New South Wales Repealed Acts New South Wales Repealed ActsThis legislation has been repealed.
- As at 19 August 2005
- Act 109 of 1987
TABLE OF PROVISIONS
Long Title
PART 1 - PRELIMINARY
1. Name of Act
2. Commencement
3. Definitions
3A. Notes
PART 2 - ADMISSION OF LEGAL PRACTITIONERS
Division 1 - Role of Supreme Court
4. Admission of legal practitioners
5. Legal practitioners and interstate legal practitioners to be officers of Supreme Court
5A. Locally registered foreign lawyer not to be an officer of Supreme Court
Division 2 - Legal Practitioners Admission Board
6. Rules for registration and admission
7. Provisions applying to admission rules
8. Examiners
9. Constitution of Admission Board
10. Membership of Admission Board
Division 3 - Suitability of candidate for admission
11. Character and suitability of candidates
12. Declaration on character and suitability
13. Early consideration of character and suitability
13A. Admission Board may refer certain matters to Supreme Court
14. Appeals
15. Binding effect of declaration
16. Representation by Councils
Division 4 - Miscellaneous
17. Miscellaneous provisions respecting admission
18. References to barristers and solicitors
19. Cancellation of practising certificates
20. Legal practitioner not to be allowed certain privilege
21-24A. (Repealed)
PART 3 - LEGAL PRACTICE
Division 1 - Practising certificates
25. Requirement for practising certificate
26. Election to practise as barrister or solicitor and barrister
27. Barristers
28. Solicitors and barristers
29. (Repealed)
29A. Fee for practising certificate-barristers
29B. Fee for practising certificate-solicitors
29C. Late fee
29D. Submission of budget to Attorney General
29E. Audit of Council activities
30. Refusal of application for practising certificate as barrister or solicitor
31. Non-payment of contributions and levies by solicitors in respect of Indemnity Fund or Fidelity Fund
32. Conditions may be imposed on practising certificates
33. Conditions on practising certificates generally
34. Additional conditions on practising certificates of barristers
35. Additional conditions on practising certificates of solicitors and barristers
36. Duration of practising certificates
37. Refusal, suspension or cancellation of practising certificate generally
38. Refusal, suspension or cancellation of practising certificate as solicitor and barrister-trust accounts etc
38A. Refusal, suspension or cancellation of practising certificate-infirmity
38B. Appeals relating to practising certificates
38C. Registers of barristers and solicitors
38D. Dual certificates
38E. Injunctions
38F. Application of provisions of Division
Division 1AA - Special powers in relation to practising certificates
38FA. Relevant period
38FB. Requirements to show cause-bankruptcy, indictable offences, tax offences and failures to notify
38FC. Refusal, cancellation or suspension of practising certificates-bankruptcy, indictable offences and tax offences
38FD. Refusal, cancellation or suspension of practising certificates-failure to notify
38FE. Refusal, cancellation or suspension of practising certificates-failure to show cause or furnish information
38FF. Restriction on making further applications
38FG. Commissioner may take action
38FH. Automatic suspension of practising certificate
38FI. Powers when investigating matter under this Division
38FJ. Complaint may be made
Division 1A - Practice as a barrister or solicitor
38G. Practice as a barrister
38H. Practice as a solicitor
38I. Client access
38J. Advertising
38JA. Regulation of advertising and other marketing of services
38K. Specialisation
38L. Advocates
38M. Joint advocates
38N. Attendance
38O. Prohibition of official schemes for recognition of seniority or status
38P. Barristers receiving money on behalf of other
38Q. Service with the Crown
Division 1B - Barristers’ indemnity insurance
38R. Indemnity insurance
Division 2 - Solicitors’ Mutual Indemnity Fund
39. Definitions
40. Solicitors’ Mutual Indemnity Fund
41. Solicitor to be insured and to make contributions
42. Separate account
43. Investment of Indemnity Fund
44. Payments from the Indemnity Fund
44A. Payments relating to HIH group insurance policies
