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Queensland
QUEENSLAND LAW
SOCIETY LEGISLATION
AMENDMENT BILL (No. 2)
1996
Queensland
QUEENSLAND LAW SOCIETY
LEGISLATION AMENDMENT BILL
(No. 2) 1996
TABLE OF PROVISIONS
Section Page
PART 1--PRELIMINARY
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
PART 2--AMENDMENT OF QUEENSLAND LAW SOCIETY
ACT 1952
3 Act amended in pt 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
4 Amendment of s 3 (Definitions) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5 Insertion of new s 3B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3B Meaning of "unprofessional conduct or practice" . . . . . . . . . . . . . . . 7
6 Amendment of s 5 (Council of the society) . . . . . . . . . . . . . . . . . . . . . . . . . 7
7 Insertion of new ss 5E5J and 5N . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
5E Complaints against practitioners, their clerks and employees . . . . . 8
5F Council to investigate conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
5G Council's powers for investigations . . . . . . . . . . . . . . . . . . . . . . . . . . 9
5H Practitioners to comply with council's requirements . . . . . . . . . . . . 9
5I Council may facilitate mediation process if parties agree . . . . . . . . 10
5J Things council may do following investigation . . . . . . . . . . . . . . . . . 10
5N Delegation under pt 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
8 Replacement of heading . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
9 Replacement of ss 66S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Division 1--The tribunal and its functions
6 Solicitors complaints tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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Queensland Law Society Legislation Amendment
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6A Functions of tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Division 2--Membership of tribunal
6B Membership of tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Division 3--Hearings
6C Constitution of tribunal for hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
6D Conduct of hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
6E Who may bring charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6F Tribunal rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6G Notice of hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6H Right of appearance and representation . . . . . . . . . . . . . . . . . . . . . . . 15
6I Non-appearance of person charged . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6J Notice of claims for compensation to be given to tribunal . . . . . . . 15
6K Hearings involving allegations of overcharging . . . . . . . . . . . . . . . . 16
6L Hearings to be in public unless tribunal orders otherwise . . . . . . . . 16
Division 4--Tribunal's powers
6M Power to require attendance of witnesses etc. . . . . . . . . . . . . . . . . . . 17
6N Powers of tribunal relating to taking of evidence . . . . . . . . . . . . . . . 17
6O Contempt of tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6P Institution of proceedings by tribunal . . . . . . . . . . . . . . . . . . . . . . . . . 18
6Q Protection of members etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Division 5--Tribunal orders
6R Orders tribunal may make against a practitioner after
charge brought under this part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6S Orders tribunal may make against a practitioner's
employee after charge brought under this part . . . . . . . . . . . . . . . . . 21
6T Orders tribunal may make after practitioner struck off or
suspended outside Queensland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
6U Orders about costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
6V Form of order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
6W Orders to be filed in Supreme Court and are enforceable
as orders of the court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
6X Orders may be inspected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
6Y Service of orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
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Queensland Law Society Legislation Amendment
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Division 6--Appeals
6Z Appeal may be made to Court of Appeal . . . . . . . . . . . . . . . . . . . . . 23
Division 7--Other jurisdiction not affected
6AA Saving of jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Division 8--Other provisions about tribunal and tribunal members
6AB Judicial notice of tribunal and its members . . . . . . . . . . . . . . . . . . . . 24
6AC Duration of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
6AD Fees and expenses of lay members . . . . . . . . . . . . . . . . . . . . . . . . . . 25
PART 2B--LEGAL OMBUDSMAN
Division 1--The legal ombudsman and the ombudsman's functions
6AE Legal ombudsman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
6AF Functions of the legal ombudsman . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
6AG Department to provide administrative support . . . . . . . . . . . . . . . . . . 27
6AH Legal ombudsman may refuse to investigate certain complaints . . 27
Division 2--Legal ombudsman's powers
6AI Legal ombudsman's powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Division 3--Other provisions about legal ombudsman
6AJ Duration of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
6AK Acting legal ombudsman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
6AL Fees and expenses of legal ombudsman . . . . . . . . . . . . . . . . . . . . . . 29
