year in which it is granted, unless the certificate is sooner suspended or cancelled.
(2)  A local practising certificate renewed under this Act is in force until the end of the financial year following its previous period of currency, unless the certificate is sooner suspended or cancelled.
(3)  If an application for the renewal of a local practising certificate as a solicitor has been properly made as required by this Act but has not been determined by the Law Society Council by the following 1 July, the certificate:
(a)  continues in force on and from that 1 July until the Law Society Council renews or refuses to renew the certificate or the holder withdraws the application for renewal, unless the certificate is sooner cancelled or suspended, and
(b)  if renewed, is taken to have been renewed on and from that 1 July.
44   Local legal practitioner is officer of Supreme Court
A person who is not already an officer of the Supreme Court becomes an officer of the Supreme Court on being granted a local practising certificate.
Division 4 Grant or renewal of local practising certificates
45   Application for grant or renewal of local practising certificate
(1)  An Australian lawyer may apply to the appropriate Council for the grant or renewal of a local practising certificate if eligible to do so.
(2)  An Australian lawyer is eligible to apply for the grant or renewal of a local practising certificate if the lawyer complies with any regulations and legal profession rules relating to eligibility for the practising certificate and if:
(a)  where the lawyer is not an Australian legal practitioner at the time of making the application:
(i)  the lawyer reasonably expects to be engaged in legal practice principally in this jurisdiction during the currency of the certificate applied for, or
(ii)  if it is not reasonably practicable to determine whether subparagraph (i) applies to the lawyer—the lawyer’s place of residence in Australia is this jurisdiction or the lawyer does not have a place of residence in Australia, or
(b)  where the lawyer is an Australian legal practitioner at the time of making the application:
(i)  the jurisdiction in which the lawyer engages in legal practice principally is this jurisdiction, or
(ii)  the lawyer holds a current local practising certificate and engages in legal practice in another jurisdiction under an arrangement that is of a temporary nature, or
(iii)  the lawyer reasonably expects to be engaged in legal practice principally in this jurisdiction during the currency of the certificate applied for, or
(iv)  if it is not reasonably practicable to determine whether subparagraph (i), (ii) or (iii) applies to the lawyer—the lawyer’s place of residence in Australia is this jurisdiction or the lawyer does not have a place of residence in Australia.
(3)  For the purposes of subsection (2) (b), the jurisdiction in which an Australian lawyer engages in legal practice principally is to be decided by reference to the lawyer’s legal practice during the certificate period current at the time:
(a)  the application is made, or
(b)  in the case of a late application—the application should have been made.
(3A)  An Australian lawyer is not eligible to apply for the grant or renewal of a local practising certificate in respect of a financial year if the lawyer would also be the holder of another Australian practising certificate for that year, but this subsection does not limit the factors determining ineligibility to apply for the grant or renewal of a local practising certificate.
(4)  An Australian lawyer must not apply for the grant or renewal of a local practising certificate if the lawyer is not eligible to make the application.
(5)  An Australian legal practitioner who engages in legal practice principally in this jurisdiction during a financial year and can reasonably be expected to engage in legal practice principally in this jurisdiction in the following year must apply for the grant or renewal of a local practising certificate in respect of the following financial year.
(6)–(9)    (Repealed)
s 45: Am 2005 No 46, Sch 2 [12]–[15].
46   Manner of application
(1)  An application for the grant or renewal of a local practising certificate must be:
(a)  made in accordance with the regulations and must provide or be accompanied by such information as may be required by the regulations, and
(b)  accompanied by the appropriate fees.
(2)  The regulations may require the applicant to disclose matters that may affect the applicant’s eligibility for the grant or renewal of a local practising certificate or the question whether the applicant is a fit and proper person to hold a local practising certificate.
(3)  The regulations may indicate that particular kinds of matters previously disclosed in a particular manner need not be disclosed for the purposes of the current application.
(4)  Without limiting subsection (2), the regulations may require the applicant to disclose details of, or details of the nature of, pre-admission events.
(5)  The appropriate Council may require an applicant to provide such further information as it considers relevant to its determination of the application within such time as it specifies.
s 46: Am 2005 No 46, Sch 2 [16].
47   Timing of application for renewal of local practising certificate
(1)  An application for the renewal of a local practising certificate must be made within:
(a)  the period prescribed by the regulations as the standard renewal period, or
(b)  a later period prescribed by the regulations as the late fee period.
(2)  Those periods must be within the currency of the local practising certificate being renewed.
(3)  The appropriate Council may reject an application for renewal made during the late fee period, and must reject an application for renewal made outside those periods.
Note—
Section 92 authorises the charging of a late fee for applications received during the late fee period. If an application is rejected under subsection (3), the applicant will have to apply for the grant of a new practising certificate.
s 47: Subst 2005 No 46, Sch 2 [17].
48   Grant or renewal of local practising certificate
(1)  The appropriate Council must consider an application that has been made for the grant or renewal of a local practising certificate and may:
(a)  grant or refuse to grant the certificate, or
(b)  renew or refuse to renew the certificate,
and in granting or renewing the certificate may impose conditions as referred to in section 50 (Conditions imposed by Council).
(2)  The Council may refuse:
(a)  to consider an application if:
(i)  it is not made in accordance with this Act, the regulations or the legal profession rules, or
(ii)  the required fees and costs have not been paid, or
(iii)  further information has not been provided as required under section 46 (5), or
(b)  to grant or renew a local practising certificate if the applicant has not complied with the regulations or the legal profession rules in relation to the application.
(3)  The Council must not grant a local practising certificate unless it is satisfied that the applicant:
(a)  was eligible to apply for the grant when the application was made, and
(b)  is a fit and proper person to hold the certificate.
Note—
Section 42 (Suitability to hold local practising certificate) deals with the question of whether or not a person is a fit and proper person to hold a practising certificate.
(4)  The Council must not renew a local practising certificate if it is satisfied that the applicant:
(a)  was not eligible to apply for the renewal when the application was made, or
(b)  is not a fit and proper person to continue to hold the certificate.
(5)  The Council must not grant or renew a local practising certificate if the Council considers the applicant’s circumstances have changed since the application was made and the applicant would (having regard to information that has come to the Council’s attention) not have been eligible to make the application when the application is being considered.
(6)  Without limiting any other provision of this section, the Council may refuse to grant or renew a local practising certificate if a finding of unsatisfactory professional conduct or professional misconduct has been made in respect of the applicant and:
(a)  a fine imposed because of the finding has not been paid, or
(b)  costs awarded against the applicant because of the finding have been assessed but have not been paid or, if an arrangement for their payment has been made, the applicant is in default under the arrangement.
(7)  Without limiting any other provision of this section, the Council may refuse to grant or renew a local practising certificate if:
(a)  any costs of an investigation or examination payable under Part 3.1 by or in respect of the applicant have not been paid, or
(b)  any fees, costs or expenses of external intervention payable under Chapter 5 by or in respect of the applicant have not been paid, or
(c)  the applicant is required by this Act to contribute to the Indemnity Fund and the application is not accompanied by the contribution payable under that section, or
(d)  the applicant is required by this Act to contribute to the Fidelity Fund and the application is not accompanied by the contribution payable under that section, or
(e)  any levy payable by the applicant under Part 3.3 or 3.4 or Schedule 7 is unpaid, or
(f)  the required application fees and costs have not been paid.
(8)  Without limiting any other provision of this section, the Council may refuse to grant or renew a local practising certificate on any ground on which the local practising certificate could be suspended or cancelled.
(9)  Without limiting any other provision of this section, the Bar Council may refuse to grant a local practising certificate for a barrister if the applicant has not successfully completed any examination required by the Bar Council to be passed as a prerequisite to undertaking a reading program.
(10)  This section does not affect any other provision of this Act that provides for the refusal to grant a local practising certificate.
Note—
Sections 403 and 406 provide for the refusal to grant a local practising certificate if any required professional indemnity insurance has not been obtained. Section 485 provides for the refusal to grant a local practising certificate if any required fidelity cover in respect of regulated mortgages has not been obtained.
(11)  If the Council grants or renews a local practising certificate, the Council must, as soon as practicable, give the applicant:
(a)  for the grant of a certificate—a local practising certificate, or
(b)  for the renewal of a certificate—a new local practising certificate.
(12)  If the Council refuses to grant or renew a local practising certificate, the Council must, as soon as practicable, give the applicant an information notice.
(13)  If an application for the grant of a local practising certificate is not determined within 3 months after the application is made, the application is deemed to have been refused.
s 48: Am 2005 No 46, Sch 2 [18] [19].
Division 5 Conditions on local practising certificates
49   Conditions generally
(1)  A local practising certificate is subject to:
(a)  any conditions imposed by the appropriate Council, and
(b)  any statutory conditions imposed by this or any other Act, and
(c)  any conditions imposed by or under the legal profession rules or the regulations, and
(d)  any conditions imposed or varied by the Tribunal under section 51 (Imposition or variation of conditions pending criminal proceedings), and
(e)  any conditions imposed under Chapter 4 (Complaints and discipline) or under provisions of a corresponding law that correspond to Chapter 4.
(2)  If a condition is imposed, varied or revoked under this Act (other than a statutory condition) during the currency of the local practising certificate concerned, the certificate is to be amended by the appropriate Council, or a new certificate is to be issued by the Council, to reflect on its face the imposition, variation or revocation.
50   Conditions imposed by Council
(1)  The appropriate Council may impose conditions on a local practising certificate:
(a)  when it is granted or renewed, or
(b)  during its currency (in accordance with section 61 (Amending, suspending or cancelling local practising certificate)).
(2)  A condition imposed under this section must be reasonable and relevant.
(3)  A condition imposed under this section may be about any of the following:
(a)  requiring the holder of the practising certificate to undertake and complete:
(i)  continuing legal education, or
(ii)  an academic or training course, or
(iii)  a period of supervised legal practice,
(b)  restricting the areas of law practised,
(c)  controlling, restricting or prohibiting the operation of a trust account,
(d)  restricting the holder to particular conditions concerning employment or supervision,
(e)  requiring the holder of the practising certificate to undergo counselling or medical treatment or to act in accordance with medical advice given to the holder,
(f)  requiring the holder of the practising certificate to use the services of an accountant or other financial specialist in connection with his or her practice,
(g)  requiring the holder of the practising certificate to provide the appropriate Council with evidence as to any outstanding tax obligations of the holder and as to provision made by the holder to satisfy any such outstanding obligations,
(h)  a matter agreed to by the holder.
(4)  Subsection (3) does not limit the matters about which a condition may be imposed under this section.
(5)  The appropriate Council must not impose a condition requiring the holder to undertake and complete an academic or training course unless:
(a)  the Council is satisfied, having regard to the holder’s previous academic studies, legal training, experience or conduct, that the holder falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner, or
(b)  the condition is one that is imposed generally on holders of local practising certificates or any class of holders of local practising certificates.
Note—
A class of holders might comprise newly qualified lawyers, or lawyers returning to legal practice after suspension or an extended break.
(6)  The appropriate Council may vary or revoke conditions imposed under this section.
(7)  If the appropriate Council imposes, varies or revokes a condition during the currency of the local practising certificate concerned, the imposition, variation or revocation takes effect when the holder has been notified of it or a later time specified by the Council.
(8)  If the appropriate Council imposes a condition on the certificate when it is granted or renewed and the holder of the certificate within one month after the grant or renewal notifies the Council in writing that he or she does not agree to the condition, the Council must, as soon as practicable, give the holder an information notice.
(9)  This section has effect subject to section 61 (Amending, suspending or cancelling local practising certificate) in relation to the imposition of a condition on a local practising certificate during its currency.
51   Imposition or variation of conditions pending criminal proceedings
(1)  If a local legal practitioner has been charged with a relevant offence but the charge has not been determined, the appropriate Council may apply to the Tribunal for an order under this section.
(2)  On an application under subsection (1), the Tribunal, if it considers it appropriate to do so having regard to the seriousness of the offence and to the public interest, may make either or both of the following orders:
(a)  an order varying the conditions on the practitioner’s local practising certificate, or
(b)  an order imposing further conditions on the practitioner’s local practising certificate.
(3)  An order under this section has effect until the sooner of:
(a)  the end of the period specified by the Tribunal, or
(b)  if the practitioner is convicted of the offence—28 days after the day of the conviction, or
(c)  if the charge is dismissed—the day of the dismissal.
(4)  The Tribunal, on application by any party, may vary or revoke an order under this section at any time.
(5)  In this section:
relevant offence means a serious offence or an offence that would have to be disclosed under the admission rules in relation to an application for admission to the legal profession under this Act.
52   Statutory condition regarding conditions imposed on interstate admission
It is a statutory condition of a local practising certificate that the holder must not contravene a condition that was imposed on the admission of the person to the legal profession under a corresponding law (with any variations of the condition made from time to time) and that is still in force.
Note—
Contravention of a condition imposed on admission locally is dealt with in section 58 (Compliance with conditions).
53   Statutory condition regarding practice as solicitor
(1)  It is a statutory condition of a local practising certificate for a solicitor that the holder must engage in supervised legal practice only, until the holder has completed:
(a)  if the holder completed practical legal training principally under the supervision of an Australian legal practitioner, whether involving articles of clerkship or otherwise, to qualify for admission to the legal profession in this or another jurisdiction—a period or periods equivalent to 18 months’ supervised legal practice, worked out under relevant regulations, after the day the holder’s first practising certificate was granted, or
(b)  if the holder completed other practical legal training to qualify for admission to the legal profession in this or another jurisdiction—a period or periods equivalent to 2 years’ supervised legal practice, worked out under relevant regulations, after the day the holder’s first practising certificate was granted.
(2)  Subsection (1) has effect subject to any other conditions that relate to engaging in supervised legal practice as a solicitor after a period or periods referred to in that subsection.
(3)  A Council may exempt a person from the requirement for supervised legal practice under subsection (1) or may reduce a period referred to in that subsection for the person, if satisfied that the person does not need to be supervised or needs to be supervised only for a shorter period, having regard to:
(a)  the length and nature of any legal practice previously engaged in by the person, and
(b)  the length and nature of any legal practice engaged in by any person who previously supervised the person’s legal practice.
(4)  An exemption under subsection (3) may be given unconditionally or subject to such conditions as the Council thinks appropriate.
s 53: Am 2005 No 46, Sch 2 [20].
54   Statutory condition regarding practice as a barrister
It is a statutory condition of a local practising certificate for a barrister (but not a solicitor and barrister) that the barrister must not:
(a)  engage in legal practice otherwise than as a sole practitioner, or
(b)  engage in legal practice in partnership with any person, or
(c)  engage in legal practice as the employee of any person, or
(d)  hold office as a legal practitioner director of an incorporated legal practice.
55   Statutory condition regarding notification of offence
(1)  It is a statutory condition of a local practising certificate that the holder of the certificate:
(a)  must notify the appropriate Council that the holder has been:
(i)  convicted of an offence that would have to be disclosed under the admission rules in relation to an application for admission to the legal profession under this Act, or
(ii)  charged with a serious offence, and
(b)  must do so within 7 days of the event and by a written notice.
(2)  The regulations, or the legal profession rules if the regulations do not do so, may specify the form of the notice to be used and the person to whom or the address to which it is to be sent or delivered.
(3)  The giving of notice in accordance with Division 7 (Special powers in relation to local practising certificates—show cause events) of a conviction for a serious offence satisfies the requirements of subsection (1) (a) (i) in relation to the conviction.
56   Additional conditions on practising certificates of barristers
(1)  Without limiting section 50 (Conditions imposed by Council), the Bar Council may under that section impose conditions of the following kinds on the practising certificate of a barrister:
(a)  a condition requiring the holder to undertake and complete to the satisfaction of the Bar Council a full-time component or other component of a reading program applicable to the holder and determined or approved by the Bar Council,
(b)  a condition requiring the holder to read with a barrister of a specified class or description chosen by the holder (including a barrister chosen from a list of at least 10 barristers kept by the Bar Council for the purpose) for a specified period and to comply with such requirements as will enable the barrister, at the end of the specified period, to certify to the Bar Council that the holder is fit to practise as a barrister without restriction.
(2)  A condition of a kind referred to in subsection (1) that is imposed on the practising certificate of a barrister may limit the practising rights of the barrister until the condition is complied with.
(3)  The Bar Council may cancel or suspend a local practising certificate if the holder fails to comply with a condition of the kind referred to in subsection (1).
57   Conditions imposed by legal profession rules
The legal profession rules may:
(a)  impose conditions on local practising certificates or any class of local practising certificates, or
(b)  authorise conditions to be imposed on local practising certificates or any class of local practising certificates.
58   Compliance with conditions
(1)  The holder of a current local practising certificate must not contravene (in this jurisdiction or elsewhere) a condition to which the certificate is subject.
Maximum penalty: 100 penalty units.
(2)    (Repealed)
s 58: Am 2005 No 46, Sch 2 [21].
Division 6 Amendment, suspension or cancellation of local practising certificates
59   Application of this Division
This Division does not apply in relation to matters referred to in Division 7 (Special powers in relation to local practising certificates—show cause events).
60   Grounds for suspending or cancelling local practising certificate
(1)  Each of the following is a ground for suspending or cancelling a local practising certificate:
(a)  the holder is no longer a fit and proper person to hold the certificate,
Note—
Section 42 (Suitability to hold local practising certificate) deals with the question of whether or not a person is a fit and proper person to hold a practising certificate.
(b)  if the holder is an insurable barrister or insurable solicitor within the meaning of Part 3.3 (Professional indemnity insurance)—the holder does not have, or no longer has, professional indemnity insurance that complies with this Act in relation to the certificate,
(c)  if the holder is an insurable solicitor within the meaning of Part 3.3 (Professional indemnity insurance)—the holder fails to pay a contribution, instalment of a contribution, or levy in accordance with section 411 (Contributions) or 412 (Levies) or Schedule 7 (Professional indemnity insurance—provisions relating to HIH insurance),
(d)  if a condition of the certificate is that the holder is limited to legal practice specified in the certificate—the holder is engaging in legal practice that the holder is not entitled to engage in under this Act.
(2)  Subsection (1) does not limit the grounds on which conditions may be imposed on a local practising certificate under section 50.
s 60: Am 2005 No 46, Sch 2 [22] [23].
61   Amending, suspending or cancelling local practising certificates
(1)  If the appropriate Council believes a ground exists to amend, suspend or cancel a local practising certificate (the proposed action), the Council must give the holder a notice that:
(a)  states the proposed action and:
(i)  if the proposed action is to amend the certificate—states the proposed amendment, and
(ii)  if the proposed action is to suspend the certificate—states the proposed suspension period, and
(b)  states the grounds for proposing to take the proposed action, and
(c)  outlines the facts and circumstances that form the basis for the Council’s belief, and
(d)  invites the holder to make written representations to the Council within a specified time of not less than 7 days and not more than 28 days, as to why the proposed action should not be taken.
(2)  If, after considering all written representations made within the specified time and, in its discretion, written representations made after the specified time, the Council still believes a ground exists to take the proposed action, the Council may:
(a)  if the notice under subsection (1) stated the proposed action was to amend the practising certificate—amend the certificate in the way stated or in a less onerous way the Council considers appropriate because of the representations, or
(b)  if the notice stated the proposed action was to suspend the practising certificate for a specified period:
(i)  suspend the certificate for a period no longer than the specified period, or
(ii)  amend the certificate in a less onerous way the Council considers appropriate because of the representations, or
(c)  if the notice stated the proposed action was to cancel the practising certificate:
(i)  cancel the certificate, or
(ii)  suspend the certificate for a period, or
(iii)  amend the certificate in a less onerous way the Council considers appropriate because of the representations.
(3)  The Council may, at its discretion, consider representations made after the specified time.
(4)  The Council must give the person notice of its decision.
(5)  If the Council decides to amend, suspend or cancel the practising certificate, the Council must give the holder an information notice about the decision.
(6)  In this section, amend a certificate means amend the certificate under section 50 during its currency, other than at the request of the holder of the certificate.
s 61: Am 2005 No 46, Sch 2 [25]–[30].
62   Operation of amendment, suspension or cancellation of local practising certificate
(1) Application of section This section applies if a decision is made to amend, suspend or cancel a local practising certificate under section 61 (Amending, suspending or cancelling local practising certificate).
(2) Action to take effect on giving of notice or specified date Subject to subsections (3) and (4), the amendment, suspension or cancellation of the practising certificate takes effect on the later of the following:
(a)  the day notice of the decision is given to the holder,
(b)  the day specified in the notice.
(3) Grant of stay If the practising certificate is amended, suspended or cancelled because the holder has been convicted of an offence:
(a)  the Supreme Court may, on the application of the holder, order that the operation of the amendment, suspension or cancellation of the practising certificate be stayed until:
(i)  the end of the time to appeal against the conviction, and
(ii)  if an appeal is made against the conviction—the appeal is finally decided, lapses or otherwise ends, and
(b)  the amendment, suspension or cancellation does not have effect during any period in respect of which the stay is in force.
(4) Quashing of conviction If the practising certificate is amended, suspended or cancelled because the holder has been convicted of an offence and the conviction is quashed:
(a)  the amendment or suspension ceases to have effect when the conviction is quashed, or
(b)  the cancellation ceases to have effect when the conviction is quashed and the certificate is restored as if it had merely been suspended.
63   Other ways of amending or cancelling local practising certificate
(1)  The appropriate Council may amend or cancel a local practising certificate if the holder requests the appropriate Council to do so.
(2)  The appropriate Council may amend a local practising certificate:
(a)  for a formal or clerical reason, or
(b)  in another way that does not adversely affect the holder’s interests.
(3)  The appropriate Council must cancel a local practising certificate if the holder’s name has been removed from the local roll or the holder ceases to be an Australian lawyer.
(4)  The amendment or cancellation of a local practising certificate under this section is effected by written notice given to the holder.
(5)  Section 61 (Amending, suspending or cancelling local practising certificate) does not apply in a case to which this section applies.
64   Relationship of this Division with Chapter 4
Nothing in this Division prevents a Council from making a complaint under Chapter 4 (Complaints and discipline) about a matter to which this Division relates.
Division 7 Special powers in relation to local practising certificates—show cause events
65   Definition of “show cause event”
In this Division:
show cause event, in relation to a person, means:
(a)  his or her becoming bankrupt or being served with notice of a creditor’s petition presented to the Court under section 43 of the Bankruptcy Act 1966 of the Commonwealth, or
(b)  his or her presentation (as a debtor) of a declaration to the Official Receiver under section 54A of the Bankruptcy Act 1966 of the Commonwealth of his or her intention to present a debtor’s petition or his or her presentation (as a debtor) of such a petition under section 55 of that Act, or
(c)  his or her applying to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounded with his or her creditors or made an assignment of his or her remuneration for their benefit, or
(d)  his or her conviction for a serious offence or a tax offence, whether or not:
(i)  the offence was committed in or outside this jurisdiction, or
(ii)  the offence was committed while the person was engaging in legal practice as an Australian legal practitioner or was practising foreign law as an Australian-registered foreign lawyer, as the case requires, or
(iii)  other persons are prohibited from disclosing the identity of the offender.
s 65: Am 2005 No 46, Sch 2 [31].
66   Applicant for local practising certificate—show cause event
(1)  This section applies if:
(a)  a person (referred to in this Division as the applicant) is applying for the grant of a local practising certificate, and
(b)  a show cause event in relation to the person happened, whether before or after the commencement of this section and whether before or after the person was first admitted to the legal profession in this or another jurisdiction.
(2)  As part of the application, the applicant must provide to the appropriate Council a written statement:
(a)  about the show cause event, and
(b)  explaining why, despite the show cause event, the applicant considers himself or herself to be a fit and proper person to hold a local practising certificate.
(3)  A contravention of subsection (2) is professional misconduct.
(4)  However, the applicant need not provide a statement under subsection (2) if the applicant (as a previous applicant for a local practising certificate or as the holder of a local practising certificate previously in force) has previously provided to the appropriate Council:
(a)  a statement under this section, or
(b)  a notice and statement under section 67,
explaining why, despite the show cause event, the applicant considers himself or herself to be a fit and proper person to hold a local practising certificate.
(5)  If the show cause event is a pre-admission event, the appropriate Council may decide to take no action under this Division in connection with the event, if satisfied that it is appropriate to do so given the passage of time and other circumstances the Council considers relevant (in which case the Council is not required to investigate and determine the matter under section 68).
(6)  A Council must, within 7 days after receiving a written statement from the applicant under this section about a show cause event, provide a copy of the statement to the Commissioner.
(7)  A Council may refuse to issue a local practising certificate if the applicant:
(a)  is required by this section to provide a written statement about a show cause event and has failed to provide the statement in accordance with this section, or
(b)  has provided a written statement in accordance with this section but, in the opinion of the Council, the applicant has failed to show in the statement that the applicant is a fit and proper person to hold a practising certificate, or
(c)  has failed without reasonable excuse to comply with a requirement under Chapter 6 (Provisions relating to investigations) made in connection with an investigation of the show cause event concerned or has committed an offence under that Chapter in connection with any such investigation.
(8)  If a Council refuses to issue a local practising certificate under subsection (7) to an applicant, the Council is not required to exercise its functions under section 68 in relation to the application.
s 66: Am 2005 No 46, Sch 2 [32]–[37].
67   Holder of local practising certificate—show cause event
(1)  This section applies to a show cause event that happens in relation to a person (referred to in this Division as the holder) who is the holder of a local practising certificate.
(2)  The holder must provide to the appropriate Council both of the following:
(a)  within 7 days after the happening of the event—written notice that the event happened,
(b)  within 28 days after the happening of the event—a written statement explaining why, despite the show cause event, the person considers himself or herself to be a fit and proper person to hold a local practising certificate.
(3)  A contravention of subsection (2) is professional misconduct.
(4)  If a written statement is provided after the 28 days mentioned in subsection (2) (b), the appropriate Council may accept the statement and take it into consideration.
(5)  A Council must, within 7 days after receiving a notice or statement from a local practitioner under this section, provide a copy of the notice or statement to the Commissioner.
(6)  A Council may cancel or suspend a local practising certificate if the holder:
(a)  is required by this section to provide notice or a written statement about a show cause event and has failed to provide the notice or statement in accordance with this section, or
(b)  has provided a written statement in accordance with this section but, in the opinion of the Council, the holder has failed to show in the statement that the holder is a fit and proper person to hold a practising certificate, or
(c)  has failed without reasonable excuse to comply with a requirement under Chapter 6 (Provisions relating to investigations) made in connection with an investigation of the show cause event concerned or has committed an offence under that Chapter in connection with any such investigation.
(7)  If a Council cancels or suspends a local practising certificate under subsection (6), the Council is not required to exercise its functions under section 68 in relation to the matter.
s 67: Am 2005 No 46, Sch 2 [38]–[41].
68   Investigation and consideration of show cause event
(1)  On becoming aware of the happening of a show cause event in relation to an applicant or holder, the appropriate Council must investigate and determine within the required period whether the applicant or holder is a fit and proper person to hold a local practising certificate.
(2)  The appropriate Council must within 28 days of becoming aware of the happening of the show cause event give notice in writing to the applicant or holder:
(a)  if the Council has not received a statement under section 66 or 67 in relation to the show cause event, requiring the applicant or holder to provide the required statement, and
(b)  informing the applicant or holder that a determination in relation to the matter is required to be made under this Division, and
(c)  informing the applicant or holder of the required period under this section in relation to the determination of the matter and that the applicant or holder will be notified of any extension of that period, and
(d)  informing the applicant or holder of the effect of the automatic suspension provisions in section 70 in the event of the matter not being determined by the Council or the Commissioner within the required period.
(3)  The appropriate Council must determine the matter by:
(a)  deciding that the applicant or holder is a fit and proper person to hold a local practising certificate, or
(b)  deciding that the applicant or holder is not a fit and proper person to hold a local practising certificate, or
(c)  deciding that the applicant or holder is a fit and proper person to hold a local practising certificate but that it is appropriate to impose conditions on the applicant’s or holder’s local practising certificate for a specified period.
(4)  In investigating and determining a matter under this section the appropriate Council:
(a)  is not limited to investigating and making its determination on the basis of just the show cause event concerned, and
(b)  must have regard to the facts and circumstances that surround, arise in connection with, relate to or give rise to the show cause event concerned.
(5)  For the purposes of this section, the required period within which the matter must be determined is the period of 3 months (or 4 months if the Commissioner decides in a particular case to extend the period) commencing on:
(a)  the date on which the appropriate Council receives a written statement under section 66 or 67 in relation to the show cause event, or
(b)  if the appropriate Council has not received a written statement as referred to in paragraph (a) when it gives a notice under subsection (2) to the applicant or holder, the date specified in the notice as the date of issue of the notice.
(6)  If the Commissioner extends a period under subsection (5), the Commissioner must give notice in writing to the applicant or holder concerned of the extension of the period.
(7)  The appropriate Council is not required to deal with a matter under this section if the matter has previously been the subject of investigation and determination under this section.
(8)  The appropriate Council must give the applicant or holder an information notice about a decision under subsection (3) (b) or (c). The Commissioner must give that notice if the Commissioner makes the decision in the exercise of the functions of the Council under section 71 (Commissioner taking over determination of matter).
s 68: Am 2005 No 46, Sch 2 [42]–[44].
69   Power to renew practising certificate or defer action in special circumstances
(1)  Despite any other provision of this Division, a Council may renew a holder’s local practising certificate if the end of the financial year for which the holder’s current practising certificate is in force is imminent and the Council has not made a determination under section 68 in relation to the holder.
(2)  The renewal of a practising certificate in the circumstances referred to in subsection (1) does not prevent a determination from subsequently being made and action taken under this Division to cancel or suspend the holder’s local practising certificate.
(3)  Despite any other provision of this Act, a Council required to determine a matter under section 68 in relation to a holder may, for the purpose of enabling the proper arrangement of the affairs of the holder:
(a)  renew the holder’s local practising certificate for such period, specified in the local practising certificate, as the Council considers necessary to achieve that purpose, or
(b)  defer cancelling or suspending the holder’s local practising certificate for such period as the Council considers necessary to achieve that purpose.
70   No decision in required period—suspension of practising certificate and referral to Commissioner
(1)  If the appropriate Council has not determined a matter under section 68 (Investigation and consideration of show cause event) within the required period under that section:
(a)  the Commissioner must take over the determination of the matter under that section from the Council, and
(b)  if the matter concerns the holder of a local practising certificate, the local practising certificate of the holder concerned is suspended.
Note—
Subsection (1) extends to an applicant for a local practising certificate but the rest of this section applies only to the holder of a local practising certificate that is suspended under subsection (1).
(2)  A suspension imposed by this section remains in force (unless the Tribunal orders its removal sooner) until:
(a)  the Commissioner decides that the holder is a fit and proper person to hold a local practising certificate, or
(b)  the appropriate Council has given effect to any other decision of the Commissioner as required by section 72 (Council to implement decisions under this Division).
(3)  The holder whose local practising certificate is suspended by this section may make an application to the Tribunal to remove the suspension. The decision of the Tribunal on the application is an original decision for the purposes of the Administrative Decisions Tribunal Act 1997.
(4)  When dealing with such an application, the Tribunal may make any one or more of the following orders:
(a)  an order removing the suspension on the grounds that the holder is a fit and proper person to hold a local practising certificate,
(b)  an order continuing the suspension for a specified period,
(c)  an order that specified conditions be imposed on the holder’s local practising certificate for a specified period,
(d)  an order that the appropriate Council cancel the holder’s local practising certificate on the ground that the holder is not a fit and proper person to hold a local practising certificate,
(e)  an order that the Commissioner suspend any investigation or determination of the matter pending the Tribunal’s decision on the application.
(5)  The Commissioner may investigate and determine a matter under this Division and exercise powers under this Division in relation to the matter despite a suspension under this section of the local practising certificate concerned unless the Tribunal otherwise orders under this section.
(6)  The Commissioner and a Council are to give effect to any order of the Tribunal under this section.
s 70: Am 2005 No 46, Sch 2 [45].
71   Commissioner taking over determination of matter
When the Commissioner takes over the determination of a matter under section 68 (Investigation and consideration of show cause event) from a Council:
(a)  the Council is not required to determine the matter and is to cease to deal with the matter, and
(b)  the Commissioner has and may exercise the functions of the Council to investigate and determine the matter under section 68 (Investigation and consideration of show cause event), and
(c)  the Council is to provide any assistance required by the Commissioner to investigate the matter (including copies of or access to all documents held by the Council that relate to the matter or are required for the purpose of investigating the matter).
72   Council to implement decisions under this Division
(1)  If the appropriate Council or the Commissioner decides under this Division that the applicant or holder is not a fit and proper person to hold a local practising certificate:
(a)  the Council must give effect to that decision by refusing the grant of a local practising certificate to the applicant or by immediately cancelling or suspending the holder’s local practising certificate, and
(b)  the Council may make a complaint in relation to the matter under Part 4.2, or institute proceedings in relation to the matter in the Tribunal under Part 4.8 (as if the matter had been the subject of complaint and investigation under Chapter 4).
(2)  If a Council institutes proceedings in the Tribunal as referred to in subsection (1) (b), the Council must notify the Commissioner that those proceedings have been instituted.
(3)  If the appropriate Council decides under this Division that it is appropriate to impose conditions on an applicant’s or holder’s local practising certificate, the Council must give effect to that decision by imposing those conditions.
(4)  If the Commissioner decides under this Division that it is appropriate to impose conditions on an applicant’s or holder’s local practising certificate, the Council must give effect to that decision by imposing such of those conditions as it considers to be appropriate after consultation with the Commissioner.
(5)  If the appropriate Council or the Commissioner decides under this Division that the applicant or holder is a fit and proper person to hold a local practising certificate, the Council must, subject to this Act, grant a local practising certificate to the applicant or lift any suspension of the holder’s local practising certificate.
(6)  Conditions imposed as referred to in this section must continue to be imposed for such period as the appropriate Council has decided is the period for which they should be imposed or (in the case of conditions that the Commissioner has decided it is appropriate to impose) for such period as the appropriate Council has decided is the period for which they should be imposed after consultation with the Commissioner.
(7)  The appropriate Council must not grant a local practising certificate to an applicant during any period that the Commissioner has directed under this Division that the person is not to be granted a local practising certificate.
(8)  A cancellation or suspension of or imposition of conditions on a local practising certificate takes effect when the appropriate Council gives notice in writing of it to the holder.
(9)  Despite section 60 of the Administrative Decisions Tribunal Act 1997, an application to the Tribunal for a review of a decision referred to in this section does not affect the operation of the decision under review or prevent the taking of action under this section to implement that decision.
73   Failure to comply with conditions imposed under this Division
(1)  If the holder of a local practising certificate contravenes without reasonable excuse a condition of the practising certificate imposed under this Division:
(a)  the contravention is professional misconduct, and
(b)  the appropriate Council may, by written notice given to the holder, cancel or suspend the local practising certificate.
(2)  The notice under this section must:
(a)  include an information notice about the cancellation or suspension, and
(b)  state that the holder may apply for a review of the decision of the Council under section 75.
(3)  The Council may revoke a suspension under this section at any time.
74   Restriction on making further applications
(1)  If the appropriate Council refuses to grant a local practising certificate to an applicant or cancels a holder’s local practising certificate under this Division, the Council may also decide that the applicant or holder is not entitled to apply for the grant of a local practising certificate for a specified period not exceeding 5 years.
(2)  The Commissioner may, in making a decision that an applicant or holder is not a fit and proper person to hold a local practising certificate, also decide that the applicant or holder is not entitled to apply for the grant of a local practising certificate for a specified period not exceeding 5 years.
(3)  If the Council or Commissioner makes such a decision, the decision must be included in the information notice required under section 68 (8).
(4)  A person in respect of whom a decision has been made under this section, or under a provision of a corresponding law, is not entitled to apply for the grant of a local practising certificate during the period specified in the decision.
75   Review of decisions by Tribunal
(1)  An applicant or holder who is dissatisfied with a decision of a Council or the Commissioner under this Division with respect to the applicant or holder may apply to the Tribunal for a review of the decision.
(2)  A Council must notify the Commissioner of the lodging of any application for review of a decision of the Council. The Commissioner must notify the appropriate Council of the lodging of any application for review of a decision of the Commissioner.
(3)  In proceedings on a review by the Tribunal of a decision under this Division in which the question of whether a person is a fit and proper person to hold a local practising certificate is at issue:
(a)  the onus of establishing that a person is a fit and proper person to hold a local practising certificate is on the person asserting that fact, and
(b)  it is to be presumed in the absence of evidence to the contrary that any statement of facts in the reasons of a Council or Commissioner for the decision concerned is a correct statement of the facts in the matter, and
(c)  a certificate of conviction of an offence (being a certificate referred to in section 178 (Convictions, acquittals and other judicial proceedings) of the Evidence Act 1995) is admissible in the proceedings and is evidence of the commission of the offence by the person to whom it relates, and
(d)  a document that appears to be a document issued for the purposes of or in connection with any application, proceedings or other matter arising under the Bankruptcy Act 1966 of the Commonwealth is admissible in the proceedings and is evidence of the matters stated in the document.
(4)  The Tribunal may make any order it considers appropriate on a review under this section, including any of the following orders:
(a)  an order directing the appropriate Council to grant, or to refuse to grant, an application for a local practising certificate,
(b)  an order directing the appropriate Council to cancel or suspend for a specified period a local practising certificate, or to reinstate a local practising certificate that has been cancelled or suspended,
(c)  an order that an applicant or holder is not entitled to apply for the grant of a local practising certificate for a specified period not exceeding 5 years,
(d)  an order directing the appropriate Council to impose conditions on a local practising certificate for a specified period, or to vary or revoke conditions imposed by the appropriate Council or to vary the period for which they are required to be imposed.
(5)  The Tribunal may not order the imposition of conditions on a local practising certificate without first taking submissions from the appropriate Council as to the appropriateness of the proposed conditions.
(6)  The appropriate Council is to give effect to any order of the Tribunal under this section.
Note—
Reviews are carried out under Chapter 5 of the Administrative Decisions Tribunal Act 1997. Section 729A modifies the operation of that Act. An appeal lies to the Supreme Court under section 729A against a decision of the Administrative Decisions Tribunal.
s 75, note: Ins 2005 No 46, Sch 2 [46].
76   Parties to Tribunal proceedings
(1)  The following persons are entitled to appear at a hearing conducted by the Tribunal on a review under section 75 (Review of decisions by Tribunal):
(a)  the applicant or holder who applied for the review,
(b)  the relevant Council,
(c)  the Commissioner,
(d)  the Attorney General.
(2)  The Tribunal may grant leave to any other person to appear at the hearing if satisfied that it is appropriate for that person to appear at the hearing.
(3)  Despite section 71 of the Administrative Decisions Tribunal Act 1997, a person who is entitled to appear at the hearing or who is granted leave to appear at the hearing may appear personally or be represented by an Australian legal practitioner or (with the leave of the Tribunal) by any other person.
(4)  Any person who appears at a hearing (otherwise than as a witness) is taken to be a party to the proceedings concerned.
77   Relationship of this Division with Chapters 4 and 6
(1)  The provisions of Part 4.4 (Investigation of complaints), and the provisions of Chapter 6 (Provisions relating to investigations) that are relevant to Part 4.4, apply, with any necessary adaptations, in relation to a matter under this Division, as if the matter were the subject of a complaint under Chapter 4.
(2)  Nothing in this Division prevents a complaint from being made under Chapter 4 about a matter to which this Division relates.
s 77: Am 2005 No 46, Sch 2 [47].
