New South Wales Consolidated Acts New South Wales Consolidated Acts(Section 737)
(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts:this ActCourts Legislation Amendment Act 2005Legal Profession Amendment Act 2006Legal Profession Further Amendment Act 2006Courts and Crimes Legislation Amendment Act 2008
(2) Any such provision may, if the 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 in the Gazette, 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.
In
this Part:
"commencement" of a Chapter, Part or Division of this Act means the
commencement of all or a majority of the sections of the Chapter, Part or
Division.
"commencement day" means:
(a) the date of commencement of this Act, except as provided by paragraph (b), or
(b) if this Act commences on different days because of one or more proclamations under section 2:"old Act" means the Legal Profession Act 1987 .(i) the date of commencement of the relevant provision or provisions of this Act, unless subparagraph (ii) applies, or(ii) the date specified or referred to in the regulations.
(1) If anything of a kind required or permitted to be done under a provision of this Act was done under a corresponding provision of the old Act and still had effect immediately before the commencement day, the thing continues in effect on and after that day as if:(a) this Act had been in force when it was done, and(b) it had been done under this Act.
(2) If subclause (1) applies in relation to the execution, lodgment, issue or publication of a written instrument, any reference in the instrument to a provision of the old Act is, for the purposes of that subclause, to be read as a reference to the corresponding provision of this Act.
(3) Without limiting subclauses (1) and (2), if a provision of the old Act that corresponds to a provision of this Act would, but for its repeal by this Act, have applied in relation to anything done or being done or in existence before the commencement day, the provision of the new Act applies in relation to that thing, and so applies with any necessary adaptations.
(4) This clause does not have effect to the extent that other provision is made by this Schedule or that the context or subject-matter otherwise indicates or requires, and has effect subject to the regulations.
Regulations under clause 1 relating to this Act have effect despite any provisions of this Part or Schedule 8 (Mortgage practices and managed investment schemes-provisions relating to old mortgages).
The Roll of Legal Practitioners kept by the Supreme Court before the commencement day is taken to be, or to form part of, the Roll of Local Lawyers under this Act.
A person:
(a) who was admitted by the Supreme Court as a legal practitioner before the commencement day, and
(b) whose enrolment by the Supreme Court was current or pending immediately before the commencement day,is taken to have been admitted by the Supreme Court as a lawyer under this Act on the day on which the person was admitted as a legal practitioner.
Note: Schedule 8 to the old Act provided that a person who was enrolled by the Supreme Court as a barrister or solicitor at the date of commencement of Schedule 1 (2) to the Legal Profession Reform Act 1993 (1 July 1994) was taken to be enrolled as a legal practitioner on the day on which the person was first admitted. This clause preserves that day as the date of admission as a lawyer for the purposes of this Act.
(1) An application for admission as a legal practitioner that was pending immediately before the commencement day is taken to be an application for admission as a lawyer under this Act.
(2) The applicant may be admitted as a lawyer under this Act if the applicant could have been admitted as a legal practitioner under the old Act if this Act had not been enacted, and the admission requirements of this Act are taken to have been satisfied in relation to the applicant.
(1) A declaration made under Division 3 of Part 2 of the old Act and in force immediately before the commencement day is taken to have been made under this Act.
(2) An application for a declaration under Division 3 of Part 2 of the old Act that was pending immediately before the commencement day is taken to be an application for a declaration under Part 2.3 of this Act.
(1) A practising certificate granted under the old Act and:(a) in force immediately before the commencement day, or(b) expressed to take effect on a date that is on or after the commencement day,is taken to be granted under this Act.
(2) An application for a practising certificate under the old Act that was pending immediately before the commencement day is taken to be an application for a practising certificate under this Act.
(3) Applications for practising certificates under this Act made during the period of 6 months commencing on the commencement day may be made in the form used for applications for practising certificates under the old Act, but are to be dealt with under this Act.
(1) This clause applies if:(a) an Australian lawyer would, but for this subclause, be required to hold an Australian practising certificate in relation to carrying out an activity, and(b) the lawyer would not be required to hold a practising certificate in relation to that activity had this Act not been enacted.
(2) The lawyer does not commit an offence under Part 2.2 of this Act, and is taken not to have engaged in unsatisfactory professional conduct or professional misconduct under that Part, in relation to the activity.