6AM Annual report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
PART 2C--TRUST ACCOUNTS AND TRUST PROPERTY
10 Amendment of s 8 (Recovery of fees etc.) . . . . . . . . . . . . . . . . . . . . . . . . . . 30
11 Relocation and renumbering of ss 79 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
12 Insertion of new s 53 and pt 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
53 References to the statutory committee and solicitors
disciplinary tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
PART 6--TRANSITIONAL
54 Reopening of complaints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
55 Charges before the statutory committee or the solicitors
disciplinary tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
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Queensland Law Society Legislation Amendment
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PART 3--AMENDMENT OF LEGAL AID ACT 1978
13 Act amended in pt 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
14 Amendment of s 23 (Rights of officers of commission in respect
of legal practice) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
15 Amendment of s 81 (Secrecy) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
PART 4--AMENDMENT OF SUPREME COURT OF
QUEENSLAND ACT 1991
16 Act amended in pt 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
17 Amendment of sch 1 (Subject matter for rules) . . . . . . . . . . . . . . . . . . . . . . 33
PART 5--AMENDMENT OF TRUST ACCOUNTS ACT 1973
18 Act amended in pt 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
19 Amendment of s 25 (As to right of auditors and employees to
communicate certain matters) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SCHEDULE . . . . . . . . . . . . . . . . . . . . . . . . . 34
MINOR AMENDMENTS OF THE QUEENSLAND LAW
SOCIETY ACT 1952
1996
A BILL
FOR
An Act to amend the Queensland Law Society Act 1952, and for other
purposes
s1 6 s4
Queensland Law Society Legislation Amendment
(No. 2)
The Parliament of Queensland enacts-- 1
PART 1--PRELIMINARY 2
title 3
Short
Clause 1. This Act may be cited as the Queensland Law Society Legislation 4
Amendment Act (No. 2) 1996. 5
6
Commencement
Clause 2. This Act commences on a day to be fixed by proclamation. 7
ART 2--AMENDMENT OF QUEENSLAND LAW 8
P
SOCIETY ACT 1952 9
amended in pt 2 10
Act
Clause 3. This part and the schedule amend the Queensland Law Society Act 11
1952. 12
of s 3 (Definitions) 13
Amendment
Clause 4.(1) Section 3, definition "statutory committee"-- 14
omit. 15
(2) Section 3-- 16
insert-- 17
` "legal ombudsman" see section 6AE. 18
"solicitors complaints tribunal" see section 6. 19
s5 7 s7
Queensland Law Society Legislation Amendment
(No. 2)
"State" includes Territory. 1
"unprofessional conduct or practice" see section 3B.'. 2
(3) Section 3, definition "tribunal", `Solicitors Disciplinary Tribunal 3
established under this Act'-- 4
omit, insert-- 5
`solicitors complaints tribunal'. 6
of new s 3B 7
Insertion
Clause 5. In part 1, after section 3A-- 8
insert-- 9
of "unprofessional conduct or practice" 10
`Meaning
`3B.(1) A practitioner commits "unprofessional conduct or practice" 11
if the practitioner, in relation to the practitioner's practice, is guilty of-- 12
(a) serious neglect or undue delay; or 13
(b) the charging of excessive fees or costs; or 14
(c) failure to maintain reasonable standards of competence or 15
diligence. 16
`(2) Subsection (1) does not, by implication, limit the type of conduct or 17
practice that may be regarded as unprofessional for this Act.'. 18
of s 5 (Council of the society) 19
Amendment
Clause 6. Section 5(7), `section 18'-- 20
omit, insert-- 21
`sections 5N and 18'. 22
of new ss 5E5J and 5N 23
Insertion
Clause 7. After section 5D-- 24
insert-- 25
s7 8 s7
Queensland Law Society Legislation Amendment
(No. 2)
against practitioners, their clerks and employees 1
`Complaints
`5E.(1) A person ( "complainant") may make a written complaint to the 2
council about the conduct of a practitioner or a practitioner's clerk or 3
employee. 4
`(2) If a complainant claims to have suffered pecuniary loss because of a 5
practitioner's conduct, the complainant when making the written complaint 6
or at a later time before the complaint is finally dealt with-- 7
(a) may give notice of a claim for compensation against the 8
practitioner1 to the council; and 9
(b) if notice of the claim is given--must state, to the best of the 10
complainant's knowledge, the pecuniary loss suffered. 11
`(3) The council may require the complainant, within a reasonable stated 12
time-- 13
(a) to provide further details of the complaint, including any notice 14
about a claim for compensation, in the way the council reasonably 15
directs; and 16
(b) to verify the complaint by statutory declaration; and 17
(c) if the complaint alleges overcharging by the practitioner--to pay a 18
stated reasonable fee to cover the cost of a costs assessor's report 19
on the reasonableness of the practitioner's bill. 20
`(4) A complainant who fails to comply with a requirement under 21
subsection (3) is taken to have withdrawn the complaint immediately after 22
the reasonable stated time ends. 23
`(5) A complaint under this section must be made to the council within 24
3 years after the conduct complained of happens. 25
`(6) In this section-- 26
"conduct" means-- 27
(a) for a practitioner--alleged malpractice, professional misconduct, 28
1 Notice of a claim for compensation does not affect the complainant's rights to
pursue the claim at law (but see section 6R(6)) and, in particular, does not
affect the running of time for the Limitation of Actions Act 1974.