Division 8 Further provisions relating to local practising certificates
78   Immediate suspension of local practising certificate
(1)  This section applies, despite Divisions 6 and 7, if the appropriate Council considers it necessary in the public interest to immediately suspend a local practising certificate on:
(a)  any of the grounds on which the certificate could be suspended or cancelled under Division 6, or
(b)  the ground of the happening of a show cause event (within the meaning of Division 7) in relation to the holder, or
(c)  any other ground that the Council considers warrants suspension of the local practising certificate in the public interest,
whether or not any action has been taken or commenced under Division 6 or 7 in relation to the holder.
(2)  The Council may, by written notice given to the holder, immediately suspend the practising certificate until the earlier of the following:
(a)  the time at which the Council informs the holder of the Council’s decision by notice under section 61 (Amending, suspending or cancelling local practising certificate),
(b)  the end of the period of 56 days after the notice is given to the holder under this section.
(3)  The notice under this section must:
(a)  include an information notice about the suspension, and
(b)  state that the practitioner may make written representations to the Council about the suspension, and
(c)  state that the person may appeal against the suspension under section 108 (Appeal against certain decisions of Councils).
(4)  The holder may make written representations to the Council about the suspension, and the Council must consider the representations.
(5)  The Council may revoke the suspension at any time, whether or not in response to any written representations made to it by the holder.
(6)  Nothing in this section prevents a Council from making a complaint under Chapter 4 about a matter to which this section relates. The suspension of a local practising certificate under this section does not affect any disciplinary processes in respect of matters arising before the suspension.
79   Surrender of local practising certificate
The regulations may make provision for or with respect to:
(a)  the surrender of a local practising certificate (and, if appropriate, the grant or issue of another certificate), and
(b)  the cancellation of a surrendered certificate, and
(c)  the refund of a fee or portion of a fee paid in respect of a surrendered certificate.
s 79: Subst 2005 No 46, Sch 2 [48].
80   Return of local practising certificate
(1)  This section applies if a local practising certificate granted to an Australian legal practitioner:
(a)  is amended, suspended or cancelled by the appropriate Council, or
(b)  is replaced by another certificate.
(2)  The appropriate Council may give the practitioner a notice requiring the practitioner to return the certificate to the Council in the way specified in the notice within a specified period of not less than 14 days.
(3)  The practitioner must comply with the notice, unless the practitioner has a reasonable excuse.
Maximum penalty: 20 penalty units.
(4)  The Council must return the practising certificate to the practitioner as soon as practicable:
(a)  if the certificate is amended—after amending it, or
(b)  if the certificate is suspended and is still current at the end of the suspension period—at the end of the suspension period.
Division 9 Practice as a barrister or solicitor
81   Practice as a barrister
(1)  Practice as a barrister is subject to the barristers rules.
(2)  Practice as a barrister is not subject to any other rules, practice guidelines or rulings of the Bar Association or Bar Council.
82   Practice as a solicitor
(1)  Practice as a solicitor is subject to the solicitors rules.
(2)  Practice as a solicitor is not subject to any other rules, practice guidelines or rulings of the Law Society or Law Society Council.
83   Client access
(1) Barristers Barristers may accept any clients, subject to the barristers rules and the conditions of any relevant practising certificate.
(2) Solicitors Solicitors may accept any clients, subject to the solicitors rules and the conditions of any relevant practising certificate.
(3) Contracts A barrister or solicitor may enter into a contract for the provision of services with a client or with another legal practitioner. The barrister or solicitor may accordingly sue and be sued in relation to the contract.
(4) Barristers contracts A barrister may enter into a contract with a client even though the barrister has accepted a brief from a solicitor in the matter.
(5) Immunity Nothing in this section affects any law relating to immunity to suit in relation to advocacy.
84   Advertising
(1)  A barrister or solicitor may advertise in any way the barrister or solicitor thinks fit, subject to any regulations under section 85.
(2)  However, an advertisement must not be of a kind that is or that might reasonably be regarded as:
(a)  false, misleading or deceptive, or
(b)  in contravention of the Trade Practices Act 1974 of the Commonwealth, the Fair Trading Act 1987 or any similar legislation.
(3)  A contravention by a barrister or solicitor of subsection (2) is capable of being professional misconduct or unsatisfactory professional conduct, whether or not the barrister or solicitor is convicted of an offence in relation to the contravention.
85   Regulation of advertising and other marketing of services
(1)  The regulations may make provision for or with respect to regulating or prohibiting conduct by any person that relates to the marketing of legal services, including (without limitation) regulating or prohibiting any of the following:
(a)  advertising by a barrister or solicitor,
(b)  advertising by any person for or on behalf of a barrister or solicitor,
(c)  advertising by any person in connection with the provision of legal services,
(d)  advertising by any person of services connected with personal injury.
(2)  The regulations under this section may create an offence punishable by a penalty not exceeding 100 penalty units.
(3)  The Attorney General may direct a person in writing not to engage in conduct described in the direction if the Attorney General is satisfied that:
(a)  the conduct contravenes the regulations under this section, and
(b)  the person has been engaging in conduct of that or a similar kind.
(4)  The Tribunal may, on application made under subsection (5), direct a barrister or solicitor not to engage in conduct if the Tribunal is satisfied that:
(a)  the conduct contravenes the regulations under section 142 of the Workplace Injury Management and Workers Compensation Act 1998, and
(b)  the barrister or solicitor has been engaging in conduct of that or a similar kind.
(5)  An application made to the Tribunal may be made under this section by the appropriate Council or the Commissioner.
(6)  The Tribunal cannot deal with an application for a direction with respect to conduct that is the subject of a direction by the Attorney General under this section or by the appropriate Minister under section 142 of the Workplace Injury Management and Workers Compensation Act 1998. Any such ministerial direction may be given with respect to any conduct even if proceedings are pending before, or have been dealt with by, the Tribunal with respect to the conduct.
(7)  The following applies in connection with proceedings before the Tribunal under this section:
(a)  the parties to the proceedings are the applicant and the person to whom the direction is proposed to be given,
(b)  the matter is to be allocated to the Legal Services Division of the Tribunal,
(c)  the Tribunal is to conduct an initial ex parte hearing for the purpose of determining whether to issue a direction pending the final determination of the matter.
(8)  A person who contravenes a direction under this section is guilty of an offence.
Maximum penalty: 100 penalty units.
(9)  A contravention by a barrister or solicitor:
(a)  of a direction under this section or under section 142 of the Workplace Injury Management and Workers Compensation Act 1998 is professional misconduct, or
(b)  of a regulation under this section (or under section 142 of that Act) is professional misconduct, but only if the regulation declares that the contravention is professional misconduct.
(10)  The Attorney General is not required, before giving a direction under this section, to notify the person to whom the direction is given or any other person who may be affected by the direction.
(11)  A direction under this section may be amended or revoked.
(12)  Payments are to be made from the Public Purpose Fund for the purposes of meeting the costs and expenses of a Council or the Commissioner in exercising functions under this section (including the prosecution of offences under this section).
(13)  In this section:
personal injury includes pre-natal injury, impairment of a person’s physical or mental condition or a disease.
86   Specialisation
(1)  A barrister or solicitor must not advertise or hold himself or herself out as being a specialist or as offering specialist services, unless the barrister or solicitor:
(a)  has appropriate expertise and experience, or
(b)  is appropriately accredited under an accreditation scheme conducted or approved by the Bar Council or Law Society Council.
(2)  The Bar Council or Law Society Council is required to approve an accreditation scheme if directed to do so by the Attorney General.
87   Advocates
(1)  Barristers and solicitors may act as advocates.
(2)  Barristers and solicitors may appear, and have a right of audience, in any court as advocates.
(3)  Joint rules may be made about ethical rules to be observed by barristers and solicitors in the practice of advocacy.
88   Joint advocates
(1)  In any proceedings, one or more barristers and one or more solicitors may appear together as advocates.
(2)  The appearance together as advocates of a barrister and solicitor may be regulated by joint rules, but not by legal profession rules made by one Council only.
89   Attendance
(1)  There is no rule or practice that prevents a barrister from attending on another barrister or solicitor or a solicitor from attending on another solicitor or barrister.
(2)  Nothing in this section prevents arrangements being made between individual Australian legal practitioners with regard to attendance on each other.
90   Prohibition of official schemes for recognition of seniority or status
(1)  Any prerogative right or power of the Crown to appoint persons as Queen’s Counsel or to grant letters patent of precedence to counsel remains abrogated.
(2)  Nothing in this section affects the appointment of a person who was appointed as Queen’s Counsel before the commencement of this section.
(3)  Nothing in this section abrogates any prerogative right or power of the Crown to revoke such an appointment.
(4)  No law or practice prevents a person who was Queen’s Counsel immediately before the commencement of this section from continuing to be Queen’s Counsel while a barrister or solicitor.
(5)  Executive or judicial officers of the State have no authority to conduct a scheme for the recognition or assignment of seniority or status among legal practitioners.
(6)  Nothing in subsection (5) prevents the publication of a list of legal practitioners in the order of the dates of their admission, or a list of barristers or solicitors in the order of the dates of their becoming barristers or solicitors, or a list of Queen’s Counsel in their order of seniority.
(7)  In this section:
executive or judicial officers includes the Governor, Ministers of the Crown, Parliamentary Secretaries, statutory office holders, persons employed in the Public Service or by the State, an authority of the State or another public employer, and also includes judicial office holders or persons acting under the direction of the Chief Justice of New South Wales or other judicial office holder.
Queen’s Counsel means one of Her Majesty’s Counsel learned in the law for the State of New South Wales and extends to King’s Counsel where appropriate.
Division 10 Fees for practising certificates
91   Fee for practising certificate
(1)  A fee is payable for the grant or renewal of a local practising certificate of such amount as is determined by the appropriate Council and approved by the Attorney General.
(2)  A Council may determine different practising certificate fees according to such different factors as are specified in the determination and approved by the Attorney General.
(3)  A Council may waive payment of the practising certificate fee or any part of the fee.
(4)  Subject to the regulations (if any), a Council is to determine the practising certificate fee on a cost recovery basis, with the fee being such amount as is required from time to time for the purpose of recovering the costs of or associated with the regulatory functions of the Council or of the Bar Association or Law Society, as the case requires.
(5)  The regulatory functions of a Council, the Bar Association or the Law Society are its functions under this Act, and any other functions it exercises that are associated with the regulation of legal practice or maintaining professional standards of legal practice.
(6)  The practising certificate fee is not to include any charge for membership of the Bar Association or Law Society and is not to include any amount that is required for the purpose of recovering any costs of or associated with providing services or benefits to which local legal practitioners become entitled as members of the Bar Association or Law Society.
(7)  In addition, in determining the practising certificate fee, a Council must exclude costs that are otherwise recoverable under this Act (for example, costs payable from the Public Purpose Fund under this Act).
(8)  The regulations may make provision for or with respect to the determination of practising certificate fees, including by specifying the costs that may or may not be recovered by the charging of practising certificate fees.
(9)  In this section:
costs includes expenses.
92   Late fee
(1)  This section applies if an application for a local practising certificate is made during the late fee period.
(2)  Payment of a late fee prescribed by or determined under the regulations may, if the Council thinks fit, be required as a condition of acceptance of the application.
s 92: Subst 2005 No 46, Sch 2 [49].
92A   Late fee for certain applications for new practising certificates
(1)  This section applies if an application for the grant of a local practising certificate to have effect during a financial year is made to a Council by a person who was the holder of a local practising certificate granted by the Council in respect of the previous financial year.
(2)  Payment of an additional fee prescribed by or determined under the regulations may, if the Council thinks fit, be required as a condition of acceptance of the application.
s 92A: Ins 2005 No 46, Sch 2 [50].
93   (Repealed)
s 93: Rep 2005 No 46, Sch 2 [51].
94   Submission of budget to Attorney General
(1)  The Attorney General may from time to time require a Council to prepare and submit a budget to the Attorney General, in respect of such period as the Attorney General directs, relating to any costs (or projected costs) that are recoverable (or are proposed to be recovered) by the charging of a practising certificate fee.
(2)  The budget is to include such information as the Attorney General directs. In particular, the Attorney General may require the provision of information about the administration of the Council (including the Bar Association and the Law Society).
(3)  The Attorney General may refuse to approve the amount of a practising certificate fee under section 91 (Fee for practising certificate) if the Council has failed to submit a budget as required under this section.
(4)  In this section:
costs includes expenses.
95   Audit of Council activities
(1)  The Attorney General may appoint an appropriately qualified person to conduct an audit of all or any particular activities of a Council for the purpose of determining the following:
(a)  whether any activities the costs of which are recoverable, or are proposed to be recovered, by the charging of a practising certificate fee are being carried out economically and efficiently and in accordance with the relevant laws,
(b)  whether practising certificate fees are being expended for the purpose of defraying the costs in respect of which the fees are charged.
(2)  A Council is to provide all reasonable assistance to the person appointed to conduct the audit.
(3)  The person appointed to conduct the audit is to report to the Attorney General on the result of the audit.
(4)  An audit may be conducted under this section whenever the Attorney General considers it appropriate.
(5)  In this section:
audit includes an examination and inspection.
costs includes expenses.
Council includes the Bar Association and the Law Society.
Division 11 Interstate legal practitioners
96, 97   (Repealed)
s 96: Rep 2005 No 46, Sch 2 [52].
s 97: Rep 2005 No 46, Sch 2 [52].
98   Professional indemnity insurance
An interstate legal practitioner must not engage in legal practice in this jurisdiction or advertise that the practitioner is entitled to engage in legal practice in this jurisdiction, unless the practitioner:
(a)  is covered by professional indemnity insurance that:
(i)  covers legal practice in this jurisdiction, and
(ii)  complies with the requirements prescribed under the regulations, being requirements that are no more onerous than the requirements under section 403 or 406, or
(b)  is employed by a corporation or by a prescribed body, other than an incorporated legal practice, and the only legal services provided by the practitioner in this jurisdiction are in-house legal services.
Maximum penalty: 100 penalty units.
s 98: Subst 2005 No 46, Sch 2 [53].
99   (Repealed)
s 99: Rep 2005 No 46, Sch 2 [53].
100   Extent of entitlement of interstate legal practitioner to practise in this jurisdiction
(1)  This Division does not authorise an interstate legal practitioner to engage in legal practice in this jurisdiction to a greater extent than a local legal practitioner could be authorised under a local practising certificate.
(2)  Also, an interstate legal practitioner’s right to engage in legal practice in this jurisdiction:
(a)  is subject to:
(i)  any conditions imposed by the appropriate Council under section 101 (Additional conditions on practice of interstate legal practitioners), and
(ii)  any conditions imposed by or under the legal profession rules as referred to in that section, and
(b)  is, to the greatest practicable extent and with all necessary changes:
(i)  the same as the practitioner’s right to engage in legal practice in the practitioner’s home jurisdiction, and
(ii)  subject to any condition on the practitioner’s right to engage in legal practice in that jurisdiction, including any conditions imposed on his or her admission to the legal profession in this or another jurisdiction.
(3)  If there is an inconsistency between conditions mentioned in subsection (2) (a) and conditions mentioned in subsection (2) (b), the conditions that are, in the opinion of the appropriate Council, more onerous prevail to the extent of the inconsistency.
(4)  An interstate lawyer must not engage in legal practice in this jurisdiction in a manner not authorised by this Act or in contravention of any condition referred to in this section.
(5)    (Repealed)
s 100: Am 2005 No 46, Sch 2 [54].
101   Additional conditions on practice of interstate legal practitioners
(1)  The appropriate Council may, by written notice to an interstate legal practitioner engaged in legal practice in this jurisdiction, impose any condition on the practitioner’s practice that it may impose under this Act on a local practising certificate.
(2)  Also, an interstate legal practitioner’s right to engage in legal practice in this jurisdiction is subject to any condition imposed by or under an applicable legal profession rule.
(3)  Conditions imposed under or referred to in this section must not be more onerous than conditions applying to local legal practitioners.
(4)  A notice under this section must include an information notice about the decision to impose a condition.
102   Special provisions about interstate legal practitioner engaging in unsupervised legal practice in this jurisdiction
An interstate legal practitioner must not engage in unsupervised legal practice in this jurisdiction unless:
(a)  if the practitioner completed practical legal training principally under the supervision of an Australian lawyer, whether involving articles of clerkship or otherwise, to qualify for admission to the legal profession in this or another jurisdiction—the practitioner has undertaken a period or periods equivalent to 18 months’ supervised legal practice, worked out under relevant regulations, after the day the practitioner’s first practising certificate was granted, or
(b)  if the practitioner completed other practical legal training to qualify for admission to the legal profession in this or another jurisdiction—the practitioner has undertaken a period or periods equivalent to 2 years’ supervised legal practice, worked out under relevant regulations, after the day the practitioner’s first practising certificate was granted.
103   Interstate legal practitioner is officer of Supreme Court
An interstate legal practitioner engaged in legal practice in this jurisdiction has all the duties and obligations of an officer of the Supreme Court, and is subject to the jurisdiction and powers of the Supreme Court in respect of those duties and obligations.
Division 12 Miscellaneous
104   Protocols
(1)  The Councils separately or jointly may enter into arrangements (referred to in this Division as protocols) with regulatory authorities of other jurisdictions about determining:
(a)  the jurisdiction from which an Australian lawyer engages in legal practice principally or can reasonably expect to engage in legal practice principally, or
(b)  the circumstances in which an arrangement under which an Australian legal practitioner practises in a jurisdiction:
(i)  can be regarded as being of a temporary nature, or
(ii)  ceases to be of a temporary nature, or
(c)  the circumstances in which an Australian legal practitioner can reasonably expect to engage in legal practice principally in a jurisdiction during the currency of an Australian practising certificate.
(2)  For the purposes of this Act, and to the extent that the protocols are relevant, a matter referred to in subsection (1) (a), (b) or (c) is to be determined in accordance with the protocols.
(3)  The Councils may enter into arrangements that amend, revoke or replace a protocol.
(4)  A protocol does not have effect in this jurisdiction unless it is embodied or identified in the regulations.
105   Consideration and investigation of applicants or holders
(1)  To help it consider whether or not to grant, renew, suspend or cancel a local practising certificate, or impose conditions on a local practising certificate, a Council may, by notice to the applicant or holder, require the applicant or holder:
(a)  to give it specified documents or information, or
(b)  to be medically examined by a medical practitioner nominated by the Council, or
(c)  to co-operate with any inquiries by the authority that it considers appropriate.
(2)  A failure to comply with a notice under subsection (1) by the date specified in the notice and in the way required by the notice is a ground for making an adverse decision in relation to the action being considered by the Council.
(3)  Without limiting subsection (2), a failure to comply with a requirement for medical examination may be accepted by the Council as evidence of the unfitness of the person to engage in legal practice.
106   Register of local practising certificates
(1)  A Council must keep a register of the names of Australian lawyers to whom it grants local practising certificates.
(2)  The regulations may make provision for or with respect to the following:
(a)  the information that may be included in the register,
(b)  the information that must be included in the register,
(c)  the notification by local legal practitioners to the appropriate Council of changes of particulars,
(d)  the notification by the Council to other authorities of particulars contained in the register,
(e)  the removal of information from the register relating to former holders of certificates.
(3)  The register must state the conditions (if any) imposed on a local practising certificate in relation to engaging in legal practice.
(4)  A condition imposed on a local practising certificate relating to infirmity, injury or mental or physical illness is not to be stated on the register unless:
(a)  the condition restricts the holder’s right to engage in legal practice, or
(b)  the holder consents to the condition being stated on the register.
(5)  The register may be kept in the way the Council decides.
(6)  The Council may publish, in circumstances that it considers appropriate, the names of persons kept on the register and any other information included in the register concerning those persons.
(7)  The register must be available for inspection, without charge, at the Council’s office during normal business hours.
s 106: Am 2005 No 46, Sch 2 [55].
107   Orders or injunctions
(1)  The Commissioner or a Council may apply to the Supreme Court for an order or injunction that a local legal practitioner not contravene a condition imposed under this Part.
(2)  The Commissioner or a Council may apply to the Supreme Court for an order or injunction that an interstate legal practitioner not contravene a requirement of section 100 (4) (Extent of entitlement of interstate legal practitioner to practise in this jurisdiction).
(3)  No undertaking as to damages or costs is required.
(4)  The Supreme Court may grant an order or injunction on such terms as it considers appropriate, and make any order it considers appropriate, on the application.
(5)  This section does not affect the generality of section 720 (Injunctions).
108   Appeal against certain decisions of Councils
(1)  A person who is dissatisfied with any of the following decisions of a Council may appeal to the Supreme Court against the decision:
(a)  a decision to refuse to grant or renew a local practising certificate, or
(b)  a decision to amend, suspend or cancel a local practising certificate.
(2)  The Supreme Court may make such order in the matter as it thinks fit.
(3)  Except to the extent (if any) that may be ordered by the Supreme Court, the lodging of an appeal does not stay the effect of the refusal, cancellation, amendment or suspension appealed against.
(4)  This section does not apply to a decision under Division 7.
109   Attorney General
The Attorney General, while admitted to the legal profession in this or any other jurisdiction, is entitled to an unconditional practising certificate. The Attorney General may elect to hold a practising certificate as a barrister or as a solicitor.
110   Crown Solicitor
(1)  The Crown Solicitor may, in his or her official capacity, act as solicitor for:
(a)  the State of New South Wales, or
(b)  a person suing or being sued on behalf of the State of New South Wales, or
(c)  a Minister of the Crown in his or her official capacity as such a Minister, or
(d)  a body established by an Act or other law of New South Wales, or
(e)  an officer or employee of the Public Service or any other service of the State of New South Wales or of a body established by an Act or other law of New South Wales, or
(f)  a person holding office under an Act or other law of New South Wales or because of the person’s appointment to that office by the Governor or a Minister of the Crown, or
(g)  any other person or body, or any other class of persons or bodies, approved by the Attorney General.
(2)  The Crown Solicitor may act under subsection (1):
(a)  with or without charge, or
(b)  for a party in a matter that is not the subject of litigation, even if also acting under that subsection for another party in the matter.
(3)  The Crown Solicitor may, in his or her official capacity, act as agent for:
(a)  another State or a Territory, or
(b)  at the request of another State or a Territory—an instrumentality of, or a person in the service of, that State or Territory.
(4)  If, under subsection (1) (g), the Crown Solicitor is given approval to act as solicitor for a Minister of the Crown (otherwise than in his or her official capacity as such a Minister), the following must be included in the annual report under the Annual Reports (Departments) Act 1985 of the Crown Solicitor’s activities:
(a)  the name of the Minister,
(b)  the matter in which the Crown Solicitor acted (but without disclosure of any confidential client information),
(c)  the costs incurred by the Crown Solicitor in acting for the Minister and the amount charged to the Minister for so acting.
(5)  In this section, a reference to a State or a Territory includes a reference to the Crown in right of the State or Territory and to the Government of the State or Territory.
111   Government and other lawyers—exemption from certain conditions
(1)  This section applies to each of the following persons:
(a)  a local legal practitioner who is the holder of a statutory position under the Crown (whether in the right of this jurisdiction or in another right),
(b)  a local legal practitioner who acts as parliamentary counsel under a contract of service, or contract for services, with the Crown (whether in the right of this jurisdiction or in another right),
(c)  a local legal practitioner who is, or is a member of a class or description of local legal practitioners, specified by the appropriate Council for the purposes of this subsection,
(d)  a local legal practitioner who is, or is a member of a class or description of local legal practitioners, specified by the regulations for the purposes of this subsection,
while the person is a local legal practitioner to whom at least one of the paragraphs of this subsection applies.
(2)  The local practising certificate of a person to whom this section applies is not subject to conditions of the kind referred to in section 50 (3) (a), (b) and (d) (Conditions imposed by Council) or 56 (1) (Additional conditions on practising certificates of barristers), other than a condition relating to continuing legal education.
112   Government lawyers—exemption from certain provisions
(1)  Nothing in Division 9 (Practice as a barrister or solicitor) affects:
(a)  practice as a barrister as the holder of a statutory office under the Crown (whether in right of New South Wales or in another right), or
(b)  practice as parliamentary counsel under a contract of service, or contract for services, with the Crown (whether in right of New South Wales or in another right).
(2)  This section does not limit the operation of section 114 (Government lawyers of other jurisdictions).
113   Government lawyers—imposition of additional conditions
Without limiting section 50 (Conditions imposed by Council), the Bar Council may under that section impose conditions of the following kinds on the local practising certificate of a barrister:
(a)  a condition limiting the holder to practising as a barrister as the holder of a statutory office under the Crown (whether in right of New South Wales or in another right),
(b)  a condition limiting the holder to practising as a barrister in any other office under a contract of service, or contract for services, with the Crown (whether in right of New South Wales or in another right),
(c)  a condition limiting the holder to practising as parliamentary counsel under a contract of service, or contract for services, with the Crown (whether in right of New South Wales or in another right).
114   Government lawyers of other jurisdictions
(1)  A government employee of another jurisdiction is not subject to:
(a)  any prohibition under this Act about:
(i)  engaging in legal practice in this jurisdiction, or
(ii)  making representations about engaging in legal practice in this jurisdiction, or
(b)  conditions imposed on a local practising certificate, or
(c)  requirements of legal profession rules, or
(d)  professional discipline,
in respect of the performance of his or her official duties or functions as a government employee of the other jurisdiction to the extent that he or she is exempt from matters of the same kind under a law of the other jurisdiction.
(2)  Contributions and levies are not payable to the Fidelity Fund by or in respect of a government employee of another jurisdiction in his or her capacity as a government employee.
(2A)  Without affecting the generality of subsection (1), that subsection extends to prohibitions under section 98 relating to professional indemnity insurance.
(3)  Without affecting subsections (1), (2) and (2A), nothing in this section prevents a government employee of another jurisdiction from being granted or holding a local practising certificate.
(4)  In this section:
another jurisdiction means:
(a)  another State or Territory of the Commonwealth, or
(b)  the Commonwealth.
government agency of another jurisdiction means:
(a)  a government department of that jurisdiction, or
(b)  a body or organisation that is established by or under the law of that jurisdiction 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 this definition.
government employee means an employee of a government agency of another jurisdiction.
s 114: Am 2005 No 46, Sch 2 [56] [57].
115   Non-compellability of certain witnesses
(1)  A person referred to in section 601 (Protection from liability) is not compellable in any legal proceedings to give evidence or produce documents in respect of any matter in which the person was involved in the course of the administration of this Part.
(2)  This section does not apply to:
(a)  proceedings under Part 3 of the Royal Commissions Act 1923, or
(b)  proceedings before the Independent Commission Against Corruption, or
(c)  a hearing under the Special Commissions of Inquiry Act 1983, or
(d)  an inquiry under the Ombudsman Act 1974.
Part 2.5 Inter-jurisdictional provisions regarding admission and practising certificates
Division 1 Preliminary
116   Purpose
The purpose of this Part is to provide a nationally consistent scheme for the notification of and response to action taken by courts and other authorities in relation to the admission of persons to the legal profession and their right to engage in legal practice in Australia.
117   Definition
In this Part:
foreign regulatory action taken in relation to a person means:
(a)  removal of the person’s name from a foreign roll for disciplinary reasons, or
(b)  suspension or cancellation of, or refusal to renew, the person’s right to engage in legal practice in a foreign country.
118   Other requirements not affected
Powers and duties under this Part are additional to those under Chapter 4 (Complaints and discipline) or any other Chapter of this Act.
Division 2 Notifications to be given by local authorities to interstate authorities
119   Official notification to other jurisdictions of applications for admission and associated matters
(1)  This section applies if an application for admission to the legal profession is made under this Act.
(2)  The Admission Board may give the corresponding authority for another jurisdiction written notice of any of the following (as relevant):
(a)  the making of the application,
(b)  the withdrawal of the application,
(c)  the refusal to issue a compliance certificate in relation to the application.
(3)  The notice must state the applicant’s name and address as last known to the Admission Board and may contain other relevant information.
120   Official notification to other jurisdictions of removals from local roll
(1)  This section applies if a local lawyer’s name is removed from the local roll, except where the removal occurs under section 126 (Peremptory removal of local lawyer’s name from local roll following removal in another jurisdiction).
(2)  The Prothonotary must, as soon as practicable, give written notice of the removal to:
(a)  the corresponding authority of every other jurisdiction, and
(b)  the registrar or other proper officer of the High Court.
(3)  The notice must state:
(a)  the lawyer’s name and address as last known to the Prothonotary, and
(b)  the date the lawyer’s name was removed from the roll, and
(c)  the reason for removing the lawyer’s name,
and may contain other relevant information.
121   Council to notify other jurisdictions of certain matters
(1)  If:
(a)  the appropriate Council takes any of the following actions:
(i)  refuses to grant an Australian lawyer a local practising certificate,
(ii)  suspends, cancels or refuses to renew an Australian lawyer’s local practising certificate, or
(b)  the lawyer successfully appeals against the action taken,
the Council must, as soon as practicable, give the corresponding authorities of other jurisdictions written notice of the action taken or the result of the appeal.
(2)  The notice must state:
(a)  the lawyer’s name and address as last known to the Council, and
(b)  particulars of:
(i)  the action taken and the reasons for it, or
(ii)  the result of the appeal,
and may contain other relevant information.
(3)  The appropriate Council may give corresponding authorities written notice of a condition imposed on an Australian lawyer’s local practising certificate.
Division 3 Notifications to be given by lawyers to local authorities
122   Lawyer to give notice of removal of name from interstate roll
(1)  If a local lawyer’s name has been removed from an interstate roll, the lawyer must, as soon as practicable, give the Prothonotary a written notice of the removal.
Maximum penalty: 50 penalty units.
(2)  If a local legal practitioner’s name has been removed from an interstate roll, the practitioner must, as soon as practicable, give the appropriate Council a written notice of the removal.
Maximum penalty: 50 penalty units.
(3)  This section does not apply where the name has been removed from an interstate roll under a provision that corresponds to section 126 (Peremptory removal of local lawyer’s name from local roll following removal in another jurisdiction).
123   Lawyer to give notice of interstate orders
(1)  If an order is made under a corresponding law recommending that the name of a local lawyer be removed from the local roll, the lawyer must, as soon as practicable, give the Prothonotary written notice of the order.
Maximum penalty: 50 penalty units.
Note—
Chapter 4 requires the Supreme Court to order removal of the local lawyer’s name from the local roll in these circumstances.
(2)  If an order is made under a corresponding law in relation to a local legal practitioner that:
(a)  the practitioner’s local practising certificate be suspended or cancelled, or
(b)  a local practising certificate not be granted to the practitioner for a period, or
(c)  an order that conditions be imposed on the practitioner’s local practising certificate,
the person must, as soon as practicable, give the appropriate Council written notice of the order.
Maximum penalty: 50 penalty units.
Note—
Chapter 4 requires the appropriate Council to give effect to orders made under corresponding laws.
124   Lawyer to give notice of foreign regulatory action
(1)  If foreign regulatory action has been taken in relation to a local lawyer, the lawyer must, as soon as practicable, give the Prothonotary a written notice of the action taken.
Maximum penalty: 50 penalty units.
(2)  If foreign regulatory action has been taken in relation to a local legal practitioner, the practitioner must, as soon as practicable, give the appropriate Council a written notice of the action taken.
Maximum penalty: 50 penalty units.
125   Provisions relating to requirement to notify
(1)  A notice to be given under this Division by a local lawyer or local legal practitioner must:
(a)  state his or her name and address, and
(b)  identify the interstate roll from which his or her name has been removed, or describe the order made (as referred to in section 123) or the foreign regulatory action taken, and
(c)  state the date of the removal or the date the order was made or the action was taken, and
(d)  be accompanied by a copy of any official notification provided to him or her in connection with the removal or the order made or action taken.
(2)    (Repealed)
s 125: Am 2005 No 46, Sch 2 [58].
Division 4 Taking of action by local authorities in response to notifications received
126   Peremptory removal of local lawyer’s name from local roll following removal in another jurisdiction
(1)  This section applies if the Prothonotary is satisfied that:
(a)  a local lawyer’s name has been removed from an interstate roll, and
(b)  no order referred to in section 130 (1) (a) (Order for non-removal of name or non-cancellation of local practising certificate) is, at the time of that removal, in force in relation to it.
(2)  The Prothonotary must remove the lawyer’s name from the local roll.
(3)  The Prothonotary may, but need not, give the lawyer notice of the date on which the Prothonotary proposes to remove the name from the local roll.
(4)  The Prothonotary must, as soon as practicable, give the former local lawyer notice of the removal of the name from the local roll, unless notice of the date of the proposed removal was previously given.
(5)  The name of the former local lawyer is, on his or her application to the Prothonotary or on the Prothonotary’s own initiative, to be restored to the local roll if the name is restored to the interstate roll.
(6)  Nothing in this section prevents the former local lawyer from afterwards applying for admission under Part 2.3 (Admission of local lawyers).
127   Peremptory cancellation of local practising certificate following removal of name from interstate roll
(1)  This section applies if:
(a)  a local legal practitioners’s name is removed from an interstate roll, and
(b)  no order referred to in section 130 (1) (b) (Order for non-removal of name or non-cancellation of local practising certificate) is, at the time of that removal, in force in relation to it.
(2)  The appropriate Council must cancel the local practising certificate as soon as practicable after receiving official written notification of the removal and may cancel the practising certificate before that time.
(3)  The Council may, but need not, give the person notice of the date on which the Council proposes to cancel the local practising certificate.
(4)  The Council must, as soon as practicable, give the person notice of the cancellation, unless notice of the date of the proposed cancellation was previously given.
(5)  Nothing in this section prevents the former local legal practitioner from afterwards applying for a local practising certificate.
128   Show cause procedure for removal of lawyer’s name from local roll following foreign regulatory action
(1)  This section applies if the appropriate authority is satisfied that:
(a)  foreign regulatory action has been taken in relation a local lawyer, and
(b)  no order referred to in section 130 (1) (a) (Order for non-removal of name or non-cancellation of local practising certificate) is, at the time of that removal, in force in relation to it.
(2)  The authority may serve on the lawyer a notice stating that the authority will apply to the Supreme Court for an order that the lawyer’s name be removed from the local roll unless the lawyer shows cause to the authority why his or her name should not be removed.
(3)  If the lawyer does not satisfy the authority that his or her name should not be removed from the local roll, the authority may apply to the Supreme Court for an order that his or her name be removed from the local roll.
(4)  Before applying for an order that the lawyer’s name be removed, the authority must afford the lawyer a reasonable opportunity to show cause why his or her name should not be removed.
(5)  The Supreme Court may, on application made under this section, order that the lawyer’s name be removed from the local roll, or may refuse to do so.
(6)  The lawyer is entitled to appear before and be heard by the Supreme Court at a hearing in respect of an application under this section.
(7)  In this section:
appropriate authority means:
(a)  if the local lawyer holds a local practising certificate—the appropriate Council, or
(b)  if the local lawyer does not hold a local practising certificate but holds an interstate practising certificate—either Council, or
(c)  if the local lawyer holds neither a local practising certificate nor an interstate practising certificate—the Law Society Council.
129   Show cause procedure for cancellation of local practising certificate following foreign regulatory action
(1)  This section applies if the appropriate Council is satisfied that:
(a)  foreign regulatory action has been taken in relation to a local legal practitioner, and
(b)  no order referred to in section 130 (1) (b) (Order for non-removal of name or non-cancellation of local practising certificate) is, at the time the action was taken, in force in relation to it.
(2)  The Council may serve on the practitioner a notice stating that the Council proposes to cancel his or her local practising certificate unless the practitioner shows cause to the Council why his or her name should not be removed.
(3)  The Council must afford the lawyer a reasonable opportunity to show cause why his or her practising certificate should not be cancelled.
(4)  If the practitioner does not satisfy the Council that the practising certificate should not be cancelled, the Council may cancel the certificate.
(5)  The practitioner may appeal to the Supreme Court against a decision of the Council to cancel the practising certificate.
(6)  The Supreme Court may make any order it considers appropriate on the appeal.
130   Order for non-removal of name or non-cancellation of local practising certificate
(1)  If an Australian lawyer reasonably expects that his or her name will be removed from an interstate roll or that foreign regulatory action will be taken against the lawyer, the lawyer may apply to the Supreme Court for:
(a)  an order that his or her name not be removed from the local roll under section 126 (Peremptory removal of local lawyer’s name from local roll following removal in another jurisdiction) or section 128 (Show cause procedure for removal of lawyer’s name from local roll following foreign regulatory action), or
(b)  an order that his or her local practising certificate not be cancelled under section 127 (Peremptory cancellation of local practising certificate following removal of name from interstate roll) or section 129 (Show cause procedure for cancellation of local practising certificate following foreign regulatory action),
or both.
(2)  The Supreme Court may make the order or orders applied for if satisfied that:
(a)  the lawyer’s name is likely to be removed from the interstate roll or the foreign regulatory action is likely to be taken, and
(b)  the reason for the removal of the name or the taking of the foreign regulatory action will not involve disciplinary action or the possibility of disciplinary action,
or may refuse to make an order.
(3)  An order under this section may be made subject to any conditions the Supreme Court considers appropriate and remains in force for the period specified in it.
(4)  The Supreme Court may revoke an order made under this section, and sections 126–129 (as relevant) then apply as if the lawyer’s name were removed from the interstate roll or the foreign regulatory action were taken when the revocation takes effect.
(5)  Nothing in this section affects action being taken in relation to the lawyer under other provisions of this Act.
131   Local authority may give information to other local authorities
A regulatory authority of this jurisdiction that receives information from a regulatory authority of another jurisdiction under provisions of a corresponding law that correspond to this Part may furnish the information to other regulatory authorities of this jurisdiction that have powers or duties under this Act.
Part 2.6 Incorporated legal practices and multi-disciplinary partnerships
Division 1 Preliminary
132   Purposes
The purposes of this Part are:
(a)  to regulate the provision of legal services by corporations in this jurisdiction, and
(b)  to regulate the provision of legal services in this jurisdiction in conjunction with the provision of other services (whether by a corporation or persons acting in partnership with each other).
133   Definitions
In this Part:
corporation means:
(a)  a company within the meaning of the Corporations Act 2001 of the Commonwealth, or
(b)  any other body corporate, or body corporate of a kind, prescribed by the regulations.
director, in relation to:
(a)  a company within the meaning of the Corporations Act 2001 of the Commonwealth—means a director as defined in section 9 of that Act, or
(b)  any other body corporate, or body corporate of a kind, prescribed by the regulations—means a person specified or described in the regulations.
legal practitioner director means a director of an incorporated legal practice who is an Australian legal practitioner holding an unrestricted practising certificate.
legal practitioner partner means a partner of a multi-disciplinary partnership who is an Australian legal practitioner holding an unrestricted practising certificate.
officer means:
(a)  in relation to a company within the meaning of the Corporations Act 2001 of the Commonwealth—an officer as defined in section 9 of that Act, or
(b)  in relation to any other body corporate, or body corporate of a kind, prescribed by the regulations—a person specified or described in the regulations.
professional obligations of an Australian legal practitioner include:
(a)  duties to the Supreme Court, and
(b)  obligations in connection with conflicts of interest, and
(c)  duties to clients, including disclosure, and
(d)  ethical rules required to be observed by the practitioner.
