New South Wales Consolidated Acts

LEGAL PROFESSION ACT 2004 - SECT 4

4 Definitions

(1) In this Act:
"accountant" means an accountant who is a registered company auditor within the meaning of the Corporations Act 2001 of the Commonwealth.
"ADI" means an authorised deposit-taking institution within the meaning of the Banking Act 1959 of the Commonwealth.
"Admission Board" means the Legal Profession Admission Board constituted under Part 7.1.
"admission rules" means rules relating to the admission of local lawyers and associated matters made under Part 2.3 (Admission of local lawyers).
"admission to the legal profession" means admission by a Supreme Court as:

(a) a lawyer, or

(b) a legal practitioner, or

(c) a barrister, or

(d) a solicitor, or

(e) a barrister and solicitor, or

(f) a solicitor and barrister,

under this Act or a corresponding law, but does not include the grant of a practising certificate under this Act or a corresponding law; and "admitted to the legal profession" has a corresponding meaning.
"affairs" of a law practice includes the following:

(a) all accounts and records required under this Act or the regulations to be maintained by the practice or an associate or former associate of the practice,

(b) other records of the practice or an associate or former associate of the practice,

(c) any transaction:

(i) to which the practice or an associate or former associate of the practice was or is a party, or

(ii) in which the practice or an associate or former associate of the practice has acted for a party.

"amend" includes:

(a) in relation to a practising certificate:

(i) impose a condition on the certificate, and

(ii) amend or revoke a condition already imposed on the certificate, and

(b) in relation to registration as a foreign lawyer:

(i) amend the lawyer’s registration certificate, and

(ii) impose a condition on the registration, and

(iii) amend or revoke a condition already imposed on the registration.

"appropriate Council" means:

(a) in relation to matters relating to barristers or former barristers (including an application for a practising certificate to practise as a barrister)-the Bar Council, or

(b) in relation to matters relating to solicitors or former solicitors (including an application for a practising certificate to practise as a solicitor)-the Law Society Council.

"approved form" -see section 734 (Approved forms).
"associate" -see section 7 (Terms relating to associates and principals of law practices).
"Australian lawyer" -see section 5 (Terms relating to lawyers).
"Australian legal practitioner" -see section 6 (Terms relating to legal practitioners).
"Australian practising certificate" means a local practising certificate or an interstate practising certificate.
"Australian-registered foreign lawyer" means a locally registered foreign lawyer or an interstate-registered foreign lawyer.
"Australian roll" means the local roll or an interstate roll.
"Australian trust account" means a local trust account or an interstate trust account.
"Bar Association" means the New South Wales Bar Association.
"Bar Council" means the Council of the Bar Association.
"barrister" means:

(a) a local legal practitioner who holds a current local practising certificate to practise as a barrister, or

(b) an interstate legal practitioner who holds a current interstate practising certificate that entitles the practitioner to engage in legal practice only as or in the manner of a barrister.

"barristers rules" means:

(a) the legal profession rules made by the Bar Council, and

(b) the joint rules so far as they apply to barristers.

"client" includes a person to whom or for whom legal services are provided.
"Commissioner" means the Legal Services Commissioner appointed under Part 7.3.
"community legal centre" -see definition of "complying community legal centre".
"compliance certificate" -see section 36 (Compliance certificates).
"complying community legal centre" -see section 240 (Community legal centres).
"conditions" means conditions, limitations or restrictions.
"contravene" includes fail to comply with.
"conviction" -see section 11 (References to convictions for offences).
"corresponding authority" means:

(a) a person or body having powers or functions under a corresponding law, or

(b) when used in the context of a person or body having powers or functions under this Act (the "local authority"):

(i) a person or body having corresponding powers or functions under a corresponding law, and

(ii) without limiting subparagraph (i), if the powers or functions of the local authority relate to local lawyers or local legal practitioners generally or are limited to any particular class of local lawyers or local legal practitioners-a person or body having corresponding powers or functions under a corresponding law regardless of whether they relate to interstate lawyers or interstate legal practitioners generally or are limited to any particular class of interstate lawyers or interstate legal practitioners.

"corresponding disciplinary body" means:

(a) a court or tribunal having powers or functions under a corresponding law that correspond to any of the powers and functions of the Tribunal, or

(b) the Supreme Court of another jurisdiction exercising:

(i) its inherent jurisdiction or powers in relation to the control and discipline of any Australian lawyers, or

(ii) its jurisdiction or powers to make orders under a corresponding law of the other jurisdiction in relation to any Australian lawyers.

