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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Professional Standards Amendment
(Defence Costs) Bill 2006
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Professional Standards Act 1994 No 81 2
4 Repeal of Act 2
Schedule 1 Amendments 3
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2006
New South Wales
Professional Standards Amendment
(Defence Costs) Bill 2006
Act No , 2006
An Act to amend the Professional Standards Act 1994 with respect to schemes that
limit the occupational liability of members of occupational associations.
I have examined this Bill, and find it to correspond in all respects with the Bill
as finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Professional Standards Amendment (Defence Costs) Bill 2006
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Professional Standards Amendment (Defence Costs)
Act 2006.
2 Commencement
This Act commences on assent.
3 Amendment of Professional Standards Act 1994 No 81
The Professional Standards Act 1994 is amended as set out in
Schedule 1.
4 Repeal of Act
(1) This Act is repealed on the day following the day on which this Act
commences.
(2) The repeal of this Act does not, because of the operation of section 30
of the Interpretation Act 1987, affect any amendment made by this Act.
Page 2
Professional Standards Amendment (Defence Costs) Bill 2006
Amendments Schedule 1
Schedule 1 Amendments
(Section 3)
[1] Section 4 Definitions
Insert in alphabetical order in section 4 (1):
costs includes fees, charges, disbursements and expenses.
[2] Section 4 (1), definition of "damages"
Omit the definition. Insert instead:
damages means:
(a) damages awarded in respect of a claim or counter-claim or
claim by way of set-off, and
(b) costs in or in relation to the proceedings ordered to be paid
in connection with such an award (other than costs
incurred in enforcing a judgment or incurred on an appeal
made by a defendant), and
(c) any interest payable on the amount of those damages or
costs.
[3] Section 4 (1A)
Insert after section 4 (1):
(1A) A reference in this Act to the amount payable under an insurance
policy in respect of an occupational liability includes a reference
to:
(a) defence costs payable in respect of a claim, or notification
that may lead to a claim (other than reimbursement of the
defendant for time spent in relation to the claim), but only
if those costs are payable out of the one sum insured under
the policy in respect of the occupational liability, and
(b) the amount payable under or in relation to the policy by
way of excess.
Page 3
Professional Standards Amendment (Defence Costs) Bill 2006
Schedule 1 Amendments
[4] Section 21
Omit the section. Insert instead:
21 Limitation of liability by insurance arrangements
A scheme may provide that if a person to whom the scheme
applies and against whom a proceeding relating to occupational
liability is brought is able to satisfy the court that:
(a) the person has the benefit of an insurance policy insuring
the person against the occupational liability to which the
cause of action relates, and
(b) the amount payable under the policy in respect of that
occupational liability is not less than the amount of the
monetary ceiling specified in the scheme in relation to the
class of person and the kind of work to which the cause of
action relates,
the person is not liable in damages in relation to that cause of
action above the amount of that monetary ceiling.
[5] Section 22 Limitation of liability by reference to amount of business
assets
Omit "at the time at which the act or omission giving rise to the cause of action
occurred" from section 22 (a).
[6] Section 22 (b) (ii)
Omit the subparagraph. Insert instead:
(ii) the net current market value of the business assets
and the amount payable under the policy in respect
of that occupational liability, if combined, would
total an amount that is not less than the amount of
the monetary ceiling specified in the scheme in
relation to the class of person and the kind of work
to which the cause of action relates,
Page 4
Professional Standards Amendment (Defence Costs) Bill 2006
Amendments Schedule 1
[7] Section 23 Limitation of liability by multiple of charges
Omit section 23 (1) (a) (ii). Insert instead:
(ii) under which the amount payable in respect of that
occupational liability is not less than an amount (the
limitation amount), being a reasonable charge for
the services provided by the person or which the
person failed to provide and to which the cause of
action relates, multiplied by the multiple specified
in the scheme in relation to the class of person and
the kind of work to which the cause of action relates,
or
[8] Section 23 (1) (c) (ii)
Omit the subparagraph. Insert instead:
(ii) the net current market value of the assets and the
amount payable under the policy in respect of that
occupational liability, if combined, would total an
amount that is not less than the limitation amount,
[9] Section 26A
Insert after section 26:
26A Liability in damages not reduced to below relevant limit
The liability in damages of a person to whom a scheme applies is
not reduced below the relevant limitation imposed by a scheme
in force under this Act because the amount available to be paid to
the claimant under the insurance policy required for the purposes
of this Act in respect of that liability is less than the relevant
limitation.
Note. Section 4 (1A) permits a defence costs inclusive policy for the
purposes of this Act, which may reduce the amount available to be paid
to a client in respect of occupational liability covered by the policy.
Section 26A makes it clear that this does not reduce the cap on the
liability of the scheme participant to the client, and accordingly the
scheme participant will continue to be liable to the client for the amount
of any difference between the amount payable to the client under the
policy and the amount of the cap.
[10] Section 28 Limit of occupational liability by schemes
Omit "at the time of the relevant act or omission" from section 28 (2).
Insert instead "at the time at which the act or omission giving rise to the cause
of action concerned occurred".
Page 5
Professional Standards Amendment (Defence Costs) Bill 2006
Schedule 1 Amendments
[11] Schedule 4 Savings, transitional and other provisions
Insert at the end of clause 1 (1):
Professional Standards Amendment (Defence Costs) Act 2006
[12] Schedule 4, Part 5
Insert after Part 4:
Part 5 Professional Standards Amendment
(Defence Costs) Act 2006
16 Definition
In this Part, amending Act means the Professional Standards
Amendment (Defence Costs) Act 2006.
17 Validation of schemes etc
(1) A scheme approved under this Act before the commencement of
the amending Act is taken to be, and always to have been, a valid
scheme if it would have been valid had the amendments made by
the amending Act been in force when the scheme was approved.
(2) Anything done or omitted to be done in respect of such a scheme
is taken to be, and always to have been, validly done or omitted.
In particular, an insurance policy required by this Act before a
limitation on liability in damages of a person to whom such a
scheme applies is reduced is taken to comply, and always to have
complied, with this Act if it would have complied had the
amendments made by the amending Act been in force when the
policy was issued.
(3) This clause extends to proceedings pending in a court on the
commencement of this clause.
Page 6
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