Regulator means:
(a)  in relation to this jurisdiction—the Commissioner, or
(b)  in relation to another jurisdiction—the person or body defined as the Regulator in relation to that jurisdiction by the corresponding law of that jurisdiction or, if there is no such definition, the corresponding authority.
related body corporate means:
(a)  in relation to a company within the meaning of the Corporations Act 2001 of the Commonwealth—a related body corporate within the meaning of section 50 of that Act, or
(b)  in relation to any other body corporate, or body corporate of a kind, prescribed by the regulations—a person specified or described in the regulations.
Division 2 Incorporated legal practices
134   Nature of incorporated legal practice
(1)  An incorporated legal practice is a corporation that engages in legal practice in this jurisdiction, whether or not it also provides services that are not legal services.
(2)  However, a corporation is not an incorporated legal practice if:
(a)  the corporation does not receive any form of, or have any expectation of, a fee, gain or reward for the legal services it provides, or
(b)  the only legal services that the corporation provides are any or all of the following services:
(i)  in-house legal services, namely, legal services provided to the corporation concerning a proceeding or transaction to which the corporation (or a related body corporate) is a party,
(ii)  services that are not legally required to be provided by an Australian legal practitioner and that are provided by an officer or employee who is not an Australian legal practitioner, or
(c)  the corporation is a complying community legal centre, or
(d)  this Division or the regulations so provide.
(3)  The regulations may make provision for or with respect to the application (with or without specified modifications) of provisions of this Act to corporations that are not incorporated legal practices because of the operation of subsection (2).
(4)  Nothing in this Division affects or applies to the provision by an incorporated legal practice of legal services in one or more other jurisdictions.
135   Non-legal services and businesses of incorporated legal practices
(1)  An incorporated legal practice may provide any service and conduct any business that the corporation may lawfully provide or conduct, except as provided by this section.
(2)  An incorporated legal practice (or a related body corporate) must not conduct a managed investment scheme.
(3)  The regulations may prohibit an incorporated legal practice (or a related body corporate) from providing a service or conducting a business of a kind specified by the regulations.
136   Corporations eligible to be incorporated legal practice
(1)  Any corporation is, subject to this Division, eligible to be an incorporated legal practice.
(2)  This section does not authorise a corporation to provide legal services if the corporation is prohibited from doing so by any Act or law (whether of this jurisdiction, the Commonwealth or any other jurisdiction) under which it is incorporated or its affairs are regulated.
(3)  An incorporated legal practice is not itself required to hold an Australian practising certificate.
137   Notice of intention to start providing legal services
(1)  Before a corporation starts to engage in legal practice in this jurisdiction, the corporation must give the Law Society written notice, in the approved form, of its intention to do so.
(2)  A corporation must not engage in legal practice in this jurisdiction if it is in default of this section.
Maximum penalty: 50 penalty units.
(3)  A corporation that starts to engage in legal practice in this jurisdiction without giving a notice under subsection (1) is in default of this section until it gives the Law Society written notice, in the approved form, of the failure to comply with that subsection and the fact that it has started to engage in legal practice.
(4)  The giving of a notice under subsection (3) does not affect a corporation’s liability under subsection (1) or (2).
(5)  A corporation is not entitled to recover any amount for anything the corporation did in contravention of subsection (2).
(6)  A person may recover from a corporation or a legal practitioner associate of the corporation, as a debt due to the person, any amount the person paid to or at the direction of the corporation for anything the corporation did in contravention of subsection (2).
(7)  This section does not apply to a corporation referred to in section 134 (2) (a) or (b).
138   Prohibition on representations that corporation is incorporated legal practice
(1)  A corporation must not, without reasonable excuse, represent or advertise that the corporation is an incorporated legal practice unless a notice in relation to the corporation has been given under section 137 (Notice of intention to start providing legal services).
Maximum penalty: 500 penalty units.
(2)  A director, officer, employee or agent of a corporation must not, without reasonable excuse, represent or advertise that the corporation is an incorporated legal practice unless a notice in relation to the corporation has been given under section 137 (Notice of intention to start providing legal services).
Maximum penalty: 100 penalty units.
(3)  A reference in this section to a person, being:
(a)  a corporation—representing or advertising that the corporation is an incorporated legal practice, or
(b)  a director, officer, employee or agent of a corporation—representing or advertising that the corporation is an incorporated legal practice,
includes a reference to the person doing anything that states or implies that the corporation is entitled to engage in legal practice.
139   Notice of termination of provision of legal services
(1)  A corporation must, within the prescribed period after it ceases to engage in legal practice in this jurisdiction as an incorporated legal practice, give the Law Society a written notice, in the approved form, of that fact.
Maximum penalty: 50 penalty units.
(2)  The regulations may make provision for or with respect to determining whether and when a corporation ceases to engage in legal practice in this jurisdiction.
140   Incorporated legal practice must have legal practitioner director
(1)  An incorporated legal practice is required to have at least one legal practitioner director.
(2)  Each legal practitioner director of an incorporated legal practice is, for the purposes of this Act only, responsible for the management of the legal services provided in this jurisdiction by the incorporated legal practice.
(3)  Each legal practitioner director of an incorporated legal practice must ensure that appropriate management systems are implemented and maintained to enable the provision of legal services by the incorporated legal practice:
(a)  in accordance with the professional obligations of Australian legal practitioners and other obligations imposed by or under this Act, the regulations or the legal profession rules, and
(b)  so that those obligations of Australian legal practitioners who are officers or employees of the practice are not affected by other officers or employees of the practice.
(4)  If it ought reasonably to be apparent to a legal practitioner director of an incorporated legal practice that the provision of legal services by the practice will result in breaches of the professional obligations of Australian legal practitioners or other obligations imposed by or under this Act, the regulations or the legal profession rules, the director must take all reasonable action available to the director to ensure that:
(a)  the breaches do not occur, and
(b)  appropriate remedial action is taken in respect of breaches that do occur.
(5)  A contravention of subsection (3) or (4) or both by a legal practitioner director is capable of being professional misconduct.
(6)  Nothing in this Division derogates from the obligations or liability of a director of an incorporated legal practice under any other law.
(7)  The reference in subsection (1) to a legal practitioner director does not include a reference to a person who is not validly appointed as a director, but this subsection does not affect the meaning of the expression “legal practitioner director” in other provisions of this Act.
Note—
The requirements of this section may be subject to audit under section 670.
141   Obligations of legal practitioner director relating to misconduct
(1)  Each of the following is capable of being unsatisfactory professional conduct or professional misconduct by a legal practitioner director:
(a)  unsatisfactory professional conduct or professional misconduct of an Australian legal practitioner employed by the incorporated legal practice,
(b)  conduct of any other director (not being an Australian legal practitioner) of the incorporated legal practice that adversely affects the provision of legal services by the practice,
(c)  the unsuitability of any other director (not being an Australian legal practitioner) of the incorporated legal practice to be a director of a corporation that provides legal services.
(2)  A legal practitioner director of an incorporated legal practice must ensure that all reasonable action available to the legal practitioner director is taken to deal with any unsatisfactory professional conduct or professional misconduct of an Australian legal practitioner employed by the practice.
(3)    (Repealed)
s 141: Am 2005 No 46, Sch 2 [59].
142   Incorporated legal practice without legal practitioner director
(1)  An incorporated legal practice contravenes this subsection if it does not have any legal practitioner directors for a period exceeding 7 days.
Maximum penalty: 500 penalty units.
(2)  If an incorporated legal practice ceases to have any legal practitioner directors, the incorporated legal practice must notify the Law Society as soon as possible.
Maximum penalty: 500 penalty units.
(3)  An incorporated legal practice must not provide legal services in this jurisdiction during any period it is in default of director requirements under this section.
Maximum penalty: 100 penalty units.
(4)  An incorporated legal practice that contravenes subsection (1) is taken to be in default of director requirements under this section for the period from the end of the period of 7 days until:
(a)  it has at least one legal practitioner director, or
(b)  a person is appointed under this section or a corresponding law in relation to the practice.
(5)  The Law Society Council may, if it thinks it appropriate, appoint an Australian legal practitioner who is an employee of the incorporated legal practice or another person nominated by the Council, in the absence of a legal practitioner director, to exercise the functions conferred or imposed on a legal practitioner director under this Part.
(6)  An Australian legal practitioner is not eligible to be appointed under this section unless the practitioner holds an unrestricted practising certificate.
(7)  The appointment under this section of a person to exercise the functions of a legal practitioner director does not, for any other purpose, confer or impose on the person any of the other functions or duties of a director of the incorporated legal practice.
(8)  An incorporated legal practice does not contravene subsection (1) during any period during which a person holds an appointment under this section in relation to the practice.
(9)  A reference in this section to a legal practitioner director does not include a reference to a person who is not validly appointed as a director, but this subsection does not affect the meaning of the expression “legal practitioner director” in other provisions of this Act.
143   Obligations and privileges of practitioners who are officers or employees
(1)  An Australian legal practitioner who provides legal services on behalf of an incorporated legal practice in the capacity of an officer or employee of the practice:
(a)  is not excused from compliance with professional obligations as an Australian legal practitioner, or any obligations as an Australian legal practitioner under any law, and
(b)  does not lose the professional privileges of an Australian legal practitioner.
(2)  For the purposes only of subsection (1), the professional obligations and professional privileges of a practitioner apply as if:
(a)  where there are 2 or more legal practitioner directors of an incorporated legal practice—the practice were a partnership of the legal practitioner directors and the employees of the practice were employees of the legal practitioner directors, or
(b)  where there is only 1 legal practitioner director of an incorporated legal practice—the practice were a sole practitioner and the employees of the practice were employees of the legal practitioner director.
(3)  The law relating to client legal privilege (or other legal professional privilege) is not excluded or otherwise affected because an Australian legal practitioner is acting in the capacity of an officer or employee of an incorporated legal practice.
(4)  The directors of an incorporated legal practice do not breach their duties as directors merely because legal services are provided pro bono by an Australian legal practitioner employed by the practice.
144   Professional indemnity Insurance
(1)  An incorporated legal practice, and each insurable solicitor who is a legal practitioner director or an officer or employee of the practice, is required to comply with the obligations of an insurable solicitor under Part 3.3 (Professional indemnity insurance) with respect to insurance policies and payments to or on account of the Solicitors Mutual Indemnity Fund.
(2)  Each solicitor who is an interstate legal practitioner who is a legal practitioner director or an officer or employee of the practice and who if, he or she were a local practitioner, would be an insurable solicitor is required to comply with the obligations of an interstate legal practitioner under section 98 with respect to appropriate indemnity insurance.
(3)  If an obligation referred in subsection (1) or (2) is not complied with, the Law Society Council may:
(a)  in the case of a legal practitioner director who holds a local practising certificate—suspend the director’s practising certificate while the failure continues, or
(b)  in the case of a legal practitioner director who is an interstate legal practitioner—suspend that director’s entitlement under Part 2.4 to practise in this State while the failure continues and request the corresponding authority in the jurisdiction in which the practitioner has his or her sole or principal place of legal practice to suspend the director’s interstate practising certificate until the Law Society Council notifies the corresponding authority that the obligation has been complied with.
(4)  The insurance premiums or other amounts payable under Part 3.3 by an incorporated legal practice may be determined by reference to the total number of solicitors employed by the practice and other relevant matters.
(5)  The amounts payable from the Solicitors Mutual Indemnity Fund include payments for such liability of an incorporated legal practice, and of the solicitors who are officers and employees of the practice, in connection with the provision of legal services as the Law Society Council determines with the approval of the Attorney General.
(6)  The Law Council Society may exempt an incorporated legal practice from this section on such grounds as the Council considers sufficient.
145   Conflicts of interest
(1)  For the purposes of the application of any law (including the common law) or legal profession rules relating to conflicts of interest to the conduct of an Australian legal practitioner who is:
(a)  a legal practitioner director of an incorporated legal practice, or
(b)  an officer or employee of an incorporated legal practice,
the interests of the incorporated legal practice or any related body corporate are also taken to be those of the practitioner (in addition to any interests that the practitioner has apart from this subsection).
(2)  Legal profession rules may be made for or with respect to additional duties and obligations in connection with conflicts of interest arising out of the conduct of an incorporated legal practice.
Note—
Under section 143 (Obligations and privileges of practitioners who are officers or employees), an Australian legal practitioner who is an officer or employee of an incorporated legal practice must comply with the same professional obligations as other practitioners.
146   Disclosure obligations
(1)  This section applies if a person engages an incorporated legal practice to provide services that the person might reasonably assume to be legal services, but does not apply where the practice provides only legal services in this jurisdiction.
(2)  Each legal practitioner director of the incorporated legal practice, and any employee who is an Australian legal practitioner and who provides the services on behalf of the practice, must ensure that a disclosure, complying with the requirements of this section and the regulations made for the purposes of this section, is made to the person in connection with the provision of the services.
Maximum penalty: 50 penalty units.
(3)  The disclosure must be made by giving the person a notice in writing:
(a)  setting out the services to be provided, and
(b)  stating whether or not all the legal services to be provided will be provided by an Australian legal practitioner, and
(c)  if some or all of the legal services to be provided will not be provided by an Australian legal practitioner—identifying those services and indicating the status or qualifications of the person or persons who will provide the services, and
Note—
For example, the person might be a licensed conveyancer. However, this paragraph would not apply in a case where a law applying in the jurisdiction prohibits a particular legal service from being provided by a person who is not an Australian legal practitioner.
(d)  stating that this Act applies to the provision of legal services but not to the provision of the non-legal services.
(4)  The regulations may make provision for or with respect to the following matters:
(a)  the manner in which a disclosure is to be made,
(b)  additional matters required to be disclosed in connection with the provision of legal services or non-legal services by an incorporated legal practice.
(5)  Without limiting subsection (4), the additional matters may include the kind of services provided by the incorporated legal practice and whether those services are or are not covered by the insurance or other provisions of this Act.
(6)  A disclosure under this section to a person about the provision of legal services may relate to the provision of legal services on one occasion or on more than one occasion or on an on-going basis.
147   Effect of non-disclosure of provision of certain services
(1)  This section applies if:
(a)  section 146 (Disclosure obligations) applies in relation to a service that is provided to a person who has engaged an incorporated legal practice to provide the service and that the person might reasonably assume to be a legal service, and
(b)  a disclosure has not been made under that section in relation to the service.
(2)  The standard of care owed by the incorporated legal practice in respect of the service is the standard that would be applicable if the service had been provided by an Australian legal practitioner.
148   Application of legal profession rules
Legal profession rules, so far as they apply to Australian legal practitioners, also apply to Australian legal practitioners who are officers or employees of an incorporated legal practice, unless the rules otherwise provide.
149   Requirements relating to advertising
(1)  Any restriction imposed by or under this or any other Act, the regulations or the legal profession rules in connection with advertising by Australian legal practitioners applies to advertising by an incorporated legal practice with respect to the provision of legal services.
(2)  If a restriction referred to in subsection (1) is limited to a particular branch of the legal profession or for persons who practise in a particular style of legal practice, the restriction applies only to the extent that the incorporated legal practice carries on the business of the relevant class of Australian legal practitioners.
(3)  Any advertisement of the kind referred to in this section is, for the purposes of disciplinary proceedings taken against an Australian legal practitioner, taken to have been authorised by each legal practitioner director of the incorporated legal practice.
(4)  This section does not apply if the provision by which the restriction is imposed expressly excludes its application to incorporated legal practices.
150   Extension of vicarious liability relating to failure to account, pay or deliver and dishonesty to incorporated legal practices
(1)  This section applies to any of the following proceedings (being proceedings based on the vicarious liability of an incorporated legal practice):
(a)  civil proceedings relating to a failure to account for, pay or deliver money or property received by, or entrusted to, the practice (or to any officer or employee of the practice) in the course of the provision of legal services by the practice, being money or property under the direct or indirect control of the practice,
(b)  civil proceedings for any other debt owed, or damages payable, to a client as a result of a dishonest act or omission by an Australian legal practitioner who is an employee of the practice in connection with the provision of legal services to the client.
(2)  If the incorporated legal practice would not (but for this section) be vicariously liable for any acts or omissions of its officers and employees in those proceedings, but would be liable for those acts or omissions if the practice and those officers and employees were carrying on business in partnership, the practice is taken to be vicariously liable for those acts or omissions.
151   Sharing of receipts, revenue or other income
(1)  Nothing in this Act, the regulations or the legal profession rules prevents an Australian legal practitioner from sharing with an incorporated legal practice receipts, revenue or other income arising from the provision of legal services by the practitioner.
(2)  This section does not extend to the sharing of receipts, revenue or other income in contravention of section 152 (Disqualified persons), and has effect subject to section 54 (Statutory condition regarding practice as a barrister).
152   Disqualified persons
(1)  An incorporated legal practice is guilty of an offence if a person who is a disqualified person:
(a)  is an officer or employee of the incorporated legal practice (whether or not the person provides legal services) or is an officer or employee of a related body corporate, or
(b)  is a partner of the incorporated legal practice in a business that includes the provision of legal services, or
(c)  shares the receipts, revenue or other income arising from the provision of legal services by the incorporated legal practice, or
(d)  is engaged or paid in connection with the provision of legal services by the incorporated legal practice.
Maximum penalty: 100 penalty units.
(2)  The failure of a legal practitioner director of an incorporated legal practice to ensure that the practice complies with subsection (1) is capable of being unsatisfactory professional conduct or professional misconduct.
153   Banning of incorporated legal practices
(1)  The Supreme Court may, on the application of the Law Society Council or the Regulator, make an order disqualifying a corporation from providing legal services in this jurisdiction for the period the Court considers appropriate if satisfied that:
(a)  a ground for disqualifying the corporation under this section has been established, and
(b)  the disqualification is justified.
(2)  An order under this section may, if the Supreme Court thinks it appropriate, be made:
(a)  subject to conditions as to the conduct of the incorporated legal practice, or
(b)  subject to conditions as to when or in what circumstances the order is to take effect, or
(c)  together with orders to safeguard the interests of clients or employees of the incorporated legal practice.
(3)  Action may be taken against an incorporated legal practice on any of the following grounds:
(a)  that a legal practitioner director or an Australian legal practitioner who is an officer or employee of the corporation is found guilty of professional misconduct under a law of this jurisdiction or another jurisdiction,
(b)  that the Law Society Council or the Regulator is satisfied, after conducting an audit of the incorporated legal practice, that the incorporated legal practice has failed to implement satisfactory management and supervision of its provision of legal services,
(c)  that the incorporated legal practice (or a related body corporate) has contravened section 135 (Non-legal services and businesses of incorporated legal practices) or the regulations made under that section,
(d)  that the incorporated legal practice has contravened section 152 (Disqualified persons),
(e)  that a person who is an officer of the incorporated legal practice and who is the subject of an order under:
(i)  section 154 (Disqualification from managing incorporated legal practice) or under provisions of a corresponding law that correspond to that section, or
(ii)  section 179 (Prohibition on partnerships with certain partners who are not Australian legal practitioners) or under provisions of a corresponding law that correspond to that section,
is acting in the management of the incorporated legal practice.
(4)  If a corporation is disqualified under this section, the Law Society Council or the Regulator that applied for the order must, as soon as practicable, notify the Regulator of every other jurisdiction.
(5)  If a corporation is disqualified from providing legal services in another jurisdiction under a corresponding law, the Regulator or the Law Society Council may determine that the corporation is taken to be disqualified from providing legal services in this jurisdiction for the same period, but nothing in this subsection prevents the Regulator or the Law Society Council from instead applying for an order under this section.
(6)  A corporation that provides legal services in contravention of a disqualification under this section is guilty of an offence.
Maximum penalty: 500 penalty units.
(7)  A corporation that is disqualified under this section ceases to be an incorporated legal practice.
(8)  Conduct of an Australian legal practitioner who provides legal services on behalf of a corporation in the capacity of an officer or employee of the corporation is capable of being unsatisfactory professional conduct or professional misconduct where the practitioner ought reasonably to have known that the corporation is disqualified under this section.
(9)  The regulations may make provision for or with respect to the publication and notification of orders made under this section, including notification of appropriate authorities of other jurisdictions.
154   Disqualification from managing incorporated legal practice
(1)  The Supreme Court may, on the application of the Law Society Council or the Regulator, make an order disqualifying a person from managing a corporation that is an incorporated legal practice for the period the Court considers appropriate if satisfied that:
(a)  the person is a person who could be disqualified under section 206C, 206D, 206E or 206F of the Corporations Act 2001 of the Commonwealth from managing corporations, and
(b)  the disqualification is justified.
(2)  The Supreme Court may, on the application of a person subject to a disqualification order under this section, revoke the order.
(3)  A disqualification order made under this section has effect for the purposes only of this Act and does not affect the application or operation of the Corporations Act 2001 of the Commonwealth.
(4)  The regulations may make provision for or with respect to the publication and notification of orders made under this section.
(5)  A person who is disqualified from managing a corporation under provisions of a corresponding law that correspond to this section is taken to be disqualified from managing a corporation under this section.
155   Disclosure of information to Australian Securities and Investments Commission
(1)  This section applies if the Law Society Council or the Regulator, in connection with exercising functions under this Act, acquired information concerning a corporation that is or was an incorporated legal practice.
(2)  The Law Society Council or the Regulator may disclose to the Australian Securities and Investments Commission information concerning the corporation that is relevant to the Commission’s functions.
(3)  Information may be provided under subsection (2) despite any law relating to secrecy or confidentiality, including any provisions of this Act.
156   External administration proceedings under Corporations Act 2001 (Cth)
(1)  This section applies to proceedings in any court under Chapter 5 (External administration) of the Corporations Act 2001 of the Commonwealth:
(a)  relating to a corporation that is an externally-administered body corporate under that Act, or
(b)  relating to a corporation becoming an externally-administered body corporate under that Act,
being a corporation that is or was an incorporated legal practice.
(2)  The Law Society Council and the Regulator are entitled to intervene in the proceedings, unless the court determines that the proceedings do not concern or affect the provision of legal services by the incorporated legal practice.
(3)  The court may, when exercising its jurisdiction in the proceedings, have regard to the interests of the clients of the incorporated legal practice who have been or are to be provided with legal services by the practice.
(4)  Subsection (3) does not authorise the court to make any decision that is contrary to a specific provision of the Corporations Act 2001 of the Commonwealth.
(5)  The provisions of subsections (2) and (3) are declared to be Corporations legislation displacement provisions for the purposes of section 5G of the Corporations Act 2001 of the Commonwealth in relation to the provisions of Chapter 5 of that Act.
Note—
Section 5G of the Corporations Act 2001 of the Commonwealth provides that if a State law declares a provision of a State law to be a Corporations legislation displacement provision, any provision of the Corporations legislation with which the State provision would otherwise be inconsistent does not apply to the extent necessary to avoid the inconsistency.
157   External administration proceedings under other legislation
(1)  This section applies to proceedings for the external administration (however expressed) of an incorporated legal practice, but does not apply to proceedings to which section 156 (External administration proceedings under Corporations Act 2001 (Cth)) applies.
(2)  The Law Society Council and the Regulator are entitled to intervene in the proceedings, unless the court determines that the proceedings do not concern or affect the provision of legal services by the incorporated legal practice.
(3)  The court may, when exercising its jurisdiction in the proceedings, have regard to the interests of the clients of the incorporated legal practice who have been or are to be provided with legal services by the practice.
(4)  Subsection (3) does not authorise the court to make any decision that is contrary to a specific provision of any legislation applicable to the incorporated legal practice.
158   Incorporated legal practice that is subject to receivership under this Act and external administration under Corporations Act 2001 (Cth)
(1)  This section applies if an incorporated legal practice is the subject of both:
(a)  the appointment of a Part 5.5 receiver, and
(b)  the appointment of a Corporations Act administrator.
(2)  The Part 5.5 receiver is under a duty to notify the Corporations Act administrator of the appointment of the Part 5.5 receiver, whether the appointment precedes, follows or is contemporaneous with the appointment of the Corporations Act administrator.
(3)  The Part 5.5 receiver or the Corporations Act administrator (or both of them jointly) may apply to the Supreme Court for the resolution of issues arising from or in connection with the dual appointments and their respective powers, except where proceedings referred to in section 156 (External administration proceedings under Corporations Act 2001 (Cth)) have been commenced.
(4)  The Supreme Court may make any orders it considers appropriate, and no liability attaches to the Part 5.5 receiver or the Corporations Act administrator for any act or omission done by the receiver or administrator in good faith for the purpose of carrying out or acting in accordance with the orders.
(5)  The Law Society Council and the Regulator are entitled to intervene in the proceedings, unless the court determines that the proceedings do not concern or affect the provision of legal services by the incorporated legal practice.
(6)  The provisions of subsections (3) and (4) are declared to be Corporations legislation displacement provisions for the purposes of section 5G of the Corporations Act 2001 of the Commonwealth in relation to the provisions of Chapter 5 of that Act.
(7)  In this section:
Corporations Act administrator means:
(a)  a receiver, receiver and manager, liquidator (including a provisional liquidator), controller, administrator or deed administrator appointed under the Corporations Act 2001 of the Commonwealth, or
(b)  a person who is appointed to exercise powers under that Act and who is prescribed, or of a class prescribed, by the regulations for the purposes of this definition.
Part 5.5 receiver means a receiver appointed under Part 5.5.
159   Incorporated legal practice that is subject to receivership under this Act and external administration under other legislation
(1)  This section applies if an incorporated legal practice is the subject of both:
(a)  the appointment of a Part 5.5 receiver, and
(b)  the appointment of an external administrator.
(2)  The Part 5.5 receiver is under a duty to notify the external administrator of the appointment of the Part 5.5 receiver, whether the appointment precedes, follows or is contemporaneous with the appointment of the external administrator.
(3)  The Part 5.5 receiver or the external administrator (or both of them jointly) may apply to the Supreme Court for the resolution of issues arising from or in connection with the dual appointments and their respective powers.
(4)  The Supreme Court may make any orders it considers appropriate, and no liability attaches to the Part 5.5 receiver or the external administrator for any act or omission done by the receiver or administrator in good faith for the purpose of carrying out or acting in accordance with the orders.
(5)  The Law Society Council and the Regulator are entitled to intervene in the proceedings, unless the court determines that the proceedings do not concern or affect the provision of legal services by the incorporated legal practice.
(6)  In this section:
external administrator means a person who is appointed to exercise powers under other legislation (whether or not of this jurisdiction) and who is prescribed, or of a class prescribed, by the regulations for the purposes of this definition.
Part 5.5 receiver means a receiver appointed under Part 5.5.
160   Co-operation between courts
Courts of this jurisdiction may make arrangements for communicating and co-operating with other courts or tribunals in connection with the exercise of powers under this Division.
161   Relationship of Act to constitution of incorporated legal practice
The provisions of this Act or the regulations that apply to an incorporated legal practice prevail, to the extent of any inconsistency, over the constitution or other constituent documents of the practice.
162   Relationship of Act to legislation establishing incorporated legal practice
(1)  This section applies to a corporation that is established by or under a law (whether or not of this jurisdiction), and is an incorporated legal practice, but is not a company within the meaning of the Corporations Act 2001 of the Commonwealth.
(2)  The provisions of this Act or the regulations that apply to an incorporated legal practice prevail, to the extent of any inconsistency, over provisions of the legislation by or under which the corporation is established or regulated that are specified or described in the regulations.
163   Relationship of Act to Corporations legislation
(1)  The regulations may declare any provision of this Act or the regulations that relates to an incorporated legal practice to be a Corporations legislation displacement provision for the purposes of section 5G of the Corporations Act 2001 of the Commonwealth.
(2)  The regulations may declare any matter relating to an incorporated legal practice that is prohibited, required, authorised or permitted by or under this Act or the regulations to be an excluded matter for the purposes of section 5F of the Corporations Act 2001 of the Commonwealth in relation to:
(a)  the whole of the Corporations legislation, or
(b)  a specified provision of the Corporations legislation, or
(c)  the Corporations legislation other than a specified provision, or
(d)  the Corporations legislation otherwise than to a specified extent.
(3)  In this section:
matter includes act, omission, body, person or thing.
164   Undue influence
A person (whether or not an officer or an employee of an incorporated legal practice) must not cause or induce:
(a)  a legal practitioner director, or
(b)  another Australian legal practitioner who provides legal services on behalf of an incorporated legal practice,
to contravene this Act, the regulations, the legal profession rules or his or her professional obligations as an Australian legal practitioner.
Maximum penalty: 100 penalty units.
Division 3 Multi-disciplinary partnerships
165   Nature of multi-disciplinary partnership
(1)  A multi-disciplinary partnership is a partnership between one or more Australian legal practitioners and one or more other persons who are not Australian legal practitioners, where the business of the partnership includes the provision of legal services in this jurisdiction as well as other services.
(2)  However, a partnership consisting only of one or more Australian legal practitioners and one or more Australian-registered foreign lawyers is not a multi-disciplinary partnership.
(3)  A complying community legal centre is not a multi-disciplinary partnership.
(4)  Nothing in this Division affects or applies to the provision by a multi-disciplinary partnership of legal services in one or more other jurisdictions.
166   Conduct of multi-disciplinary partnerships
(1)  An Australian legal practitioner may be in partnership with a person who is not an Australian legal practitioner, where the business of the partnership includes the provision of legal services.
(2)  Subsection (1) does not prevent an Australian legal practitioner from being in partnership with a person who is not an Australian legal practitioner, where the business of the partnership does not include the provision of legal services.
(3)  The regulations may prohibit an Australian legal practitioner from being in partnership with a person providing a service or conducting a business of a kind specified by the regulations, where the business of the partnership includes the provision of legal services.
167   Notice of intention to start practice in multi-disciplinary partnership
A legal practitioner partner must, before starting to provide legal services in this jurisdiction as a member of a multi-disciplinary partnership, give the Law Society written notice, in the approved form, of his or her intention to do so.
Maximum penalty: 50 penalty units.
168   General obligations of legal practitioner partners
(1)  Each legal practitioner partner of a multi-disciplinary partnership is, for the purposes only of this Act, responsible for the management of the legal services provided in this jurisdiction by the partnership.
(2)  Each legal practitioner partner must ensure that appropriate management systems are implemented and maintained to enable the provision of legal services by the multi-disciplinary partnership:
(a)  in accordance with the professional obligations of Australian legal practitioners and the other obligations imposed by this Act, the regulations or the legal profession rules, and
(b)  so that the professional obligations of legal practitioner partners and employees who are Australian legal practitioners are not affected by other partners and employees of the partnership.
(3)    (Repealed)
s 168: Am 2005 No 46, Sch 2 [60].
169   Obligations of legal practitioner partner relating to misconduct
(1)  Each of the following is capable of being unsatisfactory professional conduct or professional misconduct by a legal practitioner partner:
(a)  unsatisfactory professional conduct or professional misconduct of an Australian legal practitioner employed by the multi-disciplinary partnership,
(b)  conduct of any other partner (not being an Australian legal practitioner) of the multi-disciplinary partnership that adversely affects the provision of legal services by the partnership,
(c)  the unsuitability of any other partner (not being an Australian legal practitioner) of the multi-disciplinary partnership to be a member of a partnership that provides legal services.
(2)  A legal practitioner partner of a multi-disciplinary partnership must ensure that all reasonable action available to the legal practitioner partner is taken to deal with any unsatisfactory professional conduct or professional misconduct of an Australian legal practitioner employed by the partnership.
(3)    (Repealed)
s 169: Am 2005 No 46, Sch 2 [61].
170   Actions of partner who is not an Australian legal practitioner
A partner of a multi-disciplinary partnership who is not an Australian legal practitioner does not contravene a provision of this Act, the regulations or the legal profession rules merely because of any of the following:
(a)  the partner is a member of a partnership where the business of the partnership includes the provision of legal services,
(b)  the partner receives any fee, gain or reward for business of the partnership that is the business of an Australian legal practitioner,
(c)  the partner holds out, advertises or represents himself or herself as a member of a partnership where the business of the partnership includes the provision of legal services,
(d)  the partner shares with any other partner the receipts, revenue or other income of business of the partnership that is the business of an Australian legal practitioner,
unless the provision expressly applies to a partner of a multi-disciplinary partnership who is not an Australian legal practitioner.
171   Obligations and privileges of practitioners who are partners or employees
(1)  An Australian legal practitioner who provides legal services in the capacity of a partner or an employee of a multi-disciplinary partnership:
(a)  is not excused from compliance with professional obligations as an Australian legal practitioner, or any other obligations as an Australian legal practitioner under any law, and
(b)  does not lose the professional privileges of an Australian legal practitioner.
(2)  The law relating to client legal privilege (or other legal professional privilege) is not excluded or otherwise affected because an Australian legal practitioner is acting in the capacity of a partner or an employee of a multi-disciplinary partnership.
172   Conflicts of interest
(1)  For the purposes of the application of any law (including the common law) or legal profession rules relating to conflicts of interest to the conduct of an Australian legal practitioner who is:
(a)  a legal practitioner partner of a multi-disciplinary partnership, or
(b)  an employee of a multi-disciplinary partnership,
the interests of the partnership or any partner of the multi-disciplinary partnership are also taken to be those of the practitioner concerned (in addition to any interests that the practitioner has apart from this subsection).
(2)  Legal profession rules may be made for or with respect to additional duties and obligations in connection with conflicts of interest arising out of the conduct of a multi-disciplinary partnership.
173   Disclosure obligations
(1)  This section applies if a person engages a multi-disciplinary partnership to provide services that the person might reasonably assume to be legal services.
(2)  Each legal practitioner partner of the multi-disciplinary partnership, and any employee of the partnership who is an Australian legal practitioner and who provides the services on behalf of the partnership, must ensure that a disclosure, complying with the requirements of this section and the regulations made for the purposes of this section, is made to the person in connection with the provision of the services.
Maximum penalty: 50 penalty units.
(3)  The disclosure must be made by giving the person a notice in writing:
(a)  setting out the services to be provided, and
(b)  stating whether or not all the legal services to be provided will be provided by an Australian legal practitioner, and
(c)  if some or all of the legal services to be provided will not be provided by an Australian legal practitioner—identifying those services and indicating the status or qualifications of the person or persons who will provide the services, and
Note—
For example, the person might be a licensed conveyancer. However, this paragraph would not apply in a case where a law applying in the jurisdiction prohibits a particular legal service from being provided by a person who is not an Australian legal practitioner.
(d)  stating that this Act applies to the provision of legal services but not to the provision of the non-legal services.
(4)  The regulations may make provision for or with respect to the following matters:
(a)  the manner in which disclosure is to be made,
(b)  additional matters required to be disclosed in connection with the provision of legal services or non-legal services by a multi-disciplinary partnership.
(5)  Without limiting subsection (4), the additional matters may include the kind of services provided by the multi-disciplinary partnership and whether those services are or are not covered by the insurance or other provisions of this Act.
(6)  A disclosure under this section to a person about the provision of legal services may relate to the provision of legal services on one occasion or on more than one occasion or on an on-going basis.
174   Effect of non-disclosure of provision of certain services
(1)  This section applies if:
(a)  section 173 (Disclosure obligations) applies in relation to a service that is provided to a person who has engaged a multi-disciplinary partnership to provide the service and that the person might reasonably assume to be a legal service, and
(b)  a disclosure has not been made under that section in relation to the service.
(2)  The standard of care owed by the multi-disciplinary partnership in respect of the service is the standard that would be applicable if the service had been provided by an Australian legal practitioner.
175   Application of legal profession rules
Legal profession rules, so far as they apply to Australian legal practitioners, also apply to Australian legal practitioners who are legal practitioner partners or employees of a multi-disciplinary partnership, unless the rules otherwise provide.
176   Requirements relating to advertising
(1)  Any restriction imposed by or under this or any other Act, the regulations or the legal profession rules in connection with advertising by Australian legal practitioners applies to advertising by a multi-disciplinary partnership with respect to the provision of legal services.
(2)  If a restriction referred to in subsection (1) is limited to a particular branch of the legal profession or for persons who practise in a particular style of legal practice, the restriction applies only to the extent that the multi-disciplinary partnership carries on the business of the relevant class of Australian legal practitioners.
(3)  An advertisement of the kind referred to in this section is, for the purposes of disciplinary proceedings taken against an Australian legal practitioner, taken to have been authorised by each legal practitioner partner of the multi-disciplinary partnership.
(4)  This section does not apply if the provision by which the restriction is imposed expressly excludes its application to multi-disciplinary partnerships.
177   Sharing of receipts, revenue or other income
(1)  Nothing in this Act, the regulations or the legal profession rules prevents a legal practitioner partner, or an Australian legal practitioner who is an employee of a multi-disciplinary partnership, from sharing receipts, revenue or other income arising from the provision of legal services by the partner or practitioner with a partner or partners who are not Australian legal practitioners.
(2)  This section does not extend to the sharing of receipts, revenue or other income in contravention of section 178 (Disqualified persons), and has effect subject to section 54 (Statutory condition regarding practice as a barrister).
178   Disqualified persons
(1)  A legal practitioner partner of a multi-disciplinary partnership must not knowingly:
(a)  be a partner of a disqualified person in the multi-disciplinary partnership, or
(b)  share with a disqualified person the receipts, revenue or other income arising from the provision of legal services by the multi-disciplinary partnership, or
(c)  employ or pay a disqualified person in connection with the provision of legal services by the multi-disciplinary partnership.
Maximum penalty: 100 penalty units.
(2)    (Repealed)
s 178: Am 2005 No 46, Sch 2 [62].
179   Prohibition on partnerships with certain partners who are not Australian legal practitioners
(1)  This section applies to a person who:
(a)  is not an Australian legal practitioner, and
(b)  is or was a partner of an Australian legal practitioner.
(2)  On application by the Law Society Council or the Regulator, the Supreme Court may make an order prohibiting any Australian legal practitioner from being a partner, in a business that includes the provision of legal services, of a specified person to whom this section applies if:
(a)  the Court is satisfied that the person is not a fit and proper person to be a partner, or
(b)  the Court is satisfied that the person has been guilty of conduct that, if the person were an Australian legal practitioner, would have constituted unsatisfactory professional conduct or professional misconduct, or
(c)  in the case of a corporation, if the Court is satisfied that the corporation has been disqualified from providing legal services in this jurisdiction or there are grounds for disqualifying the corporation from providing legal services in this jurisdiction.
(3)  An order made under this section may be revoked by the Supreme Court on application by the Law Society Council or the Regulator or by the person against whom the order was made.
(4)  The death of an Australian legal practitioner does not prevent an application being made for, or the making of, an order under this section in relation to a person who was a partner of the practitioner.
(5)  The regulations may make provision for or with respect to the publication and notification of orders made under this section.
180   Undue influence
A person (whether or not a partner, or an employee, of a multi-disciplinary partnership) must not cause or induce:
(a)  a legal practitioner partner, or
(b)  an employee of a multi-disciplinary partnership who provides legal services and who is an Australian legal practitioner,
to contravene this Act, the regulations, the legal profession rules or his or her professional obligations as an Australian legal practitioner.
Maximum penalty: 100 penalty units.
Division 4 Miscellaneous
181   Obligations of individual practitioners not affected
Except as provided by this Part, nothing in this Part affects any obligation imposed on:
(a)  a legal practitioner director or an Australian legal practitioner who is an employee of an incorporated legal practice, or
(b)  a legal practitioner partner or an Australian legal practitioner who is an employee of a multi-disciplinary partnership, or
(c)  an Australian legal practitioner who is an officer or employee of, or whose services are used by, a complying community legal centre,
under this or any other Act, the regulations or the legal profession rules in his or her capacity as an Australian legal practitioner.