(3) Subclause (2) does not apply to an activity when carried out after 12 months after the commencement of Part 2.2 of this Act.
(1) In this clause:
"Division 1AA" means Division 1AA of Part 3 of the old Act.
"new provisions" means Division 7 of Part 2.4 of this Act.
(2) Division 1AA continues to apply in relation to an application for a practising certificate pending immediately before the commencement of the new provisions.
(3) Anything commenced or under consideration by the Commissioner or a Council under Division 1AA immediately before the commencement of the new provisions may, subject to any directions of the Commissioner:(a) be continued under Division 1AA as if this Act had not been commenced, or(b) be continued under the new provisions.
(4) For the purposes of subclause (3) (b), anything done or omitted under Division 1AA may be regarded as having been done or omitted under the new provisions or may be taken into consideration for the purposes of the new provisions, or both.
(1) An incorporated legal practice providing legal services in accordance with the old Act immediately before the commencement day is not required to comply with section 137 (Notice of intention to start providing legal services).
(2) Section 146 (Disclosure obligations) does not apply in respect of any matter for which services are first provided before the commencement day.
(3) A disqualification imposed under section 47F of the old Act is to have effect as if it were imposed under section 154 and this Act applies accordingly.
(1) An Australian legal practitioner providing legal services as a member of a multi-disciplinary partnership in accordance with the old Act immediately before the commencement day is not required to comply with section 167 (Notice of intention to start practice in multi-disciplinary partnership).
(2) Section 173 (Disclosure obligations) does not apply in respect of any matter for which services are first provided before the commencement of that section.
(1) Registration as a locally registered foreign lawyer granted under the old Act and:(a) in force immediately before the commencement day, or(b) expressed to take effect on or after the commencement day,is taken to be granted under this Act.
(2) An application for registration as a locally registered foreign lawyer under the old Act that was pending immediately before the commencement day is taken to be an application for registration as a locally registered foreign lawyer under this Act.
(3) Nothing in subclause (1) permits a person registered as a foreign lawyer under the old Act immediately before the commencement day to continue to provide any services that are not permitted to be provided under Part 2.7 of this Act.
(1) This clause applies to a complaint that was made under the old Act and in respect of which proceedings instituted under the old Act in the Tribunal were pending immediately before the commencement day.
(2) The complaint is to be dealt with as if this Act had not been enacted.
(1) This clause applies to a complaint that was pending under the old Act immediately before the commencement day, but does not apply to a complaint in respect of which proceedings were instituted in the Tribunal before that day.
(2) The complaint is to be dealt with as if this Act had not been enacted, except in relation to proceedings in the Tribunal in respect of the complaint.
(3) Part 4.8 of this Act, and any other relevant provisions of this Act, apply to the commencement of proceedings in the Tribunal in relation to the complaint, and so apply with any necessary adaptations.
(4) Chapter 4 of this Act, and any other relevant provisions of this Act, apply to those proceedings, and so apply with any necessary adaptations.
(5) However, the Tribunal may not make any determination or order of a disciplinary nature against the person in respect of whom the complaint was made that is more onerous than could have been made under the old Act.
(1) This clause applies to conduct that occurred or is alleged to have occurred before the commencement day and that could have been the subject of a complaint under the old Act.
(2) A complaint about the conduct may be made, and dealt with, under this Act, even if the conduct could not be the subject of a complaint if it had occurred after the commencement day.
(3) Chapter 4 of this Act, and any other relevant provisions of this Act, apply to and in respect of such a complaint and any proceedings relating to it, and so apply with any necessary adaptations.
(4) However, the Commissioner, a Council or the Tribunal may not make any determination or order of a disciplinary nature against the person in respect of whom the complaint was made that is more onerous than that which could have been made under the old Act.
(1) Proceedings before the Tribunal that were instituted on or after 1 October 2005 but before the commencement of this clause in respect of a complaint about conduct occurring before 1 October 2005 are to be dealt with in accordance with:(a) this Act (including clauses 16 and 17 of this Schedule), and(b) the Administrative Decisions Tribunal Act 1997 (as in force on or after 1 October 2005),except in so far as a direction of the President of the Tribunal under this clause otherwise provides.
(2) The President of the Tribunal may direct that the proceedings be dealt with in accordance with:(a) the old Act, or(b) the old Act and this Act as regards different aspects of the proceedings, as indicated in the direction.