s7 9 s7
Queensland Law Society Legislation Amendment
(No. 2)
or unprofessional conduct or practice; or 1
(b) for a practitioner's clerk or employee--alleged misconduct or 2
default in relation to the practitioner's practice. 3
to investigate conduct 4
`Council
`5F.(1) The council must investigate a complaint made under section 5E. 5
`(2) The council may also investigate the conduct of a practitioner or a 6
practitioner's clerk or employee at any time if it considers the conduct may 7
amount to-- 8
(a) for a practitioner--malpractice, professional misconduct, or 9
unprofessional conduct or practice; or 10
(b) for a practitioner's clerk or employee--misconduct or default in 11
relation to the practitioner's practice. 12
powers for investigations 13
`Council's
`5G. The council may, for an investigation-- 14
(a) require a practitioner to give the council, in writing or personally, 15
within a stated reasonable time an explanation of the matter being 16
investigated; or 17
(b) require a practitioner to appear before the council at a stated 18
reasonable time and place; or 19
(c) require a practitioner to produce to the council within a stated 20
reasonable time any document in the practitioner's custody, 21
possession or control that the practitioner is entitled at law to 22
produce; or 23
(d) engage a costs assessor to report on the reasonableness of a 24
practitioner's bill of costs. 25
to comply with council's requirements 26
`Practitioners
`5H.(1) A practitioner must comply with a council requirement under 27
section 5G. 28
s7 10 s7
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`(2) If the practitioner fails to comply with the requirement, the council 1
may give the practitioner written notice that if the failure continues for a 2
further 14 days after the notice is given the practitioner may be dealt with 3
for professional misconduct. 4
`(3) If notice under subsection (2) is given and the failure continues for 5
the 14 day period-- 6
(a) the practitioner is taken to have committed professional 7
misconduct, unless the practitioner has a reasonable excuse for 8
not complying with the requirement within the period; and 9
(b) the council may bring a charge of professional misconduct 10
against the practitioner. 11
`(4) In a hearing before the tribunal about a charge of professional 12
misconduct, a copy of the notice mentioned in subsection (2) and any 13
enclosures with the notice is evidence of the matters in the notice and the 14
enclosures. 15
`(5) A practitioner may refuse to give the council an explanation of a 16
matter being investigated if the practitioner satisfies the council that to give 17
the explanation would contravene, or invalidate, a policy for professional 18
indemnity insurance held by the practitioner. 19
may facilitate mediation process if parties agree 20
`Council
`5I.(1) If the council considers that the matter of a complaint is capable 21
of resolution by mediation, the council may suggest to the complainant and 22
the person complained about (the "parties") that they enter into a process 23
of mediation to resolve the matter of the complaint. 24
`(2) If the parties agree to enter into a mediation process, the council may 25
facilitate the mediation to the extent it considers appropriate. 26
council may do following investigation 27
`Things
`5J. The council may do any of the following things after conducting an 28
investigation-- 29
(a) censure or admonish a practitioner; 30
s7 11 s7
Queensland Law Society Legislation Amendment
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(b) seek and obtain undertakings from a practitioner about the 1
complaint; 2
(c) if the complaint was an allegation of overcharging--recommend 3
to a practitioner that the practitioner-- 4
(i) reduce the practitioner's bill of costs or refund an amount to 5
the complainant; and 6
(ii) if the practitioner's bill of costs was assessed by a costs 7
assessor at the complainant's expense--pay to the 8
complainant an amount equal to the amount of the costs 9
assessor's fee; 10
(d) bring a charge of malpractice, professional misconduct or 11
unprofessional conduct or practice against a practitioner; 12
(e) bring a charge of misconduct or default in relation to a 13
practitioner's practice against a clerk or employee employed in 14
relation to that practice; 15
(f) dismiss the complaint and take no action in relation to the notice 16
of the claim for compensation. 17
under pt 2 18
`Delegation
`5N.(1) The council may delegate its powers under this part to-- 19
(a) a committee established under this Act; or 20
(b) an officer or employee of the society; or 21
(c) a practitioner. 22
`(2) However, the council may delegate its powers under subsection (1) 23
only if, in the council's opinion, the committee, officer or employee, or 24
