LEGAL PROFESSION AMENDMENT ACT 2005 - SCHEDULE 5
This legislation has been repealed.
LEGAL PROFESSION AMENDMENT ACT 2005 - SCHEDULE 5
SCHEDULE 5 – Amendment of Chapter 5 of Legal Profession Act 2004
[1] Section 611 Definitions
Omit paragraph (d) of the definition of
"regulated property" in section 611 (1).
Insert instead:
(d) any computer hardware or software, or other device, in the custody or control of the practice by which any records referred to in paragraph (c) may be produced or reproduced in visible form.
[2] Section 611 (2)
Omit "this Part". Insert instead "this Chapter".
[3] Section 616 Determination regarding external intervention
Omit ", owners and employees" from section 616 (1).
[4] Section 616 (2) (b)
Omit the paragraph. Insert instead:
(b) to appoint a manager for the law practice, if the Council is of the opinion:(i) that external intervention is required because of issues relating to the practice's trust records, or(ii) that the appointment is necessary to protect the interests of clients in relation to trust money or trust property, or(iii) that there is a need for an independent person to be appointed to take over professional and operational responsibility for the practice, or
[5] Section 617 Appointment of supervisor
Omit section 617 (3) (a). Insert instead:
(a) an Australian legal practitioner who holds an unrestricted practising certificate, or
[6] Section 619 Effect of service of notice of appointment
Insert "or a nominee of the supervisor" after "the supervisor" wherever occurring in section 619 (1).
[7] Section 620 Role of supervisor
Omit section 620 (1). Insert instead:
(1) A supervisor for a law practice has the powers and duties of the practice in relation to trust money, including powers:(a) to receive trust money entrusted to the practice, and(b) to open and close trust accounts.
[8] Section 622 Termination of supervisor's appointment
Insert after section 622 (1) (a):
(a1) the appointment is set aside on appeal under section 649,
[9] Section 623 Appointment of manager
Omit "The appointee" from section 623
(3).
Insert instead "Subject to subsection (3A), the appointee".
[10] Section 623 (3)
Omit "Council".
[11] Section 623 (3A)
Insert after section 623 (3):
(3A) In the case of the appointment of a manager for a law practice that consists of a barrister, the appointee may (but need not) be an employee of the Bar Association and need not be an Australian lawyer or the holder of an Australian practising certificate.
[12] Section 625 Effect of service of notice of appointment
Omit section 625 (2) (a)-(c). Insert instead:
(a) the withdrawal or transfer is made by cheque or other instrument drawn on that account signed by:(i) the manager, or(ii) a receiver appointed for the practice, or(iii) a nominee of the manager or receiver, or
(b) the withdrawal or transfer is made by means of electronic or internet banking facilities, by:(i) the manager, or(ii) a receiver appointed for the practice, or(iii) a nominee of the manager or receiver, or
(c) the withdrawal or transfer is made in accordance with an authority to withdraw or transfer funds from the account signed by:(i) the manager, or(ii) a receiver appointed for the practice, or(iii) a nominee of the manager or receiver.
[13] Section 629 Termination of manager's appointment
Insert after section 629 (1) (a):
(a1) the appointment is set aside on appeal under section 649,
[14] Section 630 Appointment of receiver
Insert "an officer or employee of a party," after "party," where firstly occurring in section 630 (4) (b).
[15] Section 630 (5)
Insert "either" after "must be".
[16] Section 630 (5) (a)
Omit the paragraph. Insert instead:
(a) an Australian legal practitioner who holds an unrestricted practising certificate, or
[17] Section 631 Notice of appointment
Insert after section 631 (2) (c):
(c1) indicate the extent to which the receiver has the powers of a manager for the practice, and
[18] Section 632 Effect of service of notice of appointment
Omit section 632 (2) (a)-(c). Insert instead:
(a) the withdrawal or transfer is made by cheque or other instrument drawn on that account signed by:(i) the receiver, or(ii) a manager appointed for the practice, or(iii) a nominee of the receiver or manager, or
(b) the withdrawal or transfer is made by means of electronic or internet banking facilities, by:(i) the receiver, or(ii) a manager appointed for the practice, or(iii) a nominee of the receiver or manager, or
(c) the withdrawal or transfer is made in accordance with an authority to withdraw or transfer funds from the account signed by:(i) the receiver, or(ii) a manager appointed for the practice, or(iii) a nominee of the receiver or manager.
