An Act to apply the Legal Profession Uniform Law as a law of New South Wales; to provide for certain local matters to complement that Law; to repeal the Legal Profession Act 2004; to make transitional arrangements; to make consequential amendments to other Acts; and for other purposes.
Part 1 Preliminary
1 Name of Act
This Act is the Legal Profession Uniform Law Application Act 2014.
2 Commencement
(1) This Act commences on a day or days to be appointed by proclamation.(2) Different days may be appointed under subsection (1) for the commencement of different provisions of the Legal Profession Uniform Law set out in Schedule 1 to the Legal Profession Uniform Law Application Act 2014 of Victoria.
3 Definitions
(1) In this Act: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.Bar Association means the New South Wales Bar Association.Bar Council means the Council of the Bar Association.Commissioner for Uniform Legal Services Regulation means the person appointed to or acting in the office of the Commissioner for Uniform Legal Services Regulation established by Part 8.3 of the Legal Profession Uniform Law as applied in the participating jurisdictions.Council means (except in relation to the Legal Services Council) the Bar Council or the Law Society Council.Fidelity Fund means the Legal Practitioners Fidelity Fund maintained under section 115.Law Society means the Law Society of New South Wales.Law Society Council means the Council of the Law Society.Legal Profession Uniform Law (NSW) means the provisions applying in this jurisdiction because of section 4.Legal Services Council means the Legal Services Council established by Part 8.2 of the Legal Profession Uniform Law as applied in the participating jurisdictions.local legal practitioner means an Australian legal practitioner whose home jurisdiction is New South Wales.local practising certificate means an Australian practising certificate issued under the Legal Profession Uniform Law (NSW) to an Australian legal practitioner whose home jurisdiction under that Law is New South Wales.local registration certificate means an Australian registration certificate issued under the Legal Profession Uniform Law (NSW) to a person whose home jurisdiction under that Law is New South Wales.local regulations means the regulations under section 166.Manager, Costs Assessment means the person holding office as Manager, Costs Assessment in the Department of Attorney General and Justice, and includes a delegate of that person.NCAT means the Civil and Administrative Tribunal of New South Wales.NSW Admission Board means the NSW Legal Profession Admission Board constituted under Division 1 of Part 3.NSW Commissioner means the person holding office or acting as NSW Legal Services Commissioner under Division 2 of Part 3.Public Purpose Fund means the fund maintained under section 48.Register of Disciplinary Action—see section 152.Secretary means the Secretary of the Department of Attorney General and Justice.this jurisdiction means the State of New South Wales.(2) Terms used in this Act and also in the Legal Profession Uniform Law (NSW) have the same meanings in this Act as they have in that Law.(3) Notes included in this Act do not form part of this Act.
Part 2 Application of Uniform Law
Division 1 General application provisions
4 Application of Legal Profession Uniform Law
The Legal Profession Uniform Law set out in Schedule 1 to the Legal Profession Uniform Law Application Act 2014 of Victoria:(a) applies as a law of this jurisdiction, and(b) as so applying may be referred to as the Legal Profession Uniform Law (NSW), and(c) so applies as if it were an Act.
5 Exclusion of legislation of this jurisdiction
(1) The following Acts of this jurisdiction do not apply to the Legal Profession Uniform Law (NSW) or to instruments made under that Law:(a) the Interpretation Act 1987 (except as provided by section 416 (6) of the Legal Profession Uniform Law (NSW) and section 8 of this Act),(b) the Subordinate Legislation Act 1989.(2) To avoid doubt, this section does not limit the application of:(a) the Interpretation Act 1987 to a provision of this Act, or(b) the Subordinate Legislation Act 1989 to local regulations.
6 Application of privacy and other legislation
(1) In this section:government sector agency means:(a) a Public Service agency or other government sector agency within the meaning of the Government Sector Employment Act 2013, or(b) a NSW Government agency (see section 13A of the Interpretation Act 1987), or(c) an entity constituted by or under an Act or exercising public functions (such as a State owned corporation), being an entity that is prescribed by the local regulations for the purposes of this definition.government sector employee means a person employed on any basis, or on secondment, in a government sector agency.relevant Acts means the following Acts of New South Wales as in force from time to time:(c) the State Records Act 1998,(d) the Ombudsman Act 1974.(2) The relevant Acts apply to the Legal Services Council and the Commissioner for Uniform Legal Services Regulation in the manner provided by section 416 of the Legal Profession Uniform Law (NSW) and do not apply by their own force.(3) However, the relevant Acts apply to a government sector agency or government sector employee exercising a function under the Legal Profession Uniform Law (NSW).
7 Application of Public Finance and Audit Act 1983
(1) The Public Finance and Audit Act 1983 applies to the Legal Services Council and the Commissioner for Uniform Legal Services Regulation as if they were each an authority within the meaning of that Act.(2) The local regulations may modify the Public Finance and Audit Act 1983 for the purposes of this section.(3) Without limiting subsection (2), the provisions of section 416 (5) of the Legal Profession Uniform Law (NSW) apply to the local regulations under this section in the same way as they apply to the Uniform Regulations.
8 Scrutiny and disallowance of Uniform Regulations
(1) Sections 40 and 41 of the Interpretation Act 1987 and the provisions of the Legislation Review Act 1987 apply to a Uniform Regulation in the same way as they apply to a statutory rule.(2) However, if a Uniform Regulation is disallowed in this jurisdiction, the regulation does not cease to have effect in this jurisdiction unless the regulation is disallowed in a majority of the participating jurisdictions (and, in such a case, the regulation ceases to have effect on the date of its disallowance in the last of the jurisdictions forming the majority).(3) In this section:Uniform Regulation includes a provision of a Uniform Regulation.Note—If there are only 2 participating jurisdictions, a majority would in that case consist of both jurisdictions.
9 No double jeopardy
If:(a) an act or omission is an offence against the Legal Profession Uniform Law (NSW) and is also an offence against a law of another participating jurisdiction, andthe offender is not liable to be punished for the offence against the Legal Profession Uniform Law (NSW).(b) the offender has been punished for the offence under the law of the other jurisdiction,
Division 2 Further application provisions
10 Meaning of term used in Legal Profession Uniform Law (NSW)
In the Legal Profession Uniform Law (NSW):this jurisdiction means the State of New South Wales.
11 Designation of local authorities and tribunals
(1) A person or body specified in Column 2 of Table 1 is the designated local regulatory authority for the purposes of a provision of the Legal Profession Uniform Law (NSW) specified in Column 1 of that Table opposite that person or body.Note—See section 6 of the Legal Profession Uniform Law (NSW) for the definition of .Table 1 Designated local regulatory authorities
Law Society Council
Law Society Council
Law Society Council
Law Society Council
Bar Council
Law Society Council
Appropriate Council
Appropriate Council
NSW Commissioner (in relation to Chapter 5 functions)
Appropriate Council
NSW Commissioner
Bar Council
Law Society Council
12 Nomination of nominated fund and nominated trust authority
For the purposes of section 149 (6) of the Legal Profession Uniform Law (NSW):(a) the Public Purpose Fund is the nominated fund, and(b) the Trustees of the Public Purpose Fund are the nominated trust authority.
13 Specification of fund
The Public Purpose Fund is specified for the purposes of section 365 of the Legal Profession Uniform Law (NSW).
14 Unclaimed money
(1) This section provides for how unclaimed money in a trust account is to be dealt with, as contemplated by section 167 of the Legal Profession Uniform Law (NSW).(2) 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.(3) If a law practice pays money to the Treasurer under subsection (2), the practice is relieved from any further liability in relation to the money.(4) 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.(5) Payment of money to a person under subsection (4):(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.(6) 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.(7) A person of whom a requirement is made under subsection (6):(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 (7)): 20 penalty units.
15 Fidelity fund
The Legal Practitioners Fidelity Fund maintained under Division 1 of Part 9 is nominated as the fidelity fund of this jurisdiction for the purposes of Part 4.5 of the Legal Profession Uniform Law (NSW).Note—See section 222 of the Legal Profession Uniform Law (NSW).
16 Fidelity authority
The Law Society Council is specified as the fidelity authority for the purposes of the definition of in section 6 of the Legal Profession Uniform Law (NSW).
17 Issuing authority for search warrants
(1) Any person holding or acting in the office of Magistrate is the issuing authority for the purposes of section 377 of the Legal Profession Uniform Law (NSW).(2) Except as provided by the Legal Profession Uniform Law (NSW) or this Act, Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to search warrants under section 377 of the Legal Profession Uniform Law (NSW).
18 Pecuniary penalties to be paid into Public Purpose Fund
For the purposes of section 456 (a) of the Legal Profession Uniform Law (NSW), a penalty referred to in that paragraph is to be paid into the Public Purpose Fund.
Part 3 Local regulatory authorities
Division 1 Legal Profession Admission Board
19 Constitution of NSW Admission Board
(1) There is constituted by this Act a corporation with the corporate name of the Legal Profession Admission Board.Note—The Legal Profession Admission Board is referred to in this Act as the NSW Admission Board. See the definition of that term in section 3.(2) The NSW Admission Board is not and does not represent the Crown.(3) The NSW Admission Board is a continuation of and the same legal entity as the Legal Profession Admission Board constituted under the Legal Profession Act 2004.(4) Schedule 3 contains provisions relating to the membership and procedure of the NSW Admission Board.
20 Functions of NSW Admission Board
(1) The NSW Admission Board has the functions conferred on it by or under the Legal Profession Uniform Law (NSW), this Act or any other Act, including by or under the Uniform Rules.(2) The NSW Admission Board has all the powers necessary to perform its functions, including the powers conferred on it by or under the Legal Profession Uniform Law (NSW), this Act or any other Act, including by or under the Uniform Rules.
21 Entitlement to be represented, heard and make representations
(1) The Bar Council, the Law Society Council and the applicant concerned are entitled:(a) to make representations in writing to the NSW Admission Board in relation to any matter under consideration by the Board under Part 2.2 of the Legal Profession Uniform Law (NSW), and(b) to be represented and heard at any inquiry or appeal under that Part.(2) The NSW Admission Board must notify each Council in accordance with the admission rules of:(a) any application for a declaration under section 21 (Declaration of early assessment of suitability for a compliance certificate) of the Legal Profession Uniform Law (NSW), and(b) any declaration made under that section.(3) The NSW Admission Board may notify a Council of any application for admission.(4) The NSW Admission Board is entitled to be represented and heard at any appeal referred to in section 28 of the Legal Profession Uniform Law (NSW).
Division 2 Legal Services Commissioner
22 Appointment of NSW Commissioner
(1) The Governor may, on the recommendation of the Attorney General, appoint a person to be the NSW Legal Services Commissioner.Note—The Legal Services Commissioner is referred to in this Act as the NSW Commissioner. See the definition of that term in section 3.(2) The person so appointed is to be a person who, in the opinion of the Attorney General:(a) is familiar with the nature of the legal system and legal practice (but need not be an Australian legal practitioner), and(b) possesses sufficient qualities of independence, fairness and integrity.(3) Schedule 4 contains provisions relating to the NSW Commissioner.
23 Acting NSW Commissioner
(1) The Attorney General may, from time to time, appoint a person to act in the office of the NSW Commissioner during the illness or absence of the NSW Commissioner (or during a vacancy in the office of NSW Commissioner) and a person, while so acting, has all the functions of the NSW Commissioner.(2) The Attorney General may, at any time, remove a person from the office of acting NSW Commissioner.(3) The acting NSW Commissioner is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Attorney General may from time to time determine.
24 Functions of NSW Commissioner
(1) The NSW Commissioner has the functions conferred on him or her by or under the Legal Profession Uniform Law (NSW), this Act or any other Act, including by or under the Uniform Rules.(2) The NSW Commissioner has all the powers necessary to perform his or her functions, including the powers conferred by or under the Legal Profession Uniform Law (NSW), this Act or any other Act, including by or under the Uniform Rules.(3) Without limitation, the functions of the NSW Commissioner include the following functions:(a) to assist and advise complainants and potential complainants in making and pursuing complaints (including assisting complainants to clarify their complaints and to put their complaints in writing),(b) to conduct regular surveys of, and report on, the views and levels of satisfaction of complainants and respondent Australian lawyers with the complaints handling and disciplinary system,(c) to assist the Bar Council and Law Society Council to promote community education about the regulation and discipline of the legal profession,(d) to assist the Bar Council and Law Society Council in the enhancement of professional ethics and standards, for example, through liaison with legal educators or directly through research, publications or educational seminars,(e) to report on the NSW Commissioner’s activities under the Legal Profession Uniform Law (NSW) or this Act.(4) The NSW Commissioner may appear by barrister or solicitor before, and be heard by, the Supreme Court in the exercise of the functions of the Supreme Court under the Legal Profession Uniform Law (NSW), this Act or otherwise in relation to Australian lawyers.
25 NSW Commissioner may require Councils to provide information
(1) The NSW Commissioner may, for the purpose of exercising the NSW Commissioner’s functions, do any of the following:(a) require the Bar Council or Law Society Council to provide information received by the Council that gives the Council reason to believe that an Australian legal practitioner has engaged in unsatisfactory professional conduct or professional misconduct,(b) require the Bar Council or Law Society Council to provide information relating to an application for an Australian practising certificate,(c) require the Bar Council or Law Society Council to provide information relating to a notification made by an Australian lawyer or an Australian-registered foreign lawyer for the purpose of complying with the Legal Profession Uniform Law (NSW), the Uniform Rules, this Act or the regulations,(d) require the Bar Council or Law Society Council to notify the NSW Commissioner of the Council’s intention to grant, refuse to grant, cancel or suspend an Australian practising certificate.(2) A requirement by the NSW Commissioner under this section may relate to a specific case or may be made in general terms so as to relate to all cases or to a class of cases.(3) The Bar Council or Law Society Council must take into account any representations made by the NSW Commissioner on a matter under the Legal Profession Uniform Law (NSW), the Uniform Rules or this section.