practitioner is appropriately qualified to exercise the power.'. 25
s8 12 s9
Queensland Law Society Legislation Amendment
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of heading 1
Replacement
Clause 8. Heading before section 6-- 2
omit, insert-- 3
`PART 2A--SOLICITORS COMPLAINTS 4
TRIBUNAL'. 5
of ss 66S 6
Replacement
Clause 9. Sections 6 to 6S-- 7
omit, insert-- 8
`Division 1--The tribunal and its functions 9
complaints tribunal 10
`Solicitors
`6. The solicitors complaints tribunal (the "tribunal") is established. 11
of tribunal 12
`Functions
`6A. The tribunal's functions are-- 13
(a) to hear and decide charges of malpractice, professional 14
misconduct or unprofessional conduct or practice brought against 15
a practitioner; and 16
(b) to hear and decide charges of misconduct or default in relation to 17
a practitioner's practice brought against a clerk or employee 18
employed in relation to that practice. 19
`Division 2--Membership of tribunal 20
of tribunal 21
`Membership
`6B.(1) The tribunal consists of the following 12 members-- 22
(a) 9 practitioners, 1 of whom is to be appointed as the tribunal's 23
chairperson; 24
s9 13 s9
Queensland Law Society Legislation Amendment
(No. 2)
(b) 3 lay members. 1
`(2) A practitioner is eligible for appointment if the practitioner-- 2
(a) has been in actual practice in Queensland for at least 5 years; and 3
(b) is selected from a panel of 18 practitioners nominated by the 4
council. 5
`(3) A person is eligible for appointment as a lay member only if the 6
person-- 7
(a) is nominated by the Minister; and 8
(b) is not-- 9
(i) a lawyer; or 10
(ii) legally qualified; or 11
(iii) a public service officer. 12
`(4) The members, including the chairperson, are to be appointed by the 13
Governor in Council by gazette notice. 14
`Division 3--Hearings 15
of tribunal for hearing 16
`Constitution
`6C. A tribunal is constituted for a hearing by 3 members, 1 of whom 17
must be a lay member, sitting together. 18
of hearings 19
`Conduct
`6D.(1) The chairperson presides at all tribunal hearings at which the 20
chairperson is present. 21
`(2) If the chairperson is absent, the member chosen by the members 22
present is to preside. 23
`(3) The decision of the tribunal is the decision of the majority of its 24
members. 25
s9 14 s9
Queensland Law Society Legislation Amendment
(No. 2)
may bring charges 1
`Who
`6E. A charge against a practitioner or a practitioner's clerk or employee 2
may be brought only by-- 3
(a) the council; or 4
(b) the legal ombudsman. 5
rules 6
`Tribunal
`6F.(1) A hearing before the tribunal must be started and conducted 7
under its rules. 8
`(2) The tribunal may make rules for regulating its practice and 9
procedure. 10
`(3) A rule is subordinate legislation, and must be approved by the 11
Governor in Council. 12
of hearing 13
`Notice
`6G.(1) If the hearing of a charge is brought by the council or legal 14
ombudsman against a practitioner, clerk or employee, the tribunal must give 15
the prescribed period of notice of the time and place of the hearing to the 16
following persons-- 17
(a) the council; 18
(b) the legal ombudsman; 19
(c) the person charged; 20
(d) if the charge arose out of a complaint by a person (the 21
"complainant")--the complainant. 22
`(2) The tribunal must also give a copy of the charge and any notice of a 23
claim for compensation to-- 24
(a) the person charged; and 25
(b) if the charge was brought by the council--the legal ombudsman; 26
and 27
(c) if the charge was brought by the legal ombudsman--the council. 28
s9 15 s9
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`(3) The prescribed period of notice is the period prescribed under the 1
tribunal's rules for this section. 2
of appearance and representation 3
`Right
`6H. The following persons are entitled to appear before the tribunal at 4
the hearing-- 5
(a) the person charged; 6
(b) the person's lawyer; 7
(c) if the charge is brought by the council-- 8
(i) the council; and 9
(ii) the council's lawyer; 10
(d) if the charge is brought by the legal ombudsman-- 11
(i) the ombudsman; and 12
(ii) the ombudsman's lawyer; 13
(e) another person to whom the tribunal gives leave to appear. 14
of person charged 15
`Non-appearance
`6I. If the person charged has been given notice of the hearing under 16
section 6G and does not appear at the hearing, the tribunal may hear and 17
decide the charge in the person's absence. 18
of claims for compensation to be given to tribunal 19
`Notice
`6J.(1) This section applies if the hearing of a charge by the tribunal is 20
one in which notice of a claim for compensation against a practitioner has 21
been given by a complainant to-- 22
(a) the council under section 5E(2); or 23
(b) the legal ombudsman. 24
`(2) The council or, if the charge was brought by the legal ombudsman, 25
s9 16 s9
Queensland Law Society Legislation Amendment