(3) The President of the Tribunal may, for the purposes of this clause, direct that the Tribunal be constituted as determined by the President or the Divisional Head of the Legal Services Division, being a determination that is consistent with requirements for the constitution of the Division under the Administrative Decisions Tribunal Act 1997 at or at any time before the commencement of this clause.
(4) The President of the Tribunal may give any such direction at any stage of the proceedings.
(5) Any decisions of the Tribunal or directions of the President of the Tribunal that:(a) were made or given before the commencement of this clause, and(b) would have been valid had the Legal Profession Amendment Act 2006 (which inserted this clause and omitted clause 41 (2) (Pending proceedings) of Schedule 5 (Savings and transitional provisions) to the Administrative Decisions Tribunal Act 1997 ) been in force at the relevant time,are taken to have been validly made or given.
Note: The purpose of clause 17A is to provide for determining how disciplinary proceedings commenced in the Tribunal on or after 1 October 2005 but before the commencement of the clause are to be dealt with.
Clauses 16 and 17 in effect provide that those proceedings are to be dealt with substantially in accordance with this Act. However, clause 41 (2) of Schedule 5 to the Administrative Decisions Tribunal Act 1997 in effect provided that those proceedings are to be initiated and dealt with in accordance with the Legal Profession Act 1987 and in accordance with the Administrative Decisions Tribunal Act 1997 as in force before the commencement of clause 41. Clause 41 (2) was repealed by the Legal Profession Amendment Act 2006 .
Clause 17A provides that the proceedings are to be dealt with in accordance with this Act and the Administrative Decisions Tribunal Act 1997 as currently in force, subject to any directions that the President is authorised to give under the clause.
(1) Subject to subclauses (2) and (3), Part 3.2 of this Act applies to a matter if the client first instructs the law practice on or after the commencement day, and Part 11 of the old Act continues to apply to a matter if the client first instructed the law practice in the matter before that day.
(2) Part 3.2 of this Act does not apply in respect of a law practice that is retained by another law practice on behalf of a client on or after the commencement day in relation to a matter in which the other law practice was retained by the client before that day, and in that case Part 11 of the old Act continues to apply.
(3) If:(a) an application for assessment of costs was referred to a costs assessor for assessment under Part 11 of the old Act, and(b) the assessment was not commenced or completed before that day,the application may be dealt with under that Part as if that Part had not been repealed.
(1) The Legal Profession Admission Board constituted under this Act is taken to be a continuation of and the same legal entity as the Legal Practitioners Admission Board constituted under the old Act.
(2) The persons holding office as nominated members of the Legal Practitioners Admission Board immediately before the commencement day are taken to have been nominated under this Act as members of the Legal Profession Admission Board.
The person holding office as Legal Services Commissioner immediately before the commencement day is taken to be appointed under this Act on the same terms and conditions on which, and for the balance of the term for which, the person was appointed.
(1) An appeal or review that was pending under or in relation to any matter under the old Act immediately before 1 October 2005 is to be dealt with as if this Act had not been enacted, except in so far as a direction of the Supreme Court or the President of the Tribunal, as the case requires, under this clause otherwise provides.
(2) The Supreme Court or the President of the Tribunal, as the case requires, may direct that the appeal or review proceedings be dealt with in accordance with the provisions of:(a) this Act, or(b) the old Act and this Act as regards different aspects of the proceedings, as indicated in the direction.Those provisions apply accordingly, and so apply with any necessary adaptations.
(3) The President of the Tribunal may, for the purposes of this clause, direct that the Tribunal be constituted as determined by the President or the Divisional Head of the Legal Services Division, being a determination that is consistent with requirements for the constitution of the Division under the Administrative Decisions Tribunal Act 1997 at or at any time before the commencement of this clause.
(4) The Supreme Court or the President of the Tribunal, as the case requires, may give any such direction at any stage of the proceedings.
(5) The Supreme Court or the Tribunal, as the case requires, may make orders declaring how the decision on the appeal or review is to have effect in relation to the provisions of this Act.
(6) Any decisions of the Supreme Court or the Tribunal or directions of the Supreme Court or the President of the Tribunal that:(a) were made or given before the commencement of this clause, and(b) would have been valid had the Legal Profession Amendment Act 2006 (which substituted this clause) been in force at the relevant time,are taken to have been validly made or given.