"corresponding foreign law" means the following:

(a) a law of a foreign country that corresponds to the relevant provisions of this Act or, if a regulation is made declaring a law of the foreign country to be a law that corresponds to this Act, the law declared under that regulation for the foreign country,

(b) if the term is used in relation to a matter that happened before the commencement of the law of a foreign country that, under paragraph (a), is the corresponding law for the foreign country, a previous law applying to legal practice in the foreign country.

"corresponding law" means the following:

(a) a law of another jurisdiction that corresponds to the relevant provisions of this Act or, if a regulation is made declaring a law of the other jurisdiction to be a law that corresponds to this Act, the law declared under that regulation for the other jurisdiction,

(b) if the term is used in relation to a matter that happened before the commencement of the law of another jurisdiction that, under paragraph (a), is the corresponding law for the other jurisdiction, a previous law applying to legal practice in the other jurisdiction.

"costs" -see definition of "legal costs".
"costs assessor" has the meaning given in section 302 (1).
"Council" means the Bar Council or the Law Society Council.
"Director-General" means the Director-General of the Attorney General’s Department.
"disqualified person" means any of the following persons whether the thing that has happened to the person happened before or after the commencement of this definition:

(a) a person whose name has (whether or not at his or her own request) been removed from an Australian roll and who has not subsequently been admitted or re-admitted to the legal profession under this Act or a corresponding law, or

(b) a person whose Australian practising certificate has been suspended or cancelled under this Act or a corresponding law and who, because of the cancellation, is not an Australian legal practitioner or in relation to whom that suspension has not finished, or

(c) a person who has been refused a renewal of an Australian practising certificate under this Act or a corresponding law, and to whom an Australian practising certificate has not been granted at a later time, or

(d) a person who is the subject of an order under this Act or a corresponding law prohibiting a law practice from employing or paying the person in connection with the relevant practice, or

(e) a person who is the subject of an order under this Act or a corresponding law prohibiting an Australian legal practitioner from being a partner of the person in a business that includes the practitioner’s practice, or

(f) a person who is the subject of an order under section 154 (Disqualification from managing incorporated legal practice) or section 179 (Prohibition on partnerships with certain partners who are not Australian legal practitioners) or under provisions of a corresponding law that correspond to section 154 or 179.

"document" means any record of information, and includes:

(a) anything on which there is writing, and

(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them, and

(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else, and

(d) a map, plan, drawing or photograph,

and a reference in this Act to a document (as so defined) includes a reference to:

(e) any part of the document, and

(f) any copy, reproduction or duplicate of the document or of any part of the document, and

(g) any part of such a copy, reproduction or duplicate.

"engage in legal practice" includes practise law.
"exercise" of a function includes, where the function is a duty, the performance of the duty.
"external territory" means a Territory of the Commonwealth (not being the Australian Capital Territory, the Jervis Bay Territory or the Northern Territory of Australia) for the government of which as a Territory provision is made by a Commonwealth Act.
"fee, gain or reward" includes any form of, and any expectation of, a fee, gain or reward.
"Fidelity Fund" means the fund established under Part 3.4 (Fidelity cover).
"financial year" means a year ending on 30 June.
"foreign country" means:

(a) a country other than Australia, or

(b) a state, province or other part of a country other than Australia.

"foreign lawyer" -see the definitions of "Australian-registered foreign lawyer", "interstate-registered foreign lawyer" and "locally registered foreign lawyer".
"foreign roll" means an official roll of lawyers (whether admitted, practising or otherwise) kept in a foreign country, but does not include a prescribed roll or a prescribed kind of roll.
"function" includes a power, authority or duty.
"grant" of a practising certificate includes the issue of a practising certificate.
"home jurisdiction" -see section 8 (Home jurisdiction).
"incorporated legal practice" has the same meaning as in Part 2.6 (Incorporated legal practices and multi-disciplinary partnerships).
"Indemnity Fund" has the same meaning as in Part 3.3 (Professional Indemnity Insurance).
"information notice" -see section 10 (Information notices).
"insolvent under administration" means:

(a) a person who is an undischarged bankrupt within the meaning of the Bankruptcy Act 1966 of the Commonwealth (or the corresponding provisions of the law of a foreign country or external territory), or

(b) a person who has executed a deed of arrangement under Part X of the Bankruptcy Act 1966 of the Commonwealth (or the corresponding provisions of the law of a foreign country or external territory) if the terms of the deed have not been fully complied with, or

(c) a person whose creditors have accepted a composition under Part X of the Bankruptcy Act 1966 of the Commonwealth (or the corresponding provisions of the law of a foreign country or external territory) if a final payment has not been made under that composition, or

(d) a person for whom a debt agreement has been made under Part IX of the Bankruptcy Act 1966 of the Commonwealth (or the corresponding provisions of the law of a foreign country or external territory) if the debt agreement has not ended or has not been terminated, or

(e) a person who has executed a personal insolvency agreement under Part X of the Bankruptcy Act 1966 of the Commonwealth (or the corresponding provisions of the law of a foreign country or external territory) but not if the agreement has been set aside or terminated or all of the obligations that the agreement created have been discharged.