44B. Payments relating to other defaulting insurers
45. Contributions
46. Levies
46A. Special contributions and levies: HIH liabilities
47. Failure to pay contribution or levy
47AA. Investigation of Indemnity Fund
47AB. Powers of investigators
47A. Application of Division to other persons
Division 2A - Incorporated legal practices
47B. Definitions
47C. Nature of incorporated legal practice
47D. Corporations eligible to be incorporated legal practices
47E. Solicitor directors of incorporated legal practices
47F. Prohibition of repeat offender from managing a corporation that is an incorporated legal practice
47G. Solicitors rules-application to incorporated legal practices
47H. Solicitors’ professional obligations and privileges
47I. Advertising and disclosures with respect to legal services
47J. Application of Part 11 (Legal fees and other costs)
47K. Provisions relating to indemnity insurance
47L. Application of Part 6 (Trust accounts)
47M. Application of Part 7 (Solicitors’ Fidelity Fund)
47N. Extension of vicarious liability of incorporated practice relating to failures to account and dishonesty
47O. Investigation of incorporated legal practices
47P. Review of incorporated legal practices
47Q. Disclosure of information to ASIC
47R. External administration proceedings under Corporations Law
47S. This Act prevails over Corporations Law and certain other instruments
47T. Regulations relating to incorporated legal practices
48. (Renumbered)
Division 3 - Crown Solicitor
48A. Crown Solicitor
PART 3A - UNQUALIFIED PRACTITIONERS
48B. Unqualified person acting as barrister or solicitor and barrister
48C. Unqualified person making false representation to be a barrister or solicitor and barrister
48D. Offence by corporation or officers
48E. Limitation on general legal work and probate work
48F. Sharing receipts
48G. Multidisciplinary partnerships
48H. Community legal centres
48I. Prohibition on employment of certain non-legal clerks
48J. Prohibition on partnerships with certain non-legal partners
48K. Associates who are disqualified or convicted persons
48L. Miscellaneous provisions-secs 48I-48K
48M. Injunctions
PART 3B - INTERSTATE LEGAL PRACTITIONERS
Division 1 - Preliminary
48N. Definitions
48O. (Repealed)
Division 2 - Entitlement of interstate practitioners to practise in this State
48P. Object of Division
48Q. Entitlement of interstate legal practitioners to practise in this State
48R. Additional conditions on practice of interstate legal practitioners
Division 3 - Provisions applying to interstate legal practitioners who establish offices in this State
48S. When does an interstate legal practitioner establish an office?
48T. Notification of establishment of office required
48U. Professional indemnity insurance required if office established
Division 4 - Disputes, complaints and discipline
Note
48V. Disputes about the practice of local legal practitioners in other States or Territories
48W. Referral of disputes and disciplinary matters to other regulatory authorities
48X. Dealing with matters referred by other regulatory authorities
48Y. Furnishing information
48Z. Local legal practitioners are subject to interstate regulatory authorities
Division 5 - General
48ZA. Local legal practitioner receiving trust money interstate
48ZB. Regulatory authority may exercise powers conferred by corresponding law
48ZC. Agreements and arrangements with other regulatory authorities
48ZD. Professional indemnity insurance where no office established in this State
PART 3C - FOREIGN LAWYERS
Division 1 - Preliminary
48ZE. Definitions
48ZF. Principal purpose
48ZG. Operation of this Part
Division 2 - Local registration of foreign lawyer
48ZH. Registration requirement
48ZI. Registration application
48ZJ. Fee for registration
48ZK. Entitlement to registration
48ZL. Conditions
48ZM. Notification of decision
48ZN. Duration of registration and annual fee
48ZO. Refusal of application to register or renew registration
48ZP. Publication of information about locally registered foreign lawyers
48ZQ. Cancellation of registration
48ZR. Appeals
Division 3 - Legal practice
48ZS. Scope of practice
48ZT. Form of practice