182   Regulations
(1)  The regulations may make provision for or with respect to the following matters:
(a)  the legal services provided by incorporated legal practices or legal practitioner partners or employees of multi-disciplinary partnerships,
(b)  other services provided by incorporated legal practices or legal practitioner partners or employees of multi-disciplinary partnerships in circumstances where a conflict of interest relating to the provision of legal services may arise.
(2)  A regulation prevails over any inconsistent provision of the legal profession rules.
(3)  A regulation may provide that a breach of the regulations is capable of being unsatisfactory professional conduct or professional misconduct:
(a)  in the case of an incorporated legal practice—by a legal practitioner director, or by an Australian legal practitioner responsible for the breach, or both, or
(b)  in the case of a multi-disciplinary partnership—by a legal practitioner partner, or by an Australian legal practitioner responsible for the breach, or both.
Part 2.7 Legal practice by foreign lawyers
Division 1 Preliminary
183   Purpose
The purpose of this Part is to encourage and facilitate the internationalisation of legal services and the legal services sector by providing a framework for the regulation of the practice of foreign law in this jurisdiction by foreign lawyers as a recognised aspect of legal practice in this jurisdiction.
184   Definitions
In this Part:
Australia includes the external Territories.
Australian law means law of the Commonwealth or of a jurisdiction.
commercial legal presence means an interest in a law practice practising foreign law.
domestic registration authority means the Bar Council or the Law Society Council.
foreign law means law of a foreign country.
foreign law practice means a partnership or corporate entity that is entitled to engage in legal practice in a foreign country.
foreign registration authority means an entity in a foreign country having the function, conferred by the law of the foreign country, of registering persons to engage in legal practice in the foreign country.
local registration certificate means a registration certificate given or issued under this Part.
overseas-registered foreign lawyer means a natural person who is properly registered to engage in legal practice in a foreign country by the foreign registration authority for the country.
practise foreign law means doing work, or transacting business, in this jurisdiction concerning foreign law, being work or business of a kind that, if it concerned the law of this jurisdiction, would ordinarily be done or transacted by an Australian legal practitioner.
registered, when used in connection with a foreign country, means having all necessary licences, approvals, admissions, certificates or other forms of authorisation (including practising certificates) required by or under legislation for engaging in legal practice in that country.
show cause event, in relation to a person, means:
(a)  his or her becoming an insolvent under administration, or
(b)  his or her conviction for a serious offence or a tax offence, whether or not:
(i)  the offence was committed in or outside this jurisdiction, or
(ii)  the offence was committed while the person was engaging in legal practice as an Australian legal practitioner or was practising foreign law as an Australian-registered foreign lawyer, as the case requires, or
(iii)  other persons are prohibited from disclosing the identity of the offender.
Note—
The terms Australian-registered foreign lawyer, foreign country, interstate-registered foreign lawyer and locally registered foreign lawyer are defined in section 4 (Definitions).
185   This Part does not apply to Australian legal practitioners
(1)  This Part does not apply to an Australian legal practitioner (including an Australian legal practitioner who is also an overseas-registered foreign lawyer).
(2)  Accordingly, nothing in this Part requires or enables an Australian legal practitioner (including an Australian legal practitioner who is also an overseas-registered foreign lawyer) to be registered as a foreign lawyer under this Act in order to practise foreign law in this jurisdiction.
Division 2 Practice of foreign law
186   Requirement for registration
(1)  A person must not practise foreign law in this jurisdiction unless the person is:
(a)  an Australian-registered foreign lawyer, or
(b)  an Australian legal practitioner.
Maximum penalty: 200 penalty units.
(2)  However, a person does not contravene subsection (1) if the person is an overseas-registered foreign lawyer:
(a)  who:
(i)  practises foreign law in this jurisdiction for one or more continuous periods that do not in aggregate exceed 12 months in any 3 year period, or
(ii)  is subject to a restriction imposed under the Migration Act 1958 of the Commonwealth that has the effect of limiting the period during which work may be done, or business transacted, in Australia by the person, and
(b)  who:
(i)  does not maintain an office for the purpose of practising foreign law in this jurisdiction, or
(ii)  does not have a commercial legal presence in this jurisdiction.
187   Entitlement of Australian-registered foreign lawyer to practise in this jurisdiction
An Australian-registered foreign lawyer is, subject to this Act, entitled to practise foreign law in this jurisdiction.
188   Scope of practice
(1)  An Australian-registered foreign lawyer may provide only the following legal services in this jurisdiction:
(a)  doing work, or transacting business, concerning the law of a foreign country where the lawyer is registered by the foreign registration authority for the country,
(b)  legal services (including appearances) in relation to arbitration proceedings of a kind prescribed under the regulations,
(c)  legal services (including appearances) in relation to proceedings before bodies other than courts, being proceedings in which the body concerned is not required to apply the rules of evidence and in which knowledge of the foreign law of a country referred to in paragraph (a) is essential,
(d)  legal services for conciliation, mediation and other forms of consensual dispute resolution of a kind prescribed under the regulations.
(2)  Nothing in this Act authorises an Australian-registered foreign lawyer to appear in any court (except on the lawyer’s own behalf) or to practise Australian law in this jurisdiction.
(3)  Despite subsection (2), an Australian-registered foreign lawyer may advise on the effect of an Australian law if:
(a)  the giving of advice on Australian law is necessarily incidental to the practice of foreign law, and
(b)  the advice is expressly based on advice given on the Australian law by an Australian legal practitioner who is not an employee of the foreign lawyer.
189   Form of practice
(1)  An Australian-registered foreign lawyer may (subject to any conditions attaching to the foreign lawyer’s registration) practise foreign law:
(a)  on the foreign lawyer’s own account, or
(b)  in partnership with one or more Australian-registered foreign lawyers or one or more Australian legal practitioners, or both, in circumstances where, if the Australian-registered foreign lawyer were an Australian legal practitioner, the partnership would be permitted under a law of this jurisdiction, or
(c)  as a director or employee of an incorporated legal practice or a partner or employee of a multi-disciplinary partnership that is permitted by a law of this jurisdiction, or
(d)  as an employee of an Australian legal practitioner or law firm in circumstances where, if the Australian-registered foreign lawyer were an Australian legal practitioner, the employment would be permitted under a law of this jurisdiction, or
(e)  as an employee of an Australian-registered foreign lawyer.
(2)  An affiliation referred to in subsection (1) (b)–(e) does not entitle the Australian-registered foreign lawyer to practise Australian law in this jurisdiction.
190   Application of Australian professional ethical and practice standards
(1)  An Australian-registered foreign lawyer must not engage in any conduct in practising foreign law that would, if the conduct were engaged in by an Australian legal practitioner in practising Australian law in this jurisdiction, be capable of being professional misconduct or unsatisfactory professional conduct.
(2)  Chapter 4 (Complaints and discipline) applies to a person who:
(a)  is an Australian-registered foreign lawyer, or
(b)  was an Australian-registered foreign lawyer when the relevant conduct allegedly occurred, but is no longer an Australian-registered foreign lawyer (in which case Chapter 4 applies as if the person were an Australian-registered foreign lawyer),
and so applies as if references in Chapter 4 to an Australian legal practitioner were references to a person of that kind.
(3)  The regulations may make provision with respect to the application (with or without modification) of the provisions of Chapter 4 for the purposes of this section.
(4)  Without limiting the matters that may be taken into account in determining whether a person should be disciplined for a contravention of subsection (1), the following matters may be taken into account:
(a)  whether the conduct of the person was consistent with the standard of professional conduct of the legal profession in any foreign country where the person is registered,
(b)  whether the person contravened the subsection wilfully or without reasonable excuse.
(5)  Without limiting any other provision of this section or the orders that may be made under Chapter 4 as applied by this section, the following orders may be made under that Chapter as applied by this section:
(a)  an order that a person’s registration under this Act as a foreign lawyer be cancelled,
(b)  an order that a person’s registration under a corresponding law as a foreign lawyer be cancelled.
191   Designation
(1)  An Australian-registered foreign lawyer may use only the following designations:
(a)  the lawyer’s own name,
(b)  a title or business name the lawyer is authorised by law to use in a foreign country where the lawyer is registered by a foreign registration authority,
(c)  subject to this section, the name of a foreign law practice with which the lawyer is affiliated or associated (whether as a partner, director, employee or otherwise),
(d)  if the lawyer is a principal of any law practice in Australia whose principals include both one or more Australian-registered foreign lawyers and one or more Australian legal practitioners—a description of the practice that includes reference to both Australian legal practitioners and Australian-registered foreign lawyers (for example, “Solicitors and locally registered foreign lawyers” or “Australian solicitors and US attorneys”).
(2)  An Australian-registered foreign lawyer who is a principal of a foreign law practice may use the practice’s name in or in connection with practising foreign law in this jurisdiction only if:
(a)  the lawyer indicates, on the lawyer’s letterhead or any other document used in this jurisdiction to identify the lawyer as an overseas-registered foreign lawyer, that the foreign law practice practises only foreign law in this jurisdiction, and
(b)  the lawyer has provided the domestic registration authority with acceptable evidence that the lawyer is a principal of the foreign law practice.
(3)  An Australian-registered foreign lawyer who is a principal of a foreign law practice may use the name of the practice as referred to in this section whether or not other principals of the practice are Australian-registered foreign lawyers.
(4)  This section does not authorise the use of a name or other designation that contravenes any requirements of the law of this jurisdiction concerning the use of business names or that is likely to lead to any confusion with the name of any established domestic law practice or foreign law practice in this jurisdiction.
192   Letterhead and other identifying documents
(1)  An Australian-registered foreign lawyer must indicate, in each public document distributed by the lawyer in connection with the lawyer’s practice of foreign law, the fact that the lawyer is an Australian-registered foreign lawyer and is restricted to the practice of foreign law.
(2)  Subsection (1) is satisfied if the lawyer includes in the public document the words:
(a)  “registered foreign lawyer” or “registered foreign practitioner”, and
(b)  “entitled to practise foreign law only”.
(3)  An Australian-registered foreign lawyer may (but need not) include any or all of the following on any public document:
(a)  an indication of all foreign countries in which the lawyer is registered to engage in legal practice,
(b)  a description of himself or herself, and any law practice with which the lawyer is affiliated or associated, in any of the ways designated in section 191 (Designation).
(4)  In this section:
public document includes any business letter, statement of account, invoice, business card, and promotional and advertising material.
193   Advertising
(1)  An Australian-registered foreign lawyer is required to comply with any advertising restrictions imposed by the domestic registration authority or by law on the practice of law by an Australian legal practitioner that are relevant to the practice of law in this jurisdiction.
(2)  Without limiting subsection (1), an Australian-registered foreign lawyer must not advertise (or use any description on the lawyer’s letterhead or any other document used in this jurisdiction to identify the lawyer as a lawyer) in any way that:
(a)  might reasonably be regarded as:
(i)  false, misleading or deceptive, or
(ii)  suggesting that the Australian-registered foreign lawyer is an Australian legal practitioner, or
(b)  contravenes any requirements of the regulations.
194   Foreign lawyer employing Australian legal practitioner
(1)  An Australian-registered foreign lawyer may employ one or more Australian legal practitioners.
(2)  Employment of an Australian legal practitioner does not entitle an Australian-registered foreign lawyer to practise Australian law in this jurisdiction.
(3)  An Australian legal practitioner employed by an Australian-registered foreign lawyer may practise foreign law.
(4)  An Australian legal practitioner employed by an Australian-registered foreign lawyer must not:
(a)  provide advice on Australian law to, or for use by, the Australian-registered foreign lawyer, or
(b)  otherwise practise Australian law in this jurisdiction in the course of that employment.
(5)  Subsection (4) does not apply to an Australian legal practitioner employed by a law firm a partner of which is an Australian-registered foreign lawyer, if at least one other partner is an Australian legal practitioner.
(6)  Any period of employment of an Australian legal practitioner by an Australian-registered foreign lawyer cannot be used to satisfy a requirement imposed by a condition on a local practising certificate to complete a period of supervised legal practice.
195   Trust money and trust accounts
(1)  The provisions of Part 3.1 (Trust money and trust accounts), and any other provisions of this Act, the regulations or any legal profession rule relating to requirements for trust money and trust accounts, apply (subject to this section) to Australian-registered foreign lawyers in the same way as they apply to law practices.
(2)  In this section, a reference to money is not limited to a reference to money in this jurisdiction.
(3)  The regulations may make provision with respect to the application (with or without modification) of the provisions of this Act relating to trust money and trust accounts for the purposes of this section.
s 195: Am 2005 No 46, Sch 2 [63].
196   Professional Indemnity insurance
An Australian-registered foreign lawyer who practises foreign law in this jurisdiction must have professional indemnity insurance that conforms with the requirements (if any) prescribed by the regulations.
197   Fidelity cover
(1)  The regulations may provide that provisions of Part 3.4 (Fidelity cover) apply to prescribed classes of Australian-registered foreign lawyers and so apply with any modifications specified in the regulations.
Note—
Section 398 applies the provisions of Part 3.2 to Australian-registered foreign lawyers.
(2)  The regulations may make provision for or with respect to payments by locally registered foreign lawyers of contributions to the Fidelity Fund.
s 197: Am 2005 No 46, Sch 2 [64].
Division 3 Local registration of foreign lawyers generally
198   Local registration of foreign lawyers
Overseas-registered foreign lawyers may be registered as foreign lawyers under this Act.
199   Duration of registration
(1)  Registration as a foreign lawyer granted under this Act is in force from the day specified in the local registration certificate until the end of the financial year in which it is granted, unless the registration is sooner suspended or cancelled.
(2)  Registration as a foreign lawyer renewed under this Act is in force until the end of the financial year following its previous period of currency, unless the registration is sooner suspended or cancelled.
(3)  If an application for the renewal of registration as a foreign lawyer has not been determined by the following 1 July, the registration:
(a)  continues in force on and from that 1 July until the domestic registration authority renews or refuses to renew the registration or the holder withdraws the application for renewal, unless the registration is sooner suspended or cancelled, and
(b)  if renewed, is taken to have been renewed on and from that 1 July.
200   Locally registered foreign lawyer is not officer of Supreme Court
A locally registered foreign lawyer is not an officer of the Supreme Court.
Division 4 Applications for grant or renewal of local registration
201   Application for grant or renewal of registration
An overseas-registered foreign lawyer may apply to a domestic registration authority for the grant or renewal of registration as a foreign lawyer under this Act.
202   Manner of application
(1)  An application for the grant or renewal of registration as a foreign lawyer must be:
(a)  made in the approved form, and
(b)  accompanied by the fees determined by the domestic registration authority.
(2)  Different fees may be set according to different factors determined by the domestic registration authority.
(3)  The fees are not to be greater than the maximum fees for a local practising certificate.
(4)  The domestic registration authority may also require the applicant to pay any reasonable costs and expenses incurred by the authority in considering the application, including (for example) costs and expenses of making inquiries and obtaining information or documents about whether the applicant meets the criteria for registration.
(5)  The fees and costs must not include any component for compulsory membership of any professional association.
(6)  The approved form may require the applicant to disclose:
(a)  matters that may be relevant to or affect the grant or renewal of registration, and
(b)  particulars of any offences for which the applicant has been convicted in Australia or a foreign country, whether before or after the commencement of this section.
(7)  The approved form may indicate that convictions of a particular kind need not be disclosed for the purposes of the current application.
(8)  The approved form may indicate that specified kinds of matters or particulars previously disclosed in a particular manner need not be disclosed for the purposes of the current application.
203   Requirements regarding applications for grant or renewal of registration
(1)  An application for grant of registration must state the applicant’s educational and professional qualifications.
(2)  An application for grant or renewal of registration must:
(a)  state that the applicant is registered to engage in legal practice by one or more specified foreign registration authorities in one or more foreign countries, and
(b)  state that the applicant is not an Australian legal practitioner, and
(c)  state that the applicant is not the subject of disciplinary proceedings in Australia or a foreign country (including any preliminary investigations or action that might lead to disciplinary proceedings) in his or her capacity as:
(i)  an overseas-registered foreign lawyer, or
(ii)  an Australian-registered foreign lawyer, or
(iii)  an Australian lawyer, and
(d)  state whether or not the applicant is a defendant or respondent in any pending criminal or civil proceedings in Australia or a foreign country, and
(e)  state that the applicant’s registration is not cancelled or currently suspended in any place as a result of any disciplinary action in Australia or a foreign country, and
(f)  state:
(i)  that the applicant is not otherwise personally prohibited from carrying on the practice of law in any place or bound by any undertaking not to carry on the practice of law in any place, and
(ii)  whether or not the applicant is subject to any special conditions in carrying on any practice of law in any place,
as a result of criminal, civil or disciplinary proceedings in Australia or a foreign country, and
(g)  specify any special conditions imposed in Australia or a foreign country as a restriction on the practice of law by the applicant or any undertaking given by the applicant restricting the applicant’s practice of law, and
(h)  give consent to the making of inquiries of, and the exchange of information with, any foreign registration authorities the domestic registration authority considers appropriate regarding the applicant’s activities in engaging in legal practice in the places concerned or otherwise regarding matters relevant to the application, and
(i)  provide the information or be accompanied by the other information or documents (or both) that is specified in the application form or in material accompanying the application form as provided by the domestic registration authority.
(3)  The application must (if the domestic registration authority so requires) be accompanied by an original instrument, or a copy of an original instrument, from each foreign registration authority specified in the application that:
(a)  verifies the applicant’s educational and professional qualifications, and
(b)  verifies the applicant’s registration by the authority to practise law in the foreign country concerned, and the date of registration, and
(c)  describes anything done by the applicant in engaging in legal practice in that foreign country of which the authority is aware and that, in the opinion of the authority, has had or is likely to have had an adverse effect on the applicant’s professional standing within the legal profession of that place.
(4)  The applicant must (if the domestic registration authority so requires) certify in the application that the accompanying instrument is the original or a complete and accurate copy of the original.
(5)  The domestic registration authority may require the applicant to verify the statements in the application by statutory declaration or by other proof acceptable to the authority.
(6)  If the accompanying instrument is not in English, it must be accompanied by a translation in English that is authenticated or certified to the satisfaction of the domestic registration authority.
s 203: Am 2005 No 46, Sch 2 [65] [66].
Division 5 Grant or renewal of registration
204   Grant or renewal of registration
(1)  The domestic registration authority must consider an application that has been made for the grant or renewal of registration as a foreign lawyer and may:
(a)  grant or refuse to grant the registration, or
(b)  renew or refuse to renew the registration,
and in granting or renewing the registration may impose conditions as referred to in section 224 (Conditions imposed by domestic registration authority).
(2)  If the domestic registration authority grants or renews registration, the authority must, as soon as practicable, give the applicant a registration certificate or a notice of renewal.
(3)  If the domestic registration authority refuses to grant or renew registration, the domestic registration authority must, as soon as practicable, give the applicant an information notice.
(4)  A notice of renewal may be in the form of a new registration certificate or any other form the authority considers appropriate.
s 204: Am 2005 No 46, Sch 2 [67].
205   Requirement to grant or renew registration if criteria satisfied
(1)  The domestic registration authority must grant an application for registration as a foreign lawyer if the domestic registration authority:
(a)  is satisfied the applicant is registered to engage in legal practice in one or more foreign countries and is not an Australian legal practitioner, and
(b)  considers an effective system exists for regulating the practice of law in one or more of the foreign countries, and
(c)  considers the applicant is not, as a result of criminal, civil or disciplinary proceedings in any of the foreign countries, subject to:
(i)  any special conditions in carrying on the practice of law in any of the foreign countries, or
(ii)  any undertakings concerning the practice of law in any of the foreign countries,
that would make it inappropriate to register the person, and
(d)  is satisfied the applicant demonstrates an intention to practise foreign law in this jurisdiction within a reasonable period after grant of registration,
unless the authority refuses the application under this Division.
(2)  The domestic registration authority must grant an application for renewal of a person’s registration, unless the authority refuses renewal under this Division.
(3)  Residence or domicile in this jurisdiction is not to be a prerequisite for or a factor in entitlement to the grant or renewal of registration.
s 205: Am 2005 No 46, Sch 2 [68].
206   Refusal to grant or renew registration
(1)  The domestic registration authority may refuse to consider an application if it is not made in accordance with this Act or the regulations or the required fees and costs have not been paid.
(2)  The domestic registration authority may refuse to grant or renew registration if:
(a)  the application is not accompanied by, or does not contain, the information required by this Division or prescribed by the regulations, or
(b)  the applicant has contravened this Act or a corresponding law, or
(c)  the applicant has contravened an order of the Tribunal or a corresponding disciplinary body, including but not limited to an order to pay any fine or costs, or
(d)  the applicant has contravened an order of a regulatory authority of any jurisdiction to pay any fine or costs, or
(e)  the applicant has failed to comply with a requirement under this Act to pay a contribution to, or levy for, the Fidelity Fund, or
(f)  the applicant has contravened a requirement of or made under this Act about professional indemnity insurance, or
(g)  the applicant has failed to pay any expenses of receivership payable under this Act, or
(h)  the applicant’s foreign legal practice or an office at which the applicant carries on the practice of law in a foreign country is in receivership (however described).
(3)  The domestic registration authority may refuse to grant or renew registration if an authority of another jurisdiction has under a corresponding law:
(a)  refused to grant or renew registration for the applicant, or
(b)  suspended or cancelled the applicant’s registration.
(4)  The domestic registration authority may refuse to grant registration if the authority is satisfied that the applicant is not a fit and proper person to be registered after considering:
(a)  the nature of any offence for which the applicant has been convicted in Australia or a foreign country, whether before or after the commencement of this section, and
(b)  how long ago the offence was committed, and
(c)  the person’s age when the offence was committed.
(5)  The domestic registration authority may refuse to renew registration if the authority is satisfied that the applicant is not a fit and proper person to continue to be registered after considering:
(a)  the nature of any offence for which the applicant has been convicted in Australia or a foreign country, whether before or after the commencement of this section, other than an offence disclosed in a previous application to the domestic registration authority, and
(b)  how long ago the offence was committed, and
(c)  the person’s age when the offence was committed.
(6)  The domestic registration authority may refuse to grant or renew registration on any ground on which registration could be suspended or cancelled.
(7)  If the domestic registration authority refuses to grant or renew registration, the authority must, as soon as practicable, give the applicant an information notice.
(8)  Nothing in this section affects the operation of Division 7 (Special powers in relation to local registration—show cause events).
s 206: Am 2005 No 46, Sch 2 [69].
Division 6 Amendment, suspension or cancellation of local registration
207   Application of this Division
This Division does not apply in relation to matters referred to in Division 7 (Special powers in relation to local registration—show cause events).
208   Grounds for amending, suspending or cancelling local registration
(1)  Each of the following is a ground for amending, suspending or cancelling a person’s registration as a foreign lawyer:
(a)  the registration was obtained because of incorrect or misleading information,
(b)  the person fails to comply with a requirement of this Part,
(c)  the person fails to comply with a condition imposed on the person’s registration,
(d)  the person becomes the subject of disciplinary proceedings in Australia or a foreign country (including any preliminary investigations or action that might lead to disciplinary proceedings) in his or her capacity as:
(i)  an overseas-registered foreign lawyer, or
(ii)  an Australian-registered foreign lawyer, or
(iii)  an Australian lawyer,
(e)  the person is a party in pending criminal or civil proceedings in Australia or a foreign country, or is convicted of an offence, that is likely to result in disciplinary action being taken against the applicant,
(f)  the person’s registration is cancelled or currently suspended in any place as a result of any disciplinary action in Australia or a foreign country,
(g)  the person does not have professional indemnity insurance that complies with the requirements mentioned in section 196 (Professional indemnity insurance),
(h)  the person has not established an office to practise foreign law or a commercial legal presence in this jurisdiction within the period prescribed by the regulations after being granted registration,
(i)  the person, having ceased to have an office or commercial legal presence in this jurisdiction after being granted registration, has not had an office or a commercial legal presence in this jurisdiction for a period prescribed by the regulations,
(j)  another ground the domestic registration authority considers sufficient.
(2)  Subsection (1) does not limit the grounds on which conditions may be imposed on registration as a foreign lawyer under section 224.
s 208: Am 2005 No 46, Sch 2 [70].
209   Amending, suspending or cancelling registration
(1)  If the domestic registration authority believes a ground exists to amend, suspend or cancel a person’s registration by it as a foreign lawyer (the proposed action), the authority must give the person a notice that:
(a)  states the proposed action and:
(i)  if the proposed action is to amend the registration in any way—states the proposed amendment, and
(ii)  if the proposed action is to suspend the registration—states the proposed suspension period, and
(b)  states the grounds for proposing to take the proposed action, and
(c)  outlines the facts and circumstances that form the basis for the authority’s belief, and
(d)  invites the person to make written representations to the authority, within a specified time not less than 7 days and not more than 28 days, as to why the proposed action should not be taken.
(2)  If, after considering all written representations made within the specified time, the domestic registration authority still believes grounds exist to take the action, the authority may:
(a)  if the notice under subsection (1) stated the proposed action was to amend the registration—amend the registration in the way specified or in another way the authority considers appropriate because of the representations, or
(b)  if the notice stated the proposed action was to suspend the registration for a specified period:
(i)  suspend the registration for a period no longer than the specified period, or
(ii)  amend the registration in a less onerous way the authority considers appropriate because of the representations, or
(c)  if the notice stated the proposed action was to cancel the registration:
(i)  cancel the registration, or
(ii)  suspend the registration for a period.
(3)  The domestic registration authority may, at its discretion, consider representations made after the specified time.
(4)  The domestic registration authority must give the person notice of the authority’s decision.
(5)  If the domestic registration authority decides to amend, suspend or cancel the registration, the authority must give the person an information notice about the decision.
s 209: Am 2005 No 46, Sch 2 [71]–[73].
210   Operation of amendment, suspension or cancellation of registration
(1) Application of section This section applies if a decision is made to amend, suspend or cancel a person’s registration under section 209 (Amending, suspending or cancelling registration).
(2) Action to take effect on giving of notice or specified date Subject to subsections (3) and (4), the amendment, suspension or cancellation of the registration takes effect on the later of the following:
(a)  the day notice of the decision is given to the person,
(b)  the day specified in the notice.
(3) Grant of stay If the registration is amended, suspended or cancelled because the person has been convicted of an offence:
(a)  the Supreme Court may, on the application of the person, order that the operation of the amendment, suspension or cancellation of the registration be stayed until:
(i)  the end of the time to appeal against the conviction, and
(ii)  if an appeal is made against the conviction—the appeal is finally decided, lapses or otherwise ends, and
(b)  the amendment, suspension or cancellation does not have effect during any period in respect of which the stay is in force.
(4) Quashing of conviction If the registration is amended, suspended or cancelled because the person has been convicted of an offence and the conviction is quashed:
(a)  the amendment or suspension ceases to have effect when the conviction is quashed, or
(b)  the cancellation ceases to have effect when the conviction is quashed and the registration is restored as if it had merely been suspended.
211   Other ways of amending or cancelling registration
(1)  The appropriate domestic registration authority may amend or cancel the registration of a locally registered foreign lawyer if the foreign lawyer requests the authority to do so.
(2)  The appropriate domestic registration authority may amend the registration of a locally registered foreign lawyer:
(a)  for a formal or clerical reason, or
(b)  in another way that does not adversely affect the lawyer’s interests.
(3)  The amendment or cancellation of a registration under this section is effected by written notice given to the foreign lawyer.
(4)  Section 209 (Amending, suspending or cancelling registration) does not apply in a case to which this section applies.
212   Relationship of this Division with Chapter 4
Nothing in this Division prevents the domestic registration authority from making a complaint under Chapter 4 (Complaints and discipline) about a matter to which this Division relates.
Division 7 Special powers in relation to local registration—show cause events
213   Applicant for local registration—show cause event
(1)  This section applies if:
(a)  a person is applying for registration as a foreign lawyer under this Act, and
(b)  a show cause event in relation to the person happened, whether before or after the commencement of this section, after the person first became an overseas-registered foreign lawyer.
(2)  As part of the application, the person must provide to the domestic registration authority a written statement, in accordance with the regulations:
(a)  about the show cause event, and
(b)  explaining why, despite the show cause event, the applicant considers himself or herself to be a fit and proper person to be a locally registered foreign lawyer.
(3)  However, the person need not provide a statement under subsection (2) if the person has previously provided to the domestic registration authority a statement under this section, or a notice and statement under section 214 (Locally registered foreign lawyer—show cause event), explaining why, despite the show cause event, the person considers himself or herself to be a fit and proper person to be a locally registered foreign lawyer.
(4)  A contravention of subsection (2) is professional misconduct.
s 213: Am 2005 No 46, Sch 2 [74].
214   Locally registered foreign lawyer—show cause event
(1)  This section applies to a show cause event that happens in relation to a locally registered foreign lawyer.
(2)  The locally registered foreign lawyer must provide to the domestic registration authority both of the following:
(a)  within 7 days after the happening of the event—written notice, in the approved form, that the event happened,
(b)  within 28 days after the happening of the event—a written statement explaining why, despite the show cause event, the person considers himself or herself to be a fit and proper person to be a locally registered foreign lawyer.
(3)  A contravention of subsection (2) is professional misconduct.
(4)  If a written statement is provided after the 28 days mentioned in subsection (2) (b), the domestic registration authority may accept the statement and take it into consideration.
s 214: Am 2005 No 46, Sch 2 [75] [76].
215   Refusal, amendment, suspension or cancellation of local registration—failure to show cause
(1)  The domestic registration authority may refuse to grant or renew, or may amend, suspend or cancel, local registration if the applicant for registration or the locally registered foreign lawyer:
(a)  is required by section 213 (Applicant for local registration—show cause event) or 214 (Locally registered foreign lawyer—show cause event) to provide a written statement relating to a matter and has failed to provide a written statement in accordance with that requirement, or
(b)  has provided a written statement in accordance with section 213 or 214 but the authority does not consider that the applicant or foreign lawyer has shown in the statement that, despite the show cause event concerned, he or she is a fit and proper person to be a locally registered foreign lawyer.
(2)  For the purposes of this section only, a written statement accepted by the domestic registration authority under section 214 (4) is taken to have been provided in accordance with section 214.
(3)  The domestic registration authority must give the applicant or foreign lawyer an information notice about the decision to refuse to grant or renew, or to suspend or cancel, the registration.
216   Restriction on making further applications
(1)  If the domestic registration authority determines under this Division to cancel a person’s registration, the authority may also determine that the person is not entitled to apply for registration under this Part for a specified period (being a period not exceeding 5 years).
(2)  A person in respect of whom a determination has been made under this section, or under a provision of a corresponding law that corresponds to this section, is not entitled to apply for registration under this Part during the period specified in the determination.
(3)  If the domestic registration authority makes a determination under this section, the authority must, as soon as practicable, give the applicant an information notice.
217   Relationship of this Division with Chapters 4 and 6
(1)  The domestic registration authority has and may exercise powers under Part 4.4 (Investigation of complaints) of Chapter 4, and Chapter 6 (Provisions relating to investigations), in relation to a matter under this Division, as if the matter were the subject of a complaint under Chapter 4.
(2)  Accordingly, the provisions of Part 4.4 of Chapter 4, and Chapter 6, apply in relation to a matter under this Division, and so apply with any necessary modifications.
(3)  Nothing in this Division prevents the domestic registration authority from making a complaint under Chapter 4 about a matter to which this Division relates.
Division 8 Further provisions relating to local registration
218   Immediate suspension of registration
(1)  This section applies, despite Divisions 6 and 7, if the domestic registration authority considers it necessary in the public interest to immediately suspend a person’s registration as a foreign lawyer.
(2)  The domestic registration authority may, by written notice given to the person, immediately suspend the registration until the earlier of the following:
(a)  the time at which the authority informs the person of the authority’s decision by notice under section 209,
(b)  the end of the period of 56 days after the notice is given to the person under this section.
(3)  The notice under this section must:
(a)  include an information notice about the suspension, and
(b)  state that the person may make written representations to the domestic registration authority about the suspension, and
(c)  state that the person may appeal against the suspension under section 238.
(4)  The person may make written representations to the domestic registration authority about the suspension, and the authority must consider the representations.
(5)  The domestic registration authority may revoke the suspension at any time, whether or not in response to any written representations made to it by the person.
219   Surrender of local registration certificate and cancellation of registration
(1)  A person registered as a foreign lawyer under this Part may surrender the local registration certificate to the domestic registration authority.
(2)  The domestic registration authority may cancel the surrendered registration certificate.
220   Automatic suspension or cancellation of registration on grant of practising certificate or other disciplinary action
(1)  A person’s registration as a foreign lawyer under this Part is taken to be:
(a)  cancelled if the person becomes an Australian legal practitioner, or
(b)  suspended or cancelled if a foreign registration authority suspends or cancels, or a disciplinary body of another jurisdiction corresponding to the Tribunal orders the suspension or cancellation of, the person’s registration in a foreign country because of criminal, civil or disciplinary proceedings against the person, or
(c)  cancelled if the person’s registration in a foreign country lapses.
(2)  A suspension under this section has effect while the person’s registration in the foreign country is suspended.
221   Suspension or cancellation of registration not to affect disciplinary processes
The suspension or cancellation of a person’s registration as a foreign lawyer under this Part does not affect any disciplinary processes in respect of matters arising before the suspension or cancellation.
222   Return of local registration certificate on amendment, suspension or cancellation of registration
(1)  This section applies if a person’s registration under this Part as a foreign lawyer is amended, suspended or cancelled.
(2)  The domestic registration authority may give the person a notice requiring the person to return the registration certificate to the authority in the way specified in the notice within a specified period of not less than 14 days.
(3)  The person must comply with the notice, unless the person has a reasonable excuse.
Maximum penalty: 20 penalty units.
(4)  If the registration is amended, the domestic registration authority must return the registration certificate to the person as soon as practicable after amending it.
Division 9 Conditions on registration
223   Conditions generally
(1)  Registration as a foreign lawyer under this Part is subject to:
(a)  any conditions imposed by the domestic registration authority, and
(b)  any statutory conditions imposed by this or any other Act, and
(c)  any conditions imposed by or under the legal profession rules, and
(d)  any conditions imposed under Chapter 4 (Complaints and discipline) or under provisions of a corresponding law that correspond to Chapter 4.
(2)  If a condition is imposed, varied or revoked under this Act (other than a statutory condition) during the currency of the registration concerned, the registration certificate is to be amended by the domestic registration authority, or a new certificate is to be issued by the authority, to reflect on its face the imposition, variation or revocation.
224   Conditions imposed by domestic registration authority
(1)  The domestic registration authority may impose conditions on registration as a foreign lawyer:
(a)  when it is granted or renewed, or
(b)  during its currency.
(2)  A condition imposed under this section must be reasonable and relevant.
(3)  A condition imposed under this section may be about any of the following:
(a)  any matter in respect of which a condition could be imposed on a local practising certificate,
(b)  a matter agreed to by the foreign lawyer.
(4)  The domestic registration authority must not impose a condition under subsection (3) (a) that is more onerous than a condition that would be imposed on a local practising certificate of a local legal practitioner in the same or similar circumstances.
(5)  The domestic registration authority may vary or revoke conditions imposed by it under this section.
(6)  If the domestic registration authority imposes, varies or revokes a condition during the currency of the registration concerned, the imposition, variation or revocation takes effect when the holder has been notified of it or at a later time specified by the authority.
(7)  If the domestic registration authority imposes a condition on registration when it is granted or renewed and the foreign lawyer within one month after the grant or renewal notifies the authority in writing that he or she does not agree to the condition, the authority must, as soon as practicable, give the holder an information notice.
(8)  This section has effect subject to section 209 (Amending, suspending or cancelling registration) in relation to the imposition of a condition on registration during its currency.
225   Imposition or variation of conditions pending criminal proceedings
(1)  If a person registered as a foreign lawyer under this Part has been charged with a relevant offence but the charge has not been determined, the appropriate domestic registration authority may apply to the Tribunal for an order under this section.
(2)  On an application under subsection (1), the Tribunal, if it considers it appropriate to do so having regard to the seriousness of the offence and to the public interest, may make either or both of the following orders:
(a)  an order varying the conditions on the practitioner’s registration, or
(b)  an order imposing further conditions on the practitioner’s registration.
(3)  An order under this section has effect until the sooner of:
(a)  the end of the period specified by the Tribunal, or
(b)  if the practitioner is convicted of the offence—28 days after the day of the conviction, or
(c)  if the charge is dismissed—the day of the dismissal.
(4)  The Tribunal, on application by any party, may vary or revoke an order under this section at any time.
(5)  In this section:
relevant offence means a serious offence or an offence that would have to be disclosed under the admission rules in relation to an application for admission to the legal profession under this Act.
226   Statutory condition regarding notification of offence
(1)  It is a statutory condition of registration as a foreign lawyer that the lawyer:
(a)  must notify the domestic registration authority that the lawyer has been:
(i)  convicted of an offence that would have to be disclosed in relation to an application for registration as a foreign lawyer under this Act, or
(ii)  charged with a serious offence, and
(b)  must do so within 7 days of the event and by a written notice.
(2)  The regulations, or the legal profession rules if the regulations do not do so, may specify the form of the notice to be used and the person to whom or the address to which it is to be sent or delivered.
(3)  The giving of a notice in accordance with Division 7 (Special powers in relation to local registration—show cause events) of a conviction for a serious offence satisfies the requirements of subsection (1) (a) (i) in relation to the conviction.
227   Conditions imposed by legal profession rules
The legal profession rules may:
(a)  impose conditions on the registration of foreign lawyers or any class of foreign lawyers, or
(b)  authorise conditions to be imposed on the registration of foreign lawyers or on the registration of any class of foreign lawyers.
228   Compliance with conditions
(1)  A locally registered foreign lawyer must not contravene a condition to which the registration is subject.
Maximum penalty: 100 penalty units.
(2)    (Repealed)
s 228: Am 2005 No 46, Sch 2 [77].
Division 10 Interstate-registered foreign lawyers
229   Extent of entitlement of interstate-registered foreign lawyer to practise in this jurisdiction
(1)  This Part does not authorise an interstate-registered foreign lawyer to practise foreign law in this jurisdiction to a greater extent than a locally registered foreign lawyer could be authorised under a local registration certificate.
(2)  Also, an interstate-registered foreign lawyer’s right to practise foreign law in this jurisdiction:
(a)  is subject to:
(i)  any conditions imposed by the domestic registration authority under section 230 (Additional conditions on practice of interstate-registered foreign lawyers), and
(ii)  any conditions imposed by or under the legal profession rules as referred to in that section, and
(b)  is, to the greatest practicable extent and with all necessary changes:
(i)  the same as the interstate-registered foreign lawyer’s right to practise foreign law in the lawyer’s home jurisdiction, and
(ii)  subject to any condition on the interstate-registered foreign lawyer’s right to practise foreign law in that jurisdiction.
(3)  If there is an inconsistency between conditions mentioned in subsection (2) (a) and conditions mentioned in subsection (2) (b), the conditions that are, in the opinion of the domestic registration authority, more onerous prevail to the extent of the inconsistency.
(4)  An interstate-registered foreign lawyer must not practise foreign law in this jurisdiction in a manner not authorised by this Act or in contravention of any condition referred to in this section.
(5)    (Repealed)
s 229: Am 2005 No 46, Sch 2 [78].
230   Additional conditions on practice of interstate-registered foreign lawyers
(1)  The domestic registration authority may, by written notice to an interstate-registered foreign lawyer practising foreign law in this jurisdiction, impose any condition on the interstate-registered foreign lawyer’s practice that it may impose under this Act in relation to a locally registered foreign lawyer.