26 Annual report of NSW Commissioner
(1) As soon as practicable after 30 June (but before 31 December) in each year, the NSW Commissioner is to prepare and forward to the Attorney General a report on his or her activities for the 12 months ending on 30 June in that year.(2) The Attorney General is to lay the annual report or cause it to be laid before both Houses of Parliament as soon as practicable after receiving the report.(3) The NSW Commissioner is to include the following matters in the annual report:(a) information on the operation of the complaints process during the year and any recommendations for legislative or other improvements to the complaints process,(b) information about the financial affairs and accounts of the Office of the NSW Legal Services Commissioner (including costs incurred by the NSW Commissioner) during the year,(c) a copy of a certificate of an auditor as to the outcome of any audit carried out under subsection (4) in relation to the year or any previous year if a copy of the certificate has not been included in an earlier annual report under this section,(d) other information or matters that the NSW Commissioner considers appropriate to be included or that the Attorney General directs to be included.(4) Information referred to in subsection (3) (b) is to be audited at least every 2 years. The NSW Commissioner and the Secretary are to enter into arrangements for the audit of the information.(5) Matters included in an annual report must not identify individual clients, Australian lawyers or Australian-registered foreign lawyers unless their names have already lawfully been made public under another provision of this Act or under the Legal Profession Uniform Law (NSW).(6) The annual report need not include information forwarded to the Commissioner for Uniform Legal Services Regulation and included or intended to be included in the Commissioner’s annual report under Part 4 of Schedule 2 to the Legal Profession Uniform Law (NSW).Note—Section 440 of that Law deals with the provision of information by local regulatory authorities.
27 Staff of NSW Commissioner
(1) Persons may be employed in the Public Service under the Government Sector Employment Act 2013 to enable the NSW Commissioner to exercise his or her functions.Note—Section 59 of the Government Sector Employment Act 2013 provides that the persons so employed (or whose services the NSW Commissioner makes use of) may be referred to as officers or employees, or members of staff, of the NSW Commissioner. Section 47A of the Constitution Act 1902 precludes the NSW Commissioner from employing staff.(2) The NSW Commissioner may arrange for the use of the services of any staff (by secondment or otherwise) or facilities of a government agency or other public authority.(3) The NSW Commissioner may, with the approval of the Attorney General, engage consultants or other persons for the purpose of getting assistance.
28 Delegation of functions of NSW Commissioner
The NSW Commissioner may delegate any of his or her functions under this Act (other than this power of delegation) to any member of the staff of the NSW Commissioner or to a person of a class prescribed by the regulations.Note—Delegation of functions under the Legal Profession Uniform Law (NSW) of the NSW Commissioner as a local regulatory authority is provided for by section 406 of that Law. See also section 166 for the prescription by the local regulations of delegates or classes of delegates for that purpose.
Division 3 Bar Council
29 Functions of Bar Council
In addition to its other functions, the Bar Council may exercise functions conferred or imposed on it or the Bar Association:(a) by the Legal Profession Uniform Law (NSW), or(b) by this Act, or(c) as delegate of the NSW Commissioner.
30 Delegation of functions of Bar Council
The Bar Council may delegate any of its functions under this Act (other than this power of delegation) to any of its committees, to an officer of the Bar Association or to an employee of the Bar Association.Note—Delegation of functions under the Legal Profession Uniform Law (NSW) of the Bar Council as a local regulatory authority is provided for by section 406 of that Law. See also section 166 for the prescription by the local regulations of delegates or classes of delegates for that purpose.
Division 4 Law Society Council
31 Functions of Law Society Council
(1) In addition to its other functions, the Law Society Council may exercise functions conferred or imposed on it or the Law Society:(a) by the Legal Profession Uniform Law (NSW), or(b) by this Act, or(c) as delegate of the NSW Commissioner.(2) The Law Society Council also has the function of disseminating information to increase public awareness of the requirements of this Act, the Legal Profession Uniform Law (NSW) and the Corporations Act 2001 of the Commonwealth relating to solicitors who:(a) are involved in managed investment schemes, or(b) negotiate the making of or act in respect of regulated mortgages.
32 Delegation of functions of Law Society Council
The Law Society Council may delegate any of its functions under this Act (other than this power of delegation and the functions referred to in section 119 (Management Committee)) to any of its committees, to an officer of the Law Society or to an employee of the Law Society.Note—Delegation of functions under the Legal Profession Uniform Law (NSW) of the Law Society Council as a local regulatory authority is provided for by section 406 of that Law. See also section 166 for the prescription by the local regulations of delegates or classes of delegates for that purpose.
Division 5 Miscellaneous
33 Lay representation on committees
(1) The Attorney General may do either or both of the following:(a) after consultation with the Bar Council, direct, by written order, that any specified committees or kinds of committees of the Bar Association or Bar Council must include in their membership a specified or determinable number of lay members,(b) after consultation with the Law Society Council, direct, by written order, that any specified committees or kinds of committees of the Law Society or Law Society Council must include in their membership a specified or determinable number of lay members.(2) Except as provided by subsection (3), a direction has no effect to the extent that it would require the membership of a committee to have more than one-quarter of its membership composed of lay members.(3) The membership of any professional conduct committee must include at least 3 lay members.(4) A lay member has the voting and other rights and the obligations that are provided in the constitution of the committee or as are provided by the local regulations. Those regulations prevail to the extent of any inconsistency with the constitution of the committee.(5) For the purposes of this section, a lay member is a person who is not an Australian lawyer.
34 Councils to submit annual report
(1) As soon as practicable after 30 June (but on or before 31 December) in each year, the Bar Council and the Law Society Council are each required to prepare and forward to the Attorney General a report of their work and activities under this Act for the 12 months ending on 30 June in that year.(2) The Attorney General is to lay the reports, or cause them to be laid, before both Houses of Parliament as soon as practicable after receiving the report.(3) A Council is to include the following information in its annual report:(a) information about the costs incurred by the Council during the reporting year in relation to its regulatory functions, as certified by an auditor,(b) in the case of the Law Society Council—the total amount paid from the Public Purpose Fund and the Fidelity Fund during the year,(c) such other information as may be prescribed by the regulations or as the Attorney General directs to be included.(4) Matters included in a report must not identify individual Australian lawyers unless their names have already lawfully been made public under Part 12.(5) This section does not affect any other provision of this Act requiring a report to be made to the Attorney General.
35 Court appearances
A local regulatory authority for this jurisdiction may appear by barrister or solicitor before, and be heard by, any court in any matter affecting the local regulatory authority (or, without limitation, its members in the case of the Bar Association or Law Society Council) in which the local regulatory authority is concerned or interested.
Part 4 Practising certificates and registration certificates
Division 1 Australian practising certificates
36 Australian practising certificate fees and fidelity fund contributions
An application for the grant or renewal of an Australian practising certificate in which the applicant states that New South Wales is the jurisdiction that he or she reasonably intends will be his or her principal place of practice in Australia must be accompanied by:(a) the appropriate fee for the certificate, and(b) the required contribution to the fidelity fund (if any).Note—Applications are made under section 44 of the Legal Profession Uniform Law (NSW). See sections 38 and 39 of this Act for fees for practising certificates, and section 225 of the Legal Profession Uniform Law (NSW) for fidelity fund contributions.
37 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 39 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.
38 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 different factors that are specified in the determination and approved by the Attorney General.(3) A Council may waive or postpone payment of the practising certificate fee or any part of the fee.(4) Subject to the local 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 local 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.
39 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.
40 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.
41 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 2 Australian registration certificates
42 Australian registration certificate fees, fidelity fund contributions, and costs and expenses
(1) An application to a Council for the grant or renewal of an Australian registration certificate must be accompanied by:(a) the appropriate fee for the certificate, and(b) the required contribution to the fidelity fund (if any).Note—Applications are made under section 62 of the Legal Profession Uniform Law (NSW). See section 225 of the Legal Profession Uniform Law (NSW) for fidelity fund contributions.(2) Different fees may be set according to different factors determined by the relevant Council.(3) The fees are not to be greater than the maximum fees for a local practising certificate.(4) A Council may waive or postpone payment of a fee or any part of a fee.(5) A Council may also require the applicant to pay any reasonable costs and expenses incurred by the relevant Council 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.(6) The fees, costs and expenses must not include any component for compulsory membership of any professional association.
Division 3 General
43 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.
44 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.
45 Government lawyers
(1) The local regulations may make provision for or with respect to:(a) exempting persons or classes of persons from the requirement to hold Australian practising certificates, either generally or for specified periods, in respect of their official functions as government lawyers, and(b) without limitation, excluding or modifying the operation of specified provisions of the Legal Profession Uniform Law (NSW) (including provisions of Parts 2.2 and 3.3 of that Law) to the extent that any of those provisions would otherwise be applicable to any persons, or classes of persons, as government lawyers.Note—See section 56 of the Legal Profession Uniform Law (NSW).(2) Government lawyers (including Crown prosecutors, public defenders, parliamentary counsel or other statutory Crown law officers) may be granted an Australian practising certificate with a condition that the holder is authorised to engage in legal practice as or in the manner of a barrister only.
Part 5 Trust accounts and Public Purpose Fund
Division 1 Trust accounts—statutory deposits
46 Statutory deposits
(1) The local regulations may require a law practice to pay amounts out of a general trust account of the law practice into an ADI account maintained by the Law Society.(2) Without limiting subsection (1), the local 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 a general trust 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 or Part 4.2 of the Legal Profession Uniform Law (NSW).
47 Status and repayment of deposited money
(1) Money paid under section 46 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 46.(3) Until repaid, money deposited under section 46 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 2 Public Purpose Fund
48 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 Purpose Fund under sections 46, 47 and 50,(b) such other amounts as are payable to the Fund by or under this Act.
49 Trustees of the Public Purpose Fund
(1) There are to be Trustees of the Public Purpose Fund (in this Part, the Trustees).(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 Secretary.(3) Schedule 5 contains provisions relating to the Trustees.
50 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.
51 Arrangements with ADIs
The Trustees are, without limitation, authorised to enter into arrangements with an ADI that are of the kind referred to in section 149 (1) (b) of the Legal Profession Uniform Law (NSW).
52 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 53 (Payment of certain costs from Fund), in accordance with the approval of the Secretary 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 55 (Discretionary payments from Fund for other purposes),(c) any amounts required to be paid from the Fund in accordance with an order of NCAT under clause 23 (3) of Schedule 5 to the Civil and Administrative Tribunal Act 2013,(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.
53 Payment of certain costs from Fund
(1) Payments are to be made from the Public Purpose Fund, in accordance with this section and subject to section 55, 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 21,(b) the costs of a Council in exercising functions under Part 3.3 of the Legal Profession Uniform Law (NSW), including in responding to any appeal or review arising in relation to functions under that Part,(c) the costs of a Council in exercising functions under Parts 3.4, 3.5 and 3.6 of the Legal Profession Uniform Law (NSW), including in responding to any appeal or review arising in relation to functions under those Parts,(d) the costs of the NSW Commissioner or a Council in taking action under Part 9.6 of the Legal Profession Uniform Law (NSW),(e) the costs of the NSW Commissioner or a Council relating to compliance with a condition to which an Australian registration certificate is subject under Division 4 of Part 3.4 of the Legal Profession Uniform Law (NSW),(f) the costs of a Council in exercising functions under:(i) section 80 and Parts 3.7, 3.9 and 4.5 of the Legal Profession Uniform Law (NSW), and(ii) Part 9 of this Act,(g) the costs of the Law Society Council (including its members, employees or agents) in respect of an external examination or external investigation under Part 4.2 of the Legal Profession Uniform Law (NSW), to the extent that those costs are not recoverable under section 160 or 166 of that Law,(h) the costs of the NSW Admission Board in connection with an appeal under Division 3 of Part 2.2 of the Legal Profession Uniform Law (NSW),(i) 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 341 of the Legal Profession Uniform Law (NSW) or an appeal or review under section 358 of that Law) and any fees, costs and expenses payable from the Fund under section 365 of that Law,(j) the costs of the NSW Commissioner or NCAT in relation to the administration of Chapter 5 of the Legal Profession Uniform Law (NSW),(k) the costs of the NSW Commissioner or Council in exercising functions for the purposes of Chapter 5 of the Legal Profession Uniform Law (NSW),(l) the costs of the NSW Commissioner or a Council 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 264 of the Legal Profession Uniform Law (NSW),(m) the costs of the NSW Commissioner or a Council in connection with the provision of mediators for the mediation of consumer disputes under Chapter 5 of the Legal Profession Uniform Law (NSW), including costs disputes,(n) the costs of the Costs Assessment Rules Committee in exercising functions for the purposes of this Act,(o) the costs of a Council or the NSW Commissioner in connection with a compliance audit of a law practice under section 256 of the Legal Profession Uniform Law (NSW),(p) without limiting any other paragraph of this subsection, the costs of a Council or the NSW Commissioner in exercising functions in relation to restrictions on advertising and other marketing of services under the Legal Profession Uniform Law (NSW) or the Uniform Rules.(2) Those payments are to be made by the Trustees in accordance with the approval of the Secretary.(3) The Secretary is to approve the payment from the Fund of such amounts as the Secretary 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 54.(4) If a local regulatory authority requests payment of any of their costs in commencing or maintaining proceedings taken in relation to the exercise of any functions referred to in subsection (1), the Secretary may, before approval is given or payment is made, request:(a) information from the authority about whether attempts have been made to recover any or all of those costs from another party to the proceedings and, if no attempt was made, the reasons for not making an attempt, and(b) further information from the authority if the Secretary is of the opinion that additional information is required in response to a previous request under this subsection.(5) If the amount of costs or expenses actually expended or incurred by a beneficiary in or in respect of a relevant period:(a) exceeds the amount approved for payment under subsection (3) in respect of costs or expenses of that kind—the Secretary is to approve payment from the Fund of such additional amount as the Secretary considers necessary and reasonable for the purpose of meeting or contributing to any underpayment, or(b) is less than the amount approved for payment under subsection (3) in respect of costs or expenses of that kind—the Secretary is to require the beneficiary to repay to the Fund such amount already paid to the beneficiary as the Secretary specifies for the purpose of recouping the whole or a part of any overpayment.(6) Instead of dealing with an underpayment or overpayment in accordance with subsection (5), the Secretary may deal with all or part of the underpayment or overpayment by way of adjustment of amounts approved under that subsection for payment to the beneficiary in or in respect of a future period.(7) An approval is subject to such conditions as the Secretary specifies in the approval.(8) Payments under this section may be made in advance of or by way of reimbursement of the relevant cost or expense.