48ZU. Application of Australian professional ethical and practice standards
48ZV. Disciplinary action for breach of Australian professional ethical and practice standards
48ZW. Letterhead and other identifying documents
48ZX. Designation
48ZY. Advertising
48ZZ. Employment of domestic lawyer by foreign lawyer
48ZAA. Indemnity insurance
48ZAB. Trust accounts and fidelity fund contributions
48ZAC. Exemption by domestic registration authority
Division 4 - Miscellaneous
48ZAD. Membership of professional association
48ZAE. Joint rules
PART 4 - BAR ASSOCIATION AND LAW SOCIETY
Division 1 - Bar Association
49. Report on committees
50. Lay representation on committees
51. Functions of Bar Council
Division 2 - Law Society
52. Report on committees
53. Lay representation on committees
54. Functions of Law Society
55. Investigation of affairs of solicitor or locally registered foreign lawyer
56. Secrecy
Division 3 - Annual reports
57. Council to submit annual report
Division 4 - Rules
57A. Rules of Bar Council
57B. Rules of Law Society Council
57C. Joint rules other than joint rules on foreign lawyers
57CA. Joint rules on foreign legal practitioners
57CB. Commissioner and Advisory Council to be notified of proposed rules
57CC. Councils to give public notice of proposed rules
57D. Rules binding
57E. Inconsistent rules
57F. Existing rules
57G. Initial review of rules
57GA. Review of rules requested by Commissioner
57H. Review of rules by Advisory Council
57I. Rules may be declared inoperative
57J. Publication of rules
57K. Commencement of rules
57L. Other provisions as to rules
Division 5 - General
57M. Membership of Bar Association
57MA. Membership of Law Society
57N. Continuing legal education
PART 5 - LEGAL PROFESSION ADVISORY COUNCIL
58. Constitution of the Advisory Council
59. Functions of the Advisory Council
59A. Payment of costs of Advisory Council
PART 5A - LEGAL SERVICES COMMISSIONER
59B. Appointment of Commissioner
59C. Acting Commissioner
59D. Functions of Commissioner
59E. Councils to provide information to Commissioner
59F. Protocols relating to monitoring of regulatory functions
59G. Annual report of Commissioner
59H. Staff of Commissioner
59I. Delegation of functions
PART 6 - TRUST ACCOUNTS
Note
Division 1 - General
60. Definitions
61. Money received by solicitor on behalf of another
61A. Money received by solicitor for costs in workers compensation matters
62. Keeping of accounts
63. Audits
64. Deposit of trust funds with Law Society
65. Repayment of deposit with Law Society
66. Accounts to be kept by Law Society
67. (Repealed)
68. Money not claimed from solicitor
69. Relief for financial organisation
Division 2 - Public Purpose Fund
69A. Definitions
69B. Public Purpose Fund
69C. Trustees of Public Purpose Fund
69D. Management and control of Fund
69E. Agreements relating to payment of interest on general trust accounts
69F. Payments from Fund
69G. Payment of certain costs and expenses from Fund
69H. Submission of budgets to Director-General
69I. Discretionary payments from Fund for other purposes
69J. Performance audits
69K. Information about Fund to be included in Law Society Council report
PART 7 - SOLICITORS’ FIDELITY FUND
Division 1 - General
70. The Solicitors’ Fidelity Fund
71. Separate account
72. Investment of the Fidelity Fund
73. Payments from Fidelity Fund
74. Management Committee
75. Audit
Division 2 - Contributions and levies
76. Contributions
77. Levies
78. Failure to pay contribution or levy
78A. Contributions and levies from locally registered foreign lawyers
Division 3 - Claims
79. Definitions
79A. Meaning of “failure to account”
79B. Meaning of “dishonest default”
79C. Meaning of “pecuniary loss”
80. Claims against Fidelity Fund
80A. Reduction of claim
81. Claims by solicitor who pays compensation for failure to account or dishonest default
82. Special provisions relating to failure to account
83. Special provisions relating to claims based on dishonest default
84. Claimant required to pursue claims etc
85. Interest payable even if not claimed
86. Avoidance of double compensation
87. Final date for making claim on failure to account
88. Final date for making claim on dishonest default