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the ombudsman must give the tribunal a copy of the particulars of loss 1
received from the complainant. 2
involving allegations of overcharging 3
`Hearings
`6K.(1) This section applies if a hearing is concerned with an allegation 4
of overcharging by a practitioner and the council has not already engaged a 5
costs assessor to report on the reasonableness of the practitioner's bill of 6
costs. 7
`(2) The tribunal may-- 8
(a) require the complainant to pay a stated reasonable fee to cover the 9
cost of a costs assessor's report on the reasonableness of the 10
practitioner's bill; and 11
(b) engage a costs assessor to report on the reasonableness of the 12
practitioner's bill. 13
`(3) The tribunal may adjourn the hearing until the fee is paid and the 14
costs assessor's report is available. 15
to be in public unless tribunal orders otherwise 16
`Hearings
`6L.(1) Tribunal hearings must be held in public, unless the tribunal 17
orders otherwise. 18
`(2) The tribunal may make an order under subsection (3) if it is satisfied 19
that it is desirable to do so-- 20
(a) because of the confidential nature of the evidence or other matter; 21
or 22
(b) for another appropriate reason. 23
`(3) The tribunal may, by order-- 24
(a) direct that a hearing, or part of a hearing, is to be held in private; 25
and 26
(b) give directions about the persons who may be present at a hearing 27
held in private. 28
`(4) The tribunal may, by order, prohibit or restrict the publication of-- 29
s9 17 s9
Queensland Law Society Legislation Amendment
(No. 2)
(a) evidence given before the tribunal, whether the hearing was held 1
in public or in private; or 2
(b) matter contained in documents filed with, or received in evidence 3
by, the tribunal. 4
4--Tribunal's powers 5
`Division
to require attendance of witnesses etc. 6
`Power
`6M.(1) The tribunal may, on the application of a party to a hearing or of 7
its own initiative, issue an attendance notice requiring a person to appear 8
before the tribunal at a stated time and place to give evidence or to produce 9
documents. 10
`(2) A person served with an attendance notice must not, without 11
reasonable excuse, fail to attend as required by the notice and continue to 12
attend as required by the presiding member until excused from further 13
attendance. 14
Maximum penalty for subsection (2)--80 penalty units. 15
`(3) In this section-- 16
"party" means-- 17
(a) the person bringing the charge; or 18
(b) the person against whom the charge is brought. 19
of tribunal relating to taking of evidence 20
`Powers
`6N.(1) For the hearing, the tribunal may-- 21
(a) take evidence on oath; or 22
(b) require a person appearing before the tribunal to give evidence to 23
take an oath; or 24
(c) administer an oath to a person appearing before the tribunal. 25
`(2) A person appearing as a witness at a tribunal hearing must not, 26
without reasonable excuse-- 27
s9 18 s9
Queensland Law Society Legislation Amendment
(No. 2)
(a) fail to be sworn; or 1
(b) fail to answer a question that the person is required to answer by 2
the tribunal; or 3
(c) fail to produce a document that the person was required to 4
produce by an attendance notice served on the person. 5
Maximum penalty for subsection (2)--80 penalty units. 6
of tribunal 7
`Contempt
`6O. A person must not-- 8
(a) insult the tribunal or a tribunal member in relation to the 9
performance of the member's functions as a member; or 10
(b) deliberately interrupt a tribunal hearing; or 11
(c) create or continue, or join in creating or continuing, a disturbance 12
in or near a place where the tribunal is sitting; or 13
(d) do anything that would, if the tribunal were a court of record, 14
constitute a contempt of that court. 15
Maximum penalty--100 penalty units. 16
of proceedings by tribunal 17
`Institution
`6P.(1) The tribunal may, in its own name or by its agent, bring a 18
proceeding for the imposition or enforcement of a penalty under this 19
division. 20
`(2) This section does not, by implication, affect the council's power 21
under section 5D to bring a proceeding for the imposition or enforcement of 22
a penalty under this division. 23
of members etc. 24
`Protection
`6Q.(1) A tribunal member has, in the performance of the member's 25
duties as a member, the same protection and immunity as a Supreme Court 26
judge carrying out the functions of a judge. 27
s9 19 s9
Queensland Law Society Legislation Amendment
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`(2) A person representing a person before the tribunal has the same 1
protection and immunity as a barrister appearing for a party in a proceeding 2
in the Supreme Court. 3
`(3) A person appearing before the tribunal as a witness has the same 4
protection as a witness in a proceeding in the Supreme Court. 5