(2)  Also, an interstate-registered foreign lawyer’s right to practise foreign law in this jurisdiction is subject to any condition imposed by or under an applicable legal profession rule.
(3)  Conditions imposed under or referred to in this section must not be more onerous than conditions applying to locally registered foreign lawyers in the same or similar circumstances.
(4)  A notice under this section must include an information notice about the decision to impose a condition.
Division 11 Miscellaneous
231   Consideration and investigation of applicants and locally registered foreign lawyers
(1)  To help it consider whether or not to grant, renew, suspend or cancel registration under this Part, or impose conditions on a person’s registration under this Part, the domestic registration authority may, by notice to the applicant or locally registered foreign lawyer, require the applicant or locally registered foreign lawyer:
(a)  to give it specified documents or information, or
(b)  to co-operate with any inquiries that it considers appropriate.
(2)  A failure to comply with a notice under subsection (1) by the date specified in the notice and in the way required by the notice is a ground for making an adverse decision in relation to the action being considered by the domestic registration authority.
232   Register of locally registered foreign lawyers
(1)  The domestic registration authority must keep a register of the names of locally registered foreign lawyers.
(2)  The register must:
(a)  state the conditions (if any) imposed on a foreign lawyer’s registration, and
(b)  include other particulars prescribed by the regulations.
(3)  The register may be kept in the way the domestic registration authority decides.
(4)  The register must be available for inspection, without charge, at the domestic registration authority’s office during normal business hours.
233   Publication of information about locally registered foreign lawyers
The domestic registration authority may publish, in circumstances that it considers appropriate, the names of persons registered by it as foreign lawyers under this Part and any relevant particulars concerning those persons.
234   Supreme Court orders about conditions
(1)  The domestic registration authority may apply to the Supreme Court for an order or injunction that an Australian-registered foreign lawyer not contravene a condition imposed under this Part.
(2)  No undertaking as to damages or costs is required.
(3)  The Supreme Court may grant an order or injunction in such terms as it considers appropriate, and make any order it considers appropriate, on the application.
(4)  This section does not affect the generality of section 720 (Injunctions).
235   Exemption by domestic registration authority
(1)  The domestic registration authority may exempt an Australian-registered foreign lawyer or class of Australian-registered foreign lawyers from compliance with a specified provision of this Act or the regulations, or from compliance with a specified rule or part of a rule that would otherwise apply to the foreign lawyer or class of foreign lawyers.
(2)  An exemption may be granted unconditionally or subject to conditions specified in writing.
(3)  The domestic registration authority may revoke or vary any conditions imposed under this section or impose new conditions.
236   Membership of professional association
An Australian-registered foreign lawyer is not required to join (but may, if eligible, join) any professional association.
237   Refund of fees
(1)  The regulations may provide for the refund of a portion of a fee paid in respect of registration as a foreign lawyer if it is suspended or cancelled during its currency.
(2)  Without limiting subsection (1), the regulations may specify:
(a)  the circumstances in which a refund is to be made, and
(b)  the amount of the refund or the manner in which the amount of the refund is to be determined.
238   Appeals or reviews
(1)  If the domestic registration authority:
(a)  refuses to grant or renew the registration of a person as a foreign lawyer, or
(b)  amends, suspends or cancels a person’s registration as a foreign lawyer, or
(c)  takes any action under Divisions 3 and 4 of Part 3.1,
the foreign lawyer may appeal to the Supreme Court against the refusal, amendment, suspension, cancellation or action.
(2)  The Supreme Court may make such an order in the matter as it thinks fit.
239   Joint rules
Practice as a locally registered foreign lawyer is subject to the legal profession rules that apply to locally registered foreign lawyers.
Part 2.8 Community legal centres
240   Community legal centres
(1)  An organisation, whether incorporated or not, is a complying community legal centre for the purposes of this Act if:
(a)  it is held out or holds itself out as being a community legal centre (or a centre or establishment of a similar description), and
(b)  it provides legal services:
(i)  that are directed generally to persons or organisations that lack the financial means to obtain privately funded legal services or whose cases are expected to raise issues of public interest or are of general concern to disadvantaged groups in the community, and
(ii)  that are made available to persons or organisations that have a special need arising from their location or the nature of the legal matter to be addressed or have a significant physical or social disability, and
(iii)  that are not intended, or likely, to be provided at a profit to the community legal centre and the income (if any) from which cannot or will not be distributed to any member or employee of the centre otherwise than by way of reasonable remuneration under a contract of service or for services, and
(iv)  that are funded or expected to be funded to a significant level by donations or by grants from government, charitable or other organisations, and
(c)  at least one of the persons who is employed or otherwise used by it to provide those legal services is an Australian legal practitioner and is generally responsible for the provision of those legal services (whether or not the person has an unrestricted practising certificate).
(2)  A complying community legal centre does not contravene this Act merely because:
(a)  it employs, or otherwise uses the services of, Australian legal practitioners to provide legal services to members of the public, or
(b)  it has a contractual relationship with a member of the public to whom those legal services are provided or receives any fee, gain or reward for providing those legal services, or
(c)  it shares with an Australian legal practitioner employed or otherwise used by it to provide those legal services receipts, revenue or other income arising from the business of the centre, being business of a kind usually conducted by an Australian legal practitioner, or
(d)  it adopts or uses the word “legal” or a name, description or title specified in regulations under section 16 (or some related term) in its name or any registered business name under which it provides legal services to members of the public.
(3)  This section has effect despite anything to the contrary in this Act.
(4)  The regulations may make provision for or with respect to:
(a)  the application (with or without specified modifications) of provisions of this Act to complying community legal centres, and
(b)  the legal services provided by complying community legal centres or officers or employees of, or persons whose services are used by, complying community legal centres.
(5)  A regulation may provide that a breach of the regulations is capable of being unsatisfactory professional conduct or professional misconduct by, in the case of a complying community legal centre, an Australian legal practitioner responsible for the breach.
241   Application of legal profession rules
Legal profession rules, so far as they apply to Australian legal practitioners, also apply to Australian legal practitioners who are officers or employees of, or whose services are used by, a complying community legal centre, unless the rules otherwise provide.
Chapter 3 Conduct of legal practice
Part 3.1 Trust money and trust accounts
Division 1 Preliminary
242   Purposes
The purposes of this Part are as follows:
(a)  to ensure trust money is held by law practices in a way that protects the interests of persons for or on whose behalf money is held, both inside and outside this jurisdiction,
(b)  to minimise compliance requirements for law practices that provide legal services within and outside this jurisdiction,
(c)  to ensure the Law Society Council can work effectively with corresponding authorities in other jurisdictions in relation to the regulation of trust money and trust accounts.
243   Definitions
(1)  In this Part:
approved ADI means an ADI approved under section 280 (Approval of ADIs) by the Law Society Council.
controlled money means money received or held by a law practice in respect of which the practice has a written direction to deposit the money in an account (other than a general trust account) over which the practice has or will have exclusive control.
Note—
See section 256 (6) (Controlled money), which prevents pooling of controlled money.
controlled money account means an account maintained by a law practice with an ADI for the holding of controlled money received by the practice.
deposit record includes a deposit slip or duplicate deposit slip.
external examination means an external examination under Division 4 of Part 3.1 of a law practice’s trust records.
external examiner means a person holding an appointment as an external examiner under Division 4 of Part 3.1.
general trust account means an account maintained by a law practice with an approved ADI for the holding of trust money received by the practice, other than controlled money or transit money.
investigation means an investigation under Division 3 of Part 3.1 of the affairs of a law practice.
investigator means a person holding an appointment as an investigator under Division 3 of Part 3.1.
permanent form, in relation to a trust record, means printed or, on request, capable of being printed, in English on paper or other material.
power includes authority.
transit money means money received by a law practice subject to instructions to pay or deliver it to a third party, other than an associate of the practice.
trust account means an account maintained by a law practice with an approved ADI to hold trust money.
trust money means money entrusted to a law practice in the course of or in connection with the provision of legal services by the practice for or on behalf of another person, and includes:
(a)  money received on account of legal costs in advance of providing the services, and
(b)  controlled money, and
(c)  transit money, and
(d)  money controlled by a law practice (or by an associate, alone or with another associate), pursuant to a power to deal with money for or on behalf of another person that is:
(i)  exercisable by the practice (or by an associate alone or with another associate), or
(ii)  exercisable jointly and severally with the person or a nominee or nominees of the person,
but does not include money to which section 244 applies.
trust records includes the following documents:
(a)  receipts,
(b)  cheque butts or cheque requisitions,
(c)  records of authorities to withdraw by electronic funds transfer,
(d)  deposit records,
(e)  trust account ADI statements,
(f)  trust account receipts and payments cash books,
(g)  trust ledger accounts,
(h)  records of monthly trial balances,
(i)  records of monthly reconciliations,
(j)  trust transfer journals,
(k)  statements of account as required to be furnished under the regulations,
(l)  registers required to be kept under the regulations,
(m)  monthly statements required to be kept under the regulations,
(n)  files relating to trust transactions or bills of costs or both,
(o)  written directions, authorities or other documents required to be kept under this Act or the regulations,
(p)  supporting information required to be kept under the regulations in relation to powers to deal with trust money.
Trustees means the Trustees of the Public Purpose Fund.
(2)  A reference in this Part to a law practice’s trust account or trust records includes a reference to an associate’s trust account or trust records.
s 243: Am 2005 No 46, Sch 3 [1]–[5].
244   Money involved in financial services or investments
(1)  Money that is entrusted to or held by a law practice for or in connection with:
(a)  a financial service provided by the practice or an associate of the practice in circumstances where the practice or associate is required to hold an Australian financial services licence covering the provision of the service (whether or not such a licence is held at any relevant time), or
(b)  a financial service provided by the practice or an associate of the practice in circumstances where the practice or associate provides the service as a representative of another person who carries on a financial services business (whether or not the practice or associate is an authorised representative at any relevant time),
is not trust money for the purposes of this Act.
(2)  Without limiting subsection (1), money that is entrusted to or held by a law practice for or in connection with:
(a)  a managed investment scheme, or
(b)  mortgage financing,
undertaken by the practice is not trust money for the purposes of this Act.
(3)  Without limiting subsections (1) and (2), money that is entrusted to or held by a law practice for investment purposes, whether on its own account or as agent, is not trust money for the purposes of this Act, unless:
(a)  the money was entrusted to or held by the practice:
(i)  in the ordinary course of legal practice, and
(ii)  primarily in connection with the provision of legal services to or at the direction of the client, and
(b)  the investment is or is to be made:
(i)  in the ordinary course of legal practice, and
(ii)  for the ancillary purpose of maintaining or enhancing the value of the money or property pending completion of the matter or further stages of the matter or pending payment or delivery of the money or property to or at the direction of the client.
(4)  In this section:
Australian financial services licence, authorised representative, financial service and financial services business have the same meanings as in Chapter 7 of the Corporations Act 2001 of the Commonwealth.
s 244: Am 2005 No 46, Sch 3 [6].
245   Determinations about status of money
(1)  This section applies to money received by a law practice if the Law Society Council considers that there is doubt or a dispute as to whether the money is trust money.
(2)  The Council may determine that the money is or is not trust money.
(3)  The Council may revoke or modify a determination under this section.
(4)  While a determination under this section is in force that money is trust money, the money is taken to be trust money for the purposes of this Act.
(5)  While a determination under this section is in force that money is not trust money, the money is taken not to be trust money for the purposes of this Act.
(6)  This section has effect subject to a decision of a court or administrative review body made in relation to the money concerned.
Note—
Section 298 requires notice to be given to a client when money entrusted to a law practice is not trust money because of a determination under this section.
246   Application of Part to law practices and trust money
(1) Trust money received in this jurisdiction This Part applies to the following law practices in respect of trust money received by them in this jurisdiction:
(a)  a law practice that has an office in this jurisdiction, whether or not the practice has an office in another jurisdiction,
(b)  a law practice that does not have an office in any jurisdiction at all.
Note—
It is intended that a law practice that receives trust money in this jurisdiction, that does not have an office in this jurisdiction, but that has an office in another jurisdiction, must deal with the money in accordance with the corresponding law of the other jurisdiction.
(2) Trust money received in another jurisdiction This Part applies to the following law practices in respect of trust money received by them in another jurisdiction:
(a)  a law practice that has an office in this jurisdiction and in no other jurisdiction,
(b)  a law practice that has an office in this jurisdiction and in one or more other jurisdictions but not in the jurisdiction in which the trust money was received, unless the money is dealt with in accordance with the corresponding law of another jurisdiction.
(3) Exclusions However, this Part does not apply to:
(a)  prescribed law practices or classes of law practices, or
(b)  prescribed law practices or classes of law practices in prescribed circumstances, or
(c)  prescribed kinds of trust money, or
(d)  prescribed kinds of trust money in prescribed circumstances.
(4) Money received for costs not trust money Money received in the course of or in connection with the provision of legal services by a law practice for or on behalf of another person for the payment of costs due to the practice (including costs that have been awarded by a court, tribunal or other body that has power to award costs), is not trust money for the purposes of this Act.
(5) Meaning of having an office in a jurisdiction A reference in this section to having an office in a jurisdiction is a reference to having, or engaging in legal practice from, an office or business address in the jurisdiction.
Note—
Section 195 (Trust money and trust accounts) applies this Part to Australian-registered foreign lawyers.
247   Protocols for determining where trust money is received
(1)  The Law Society Council may enter into arrangements (referred to in this Part as protocols) with corresponding authorities about any or all of the following:
(a)  determining the jurisdiction where a law practice receives trust money,
(b)  sharing information about whether, and (if so) how, trust money is being dealt with under this Act or a corresponding law.
(2)  For the purposes of this Act, to the extent that the protocols are relevant, the jurisdiction where a law practice receives trust money is to be determined in accordance with the protocols.
(3)  The Law Society Council may enter into arrangements that amend, revoke or replace a protocol.
(4)  A protocol does not have effect in this jurisdiction unless it is embodied or identified in the regulations.
248   When money is received
(1)  For the purposes of this Act, a law practice receives money when:
(a)  the practice obtains possession or control of it directly, or
(b)  the practice obtains possession or control of it indirectly as a result of its delivery to an associate, or
(c)  the practice is given a power enabling the practice to deal with it whether alone or with an associate or jointly with another person, or
(d)  an associate is given a power enabling the associate to deal with it, on behalf of the practice, whether alone or with another associate or jointly with another person.
(2)  For the purposes of this Act, a law practice or associate is taken to have received money if the money is available to the practice or associate by means of an instrument or other way of authorising an ADI to credit or debit an amount to an account with the ADI, including, for example, an electronic funds transfer, credit card transaction or telegraphic transfer.
249   Discharge by legal practitioner associate of obligations of law practice
(1)  The following actions, if taken by a legal practitioner associate of a law practice on behalf of the practice in relation to trust money received by the practice, discharge the corresponding obligations of the practice in relation to the money:
(a)  the establishment of a trust account,
(b)  the maintenance of a trust account,
(c)  the payment of trust money into and out of a trust account and other dealings with trust money,
(d)  the maintenance of trust records,
(e)  engaging an external examiner to examine trust records,
(f)  the payment of an amount into an ADI account as referred to in section 283 (Statutory deposits),
(g)  an action of a kind prescribed by the regulations.
(2)  If the legal practitioner associate maintains a trust account in relation to trust money received by the law practice, the provisions of this Part and the regulations made for the purposes of this Part apply to the associate in the same way as they apply to a law practice.
(3)  Subsection (1) does not apply to the extent that the associate is prevented by the regulations from taking any action referred to in that subsection.
250   Liability of principals of law practice
(1)  A provision of this Part or the regulations made for the purposes of this Part expressed as imposing an obligation on a law practice imposes the same obligation on the principals of the law practice jointly and severally, but discharge of the practice’s obligation also discharges the corresponding obligation imposed on the principals.
(2)  Accordingly, references in this Part and the regulations made for the purposes of this Part to a law practice include references to the principals of the law practice.
251   Former practices, principals and associates
This Part applies in relation to former law practices and former principals and associates of law practices in relation to conduct occurring while they were respectively law practices, principals and associates in the same way as it applies to law practices, principals and associates, and so applies with any necessary modifications.
252   Barristers not to receive money on behalf of other persons
A barrister is not, in the course of practising as a barrister, to receive money on behalf of another person.
s 252: Subst 2005 No 46, Sch 3 [7].
Division 2 Trust accounts and trust money
253   Maintenance of general trust account
(1)  A law practice that receives trust money to which this Part applies must maintain a general trust account in this jurisdiction.
Maximum penalty: 100 penalty units.
(2)  A law practice that is required to maintain a general trust account in this jurisdiction must establish and maintain the account in accordance with the regulations.
Maximum penalty: 100 penalty units.
(3)  Subsection (1) does not apply to a law practice in respect of any period during which the practice receives only either or both of the following:
(a)  controlled money,
(b)  transit money received in a form other than cash.
(4)  Subject to any requirements of the regulations, a requirement of this section for a law practice to maintain, or establish and maintain, a general trust account in this jurisdiction does not prevent the practice from maintaining, or establishing and maintaining, more than one general trust account in this jurisdiction, whether during the same period or during different periods.
(5)  Without limiting the other provisions of this section, the regulations may provide that a law practice must not close a general trust account except as permitted by the regulations, either generally or in any prescribed circumstances.
s 253: Am 2005 No 46, Sch 3 [8].
254   Certain trust money to be deposited in general trust account
(1)  Subject to section 258A, as soon as practicable after receiving trust money, a law practice must deposit the money in a general trust account of the practice unless:
(a)  the practice has a written direction by an appropriate person to deal with it otherwise than by depositing it in the account, or
(b)  the money is controlled money, or
(c)  the money is transit money, or
(d)  the money is to be dealt with under a power to receive or disburse money for or on behalf of another person exercisable jointly and severally with the other person or a nominee of the other person.
Maximum penalty: 100 penalty units.
(2)  Subject to section 258A, a law practice that has received money that is the subject of a written direction mentioned in subsection (1) (a) must deal with the money in accordance with the direction:
(a)  within the period (if any) specified in the direction, or
(b)  subject to paragraph (a), as soon as practicable after it is received.
Maximum penalty: 100 penalty units.
(3)  The law practice must keep a written direction mentioned in subsection (1) (a) for the period prescribed by the regulations.
Maximum penalty: 50 penalty units.
(4)    (Repealed)
(5)  A person is an appropriate person for the purposes of this section if the person is legally entitled to give the law practice directions in respect of dealings with the trust money.
s 254: Am 2005 No 46, Sch 3 [9]–[11].
255   Holding, disbursing and accounting for trust money
(1)  A law practice must:
(a)  hold trust money deposited in a general trust account of the practice exclusively for the person on whose behalf it is received, and
(b)  disburse the trust money only in accordance with a direction given by the person.
Maximum penalty: 50 penalty units.
(2)  Subsection (1) applies subject to an order of a court of competent jurisdiction or as authorised by law.
(3)  The law practice must account for the trust money as required by the regulations.
Maximum penalty: 50 penalty units.
256   Controlled money
(1)  As soon as practicable after receiving controlled money, a law practice must deposit the money in the account specified in the written direction relating to the money.
Maximum penalty: 50 penalty units.
(2)  The law practice must hold controlled money deposited in a controlled money account in accordance with subsection (1) exclusively for the person on whose behalf it was received.
Maximum penalty: 50 penalty units.
(3)  The law practice that holds controlled money deposited in a controlled money account in accordance with subsection (1) must not disburse the money except in accordance with:
(a)  the written direction mentioned in that subsection, or
(b)  a later written direction given by or on behalf of the person on whose behalf the money was received.
Maximum penalty: 50 penalty units.
(4)  The law practice must maintain the controlled money account, and account for the controlled money, as required by the regulations.
Maximum penalty: 50 penalty units.
(5)  The law practice must keep a written direction mentioned in this section for the period prescribed by the regulations.
Maximum penalty: 50 penalty units.
(6)  The law practice must ensure that the controlled money account is used for the deposit of controlled money received on behalf of the person referred to in subsection (2), and not for the deposit of controlled money received on behalf of any other person, except to the extent that the regulations otherwise permit.
Maximum penalty: 50 penalty units.
(7)  Subsection (3) applies subject to an order of a court of competent jurisdiction or as authorised by law.
257   Transit money
(1)  Subject to section 258A, a law practice that has received transit money must pay or deliver the money as required by the instructions relating to the money:
(a)  within the period (if any) specified in the instructions, or
(b)  subject to paragraph (a), as soon as practicable after it is received.
Maximum penalty: 50 penalty units.
(2)  The law practice must account for the money as required by the regulations.
Maximum penalty: 50 penalty units.
s 257: Am 2005 No 46, Sch 3 [12].
258   Trust money subject to specific powers
(1)  Subject to section 258A, a law practice that exercises a power to deal with trust money must deal with the money only in accordance with the power relating to the money.
Maximum penalty: 50 penalty units.
(2)  The law practice must account for the money as required by the regulations.
Maximum penalty: 50 penalty units.
s 258: Am 2005 No 46, Sch 3 [13].
258A   Trust money received in the form of cash
(1) General trust money Trust money (other than controlled money and money that is the subject of a power) received in the form of cash must be deposited in a general trust account of the law practice concerned.
(2)  If the law practice has a written direction by an appropriate person to deal with trust money referred to in subsection (1) otherwise than by depositing it in a general trust account of the practice, the trust money must be deposited in the general trust account before it is otherwise dealt with in accordance with the direction, despite anything to the contrary in the direction.
(3) Controlled money Controlled money received in the form of cash must be deposited in a controlled money account in accordance with section 256.
(4) Transit money Transit money received in the form of cash must be deposited in a general trust account of the law practice concerned before it is otherwise dealt with in accordance with the instructions relating to the money, despite anything to the contrary in the instructions.
(5) Trust money subject of a power Trust money that is received in the form of cash and is the subject of a power must be deposited in a general trust account (or a controlled money account in the case of controlled money) of the law practice concerned before it is otherwise dealt with in accordance with the power, despite anything to the contrary in the power or any relevant direction.
s 258A: Ins 2005 No 46, Sch 3 [14].
259   Protection of trust money
(1)  Money standing to the credit of a trust account maintained by a law practice is not available for the payment of debts of the practice or any of its associates.
(2)  Money standing to the credit of a trust account maintained by a law practice is not liable to be attached or taken in execution for satisfying a judgment against the practice or any of its associates.
(3)  This section does not apply to money to which a law practice or associate is entitled.
260   Intermixing money
A law practice must not, otherwise than as allowed by the regulations, mix trust money with other money.
Maximum penalty: 100 penalty units.
261   Dealing with trust money: legal costs and unclaimed money
(1)  A law practice may do any of the following, in relation to trust money held in a general trust account or controlled money account of the practice for a person:
(a)  exercise a lien, including a general retaining lien, for the amount of legal costs reasonably due and owing by the person to the practitioner,
(b)  withdraw money for payment to the practice’s account for legal costs owing to the practice if the procedure prescribed in the regulations is complied with,
(c)  after deducting any legal costs properly owing to the practice, deal with the balance as unclaimed money under section 266 (Unclaimed money).
(2)  Subsection (1) applies despite any other provision of this Part but has effect subject to Part 3.2 (Costs disclosure and assessment).
262   Deficiency in trust account
(1)  An Australian legal practitioner is guilty of an offence if he or she, without reasonable excuse, causes:
(a)  a deficiency in any trust account or trust ledger account, or
(b)  a failure to pay or deliver any trust money.
Maximum penalty: 200 penalty units.
(2)  A reference in subsection (1) to an account includes a reference to an account of the practitioner or of the law practice of which the practitioner is an associate.
(3)  In this section:
cause includes be responsible for.
deficiency in a trust account or trust ledger account includes the non-inclusion or exclusion of the whole or any part of an amount that is required to be included in the account.
263   Reporting certain irregularities and suspected irregularities
(1)  As soon as practicable after a legal practitioner associate of a law practice becomes aware that there is an irregularity in any of the practice’s trust accounts or trust ledger accounts, the associate must give written notice of the irregularity to:
(a)  the Law Society Council, and
(b)  if a corresponding authority is responsible for the regulation of the accounts concerned—the corresponding authority.
Maximum penalty: 50 penalty units.
(2)  If an Australian legal practitioner believes on reasonable grounds that there is an irregularity in connection with the receipt, recording or disbursement of any trust money received by a law practice of which the practitioner is not a legal practitioner associate, the practitioner must, as soon as practicable after forming the belief, give written notice of it to:
(a)  the Law Society Council, and
(b)  if a corresponding authority is responsible for the regulation of the accounts relating to the trust money concerned—the corresponding authority.
Maximum penalty: 50 penalty units.
(3)  An Australian legal practitioner is not liable for any loss or damage suffered by another person as a result of the practitioner’s compliance with subsection (1) or (2).
264   Keeping trust records
(1)  A law practice must keep in permanent form trust records in relation to trust money received by the practice.
Maximum penalty: 100 penalty units.
(2)  The law practice must keep the trust records:
(a)  in accordance with the regulations, and
(b)  in a way that at all times discloses the true position in relation to trust money received for or on behalf of any person, and
(c)  in a way that enables the trust records to be conveniently and properly investigated or externally examined, and
(d)  for a period determined in accordance with the regulations.
Maximum penalty: 100 penalty units.
265   False names
(1)  A law practice must not knowingly receive money or record receipt of money in the practice’s trust records under a false name.
Maximum penalty: 100 penalty units.
(2)  If a person on whose behalf trust money is received by a law practice is commonly known by more than one name, the practice must ensure that the practice’s trust records record all names by which the person is known.
Maximum penalty: 100 penalty units.
266   Unclaimed money
(1)  If a law practice holding money in a trust account cannot find the person on whose behalf the money is held or a person authorised to receive it, the practice may:
(a)  pay the money to the Treasurer for credit to the Consolidated Fund, and
(b)  provide the Treasurer with such information as the Treasurer requires in relation to the money and the person on whose behalf the money was held by the practice.
(2)  If a law practice pays money to the Treasurer under subsection (1), the practice is relieved from any further liability in relation to the money.
(3)  The Treasurer must pay money deposited under this section to a person who satisfies the Treasurer as to his or her entitlement to the money.
(4)  Payment of money to a person under subsection (3):
(a)  discharges the Crown and the Treasurer from any liability in relation to the money, and
(b)  does not discharge the person from any liability to another person who establishes a right to the money.
(5)  The Treasurer may require any person to provide information that the person has, or can obtain, about the entitlement of a person to money paid to the Treasurer under this section and attempts made to locate the person.
(6)  A person of whom a requirement is made under subsection (5):
(a)  must comply with the requirement, and
(b)  must not, in purported compliance with the requirement, give information that he or she knows is false or misleading in a material particular.
Maximum penalty (subsection (6)): 20 penalty units.
Division 3 Investigations
267   Appointment of investigators
(1)  The Law Society Council may, in writing, appoint a suitably qualified person to investigate the affairs or specified affairs of a law practice.
(2)  The appointment may be made generally or for the law practice specified in the instrument of appointment.
(3)  An investigator may, with the approval of the Law Society Council, appoint an assistant.
268   Investigations
(1)  The instrument of appointment may authorise the investigator to conduct either or both of the following:
(a)  routine investigations on a regular or other basis,
(b)  investigations in relation to particular allegations or suspicions regarding trust money, trust property, trust accounts or any other aspect of the affairs of the law practice.
(2)  The principal purposes of an investigation are to ascertain whether the law practice has complied with or is complying with the requirements of this Part and the regulations under this Part and to detect and prevent fraud or defalcation, but this subsection does not limit the scope of the investigation or the powers of the investigator.
269   Application of Chapter 6
Chapter 6 (Provisions relating to investigations) applies to an investigation under this Division.
270   Investigator’s report
As soon as practicable after completing the investigation, the investigator must give a written report of the investigation to the Law Society Council.
271   When costs of investigation are debt
(1)  If:
(a)  an investigator states in his or her report of an investigation that there is evidence that a breach of this Act or the regulations has been committed or that fraud or defalcation has been committed, and
(b)  the Law Society Council is satisfied that the breach is wilful or of a substantial nature,
the Council may decide that the whole or part of the costs of carrying out the investigation is payable to the Council and may specify the amount payable.
(2)  The amount specified by the Law Society Council is a debt owing to the Council by the law practice whose affairs are under investigation.
s 271: Subst 2005 No 46, Sch 3 [15].
Division 4 External examinations
272   Designation of external examiners
(1)  The Law Society Council may, in writing, designate persons (referred to in this Division as designated persons) as being eligible to be appointed as external examiners.
(2)  Only designated persons may be appointed as external examiners.
(3)  A person appointed as an external examiner may, with the approval of the Law Society Council, appoint an assistant.
(4)  An employee or agent of the Law Society may be a designated person.
(5)  The Law Society Council may revoke a person’s designation under this section.
273   Designation and appointment of associates as external examiners
(1)  The Law Society Council may designate an associate of a law practice under this Division only if the Council is satisfied that it is appropriate to do so.
(2)  However, an associate of a law practice cannot be appointed as an external examiner under this Division to examine any trust records of a law practice of which he or she is an associate.
274   Law practice must have trust records externally examined
(1)  A law practice must at least once in each financial year have its trust records externally examined by an external examiner appointed in accordance with the regulations.
Maximum penalty: 100 penalty units.
(2)  The Law Society Council must ensure each law practice’s trust records are externally examined as required by this section.
(3)  If the Law Society Council is satisfied a law practice has not had the practice’s trust records externally examined as required by this section or that an external examination of the practice’s trust records has not been carried out in accordance with the regulations, the Council may appoint an external examiner to examine the practice’s trust records.
275   Final examination of trust records
(1)  This section applies if a law practice:
(a)  ceases to be authorised to receive trust money, or
(b)  ceases to engage in legal practice in this jurisdiction.
(2)  The law practice must appoint an external examiner to examine the practice’s trust records:
(a)  in respect of the period since an external examination was last conducted, and
(b)  in respect of each period thereafter, comprising a completed period of 12 months or any remaining partly completed period, during which the practice continued to hold trust money.
Maximum penalty: 50 penalty units.
(3)  The law practice must lodge with the Law Society:
(a)  a report of each examination under subsection (2) within 60 days after the end of the period to which the examination relates, and
(b)  a statutory declaration in the prescribed form within 60 days of ceasing to hold trust money.
Maximum penalty: 20 penalty units.
(4)  The law practice must ensure that, within 12 months after the law practice ceases to be authorised to receive trust money or ceases to engage in legal practice in this jurisdiction:
(a)  any general trust account maintained by the law practice in this jurisdiction is closed, and
(b)  trust money held in any such account is dealt with as required by this Act and the regulations (such as by being disbursed in accordance with a direction given by the person on whose behalf it was received).
(5)  If an Australian legal practitioner dies, the practitioner’s legal personal representative must comply with this section as if the representative were the practitioner.
(6)  Nothing in this section affects any other requirements under this Part.
276   Examination of affairs in connection with examination of trust records
(1)  An external examiner appointed to examine a law practice’s trust records may examine the affairs of the practice for the purposes of and in connection with an examination of the trust records.
(2)  If the law practice is an incorporated legal practice or multi-disciplinary partnership, the reference in subsection (1) to the affairs of the law practice extends to the affairs of the incorporated legal practice or multi-disciplinary partnership or of an associate, so far as they are relevant to trust money, trust records and associated matters.
(3)  A reference in this Division and Chapter 6 (Provisions relating to investigations) to trust records includes a reference to the affairs of a law practice that may be examined under this section for the purposes of and in connection with an examination of the practice’s trust records.
277   Carrying out examination
(1)  Chapter 6 (Provisions relating to investigations) applies to an external examination under this Division.
(2)  Subject to Chapter 6, an external examination of trust records is to be carried out in accordance with the regulations.
(3)  Without limiting subsection (2), the regulations may provide for the following:
(a)  the standards to be adopted and the procedures to be followed by external examiners,
(b)  the form and content of an external examiner’s report on an examination.
278   External examiner’s report
(1)  As soon as practicable after completing an external examination, an external examiner must give a written report of the examination to the Law Society.
(2)  The examiner must not disclose information in the report or acquired in carrying out the examination, unless permitted to do so under subsection (3) or under section 677 (Permitted disclosure of confidential information obtained in course of investigation, examination or audit).
Maximum penalty: 20 penalty units.
(3)  The examiner may disclose information in the report or acquired in carrying out the examination:
(a)  as is necessary for properly conducting the examination and making the report of the examination, or
(b)  to an investigator or a supervisor, manager or receiver appointed under this Act, or
(c)  if the law practice is an incorporated legal practice—to a receiver, receiver and manager, liquidator (including a provisional liquidator), controller, administrator or deed administrator appointed for the practice under the Corporations Act 2001 of the Commonwealth, or
(d)  to the law practice concerned or an associate of the law practice.
279   Law practice liable for costs of examination
(1)  A law practice whose trust accounts have been externally examined must pay the costs of the examination.
(2)  If the Law Society Council appointed the external examiner to carry out the examination, the Council may specify the amount payable as the costs of the examination, and the specified amount is a debt payable to it by the law practice.
Division 5 Provisions relating to ADIs
280   Approval of ADIs
(1)  The Law Society Council may approve ADIs at which trust accounts to hold trust money may be maintained.
(2)  The Law Society Council may impose conditions, of the kinds prescribed by the regulations, on an approval under this section, when the approval is given or during the currency of the approval, and may amend or revoke any conditions imposed.
(3)  The Law Society Council may revoke an approval given under this section.
281   ADI not subject to certain obligations and liabilities
(1)  An ADI at which a trust account is maintained by a law practice:
(a)  is not under any obligation to control or supervise transactions in relation to the account or to see to the application of money disbursed from the account, and
(b)  does not have, in relation to any liability of the law practice to the ADI, any recourse or right (whether by way of set-off counterclaim, charge or otherwise) against money in the account.
(2)  Subsection (1) does not relieve an ADI from any liability to which it is subject apart from this Act.
282   Reports, records and information
(1)  An ADI at which a trust account is maintained must report any deficiency in the account to the Law Society as soon as practicable after becoming aware of the deficiency.
Maximum penalty: 50 penalty units.
(2)  An ADI at which a trust account is maintained must report a suspected offence in relation to the trust account to the Law Society as soon as practicable after forming the suspicion.
Maximum penalty: 50 penalty units.
(3)  An ADI must furnish to the Law Society reports about trust accounts in accordance with the regulations.
Maximum penalty: 50 penalty units.
(4)  An ADI at which a trust account is maintained must without charge:
(a)  produce for inspection or copying by an investigator or external examiner any records relating to the trust account or trust money deposited in the trust account, and
(b)  provide the investigator or external examiner with full details of any transactions relating to the trust account or trust money,
on demand by the investigator or external examiner and on production to the ADI of evidence of the appointment of the investigator or the external examiner in relation to the law practice concerned.
Maximum penalty: 50 penalty units.
(5)  Subsections (1)–(4) apply despite any rule of law or duty of confidence to the contrary.
(6)  An ADI or an officer or employee of an ADI is not liable to any action for any loss or damage suffered by another person as a result of:
(a)  reporting a deficiency in accordance with subsection (1), or
(b)  making or furnishing a report in accordance with subsection (2) or (3), or
(c)  producing records or providing details in accordance with subsection (4).
s 282: Am 2005 No 46, Sch 3 [16].
Division 6 Statutory deposits
283   Statutory deposits
(1)  The regulations may require a law practice to pay amounts out of a general trust account of the practice into an ADI account maintained by the Law Society.
(2)  Without limiting subsection (1), the regulations may provide for the following:
(a)  the type of account to be maintained by the Law Society,
(b)  the amount of the payments to be made.
(3)  All interest on the money in the account is payable to the Law Society on account of the Public Purpose Fund.
(4)  This section applies despite any other provision of this Part.
284   Status and repayment of deposited money
(1)  Money paid under section 283 (Statutory deposits) into an ADI account maintained by the Law Society:
(a)  is held by the Law Society in trust for the law practice depositing the money, and
(b)  is repayable on demand.
(2)  Subsection (1) does not excuse a failure to comply with section 283 (Statutory deposits).
(3)  Until repaid, money deposited under section 283 (Statutory deposits) may be invested by the Law Society:
(a)  in accordance with Division 2 of Part 2 of the Trustee Act 1925 as if the money were trust funds, or
(b)  on deposit with the Treasurer, or
(c)  in an account with any ADI.
(4)  All interest on investments made under this section is payable to the Law Society on account of the Public Purpose Fund.
Division 7 Public Purpose Fund
285   Public Purpose Fund
(1)  There is to be established a fund called the “Public Purpose Fund”.
(2)  The following amounts are to be paid to the credit of the Fund:
(a)  interest payable to the Law Society on account of the Public Purposes Fund under section 283 (Statutory deposits), section 284 (Status and repayment of deposited money) and section 288 (Agreements relating to payment of interest on general trust accounts),
(b)  such other amounts as are payable to the Fund by or under this Act.
286   Trustees of Public Purpose Fund
(1)  There are to be Trustees of the Public Purpose Fund.
(2)  The Trustees consist of:
(a)  3 persons appointed by the Attorney General, of whom:
(i)  2 are to be members of the Law Society Council nominated by the President of the Law Society, and
(ii)  1 is to be a person whom the Attorney General considers to have appropriate qualifications and experience to act as a trustee, and
(b)  the Director-General.
(3)  Schedule 4 has effect with respect to the Trustees.
287   Management and control of Fund
(1)  The Trustees are to manage and control the Public Purpose Fund.
(2)  The Trustees may invest any amount standing to the credit of the Fund in accordance with Division 2 of Part 2 of the Trustee Act 1925 as if the money were trust funds.
(3)  The Trustees may enter into any agreement or arrangement with a person or body under which:
(a)  the person or body provides the Trustees with advice concerning the investment of any amount standing to the credit of the Fund, or
(b)  the person or body agrees to invest any such amount on behalf of the Trustees.
(4)  The Law Society is to administer the Fund on behalf of, and in accordance with the directions of, the Trustees.
288   Agreements relating to payment of interest on general trust accounts
(1)  All interest on money in any general trust account at an ADI is payable to the Law Society on account of the Public Purpose Fund.
(2)  The Trustees may enter into an agreement with an ADI relating to the manner of payment to the Public Purpose Fund of interest on money in any such trust account at the ADI.
289   Payments from Fund
(1)  The Trustees are to pay from the Public Purpose Fund the following:
(a)  any amounts payable from the Fund for a purpose referred to in section 290 (Payment of certain costs and expenses from Fund), in accordance with the approval of the Director-General under that section,
(b)  any amounts that the Trustees, with the concurrence of the Attorney General, determine should be paid from the Fund for a purpose referred to in section 292 (Discretionary payments from Fund for other purposes),
(c)  any amounts required to be paid from the Fund in accordance with an order of the Tribunal under section 566 (3) (Costs),
(d)  any costs or expenses incurred in collecting the interest payable to the Fund and in the management or administration of the Fund.
(2)  Payments from the Public Purpose Fund may be made from the capital or income of the Fund, at the discretion of the Trustees.
(3)  The fact that money is paid out of the Public Purpose Fund under this section does not preclude the recovery of that money in accordance with this Act from any person liable to pay the money. Any such money recovered must be paid to the credit of the Public Purpose Fund.