89. Ceiling on payments from the Fidelity Fund-failure to account
90. Ceiling on payments from the Fidelity Fund-dishonest default
90A. Subrogation
90B. Sufficiency of Fidelity Fund
90C. Availability of property of the Law Society
90D. Proceedings against Law Society
PART 8 - RECEIVERS
91. Definitions
91A. Application of Part to locally registered foreign lawyers
92. Supreme Court may appoint receiver
93. Court to be closed
94. Order to be served
95. Receiver may take possession of property
96. Information about receivable property
97. Stop order on account
98. Recovery of compensation for disposal of receivable property
99. Improper dealing with property
100. Receiver may deal with property
101. Other powers of receiver
102. Application for directions
103. Notice to claim receivable property
104. Lien for costs on receivable property
105. Examination by receiver
106. Termination of appointment of receiver
107. Property not dealt with by receiver
108. Investment of money by receiver
109. Receiver may be reimbursed for damages
110. Payment of expenses of receivership
111. Supreme Court may review expenses of receivership
112. Receivable property not to be attached
113. Supreme Court may give general directions
114. Receiver to report to the Supreme Court
PART 8A - MANAGERS
114A. Definitions
114B. Appointment of manager
114C. Powers of manager
114D. Management continues under receivership
114E. Acts of manager to be taken as acts of solicitor
114F. Manager may be reimbursed for damages
114G. Payment of expenses of management
114H. Manager to report to the Law Society
114I. Application of Part 6
114J. Office accounts
114K. Termination of management
PART 9 - MORTGAGE PRACTICES AND MANAGED INVESTMENT SCHEMES
Division 1 - Preliminary
115. Definitions
116. State regulated mortgage-meaning
Division 2 - Mortgage practices
117. Conduct of mortgage practices
118. Nomination of practice as State regulated mortgage practice
119. Requirement to notify Law Society of State regulated mortgages
120. Solicitor to have fidelity cover in respect of regulated mortgages
121. Bar on claims against Fidelity Fund relating to regulated mortgages
122. Notification of insurance arrangements for regulated mortgage
122A. Failure to obtain fidelity insurance for regulated mortgage
Division 3 - Managed investment schemes
122B. Involvement of solicitors in managed investment schemes
122C. Claims against Fidelity Fund relating to managed investment schemes connected with solicitors
122D. Transfer of mortgages to responsible entity
122E. Regulations and rules relating to managed investment schemes
Division 4 - Transitional arrangements-pre-existing mortgages
122F. Part extends to pre-existing mortgages
122G. Requirement to obtain fidelity insurance in respect of pre-existing mortgages
122H. No further action to be taken in respect of run-out mortgages
122I. Substitution of lender or contributor under run-out mortgage
122J. No claims against Fidelity Fund by substitute lenders
Division 5 - Miscellaneous
122K. Law Society may require information about mortgage practices
122L. Indemnity insurance
122M. Regulations and rules relating to Part
PART 10 - COMPLAINTS AND DISCIPLINE
Division 1 - Preliminary
123. Objects of Part generally
124. Objects of Part relating to users of legal services
125. Objects of Part relating to providers of legal services
126. Definitions
127. Professional misconduct and unsatisfactory professional conduct
128. Legal practitioner to whom Part applies
128A. Investigations not related to complaints under this Part
Division 2 - (Repealed)
Division 3 - Complaints about legal practitioners
134. Making of complaints
135. To whom complaint made
136. Requirements for making complaints
137. Complaints made over 3 years after conduct concerned
138. Request by complainant for compensation order
139. Summary dismissal of complaints
140. Withdrawal of complaints
141. Referral of complaints to Council
142. (Repealed)
Division 4 - Mediation of consumer disputes
143. Consumer dispute
144. Referral for mediation
145. Mediation to be voluntary
145A. Nature of mediation
146. Mediators
147. Confidentiality of mediation process