"interstate lawyer" -see section 5 (Terms relating to lawyers).
"interstate legal practitioner" -see section 6 (Terms relating to legal practitioners).
"interstate practising certificate" means a practising certificate granted under a corresponding law.
"interstate-registered foreign lawyer" means a person who is registered as a foreign lawyer under a corresponding law.
"interstate roll" means a roll of lawyers maintained under a corresponding law.
"interstate trust account" means a trust account maintained under a corresponding law.
"investigator" -see section 658 (Definitions).
"joint rules" means the legal profession rules made jointly by the Bar Association and the Law Society Council.
"jurisdiction" means a State or Territory of the Commonwealth.
"law firm" means a partnership consisting only of:

(a) Australian legal practitioners, or

(b) one or more Australian legal practitioners and one or more Australian-registered foreign lawyers.

"law practice" means:

(a) an Australian legal practitioner who is a sole practitioner, or

(b) a law firm, or

(c) a multi-disciplinary partnership, or

(d) an incorporated legal practice, or

(e) a complying community legal centre.

"Law Society" means the Law Society of New South Wales.
"Law Society Council" means the Council of the Law Society.
"lay associate" -see section 7 (Terms relating to associates and principals of law practices).
"lay person" means a person who is not an Australian lawyer.
"legal costs" means amounts that a person has been or may be charged by, or is or may become liable to pay to, a law practice for the provision of legal services including disbursements but not including interest.
"legal practitioner associate" -see section 7 (Terms relating to associates and principals of law practices).
"legal practitioner director", in relation to an incorporated legal practice, has the meaning given in Part 2.6 (Incorporated legal practices and multi-disciplinary partnerships).
"legal practitioner partner", in relation to a multi-disciplinary partnership, has the meaning given in Part 2.6 (Incorporated legal practices and multi-disciplinary partnerships).
"legal profession rules" means rules made under Part 7.5 (Legal profession rules).
"legal services" means work done, or business transacted, in the ordinary course of legal practice.
"Legal Services Division" of the Tribunal means the Legal Services Division of the Tribunal established by the Administrative Decisions Tribunal Act 1997 .
"local lawyer" -see section 5 (Terms relating to lawyers).
"local legal practitioner" -see section 6 (Terms relating to legal practitioners).
"local practising certificate" means a practising certificate granted under this Act.
"local roll" means the roll of persons admitted as lawyers under this Act.
"local trust account" means a trust account maintained under this Act.
"locally registered foreign lawyer" means a person who is registered as a foreign lawyer under this Act.
"managed investment scheme" has the same meaning as in Chapter 5C of the Corporations Act 2001 of the Commonwealth.
"Manager, Costs Assessment" means the person holding office as Manager, Costs Assessment in the Attorney General’s Department, and includes a delegate of that person.
"modifications" includes modifications by way of alteration, omission, addition or substitution.
"mortgage" means an instrument under which an interest in real property is charged, encumbered or transferred as security for the payment or repayment of money, and includes:

(a) any instrument of a kind that is prescribed by the regulations as being a mortgage, and

(b) a proposed mortgage.

"mortgage financing" means facilitating a loan secured or intended to be secured by mortgage by:

(a) acting as an intermediary to match a prospective lender and borrower, or

(b) arranging the loan, or

(c) receiving or dealing with payments for the purposes of, or under, the loan,

but does not include providing legal advice or preparing an instrument for the loan.
"multi-disciplinary partnership" has the meaning given in Part 2.6 (Incorporated legal practices and multi-disciplinary partnerships).
"practical legal training" means:

(a) legal training by participation in course work, or

(b) supervised legal training, whether involving articles of clerkship or otherwise,

or a combination of both.
"pre-admission event", in relation to an applicant for or holder of a local practising certificate, means a show cause event in relation to the applicant or holder before the applicant or holder was first admitted to the legal profession in this or another jurisdiction.
"principal" -see section 7 (Terms relating to associates and principals of law practices).
"professional misconduct" -see section 497 (Professional misconduct).
"Prothonotary" means:

(a) the officer of the Supreme Court with that title, except where paragraph (b) applies, or

(b) a registrar or other officer of the Supreme Court prescribed by rules of the Supreme Court in relation to specified provisions of this Act.