`(4) A document produced at, or used for, a hearing has the same 6
protection during the hearing it would have if produced before the Supreme 7
Court. 8
5--Tribunal orders 9
`Division
tribunal may make against a practitioner after charge 10
`Orders
brought under this part 11
`6R.(1) The tribunal may make any of the following orders in relation to 12
a practitioner the tribunal finds guilty of a charge brought under this Act-- 13
(a) an order that the practitioner be struck off the roll of solicitors; 14
(b) an order that the practitioner be suspended from practice, with or 15
without conditions; 16
(c) an order that the practitioner pay a penalty of not more than 17
$100 000 to the fund; 18
(d) a compensation order directing the practitioner to pay a stated 19
amount to the complainant; 20
(e) an order that the practitioner waive or repay the whole or part of 21
any fees or costs paid by or charged to a stated person; 22
(f) an order that the practitioner pay to a complainant the amount the 23
complainant paid to-- 24
(i) the council under section 5E(3)(c); or 25
(ii) the tribunal under section 6K(2)(a); 26
(g) an order that the practitioner carry out stated work for a stated 27
person either free of charge or for a stated fee; 28
(h) an order that the practitioner waive any lien in relation to a stated 29
s9 20 s9
Queensland Law Society Legislation Amendment
(No. 2)
document or class of documents, with or without conditions; 1
(i) if an order under paragraph (a) is not made--an order that the 2
practitioner-- 3
(i) make the practitioner's practice documents available for 4
inspection at the times and by the persons stated in the order; 5
or 6
(ii) make reports about the practitioner's practice in a way and at 7
the times and to the persons stated in the order; or 8
(iii) comply with stated conditions, including, for example, 9
attendance at legal education programs. 10
`(2) The tribunal may also censure a practitioner it finds guilty of a 11
charge under this Act, if it does not order the practitioner to be struck off the 12
roll of solicitors. 13
`(3) The tribunal may order that no further action be taken against the 14
practitioner, whether or not the tribunal finds the practitioner guilty of a 15
charge brought under this Act. 16
`(4) The tribunal may make a compensation order only if it is satisfied 17
that-- 18
(a) a complainant has suffered pecuniary loss because of the 19
practitioner's malpractice, professional misconduct, or 20
unprofessional conduct or practice; and 21
(b) the complainant has given notice of a claim for compensation, 22
and particulars of the complainant's loss, to the council or the 23
legal ombudsman. 24
`(5) The amount payable under a compensation order must not be more 25
than $7 000 or a higher amount prescribed under a regulation. 26
`(6) A compensation order made by the tribunal under this section does 27
not affect the claimant's right to recover damages for the same loss in other 28
proceedings, but-- 29
(a) the amount paid under the compensation order must be taken into 30
account in the other proceedings; and 31
(b) the tribunal's findings giving rise to the compensation order are 32
s9 21 s9
Queensland Law Society Legislation Amendment
(No. 2)
not binding on the court or decision-making body in the other 1
proceedings. 2
`(7) In this section-- 3
"legal education programs" includes educational programs and seminars 4
relating to legal education, practice management and other related 5
topics in relation to the conduct of a practitioner's practice. 6
"practice documents", of a practitioner, includes the ledgers, books of 7
account, records, deeds, files and other documents relating to the 8
practitioner's practice. 9
tribunal may make against a practitioner's employee after 10
`Orders
charge brought under this part 11
`6S.(1) If the tribunal finds a practitioner's employee guilty of a charge 12
brought against the employee under this Act, the tribunal may order that on 13
and from a stated day a person must not employ the employee in relation to 14
a practitioner's practice except on the conditions (if any) stated in the order. 15
`(2) The tribunal may order that no further action be taken against the 16
employee, whether or not the tribunal finds the employee guilty of a charge 17
brought under this Act. 18
`(3) In this section-- 19
"employee", of a practitioner, includes the practitioner's clerk. 20
tribunal may make after practitioner struck off or suspended 21
`Orders
outside Queensland 22
`6T.(1) This section applies if a practitioner is struck off an interstate roll 23
or suspended from practice in another State. 24
`(2) The tribunal may order the practitioner be struck off the roll or 25
suspended for a similar period in this State, unless the practitioner satisfies 26