Division 5 - Investigation of complaints
147A. Investigation of complaints by Commissioner
148. Investigation of complaints by Council
149. Monitoring by Commissioner of conduct of investigation
150. Directions by Commissioner about conduct of investigation
151. Independent investigation of certain complaints
152. Powers of Council or Commissioner when investigating complaint
153. Referral of matters to costs assessors
154. Investigation to be conducted expeditiously
155. Decision after investigation of complaint
155A. Dismissal of complaints if in public interest
156. Record of decision after investigation of complaint
157. (Repealed)
Division 6 - Review of Councils’ decisions
158. Application for review
159. Reviews
160. Decision of Commissioner on review
161. Assistance etc by Council
162-166. (Repealed)
Division 7 - Applications to the Tribunal
167. Institution of proceedings and hearings
167AA. Time for instituting proceedings
167A. Tribunal may vary an information
167B. Substitution of informant
168. Rules of evidence
169. Parties
170. Certain hearings to be held in private
171. Power to disregard procedural lapses
171A, 171B. (Repealed)
171C. Determinations of Tribunal
171D. Compensation orders of Tribunal
171E. Award of costs by Tribunal
171F. Appeals against orders and decisions of Tribunal
171G, 171H. (Repealed)
171I. Payment of fines
Division 9 - Notifications to complainant and legal practitioner
171J. Notification of decisions of Council or Commissioner
171K. Notification about review of Council decisions
171L. Notification of progress and result of disciplinary proceedings
Division 9A - Publicising disciplinary action
171LA. Definitions
171LB. Publicising disciplinary action
171LC. Register of disciplinary action
171LD. Quashing of disciplinary action
171LE. Liability for publicising disciplinary action
171LF. General
Division 10 - Miscellaneous
171M. Jurisdiction of Supreme Court not affected
171MA. Information about complaints procedure
171MB. Performance criteria relating to handling of complaints by Councils and Commissioner
171N. Appeals to Tribunal concerning reprimands
171O. Reports required by Attorney General
171OA. (Repealed)
171P. Offence: improper disclosure of information
171Q. Protection from liability
171R. Certain persons not compellable witnesses
171S. Duty of confidentiality of client communications
171T. Costs of administering Part
171U. Undertakings
172. (Repealed)
PART 10A - (Repealed)
PART 11 - LEGAL FEES AND OTHER COSTS
Division 1 - Preliminary
173. Definitions
174. Clients’ rights under Part
174A. Application of Part to cross-vested matters
174B. Application of Part to locally registered foreign lawyers
Division 2 - Disclosure of matters relating to costs
175. Obligation to disclose to clients basis of costs
176. Obligation to disclose basis of costs to instructing practitioner
177. Obligation to disclose estimated costs
178. When disclosure to be made
179. Disclosure to be in writing
180. Exception to disclosure
181. Regulations, rules and guidelines as to disclosure
182. Effect of non-disclosure of matters related to basis of costs
183. Effect of non-disclosure of estimated costs
Division 3 - Costs agreements
184. Agreements about costs
185. Regulations, rules and guidelines as to costs agreements
186. Conditional costs agreements
187. Payment of premium under conditional costs agreement
188. Costs not to be calculated on amount recovered in proceedings
189. Rights may not be waived
Division 4 - Interest, security for costs and bills of costs
190. Interest on outstanding costs
191. Security for costs
192. Bill of costs to be given before costs can be recovered from client
193. Form of bill of costs
194. Signing of bill of costs
195. Delivery of bill of costs
Division 5 - Costs fixed by regulations
196. Regulations to provide for related costs
197. Regulations to provide for amounts of costs passed on to other parties
198. Provisions relating to regulations generally
Division 5A - Mediation of costs disputes
198A. Costs dispute
198B. Referral for mediation
Division 5B - Maximum costs in personal injury damages matters
198C. Interpretation and application