54 Submission of budgets and supplementary budgets to Secretary
(1) For the purpose of determining the amount to be paid from the Public Purpose Fund for a purpose referred to in section 53, the Secretary may require the beneficiary of the payment to prepare and submit a budget or supplementary budget to the Secretary, in respect of such period as the Secretary directs, relating to the costs or expenses of the beneficiary (including projected costs and expenses).(2) Without limiting subsection (1), a budget or supplementary budget may relate wholly or partly to a past period if the Secretary so directs or approves, whether or not any cost or expense has already been incurred or met by the beneficiary.(3) The budget or supplementary budget is to include such information as the Secretary directs. In particular, the Secretary may require the provision of information about the administration of the beneficiary.(4) The Secretary may refuse to approve a payment under section 53 if the beneficiary has failed to submit a budget or supplementary budget as required under this section.(5) 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.
55 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 Secretary 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.
56 Payments from Fund for costs of uniform authorities
The Trustees may, at the request of the Attorney General, pay from the Public Purpose Fund amounts for such part of the costs of the Legal Services Council and the Commissioner for Uniform Legal Services Regulation as the Attorney General is satisfied cannot be reasonably recovered through admission fees.
57 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 NSW Commissioner, the Bar Council and the Law Society Council 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.
58 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 34.
Part 6 Legal costs—particular kinds of costs
59 Local regulations to provide for fixed costs
(1) The local 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 legal services provided in connection with small claims applications (within the meaning of section 379 of the Industrial Relations Act 1996),(d) fixing the costs payable for the enforcement of a lump sum debt or liquidated sum for damages,(e) fixing the costs payable for the enforcement of a judgment by a judgment creditor,(f) fixing the costs payable for legal services provided in respect of probate or the administration of estates,(g) 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.Note—Section 172 (3) of the Legal Profession Uniform Law (NSW) provides as follows:(3) In considering whether legal costs are fair and reasonable, regard must also be had to whether the legal costs conform to any applicable requirements of this Part, the Uniform Rules and any fixed costs legislative provisions.The term fixed costs legislative provision is defined in section 6 of that Law.
60 Provisions relating to local regulations on fixed costs
(1) The local regulations may fix a cost under section 59 for a particular legal service, for a class of legal services or for any part of a legal service.(2) The local regulations may fix a cost under section 59:(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.
61 Maximum costs in personal injury damages matters
Schedule 1 contains provisions relating to maximum costs in personal injury damages matters.
62 Costs in civil claims—no reasonable prospects of success
Schedule 2 contains provisions relating to costs in civil claims where there are no reasonable prospects of success.
Part 7 Legal costs—costs assessment
Division 1 Preliminary
63 Definitions
In this Part:costs assessment rules means rules under Division 5.costs assessor means a person appointed to be a costs assessor under section 91.review panel means a review panel referred to in section 67.
Division 2 Assessment of solicitor-client costs
64 Application and purpose of this Division
(1) This Division applies to legal costs payable on a solicitor-client basis.(2) Part 4.3 of the Legal Profession Uniform Law (NSW) provides for assessments and determinations of legal costs payable on a solicitor-client basis to be conducted by costs assessors and for associated matters. The purpose of this Division is to supplement that Part.
65 Costs assessment rules
Subject to this Act and the Legal Profession Uniform Law (NSW), assessments of legal costs are to be conducted in accordance with the costs assessment rules.
66 Costs assessors
Costs assessors are appointed under section 91. Their functions are provided for under this Part, Part 4.3 of the Legal Profession Uniform Law (NSW) and the costs assessment rules.
67 Review panels
(1) Review panels are established under the costs assessment rules and are each constituted by 2 costs assessors appointed under those rules. A review panel may be established for one or more costs reviews.(2) A party to a costs assessment who is dissatisfied with a determination of a costs assessor may apply for a review of the determination by a review panel in accordance with the costs assessment rules.(3) A review panel may, on application made under subsection (2), review the determination of a costs assessor and may:(a) affirm the costs assessor’s determination, or(b) set aside the costs assessor’s determination and substitute its own determination in relation to the costs assessment.(4) The review 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 Part and the costs assessment rules, in the manner that a costs assessor would be required to determine an application for costs assessment.(5) 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.(6) If the costs assessors who constitute the review panel are unable to agree on a determination in relation to an application, the panel is to affirm the determination of the costs assessor.
68 Fees
An application for a costs assessment or costs review is to be accompanied by the appropriate fee (if any) payable under the costs assessment rules.
69 Submissions
A costs assessor must give an 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 give due consideration to any submissions so made.
70 Determination of costs when agreed
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 or proceedings before the panel, the parties notify the assessor or panel (as the case may be) that they have agreed on the amount of those costs.
71 Interest on amount outstanding
(1) A costs assessor may determine that interest is not payable on the amount of costs assessed or on any part of that amount or determine the rate of interest (not exceeding the rate referred to in section 195 (4) of the Legal Profession Uniform Law (NSW)).(2) This section applies despite any costs agreement or anything else in section 195 of the Legal Profession Uniform Law (NSW).(3) This section does not authorise the giving of interest on interest.
72 Recovery of amounts
(1) After a costs determination is made by a costs assessor or review panel, the amount of costs paid (if any) that exceeds the amount specified in the certificate of the determination may be recovered as a debt in a court of competent jurisdiction.(2) After a costs determination is made, the certificate of the determination is, on being filed 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. 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.(3) The Manager, Costs Assessment may take action to recover the costs of a costs assessor, the review panel or the Manager, Costs Assessment.
73 Reference of special circumstances to Supreme Court—costs of costs determination
(1) For the purpose of determining the costs of a costs assessment, the costs assessor or review panel may refer to the Supreme Court any special circumstances relating to the costs assessment.(2) The Supreme Court may make any order it thinks fit concerning those costs.
74 Costs determination to be final
A costs determination is binding on all parties and no appeal or other assessment lies in respect of the determination, except as provided by this Part.
Division 3 Assessment of party-party costs
75 Application of this Division
This Division applies to legal costs payable on a party-party basis.
76 Application of provisions relating to assessment of solicitor-client costs to assessment of party-party costs
(1) Subject to this Division and to any modifications prescribed by the costs assessment rules, the following provisions apply to legal costs payable on a party-party basis:(a) Division 7 of Part 4.3 of the Legal Profession Uniform Law (NSW),(b) Divisions 2 and 4 of this Part.(2) In conducting an assessment of legal costs payable as a result of an order made by a court or tribunal, the assessment or review by the costs assessor or review panel must be made in accordance with the rules of the relevant court or tribunal that made the order for costs and any relevant regulations.(3) 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.
77 Particular applications for assessment of party-party costs
(1) An application for an assessment of costs payable on a party-party basis may not be made in relation to costs arising out of criminal proceedings in a court except as provided by section 257G of the Criminal Procedure Act 1986.(2) An application for an assessment of costs payable on a party-party basis may be made in relation to an application for and the issue of an apprehended violence order within the meaning of the Crimes (Domestic and Personal Violence) Act 2007.
78 Costs agreements not to be applied
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.
79 Costs of costs assessment
Subject to any order of or the rules of the relevant court or tribunal, the costs assessor may determine by whom and to what extent the costs of an assessment referred to in section 204 of the Legal Profession Uniform Law (NSW), as applied by this Division, are payable and include the determination in any certificate issued under the costs assessment rules in relation to the assessment.
80 Court or tribunal may determine matters
This Part 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.
Division 4 Appeals
81 Application of this Division to decisions of costs assessors and review panels
(1) This Division applies to decisions of costs assessors and review panels in relation to the assessment of legal costs.(2) A reference in this Division to a costs assessor includes a reference to a review panel, and a reference to an application for a costs assessment includes a reference to an application for a costs review.
82 Appeal as to matter of law
(1) An applicant for a costs assessment or the law practice concerned may, in accordance with the rules of the District Court, appeal to the District Court against a decision of the costs assessor as to a matter of law arising in the proceedings before the costs assessor.(2) 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.
83 Appeal by leave
(1) An applicant for a costs assessment or the law practice concerned may, in accordance with the rules of the District Court, seek leave of the Court to appeal to the Court against a decision of 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 a decision of a costs assessor.(3) The District Court or other 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 District Court or court or tribunal may, unless it affirms the costs assessor’s decision, substitute its own determination in relation to the costs assessment.(6) A reference in sections 82–85 to an appeal includes a reference (however expressed) to an application seeking leave to appeal.
84 Effect of appeal on application
(1) Either the costs assessor or the court or tribunal concerned may suspend the operation of a decision of a costs assessor that is the subject of an appeal under section 82 or 83.(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.(3) A suspension ends when the appeal or application for leave:(a) is determined, or(b) is refused, discontinued or struck out or lapses.
85 Assessor can be party to appeal
A costs assessor can be made a party to any appeal against a decision of the costs assessor by the District Court.
86 Notices of appeal
A copy of every document initiating an appeal against a decision of a costs assessor must be served on the Manager, Costs Assessment by the party making the appeal.
87 Court may refer unreviewed determination to review panel
(1) If leave to appeal is sought under section 83 against a determination of a costs assessor and the determination to which the appeal relates was not made or has not been reviewed by a review panel, the court or tribunal to which the application is made may refer the matter for review by a review panel.(2) The referral of a matter by a court or tribunal under subsection (1) is taken to be a duly made application for a review.
Division 5 Costs assessment rules
88 Costs Assessment Rules Committee
(1) There is to be a Costs Assessment Rules Committee consisting of the following persons appointed by the Chief Justice of New South Wales:(a) a Judge of the Supreme Court,(b) a Judge of the District Court nominated by the Chief Judge of the District Court,(c) a barrister nominated by the Bar Council,(d) a solicitor nominated by the Law Society Council,(e) a person nominated by the NSW Commissioner,(f) costs assessors chosen by the Chief Justice.(2) The Committee has any of the functions conferred or imposed on the Committee by or under this or any other Act.(3) The Committee is to regulate its own proceedings for the calling of meetings and the conduct of its business.(4) The Manager, Costs Assessment is the Secretary of the Committee.(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 53, to the Treasurer for credit of the Consolidated Fund.
89 Costs assessment rules
(1) The Costs Assessment Rules Committee may make rules (costs assessment rules), not inconsistent with the Legal Profession Uniform Law (NSW) or this Act, for or with respect to costs assessments and determination reviews, including without limitation:(a) the making, timing and processing of applications for costs assessments and determination reviews, and(b) the fees for making applications for costs assessments and determination reviews, and the waiver, refund or postponement of any of those fees, and(c) the conduct of costs assessments and determination reviews, including:(i) the practice and procedure for costs assessments and determination reviews, and(ii) the appointment of costs assessors to conduct costs assessments, and(iii) the establishment of review panels and the appointment of costs assessors to review panels, and(iv) matters relating to the interests of costs assessors in particular matters, and(v) the determination and payment of the costs of costs assessments and determination reviews, and(vi) the issue of certificates of determinations, and(vii) the giving of reasons for determinations and the provision of supplementary information to accompany the reasons, and(viii) the suspension of a costs determination in the event of an application for a costs review, and(d) requiring a person (including an applicant, the law practice concerned, any other law practice or client, or a costs assessor) to produce documents, to provide information (verified by statutory declaration if the requirement so states), or otherwise to assist in, or co-operate with, the determination or finalisation of an assessment or review, and(e) requiring documents produced in response to a requirement referred to in paragraph (d) to be returned or otherwise disposed of within a period specified in or determined in accordance with the rules, and(f) the correction of errors in a determination.(2) A rule for or with respect to fees may be made only with the concurrence of the Attorney General.(3) A rule may do any of the following:(a) apply generally or be limited in its application by reference to specified exceptions or factors,(b) apply differently according to different factors of a specified kind,(c) authorise any matter or thing to be from time to time determined, applied or regulated by any specified person or body.(4) The rules must be published on the NSW legislation website.(5) Sections 40 (Notice of statutory rules to be tabled) and 41 (Disallowance of statutory rules) of the Interpretation Act 1987 apply to the rules in the same way as they apply to a statutory rule.
90 Provisions of rules about compliance with rules relating to documents, information, assistance and co-operation
(1) This section applies to a requirement referred to in section 89 (1) (d).(2) A person who is subject to a requirement to which this section applies must comply with the requirement.Maximum penalty: the penalty specified in the costs assessment rules in relation to a contravention of the requirement (not exceeding 50 penalty units).(3) If a person fails, without reasonable excuse, to comply with a requirement to which this section applies, the costs assessor or panel 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 requirement to which this section applies without reasonable excuse is capable of being unsatisfactory professional conduct or professional misconduct.
Division 6 Costs assessments—general
91 Costs assessors
(1) The Chief Justice of New South Wales may appoint persons to be costs assessors.(2) A costs assessor has the functions that are conferred on the costs assessor by or under this or any other Act or the Legal Profession Uniform Law (NSW).(3) A costs assessor is not an officer of the Supreme Court when acting as a costs assessor.(4) 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.(5) Schedule 6 contains provisions relating to costs assessors.
92 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 review panel) unless the disclosure is made:(a) in connection with the exercise of those functions or the administration or execution of this Act or the Legal Profession Uniform Law (NSW), or(b) for the purposes of any legal proceedings arising out of this Act or the Legal Profession Uniform Law (NSW), 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.
93 Part not to apply to interest on judgment debt
This Part does not apply to an amount of interest payable on a judgment debt (being an order for the payment of costs) under section 101 of the Civil Procedure Act 2005.
Part 8 Professional indemnity insurance
Division 1 Introduction
94 Purpose of this Part
The purpose of this Part is to supplement Part 4.4 of the Legal Profession Uniform Law (NSW).