290   Payment of certain costs and expenses from Fund
(1)  Payments are to be made from the Public Purpose Fund for the purpose of meeting the following costs and expenses:
(a)  the costs of a Council in making representations, or being represented or heard, under section 30 (Entitlement to be represented, heard and make representations),
(b)  the costs of a Council in exercising its functions under Part 2.4 (Legal practice by Australian legal practitioners), including in responding to any appeal referred to in that Part,
(c)  the costs of a Council or the Commissioner in exercising its functions in taking action under section 107 (Orders or injunctions), 234 (Supreme Court orders about conditions) or 721 (Injunctions),
(d)  the costs of a Council in exercising its functions under Part 2.7 (Legal practice by foreign lawyers), including in responding to any appeal referred to in that Part,
(e)  the costs of a Council in exercising its functions under Division 3 of Part 2.2 and Parts 2.5, 2.6 and 3.4,
(f)  the costs of the Law Society Council (including its members, employees or agents) in respect of an investigation or external examination under this Part, to the extent that such costs are not recoverable under section 271 (When costs of investigation are debt) or 279 (Law practice liable for costs of examination),
(g)  the costs of the Advisory Council in exercising its functions for the purposes of this Act, including remuneration payable under Schedule 3 (see section 685 (Payment of costs of Advisory Council)),
(h)  the costs of a Council in connection with an external intervention in relation to a law practice (including costs in connection with an application under section 630 or an appeal under section 649) and any fees, costs and expenses payable from the Fund under section 652 (Fees, legal costs and expenses),
(i)  the costs of the Commissioner in exercising functions under Division 7 of Part 2.4,
(j)  the costs of the Commissioner or the Tribunal in relation to the administration of Chapter 4,
(k)  the costs of a Council in exercising its functions for the purposes of Chapter 4 (Complaints and discipline),
(l)  the costs of a Council or the Commissioner in relation to any proceedings in or on appeal from the Supreme Court with respect to the discipline of an Australian legal practitioner or an Australian-registered foreign lawyer, including in relation to proceedings concerning the inherent jurisdiction and powers of the Supreme Court as referred to in section 590 (Jurisdiction of Supreme Court),
(m)  the costs of a Council or the Commissioner in connection with the provision of mediators for the mediation of consumer disputes under Chapter 4 or costs disputes under Division 8 of Part 3.2,
(n)  the costs of the costs assessors’ rules committee in exercising its functions for the purposes of this Act (see section 394 (Rules of procedure for applications),
(o)  the costs of the Law Society Council or the Commissioner in connection with an audit of a law practice under section 670.
(2)  Such payments are to be made by the Trustees in accordance with the approval of the Director-General.
(3)  The Director-General is to approve the payment from the Fund of such amounts as the Director-General considers necessary for the purpose of meeting any reasonable costs and expenses referred to in subsection (1), having regard to any budget submitted under section 291 (Submission of budgets to Director-General).
(4)  An approval is subject to such conditions as the Director-General specifies in the approval.
(5)  Payments under this section are to be made in advance of the relevant cost or expense.
s 290: Am 2005 No 46, Sch 3 [17]–[21].
291   Submission of budgets to Director-General
(1)  For the purpose of determining the amount to be paid from the Public Purpose Fund for a purpose referred to in section 290 (Payment of certain costs and expenses from Fund), the Director-General may require the beneficiary of the payment to prepare and submit a budget to the Director-General, in respect of such period as the Director-General directs, relating to the costs or expenses of the beneficiary (including projected costs and expenses).
(2)  The budget is to include such information as the Director-General directs. In particular, the Director-General may require the provision of information about the administration of the beneficiary.
(3)  The Director-General may refuse to approve a payment under section 290 if the beneficiary has failed to submit a budget as required under this section.
(4)  In this section:
beneficiary of a payment means the person or body to whom or in respect of whom a payment from the Fund may be made.
292   Discretionary payments from Fund for other purposes
(1)  The Trustees may from time to time, with the concurrence of the Attorney General, determine that an amount is to be paid from the Public Purpose Fund for any of the following purposes:
(a)  the supplementation of any of the following funds:
(i)  the Legal Aid Fund,
(ii)  the Fidelity Fund,
(iii)  the Law and Justice Foundation Fund,
(b)  the promotion and furtherance of legal education in New South Wales,
(c)  the advancement, improvement and extension of the legal education of members of the community,
(d)  the conduct of research into the law, the legal system, law reform and the legal profession and into their impact on the community,
(e)  the furtherance of law reform,
(f)  the establishment and improvement of law libraries and the expansion of the community’s access to legal information,
(g)  the collection, assessment and dissemination of information relating to legal education, the law, the legal system, law reform, the legal profession and legal services,
(h)  the encouragement, sponsorship or support of projects aimed at facilitating access to legal information and legal services,
(i)  the improvement of the access of economically or socially disadvantaged people to the legal system, legal information or legal services.
(2)  The Trustees are to invite applications for payments from the Fund for the purposes referred to in this section at such intervals as the Director-General directs.
(3)  Before making a payment from the Fund for a purpose other than the supplementation of the Legal Aid Fund, the Trustees are to consider whether adequate provision has been made from the Fund for the purpose of supplementation of the Legal Aid Fund.
(4)  The Trustees may approve the making of a payment in advance under this section, but the period with respect to which the payment is made must not exceed 3 years.
(5)  A determination of the Trustees under this section may be made only by a unanimous decision of the Trustees. A unanimous decision is a decision supported unanimously at a meeting of the Trustees at which all the Trustees for the time being are present and vote.
(6)  This section does not require the Trustees to distribute all of the income or any of the capital of the Public Purpose Fund.
(7)  In this section:
Law and Justice Foundation Fund means the Law and Justice Foundation Fund established under the Law and Justice Foundation Act 2000.
Legal Aid Fund means the Legal Aid Fund established under the Legal Aid Commission Act 1979.
293   Performance audits
(1)  The Auditor-General may conduct a performance audit under Division 2A of Part 3 of the Public Finance and Audit Act 1983 of:
(a)  the activities of the Commissioner and the Councils for which costs and expenses may be paid from the Public Purpose Fund, and
(b)  the present and future liability of the Fund for the payment of those costs and expenses.
(2)  The performance audit may be conducted whenever the Auditor-General considers it appropriate.
(3)  For the purposes of the performance audit, Division 2A of Part 3 of the Public Finance and Audit Act 1983 applies as if the Attorney General were the head of the relevant authority.
294   Information about Fund to be included in Law Society Council report
(1)  As soon as practicable after 30 June in each year, the Trustees are to provide the Law Society Council with a report about the income and expenditure of the Public Purpose Fund for the period of 12 months ending on 30 June in that year.
(2)  The Law Society Council is to include a copy of the report of the Trustees in its annual report for the same period under section 700 (Council to submit annual report).
Division 8 Miscellaneous provisions
295   Restrictions on receipt of trust money
(1)  A law practice (other than an incorporated legal practice) must not receive trust money unless a principal holds an Australian practising certificate authorising the receipt of trust money.
Maximum penalty: 200 penalty units.
(2), (3)    (Repealed)
(4)  An incorporated legal practice must not receive trust money unless:
(a)  at least one legal practitioner director of the practice holds an Australian practising certificate authorising the receipt of trust money, or
(b)  a person is holding an appointment under section 142 (Incorporated legal practice without legal practitioner director) in relation to the practice and the person holds an Australian practising certificate authorising the receipt of trust money, or
(c)  the money is received during any period during which the practice:
(i)  does not have any legal practitioner directors, and
(ii)  is not in default of director requirements under section 142,
so long as there was, immediately before the start of that period, at least one legal practitioner director of the practice who held an Australian practising certificate authorising the receipt of trust money.
Maximum penalty: 200 penalty units.
s 295: Am 2005 No 46, Sch 3 [22].
296   Application of Part to incorporated legal practices and multi-disciplinary partnerships
(1)  The regulations may provide that specified provisions of this Part, and any other provisions of this Act or any provisions of the regulations or legal profession rules relating to trust money and trust accounts, do not apply to incorporated legal practices or multi-disciplinary partnerships or both or apply to them with specified modifications.
(2)  For the purposes of the application of the provisions of this Part, and any other provisions of this Act or any provisions of the regulations or any legal profession rules relating to trust money and trust accounts, to an incorporated legal practice or multi-disciplinary partnership:
(a)  the obligations and rights of a law practice under those provisions extend to an incorporated legal practice or multi-disciplinary partnership, but only in connection with legal services provided by the practice or partnership, and
(b)  money received by a law practice on behalf of another person includes money received by any officer or employee of the incorporated legal practice or multi-disciplinary partnership on behalf of another person in the course of providing legal services.
297   Application of Part to community legal centres
(1)  The regulations may provide that specified provisions of this Part, and any other provisions of this Act or any provisions of the regulations or legal profession rules relating to trust money and trust accounts, do not apply to complying community legal centres or apply to them with specified modifications.
(2)  For the purposes of the application of the provisions of this Part, and any other provisions of this Act or any provisions of the regulations or legal profession rules relating to trust money and trust accounts, to a complying community legal centre:
(a)  the obligations and rights of an Australian legal practitioner under those provisions extend to a complying community legal centre that is a body corporate, but only in connection with legal services provided by the centre, and
(b)  money received by an Australian legal practitioner on behalf of another person in the course of practising as an Australian legal practitioner includes money received by any officer or employee of the complying community legal centre on behalf of another person in the course of providing legal services.
(3)  In this section:
employee of a complying community legal centre includes a person whose services are made use of by the community legal centre in connection with the provision of legal services by the centre.
298   Disclosure to clients—money not received as trust money
(1)  When money entrusted to a law practice is not trust money for the purposes of this Act because of section 244 (Money involved in financial services or investments) or because of a determination under section 245 (Determinations about status of money), the law practice must notify the person who entrusted the money that:
(a)  the money is not treated as trust money for the purposes of this Act and is not subject to any supervision, investigation or audit requirements of this Act, and
(b)  a claim against the Fidelity Fund under this Act cannot be made in respect of the money.
Maximum penalty: 20 penalty units.
(2)  The notification must be given to the person at the time the money is entrusted to the law practice.
(3)  Legal profession rules may make provision for or with respect to the form and manner in which notification required by this section is to be given and the contents of the notification.
299   Disclosure of accounts used to hold money entrusted to legal practitioners
A law practice must in accordance with the regulations notify the appropriate Council of the details required by the regulations of each account maintained at an ADI in which the law practice or any legal practitioner associate of the law practice holds money entrusted to the law practice or legal practitioner associate, whether or not the money is trust money and whether or not section 244 (Money involved in financial services or investments) or 245 (Determinations about status of money) applies to the money.
Maximum penalty: 50 penalty units.
300   Regulations
The regulations may make provision for or with respect to any matter to which this Part relates, including for or with respect to:
(a)  the establishment, maintenance and closure of general trust accounts and controlled money accounts, and
(b)  the manner of receiving, depositing, withdrawing, making records about and otherwise dealing with and accounting for trust money, and
(c)  without limiting paragraph (a) or (b):
(i)  the keeping and reconciliation of trust records, and
(ii)  the establishment and keeping of trust ledger accounts, and
(iii)  the establishment and keeping of records about controlled money and transit money, and
(iv)  the establishment and keeping of registers of powers and estates where trust money is involved, and
(v)  the recording of information about the investment of trust money, and
(vi)  the furnishing of statements regarding trust money, and
(d)  the notification to the Law Society Council of information relating directly or indirectly to matters to which this Part relates, including information about:
(i)  trust accounts, trust money and trust records, and
(ii)  the proposed or actual termination of a law practice that holds trust money, and
(iii)  the proposed or actual termination of engaging in legal practice in this jurisdiction by a law practice that holds trust money, and
(iv)  the proposed or actual restructuring of the business of a law practice so that it no longer holds or no longer will hold trust money, and
(e)  the creation and exercise of liens over trust money, and
(f)  providing exemptions, or providing for the giving of exemptions, from all or any specified requirements of this Part.
s 300: Subst 2005 No 46, Sch 3 [23].
Part 3.2 Costs disclosure and assessment
Division 1 Preliminary
301   Purposes
The purposes of this Part are as follows:
(a)  to provide for law practices to make disclosures to clients and prospective clients regarding legal costs,
(b)  to regulate the making of costs agreements in respect of legal services, including conditional costs agreements,
(c)  to regulate the billing of costs for legal services,
(d)  to provide a mechanism for the review of legal costs and the setting aside of certain costs agreements.
302   Definitions
(1)  In this Part:
bill means a bill of costs for providing legal services.
business day means a day other than a Saturday, a Sunday or a bank or public holiday.
conditional costs agreement means a costs agreement that provides that the payment of some or all of the legal costs is conditional on the successful outcome of the matter to which those costs relate, as referred to in section 323 (Conditional costs agreements), but does not include a costs agreement to the extent to which section 324 (Conditional costs agreement involving uplift fees) or section 325 (Contingency fees are prohibited) applies.
costs includes fees, charges, disbursements, expenses and remuneration.
costs agreement means an agreement about the payment of legal costs.
costs assessment means an assessment of legal costs under Division 11.
costs assessor means a person appointed as a costs assessor under Division 11.
disbursements includes outlays.
fixed costs provision means a determination, scale, arrangement or other provision fixing the costs or maximum costs of any legal services that is made by or under legislation.
itemised bill means a bill that specifies in detail how the legal costs are made up in a way that would allow them to be assessed under Division 11.
litigious matter means a matter that involves, or is likely to involve, the issue of proceedings in a court or tribunal.
Note—
A matter is a litigious matter when proceedings are initiated or at any stage when proceedings are reasonably likely.
lump sum bill means a bill that describes the legal services to which it relates and specifies the total amount of the legal costs.
(2)  In this Part, a reference to a law practice includes a reference to:
(a)  in the case of a person who was a sole practitioner when the legal services concerned were provided:
(i)  the former sole practitioner, or
(ii)  the executor of the will of the former sole practitioner, or
(iii)  the trustee or administrator of the estate of the former sole practitioner, and
(b)  subject to any other applicable arrangements:
(i)  the persons who were the partners of a former law firm or multi-disciplinary partnership when the legal services concerned were provided, and
(ii)  in the case of a law firm or multi-disciplinary partnership where there has been a change of partners since the legal services concerned were provided—subject to any other applicable arrangements, the firm or partnership as currently constituted, and
(iii)  the assignee of a law practice or former law practice, and
(iv)  the receiver of a law practice or former law practice appointed under this Act, and
(c)  any person of a class prescribed by the regulations for the purposes of this subsection.
Division 2 Application of this Part
303   Application of Part—first instructions rule
This Part applies to a matter if the client first instructs the law practice in relation to the matter in this jurisdiction.
304   Part also applies by agreement or at client’s election
(1)  This Part applies to a matter if:
(a)  either:
(i)  this Part does not currently apply to the matter, or
(ii)  it is not possible to determine the jurisdiction in which the client first instructs the law practice in relation to the matter, and
(b)  either:
(i)  the legal services are or will be provided wholly or primarily in this jurisdiction, or
(ii)  the matter has a substantial connection with this jurisdiction,
or both, and
(c)  either:
(i)  the client signs an agreement under subsection (2) (a) in respect of the matter, or
(ii)  the client gives a notification under subsection (2) (b) in respect of the matter.
(2)  For the purposes of subsection (1) (c), the client may:
(a)  sign a written agreement with the law practice that this Part is to apply to the matter, or
(b)  notify the law practice in writing that the client requires this Part to apply to the matter.
(3)  A notification has no effect for the purposes of subsection (2) (b) if it is given after the period of 28 days after the law practice discloses to the client (under a corresponding law) information about the client’s right to make a notification of that kind, but nothing in this subsection prevents an agreement referred to in subsection (2) (a) from coming into effect at any time.
305   Displacement of Part
(1)  This section applies if this Part applies to a matter by the operation of section 303 or 304.
(2)  This Part ceases to apply to the matter if:
(a)  either:
(i)  the legal services are or will be provided wholly or primarily in another jurisdiction, or
(ii)  the matter has a substantial connection with another jurisdiction,
or both, and
(b)  either:
(i)  the client signs under the corresponding law of the other jurisdiction a written agreement with the law practice that the corresponding provisions of the corresponding law apply to the matter, or
(ii)  the client notifies under the corresponding law of the other jurisdiction (and within the time allowed by the corresponding law) the law practice in writing that the client requires the corresponding provisions of the corresponding law to apply to the matter.
(3)  Nothing in this section prevents the application of this Part to the matter by means of a later agreement or notification under section 304.
306   How and when does a client first instruct a law practice?
A client first instructs a law practice in relation to a matter in a particular jurisdiction if the law practice first receives instructions from the client in relation to the matter in that jurisdiction, whether in person or by post, telephone, fax, e-mail or other form of communication.
s 306: Subst 2005 No 46, Sch 3 [24].
307   When does a matter have a substantial connection with this jurisdiction?
The regulations may prescribe the circumstances in which, or the rules to be used to determine whether, a matter has or does not have a substantial connection with this jurisdiction for the purposes of this Part.
308   What happens when different laws apply to a matter?
(1)  This section applies if this Part applies to a matter for a period and a corresponding law applies for another period.
(2)  If this Part applied to a matter for a period and a corresponding law applies to the matter afterwards, this Part continues to apply in respect of legal costs (if any) incurred while this Part applied to the matter.
(3)  If a corresponding law applied to a matter for a period and this Part applies to the matter afterwards, this Part does not apply in respect of legal costs (if any) incurred while the corresponding law applied to the matter, so long as the corresponding law continues to apply in respect of those costs.
(4)  However:
(a)  the client may sign a written agreement with the law practice that the cost assessment provisions of this Part are to apply in respect of all legal costs incurred in relation to the matter, and Division 11 (Costs assessment) accordingly applies in respect of those legal costs, or
(b)  if the client signs a written agreement with the law practice that the cost assessment provisions of a corresponding law are to apply in respect of all legal costs incurred in relation to the matter, Division 11 accordingly does not apply in respect of those legal costs.
(5)  This section has effect despite any other provisions of this Part.
Division 3 Costs disclosure
309   Disclosure of costs to clients
(1)  A law practice must disclose to a client or prospective client in accordance with this Division:
(a)  the basis on which legal costs will be calculated, including whether a fixed costs provision applies to any of the legal costs, and
(b)  the client’s or prospective client’s right to:
(i)  negotiate a costs agreement with the law practice, and
(ii)  receive a bill from the law practice, and
(iii)  request an itemised bill within 30 days after receipt of a lump sum bill, and
(iv)  be notified under section 316 of any substantial change to the matters disclosed under this section, and
(c)  an estimate of the total legal costs if reasonably practicable or, if it is not reasonably practicable to estimate the total legal costs, a range of estimates of the total legal costs and an explanation of the major variables that will affect the calculation of those costs, and
(d)  details of the intervals (if any) at which the client or prospective client will be billed, and
(e)  the rate of interest (if any) that the law practice charges on overdue legal costs, and
(f)  if the matter is a litigious matter, an estimate of:
(i)  the range of costs that may be recovered if the client or prospective client is successful in the litigation, and
(ii)  the range of costs the client or prospective client may be ordered to pay if the client or prospective client is unsuccessful, and
(g)  the client’s or prospective client’s right to progress reports in accordance with section 318, and
(h)  details of the person whom the client or prospective client may contact to discuss the legal costs, and
(i)  the following avenues that are open to the client or prospective client in the event of a dispute in relation to legal costs:
(i)  costs assessment under Division 11,
(ii)  the setting aside of a costs agreement under section 328 (Setting aside costs agreements),
(iii)  mediation under Division 8, and
(j)  any time limits that apply to the taking of any action referred to in paragraph (i), and
(k)  that the law of this jurisdiction applies to legal costs in relation to the matter, and
(l)  information about the client’s or prospective client’s right:
(i)  to sign under a corresponding law a written agreement with the law practice that the corresponding provisions of the corresponding law apply to the matter, or
(ii)  to notify under a corresponding law (and within the time allowed by the corresponding law) the law practice in writing that the client or prospective client requires the corresponding provisions of the corresponding law to apply to the matter.
Note—
The client’s or prospective client’s right to sign an agreement or give a notification as mentioned in paragraph (l) will be under provisions of the law of the other jurisdiction that correspond to section 304 (Part also applies by agreement or at client’s election).
(2)  For the purposes of subsection (1) (f), the disclosure must include:
(a)  a statement that an order by a court for the payment of costs in favour of the client or prospective client will not necessarily cover the whole of the client’s or prospective client’s legal costs, and
(b)  if applicable, a statement that disbursements may be payable by the client or prospective client even if the client or prospective client enters a conditional costs agreement.
s 309: Am 2005 No 46, Sch 3 [25].
310   Disclosure if another law practice is to be retained
(1)  If a law practice intends to retain another law practice on behalf of the client, the first law practice must disclose to the client the details specified in section 309 (1) (a), (c) and (d) in relation to the other law practice, in addition to any information required to be disclosed to the client under section 309.
(2)  A law practice retained or to be retained on behalf of a client by another law practice is not required to make disclosure to the client under section 309, but must disclose to the other law practice the information necessary for the other law practice to comply with subsection (1).
(3)  This section does not apply if the first law practice ceases to act for the client in the matter when the other law practice is retained.
Note—
An example of the operation of this section is where a barrister is retained by a firm of solicitors on behalf of a client of the firm. The barrister must disclose to the firm details of the barrister’s legal costs and billing arrangements, and the firm must disclose those details to the client. The barrister is not required to make a disclosure directly to the client.
s 310: Am 2005 No 46, Sch 3 [26].
311   How and when must disclosure be made?
(1)  Disclosure under section 309 must be made in writing before, or as soon as practicable after, the law practice is retained in the matter.
(2)  Disclosure under section 310 (1) must be made in writing before the other law practice is retained except in urgent circumstances, in which case it may be made orally before the law practice is retained and confirmed in writing as soon as practicable afterwards.
312   Exceptions to requirement for disclosure
(1)  Disclosure under section 309 or 310 (1) is not required to be made in any of the following circumstances:
(a)  if the total legal costs in the matter, excluding disbursements, are not likely to exceed $750 or the amount prescribed by the regulations (whichever is higher),
(b)  if:
(i)  the client has received one or more disclosures under section 309 or 310 (1) from the law practice in the previous 12 months, and
(ii)  the client has agreed in writing to waive the right to disclosure, and
(iii)  a principal of the law practice decides on reasonable grounds that, having regard to the nature of the previous disclosures and the relevant circumstances, the further disclosure is not warranted,
(c)  if the client or prospective client is:
(i)  a law practice or an Australian legal practitioner, or
(ii)  a public company, a subsidiary of a public company, a foreign company, a subsidiary of a foreign company or a registered Australian body (within the meaning of the Corporations Act 2001 of the Commonwealth), or
(iii)  a financial services licensee (within the meaning of the Corporations Act 2001 of the Commonwealth), or
(iv)  a Minister of the Crown in right of a jurisdiction or the Commonwealth acting in his or her capacity as such, or a government department or public authority of a jurisdiction or the Commonwealth,
(d)  if the legal costs or the basis on which they will be calculated have or has been agreed as a result of a tender process,
(e)  if the client or prospective client will not be required to pay the legal costs or they will not otherwise be recovered by the law practice,
Note—
For instance, disclosure would not be required where the law practice acts in the matter on a pro bono basis.
(f)  in any circumstances prescribed by the regulations.
(2)  Despite subsection (1) (a), if a law practice becomes aware that the total legal costs are likely to exceed $750 or the amount prescribed by the regulations (whichever is higher), the law practice must disclose the matters in section 309 or 310 (as the case requires) to the client as soon as practicable.
(3)  A law practice must ensure that a written record of a principal’s decision that further disclosure is not warranted as mentioned in subsection (1) (b) is made and kept with the files relating to the matter concerned.
(4)  The reaching of a decision referred to in subsection (3) otherwise than on reasonable grounds is capable of being unsatisfactory professional conduct or professional misconduct on the part of the principal.
(5)  Nothing in this section affects or takes away from any client’s right:
(a)  to progress reports in accordance with section 318, or
(b)  to obtain reasonable information from the law practice in relation to any of the matters specified in section 309, or
(c)  to negotiate a costs agreement with a law practice and to obtain a bill from the law practice.
313   Additional disclosure—settlement of litigious matters
(1)  If a law practice negotiates the settlement of a litigious matter on behalf of a client, the law practice must disclose to the client, before the settlement is executed:
(a)  a reasonable estimate of the amount of legal costs payable by the client if the matter is settled (including any legal costs of another party that the client is to pay), and
(b)  a reasonable estimate of any contributions towards those costs likely to be received from another party.
(2)  A law practice retained on behalf of a client by another law practice is not required to make a disclosure to the client under subsection (1), if the other law practice makes the disclosure to the client before the settlement is executed.
314   Additional disclosure—uplift fees
If a costs agreement involves an uplift fee, the law practice must disclose to the client in writing, before entering the agreement the law practice’s usual fees, the uplift fee (expressed as a percentage of those fees) and reasons why the uplift fee is warranted.
315   Form of disclosure
(1)  Written disclosures under this Division:
(a)  must be expressed in clear plain language, and
(b)  may be in a language other than English if the client or prospective client is more familiar with that language.
(2)  If the law practice is aware that the client or prospective client is unable to read, the law practice must arrange for the information required to be given to a client or prospective client under this Division to be conveyed orally to the client or prospective client in addition to providing the written disclosure.
316   Ongoing obligation to disclose
A law practice must notify the client in writing of any substantial change to anything included in a disclosure under this Division as soon as is reasonably practicable after the law practice becomes aware of that change.
317   Effect of failure to disclose
(1)  If a law practice does not disclose to a client anything required by this Division to be disclosed, the client need not pay the legal costs unless they have been assessed under Division 11.
Note—
Under section 369 (Recovery of costs of costs assessment), the costs of an assessment in these circumstances are payable by the law practice.
(2)  If a law practice does not disclose to a client anything required by this Division to be disclosed and the client has entered a costs agreement with the law practice, the client may also apply under section 328 for the costs agreement to be set aside.
(3)  A law practice that does not disclose to a client anything required by this Division to be disclosed may not maintain proceedings for the recovery of legal costs unless the costs have been assessed under Division 11.
(4)  Failure by a law practice to comply with this Division is capable of being unsatisfactory professional conduct or professional misconduct on the part of any Australian legal practitioner or Australian-registered foreign lawyer involved in the failure.
318   Progress reports
(1)  A law practice must give a client, on reasonable request:
(a)  a written report of the progress of the matter in which the law practice is retained, and
(b)  a written report of the legal costs incurred by the client to date, or since the last bill (if any), in the matter.
(2)  A law practice may charge a client a reasonable amount for a report under subsection (1) (a) but must not charge a client for a report under subsection (1) (b).
(3)  A law practice retained on behalf of a client by another law practice is not required to give a report to the client under subsection (1), but must disclose to the other law practice any information necessary for the other law practice to comply with that subsection.
(4)  Subsection (3) does not apply if the other law practice ceases to act for the client in the matter when the law practice is retained.
Division 4 Legal costs generally
319   On what basis are legal costs recoverable?
(1)  Subject to the provisions of this Part, legal costs are recoverable:
(a)  in accordance with an applicable fixed costs provision, or
(b)  if paragraph (a) does not apply, under a costs agreement made in accordance with Division 5 or the corresponding provisions of a corresponding law, or
(c)  if neither paragraph (a) or (b) applies, according to the fair and reasonable value of the legal services provided.
(2)  However, the following kinds of costs are not recoverable:
(a)  the costs associated with the preparation of a bill for a client,
(b)  the costs associated with the making of disclosures for the purposes of Division 3,
(c)  the costs associated with the making of a costs agreement with a client.
s 319: Am 2005 No 46, Sch 3 [27].
320   Security for legal costs
A law practice may take reasonable security from a client for legal costs (including security for the payment of interest on unpaid legal costs).
321   Interest on unpaid legal costs
(1)  A law practice may charge interest on unpaid legal costs if the costs are unpaid 30 days or more after the practice has given a bill for the costs in accordance with this Part.
(2)  A law practice may also charge interest on unpaid legal costs in accordance with a costs agreement.
(3)  A law practice must not charge interest under subsection (1) or (2) on unpaid legal costs unless the bill for those costs contains a statement that interest is payable and of the rate of interest.
(4)  A law practice may not charge interest under this section or under a costs agreement at a rate that exceeds:
(a)  except as provided by paragraph (b)—the rate prescribed under the Supreme Court Act 1970 in respect of unpaid judgments of the Supreme Court, or
(b)  the rate prescribed by the regulations.
s 321: Am 2005 No 46, Sch 3 [28].
Division 5 Costs agreements
322   Making costs agreements
(1)  A costs agreement may be made:
(a)  between a client and a law practice retained by the client, or
(b)  between a client and a law practice retained on behalf of the client by another law practice, or
(c)  between a law practice and another law practice that retained that law practice on behalf of a client.
(2)  A costs agreement must be written or evidenced in writing.
(3)  A costs agreement may consist of a written offer in accordance with subsection (4) that is accepted in writing or by other conduct.
Note—
Acceptance by other conduct is not permitted for conditional costs agreements—see section 323 (3) (c) (i).
(4)  The offer must clearly state:
(a)  that it is an offer to enter a costs agreement, and
(b)  that the client may accept it in writing or by other conduct, and
(c)  the type of conduct that will constitute acceptance.
(5)  A costs agreement cannot provide that the legal costs to which it relates are not subject to costs assessment under Division 11.
Note—
If it attempts to do so, the costs agreement will be void—see section 327 (1).
323   Conditional costs agreements
(1)  A costs agreement may provide that the payment of some or all of the legal costs is conditional on the successful outcome of the matter to which those costs relate, and a costs agreement containing a provision of that kind is referred to in this Act as a conditional costs agreement.
(2)  A conditional costs agreement may relate to any matter, except a matter that involves criminal proceedings or proceedings under the Family Law Act 1975 of the Commonwealth.
(3)  A conditional costs agreement:
(a)  must set out the circumstances that constitute the successful outcome of the matter to which it relates, and
(b)  may provide for disbursements to be paid irrespective of the outcome of the matter, and
(c)  must be:
(i)  in writing, and
(ii)  in clear plain language, and
(iii)  signed by the client, and
(d)  must contain a statement that the client has been informed of the client’s right to seek independent legal advice before entering into the agreement, and
(e)  must contain a cooling-off period of not less than 5 clear business days during which the client, by written notice, may terminate the agreement.
(4)  Subsection (3) (c) (iii), (d) and (e) do not apply to a conditional costs agreement made under section 322 (1) (c) (Costs agreements between law practices).
(5)  If a client terminates an agreement within the period referred to in subsection (3) (e), the law practice may recover only those legal costs in respect of legal services performed for the client before that termination that were reasonably necessary to preserve the client’s rights.
324   Conditional costs agreements involving uplift fees
(1)  A law practice must not enter into a conditional costs agreement in relation to a claim for damages that provides for the payment of a premium on the legal costs payable under the agreement on the successful outcome of the claim to which the costs relate.
(2)  Except as provided by subsection (1), a conditional costs agreement may provide for the payment of a reasonable premium on the legal costs (excluding unpaid disbursements) otherwise payable under the agreement on the successful outcome of the matter to which those costs relate.
Note—
Section 314 requires a law practice to make certain disclosures to a client before entering into a costs agreement that provides for an uplift fee.
(3)  The premium must be a specified percentage of the legal costs (excluding unpaid disbursements) otherwise payable and must be separately identified in the agreement.
(4)  The premium is not to exceed 25% of those costs.
(5)  However, the regulations may vary that maximum percentage of costs. Different percentages may be prescribed for different circumstances.
(6)  A law practice must not enter into a costs agreement in contravention of this section.
Maximum penalty: 100 penalty units.
325   Contingency fees are prohibited
(1)  A law practice must not enter into a costs agreement under which the amount payable to the law practice, or any part of that amount, is calculated by reference to:
(a)  the value of any property or of any transaction involved in the matter to which the agreement relates, or
(b)  the amount of any award or settlement or the value of any property that may be recovered in any proceedings to which the agreement relates.
Maximum penalty: 100 penalty units.
(2)  Subsection (1) does not apply to the extent that the costs agreement adopts an applicable fixed costs provision.
326   Effect of costs agreement
Subject to this Division and Division 11, a costs agreement may be enforced in the same way as any other contract.
327   Certain costs agreements are void
(1)  A costs agreement that contravenes, or is entered into in contravention of, any provision of this Division is void.
(2)  Subject to this section and Division 11, legal costs under a void costs agreement are recoverable as set out in section 319 (1) (a) or (c) (On what basis are legal costs recoverable?).
(3)  However, a law practice is not entitled to recover any amount in excess of the amount that the law practice would have been entitled to recover if the costs agreement had not been void and must repay any excess amount received.
(4)  A law practice that has entered into a costs agreement in contravention of section 324 (Conditional costs agreements involving uplift fees) or 325 (Contingency fees are prohibited) is not entitled to recover any amount in respect of the provision of legal services in the matter to which the costs agreement related and must repay any amount received in respect of those services to the person from whom it was received.
(5)  If a law practice does not repay an amount required by subsection (3) or (4) to be repaid, the person entitled to be repaid may recover the amount from the law practice as a debt in a court of competent jurisdiction.
328   Setting aside costs agreements
(1)  On application by a client, a costs assessor may order that a costs agreement be set aside if satisfied that the agreement is not fair or reasonable.
Note—
Section 317 (2) also enables a client to make an application under this section for an order setting aside a costs agreement where the law practice concerned has failed to make the disclosures concerning costs required by Division 3.
(2)  In determining whether or not a costs agreement is fair or reasonable, the costs assessor may have regard to any or all of the following matters:
(a)  whether the client was induced to enter into the agreement by the fraud or misrepresentation of the law practice or of any representative of the law practice,
(b)  whether any Australian legal practitioner or Australian-registered foreign lawyer acting on behalf of the law practice has been found guilty of unsatisfactory professional conduct or professional misconduct in relation to the provision of legal services to which the agreement relates,
(c)  whether the law practice failed to make any of the disclosures required under Division 3,
(d)  the time at which the agreement was made.
(3)  The costs assessor may decline to deal with an application under this section pending the completion of any investigation or determination of any information in relation to the conduct of any Australian legal practitioner or Australian-registered foreign lawyer.
(4)  If the costs assessor determines that a costs agreement be set aside, the assessor may make an order in relation to the payment of legal costs the subject of the agreement.
(5)  In making an order under subsection (4), the costs assessor must determine the fair and reasonable legal costs in relation to the work to which the agreement related, taking into account:
(a)  the seriousness of the conduct of the law practice or any Australian legal practitioner or Australian-registered foreign lawyer acting on its behalf, and
(b)  whether or not it was reasonable to carry out the work, and
(c)  whether or not the work was carried out in a reasonable manner.
(6)  In making an order under subsection (4), the costs assessor may not order the payment of an amount in excess of the amount that the law practice would have been entitled to recover if the costs agreement had not been set aside.
(7)  For the purposes of subsection (5), the costs assessor may have regard to any or all of the following matters:
(a)  whether the law practice and any Australian legal practitioner or Australian-registered foreign lawyer acting on its behalf complied with any relevant legislation or legal profession rules,
(b)  any disclosures made by the law practice under Division 3, or the failure to make any disclosures required under that Division,
(c)  any relevant advertisement as to:
(i)  the law practice’s costs, or
(ii)  the skills of the law practice or of any Australian legal practitioner or Australian-registered foreign lawyer acting on its behalf,
(d)  the skill, labour and responsibility displayed on the part of the Australian legal practitioner or Australian-registered foreign lawyer responsible for the matter,
(e)  the retainer and whether the work done was within the scope of the retainer,
(f)  the complexity, novelty or difficulty of the matter,
(g)  the quality of the work done,
(h)  the place where, and circumstances in which, the work was done,
(i)  the time within which the work was required to be done,
(j)  any other relevant matter.
(8)  The costs assessor may determine whether or not a costs agreement exists.
(9)  The costs assessor may order the payment of the costs of and incidental to determining an application under this section.
(9A)  A costs assessor must ensure that an order or determination under this section is accompanied by a statement of the reasons for the order or determination.
(10)  A party to a costs agreement may apply to the Manager, Costs Assessment under section 373 for a review of a determination to make, or not make, an order under subsection (1) or (4).
s 328: Am 2005 No 46, Sch 3 [29]–[34].
Division 6 Costs fixed by regulations
329   Regulations to provide for fixed costs
(1)  The regulations may make provision for or with respect to the following:
(a)  fixing fair and reasonable costs for legal services provided in any workers compensation matter,
(b)  fixing the costs payable for legal services provided in connection with any claim for personal injury damages (within the meaning of the Civil Liability Act 2002),
(c)  fixing the costs payable for the enforcement of a lump sum debt or liquidated sum for damages,
(d)  fixing the costs payable for the enforcement of a judgment by a judgment creditor,
(e)  fixing the costs payable for legal services provided in respect of probate or the administration of estates,
(f)  fixing an amount of costs for a matter that is not a legal service but is related to proceedings (for example, expenses for witnesses).
(2)  A law practice is not entitled to be paid or recover for a legal service an amount that exceeds the fair and reasonable cost fixed for the service by the regulations under this section.
330   Provisions relating to regulations generally
(1)  The regulations may fix a cost under this Division for a particular legal service, for a class of legal services or for any part of a legal service.
(2)  The regulations may fix a cost under this Division:
(a)  as a gross amount for legal services, or
(b)  as an amount for specified elements in the legal services provided (for example, documents prepared), or
(c)  in any other manner.
Division 7 Billing
331   Legal costs cannot be recovered unless bill has been served
(1)  A law practice must not commence legal proceedings to recover legal costs from a person until at least 30 days after the law practice has given a bill to the person in accordance with sections 332 (Bills) and 333 (Notification of client’s rights).
(2)  The Supreme Court may make an order authorising a law practice to commence legal proceedings against a person sooner if satisfied that:
(a)  the law practice has given a bill to the person in accordance with sections 332 and 333, and
(b)  the person is about to leave this jurisdiction.
(3)  A court or tribunal before which any proceedings are brought in contravention of subsection (1) must stay those proceedings on the application of a party, or on its own initiative.
(4)  This section applies whether or not the legal costs are the subject of a costs agreement.
332   Bills
(1)  A bill may be in the form of a lump sum bill or an itemised bill.
(2)  A bill must be signed on behalf of a law practice by an Australian legal practitioner or an employee of the law practice.
(3)  It is sufficient compliance with subsection (2) if a letter signed on behalf of a law practice by an Australian legal practitioner or an employee of the law practice is attached to, or enclosed with, the bill.
(4)  A bill or letter is taken to have been signed by a law practice that is an incorporated legal practice if it has the practice’s seal affixed to it or is signed by a legal practitioner director of the practice or an officer or employee of the practice who is an Australian legal practitioner.
(5)  A bill is to be given to a person:
(a)  by delivering it personally to the person or to an agent of the person, or
(b)  by sending it by post to the person or agent at:
(i)  the usual or last known business or residential address of the person or agent, or
(ii)  an address nominated for the purpose by the person or agent, or
(c)  by leaving it for the person or agent at:
(i)  the usual or last known business or residential address of the person or agent, or
(ii)  an address nominated for the purpose by the person or agent,
with a person on the premises who is apparently at least 16 years old and apparently employed or residing there, or
(d)  by sending it by facsimile transmission to a number specified by the person (by correspondence or otherwise) as a number to which facsimile transmissions to that person may be sent, or
(e)  by delivering it to the appropriate place in a document exchange in which the person has receiving facilities, or
(f)  in any other way authorised by the regulations.
(6)  A reference in subsection (5) to any method of giving a bill to a person includes a reference to arranging for the bill to be given to that person by that method (for example, by delivery by courier).