198D. Maximum costs fixed for claims up to $100,000
198E. Maximum costs do not affect solicitor-client costs under costs agreements
198F. Costs can be awarded on indemnity basis for costs incurred after failure to accept offer of compromise
198G. Court may order certain legal services to be excluded from maximum costs limitation
198H. Apportionment of maximum costs between solicitors and barristers
198I. Meaning of “amount recovered” on a claim
Division 5C - Costs in civil claims where no reasonable prospects of success
198J. Solicitor or barrister not to act unless there are reasonable prospects of success
198K. Preliminary legal work not affected
198L. Restrictions on commencing proceedings without reasonable prospects of success
198M. Costs order against solicitor or barrister who acts without reasonable prospects of success
198N. Onus on solicitor or barrister to show facts provided reasonable prospects of success
Division 6 - Assessment of costs
Subdivision 1 - Applications and referrals for assessment
199. Applications by clients for assessment of costs in bills
200. Applications by instructing practitioners for assessment of costs in bills
201. Application for assessment of costs by barrister or solicitor giving bill
202. Application for assessment of party/party costs
203. How is an application to be made?
204. Persons to be notified of application
205. (Repealed)
206. Referral of matters to costs assessors
207. Costs assessor may require documents or further particulars
208. Consideration of applications by costs assessors
Subdivision 2 - Assessments of bills of costs
208A. Assessment of bills generally
208B. Additional matters to be considered by costs assessors in assessing bills of costs
208C. Costs agreements not subject to assessment
208D. Unjust costs agreements
208E. Interest on amount outstanding
Subdivision 3 - Assessment of party/party costs
208F. Assessment of costs-costs ordered by court or tribunal
208G. Additional matters to be considered by costs assessors in assessing costs ordered by court or tribunal
208H. Effect of costs agreements in assessments of party/party costs
208I. Court or tribunal may specify amount etc
Subdivision 4 - Enforcement of assessment
208J. Certificate as to determination
208JAA. Reasons for determination
208JA. Recovery of costs of costs assessment
208JB. Correction of error in determination
208K. Determination to be final
Subdivision 4A - Review of determination by panel
208KA. Application for review of determination
208KB. Referral of application to panel
208KC. General functions of panel in relation to review application
208KD. Relevant documents to be produced to panel
208KE. Effect of review on costs assessor’s determination
208KF. Certificate as to determination of panel
208KG. Reasons for determination
208KH. Recovery of costs of review
208KHA. Correction of error in determination
208KI. Appeal against determination
208KJ. Regulations
208KL. Miscellaneous
Subdivision 4B - Appeals
208L. Appeal against decision of costs assessor as to matter of law
208M. Appeal against decision of costs assessor by leave
208N. Effect of appeal on application
208NA. Assessor can be a party to appeal
208NB. Notices of appeal
208NC. Court may refer unreviewed determination to review panel
Subdivision 5 - Miscellaneous
208O. Costs fixed by regulations
208P. Liability of barrister or solicitor for costs
208Q. Referral of misconduct to Commissioner
208R. Rules of procedure for applications
208S. Costs assessors
208SA. Protection from liability
208T. Confidentiality
208U. Costs of administering Part
208V. Application of Division
209. (Repealed)
PART 12 - MISCELLANEOUS
209A. Qualifications of auditors
209B. (Repealed)
209C. Supreme Court may order delivery up of documents etc
210. Contempt of the Supreme Court
211. Protection from liability
211A. Delegation of functions of Chief Justice
212. Offences
213. Proof of certain matters not required
213A. Evidentiary certificates
214. Repeals
215. Savings and transitional provisions
216. Regulations
SCHEDULE 1
SCHEDULE 2
Schedule 2A (Repealed)
SCHEDULE 3
SCHEDULE 3A
Schedule 6 (Repealed)
SCHEDULE 7
SCHEDULE 8