"Public Purpose Fund" means the Public Purpose Fund established under Division 7 of Part 3.1.
"Register" means the Register of Disciplinary Action referred to in section 577 (Register of Disciplinary Action).
"regulatory authority" means:

(a) in relation to this jurisdiction:

(i) an authority having functions under this Act, or

(ii) a person or body prescribed by the regulations as a regulatory authority of this jurisdiction, or

(b) in relation to another jurisdiction, means:

(i) an authority having functions under a corresponding law of that jurisdiction, or

(ii) a person or body prescribed by the regulations as a regulatory authority of that jurisdiction.

"related entity", in relation to a person, means:

(a) if the person is a company within the meaning of the Corporations Act 2001 of the Commonwealth-a related body corporate within the meaning of section 50 of that Act, or

(b) if the person is not a company with the meaning of that Act-a person specified or described in the regulations.

"rules" -see definition of "admission rules" and "legal profession rules".
"serious offence" means an offence whether committed in or outside this jurisdiction that is:

(a) an indictable offence against a law of the Commonwealth or any jurisdiction (whether or not the offence is or may be dealt with summarily), or

(b) an offence against a law of another jurisdiction that would be an indictable offence against a law of this jurisdiction if committed in this jurisdiction (whether or not the offence could be dealt with summarily if committed in this jurisdiction), or

(c) an offence against a law of a foreign country that would be an indictable offence against a law of the Commonwealth or this jurisdiction if committed in this jurisdiction (whether or not the offence could be dealt with summarily if committed in this jurisdiction).

"show cause event", in relation to a person, means:

(a) his or her becoming bankrupt or being served with notice of a creditor’s petition presented to the Court under section 43 of the Bankruptcy Act 1966 of the Commonwealth, or

(b) his or her presentation (as a debtor) of a declaration to the Official Receiver under section 54A of the Bankruptcy Act 1966 of the Commonwealth of his or her intention to present a debtor’s petition or his or her presentation (as a debtor) of such a petition under section 55 of that Act, or

(c) his or her applying to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounding with his or her creditors or making an assignment of his or her remuneration for their benefit, or

(d) his or her conviction for a serious offence or a tax offence, whether or not:

(i) the offence was committed in or outside this jurisdiction, or

(ii) the offence was committed while the person was engaging in legal practice as an Australian legal practitioner or was practising foreign law as an Australian-registered foreign lawyer, as the case requires, or

(iii) other persons are prohibited from disclosing the identity of the offender.

"sole practitioner" means an Australian legal practitioner who engages in legal practice on his or her own account.
"solicitor" means:

(a) a local legal practitioner who holds a current local practising certificate to practise as a solicitor and barrister, or

(b) an interstate legal practitioner who holds a current interstate practising certificate that does not restrict the practitioner to engage in legal practice only as or in the manner of a barrister.

"solicitors rules" means:

(a) the legal profession rules made by the Law Society Council, and

(b) the joint rules so far as they apply to solicitors.

"suitability matter" -see section 9 (Suitability matters).
"supervised legal practice" means legal practice by a person who is an Australian legal practitioner:

(a) as an employee of, or other person working under supervision in, a law practice, where:

(i) at least one partner, legal practitioner director or other employee of the law practice is an Australian legal practitioner who holds an unrestricted practising certificate, and

(ii) the person engages in legal practice under the supervision of an Australian legal practitioner referred to in subparagraph (i), or

(b) as a partner in a law firm, where:

(i) at least one other partner is an Australian legal practitioner who holds an unrestricted practising certificate, and

(ii) the person engages in legal practice under the supervision of an Australian legal practitioner referred to in subparagraph (i), or

(c) in a capacity approved under a legal profession rule.

"tax offence" means any offence under the Taxation Administration Act 1953 of the Commonwealth, whether committed in or outside this jurisdiction.
"this jurisdiction" means this State.
"Tribunal" means the Administrative Decisions Tribunal established by the Administrative Decisions Tribunal Act 1997 .
"trust money" has the meaning given in Part 3.1 (Trust money and trust accounts).
"trust property" means property entrusted to a law practice in the course of or in connection with the provision of legal services by the practice for or on behalf of another person, but does not include trust money.
"unrestricted practising certificate" means an Australian practising certificate that is not subject to any condition under this Act or a corresponding law requiring the holder to engage in supervised legal practice or restricting the holder to practise as or in the manner of a barrister.
"unsatisfactory professional conduct" -see section 496 (Unsatisfactory professional conduct).

(2) Notes included in this Act do not form part of this Act.