the tribunal the practitioner should not be struck off or suspended. 27
`(3) In this section-- 28
"interstate roll" means the roll of barristers or solicitors or barristers and 29
solicitors in another State. 30
s9 22 s9
Queensland Law Society Legislation Amendment
(No. 2)
about costs 1
`Orders
`6U.(1) The tribunal may make an order about costs in a hearing under 2
this part it considers appropriate. 3
`(2) Without limiting subsection (1), the tribunal may-- 4
(a) fix the amount of costs, or any part of the costs; or 5
(b) direct that the costs be assessed by a costs assessor and, after 6
assessment, be referred back to the tribunal for further order; or 7
(c) direct that the costs be taxed. 8
`(3) Costs in relation to a hearing are chargeable as if the matter were 9
before the Supreme Court, unless the tribunal otherwise orders. 10
of order 11
`Form
`6V. A tribunal order must-- 12
(a) be signed by the presiding member; and 13
(b) state the tribunal's findings in relation to the facts of the case. 14
to be filed in Supreme Court and are enforceable as orders of 15
`Orders
the court 16
`6W.(1) A tribunal order-- 17
(a) must be filed in a Supreme Court registry; and 18
(b) on being filed, is taken to be an order of the Supreme Court and 19
may be enforced accordingly. 20
`(2) Subsection (1)(b) is subject to section 6R(6)(b). 21
may be inspected 22
`Orders
`6X. A tribunal order filed in the Supreme Court registry may be 23
inspected on payment of the fee (if any) prescribed under the Rules of the 24
Supreme Court. 25
s9 23 s9
Queensland Law Society Legislation Amendment
(No. 2)
of orders 1
`Service
`6Y.(1) The person bringing a charge must give a copy of a tribunal 2
order relating to the charge to the following persons-- 3
(a) if a person against whom the order was made was not present at 4
the time the order was made--the person; 5
(b) the legal ombudsman, unless the ombudsman brought the charge; 6
(c) the council, unless the council brought the charge; 7
(d) the Minister. 8
`(2) Service may be effected on the Minister by giving a copy of the 9
order to the chief executive. 10
`(3) A copy of the order must be served within 7 days after the order is 11
made. 12
`Division 6--Appeals 13
may be made to Court of Appeal 14
`Appeal
`6Z.(1) A party dissatisfied with a tribunal decision may appeal the 15
decision to the Court of Appeal. 16
`(2) An appeal is by way of rehearing, unless all parties to the appeal 17
accept the facts as found by the tribunal. 18
`(3) The appeal must be made-- 19
(a) if the dissatisfied party is the Minister--within 30 days after a 20
copy of the tribunal's order is served on the Minister under 21
section 6Y(2); or 22
(b) otherwise--within 28 days after the tribunal's order is made. 23
`(4) The appeal must be made and heard in accordance with rules of 24
court made for this Act. 25
`(5) Without limiting subsection (4), the rules may provide for the extent 26
to which any record of the proceeding before the tribunal may be used for 27
the appeal. 28
s9 24 s9
Queensland Law Society Legislation Amendment
(No. 2)
`(6) In this section-- 1
"dissatisfied party" means-- 2
(a) the practitioner or the practitioner's clerk or employee affected by 3
the tribunal's decision; or 4
(b) the Minister; or 5
(c) the council; or 6
(d) the legal ombudsman. 7
7--Other jurisdiction not affected 8
`Division
of jurisdiction 9
`Saving
`6AA.(1) This Act does not affect the jurisdiction or powers exercisable 10
by the court, the registrar or the department over practitioners. 11
`(2) This Act does not affect the entitlement of a person to apply to the 12
court-- 13
(a) to strike a practitioner off the roll; or 14
(b) to require a practitioner to answer allegations contained in an 15
affidavit. 16
`(3) Subsection (2) applies whether or not the matter complained of was 17
the subject of a complaint to the council or the legal ombudsman. 18
`(4) However, the court may refer any charges arising out of the 19
application to the council for reference to the tribunal in the way provided by 20
this Act. 21
`Division 8--Other provisions about tribunal and tribunal members 22
notice of tribunal and its members 23
`Judicial
`6AB. Every court must take judicial notice of the appointment of the 24
members of the tribunal and of the signature of a tribunal's presiding 25
member. 26
s9 25 s9
Queensland Law Society Legislation Amendment
(No. 2)
of appointment 1
`Duration
`6AC.(1) The appointment of a member is for the term, not longer than 2
3 years, decided by the Governor in Council. 3
`(2) However, a member may continue to hold office until the member's 4
successor assumes office, unless the member vacates office under 5
subsection (3) or the member's appointment is ended under subsection (4). 6
`(3) The office of a member becomes vacant if-- 7
(a) the member dies or resigns by signed notice of resignation given 8