95 Approved insurance policy
(1) A policy of professional indemnity insurance that complies with this section is an approved insurance policy for this jurisdiction for the purposes of Part 4.4 of the Legal Profession Uniform Law (NSW) in relation to an entity that:(a) is required to hold or be covered by an approved policy of professional indemnity insurance, and(b) is of a class of entities to which an order under subsection (2) applies.(2) A policy of professional indemnity insurance complies with this section if:(a) the Attorney General has, by order in writing (given to the Bar Council in the case of professional indemnity insurance for a barrister or to the Law Society Council in any other case), approved of:(i) the type of policy, and(ii) the level of insurance provided by the policy, and(iii) the terms and conditions of the policy, and(b) any conditions imposed by the order are complied with, and(c) the policy is not to expire before the expiration of the term of the Australian practising certificate of the entity to whom the policy relates.(3) An order may apply to a class or classes of those entities. An order that does not expressly or impliedly apply to any particular class of entities is taken to apply to all classes of entities.(4) This section applies despite anything to the contrary in section 210 (1) of the Legal Profession Uniform Law (NSW).
Division 2 Barristers
96 Application of this Division
This Division applies to barristers who are required by Part 4.4 of the Legal Profession Uniform Law (NSW) to hold or be covered by an approved insurance policy for this jurisdiction and who are not exempt from that requirement under that Part.
97 Evidence of policy
The Bar Council is entitled to accept as evidence that there is, or will be, in force with respect to a barrister an approved insurance policy:(a) evidence in the form of written advice from an insurer, provider or insurance broker to the effect that an insurer or provider has issued the policy, or(b) evidence that the local regulations provide is acceptable evidence for the purposes of this section.
Division 3 Solicitors
98 Application of this Division
This Division applies to solicitors who are required by Part 4.4 of the Legal Profession Uniform Law (NSW) to hold or be covered by an approved insurance policy for this jurisdiction and who are not exempt from that requirement under that Part.
99 Definitions
In this Division:Company means the company that, immediately before the commencement of this section, was managing the Solicitors Mutual Indemnity Fund established by the Legal Practitioners Act 1898.Indemnity Fund means the Solicitors Mutual Indemnity Fund maintained by the Company.insurable solicitor means a solicitor to whom this Division applies, other than a solicitor 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).
100 Evidence of policy
The Law Society Council is entitled to accept as evidence that there is, or will be, in force with respect to a solicitor an approved insurance policy:(a) evidence in the form of written advice from an insurer, provider or insurance broker to the effect that an insurer or provider has agreed to issue the policy, or(b) evidence that the premium for the policy has been received and accepted by the insurer or provider for the purposes of the issue of the policy, or(c) evidence that the local regulations provide is acceptable evidence for the purposes of this section.
101 Solicitors Mutual Indemnity Fund
(1) The Company must maintain and manage a Solicitors Mutual Indemnity Fund.(2) The Indemnity Fund consists of:(a) all money (including invested money) forming part of the Solicitors Mutual Indemnity Fund under the Legal Profession Act 2004 immediately before the commencement of this section, and(b) the money paid on account of the Indemnity Fund as annual contributions or as levies under this Division, and(c) the interest or other income accruing from investment of the money in the Indemnity Fund, and(d) any other money lawfully paid into the Indemnity Fund, and(e) investments made under section 103, and(f) other assets acquired as part of the Indemnity Fund.(3) The Company may arrange with an insurer for insurance of the Indemnity Fund or any part of it.(4) The Indemnity Fund is the property of the Law Society and may be used only for the purposes of this Division.
102 Separate account
The Indemnity Fund is to be kept in a separate account with an ADI in New South Wales with the name “Solicitors Mutual Indemnity Fund”.
103 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.
104 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, and(c) amounts determined by the Company towards meeting any difference between the indemnity provided by an approved insurance policy and the liability of a person insured under the policy, and(d) other amounts determined by the Company.(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 109, 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, oror that do both.(b) that are subject to compliance with conditions imposed by the Company,(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.
105 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, an 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 local 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.
106 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.
107 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.
108 Failure to pay contribution or levy
(1) If, after being given written notice, an insurable solicitor fails to pay a contribution, instalment of a contribution, or levy in accordance with section 106 or 107 or Schedule 7, the Company must report the failure to the Law Society Council.(2) The Law Society Council may, after receiving the report, suspend the insurable solicitor’s Australian practising certificate while the failure continues.
109 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) other matters relating to the Indemnity Fund as determined by the Attorney General.(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) In this section, 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.
110 Powers of investigators
(1) For the purpose of conducting an investigation under section 109, an investigator may, by notice in writing served on any person, require the person to provide to the investigator the information or records relating to the Indemnity Fund or the Company’s management of the Indemnity Fund that 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 109 to conduct an investigation in relation to the Indemnity Fund.
Division 4 Incorporated legal practices
111 Application of this Division
This Division applies to incorporated legal practices that are required by Part 4.4 of the Legal Profession Uniform Law (NSW) to hold or be covered by an approved insurance policy for this jurisdiction and that are not exempt from that requirement under that Part.
112 Professional indemnity insurance for incorporated legal practices
(1) Division 3 applies to an incorporated legal practice in the same way as it applies to insurable solicitors, subject to any modifications determined by the Law Society Council or prescribed by the local regulations. The local regulations prevail over a determination of the Law Society Council under this subsection to the extent of any inconsistency.(2) Nothing in this section affects any obligation of an Australian legal practitioner who is an associate of an incorporated legal practice.
Division 5 Miscellaneous
113 Application of Division 3 to other persons
(1) The Company may apply Division 3 (except any provisions prescribed by the local regulations) to others 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 insurance policy, and(d) pay to the Indemnity Fund such contributions and levies as the Company determines and the Law Society Council approves.(2) Terms used in this section and also in Division 3 have the same meanings in this section as they have in that Division.
114 Provisions relating to HIH insurance
Schedule 7 contains provisions relating to HIH insurance.
Part 9 Fidelity cover
Note—
• The Legal Practitioners Fidelity Fund maintained under Division 1 of this Part is nominated as the fidelity fund of this jurisdiction for the purposes of Part 4.5 of the Legal Profession Uniform Law (NSW)—see section 15 of this Act.
• The Law Society Council is specified as the fidelity authority for the purposes of the definition of in section 6 of the Legal Profession Uniform Law (NSW)—see section 16 of this Act.
Division 1 Legal Practitioners Fidelity Fund
115 Establishment of Legal Practitioners Fidelity Fund
(1) The Law Society must maintain and manage a Legal Practitioners Fidelity Fund.(2) The Fidelity Fund consists of:(a) all money (including invested money) forming part of the Legal Practitioners Fidelity Fund under the Legal Profession Act 2004 immediately before the commencement of this section, and(b) the money paid on account of the Fidelity Fund as annual contributions or as levies under Part 4.5 of the Legal Profession Uniform Law (NSW), and(c) the interest or other income accruing from investment of the money in the Fidelity Fund, and(d) money paid to the Fidelity Fund from the Public Purpose Fund, and(e) any other money lawfully paid to the Fidelity Fund.(3) The amount of an annual contribution or levy under Part 4.5 of the Legal Profession Uniform Law (NSW) requires the approval of the Attorney General despite that Part.(4) The Fidelity Fund is the property of the Law Society and is to be applied in accordance with this Part.
116 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.
117 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.
118 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, and(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, and(c) the amount of a claim (including interest and costs) allowed or established against the Law Society in respect of the Fidelity Fund, and(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, and(e) the costs of the Law Society Council in exercising its function under section 31, 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 6 (External intervention) of the Legal Profession Uniform Law (NSW) or under rules or regulations made under this Act.Note—Section 240 (1) of the Legal Profession Uniform Law (NSW) provides that the fidelity authority (which is the Law Society Council) must ensure that claims against the Fidelity Fund are determined independently, at arm’s length from the legal profession.
119 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.
120 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.
121 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.
Division 2 Claims about defaults
122 Claims about defaults
(1) A person who suffers pecuniary loss because of a default to which Part 4.5 of the Legal Profession Uniform Law (NSW) applies may make a claim against the Fidelity Fund to the Law Society about the default.(2) A claim is to be made in writing in a form approved by the Law Society Council.(3) The Law Society Council may require the person who makes a claim to do either or both of the following:(a) to give further information about the claim or any dispute to which the claim relates,(b) to verify the claim, or any further information, by statutory declaration.(4) The Law Society Council must investigate a claim made to it, including the default to which it relates, and may do so in any manner it considers appropriate.
123 Availability of property of Law Society
The Fidelity Fund is the only property of the Law Society available for the satisfaction of a successful claim.
Division 3 General
124 Application of provisions of Uniform Law
Part 4.5 of the Legal Profession Uniform Law (NSW) does not apply to a default of a law practice consisting of a barrister.
Part 10 Mortgage practices
125 Definitions
(1) In this Part:ASIC exemption means an exemption from the Corporations Act 2001 of the Commonwealth given by the Australian Securities and Investments Commission under that Act.associate of a solicitor—see subsection (2).borrower means a person who borrows from a lender or contributor money that is secured by a mortgage.client of a solicitor means a person who:(a) receives the solicitor’s advice about investment in a regulated mortgage or managed investment scheme, or(b) gives the solicitor instructions to use money for a regulated mortgage or managed investment scheme.contributor means a person who lends, or proposes to lend, money that is secured by a contributory mortgage arranged by a solicitor.contributory mortgage means a mortgage to secure money lent by 2 or more contributors as tenants in common or joint tenants, whether or not the mortgagee is a person who holds the mortgage in trust for or on behalf of those contributors.financial institution means:(a) an ADI, or(b) a body that, immediately before 1 July 1999, was a society within the meaning of the Friendly Societies (NSW) Code or a body that is a friendly society for the purposes of the Life Insurance Act 1995 of the Commonwealth, or(c) a trustee company within the meaning of the Trustee Companies Act 1964, or(d) a property trust or other body corporate established by or in respect of a church that may invest money in accordance with an Act, or(e) a corporation or other body, or a corporation or body of a class, prescribed by the local regulations for the purpose of this definition.lender means a person who lends, or proposes to lend, a borrower money that is secured by a mortgage.member of a managed investment scheme has the same meaning as in the Corporations Act 2001 of the Commonwealth.regulated mortgage means a mortgage (including a contributory mortgage) other than:(a) a mortgage under which the lender is a financial institution, or(b) a mortgage under which the lender or contributors nominate the borrower, but only if the borrower is not a person introduced to the lender or contributors by the solicitor who acts for the lender or contributors or by:(i) an associate of the solicitor, or(ii) an agent of the solicitor, or(iii) a person engaged by the solicitor for the purpose of introducing the borrower to the lender or contributors, or(c) a mortgage, or a mortgage of a class, that the local regulations prescribe as exempt from this definition.responsible entity has the same meaning as in the Corporations Act 2001 of the Commonwealth.run-out mortgage means a regulated mortgage that was entered into before 7 September 2001 (the date of commencement of section 117 of the Legal Profession Act 1987, as inserted by the Legal Profession Amendment (Mortgage Practices) Act 2000), which is not:(a) a State regulated mortgage, or(b) a mortgage that forms part of a managed investment scheme that is required to be operated by a responsible entity under the Corporations Act 2001 of the Commonwealth (as modified by any ASIC exemption or the regulations under that Act).State regulated mortgage is defined in section 126.State regulated mortgage practice means a solicitor’s practice in respect of which a nomination made in accordance with section 128 is in force.(2) In this Part, a reference to an associate of a solicitor is a reference to:(a) a partner of the solicitor, whether or not the partner is a solicitor, or(b) an employee or agent of the solicitor, or(c) a corporation, or a member of a corporation, partnership, syndicate or joint venture, in which the solicitor or a person referred to in paragraph (a), (b) or (e) has a beneficial interest, or(d) a co-trustee of the solicitor, or(e) a person who bears a prescribed relationship to the solicitor or to a person referred to in paragraphs (a)–(d), or(f) a corporation that (if the solicitor or a person referred to in paragraphs (a)–(e) were, or is, a corporation) would be, or is, a subsidiary of the solicitor or person within the meaning of the Corporations Act 2001 of the Commonwealth, or(g) a person prescribed by the local regulations as an associate of the solicitor.(3) For the purposes of subsection (2) (e), a person bears a prescribed relationship to a solicitor or other person if the relationship is that of:(a) a spouse, or(b) a de facto partner, or(c) a child, grandchild, sibling, parent or grandparent, whether derived through paragraph (a) or (b) or otherwise, or(d) a kind prescribed by the local regulations for the purposes of this section.Note—“De facto partner” is defined in section 21C of the Interpretation Act 1987.
126 State regulated mortgages—meaning
For the purposes of this Part, a regulated mortgage is a State regulated mortgage, in relation to a solicitor, if:(a) the solicitor’s practice is a State regulated mortgage practice, and(b) the regulated mortgage does not form part of a managed investment scheme or, if it does form part of a managed investment scheme, the managed investment scheme is not required to be operated by a responsible entity under the Corporations Act 2001 of the Commonwealth (as modified by any ASIC exemption or the regulations under the Corporations Act 2001 of the Commonwealth).
127 Conduct of mortgage practices
(1) A solicitor must not, in the solicitor’s capacity as solicitor for a lender or contributor, negotiate the making of or act in respect of a regulated mortgage unless:(a) the mortgage is a State regulated mortgage, or(b) the mortgage is a run-out mortgage, or(c) the mortgage forms part of a managed investment scheme that is operated by a responsible entity.(2) A solicitor must not, in the solicitor’s capacity as solicitor for a lender or contributor, negotiate the making of or act in respect of a regulated mortgage except in accordance with:(a) the Corporations Act 2001 of the Commonwealth, or that Act as modified by any ASIC exemption or the regulations under that Act, and(b) this Act and the local regulations.(3) A solicitor must not, in the solicitor’s capacity as solicitor for a lender or contributor, negotiate the making of or act in respect of a regulated mortgage that forms part of a managed investment scheme unless the solicitor complies with any ASIC exemption that applies to managed investment schemes that:(a) have more than 20 members, andThis subsection applies even if the regulated mortgage forms part of a managed investment scheme that has no more than 20 members.(b) are operated under the supervision of the Law Society in accordance with that exemption.(4) Subsection (3) does not apply if the managed investment scheme is operated by a responsible entity.(5) A solicitor who knows that an associate has contravened a requirement referred to in subsection (1), (2) or (3) must notify the Law Society Council of that fact in writing within 21 days after becoming aware of the contravention.(6) A contravention of this section is capable of being professional misconduct.