(1) A matter arising under the old Act may be the subject of an appeal or review made or applied for on or after 1 October 2005 if the appeal or review could have been made or applied for had this Act not been enacted.
(2) The appeal or review may be made or applied for under the provisions of either the old Act or this Act (even if the matter could not otherwise be the subject of appeal or review under this Act if the matter had arisen on or after 1 October 2005).
(3) The appeal or review may be dealt with under this Act (even if the matter could not otherwise be the subject of appeal or review under this Act if the matter had arisen after 1 October 2005), except in so far as a direction of the Supreme Court or the President of the Tribunal, as the case requires, under this clause otherwise provides.
(4) The Supreme Court or the President of the Tribunal, as the case requires, may direct that the appeal or review proceedings be dealt with in accordance with the provisions of:(a) the old Act, or(b) the old Act and this Act as regards different aspects of the proceedings, as indicated in the direction.Those provisions apply accordingly, and so apply with any necessary adaptations.
(5) The President of the Tribunal may, for the purposes of this clause, direct that the Tribunal be constituted as determined by the President or the Divisional Head of the Legal Services Division, being a determination that is consistent with requirements for the constitution of the Division under the Administrative Decisions Tribunal Act 1997 at or at any time before the commencement of this clause.
(6) The President may give any such direction at any stage of the proceedings.
(7) The Supreme Court or the Tribunal, as the case requires, may make orders declaring how the decision on the appeal or review is to have effect in relation to the provisions of this Act.
(8) Any decisions of the Supreme Court or the Tribunal or directions of the Supreme Court or the President of the Tribunal that:(a) were made or given before the commencement of this clause, and(b) would have been valid had the Legal Profession Amendment Act 2006 (which inserted this clause) been in force at the relevant time,are taken to have been validly made or given.
(1) The Public Purpose Fund established under the old Act is taken to be established under this Act.
(2) If the Conveyancers Licensing Act 2003 is not in force, the costs of the Commissioner or the Tribunal in relation to the administration of Chapter 4 of this Act as applied by section 82 of the Conveyancers Licensing Act 1995 are payable from the Public Purpose Fund, and payments may accordingly be made from that Fund.
Any rules made by the Legal Practitioners Admission Board constituted under the old Act and in force immediately before the commencement day are taken to have been made under Part 2.3, and have effect with any necessary adaptations.
Any rules made by a Council separately or jointly with the other Council and in force before the commencement day are taken to have been made under Part 7.5, and have effect with any necessary adaptations.
If the Conveyancers Licensing Act 2003 is not in force, a reference to it in this Act (except this Schedule) is taken to include a reference to the Conveyancers Licensing Act 1995 .
(1) A reference in another Act or statutory rule enacted or made before the commencement day to:(a) a barrister is to be read as a reference to a barrister within the meaning of this Act, and(b) a solicitor, or a solicitor and barrister, is to be read as a reference to a solicitor within the meaning of this Act, and(c) a legal practitioner (where the term is expressed to be as defined in or within the meaning of the old Act) is to be read:(i) as a reference to a local lawyer within the meaning of this Act, and(ii) as including a reference to a barrister or a solicitor respectively within the meaning of this Act, and(d) a legal practitioner (where the term is not so expressed) of a specified period of standing is to be read as a reference to an Australian lawyer of that period of standing,except where the regulations otherwise provide or the context or subject-matter indicates that the term is to have a different meaning.
(2) Without limiting subclause (1) or the power to make regulations under this Schedule, the regulations may provide that a reference in another Act or statutory rule or other document to:(a) a legal practitioner (where the term is expressed to be as defined in or within the meaning of the old Act), or(b) a legal practitioner (where the term is not so expressed), or(c) a lawyer, an attorney, counsel or similar term,is to be read as a reference to an Australian legal practitioner or Australian lawyer or to an Australian legal practitioner or Australian lawyer of a class specified in the regulations.
An offence is not committed under the provisions of Part 3.1 or of the regulations made for the purposes of that Part for anything done or omitted to be done in good faith during the period of 3 months after the commencement of this clause, if:
(a) it was done for the purpose of attempting to comply with any of those provisions, or
(b) it was done in substantial conformity with the requirements of the old Act or the regulations under the old Act had that Act and those regulations continued in force.