[19] Section 633 Role of receiver
Omit "authorise" from section 633 (2) (b).
[20] Section 633 (5)-(7)
Insert after section 633 (4):
(5) For the purpose of exercising his or her powers under this section, the receiver may exercise any or all of the following powers:(a) to enter and remain on premises used by the law practice for or in connection with its engaging in legal practice,(b) to require the practice, an associate or former associate of the practice or any other person who has or had control of client files and associated documents (including documents relating to trust money received by the practice) to give the receiver:(i) access to the files and documents the receiver reasonably requires, and(ii) information relating to client matters the receiver reasonably requires,(c) to operate equipment or facilities on the premises, or to require any person on the premises to operate equipment or facilities on the premises, for a purpose relevant to his or her appointment,(d) to take possession of any relevant material and retain it for as long as may be necessary,(e) to secure any relevant material found on the premises against interference, if the material cannot be conveniently removed,(f) to take possession of any computer equipment or computer program reasonably required for a purpose relevant to his or her appointment.
(6) If the receiver takes anything from the premises, the receiver must issue a receipt in a form approved by the Law Society Council and:(a) if the occupier or a person apparently responsible to the occupier is present at or near the premises, give it to him or her, or(b) otherwise, leave it at the premises in an envelope addressed to the occupier.
(7) If the receiver is refused access to the premises or the premises are unoccupied, the receiver may use whatever appropriate force is necessary to enter the premises and may be accompanied by a member of the police force to assist entry.
[21] Section 638 Power of receiver to require documents or information
Omit
"having" from section 638 (1) (b).
Insert instead "who has or has had".
[22] Section 640 Lien for costs on regulated property
Insert "the practice or" before "a legal" in section 640 (1) (b).
[23] Section 640 (2)
Insert "law practice or" before "legal".
[24] Section 640 (2)
Insert "practice or" before "associate to".
[25] Section 640 (3)
Insert "law practice or" before "legal".
[26] Section 640 (3)
Insert "practice or" before "associate to".
[27] Section 642 Recovery of regulated property where there has been a breach of trust etc
Insert "paid to," after "taken by," in section 642 (1).
[28] Section 643 Improperly destroying property etc
Omit "purpose". Insert instead "operation".
[29] Section 645 Termination of receiver's appointment
Insert ", on application by the Law Society Council or the receiver made at any time," after "may" in section 645 (2).
[30] Section 645 (2A) and (2B)
Insert after section 645 (2):
(2A) A receiver for a law practice must apply to the Supreme Court for termination of the appointment when the affairs of the practice have been wound up and terminated, unless the term (if any) of the appointment has already come to an end.
(2B) The appointment of a receiver is not stayed by the making of an application under this section, and the receiver may accordingly continue to exercise his or her powers and functions as receiver pending the Supreme Court's decision on the application except to the extent (if any) that the Court otherwise directs.
[31] Section 649 Appeal against appointment
Insert after section 649 (3):
(4) The appointment of a supervisor or manager is not stayed by the making of an appeal, and the supervisor or manager may accordingly continue to exercise his or her powers and functions as supervisor or manager during the currency of the appeal except to the extent (if any) that the Supreme Court otherwise directs.
[32] Section 650A
Insert after section 650:
650A Manager and receiver appointed for law practice If a manager and a receiver are appointed for a law practice, any decision of the receiver prevails over any decision of the manager in the exercise of their respective powers, to the extent of any inconsistency.
[33] Section 651
Omit the section. Insert instead:
651 ADI records and information(1) An ADI at which a trust account is or has been maintained must without charge:(a) produce for inspection or copying by an external intervener any records relating to any such trust accounts or trust money deposited in any such trust account, and(b) provide the intervener with full details of any transactions relating to any such trust account or trust money,on demand by the intervener and on production to the ADI of evidence of the appointment of the intervener in relation to the law practice concerned.Maximum penalty: 50 penalty units.(2) Subsection (1) applies despite any rule of law or duty of confidence to the contrary.(3) An ADI or an officer or employee of an ADI is not liable to any action for any loss or damage suffered by another person as a result of producing records or providing details in accordance with subsection (1).