128 Nomination of practice as State regulated mortgage practice
(1) A solicitor who, in the solicitor’s capacity as solicitor for a lender or contributor, negotiates the making of or acts in respect of a regulated mortgage, or who proposes to do so, may, by notice in writing given to the Law Society Council, nominate the solicitor’s practice as a State regulated mortgage practice.(2) A nomination may, with the approval of the Law Society Council, be made for a solicitor by another solicitor (for example, by a solicitor on behalf of members of a firm of solicitors).(3) A nomination of a solicitor’s practice as a State regulated mortgage practice takes effect on the date the notice of the nomination is given to the Law Society Council.(4) A nomination ceases to be in force in respect of a solicitor if:(a) the solicitor revokes the nomination by notice in writing given to the Law Society Council, or(b) the solicitor ceases to be an Australian legal practitioner, or(c) the Law Society Council, by notice in writing served on the solicitor, rejects the nomination of the solicitor’s practice.(5) A nomination under this section is to include such information as may be required by the local regulations.
129 Requirement to notify Law Society of State regulated mortgages
(1) A solicitor who, in the solicitor’s capacity as solicitor for a lender or contributor, negotiates the making of or acts in respect of a State regulated mortgage must give the Law Society Council notice in writing of that fact in accordance with the local regulations.Maximum penalty: 50 penalty units.(2) A contravention of this section is capable of being professional misconduct.
130 Solicitor to have fidelity cover in respect of regulated mortgages
(1) A solicitor who, in the solicitor’s capacity as solicitor for a lender or contributor, negotiates the making of or acts in respect of a regulated mortgage must ensure that an approved insurance policy of fidelity insurance is in force in respect of the solicitor for the purpose of compensating persons who suffer pecuniary loss because of any dishonest failure to pay money payable under the mortgage.(2) A policy of fidelity insurance is an approved policy of fidelity insurance if:(a) the Law Society Council is of the opinion that the terms of the policy comply with agreed national standards for fidelity insurance for solicitors, and(b) the policy is not to expire before the expiration of the local practising certificate of the solicitor to whom the policy relates, and(c) the insurer and the terms of the policy have been approved by the Attorney General by order in writing given to the Law Society, and(d) any conditions imposed by the order are complied with.(3) A solicitor who, in the solicitor’s capacity as solicitor for a lender or contributor, negotiates the making of or acts in respect of a regulated mortgage without ensuring that an approved policy of fidelity insurance is in force in respect of the solicitor in accordance with this section is guilty of an offence.Maximum penalty: 50 penalty units.(4) A contravention of this section is capable of being professional misconduct.(5) A contravention of this section does not limit the operation of section 131 (Bar on claims against Fidelity Fund relating to regulated mortgages).(6) This section does not apply in respect of any regulated mortgage that forms part of a managed investment scheme that is operated by a responsible entity.
131 Bar on claims against Fidelity Fund relating to regulated mortgages
A person who is a lender or contributor under a regulated mortgage is not entitled to make a claim against the Fidelity Fund for the purpose of obtaining compensation for a pecuniary loss if the claim relates to a regulated mortgage in respect of which a solicitor is required to have fidelity insurance under section 130 (Solicitor to have fidelity cover in respect of regulated mortgages).
132 Notification of insurance arrangements for regulated mortgage
(1) If a client entrusts money to a solicitor and the money, or part of the money, is proposed to be advanced to a borrower for a regulated mortgage, the solicitor must, within 7 days after the money is entrusted to the solicitor, give the client a notice in writing that:(a) advises the client of the effect of section 131, and(b) includes details of the policy of fidelity insurance referred to in section 130 (1).(2) The solicitor must not advance any of the money to a borrower for a regulated mortgage unless:(a) the client has been given the notice referred to in subsection (1), and(b) after having been given that notice, the client has given the solicitor a specific authority in writing to advance the money for that mortgage.(3) A contravention of this section is capable of being professional misconduct.(4) A contravention of this section does not limit the operation of section 131.(5) This section does not apply in respect of a regulated mortgage that forms part of a managed investment scheme that is operated by a responsible entity.
133 Failure to obtain fidelity insurance for regulated mortgage
(1) The Law Society Council must not grant a practising certificate to an Australian lawyer who is or will be required to comply with section 130 unless it is satisfied that:(a) there is, or will be, in force with respect to the Australian lawyer an approved insurance policy within the meaning of Part 8 of this Act and Part 4.4 of the Legal Profession Uniform Law (NSW), and(b) the policy is, or will be, in force with respect to the Australian lawyer during the currency of the lawyer’s practising certificate.(2) The Law Society Council must suspend the local practising certificate of a solicitor who is required to comply with section 130 if it is not satisfied that:(a) there is in force with respect to the solicitor an approved policy of fidelity insurance within the meaning of section 130, and(b) the policy is in force with respect to the solicitor during the currency of the solicitor’s practising certificate.
134 Part extends to pre-existing mortgages
Schedule 8 contains provisions of a savings and transitional nature in connection with the operation of this Part.
Part 11 Procedures of NCAT as designated tribunal for disciplinary matters
135 Purpose of this Part and definitions
(1) The purpose of this Part is to provide for the procedures of the designated tribunal as contemplated by section 301 of the Legal Profession Uniform Law (NSW). Some procedures are covered by the Civil and Administrative Tribunal Act 2013.(2) In this Part:disciplinary application means an application made to the Tribunal (as designated tribunal) under section 300 of the Legal Profession Uniform Law (NSW) with respect to a respondent lawyer.Tribunal means NCAT.(3) A reference in this Part to the NSW Commissioner (as designated local regulatory authority) in a particular context includes, where relevant in that context, a reference to a delegate of the NSW Commissioner.
136 Proceedings may involve one or more matters
Proceedings initiated in the Tribunal may relate to one or more matters that involve or may involve unsatisfactory professional conduct or professional misconduct.
137 Time for initiating proceedings
(1) A disciplinary application may be made to the Tribunal at any time within 6 months after the NSW Commissioner decides to initiate proceedings in the Tribunal with respect to the alleged conduct.(2) Despite subsection (1), the Tribunal may, on application in writing by the NSW Commissioner, extend the time for making a disciplinary application.(3) In exercising the power to extend the time for making a disciplinary application, the Tribunal is to have regard to all the circumstances of the case, and without limitation the Tribunal is to have regard to the following:(a) the public interest,(b) the extent to which, having regard to the delay, there is or may be prejudice to the lawyer concerned because evidence that would have been available if the application had been made within the 6-month period is no longer available,(c) the reasonableness of the applicant’s explanation for the delay in making the application.(4) The time for making a disciplinary application may be extended under subsection (2) even if that time has expired.(5) An official record or notification of a decision referred to in subsection (1) and stating the date the decision was made is evidence that the decision was made and of the date the decision was made.
138 Hearings
The Tribunal is to conduct a hearing into each allegation particularised in a disciplinary application made to the Tribunal.
139 Joinder
The Tribunal may, subject to its rules and the rules of procedural fairness, order the joinder of more than one disciplinary application against the same or different respondent lawyers.
140 Variation of disciplinary application
(1) The Tribunal may vary a disciplinary application, on the application of the person who made the disciplinary application or on its own motion, so as to omit allegations or to include additional allegations, if satisfied that it is reasonable to do so having regard to all the circumstances.(2) Without limiting subsection (1), when considering whether or not it is reasonable to vary a disciplinary application, the Tribunal is to have regard to whether varying the disciplinary application will affect the fairness of the proceedings.(3) The inclusion of an additional allegation is not precluded on any or all of the following grounds:(a) the additional allegation has not been the subject of a complaint,(b) the additional allegation has not been the subject of an investigation,(c) the alleged conduct concerned occurred more than 3 years ago.
141 Nature of allegations
(1) A disciplinary application in respect of a complaint cannot be challenged on the ground that the allegations contained in the application do not deal with all of the matters raised in the complaint or deal differently with matters raised in the complaint or deal with additional matters.(2) This section applies whether the allegations were included in the disciplinary application as made to the Tribunal or were included by way of variation of the application.
142 Substitution of applicant
(1) If a disciplinary application was made by the NSW Commissioner (but not a delegate of the NSW Commissioner), the Tribunal may, on the application of the NSW Commissioner or the Bar Council or Law Society Council, and if satisfied that it is appropriate to do so, direct that a Council is to be regarded as the applicant in connection with the disciplinary application.(2) If a disciplinary application was made by a delegate of the NSW Commissioner, the Tribunal may, on the application of the NSW Commissioner or the delegate, and if satisfied that it is appropriate to do so, direct that the NSW Commissioner is to be regarded as the applicant in connection with the disciplinary application.(3) This section has effect even if a hearing of the matter has commenced before the Tribunal.
143 Interlocutory and interim orders
The Tribunal may make interlocutory or interim orders as it thinks fit before making its final decision about a complaint against a respondent lawyer.
144 Consent orders
(1) The Tribunal may, with the consent of the respondent lawyer contained in a written instrument, make orders without conducting or completing a hearing in relation to the complaint.(2) Consent may be given before or after the proceedings were initiated in the Tribunal with respect to the complaint.(3) If consent is given before the proceedings were initiated, an investigation of the complaint (whether commenced or not) may be dispensed with, and any investigation of the complaint already being conducted may be suspended or terminated.(4) This section does not apply to consent given by the respondent lawyer unless the lawyer and the NSW Commissioner have agreed on the terms of an instrument of consent.(5) Without limiting what may be included in the instrument of consent, the instrument is to contain an agreed statement of facts (including as to the grounds of complaint) and may contain undertakings on the part of the respondent lawyer.(6) The instrument of consent must be filed with the Tribunal.(7) Nothing in this section affects the procedures regarding the initiation of proceedings in the Tribunal where consent was given before the proceedings are initiated.(8) If consent was given before the proceedings are initiated, the proceedings are nevertheless to be initiated with respect to the complaint in the same way as if the consent had not yet been given.(9) The Tribunal is to be constituted in the same way as for the conduct of a hearing into the complaint.(10) In deciding whether to make orders pursuant to an instrument of consent, the Tribunal may make such inquiries of the parties as it thinks fit and may, despite any such consent, conduct or complete a hearing in relation to the complaint if it considers it to be in the public interest to do so.
145 Compliance with determinations and orders
(1) Persons and bodies having relevant powers or functions under this Act or the Legal Profession Uniform Law (NSW) must:(a) give effect to any order of the Tribunal made under the provisions of this Part or Division 3 of Part 5.4 of the Legal Profession Uniform Law (NSW) that requires official implementation in this jurisdiction, and(b) enforce any order of the Tribunal made under any of those provisions that requires compliance by an Australian legal practitioner (except to the extent that the order relates to the practitioner’s practice of law in another jurisdiction).Note—Section 461 of the Legal Profession Uniform Law (NSW) contains provisions relating to compliance in this jurisdiction with recommendations or orders made under corresponding laws.(2) The applicant that made the disciplinary application concerned must ensure that persons and bodies having relevant powers or functions under a corresponding law of another jurisdiction are notified of the making and contents of:(a) any order of the Tribunal made under the provisions of this Part or Division 3 of Part 5.4 of the Legal Profession Uniform Law (NSW) that requires official implementation in the other jurisdiction, and(b) any order of the Tribunal made under any of those provisions that requires compliance by an Australian legal practitioner (except to the extent that the order relates to the practitioner’s practice of law in another jurisdiction).(3) If the Tribunal makes an order that an Australian legal practitioner pay a fine, a copy of the order may be filed in the registry of a court having jurisdiction to give judgment for a debt of the same amount as the amount of the fine and the order may be enforced as if it were an order of the court.(4) Any fine imposed by the Tribunal must be paid in the manner and within the period specified by the Tribunal and is to be paid to the Public Purpose Fund.
146 Notification of progress and result of proceedings before Tribunal
(1) The applicant in connection with a disciplinary application made to the Tribunal must cause the complainant to be notified in writing of the determination of the Tribunal.(2) This section does not apply in relation to a complaint made by the NSW Commissioner.
147 Early termination of proceedings before Tribunal
(1) Proceedings before the Tribunal with respect to a complaint cannot be terminated, whether by withdrawal of the disciplinary application or otherwise, before the Tribunal makes its final decision about the complaint, without the leave of the Tribunal.(2) The Tribunal may give leave for the purposes of this section if it is satisfied that continuation of the proceedings is not warranted in the public interest.
Part 12 Registers and publicising disciplinary action
148 Definition
In this Part:disciplinary action against an Australian legal practitioner means any of the following actions taken under a law of this or another jurisdiction, whether or not taken under Chapter 5 of the Legal Profession Uniform Law (NSW) or under provisions of a corresponding law that correspond to that Chapter:(a) the suspension or cancellation of the Australian practising certificate of the practitioner (other than a suspension or cancellation at the request or with the concurrence of the holder of the certificate that is not connected with a disciplinary matter),(b) the refusal to grant or renew an Australian practising certificate applied for by the practitioner (other than a refusal on the ground that the practitioner is not eligible to apply for the grant or renewal),(c) the removal of the name of the practitioner from a roll of persons admitted as lawyers in Australia,(d) the making of an order by a court or tribunal, or by another person or body, for or following a finding of unsatisfactory professional conduct or professional misconduct by the practitioner, other than an order cautioning the practitioner,(e) the reprimanding of the practitioner, or the making of a compensation order against the practitioner, by a person or body without a formal finding of unsatisfactory professional conduct or professional misconduct,(f) the appointment of a manager or receiver for a legal practice of which the practitioner is a legal practitioner associate, where the associate is specified or referred to in the notice of appointment served on the law practice.