(7)  In this section:
agent of a person means an agent, law practice or Australian legal practitioner who has authority to accept service of legal process on behalf of the person.
333   Notification of client’s rights
A bill must include or be accompanied by a written statement setting out:
(a)  the following avenues that are open to the client in the event of a dispute in relation to legal costs:
(i)  costs assessment under Division 11,
(ii)  the setting aside of a costs agreement under section 328 (Setting aside costs agreements),
(iii)  mediation under Division 8, and
(b)  any time limits that apply to the taking of any action referred to in paragraph (a).
Note—
These matters will already have been disclosed under section 309 (1) (Disclosure of costs to clients).
334   Interim bills
(1)  A law practice may give a person an interim bill covering part only of the legal services the law practice was retained to provide.
(2)  Legal costs that are the subject of an interim bill may be assessed under Division 11 (Costs assessment), either at the time of the interim bill or at the time of the final bill, whether or not the interim bill has been paid.
Division 8 Mediation of costs disputes
335   Meaning of “client” and “costs dispute”
In this Division:
client has the same meaning as in section 350 (Application by clients for costs assessment).
costs dispute means a dispute between a client and an Australian legal practitioner concerning a bill, and includes a dispute over an amount claimed to be payable under a costs agreement.
336   Referral for mediation
(1)  A client who is given a bill may refer a costs dispute about the bill to the Commissioner or to a Council for mediation if the amount in dispute is less than $10,000.
(2)  The Manager, Costs Assessment may refer a costs dispute about a bill to the Commissioner if the amount in dispute is less than $10,000.
(3)  The Manager, Costs Assessment may, by notice in writing, require the client and the Australian legal practitioner concerned to enter into a process of mediation if the amount in dispute is less than $5,000.
(4)  A costs dispute about a bill may be referred under this section at any time before an application for an assessment of the whole or part of a bill is accepted by the Manager, Costs Assessment.
(5)  Mediation is not limited to formal mediation procedures and extends to encompass preliminary assistance in dispute resolution, such as the giving of informal advice designed to ensure that the parties are fully aware of their rights and obligations and that there is full and open communication between the parties concerning the dispute.
(6)  Failure on the part of an Australian legal practitioner to comply with the terms of a notice under subsection (3) is capable of being unsatisfactory professional conduct or professional misconduct.
Division 9 Maximum costs in personal injury damages matters
337   Interpretation and application
(1)  In this Division:
defendant means a person against whom a claim for personal injury damages is or may be made.
party means plaintiff or defendant.
personal injury damages has the same meaning as in Part 2 of the Civil Liability Act 2002.
plaintiff means a person who makes or is entitled to make a claim for personal injury damages.
(2)  This Division does not apply to the following costs:
(a)  costs payable to an applicant for compensation under Part 2 of the Victims Support and Rehabilitation Act 1996 in respect of the application for compensation,
(b)  costs for legal services provided in respect of a claim under the Motor Accidents Act 1988 or Motor Accidents Compensation Act 1999,
(c)  costs for legal services provided in respect of a claim for work injury damages (as defined in the Workplace Injury Management and Workers Compensation Act 1998),
(d)  costs for legal services provided in respect of a claim for damages in proceedings of the kind referred to in section 11 (Claims for damages for dust diseases etc to be brought under this Act) of the Dust Diseases Tribunal Act 1989.
338   Maximum costs fixed for claims up to $100,000
(1)  If the amount recovered on a claim for personal injury damages does not exceed $100,000, the maximum costs for legal services provided to a party in connection with the claim are fixed as follows:
(a)  in the case of legal services provided to a plaintiff—maximum costs are fixed at 20% of the amount recovered or $10,000, whichever is greater,
(b)  in the case of legal services provided to a defendant—maximum costs are fixed at 20% of the amount sought to be recovered by the plaintiff or $10,000, whichever is greater.
(2)  The regulations may prescribe an amount to replace the amount of $100,000 or $10,000 in subsection (1) and may prescribe a percentage to replace the percentage of 20% in subsection (1). When such a replacement amount or percentage is prescribed, it applies for the purposes of subsection (1) in place of the amount or percentage that it replaces.
(3)  The regulations may contain provisions of a savings or transitional nature consequent on the making of regulations under this section.
(4)  When the maximum costs for legal services provided to a party are fixed by this Division the following provisions apply (subject to sections 339–341):
(a)  a law practice is not entitled to be paid or recover for those legal services an amount that exceeds those maximum costs,
(b)  a court or tribunal cannot order the payment by another party to the claim of costs in respect of those legal services in an amount that exceeds that maximum,
(c)  in assessing the amount of those costs that is a fair and reasonable amount, a costs assessor cannot determine an amount that exceeds the maximum set by this section.
(5)  In this Division:
(a)  a reference to legal services provided to a party is a reference to legal services provided to the party by a law practice (including by an associate of the law practice), and
(b)  a reference to costs for legal services does not include costs charged as disbursements for services provided by any other person or other disbursements.
(6)  If proceedings are commenced on a claim, the amount sought to be recovered by the plaintiff is taken to be the amount sought to be proved by the plaintiff at the hearing of the claim.
(7)  Maximum costs fixed by this Division apply despite regulations under section 329 (1) (b) (Regulations to provide for fixed costs) fixing those costs.
s 338: Am 2005 No 31, Sch 9 [1].
338A   Maximum costs increased by additional amount for certain claims heard by the District Court
(1)  This section applies to a claim for personal injury damages in respect of which the amount recovered does not exceed $100,000 that is made by proceedings heard by the District Court.
(2)  If the District Court referred the proceedings to arbitration and, following the arbitration, made an order for a full or limited rehearing of the proceedings concerned on the application of a party, the maximum costs fixed by this Division for legal services provided in connection with the claim to the other party are increased by the additional amount.
(3)  If the decision of the District Court in respect of a claim is the subject of an appeal, the maximum costs fixed by this Division for legal services provided in connection with the claim to the party who is the respondent to the appeal are increased by the additional amount or, if subsection (2) also applies to legal services provided to the respondent, by 2 times the additional amount.
(4)  For the purposes of this section, the additional amount is:
(a)  in the case of legal services provided to the plaintiff—15% of the amount recovered, or $7,500, whichever is the greater, and
(b)  in the case of legal services provided to the defendant—15% of the amount sought to be recovered by the plaintiff, or $7,500, whichever is the greater.
(5)  The regulations may prescribe a percentage to replace the percentage of 15% in subsection (4) and may prescribe an amount to replace the amount of $7,500 in subsection (4). When such a replacement percentage or amount is prescribed, it applies for the purposes of subsection (4) in place of the percentage or amount that it replaces.
(6)  The regulations may contain provisions of a savings or transitional nature consequent on the making of regulations under this section.
s 338A: Ins 2005 No 31, Sch 9 [2].
339   Maximum costs do not affect solicitor-client costs under costs agreements
(1)  This Division does not apply to the recovery of costs payable as between a law practice and the practice’s client to the extent that recovery of those costs is provided for by a costs agreement that complies with Division 5 (Costs agreements).
(2)  The regulations may make provision for or with respect to requiring disclosure by a law practice to the practice’s client of information in relation to the effect of a costs agreement in connection with the operation of this Division.
(3)  The regulations may provide that a failure by a law practice to comply with the requirements of the regulations under this section disentitles the law practice to the benefit of this section, and in such a case this Division applies in respect of the claim concerned despite the terms of any costs agreement.
340   Costs can be awarded on indemnity basis for costs incurred after failure to accept offer of compromise
(1)  If a party to a claim for personal injury damages makes a reasonable offer of compromise on the claim that is not accepted, this Division does not prevent the awarding of costs against another party to be assessed on an indemnity basis in respect of legal services provided after the offer is made.
(2)  An offer of compromise on a claim by a party is reasonable if the court determines or makes an order or award on the claim in terms that are no less favourable to the party than the terms of the offer.
(3)  The regulations may make provision for or with respect to requiring disclosure by a law practice to the practice’s client of information in relation to the operation of this section in respect of any refusal by the client to accept an offer of compromise.
(4)  If it appears to the court in which proceedings are taken on a claim for personal injury damages that a law practice has failed to comply with any provision of the regulations under this section, and that the client of the practice has incurred an increased liability for costs as a result of refusing a reasonable offer of compromise in connection with the claim concerned, the court may of its own motion or on the application of the client make either or both of the following orders:
(a)  an order directing the law practice to repay to the client the whole or any part of those increased costs that the client has been ordered to pay to any other party,
(b)  an order directing the law practice to indemnify any party other than the client against the whole or any part of the costs payable by the party indemnified in respect of legal services provided after the offer is refused.
341   Court may order certain legal services to be excluded from maximum costs limitation
A court hearing a claim for personal injury damages may by order exclude from the operation of this Division legal services provided to a party to the claim if the court is satisfied that the legal services were provided in response to any action on the claim by or on behalf of the other party to the claim that in the circumstances was not reasonably necessary for the advancement of that party’s case or was intended or reasonably likely to unnecessarily delay or complicate determination of the claim.
342   Apportionment of maximum costs between law practices
(1)  If more than one law practice provides legal services to a party in connection with a claim, the maximum costs fixed by this Division are to be apportioned between them as agreed by them or (failing agreement) as ordered by the court hearing proceedings on the claim.
Note—
For example, this provision would apply in relation to the provision of legal services by both a firm of solicitors and a barrister.
(2)  The maximum then applicable to a particular law practice is the law practice’s apportioned share of those maximum costs.
343   Meaning of “amount recovered” on a claim
(1)  A reference in this Division to the amount recovered on a claim includes any amount paid under a compromise or settlement of the claim (whether or not legal proceedings have been instituted).
(2)  In determining the amount recovered on a claim for personal injury damages, no regard is to be had to any part of the amount recovered that is attributable to costs or to the addition of interest.
Division 10 Costs in civil claims where no reasonable prospects of success
344   Application of Division
(1) Division extends to appeals This Division extends to legal services in connection with proceedings in a court on appeal as well as a court at first instance.
(2) Legal services provided by both barrister and solicitor If legal services in relation to a particular matter are provided by both a solicitor and a barrister instructed by the solicitor, any function imposed by this Division on a law practice in respect of the provision of the services is to be read as imposing the function on both the solicitor and barrister.
345   Law practice not to act unless there are reasonable prospects of success
(1)  A law practice must not provide legal services on a claim or defence of a claim for damages unless a legal practitioner associate responsible for the provision of the services concerned reasonably believes on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence (as appropriate) has reasonable prospects of success.
(2)  A fact is provable only if the associate reasonably believes that the material then available to him or her provides a proper basis for alleging that fact.
(3)  This Division applies despite any obligation that a law practice or a legal practitioner associate of the practice may have to act in accordance with the instructions or wishes of the client.
(4)  A claim has reasonable prospects of success if there are reasonable prospects of damages being recovered on the claim. A defence has reasonable prospects of success if there are reasonable prospects of the defence defeating the claim or leading to a reduction in the damages recovered on the claim.
(5)  Provision of legal services in contravention of this section constitutes for the purposes of this Division the provision of legal services without reasonable prospects of success.
346   Preliminary legal work not affected
This Division does not apply to legal services provided as a preliminary matter for the purpose of a proper and reasonable consideration of whether a claim or defence has reasonable prospects of success.
347   Restrictions on commencing proceedings without reasonable prospects of success
(1)  The provision of legal services by a law practice without reasonable prospects of success does not constitute an offence but is capable of being unsatisfactory professional conduct or professional misconduct by a legal practitioner associate of the practice who is responsible for the provision of the service or by a principal of the practice.
(2)  A law practice cannot file court documentation on a claim or defence of a claim for damages unless a principal of the practice, or a legal practitioner associate responsible for the provision of the legal service concerned, certifies that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence (as appropriate) has reasonable prospects of success.
(3)  Court documentation on a claim or defence of a claim for damages is not to be accepted for lodgment unless accompanied by the certification required by this section. Rules of court may make provision for or with respect to the form of that certification.
(4)  In this section:
court documentation means:
(a)  an originating process (including for example, a statement of claim, summons or cross-claim), defence or further pleading, or
(b)  an amended originating process, defence or further pleading, or
(c)  a document amending an originating process, defence or further pleading, or
(d)  any other document of a kind prescribed by the regulations.
cross-claim includes counter-claim and cross-action.
348   Costs order against law practice acting without reasonable prospects of success
(1)  If it appears to a court in which proceedings are taken on a claim for damages that a law practice has provided legal services to a party without reasonable prospects of success, the court may of its own motion or on the application of any party to the proceedings make either or both of the following orders in respect of the practice or of a legal practitioner associate of the practice responsible for providing the services:
(a)  an order directing the practice or associate to repay to the party to whom the services were provided the whole or any part of the costs that the party has been ordered to pay to any other party,
(b)  an order directing the practice or associate to indemnify any party other than the party to whom the services were provided against the whole or any part of the costs payable by the party indemnified.
(2)  The Supreme Court may on the application of any party to proceedings on a claim for damages make any order that the court in which proceedings on the claim are taken could make under this section.
(3)  An application for an order under this section cannot be made after a final determination has been made under this Part by a costs assessor of the costs payable as a result of an order made by the court in which the proceedings on the claim concerned were taken.
(4)  A law practice or legal practitioner associate of the practice is not entitled to demand, recover or accept from a client any part of the amount for which the practice or associate is directed to indemnify a party pursuant to an order under this section.
349   Onus of showing facts provided reasonable prospects of success
(1)  If the court (the trial court) hearing proceedings on a claim for damages finds that the facts established by the evidence before the court do not form a basis for a reasonable belief that the claim or the defence had reasonable prospects of success, there is a presumption for the purposes of this Division that legal services provided on the claim or the defence (as appropriate) were provided without reasonable prospects of success.
(2)  If the Supreme Court (when the Supreme Court is not the trial court) is satisfied, either as a result of a finding of the trial court or otherwise on the basis of the judgment of the trial court, that the facts established by the evidence before the trial court do not form a basis for a reasonable belief that the claim or the defence had reasonable prospects of success, there is a presumption for the purposes of this Division that legal services provided on the claim or the defence (as appropriate) were provided without reasonable prospects of success.
(3)  A presumption arising under this section is rebuttable and a person seeking to rebut it bears the onus of establishing that at the time legal services were provided there were provable facts (as provided by section 345 (Law practice not to act unless there are reasonable prospects of success)) that provided a basis for a reasonable belief that the claim or the defence on which they were provided had reasonable prospects of success.
(4)  A law practice or legal practitioner associate of the practice may, for the purpose of establishing that at the time legal services were provided there were provable facts (as provided by section 345 (Law practice not to act unless there are reasonable prospects of success)) that provided a basis for a reasonable belief that the claim or the defence on which they were provided had reasonable prospects of success, produce information or a document despite any duty of confidentiality in respect of a communication between the law practice or a legal practitioner associate of the practice and a client, but only if:
(a)  the client is the client to whom the legal services were provided or consents to its disclosure, or
(b)  the court is satisfied that it is necessary for the law practice or associate to do so in order to rebut a presumption arising under this section.
Division 11 Costs assessment
Subdivision 1 Applications
350   Application by clients for costs assessment
(1)  A client who is given a bill may apply to the Manager, Costs Assessment for an assessment of the whole or any part of legal costs.
(2)  An application for a costs assessment may be made even if the legal costs have been wholly or partly paid.
(3)  If any legal costs have been paid without a bill, the client may nevertheless apply for a costs assessment and, for that purpose, the request for payment is taken to be a bill.
(4)  An application under this section must be made within 60 days after the bill was given or the request was made or after the costs were paid in full (whichever is earlier or earliest).
(5)  However, a costs assessor must deal with an application made out of time, unless the costs assessor considers that the law practice has established that to do so would, in all the circumstances, cause unfair prejudice to the law practice.
(6)  In this section:
client includes the following:
(a)  a person who has been given a bill by a law practice (other than a person who is acting merely in the capacity of agent or a similar capacity, for example, a courier),
(b)  a person who has paid legal costs,
(c)  a person (other than a person who was given a bill) who is liable to pay legal costs,
(d)  an executor, administrator or assignee of a person referred to in paragraph (a), (b) or (c),
(e)  a trustee of the estate of a person referred to in paragraph (a), (b) or (c),
(f)  a person interested in any property out of which a trustee, executor or administrator who is liable to pay legal costs has paid, or is entitled to pay, those costs.
351   Application for costs assessment by law practice retaining another law practice
(1)  A law practice that retains another law practice to act on behalf of a client may apply to the Manager, Costs Assessment for an assessment of the whole or any part of the legal costs to which a bill given by the other law practice in accordance with Division 7 (Billing) relates.
(2)  If any legal costs have been paid without a bill, the law practice may nevertheless apply for a costs assessment and, for that purpose, the request for payment is taken to be a bill.
(3)  An application is to be made within 60 days after the bill is given or the request for payment is made or within such further time as the Manager, Costs Assessment may allow, and may be made even if the legal costs have been wholly or partly paid.
(4)  An application cannot be made under this section if there is a costs agreement between the client and the other law practice.
352   Application for costs assessment by law practice giving bill
(1)  A law practice that has given a bill may apply to a costs assessor for an assessment of the whole or any part of the legal costs to which the bill relates.
(2)  If any legal costs have been paid without a bill, the law practice may nevertheless apply for a costs assessment and, for that purpose, the request for payment is taken to be a bill.
(3)  An application may not be made unless at least 30 days have passed since the bill was given or the request for payment was made or since an application has been made under this Division by another person in respect of the legal costs.
353   Application for assessment of party/party costs
(1)  A person who has paid or is liable to pay, or who is entitled to receive or who has received, costs as a result of an order for the payment of an unspecified amount of costs made by a court or a tribunal may apply to the Manager, Costs Assessment for an assessment of the whole of, or any part of, those costs.
(2)  A court or tribunal may direct the Manager, Costs Assessment to refer for assessment costs payable as a result of an order made by the court or tribunal. Any such direction is taken to be an application for assessment duly made under this Division.
(3)  An application or direction under this section may not be made in relation to costs arising out of criminal proceedings in a court.
(4)  An application or direction under this section may be made in relation to an application for and the issue of an apprehended violence order within the meaning of Part 15A of the Crimes Act 1900.
s 353: Am 2005 No 46, Sch 3 [35].
354   How to make an application for costs assessment
(1)  An application for a costs assessment:
(a)  must be made in accordance with the regulations (if any), and
(b)  subject to subsection (4), must be accompanied by the fee prescribed by the regulations.
(2)  The application must authorise a costs assessor to have access to, and to inspect, all documents of the applicant that are held by the applicant, or by any law practice, Australian legal practitioner or Australian-registered foreign lawyer concerned, in respect of the matter to which the application relates.
(3)  The application must contain a statement by the applicant that there is no reasonable prospect of settlement of the matter by mediation.
(4)  The Manager, Costs Assessment may waive or postpone payment of the application fee either wholly or in part if satisfied that the applicant is in such circumstances that payment of the fee would result in serious hardship to the applicant or his or her dependants.
(5)  The Manager, Costs Assessment may refund the application fee either wholly or in part if satisfied that it is appropriate because the application is not proceeded with.
s 354: Am 2005 No 46, Sch 3 [36].
355   Consequences of application
If an application for a costs assessment is made in accordance with this Division:
(a)  the costs assessment must take place without any money being paid into court on account of the legal costs the subject of the application, and
(b)  the law practice must not commence or maintain any proceedings to recover the legal costs until the costs assessment has been completed.
s 355: Am 2005 No 46, Sch 3 [37].
356   Persons to be notified of application
The Manager, Costs Assessment is to cause a copy of an application for costs assessment to be given to any law practice or client concerned or any other person whom the Manager thinks it appropriate to notify.
356A   Regulations
The regulations may make provision for or with respect to the making and processing of applications for costs assessments.
s 356A: Ins 2005 No 46, Sch 3 [38].
Subdivision 2 Assessment
357   Referral of matters to costs assessors
(1)  The Manager, Costs Assessment is to refer each application for costs assessment to a costs assessor to be dealt with under this Division.
(2)  A costs assessor who has an interest in an application must, as soon as practicable after becoming aware of that fact, refer the application to the Manager, Costs Assessment for referral to another costs assessor.
(3)  If the Manager, Costs Assessment is satisfied that it is inappropriate for a costs assessor to determine a particular application that has been referred to the costs assessor, the Manager, Costs Assessment may:
(a)  revoke the referral of the application, and
(b)  refer the application for assessment to another costs assessor.
(4)  An application that has been referred to another costs assessor under this section is to be dealt with as a new assessment or, if the Manager, Costs Assessment so directs, by continuing the assessment.
(5)  When a referral has been revoked, the costs assessor to whom the application was initially referred must return all documents relating to the assessment of the application to the Manager, Costs Assessment. This includes documents relating to any work done on the assessment and a statement of the amount calculated for costs in respect of any work done on the assessment.
358   Costs assessor may require documents or further particulars
(1)  For the purposes of determining an application for a costs assessment, a costs assessor may, by notice in writing, require a person (including the applicant, the law practice concerned, or any other law practice or client) to do any one or more of the following:
(a)  to produce, at a specified time and place, any specified document (or a copy of the document),
(b)  to provide written information on or before a specified date (verified by statutory declaration if the requirement so states) including, for example:
(i)  information as to the instructions given to, or work done by, any law practice in respect of the matter concerned, and
(ii)  information as to the basis on which the costs concerned were calculated,
(c)  to otherwise assist in, or co-operate with, the determination of the assessment in a specified manner.
(2)  A person who is subject to a requirement under subsection (1) must comply with the requirement.
Maximum penalty: 50 penalty units.
(3)  If a person fails, without reasonable excuse, to comply with a notice under this section, the costs assessor may decline to deal with the application or may continue to deal with the application on the basis of the information provided.
(4)  A failure by an Australian legal practitioner to comply with a notice under this section without reasonable excuse is capable of being professional misconduct.
359   Consideration of applications by costs assessors
(1)  A costs assessor must not determine an application for assessment unless the costs assessor:
(a)  has given both the applicant and any law practice or client or other person concerned a reasonable opportunity to make written submissions to the costs assessor in relation to the application, and
(b)  has given due consideration to any submissions so made.
(2)  In considering an application, a costs assessor is not bound by rules of evidence and may inform himself or herself on any matter in such manner as he or she thinks fit.
(3)  For the purposes of determining an application for assessment or exercising any other function, a costs assessor may determine any of the following:
(a)  whether or not disclosure has been made in accordance with Division 3 (Costs disclosure) and whether or not it was reasonably practicable to disclose any matter required to be disclosed under Division 3,
(b)  whether a costs agreement exists, and its terms.
360   (Repealed)
s 360: Rep 2005 No 46, Sch 3 [39].
361   Assessment of complying costs agreements
(1)  A costs assessor must assess any disputed costs that are subject to a costs agreement by reference to the provisions of the costs agreement if:
(a)  the agreement complies with Division 5 (Costs agreements) and, in particular, nothing in that Division precludes the law practice concerned from recovering the amount of the costs, and
Note—
For example, section 327 precludes the recovery of certain amounts payable under costs agreements entered into in contravention of Division 5.
(b)  a relevant provision of the costs agreement specifies the amount, or a rate or other means for calculating the amount, of the costs, and
(c)  the costs assessor is satisfied that the agreement, or the relevant provision of the agreement, should not be set aside under section 328.
(2)  Nothing in this section limits the operation of section 365.
Note—
Section 365 provides that a costs assessor must have regard to, but not necessarily apply, a costs agreement in assessing party/party costs.
362   Costs fixed by regulations or other legislation
(1)  An assessment of costs fixed by a regulation under section 329 (1) (a), (b), (c), (d) or (e) is to be made in accordance with that regulation.
(2)  An assessment of costs fixed by a regulation under section 329 (1) (f) is to be made having regard to that regulation.
(3)  An assessment of costs fixed by a regulation under section 149 of the Motor Accidents Compensation Act 1999 is to be made in accordance with that regulation (despite anything to the contrary in a regulation under section 329).
(4)  An assessment of costs fixed by a provision of any other Act, or a statutory rule made under any other Act, is to be made:
(a)  if the costs are fixed by a provision of any other Act—in accordance with that provision (despite anything to the contrary in a regulation under section 329), or
(b)  if the costs are fixed by a provision of a statutory rule made under any other Act—in accordance with that provision (but only to the extent that the provision is not inconsistent with a regulation under section 329).
363   Criteria for assessment
(1)  In conducting an assessment of legal costs, the costs assessor must consider:
(a)  whether or not it was reasonable to carry out the work to which the legal costs relate, and
(b)  whether or not the work was carried out in a reasonable manner, and
(c)  the fairness and reasonableness of the amount of legal costs in relation to the work.
(2)  In considering what is a fair and reasonable amount of legal costs, the costs assessor may have regard to any or all of the following matters:
(a)  whether the law practice and any Australian legal practitioner or Australian-registered foreign lawyer acting on its behalf complied with any relevant legislation or legal profession rules,
(b)  any disclosures made by the law practice under Division 3 (Costs disclosure), or the failure to make any disclosures required under that Division,
(c)  any relevant advertisement as to:
(i)  the law practice’s costs, or
(ii)  the skills of the law practice or of any Australian legal practitioner or Australian-registered foreign lawyer acting on its behalf,
(d)  any relevant costs agreement,
(e)  the skill, labour and responsibility displayed on the part of the Australian legal practitioner or Australian-registered foreign lawyer responsible for the matter,
(f)  the retainer and whether the work done was within the scope of the retainer,
(g)  the complexity, novelty or difficulty of the matter,
(h)  the quality of the work done,
(i)  the place where, and circumstances in which, the legal services were provided,
(j)  the time within which the work was required to be done,
(k)  any other relevant matter.
363A   Interest on amount outstanding
(1)  A costs assessor may, in an assessment, determine that interest is not payable on the amount of costs assessed or on any part of that amount and determine the rate of interest (not exceeding the rate referred to in section 321 (4)).
(2)  This section applies despite any costs agreement or section 321.
(3)  This section does not authorise the giving of interest on interest.
(4)  This section does not apply to or in respect of the assessment of costs referred to in Subdivision 3 (Party/party costs).
s 363A: Ins 2005 No 46, Sch 3 [40].
Subdivision 3 Party/party costs
364   Assessment of costs—costs ordered by court or tribunal
(1)  In conducting an assessment of legal costs payable as a result of an order made by a court or tribunal, the costs assessor must consider:
(a)  whether or not it was reasonable to carry out the work to which the costs relate, and
(b)  whether or not the work was carried out in a reasonable manner, and
(c)  what is a fair and reasonable amount of costs for the work concerned.
(2)  In considering what is a fair and reasonable amount of legal costs, a costs assessor may have regard to any or all of the following matters:
(a)  the skill, labour and responsibility displayed on the part of the Australian legal practitioner or Australian-registered foreign lawyer responsible for the matter,
(b)  the complexity, novelty or difficulty of the matter,
(c)  the quality of the work done and whether the level of expertise was appropriate to the nature of the work done,
(d)  the place where and circumstances in which the legal services were provided,
(e)  the time within which the work was required to be done,
(f)  the outcome of the matter.
(3)  An assessment must be made in accordance with the operation of the rules of the relevant court or tribunal that made the order for costs and any relevant regulations.
(4)  If a court or a tribunal has ordered that costs are to be assessed on an indemnity basis, the costs assessor must assess the costs on that basis, having regard to any relevant rules of the court or tribunal and relevant regulations.
365   Effect of costs agreements in assessments of party/party costs
(1)  A costs assessor may obtain a copy of, and may have regard to, a costs agreement.
(2)  However, a costs assessor must not apply the terms of a costs agreement for the purposes of determining appropriate fair and reasonable costs when assessing costs payable as a result of an order by a court or tribunal.
366   Court or tribunal may determine matters
This Division does not limit any power of a court or a tribunal to determine in any particular case the amount of costs payable or that the amount of the costs is to be determined on an indemnity basis.
Subdivision 4 Determinations
367   Determinations of costs assessments
(1)  A costs assessor is to determine an application for a costs assessment relating to a bill by confirming the bill or, if the assessor is satisfied that the disputed costs are unfair or unreasonable, by substituting for the amount of the costs an amount that, in the assessor’s opinion, is a fair and reasonable amount.
(2)  The costs assessor may include an allowance for any fee paid or payable for the application by the applicant.
(3)  A costs assessor may not determine that any part of a bill that is not the subject of an application is unfair or unreasonable.
(4)  A costs assessor may determine that the amount of fair and reasonable costs is the amount agreed to by the parties if during the course of the assessment the parties notify the costs assessor that they have agreed on the amount of those costs.
s 367: Am 2005 No 46, Sch 3 [41] [42].
367A   Determinations of costs assessments for party/party costs
A costs assessor is to determine an application for an assessment of costs payable as a result of an order made by a court or tribunal by making a determination of the fair and reasonable amount of those costs.
s 367A: Ins 2005 No 46, Sch 3 [43].
368   Certificate as to determination
(1)  On making a determination of costs referred to in Subdivision 2 or 3 of this Division, a costs assessor is to issue to each party and the Manager, Costs Assessment a certificate that sets out the determination.
(2)  A costs assessor may issue more than one certificate in relation to an application for costs assessment. Such certificates may be issued at the same time or at different stages of the assessment process.
(3)  However, any such certificate may not set out the costs of the costs assessment within the meaning of section 369.
Note—
Section 369 makes provision for the recovery of the costs of costs assessments relating to costs to which either section 317 (Effect of failure to disclose) or 364 (Assessment of costs—costs ordered by court or tribunal) applies. The section requires a costs assessor to issue a separate certificate setting out the costs of such costs assessments. That section also makes provision for the effect of such a certificate.
(4)  In the case of an amount of costs that has been paid, the amount (if any) by which the amount paid exceeds the amount specified in any such certificate may be recovered as a debt in a court of competent jurisdiction.
(5)  In the case of an amount of costs that has not been paid, the certificate is, on the filing of the certificate in the office or registry of a court having jurisdiction to order the payment of that amount of money, and with no further action, taken to be a judgment of that court for the amount of unpaid costs, and the rate of any interest payable in respect of that amount of costs is the rate of interest in the court in which the certificate is filed.
(6)  If the costs of the costs assessor are payable by a party to the assessment as referred to in section 369, the costs assessor must:
(a)  forward the certificate to the Manager, Costs Assessment, instead of forwarding it or copies of it to the parties, and
(b)  advise the parties that the certificate has been so forwarded and will be available to the parties on payment of the costs of the costs assessor.
(7)  Subsection (6) does not apply:
(a)  in respect of a certificate issued before the completion of the assessment process under subsection (2), or
(b)  in such circumstances as may be prescribed by the regulations.
s 368: Am 2005 No 46, Sch 3 [44]–[46].
369   Recovery of costs of costs assessment
(1)  This section applies to the costs of a costs assessment in relation to:
(a)  costs to which section 317 (Effect of failure to disclose) applies, and
(b)  costs to which section 364 (Assessment of costs—costs ordered by court or tribunal) applies.
(2)  A costs assessor is, subject to this section, to determine the costs of a costs assessment to which this section applies.
(3)  The costs of a costs assessment to which this section applies are payable:
(a)  for a costs assessment in relation to costs to which section 317 (Effect of failure to disclose) applies—by the law practice that provided the legal services concerned, or
(b)  for a costs assessment in relation to costs to which section 364 (Assessment of costs—costs ordered by court or tribunal) applies—by such persons, and to such extent, as may be determined by the costs assessor.
(4)  The costs assessor may refer to the Supreme Court any special circumstances relating to a costs assessment and the Court may make any order it thinks fit concerning the costs of the costs assessment.
(5)  On making a determination, a costs assessor may issue to each party and the Manager, Costs Assessment a certificate that sets out the costs of the costs assessment.
(6)  If the application for a costs assessment has been dealt with by more than one costs assessor, a certificate issued can set out the costs of any other costs assessor.
(7)  The certificate is, on the filing of the certificate in the office or registry of a court having jurisdiction to order the payment of that amount of money, and with no further action, taken to be a judgment of that court for the amount of unpaid costs.
(8)  The costs of the costs assessor are to be paid to the Manager, Costs Assessment.
(9)  The Manager, Costs Assessment may take action to recover the costs of a costs assessor or Manager, Costs Assessment.
(10)  In this section:
costs of the costs assessment means the costs incurred by the costs assessor or the Manager, Costs Assessment in the course of a costs assessment under this Division, and includes the costs related to the remuneration of the costs assessor.
s 369: Am 2005 No 46, Sch 3 [47].
370   Reasons for determination
(1)  A costs assessor must ensure that a certificate issued under section 368 (Certificate as to determination) or 369 (Recovery of costs of costs assessment) that sets out his or her determination is accompanied by:
(a)  a statement of the reasons for the costs assessor’s determination, and
(b)  such supplementary information as may be required by the regulations.
(2)  The statement of reasons must be given in accordance with the regulations.
371   Correction of error in determination
(1)  At any time after making a determination, a costs assessor may, for the purpose of correcting an inadvertent error in the determination:
(a)  make a new determination in substitution for the previous determination, and
(b)  issue a certificate under section 368 (Certificate as to determination) or 369 (Recovery of costs of costs assessment) that sets out the new determination.
(2)  Such a certificate replaces any certificate setting out the previous determination of the costs assessor that has already been issued by the costs assessor and, on the filing of the replacement certificate in the office or registry of a court having jurisdiction to order the payment of the amount of the new determination, any judgment that is taken to have been effected by the filing of that previously issued certificate is varied accordingly.
372   Determination to be final
A costs assessor’s determination of an application is binding on all parties to the application and no appeal or other assessment lies in respect of the determination, except as provided by this Division.
Subdivision 5 Review of determination by panel
373   Application by party for review of determination
s 373, hdg: Am 2005 No 46, Sch 3 [48].
(1)  A party to a costs assessment who is dissatisfied with a determination of a costs assessor may, within 30 days after the issue of the certificate under section 368 (Certificate as to determination) or 369 (Recovery of costs of costs assessment) that sets out the determination of the costs assessor or within such further time as the Manager, Costs Assessment may allow, apply to the Manager, Costs Assessment for a review of the determination.
Note—
Section 328 (10) provides that a party to a costs agreement may apply to the Manager, Costs Assessment under this section for a review of a determination to make, or not make, an order under section 328 to set aside the costs agreement.
(2)  The application must:
(a)  be made in accordance with the regulations (if any), and
(b)  be accompanied by the fee prescribed by the regulations.
(3)  The Manager, Costs Assessment may waive or postpone payment of the fee either wholly or in part if satisfied that the applicant is in such circumstances that payment of the fee would result in serious hardship to the applicant or his or her dependants.
(4)  The Manager, Costs Assessment may refund the fee paid under this section either wholly or in part if satisfied that it is appropriate because the application is not proceeded with.
(5)  A party who applies for a review under this Subdivision must ensure that notice of the application is given to the other parties to the assessment not less than 7 days before the application is made or as prescribed by the regulations.
373A   Application by Manager for review of determination of costs of costs assessment
(1)  The Manager, Costs Assessment may, within 30 days after the issue of a certificate under section 369 (5) that sets out the costs of a costs assessment determined by a costs assessor, prepare an application for a review of the determination.
(2)  The Manager, Costs Assessment must ensure that notice of the Manager’s intention to apply for a review is given to the parties to the proposed review not less than 7 days before the application is referred to a panel under section 374 or as prescribed by the regulations.
s 373A: Ins 2005 No 46, Sch 3 [49].
374   Referral of application to panel
(1)  The Manager, Costs Assessment:
(a)  in the case of an application duly made under section 373—is to refer the application to a panel, or
(b)  in the case of an application prepared under section 373A—may refer the application to a panel.
(2)  The panel is to be constituted by 2 costs assessors.
(3)  A costs assessor whose determination is the subject of an application for a review under this Subdivision may not be a member of a panel to which the application has been referred.
(4)  A member of a panel who has an interest in an application must, as soon as practicable after becoming aware of that fact, inform the Manager, Costs Assessment of that interest.
(5)  If the Manager, Costs Assessment is satisfied that a member of a panel has an interest in the application, the Manager must refer the application to a differently constituted panel that does not include that member.
s 374: Am 2005 No 46, Sch 3 [50] [51].
375   General functions of panel in relation to review application
(1)  A panel constituted under this Subdivision may review the determination of the costs assessor and may:
(a)  affirm the costs assessor’s determination, or
(b)  set aside the costs assessor’s determination and substitute such determination in relation to the costs assessment as, in their opinion, should have been made by the costs assessor who made the determination that is the subject of the review.
(2)  For the purposes of subsection (1), the panel has, in relation to the application for assessment, all the functions of a costs assessor under this Part and is to determine the application, subject to this Subdivision and the regulations, in the manner that a costs assessor would be required to determine an application for costs assessment.
(3)  However, the assessment is to be conducted on the evidence that was received by the costs assessor who made the determination that is the subject of the assessment and, unless the panel determines otherwise, the panel is not:
(a)  to receive submissions from the parties to the assessment, or
(b)  to receive any fresh evidence or evidence in addition to or in substitution for the evidence received by the costs assessor.
(3A)  A panel reviewing the determination of a costs assessor may determine that the amount of fair and reasonable costs is the amount agreed to by the parties to the review if during the course of the review the parties notify the panel that they have agreed on the amount of those costs.
(4)  If the costs assessors who constitute the panel are unable to agree on a determination in relation to an application, the panel is to affirm the determination of the costs assessor who made the determination that is the subject of the review.
s 375: Am 2005 No 46, Sch 3 [52] [53].
376   Relevant documents to be produced to panel
(1)  A panel constituted under this Subdivision may, by notice in writing, require a costs assessor, a law practice or any other person (such as an applicant or an associate of a law practice) to produce to the panel any document in his or her possession relating to an assessment of costs by a costs assessor.
(2)  If a person fails, without reasonable excuse, to comply with a notice under this section, the panel may decline to deal with an application for review or may continue to deal with it on the basis of the information provided.
(3)  A costs assessor is to retain in his or her possession any document relating to a costs assessment (other than a document that is returned to a party to the assessment) until:
(a)  the period of 12 months has elapsed since the issue of a certificate under section 368 (Certificate as to determination) setting out the determination of the costs assessor, or
(b)  the costs assessor receives a notice under subsection (1) in relation to the document,
whichever happens first.
(4)  A law practice or an associate of a law practice is to retain in his or her possession any document relating to a costs assessment that is returned to the practice or associate by the costs assessor until:
(a)  the period of 12 months has elapsed since the issue of a certificate under section 368 setting out the determination of the costs assessor, or
(b)  the practice or associate receives a notice under subsection (1) in relation to the document,
whichever happens first.
(5)  A contravention of this section by an Australian legal practitioner is capable of being professional misconduct.
s 376: Am 2005 No 46, Sch 3 [54] [55].
377   Effect of review on costs assessor’s determination
(1)  If the Manager, Costs Assessment refers a determination of a costs assessor to a panel for review under this Subdivision, the operation of that determination is suspended.
(2)  The panel may end such a suspension:
(a)  if it affirms the determination of the costs assessor, or
(b)  in such other circumstances as it considers appropriate.
378   Certificate as to determination of panel
(1)  On making a determination in relation to an application for review of a costs assessment under this Subdivision, a panel is to issue each party and the Manager, Costs Assessment with a certificate that sets out the determination.
(2)  However, any such certificate may not set out the costs of the review within the meaning of section 379.
Note—
Section 379 requires a panel to issue a separate certificate setting out the costs of the review. That section also makes provision for the effect of such a certificate.