(1) This clause applies to a solicitor corporation that was formed under Division 1 of Part 10A of the old Act and that was in existence immediately before the repeal of that Part by the Legal Profession Amendment (Incorporated Legal Practices) Act 2000 .
(2) Any such solicitor corporation in existence immediately before 1 October 2005 is taken for all purposes to have continued in existence on and from that date, and Part 10A of the old Act continues to apply to the solicitor corporation (despite its repeal), until:(a) the registration of the corporation as a company under the Corporations Act 2001 of the Commonwealth, or(b) the winding up of the corporation in accordance with that Part or with the regulations made under this Schedule.
(3) Any such regulations may apply provisions of the Corporations Act 2001 of the Commonwealth or any other Act, with or without modification.
(4) Solicitor corporations are taken to be, and to have been on and after 1 October 2005, law practices within the meaning of this Act. The regulations may modify the operation of this Act in relation to solicitor corporations.
(5) The transfer, in accordance with the Corporations Act 2001 of the Commonwealth, of the incorporation of any such solicitor corporation to incorporation under that Act is authorised.
(1) This clause applies to a corporation that is registered as a company under the Corporations Act 2001 of the Commonwealth and that immediately before its registration as such a company was a solicitor corporation to which clause 28 applied.
(2) The corporation:(a) ceases to be a solicitor corporation when it is registered as a company under the Corporations Act 2001 of the Commonwealth, and(b) becomes an incorporated legal practice (subject to and in accordance with section 134 of this Act and any other relevant provisions of Part 2.6 of this Act).
(3) Part 10A of the old Act ceases to apply to the corporation.
(4) The corporation must, within the period of 7 days commencing with the day on which the corporation becomes registered as a company, give:(a) the Law Society Council, and(b) the Commissioner for Fair Trading in the Department of Commerce or (if that position does not exist) the Director-General of the Department of Commerce,a written notice of that fact.Maximum penalty: 50 penalty units.
(5) Sections 137 and 138 do not apply, and are taken not to have applied, to the corporation if it gives the Law Society Council the notice referred to in subclause (4) within the required period and in the approved form.
(1) Section 353 (3) (Application for assessment of party/party costs) does not affect, and is taken never to have affected, rules of court, or the power to make rules of court, under section 253 (Court may order payment of costs) of the Criminal Procedure Act 1986 in connection with criminal proceedings in any court.
(2) The Land and Environment Court Rules (Amendment No 16) 2005 (the "amending Rules") are taken to have been validly made.
(3) References in Division 3 of Part 16 of the Land and Environment Court Rules 1996 as inserted by the amending Rules to provisions of the old Act are taken to include references to the corresponding provisions of this Act.
Despite clause 26, an amendment made by Schedule 9.11 or 9.12 [1], [2] or [5] to the Legal Profession Amendment Act 2006 is taken to have effect on and from the commencement day.
(1) Applications for the grant or renewal of a local practising certificate made in accordance with section 45 as in force immediately before the commencement of section 45 as substituted by the Legal Profession Further Amendment Act 2006 and pending immediately before that commencement are taken to be made in accordance with this Act and are to be dealt with accordingly.
(2) Section 48 (13) as substituted by the Legal Profession Further Amendment Act 2006 applies to applications pending immediately before the commencement of that substituted subsection as well as to applications made after that commencement.
The Legal Profession Advisory Council is abolished with effect on and from 7 December 2006.
(1) An appeal to the Supreme Court for which a hearing date had been allocated before the commencement of Schedule 14 to the Courts and Crimes Legislation Amendment Act 2008 is to be determined as if that Act had not been enacted.
(2) The reference to an appeal in subclause (1) extends to an appeal made to the Supreme Court under section 208L (Appeal against decision of costs assessor as to matter of law) of the Legal Profession Act 1987 .
(1) Section 302B (as inserted by the Courts Legislation Amendment Act 2010 ) extends to any applications for the assessment of costs made (but not determined) before the commencement of that section.
(2) However, section 302B does not extend to any application for a review of, or any appeal against, an assessment of costs by a costs assessor (whether the application for review or the appeal is made before or after the commencement of that section) if the assessment of costs was determined by the costs assessor before that commencement.
(3) For the purposes of this clause, an assessment of costs has been determined by a costs assessor if a certificate setting out the cost assessor’s determination has been issued under section 368.