149 Register of local practising certificates
(1) The appropriate Council must keep a register of the names of Australian lawyers to whom it grants local practising certificates.(2) The register may include the details that may be included in the register under section 435 of the Legal Profession Uniform Law (NSW) and must not include the details that must not be included in the register under that section. Subsection (3) prevails over this subsection in the event of an inconsistency.(3) The local regulations may make provision for or with respect to the following:(a) the information that may or must be included in the register,(b) the notification by local legal practitioners to the appropriate Council of changes of particulars,(c) the notification by the appropriate Council to other authorities of particulars contained in the register,(d) the removal of information from the register relating to former holders of certificates.(4) The register must state the conditions (if any) imposed on a local practising certificate in relation to engaging in legal practice.(5) 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.(6) The register may be kept in a form determined by the appropriate Council.(7) The appropriate 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.(8) The register must be available for inspection, without charge, at the appropriate Council’s office during normal business hours.
150 Register of local registration certificates
(1) The appropriate Council must keep a register of the names of persons to whom it grants local registration certificates.(2) The register may include the details that may be included in the register under section 435 of the Legal Profession Uniform Law (NSW) and must not include the details that must not be included in the register under that section. Subsection (3) prevails over this subsection in the event of an inconsistency.(3) The local regulations may make provision for or with respect to the information that may or must be included in the register.(4) The register must state the conditions (if any) imposed on a foreign lawyer’s registration.(5) The register may be kept in a form determined by the appropriate Council.(6) The register must be available for inspection, without charge, at the appropriate Council’s office during normal business hours.
151 Register of disqualification orders and approvals
(1) The appropriate Council must keep a register of:(a) orders made under section 119 or 120 of the Legal Profession Uniform Law (NSW) on its application, and(b) approvals given by it under section 121 (2) of that Law.(2) The register may include the details that may be included in the register under section 435 of the Legal Profession Uniform Law (NSW). Subsection (3) prevails over this subsection in the event of an inconsistency.(3) The local regulations may make provision for or with respect to the information that may or must be included in the register.(4) The register may be kept in a form determined by the appropriate Council.(5) The register must be available for inspection, without charge, at the appropriate Council’s office during normal business hours, but only if the inspection is made by an Australian legal practitioner.
152 Register of Disciplinary Action
(1) The NSW Commissioner must keep a register (in this Act referred to as the Register of Disciplinary Action) of:(a) disciplinary action taken under a law of this jurisdiction against Australian legal practitioners, and(b) disciplinary action taken under a corresponding law against Australian legal practitioners who are or were enrolled or practising in this jurisdiction when the conduct that is the subject of the disciplinary action occurred, and(c) disciplinary action taken under a corresponding law against Australian legal practitioners who are enrolled or practising in this jurisdiction if the disciplinary action was recorded on a register of disciplinary action kept under the corresponding law when the practitioner became enrolled or commenced to practise in this jurisdiction.(2) The register may include the details that may be included in the register under section 435 of the Legal Profession Uniform Law (NSW) and must not include the details that must not be included in the register under that section. Subsection (3) prevails over this subsection in the event of an inconsistency.(3) The local regulations may make provision for or with respect to the information that may or must be included in the register.(4) The register may be kept in a form determined by the NSW Commissioner.(5) The register is to be made available for public inspection on:(a) the internet site of the NSW Commissioner, or(b) an internet site identified on the internet site of the Commissioner.(6) Information recorded in the register may be provided to members of the public in any other manner approved by the NSW Commissioner.(7) The NSW Commissioner may cause any error in or omission from the register to be corrected.(8) The requirement to keep the register applies only in relation to disciplinary action taken after the commencement of section 577 of the Legal Profession Act 2004, but details relating to earlier disciplinary action may be included in the register.(9) A Council or NCAT must provide to the NSW Commissioner sufficient information to enable the Commissioner to exercise the Commissioner’s functions in respect of the register.
153 Other means of publicising disciplinary action
(1) The NSW Commissioner or a Council may publicise disciplinary action taken against an Australian legal practitioner in any manner the Commissioner or Council thinks fit.(2) Nothing in this section affects the provisions of this Part relating to the Register of Disciplinary Action.
154 Quashing of disciplinary action
(1) If disciplinary action is quashed on appeal or review, any reference to that disciplinary action must be removed from the Register of Disciplinary Action.(2) If disciplinary action is quashed on appeal or review after the action was publicised by the NSW Commissioner or a Council under section 153, the result of the appeal or review must be publicised with equal prominence by the Commissioner or Council.
155 Liability for publicising disciplinary action
(1) No liability is incurred by a protected person in respect of anything done, or omitted to be done, in good faith for the purpose of:(a) publicising disciplinary action taken against an Australian legal practitioner, or(b) exercising the powers or functions of the NSW Commissioner or a Council under sections 151–153, or(c) keeping, publishing or enabling access to the Register of Disciplinary Action.(2) Without limiting subsection (1), no liability (including liability in defamation) is incurred by a person publishing in good faith:(a) information about disciplinary action:(i) recorded in the Register of Disciplinary Action, oror matter purporting to contain information of that kind where the matter is incorrect in any respect, or(ii) otherwise publicised by the NSW Commissioner or a Council under this Part,(b) a fair report or summary of that information.(3) In this section:protected person means:(a) the State, or(b) the NSW Commissioner, or(c) a Council, or(d) a person responsible for keeping the whole or any part of the Register of Disciplinary Action, or(e) an internet service provider or internet content host, or(f) a member of staff of or a person acting at the direction of an authority of the State or any person or body referred to in this definition.
156 Disciplinary action taken where infirmity, injury or illness is involved
(1) Disciplinary action taken against a person is not to be recorded in the Register of Disciplinary Action or otherwise publicised under this Part if the action was taken because of the person’s inability properly to carry out the requirements of legal practice and the inability arises wholly or principally from infirmity, injury or mental or physical illness.(2) Subsection (1) does not apply where the disciplinary action involves:(a) the suspension or cancellation of the person’s Australian practising certificate, or(b) a refusal to grant or renew an Australian practising certificate applied for by the person, orbut in that case the reason for the disciplinary action, and any other information relating to the infirmity, injury or mental or physical illness, is not to be recorded in the Register of Disciplinary Action or otherwise publicised under this Part without the person’s consent.(c) a restriction or prohibition on the person’s right to engage in legal practice,
157 Effect of secrecy provisions and non-disclosure orders
(1) The provisions of this Part apply despite any confidentiality or secrecy provisions of this Act or the Legal Profession Uniform Law (NSW).(2) The provisions of this Part are subject to any order made by:(a) NCAT in relation to disciplinary action taken under the Legal Profession Uniform Law (NSW), or(b) a corresponding authority in relation to disciplinary action taken under provisions of a corresponding law that correspond to that Law, orso far as the order prohibits or restricts the disclosure of information.(c) a court or tribunal of this or another jurisdiction,(3) Despite subsection (2), the name and other identifying particulars of the person against whom the disciplinary action was taken, and the kind of disciplinary action taken, must be recorded in the Register of Disciplinary Action in accordance with the requirements of this Part and may be otherwise publicised under this Part.
Part 13 Miscellaneous
158 Information sharing
The NSW Commissioner and the Councils may share information for the purposes of performing their functions under this Act and the Legal Profession Uniform Law (NSW).
159 Liability of principals
Section 35 of the Legal Profession Uniform Law (NSW) applies in relation to a contravention by a law practice of a provision of this Act imposing an obligation on the law practice in the same way as it applies in relation to a contravention by a law practice of a provision of the Legal Profession Uniform Law (NSW) imposing an obligation on the law practice.
160 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.
161 Defect or irregularity in person’s appointment
A defect or irregularity in the appointment of any person exercising, or purporting to exercise, a function under this Act or the Legal Profession Uniform Law (NSW) does not invalidate an act or omission done or omitted by the person in good faith.
162 Approved forms
(1) An authority having a function under this Act may approve forms for use in connection with that function.(2) The local regulations may make provision for or with respect to the approval of forms for use under or in connection with this Act or the local regulations.
163 Delegation
(1) A person or body having functions under this Act may delegate in writing all or any of those functions to a person or persons if the local regulations authorise the delegation of the functions to the person or persons.(2) Subsection (1) does not apply in respect of the functions of the NSW Commissioner, Bar Council or Law Society Council under this Act.Note—Sections 28, 30 and 32 provide for the delegation of functions of the NSW Commissioner, Bar Council and Law Society Council.
164 Protection from liability
(1) No liability attaches to a relevant person for any act or omission done or omitted in good faith and in the exercise or purported exercise of functions under this Act or the local regulations.(2) In this section:relevant person means:(a) the NSW Admission Board or a member of the Board, or(b) the NSW Commissioner, or(c) the Bar Association or the Bar Council, or their committees, or a member of the Bar Council, or(d) the Law Society or the Law Society Council, or their committees, including a Management Committee to which a function is delegated under section 119, or a member of the Law Society Council, or(e) the Company referred to in Part 8 (Professional indemnity insurance) or its directors, or(f) the Trustees of the Public Purpose Fund, or(g) NCAT or any member of NCAT, or(h) a registrar of NCAT, or(i) a delegate of any of the entities referred to in paragraphs (a)–(h), to the extent delegation is permitted under this Act or the Legal Profession Uniform Law (NSW), or(j) a person who is a member of the staff of, or acting at the direction of, any of the entities referred to in paragraphs (a)–(i).
165 Penalty notices
(1) An authorised officer may serve a penalty notice on a person if it appears to the officer that the person has committed an offence against this Act, the local regulations or the Legal Profession Uniform Law (NSW), being an offence prescribed by the regulations as a penalty notice offence.(2) A penalty notice is a notice to the effect that, if the person served does not wish to have the matter determined by a court, the person can pay, within the time and to the person specified in the notice, the amount of the penalty prescribed by the local regulations for the offence if dealt with under this section.(3) A penalty notice under this section is declared to be a penalty notice for the purposes of the Fines Act 1996.(4) A penalty notice may be served personally or by post.(5) If the amount of penalty prescribed for an alleged offence is paid under this section, no person is liable to any further proceedings for the alleged offence.(6) Payment under this section is not to be regarded as an admission of liability for the purpose of, and does not in any way affect or prejudice, any civil claim, action or proceeding arising out of the same occurrence.(7) The local regulations may:(a) prescribe an offence for the purposes of this section by specifying the offence or by referring to the provision creating the offence, and(b) prescribe the amount of penalty payable for the offence if dealt with under this section, and(c) prescribe different amounts of penalties for different offences or classes of offences.(8) The amount of a penalty prescribed under this section for an offence is not to exceed the maximum amount of penalty that could be imposed for the offence by a court.(9) This section does not limit the operation of any other provision of, or made under, this or any other Act relating to proceedings that may be taken in respect of offences.(10) In this section, means a person who is designated by the local regulations as an authorised officer for the purposes of this section.
166 Local regulations
(1) The Governor may make regulations (local regulations), not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.(2) Without limiting subsection (1), the local regulations may make provision for or with respect to:(a) fixing fees for admission to the Australian legal profession in New South Wales, including:(i) the manner of paying fees (including the person or body to whom they are payable), and(ii) the manner of allocating the proceeds of fees between the NSW Admission Board and the Department of Attorney General and Justice, and(iii) the waiver, postponement or refund of fees, and(b) prescribing delegates or classes of delegates of local regulatory authorities, as contemplated by section 406 of the Legal Profession Uniform Law (NSW), and(c) exempting an industrial or similar organisation that is registered under prescribed legislation of a jurisdiction or of the Commonwealth, and that is engaged in legal practice in this jurisdiction, from section 10 (1) of the Legal Profession Uniform Law (NSW) but only to the extent (if any) specified in the relevant local regulation.(3) A local regulation may create an offence punishable by a penalty not exceeding:(a) 20 penalty units in the case of an individual, and(b) 100 penalty units in any other case.(4) The local regulations may make provision for or with respect to any matters for or with respect to which costs assessment rules may be made under Part 7. References in that Part to the costs assessment rules include references to any provisions of the local regulations so made, but provisions made prevail over the costs assessment rules to the extent of any inconsistency.(5) The local regulations may provide that an application may be made to NCAT for an administrative review under the Administrative Decisions Review Act 1997 of a specified decision or class of decisions made by a specified person or body in the exercise of functions conferred or imposed by or under this Act, the local regulations, the Legal Profession Uniform Law (NSW) or the Uniform Rules as they apply in this jurisdiction.
167 Repeals
The following are repealed:(a) the Legal Profession Act 2004 No 112,(b) the Legal Profession Regulation 2005.
Schedule 1 Maximum costs in personal injury damages matters
1 Interpretation and application
(1) In this Schedule: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 Schedule does not apply to the following costs:(a) costs for legal services provided in respect of a claim under the Motor Accidents Act 1988 or Motor Accidents Compensation Act 1999,(b) 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),(c) 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.
2 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 local regulations may prescribe an amount to replace the amount of $100,000 or $10,000 in subclause (1) and may prescribe a percentage to replace the percentage of 20% in subclause (1). When such a replacement amount or percentage is prescribed, it applies for the purposes of subclause (1) in place of the amount or percentage that it replaces.(3) The local regulations may contain provisions of a savings or transitional nature consequent on the making of regulations under this clause.(4) When the maximum costs for legal services provided to a party are fixed by this Schedule the following provisions apply (subject to clauses 4–6):(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 clause.(5) In this Schedule:(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 Schedule apply despite local regulations under section 59 (1) (b) fixing those costs.
3 Maximum costs increased by additional amount for certain claims heard by District Court
(1) This clause 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 has 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 Schedule 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 Schedule 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 subclause (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 local regulations may prescribe a percentage to replace the percentage of 15% in subclause (4) and may prescribe an amount to replace the amount of $7,500 in subclause (4). When such a replacement percentage or amount is prescribed, it applies for the purposes of subclause (4) in place of the percentage or amount that it replaces.(6) The local regulations may contain provisions of a savings or transitional nature consequent on the making of regulations under this clause.