(3)  If the panel sets aside the determination of the costs assessor, the following provisions apply:
(a)  if the amount of costs has already been paid, the amount (if any) by which the amount paid exceeds the amount specified in the determination of the panel may be recovered as a debt in a court of competent jurisdiction,
(b)  if the amount of the costs has not been paid, a certificate is, on the filing of the certificate in the office or registry of a court having jurisdiction to order the payment of that amount of money, and with no further action, taken to be a judgment of that court for the amount of unpaid costs, and the rate of any interest payable in respect of that amount of costs is the rate of interest in the court in which the certificate is filed,
(c)  if the costs assessor issued a certificate in relation to his or her determination under section 368 (Certificate as to determination) or 369 (Recovery of costs of costs assessment):
(i)  the certificate ceases to have effect, and
(ii)  any judgment that is taken to have been effected in relation to that certificate also ceases to have effect, and
(iii)  any enforcement action taken in respect of that judgment is to be reversed.
(4)  If the panel sets aside the costs assessor’s determination, any amount substituted by the panel may include an allowance for any fee paid or payable for the application for review by the applicant or for any amount paid or payable for the costs of the costs assessor by a party to the assessment.
(5)  If the costs of the panel are payable by a person referred to in section 379, the panel must:
(a)  forward the certificate to the Manager, Costs Assessment, instead of forwarding it or copies of it to the parties, and
(b)  advise the parties that the certificate has been so forwarded and will be available to the parties on payment of the costs of the panel.
(6)  Subsection (5) does not apply in such circumstances as may be prescribed by the regulations.
s 378: Am 2005 No 46, Sch 3 [56] [57].
379   Recovery of costs of review
(1)  A panel that conducts a review of a costs assessor’s determination under this Subdivision is to determine the costs of the review and may, subject to this section, determine by whom and to what extent those costs are to be paid.
(2)  If the panel affirms the determination of the costs assessor, the panel is to require the party who applied for the review to pay the costs of the review.
(3)  If the panel sets aside the determination of the costs assessor, and makes a determination in favour of the party who applied for review, the panel is to require the party who applied for the review to pay the costs of the review if the determination of the panel increases or decreases the total costs payable (as assessed by the costs assessor) by an amount that is less than 15 per cent (or such other percentage as may be prescribed by the regulations) of the total costs payable as assessed by the costs assessor.
(4)  Subject to subsections (2) and (3), the panel may require any party to the assessment that is reviewed to pay the costs of the review or may determine that the costs of the review are to be shared between the parties in any manner that the panel considers appropriate.
(5)  The panel is to issue to each party and the Manager, Costs Assessment, a certificate that sets out the panel’s determination under this section.
(6)  The certificate is, on filing of the certificate in the office or registry of a court having jurisdiction to order the payment of that amount of money, and with no further action, taken to be a judgment of that court for the amount of unpaid costs of the review.
(7)  The costs of the review are to be paid to the Manager, Costs Assessment.
(8)  The Manager, Costs Assessment may take action to recover the costs of a review.
(9)  Regulations may be made with respect to determinations of a panel under this section.
(10)  In this section:
costs of a review means the costs incurred by the panel or the Manager, Costs Assessment in the course of a review under this Subdivision, and includes the costs related to the remuneration of the costs assessors who constitute the panel.
s 379: Am 2005 No 46, Sch 3 [58].
380   Reasons for determination
(1)  The panel must ensure that a certificate issued under section 378 (Certificate as to determination of panel) or 379 (Recovery of costs of review) that sets out the determination of the panel is accompanied by:
(a)  a statement of the reasons for the panel’s determination, and
(b)  such supplementary information as may be required by the regulations.
(2)  The statement of reasons must be given in accordance with the regulations.
381   Correction of error in determination
(1)  At any time after making a determination, a panel that conducts a review may, for the purpose of correcting an inadvertent error in the determination:
(a)  make a new determination in substitution for the previous determination, and
(b)  issue a certificate under section 378 (Certificate as to determination of panel) or 379 (Recovery of costs of review) that sets out the new determination of the panel.
(2)  Such a certificate replaces any certificate setting out the previous determination of the panel that has already been issued by the panel and, on the filing of the replacement certificate in the office or registry of a court having jurisdiction to order the payment of the amount of the new determination, any judgment that is taken to have been effected by the filing of that previously issued certificate is varied accordingly.
382   Appeal against determination of panel
(1)  Subdivision 6 (Appeals) applies in relation to a decision or determination of a panel under this Subdivision as if references in Subdivision 6 to a costs assessor were references to the panel.
(2)  Subject to subsection (1), the panel’s determination of an application for review of a costs assessor’s determination is binding on all parties to the assessment that is the subject of a review and no appeal or other review lies in respect of the determination.
383   Regulations
The regulations may make provision for or with respect to reviews under this Subdivision, including the constitution and membership of a panel and the procedure for conducting reviews.
Subdivision 6 Appeals
384   Appeal against decision of costs assessor as to matter of law
(1)  A party to an application for a costs assessment who is dissatisfied with a decision of a costs assessor as to a matter of law arising in the proceedings to determine the application may, in accordance with the rules of the Supreme Court, appeal to the Court against the decision.
(2)  After deciding the question the subject of the appeal, the Supreme Court may, unless it affirms the costs assessor’s decision:
(a)  make such determination in relation to the application as, in its opinion, should have been made by the costs assessor, or
(b)  remit its decision on the question to the costs assessor and order the costs assessor to re-determine the application.
(3)  On a re-determination of an application, fresh evidence, or evidence in addition to or in substitution for the evidence received at the original proceedings, may be given.
385   Appeal against decision of costs assessor by leave
(1)  A party to an application for a costs assessment relating to a bill may, in accordance with the rules of the Supreme Court, seek leave of the Court to appeal to the Court against the determination of the application made by a costs assessor.
(2)  A party to an application for a costs assessment relating to costs payable as a result of an order made by a court or a tribunal may, in accordance with the rules of the court or tribunal, seek leave of the court or tribunal to appeal to the court or tribunal against the determination of the application made by a costs assessor.
(3)  The Supreme Court or court or tribunal may, in accordance with its rules, grant leave to appeal and may hear and determine the appeal.
(4)  An appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence received at the original proceedings, may be given.
(5)  After deciding the questions the subject of the appeal, the Supreme Court or court or tribunal may, unless it affirms the costs assessor’s decision, make such determination in relation to the application as, in its opinion, should have been made by the costs assessor.
386   Effect of appeal on application
(1)  If a party to an application for a costs assessment has appealed against a determination or decision of a costs assessor, either the costs assessor or the court or tribunal to which the appeal is made may suspend, until the appeal is determined, the operation of the determination or decision.
(2)  The costs assessor or the court or tribunal may end a suspension made by the costs assessor. The court or tribunal may end a suspension made by the court or tribunal.
387   Assessor can be a party to appeal
A costs assessor can be made a party to any appeal against a determination or decision of the costs assessor only by the Supreme Court.
388   Notices of appeal
A copy of every document initiating an appeal against a determination or decision of a costs assessor must be served on the Manager, Costs Assessment by the party making the appeal.
s 388: Am 2005 No 46, Sch 3 [59].
389   Court may refer unreviewed determination to review panel
(1)  If an appeal is made under section 385 (Appeal against decision of costs assessor by leave) against a determination of a costs assessor and the determination to which the appeal relates has not been reviewed by a panel in accordance with Subdivision 5 (Review of determination by panel), the court or tribunal to which the appeal is made may refer the appeal to the Manager, Costs Assessment for a review by a panel under that Subdivision.
(2)  For the purposes of Subdivision 5 (Review of determination by panel), the referral of an appeal by a court or tribunal under subsection (1) to the Manager, Costs Assessment is taken to be a duly made application for a review under that Subdivision.
Subdivision 7 General
390   Costs assessors
(1)  The Chief Justice of New South Wales may appoint persons to be costs assessors under this Act.
(2)  A costs assessor has the functions that are conferred on the costs assessor by or under this or any other Act.
(3)  Schedule 5 has effect with respect to costs assessors.
(4)  A costs assessor is not an officer of the Supreme Court when acting as a costs assessor.
(5)  Proceedings relating to anything done or omitted to be done by the Chief Justice of New South Wales in respect of the appointment or removal of a costs assessor (including terms of appointment and any other incidental matters) may not be instituted against the Chief Justice of New South Wales but may be instituted against “The Manager, Costs Assessment” as nominal defendant.
391   Protection from liability
A matter or thing done or omitted to be done by the Chief Justice of New South Wales, the Manager, Costs Assessment or a costs assessor (including a costs assessor acting as a member of a panel constituted under this Division) does not, if the matter or thing was done or omitted to be done in good faith for the purpose of the administration of this Part, subject the Chief Justice of New South Wales, the Manager, Costs Assessment or any costs assessor personally to any action, liability, claim or demand.
392   Confidentiality
A costs assessor must not disclose any information obtained in connection with the exercise of the costs assessor’s functions (including any functions as a member of a panel constituted under this Division) unless the disclosure is made:
(a)  in connection with the exercise of those functions or the administration or execution of this Act, or
(b)  for the purposes of any legal proceedings arising out of this Act or of any report of any such proceedings, or
(c)  in the case of information relating to an Australian legal practitioner or other person—with the consent of the practitioner or other person, or
(d)  with other lawful excuse.
Maximum penalty: 20 penalty units.
393   Referral for disciplinary action
(1)  If, on a costs assessment or review, the costs assessor considers that the legal costs charged by a law practice are grossly excessive, the costs assessor must refer the matter to the Commissioner to consider whether disciplinary action should be taken against any Australian legal practitioner or Australian-registered foreign lawyer involved.
(2)  If the costs assessor considers that a costs assessment raises any other matter that may amount to unsatisfactory professional conduct or professional misconduct on the part of an Australian legal practitioner or Australian-registered foreign lawyer, the costs assessor must refer the matter to the Commissioner to consider whether disciplinary action should be taken against an Australian legal practitioner or Australian-registered foreign lawyer.
s 393: Am 2005 No 46, Sch 3 [60] [61].
394   Rules of procedure for applications
(1)  There is to be a costs assessors’ rules committee consisting of those costs assessors appointed to the committee by the Chief Justice of New South Wales.
(2)  The committee is to regulate its own proceedings for the calling of meetings and the conduct of its business.
(3)  The committee may make rules, not inconsistent with this Part, governing the practice and procedure of the assessment of costs, including matters relating to the appointment of costs assessors to particular matters and the interests of costs assessors in particular matters.
(4)  The committee has any other functions conferred on the committee by or under this or any other Act.
(5)  Any amount payable from the Public Purpose Fund for the purpose of meeting the costs of the committee is to be paid, in accordance with section 290 (Payment of certain costs and expenses from Fund), to the Treasurer for credit of the Consolidated Fund.
(6)  Part 6 of the Interpretation Act 1987 applies to a rule made under this section in the same way as it applies to a statutory rule within the meaning of that Act.
Note—
Part 6 of the Interpretation Act 1987 contains provisions relating to the publication and Parliamentary disallowance of statutory rules and other standard provisions relating to the making, amendment and repeal of statutory rules.
395   Division not to apply to interest on judgment debt
This Division does not apply to an amount of interest ordered on a judgment debt (being an order for the payment of costs) under section 85 (4) of the District Court Act 1973 or section 95 (4) of the Supreme Court Act 1970.
Division 12 Miscellaneous
396   Application of Part to cross-vested matters
(1)  The regulations may make provisions modifying the application of this Part to matters commenced in another jurisdiction and transferred to the Supreme Court under cross-vesting legislation of the Commonwealth or another State or Territory.
(2)  Without limiting subsection (1), the regulations may modify the application of this Part by removing an obligation that a local legal practitioner or interstate legal practitioner would otherwise have (in relation to such matters) under this Part.
397   Application of Part to incorporated legal practices and multi-disciplinary partnerships
The regulations may provide that specified provisions of this Part do not apply to incorporated legal practices or multi-disciplinary partnerships or both or apply to them with specified modifications.
398   Application of Part to Australian-registered foreign lawyers
(1)  This Part applies to Australian-registered foreign lawyers as if a reference in this Part to a law practice or an Australian legal practitioner were a reference to an Australian-registered foreign lawyer.
(2)  The regulations may make provisions modifying the application of this Part to Australian-registered foreign lawyers.
399   Imputed acts, omissions or knowledge
For the purposes of this Part:
(a)  anything done or omitted by, to or in relation to:
(i)  an Australian legal practitioner, or
(ii)  an Australian-registered foreign lawyer (except for the purposes of any provision of this Part prescribed by the regulations for the purposes of this section),
in the course of acting on behalf of a law practice is taken to have been done or omitted by, to or in relation to the law practice, and
(b)  without limiting paragraph (a), the law practice is taken to become or be aware of, or to have a belief as to, any matter if:
(i)  an Australian legal practitioner, or
(ii)  an Australian-registered foreign lawyer (except for the purposes of any provision of this Part prescribed by the regulations for the purposes of this section),
becomes or is aware of, or has a belief as to, the matter in the course of acting on behalf of the law practice.
400   Costs of administering Part
(1)  All costs related to the administration of this Part (other than the costs referred to in section 394 (5)) (Rules of procedure for applications), are to be paid out of money to be provided from a working account established for the Attorney General’s Department by the Treasurer under section 13A of the Public Finance and Audit Act 1983 for the purposes of this Part.
(2)  The following amounts received by the Manager, Costs Assessment are to be paid to the credit of that working account:
(a)  an application fee for an assessment,
(b)  an application fee for a review of an assessment,
(c)  a payment for the costs of a costs assessor,
(d)  a payment for the costs of a review of an assessment.
Part 3.3 Professional indemnity insurance
Division 1 Preliminary
401   Purpose
The purpose of this Part is to continue the scheme for professional indemnity insurance to protect clients of law practices from professional negligence.
402   Definitions
(1)  In this Part:
insurable barrister means a barrister who holds a local practising certificate that entitles the holder to practise as a barrister on his or her own account, other than a barrister:
(a)  who is exempted, or who is a member of a class of barristers that is exempted, by the Bar Council from the requirement to be insured under this Part, or
(b)  who is engaged in practice referred to in section 111 (Government and other lawyers—exemption from certain conditions).
insurable solicitor means a solicitor who holds a local practising certificate that entitles the holder to practise as a solicitor on his or her own account, other than a solicitor:
(a)  who has given a written undertaking to the Law Society Council that the solicitor will not practise during the period to which the practising certificate relates otherwise than in the course of the solicitor’s employment by a body or person specified in the undertaking (not being employment by an incorporated legal practice), or
(b)  who is exempted, or who is a member of a class of solicitors that is exempted, by the Law Society Council from the requirement to be insured under this Part.
(2)  The Bar Council may exempt barristers or classes of barristers from the requirement to be insured under this Part on such grounds as the Council considers sufficient.
(3)  The Law Society Council may exempt solicitors or classes of solicitors from the requirement to be insured under this Part on such grounds as the Council considers sufficient.
Division 2 Barristers
403   Professional indemnity insurance for barristers
(1)  The Bar Council must not grant or renew a local practising certificate to an insurable barrister unless it is satisfied that there is, or will be, in force with respect to the barrister an approved indemnity insurance policy.
(2)  A policy of indemnity insurance is approved if:
(a)  the policy is not to expire before the expiration of the local practising certificate of the barrister to whom the policy relates, and
(b)  the Attorney General has, by order in writing given to the Bar Council, approved the type of policy, the level of insurance provided by the policy and the terms of the policy, and
(c)  any conditions imposed by the order are complied with.
(3)  The Bar Council is entitled to accept as evidence that there is, or will be, in force with respect to an insurable barrister an approved indemnity insurance policy:
(a)  evidence in the form of written advice from an insurer or insurance broker to the effect that an insurer has agreed to issue the policy, or
(b)  evidence that the premium for the policy has been received and accepted by the insurer for the purposes of the issue of the policy, or
(c)  evidence that the regulations provide is acceptable evidence for the purposes of this section.
s 403: Am 2005 No 46, Sch 3 [62].
Division 3 Solicitors
404   Definitions
In this Division:
approved insurance policy means a policy of indemnity insurance that is an approved insurance policy as provided by section 406 (Solicitor to be insured and to make contributions).
Company means the company that, immediately before the commencement of this Act, was managing the Solicitors’ Mutual Indemnity Fund established by the Legal Practitioners Act 1898.
Indemnity Fund means the Solicitors Mutual Indemnity Fund managed by the Company.
405   Solicitors Mutual Indemnity Fund
(1)  The Solicitors Mutual Indemnity Fund managed by the Company consists of the following:
(a)  the Solicitors’ Mutual Indemnity Fund established by the Legal Practitioners Act 1898,
(b)  the money paid on account of the Indemnity Fund by insurable solicitors either as annual contributions or as levies under this Division,
(c)  the interest or other income accruing from investment of the money in the Indemnity Fund,
(d)  any other money lawfully paid into the Indemnity Fund,
(e)  investments made under section 408 (Investment of Indemnity Fund),
(f)  such other assets as are acquired as part of the Indemnity Fund.
(2)  The Company may arrange with an insurer for insurance of the Indemnity Fund or any part of it.
(3)  The Indemnity Fund is the property of the Law Society and may be used only for the purposes of this Division.
406   Solicitor to be insured and to make contributions
(1)  The Law Society Council must not grant or renew a local practising certificate to an insurable solicitor unless it is satisfied:
(a)  that there is, or will be, in force with respect to the solicitor an approved insurance policy, and
(b)  that any contribution or levy, or instalment of a contribution, that is payable by the solicitor under section 411 (Contributions) or 412 (Levies) or under Schedule 7 has been paid to the Company.
(2)  A policy of indemnity insurance is an approved insurance policy if:
(a)  the policy is not to expire before the expiration of the local practising certificate of the solicitor to whom the policy relates, and
(b)  the Attorney General has, by order in writing given to the Law Society, approved of the insurer the type of policy, the level of insurance provided by the policy and the terms of the policy, and
(c)  any conditions imposed by the order are complied with.
(3)  The Law Society may negotiate with insurers and other persons in relation to the provision of indemnity insurance to any solicitor or former solicitor with respect to civil liability that may arise in connection with:
(a)  the solicitor’s or former solicitor’s practice or former practice, or
(b)  the solicitor’s or former solicitor’s administration of any trust or deceased estate of which the solicitor or former solicitor is or was a trustee or executor,
and may do any other thing necessary for or in connection with the Law Society Council’s functions under this section.
(4)  The Law Society is entitled to accept as evidence that there is, or will be, in force with respect to an insurable solicitor an approved indemnity insurance policy:
(a)  evidence in the form of written advice from an insurer or insurance broker to the effect that an insurer has agreed to issue the policy, or
(b)  evidence that the premium for the policy has been received and accepted by the insurer for the purposes of the issue of the policy, or
(c)  evidence that the solicitor is employed by a law practice that has an approved indemnity insurance policy in force that covers the solicitor,
(d)  evidence that the regulations provide is acceptable evidence for the purposes of this section.
s 406: Am 2005 No 46, Sch 3 [63].
407   Separate account
The Company is to maintain with an ADI in New South Wales a separate account with the name “Solicitors Mutual Indemnity Fund”.
408   Investment of Indemnity Fund
Money in the Indemnity Fund that is not immediately required for the purposes of the Fund may be invested:
(a)  in accordance with Division 2 of Part 2 of the Trustee Act 1925 as if the money were trust funds, or
(b)  on deposit with the Treasurer, or
(c)  in the purchase of securities or shares listed for quotation on a prescribed financial market (within the meaning of section 9 of the Corporations Act 2001 of the Commonwealth), or
(d)  in the acquisition of an interest in real estate in Australia, or
(e)  in bills of exchange drawn, accepted or endorsed by an ADI.
409   Payments from Indemnity Fund
(1)  There is payable from the Indemnity Fund in such order as the Company decides:
(a)  the expenses incurred by the Company in carrying on its business, and
(b)  premiums in respect of any approved insurance policy required by section 406 (Solicitor to be insured and to make contributions), and
(c)  such amount as the Company determines towards meeting any difference between the indemnity provided by the approved insurance policy required by section 406 and the liability of a person insured under the policy, and
(d)  such other amounts as the Company determines.
(2)  The Company is required to pay from the Indemnity Fund the costs of an investigation of the Indemnity Fund, as referred to in section 414 (Investigation of Indemnity Fund), in accordance with a direction given by the Attorney General under that section.
(3)  The Company may make determinations under subsection (1):
(a)  that differ according to different circumstances, or
(b)  that are subject to compliance with conditions imposed by the Company,
or that do both.
(4)  The Company may:
(a)  divide solicitors into classes approved by the Law Society Council, and
(b)  under subsection (1) (c), make a different determination for each of the classes.
410   Payments relating to defaulting insurers
(1)  Payments may be made by the Company from the Indemnity Fund for the purpose of indemnifying any person who is insured under an approved insurance policy that was issued or renewed by a defaulting insurer, in accordance with arrangements approved from time to time by the Attorney General.
(2)  The Law Society and the Company may enter into an agreement with a defaulting insurer (including a provisional liquidator or liquidator of a defaulting insurer), or with any insured person, in connection with the payment of amounts from the Indemnity Fund under this section.
(3)  In particular, any such agreement may provide for the following:
(a)  the assignment or subrogation to the Company of the rights and remedies of a defaulting insurer or the insured person (or both) under or in connection with the approved insurance policy,
(b)  the recovery by the Company from a defaulting insurer of any amount paid from the Indemnity Fund under this section.
(4)  Any payment made from the Indemnity Fund under this section, and any agreement entered into with an insured person under this section, does not prevent the recovery by the Company from a defaulting insurer of any amount that would have been recoverable by the insured person under or in connection with the approved insurance policy had the payment not been made or the agreement not been entered into.
(5)  Any amount recovered by the Company as a result of the exercise of its functions under this section (including its functions under an agreement referred to in this section) is to be paid into the Indemnity Fund. This does not apply to any amount that is payable to another person:
(a)  under any other Act or law, or
(b)  under any agreement referred to in this section, or
(c)  under the regulations.
(6)  Payments may be made from the Indemnity Fund for the purpose of meeting any reasonable costs and expenses incurred by the Company in exercising its functions under this section, including its functions under an agreement referred to in this section.
(7)  For the purposes of this section, an insurer under an approved insurance policy is a defaulting insurer if the Company is satisfied that:
(a)  the insurer is unwilling or unable to meet any claims or other liabilities under the approved insurance policy, or
(b)  a liquidator or provisional liquidator has been appointed in respect of the insurer, or
(c)  the insurer has been dissolved.
411   Contributions
(1)  An insurable solicitor is liable to pay to the Indemnity Fund an annual contribution of an amount determined by the Company and approved by the Law Society Council. An insurable solicitor is also liable to pay to the Indemnity Fund such further amounts in respect of the annual contribution as may be determined by the Company and approved by the Law Society Council.
(2)  The Company may make a different determination under subsection (1) for a particular solicitor or class of solicitors.
(3)  If a solicitor applies for a practising certificate that will be in force for part only of a year commencing on 1 July, the contribution is such proportion of the total amount determined for the solicitor under subsection (1) as is borne to 1 year by the number of days for which the practising certificate will be in force.
(4)  A contribution required to be paid under this section must be paid to the Company on account of the Indemnity Fund.
(5)  The Company may permit a contribution to be paid by instalments under an arrangement approved by the Law Society Council.
412   Levies
(1)  If the Company is at any time of the opinion that the assets of the Indemnity Fund may be insufficient to meet its liabilities, the Company may impose on each insurable solicitor a levy payable to the Company on account of the Indemnity Fund.
(2)  A levy is to be of such amount as the Company determines and may differ according to the different factors in relation to which contributions under this Division have been determined.
(3)  A levy is payable at the time, and in the manner, fixed by the Company which may, in a special case, allow time for payment.
413   Failure to pay contribution or levy
If, after being given written notice, an insurable solicitor fails to pay a contribution, instalment of a contribution, or levy in accordance with section 411 (Contributions) or 412 (Levies) or Schedule 7 (Professional indemnity insurance—provisions relating to HIH insurance) the Company must report the failure to the Law Society Council.
Note—
Part 2.4 provides for the suspension or cancellation of a local practising certificate for a failure to pay such a contribution, instalment of a contribution, or levy.
414   Investigation of Indemnity Fund
(1)  The Attorney General may at any time appoint an appropriately qualified person to conduct an investigation in relation to the Indemnity Fund, including in relation to any of the following:
(a)  the state and sufficiency of the Indemnity Fund,
(b)  the adequacy of the amount or rate of any contributions or levies paid or payable under this Division,
(c)  the management of the Indemnity Fund by the Company, and the adequacy of the investment strategies being adopted by the Company,
(d)  such other matters relating to the Indemnity Fund as the Attorney General determines.
(2)  The Company is to provide all reasonable assistance to the person appointed to conduct the investigation.
(3)  The person appointed to conduct the investigation is to report to the Attorney General on the result of the investigation.
(4)  The Attorney General may, by notice in writing served on the Company, require the Company to pay from the Indemnity Fund the costs of the investigation.
(5)  For the purposes of subsection (4), the costs of the investigation means:
(a)  the reasonable costs and expenses incurred in connection with the investigation by the person appointed to conduct the investigation, and
(b)  the reasonable cost of any remuneration paid to that person in connection with the investigation.
415   Powers of investigators
(1)  For the purpose of conducting an investigation under section 414 (Investigation of Indemnity Fund), an investigator may, by notice in writing served on any person, require the person to provide to the investigator such information or records relating to the Indemnity Fund or the Company’s management of the Indemnity Fund as the investigator specifies in the notice.
(2)  The notice must specify the manner in which information or records are required to be provided and a reasonable time by which the information or records are required to be provided.
(3)  A person who, without reasonable excuse, neglects or fails to comply with a requirement made of the person under this section is guilty of an offence.
Maximum penalty: 100 penalty units.
(4)  A person who provides any information in purported compliance with a requirement made under this section, knowing that it is false or misleading in a material particular, is guilty of an offence.
Maximum penalty: 100 penalty units.
(5)  In this section:
investigator means a person appointed by the Attorney General under section 414 (Investigation of Indemnity Fund) to conduct an investigation in relation to the Indemnity Fund.
416   Application of Division to other persons
The Company may apply this Division (sections 406 (Solicitor to be insured and to make contributions) and 413 (Failure to pay contribution or levy) and Schedule 7 excepted) to persons who:
(a)  are not insurable solicitors, and
(b)  are within a class of persons approved by the Law Society Council for the purposes of this section, and
(c)  are insured under a policy of insurance that, if the persons were insurable solicitors, would be an approved policy of indemnity insurance for the purposes of section 406 (Solicitor to be insured and to make contributions), and
(d)  pay to the Indemnity Fund such contributions and levies as the Company determines and the Law Society Council approves.
417   Provisions relating to HIH insurance
Schedule 7 has effect.
Part 3.4 Fidelity cover
Division 1 Preliminary
418   Purpose
The purpose of this Part is to establish and maintain a fund to provide a source of compensation for defaults by law practices arising from acts or omissions of associates.
419   Definitions
In this Part:
allow a claim includes compromise or settle the claim.
capping and sufficiency provisions of:
(a)  this jurisdiction—means section 456 (Caps on payments) and section 457 (Sufficiency of Fidelity Fund), or
(b)  another jurisdiction—means the provisions of the corresponding law of that jurisdiction that correspond to those sections.
claim means a claim under this Part.
claimant means a person who makes a claim under this Part.
concerted interstate default means a default of a law practice that arises from an act or omission:
(a)  that was committed jointly by 2 or more associates of the practice, or
(b)  parts of which were committed by different associates of the practice or different combinations of associates of the practice,
where this jurisdiction is the relevant jurisdiction for at least one of the associates and another jurisdiction is the relevant jurisdiction for at least one of the associates.
default, in relation to a law practice, means:
(a)  a failure of the practice to pay or deliver trust money or trust property that was received by the practice or an associate of the practice in the course of legal practice by the practice or an associate, where the failure arises from or is constituted by an act or omission of an associate that involves dishonesty, or
(b)  a fraudulent dealing with trust property that was received by the practice or an associate of the practice in the course of legal practice by the practice or an associate, where the fraudulent dealing is constituted by or arises from an act or omission of an associate that involves dishonesty.
dishonesty includes fraud.
pecuniary loss, in relation to a default, means:
(a)  the amount of trust money, or the value of trust property, that is not paid or delivered, or
(b)  the amount of money that a person loses or is deprived of, or the loss of value of trust property, as a result of a fraudulent dealing.
relevant jurisdiction—see section 433 (Meaning of “relevant jurisdiction”).
420   Time of default
(1)  This section applies for the purpose of determining which jurisdiction’s law applies in relation to a default.
(2)  The default is taken to have occurred when the act or omission giving rise to or constituting the default occurred.
(3)  An omission is taken to have occurred on the day on or by which the act not performed ought reasonably to have been performed or on such other day as is determined in accordance with the regulations.
421   Application of this Part
This Part does not apply to a default of a law practice consisting of a barrister.
Division 2 Fidelity Fund
422   Establishment of Legal Practitioners Fidelity Fund
(1)  The Law Society must establish and maintain a Legal Practitioners Fidelity Fund consisting of:
(a)  the money (including invested money) that, immediately before the commencement of this section, made up the Solicitors’ Fidelity Fund maintained under the Legal Profession Act 1987,
(b)  the money paid on account of the Fidelity Fund either as annual contributions or levies under this Part,
(c)  the money paid in accordance with the regulations under section 197 (Fidelity cover) on account of the Fidelity Fund by locally registered foreign lawyers,
(d)  the interest or other income accruing from investment of the money in the Fidelity Fund,
(e)  money paid to the Fidelity Fund from the Public Purpose Fund, and
(f)  any other money lawfully paid to the Fidelity Fund.
(2)  The Fidelity Fund is the property of the Law Society, is to be administered by the Law Society Council and is to be applied in accordance with this Part.
423   Establishment of separate Legal Practitioners Fidelity Fund Account
(1)  The Law Society must maintain with an ADI in New South Wales a separate account with the name “Legal Practitioners Fidelity Fund Account” and must pay to the credit of the account all money received on account of the Fidelity Fund.
(2)  The account is be operated in the manner determined by the Law Society Council.
424   Investment of Fidelity Fund
Money in the Fidelity Fund that is not immediately required for the purposes of the Fund may be invested:
(a)  in accordance with Division 2 of Part 2 of the Trustee Act 1925 as if the money were trust funds, or
(b)  on deposit with the Treasurer.
425   Payments from Fidelity Fund
There is to be paid from the Fidelity Fund in such order as the Law Society Council decides:
(a)  premiums for insurance of the Fidelity Fund,
(b)  legal expenses incurred in investigating or defending claims made against the Fidelity Fund, or against the Law Society in relation to the Fidelity Fund, or otherwise incurred in relation to the Fidelity Fund,
(c)  the amount of a claim (including interest and costs) allowed or established against the Law Society in respect of the Fidelity Fund,
(d)  the expenses of administering the Fidelity Fund, including allowances and travelling expenses for members of the Law Society Council and the Fidelity Fund Management Committee in connection with the exercise of their functions in relation to the Fidelity Fund,
(e)  the costs of the Law Society Council in exercising its function under section 699 (2) (Functions of Law Society), and
(f)  any other money payable from the Fidelity Fund under this Part or in respect of amounts paid or payable for the purposes of Chapter 5 (External intervention) or under rules or regulations made under this Act.
426   Management Committee
(1)  The Law Society Council may by resolution delegate all or any of its functions in relation to the Fidelity Fund to a Management Committee consisting of:
(a)  3 or more persons who are members of the Council, and
(b)  not more than 8 persons who are not members of the Council but are members of the Law Society.
(2)  The Law Society Council may by resolution rescind or vary a resolution made under subsection (1).
(3)  The Law Society Council may terminate a person’s membership of the Committee and may fill the subsequent or any other vacancy.
(4)  At a meeting of the Committee, 3 members, including at least 1 member of the Law Society Council, constitute a quorum.
(5)  At a meeting of the Committee:
(a)  a member of the Committee appointed for the purpose by the Law Society Council is to preside, or
(b)  if he or she is absent from the meeting, another member of the Committee elected for the purpose by those present at the meeting is to preside.
(6)  The decision of a majority of the members present and voting at a meeting of the Committee is a decision of the Committee and, in the event of an equality of votes, the member presiding at the meeting is entitled to an additional vote as a casting vote.
(7)  The Committee may call, adjourn, and regulate the conduct of, its meetings as it thinks fit.
427   Audit
The Law Society Council must cause the accounts relating to the Fidelity Fund to be audited annually by a firm of accountants approved by the Attorney General.
428   Insurance
(1)  The Law Society Council may arrange with an insurer for the insurance of the Fidelity Fund.
(2)  Without limiting subsection (1), the Law Society Council may arrange for the insurance of the Fidelity Fund against particular claims or particular classes of claims.
(3)  The proceeds paid under a policy of insurance against particular claims or particular classes of claims are to be paid into the Fidelity Fund, and a claimant is not entitled to have direct recourse to the proceeds or any part of them.
(4)  No liability (including liability in defamation) is incurred by a protected person in respect of anything done or omitted to be done in good faith for the purpose of arranging for the insurance of the Fidelity Fund.
(5)  In this section:
protected person means:
(a)  the Law Society or a member of the Law Society Council or the Fidelity Fund Management Committee, or
(b)  a member of staff of or a person acting at the direction of the Law Society, Law Society Council or Fidelity Fund Management Committee.
429   Borrowing
The Law Society cannot borrow money for the purposes of the Fidelity Fund.
Division 3 Contributions and levies
430   Contributions
(1)  An Australian lawyer must, when applying for the grant or renewal of a local practising certificate as a solicitor, 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 practising certificate would be in force.
(2)  A solicitor who is an interstate legal practitioner and who (whether alone or with a co-signatory) becomes authorised to withdraw money from a local trust account must 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 authorisation commenced or continues, as required by the regulations under section 472 (Interstate legal practitioner becoming authorised to withdraw from local trust account).
(3)  The amount of a contribution to the Fidelity Fund is an amount determined by the Law Society Council and approved by the Attorney General (subject to regulations under section 472 in the case of a contribution under subsection (2)).
(4)  The Law Society Council may determine different contributions for different classes of solicitors and may permit a contribution to be paid by instalments under an arrangement approved by the Council.
(5)  The amount of the contribution that would otherwise be payable for a year ending on 30 June is reduced by one-half if:
(a)  (in the case of a contribution under subsection (1)) the application for a practising certificate is made after 31 December in that year, or
(b)  (in the case of a contribution under subsection (2)) the solicitor becomes authorised to withdraw money from the local trust account after 31 December in that year.
(6)  The Law Society may refund, at a rate determined by the Law Society Council, a part of a contribution paid by a solicitor for a year ending on 30 June if:
(a)  (in the case of a contribution under subsection (1)) the solicitor ceases to practise as a solicitor at any time before 30 June in that year, or
(b)  (in the case of a contribution under subsection (2)) the solicitor ceases before 30 June in that year to be authorised to withdraw money from the local trust account.
(7)  This section does not apply to the Crown Solicitor or any other solicitor who:
(a)  is employed by the Crown or by a corporation prescribed for the purposes of this section, and
(b)  practises as a solicitor only in the course of that employment.
431   Levies
(1)  If the Law Society Council is at any time of the opinion that the Fidelity Fund is likely to be insufficient to meet the liabilities to which it is subject, the Council may, by resolution, impose on each solicitor liable to contribute to the Fidelity Fund a levy payable to the Council on account of the Fidelity Fund.
(2)  A levy is to be of such amount as the Law Society Council determines and may differ according to whether the solicitor is an interstate legal practitioner and to whether a solicitor is practising:
(a)  on his or her own account or in partnership, or
(b)  as an employee of another solicitor, or
(c)  as an employee of a person who is not a solicitor, or of a corporation.
(3)  A levy is payable at the time, and in the manner, fixed by the Law Society Council, which may, in a special case, allow time for payment.
432   Failure to pay contribution or levy
If a solicitor fails to pay a contribution required under section 430 or, after being given the prescribed notice, fails to pay a levy in accordance with this Part, the Law Society Council may:
(a)  in the case of a local legal practitioner—suspend the solicitor’s practising certificate while the failure continues, or
(b)  in the case of an interstate legal practitioner—suspend that practitioner’s entitlement under Part 2.4 to practise in this State while the failure continues and request the corresponding authority in the jurisdiction in which the practitioner has his or her sole or principal place of legal practice to suspend the solicitor’s interstate practising certificate until the Law Society Council notifies the regulatory authority that the contribution or levy has been paid.
Division 4 Defaults to which this Part applies
433   Meaning of “relevant jurisdiction”
(1)  The relevant jurisdiction for an associate of a law practice whose act or omission (whether alone or with one or more other associates of the practice) gives rise to a default of the practice is to be determined under this section.
Note—
The concept of an associate’s “relevant jurisdiction” is used to determine the jurisdiction whose Fidelity Fund is liable for a default of a law practice arising from an act or omission committed by the associate. The relevant jurisdiction for an associate is in some cases the associate’s home jurisdiction.
(2)  In the case of a default involving trust money received in Australia (whether or not it was paid into an Australian trust account), the relevant jurisdiction for the associate is:
(a)  if the trust money was paid into an Australian trust account and if the associate (whether alone or with a co-signatory) was authorised to withdraw any or all of the trust money from the only or last Australian trust account in which the trust money was held before the default—the jurisdiction under whose law that trust account was maintained, or
(b)  in any other case—the associate’s home jurisdiction.
(3)  In the case of a default involving trust money received outside Australia and paid into an Australian trust account, the relevant jurisdiction for the associate is:
(a)  if the associate (whether alone or with a co-signatory) was authorised to withdraw any or all of the trust money from the only or last Australian trust account in which the trust money was held before the default—the jurisdiction under whose law that trust account was maintained, or
(b)  in any other case—the associate’s home jurisdiction.
(4)  In the case of a default involving trust property received in Australia, or received outside Australia and brought to Australia, the relevant jurisdiction for the associate is the associate’s home jurisdiction.
Note—
Section 461 (Defaults involving interstate elements where committed by one associate only) provides that the Law Society Council may treat the default as consisting of 2 or more defaults for the purpose of determining the liability of the Fidelity Fund.
434   Defaults to which this Part applies
(1)  This Part applies to a default of a law practice arising from an act or omission of one or more associates of the practice, where this jurisdiction is the relevant jurisdiction for the only associate or one or more of associates involved.
(2)  It is immaterial where the default occurs.
(3)  It is immaterial that the act or omission giving rise to a default does not constitute a crime or other offence under the law of this or any other jurisdiction or of the Commonwealth or that proceedings have not been commenced or concluded in relation to a crime or other offence of that kind.
435   Defaults relating to financial services or investments
(1)  This Part does not apply to a default of a law practice to the extent that the default occurs in relation to money or property that is entrusted to or held by the practice for or in connection with:
(a)  a financial service provided by the practice or an associate of the practice in circumstances where the practice or associate is required to hold an Australian financial services licence covering the provision of the service (whether not such a licence is held at any relevant time), or
(b)  a financial service provided by the practice or an associate of the practice in circumstances where the practice or associate provides the service as a representative of another person who carries on a financial services business (whether or not the practice or associate is an authorised representative at any relevant time).
(2)  Without limiting subsection (1), this Part does not apply to a default of a law practice to the extent that the default occurs in relation to money or property that is entrusted to or held by the practice for or in connection with:
(a)  a managed investment scheme, or
(b)  mortgage f