4 Maximum costs do not affect solicitor-client costs under costs agreements
(1) This Schedule 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 4 of Part 4.3 of the Legal Profession Uniform Law (NSW).(2) The local 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 Schedule.(3) The local regulations may provide that a failure by a law practice to comply with the requirements of the local regulations under this clause disentitles the law practice to the benefit of this clause, and in such a case this Schedule applies in respect of the claim concerned despite the terms of any costs agreement.
5 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 Schedule 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 local 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 clause 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 local regulations under this clause, 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.
6 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 Schedule 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.
7 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 Schedule 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.
8 Meaning of “amount recovered” on a claim
(1) A reference in this Schedule 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.
Schedule 2 Costs in civil claims where no reasonable prospects of success
1 Application of Schedule
(1) Schedule extends to appeals This Schedule 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 Schedule 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.
2 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 Schedule 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 clause constitutes for the purposes of this Schedule the provision of legal services without reasonable prospects of success.
3 Preliminary legal work not affected
This Schedule 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.
4 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, which has been lodged for filing, is not to be filed in a court or court registry unless accompanied by the certification required by this clause. Rules of court may make provision for or with respect to the form of that certification.(4) In this clause: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 local regulations.cross-claim includes counter-claim and cross-action.
5 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 clause.(3) An application for an order under this clause cannot be made after a final determination has been made under Part 7 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 clause.
6 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 Schedule 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 Schedule 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 clause 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 clause 2 (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 clause 2 (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 clause.
Schedule 3 Legal Profession Admission Board
1 Membership of NSW Admission Board
(1) The NSW Admission Board is to consist of 11 members, being:(a) the Chief Justice of New South Wales, and(b) 3 Judges of the Supreme Court for the time being nominated by the Chief Justice of New South Wales, and(c) the Attorney General or a person for the time being nominated by the Attorney General, and(d) 2 persons for the time being nominated by the Council of Australian Law Deans, being members from New South Wales, and(e) 2 barristers for the time being nominated by the Bar Council, and(f) 2 solicitors for the time being nominated by the Law Society Council.(2) A member of the NSW Admission Board who holds office on the nomination of a person or body ceases to hold office if the person or body by whom the member was nominated withdraws the nomination.
2 Reserve members
(1) For each member of the Admission Board, one or more reserve members may be nominated to act in the office of the member during the member’s illness or absence, and the reserve member, while so acting, has and may exercise all the functions of the member and is taken to be a member of the Admission Board.(2) For a member who is the Attorney General or a nominee of the Attorney General, the reserve member or members may be nominated by the Attorney General.(3) For any other member, the reserve member or members are to be nominated by the person or body that nominated the member and must be qualified for nomination in the same way as the member.(4) A person may be removed, by the nominating person or body, from any office for which the person was nominated under this clause.
3 General procedure
The procedure for the calling of meetings of the Admission Board and for conduct of business at those meetings is, subject to this Act, to be as determined by the Board.
4 Quorum
The quorum for a meeting of the Admission Board is 6 members including the member presiding at the meeting.
5 Nomination of presiding and deputy presiding member
The Chief Justice of New South Wales may from time to time nominate one of the judicial members of the Admission Board to be the presiding member of the Board and another of the judicial members of the Board to be the deputy presiding member of the Board.
6 Presiding member
(1) The Chief Justice of New South Wales is to preside at a meeting of the Admission Board if electing to be present and electing to preside.(2) Otherwise:(a) the presiding member, or(b) in the absence of the presiding member—the deputy presiding member, oris to preside at the meeting.(c) in the absence of both—a member elected by and from the members present and voting,(3) The member presiding at a meeting of the Admission Board has a deliberative vote and, in the event of an equality of votes, has a second or casting vote.
7 Voting
A decision supported by a majority of the votes cast at a meeting of the Admission Board at which a quorum is present is the decision of the Board.
8 Minutes
The Admission Board is to cause full and accurate minutes to be kept of the proceedings of each meeting of the Board.
9 Seal
The local regulations may make provision for or with respect to the custody and use of the seal of the Admission Board.
Schedule 4 Legal Services Commissioner
1 Term of office
(1) The NSW Commissioner holds office for such term, not exceeding 5 years, as may be specified in the instrument of appointment, but is eligible (if otherwise qualified) for re-appointment.(2) A person is not eligible to be appointed for more than 2 terms of office as NSW Commissioner (whether or not consecutive terms).
2 Full-time office
The office of NSW Commissioner is a full-time office and the holder of the office is required to hold it on that basis, except to the extent permitted by the Minister.
3 Employment and remuneration
(1) The employment of the NSW Commissioner is (subject to this Schedule) to be governed by a contract of employment between the NSW Commissioner and the Minister.(2) The following provisions of or made under the Government Sector Employment Act 2013 relating to the employment of Public Service senior executives apply to the NSW Commissioner (but in the application of those provisions a reference to the employer of any such executive is to be read as a reference to the Minister):(a) provisions relating to the band in which an executive is to be employed,(b) provisions relating to the contract of employment of an executive,(c) provisions relating to the remuneration, employment benefits and allowances of an executive.
4 Vacancy in office
(1) The office of NSW Commissioner becomes vacant if the holder:(a) dies, or(b) completes a term of office and is not re-appointed, or(c) resigns the office by instrument in writing addressed to the Minister, or(d) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or(e) becomes a mentally incapacitated person, or(f) is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable, or(g) has held the office for more than 10 years in total, as referred to in clause 1, or(h) is removed from office under clause 5.(2) If the office of NSW Commissioner becomes vacant, a person is, subject to this Act, to be appointed to fill the vacancy.
5 Removal from office
The Governor may remove the NSW Commissioner from office, but only for incompetence, incapacity or misbehaviour.
6 NSW Commissioner not Public Service employee
The office of NSW Commissioner is a statutory office and the provisions of the Government Sector Employment Act 2013 relating to the employment of Public Service employees do not apply to that office (except as provided by clause 3).
Schedule 5 Trustees of the Public Purpose Fund
1 Definitions
In this Schedule:appointed Trustee means a person appointed under section 49 (2) (a).Trustee means a Trustee of the Public Purpose Fund.
2 Terms of office of Trustees
Subject to this Schedule, an appointed Trustee holds office for such period (not exceeding 3 years) as is specified in the Trustee’s instrument of appointment, but is eligible (if otherwise qualified) for re-appointment.
3 Remuneration
An appointed Trustee is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Attorney General may from time to time determine in respect of the Trustee.
4 Deputies
(1) The Attorney General may, from time to time, appoint a person to be the deputy of a Trustee, and the Attorney General may revoke any such appointment.(2) In the absence of a Trustee, the Trustee’s deputy may, if available, act in the place of the Trustee.(3) While acting in the place of a Trustee, a person:(a) has all the functions of the Trustee and is taken to be a Trustee, and(b) is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Attorney General may from time to time determine in respect of the person.(4) For the purposes of this clause, a vacancy in the office of a Trustee is taken to be an absence of the Trustee.
5 Vacancy in office of appointed Trustee
(1) The office of an appointed Trustee becomes vacant if the Trustee:(a) dies, or(b) completes a term of office and is not re-appointed, or(c) resigns the office by instrument in writing addressed to the Attorney General, or(d) is removed from office by the Attorney General under this clause, or(e) is absent from 4 consecutive meetings of the Trustees of which reasonable notice has been given to the Trustee personally or by post, except on leave granted by the Attorney General or unless the Trustee is excused by the Attorney General for having been absent from those meetings, or(f) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or(g) becomes a mentally incapacitated person, or(h) is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable, or(i) in the case of a Trustee referred to in section 49 (2) (a) (i), ceases to be a member of the Law Society Council.(2) The Attorney General may at any time remove an appointed Trustee from office.
6 Filling of vacancy in office of Trustee
If the office of an appointed Trustee becomes vacant, a person is, subject to this Act, to be appointed to fill the vacancy.
7 Chairperson
(1) The chairperson of the Trustees is the person elected to the office of chairperson from time to time by the Trustees from among their number.(2) The office of chairperson:(a) commences on the day the person elected to the office is declared to be so elected, and(b) becomes vacant when the person’s successor is declared to be elected to the office or when the person so elected ceases to hold office as a Trustee (whichever happens first).
8 Disclosure of pecuniary interests
(1) If:(a) a Trustee has a direct or indirect pecuniary interest in a matter being considered or about to be considered at a meeting of the Trustees, andthe Trustee must, as soon as possible after the relevant facts have come to the Trustee’s knowledge, disclose the nature of the interest at a meeting of the Trustees.(b) the interest appears to raise a conflict with the proper performance of the Trustee’s duties in relation to the consideration of the matter,(2) A Trustee is not to be regarded as having a direct or indirect pecuniary interest in a matter merely because he or she is a local legal practitioner or a member of the Law Society, the Bar Association or a Council.(3) A disclosure by a Trustee at a meeting of the Trustees that the Trustee:(a) is a member, or is in the employment, of a specified company or other body, or(b) is a partner, or is in the employment, of a specified person, oris a sufficient disclosure of the nature of the interest in any matter relating to that company or other body or to that person which may arise after the date of the disclosure and which is required to be disclosed under subclause (1).(c) has some other specified interest relating to a specified company or other body or to a specified person,(4) Particulars of any disclosure made under this clause must be recorded by the Trustees in a book kept for the purpose and that book must be open at all reasonable hours to inspection by any person on payment of the fee determined by the Trustees.(5) After a Trustee has disclosed the nature of an interest in any matter, the Trustee must not, unless the Attorney General or the Trustees otherwise determine, take part in any decision of the Trustees with respect to the matter.(6) For the purposes of the making of a determination by the Trustees under subclause (5), a Trustee who has a direct or indirect pecuniary interest in a matter to which the disclosure relates must not take part in the making by the Trustees of the determination.(7) If a Trustee is prevented from taking part in a decision by virtue of this clause and the determination relates to a matter that requires a unanimous decision of the Trustees under section 55 (5), the decision is unanimous for the purposes of that section if it is supported by all of the Trustees who are entitled to take part in the determination.(8) A contravention of this clause does not invalidate any decision of the Trustees.
9 Effect of certain other Acts
(1) The provisions of the Government Sector Employment Act 2013 relating to the employment of Public Service employees do not apply to a Trustee.(2) If by or under any Act provision is made:(a) requiring a person who is the holder of a specified office to devote the whole of his or her time to the duties of that office, orthe provision does not operate to disqualify the person from holding that office and also the office of a Trustee or from accepting and retaining any remuneration payable to the person under this Act as a Trustee.(b) prohibiting the person from engaging in employment outside the duties of that office,
10 General procedure
The procedure for the calling of meetings of the Trustees and for the conduct of business at those meetings is, subject to this Act and the regulations, to be as determined by the Trustees.
11 Quorum
The quorum for a meeting of the Trustees is 3 Trustees.
12 Presiding member
(1) The chairperson or, in the absence of the chairperson, a Trustee elected by the Trustees present at the meeting, is to preside at a meeting of the Trustees.(2) The person presiding at a meeting of the Trustees has a deliberative vote and, in the event of an equality of votes, has a second or casting vote.(3) Subclause (2) does not affect the requirement under section 55 (5) that certain decisions of the Trustees be unanimous.
13 Voting
(1) A decision supported by a majority of the votes cast at a meeting of the Trustees at which a quorum is present is the decision of the Trustees.(2) This clause does not apply in respect of a decision that is required to be unanimous by section 55 (5).
14 Transaction of business outside meetings or by telephone
(1) The Trustees may, if they think fit, transact any of their business by the circulation of papers among all the Trustees for the time being and a resolution in writing has effect as a decision of the Trustees if it is approved in writing by a majority of those Trustees and, for the purposes of section 55 (5), has effect as a unanimous decision of the Trustees if it is approved in writing by all the Trustees for the time being.(2) The Trustees may, if they think fit, transact any of their business at a meeting at which the Trustees (or some Trustees) participate by telephone, closed-circuit television or other means, but only if any Trustee who speaks on a matter before the meeting can be heard by the other Trustees.(3) For the purposes of:(a) the approval of a resolution under subclause (1), orthe chairperson and each Trustee have the same voting rights as they have at an ordinary meeting of the Trustees.(b) a meeting held in accordance with subclause (2),(4) A resolution approved under subclause (1) is, subject to the regulations, to be recorded in the minutes of the meetings of the Trustees.(5) Papers may be circulated among the trustees for the purposes of subclause (1) by facsimile or other transmission of the information in the papers concerned.
15 Minutes
The Trustees are to cause full and accurate minutes to be kept of the proceedings of each meeting of the Trustees.
Schedule 6 Costs assessors
1 Eligibility for appointment
A person is not eligible to be appointed as a costs assessor unless the person is an Australian legal practitioner of at least 5 years’ standing.
2 Terms of office
(1) Subject to this Schedule, a costs assessor holds office for such period (not exceeding 3 years) as may be specified in the instrument of appointment of the costs assessor, but is eligible (if otherwise qualified) for re-appointment.(2) A costs assessor may, with the consent of the Chief Justice of New South Wales, continue in office after the expiry of his or her term of office for the purpose of making a determination in respect of, or otherwise completing, any application for costs assessment that was referred to the costs assessor before the expiry of his or her term of office.
3 Remuneration
A costs assessor is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Attorney General may from time to time determine in respect of the costs assessor.
4 Vacancy in office of costs assessor
(1) A costs assessor vacates office if the costs assessor:(a) dies, or(b) completes a term of office and is not re-appointed, or(c) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or(d) becomes a mentally incapacitated person, or(e) is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable, or(f) resigns the office by instrument in writing addressed to the Attorney General, or(g) ceases to be eligible to be a costs assessor, or(h) is removed from office by the Chief Justice of New South Wales, under subclause (2).(2) The Chief Justice of New South Wales may remove a costs assessor from office.
5 Effect of certain other Acts
(1) The provisions of the Government Sector Employment Act 2013 relating to the employment of Public Service employees do not apply to a costs assessor.(2) If by or under any other Act provision is made:(a) requiring a person who is the holder of a specified office to devote the whole of his or her time to the duties of that office, orthat provision does not operate to disqualify the person from holding that office and also the office of a costs assessor or from accepting and retaining any remuneration payable to the person under this Act as a costs assessor.(b) prohibiting the person from engaging in employment outside the duties of that office,
Schedule 7 Professional indemnity insurance—provisions relating to HIH insurance
1 Interpretation and construction
(1) In this Schedule:HIH group member means:(a) HIH Casualty and General Insurance Limited, FAI General Insurance Company Limited or CIC Insurance Limited, or(b) any corporation that is, with respect to one of the corporations referred to in paragraph (a), a related body corporate within the meaning of section 50 of the Corporations Act 2001 of the Commonwealth.(2) Expressions used in this Schedule and defined in Part 8 (Professional indemnity insurance) have the same meanings as in that Part.(3) Part 8 has effect as if it included, and is taken to include, the provisions of this Schedule.
2 Payments relating to HIH group insurance policies
(1) Payments must 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 an HIH group member, to the extent of the indemnity provided by the approved insurance policy.Note—HIH Casualty and General Insurance Limited (HIH) was the insurer under the approved insurance policy for the period from 1 July 1998 to 1 July 2001. HIH, together with other HIH group members, were also insurers under approved policies that pre-date that period. A provisional liquidator was appointed in respect of the HIH and other HIH group members on 15 March 2001.(2) On the making of such a payment from the Indemnity Fund, the Company is subrogated to the rights and remedies of the insured person under the approved insurance policy, in connection with the subject matter of the payment, subject to the terms of any agreement entered into under this clause.(3) Subclause (2) extends, but is not limited to, a right or remedy against any of the following:(a) an HIH group member,(b) any insurer or re-insurer of an HIH group member,(c) any person who, under any Act or other law, is liable for a failure of an HIH group member to satisfy its obligations under or in connection with an approved insurance policy.(4) The Company may exercise its rights and remedies under this clause in its own name or in the name of an insured person.(5) If the Company exercises its rights and remedies under this clause in the name of an insured person, the Company is to indemnify the insured person against any liability incurred by the insured person as a result of the exercise of those rights and remedies.(6) The Law Society and the Company may enter into an agreement with an HIH group member (including a provisional liquidator or liquidator of an HIH group member), or with any insured person, in connection with the payment of amounts from the Indemnity Fund under this clause.(7) In particular, any such agreement may provide for the following:(a) the assignment or subrogation to the Company of the rights and remedies of an HIH group member or the insured person (or both) under or in connection with the approved insurance policy,(b) the recovery by the Company from an HIH group member of any amount paid from the Indemnity Fund under this clause.(8) Any payment made from the Indemnity Fund under this clause, and any agreement entered into with an insured person under this clause, does not prevent the recovery by the Company from an HIH group member 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.(9) Any amount recovered by the Company as a result of the exercise of its functions under this clause (including its functions under a subrogation or agreement referred to in this clause) 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 clause, or(c) under the local regulations.(10) 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 clause, including its functions under a subrogation or agreement referred to in this clause.
3 Special contributions and levies: HIH liabilities
(1) The Company may, for the purposes of ensuring that the Indemnity Fund, or any part of the Indemnity Fund, is sufficient to meet the purposes for which it may be used under Division 3 of Part 8:(a) require any insurable solicitor who is or was insured under an approved insurance policy issued or renewed by an HIH group member to pay a special annual contribution to the Indemnity Fund, or(b) require any solicitor or former solicitor who is or was insured under an approved insurance policy issued or renewed by an HIH group member to pay a special levy to the Indemnity Fund.(2) Any such special annual contribution or levy is to be of an amount determined by the Company and approved by the Law Society Council.(3) The Company may make a different determination under subclause (2) in relation to particular classes of solicitors or former solicitors.(4) The special annual contribution or levy is to be paid within the time and in the manner specified by the Company by notice in writing to the solicitor or former solicitor concerned.(5) A special annual contribution or levy that is payable under this clause:(a) is to be paid to the Company on account of the Indemnity Fund, and(b) is recoverable by the Company as a debt in a court of competent jurisdiction, and(c) if payable by an insurable solicitor, is payable in addition to any contribution or levy that is payable under section 106 or 107.
Schedule 8 Mortgage practices and managed investment schemes—provisions relating to old mortgages
Part 1 Preliminary
1 Interpretation
Expressions used in this Schedule have the same meanings as in Part 10 of this Act.
2 Mortgage practices and managed investment schemes
(1) Without limiting Part 2 of this Schedule, Part 10 of this Act extends to mortgages that were entered into before the commencement of that Part.(2) Anything done or omitted to be done under Part 9 of the Legal Profession Act 1987 before the commencement of Part 10 of this Act continues to have the same effect as if done or omitted to be done under Part 10 of this Act.(3) Part 10 of this Act has effect and is to be construed as if it included the provisions of this Schedule.
Part 2 Special provisions regarding mortgages entered into before 7 September 2001
Note—
This Part substantially re-enacts the provisions of Division 4 of Part 9 of the Legal Profession Act 1987 and Schedule 8 to the Legal Profession Act 2004.
3 Part 10 of this Act extends to mortgages entered into before 7 September 2001
Except as provided by this Part, Part 10 of this Act extends to mortgages that were entered into before 7 September 2001 (the date of commencement of section 117 of the Legal Profession Act 1987, as inserted by the Legal Profession Amendment (Mortgage Practices) Act 2000).
4 Requirement to obtain fidelity insurance in respect of pre-existing mortgages
(1) Section 130 (Solicitor to have fidelity cover in respect of regulated mortgages) does not apply in respect of a regulated mortgage that was entered into before the relevant commencement date.(2) Despite subclause (1), section 130 applies in respect of a solicitor if money entrusted to the solicitor by a client (whether before, on or after the relevant commencement date) is advanced or proposed to be advanced on or after the relevant commencement date to a borrower for a regulated mortgage entered into before the relevant commencement date. In such a case:(a) the solicitor must ensure that a policy of fidelity insurance is in force in respect of the advance in accordance with section 130, and comply with section 132 (Notification of insurance arrangements for regulated mortgage), and(b) section 131 (Bar on claims against Fidelity Fund relating to regulated mortgages) applies to any claim against the Fidelity Fund in so far as it relates to such an advance.(3) For the purpose of applying section 132 (1) in such a case, the date that money is entrusted to the solicitor by a client is taken to be the relevant commencement date, or the date on which the money is entrusted to the solicitor, whichever is the later.(4) This clause is subject to clause 6 (Substitution of lender or contributor under run-out mortgage) (which allows solicitors to substitute lenders under a run-out mortgage without obtaining fidelity insurance).(5) In this clause:the relevant commencement date means the date of commencement of section 120 of the Legal Profession Act 1987, as inserted by the Legal Profession Amendment (Mortgage Practices) Act 2000 (7 September 2001).
5 No further action to be taken in respect of run-out mortgages
(1) A solicitor must not, in the solicitor’s capacity as solicitor for a lender or contributor:(a) advance any money entrusted to the solicitor to a borrower for a run-out mortgage, or(b) do any work for the purpose of extending the term of a run-out mortgage, or(c) accept any money from a client for the purpose of advancing that money to a borrower for a run-out mortgage, or(d) do anything else with respect to a run-out mortgage in contravention of the regulations or the solicitors rules relating to run-out mortgages.(2) A contravention of this clause is capable of being professional misconduct.
6 Substitution of lender or contributor under run-out mortgage
(1) A solicitor may, despite clause 5 (No further action to be taken in respect of run-out mortgages), accept money from a client, and do any other work that is necessary, solely for the purpose of substituting a lender or contributor under a run-out mortgage.(2) Section 130 does not apply in respect of such action. Accordingly, the solicitor is not required to obtain fidelity insurance for the purpose of compensating the substitute lender or contributor for any pecuniary loss.(3) If a client entrusts or proposes to entrust money to a solicitor for the purpose of substituting a lender or contributor under a run-out mortgage, the solicitor must give the client a notice in writing that advises the client:(a) of the effect of clause 7 (No claims against Fidelity Fund by substitute lenders), and(b) that the solicitor is not required to have fidelity insurance in respect of the run-out mortgage.(4) The solicitor must not advance the money to a borrower for a run-out mortgage unless the solicitor has given the client the notice referred to in subclause (3).(5) A contravention of this clause is capable of being professional misconduct.
7 No claims against Fidelity Fund by substitute lenders
A person who becomes a lender or contributor under a run-out mortgage on or after 7 September 2001 (the commencement of section 117 of the Legal Profession Act 1987, as inserted by the Legal Profession Amendment (Mortgage Practices) Act 2000), is not entitled to make a claim against the Fidelity Fund for the purpose of obtaining compensation for a pecuniary loss if the claim relates to that mortgage.
8 Continuation of any existing entitlements against Fidelity Fund
The provisions of Part 9 of the Legal Profession Act 1987 continue to apply in respect of a claim against the Fidelity Fund in so far as the claim relates to:(a) a pecuniary loss resulting from an act or omission that occurred before the repeal of that Part, or(b) money entrusted to a solicitor before the repeal of that Part.
Schedule 9 Savings, transitional and other provisions
Part 1 Preliminary
1 Savings and transitional regulations
(1) The local regulations may contain provisions of a savings or transitional nature consequent on:(a) the enactment of this Act or any Act that amends this Act, or(b) the enactment of any Act of Victoria that amends the Legal Profession Uniform Law set out in Schedule 1 to the Legal Profession Uniform Law Application Act 2014 of Victoria.(2) Any such provision may, if the local regulations so provide, take effect from the date of assent to the Act concerned or a later date.(3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication on the NSW legislation website, the provision does not operate so as:(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.(4) Any such provision has effect despite anything to the contrary in this Schedule.(5) The local regulations may make separate savings and transitional provisions or amend this Schedule to consolidate the savings and transitional provisions.
Part 2 Provisions consequent on enactment of this Act
2 Definition
In this Part:repealed Act means the Legal Profession Act 2004.
3 General savings and transitional provisions
(1) This clause has effect subject to this Act and the Legal Profession Uniform Law (NSW).(2) Each person, body, thing and circumstance appointed or created under the repealed Act or existing or continuing under that Act immediately before the commencement of relevant provisions of the Legal Profession Uniform Law (NSW) continues to have the same status, operation and effect as it would have had if this Act had not been enacted.(3) Any act, matter or thing subsisting immediately before the commencement of relevant provisions of the Legal Profession Uniform Law (NSW) that:(a) was done or omitted under the repealed Act, andis taken to have been done or omitted under that Law.(b) could have been done or omitted under that Law (with any necessary modifications) if that Law had been in force when it was done or omitted,(4) Any act, matter or thing subsisting immediately before the commencement of relevant provisions of this Act that:(a) was done or omitted under the repealed Act, andis taken to have been done or omitted under this Act.(b) could have been done or omitted under this Act (with any necessary modifications) if this Act had been in force when it was done or omitted,(5) Without limitation, subclause (2) extends to bodies in existence or continuing under the repealed Act, except the costs assessors’ rules committee under section 394 of that Act.
4 References to repealed Act
A reference to the repealed Act in any Act (other than this Act or the Legal Profession Uniform Law (NSW)) or in any subordinate instrument, agreement, deed or other document, so far as the reference relates to any period on or after the date of the repeal and if not inconsistent with the subject-matter, is to be construed as:(a) a reference to the Legal Profession Uniform Law (NSW), if the reference relates to a matter that is dealt with by that Law, or(b) a reference to this Act, if the reference relates to a matter that is dealt with by this Act but not by the Legal Profession Uniform Law (NSW).
5 Term of office of NSW Commissioner
For the purposes of clause 1 of Schedule 4, any term for which a person was appointed as Legal Services Commissioner under the repealed Act is taken to be a term of office as NSW Commissioner.
6 Approved insurance policies for professional indemnity insurance
Any order of the Attorney General under section 403 or 406 of the repealed Act that is in force immediately before the commencement of section 95 of this Act is, with any necessary modifications, taken to be an order of the Attorney General under section 95 (2) of this Act.
Schedule 10 Amendments
Section 21 Meanings of commonly used words and expressions
Omit “Legal Profession Act 2004” from section 21 (1) wherever occurring.Insert instead “Legal Profession Uniform Law (NSW)”.
[1] Section 3 Definitions
Omit the definition of Admission Board. Insert instead:Admission Board means the NSW Legal Profession Admission Board constituted under Division 1 of Part 3 of the Legal Profession Uniform Law Application Act 2014.
[2] Section 3, definitions of “barrister”, “legal practitioner” and “solicitor”
Omit “Legal Profession Act 2004” wherever occurring.Insert instead “Legal Profession Uniform Law (NSW)”.
[3] Section 7 Roll of public notaries
Omit “Legal Profession Act 2004” from section 7 (5) (b).Insert instead “Legal Profession Uniform Law (NSW)”.
[4] Section 14
Omit the section. Insert instead:14 Application of Legal Profession Uniform Law (NSW) regarding dispute resolution and professional discipline(1) Chapters 5 and 7 of the Legal Profession Uniform Law (NSW) apply to public notaries in the same way as they apply to Australian lawyers, subject to any modifications prescribed by the regulations.(2) Without limitation, the power of NCAT to make orders under section 302 of the Legal Profession Uniform Law (NSW) includes the power to make an order that the name of a person be removed from the roll.
[5] Schedule 1 Savings, transitional and other provisions
Insert at the end of clause 2 (1):any other Act that amends this Act
Note Legal Profession Uniform Law
Editorial note—
For the Legal Profession Uniform Law as published in this Act on its enactment, see http://www.legislation.nsw.gov.au/sessionalview/sessional/act/2014-16.pdf. For the updated Legal Profession Uniform Law as it applies in New South Wales, see http://www.legislation.nsw.gov.au/viewtop/inforce/act+16a+2014+cd+0+N/.