to the secretary; or 9
(b) the member is found guilty of an indictable offence or an offence 10
against this Act; or 11
(c) the member's appointment is ended by the Governor in Council 12
under subsection (4). 13
`(4) The Governor in Council may, at any time, end the appointment of a 14
member for any reason or none. 15
and expenses of lay members 16
`Fees
`6AD. A lay member of the tribunal is entitled to be paid from 17
department funds-- 18
(a) fees for attendance at tribunal meetings and the discharge of the 19
member's functions under this Act approved by the Governor in 20
Council; and 21
(b) expenses necessarily and reasonably incurred by the member in 22
attending tribunal meetings or discharging the member's 23
functions under this Act and approved by the Minister. 24
s9 26 s9
Queensland Law Society Legislation Amendment
(No. 2)
`PART 2B--LEGAL OMBUDSMAN 1
`Division 1--The legal ombudsman and the ombudsman's functions 2
ombudsman 3
`Legal
`6AE.(1) The Governor in Council may appoint a person as the legal 4
ombudsman by gazette notice. 5
`(2) A person is not qualified for appointment as the legal ombudsman if 6
the person-- 7
(a) is, or has been, entitled to practise as a lawyer or is otherwise 8
qualified in law; or 9
(b) is a public service officer. 10
of the legal ombudsman 11
`Functions
`6AF.(1) The functions of the legal ombudsman are-- 12
(a) to monitor investigations by the council of-- 13
(i) alleged malpractice, professional misconduct or 14
unprofessional conduct or practice by practitioners; and 15
(ii) alleged misconduct or default in relation to practitioners' 16
practices by practitioners' clerks and employees; and 17
(b) to investigate complaints of alleged misconduct, improper 18
conduct or neglect of duty by the council about the way in which 19
the council has dealt with complaints or charges against 20
practitioners and practitioners' clerks and employees; and 21
(c) to monitor hearings before the tribunal. 22
`(2) If the legal ombudsman receives a written complaint, including a 23
notice about a claim for compensation, against a practitioner that has not 24
been investigated by the council, the ombudsman must forward the 25
complaint to the council for investigation. 26
s9 27 s9
Queensland Law Society Legislation Amendment
(No. 2)
to provide administrative support 1
`Department
`6AG. The department must, at the department's expense, provide the 2
administrative, including secretarial, support services that the department 3
considers appropriate to allow the legal ombudsman to discharge the 4
ombudsman's functions effectively and efficiently. 5
ombudsman may refuse to investigate certain complaints 6
`Legal
`6AH. The legal ombudsman may refuse to investigate the following 7
complaints-- 8
(a) a complaint about a decision of the council, a committee or the 9
tribunal made by a person more than 2 months after the person 10
was notified of the council's, committee's or tribunal's decision; 11
(b) a complaint the ombudsman considers-- 12
(i) is frivolous or vexatious; or 13
(ii) lacks substance. 14
`Division 2--Legal ombudsman's powers 15
ombudsman's powers 16
`Legal
`6AI.(1) The legal ombudsman may-- 17
(a) attend any meeting of the council or a committee established 18
under this Act to deal with complaints and take part in its 19
deliberations; or 20
(b) require the council to furnish the ombudsman with all 21
information in its possession or control that will enable the 22
ombudsman to discharge his or her functions; or 23
(c) direct the council to take additional steps in the investigation of a 24
complaint; or 25
(d) if the ombudsman considers, on reasonable grounds, that the 26
council should have brought a charge against a practitioner, 27
practitioner's clerk or employee before the tribunal--bring the 28
s9 28 s9
Queensland Law Society Legislation Amendment
(No. 2)
charge before the tribunal; or 1
(e) attend any hearing of the tribunal, including a hearing the tribunal 2
orders to be heard in private; or 3
(f) appeal a decision of the tribunal the ombudsman is dissatisfied 4
with; or 5
(g) appoint a lawyer to bring a charge against a practitioner, 6
practitioner's clerk or employee before the tribunal; or 7
(h) appoint a lawyer for an appeal against a tribunal decision. 8
`(2) The legal ombudsman is not entitled to vote at a meeting mentioned 9
in subsection (1)(a). 10
`(3) The council must comply with-- 11
(a) a requirement under subsection (1)(b); or 12
(b) a direction under subsection (1)(c). 13
`(4) Before the legal ombudsman exercises the power mentioned in 14
subsection (1)(d), the ombudsman must tell the council of the 15
ombudsman's intention to exercise the power and the ombudsman's 16
reasons for doing so. 17
`(5) In this section-- 18
"charge" means-- 19
(a) for a practitioner--a charge of malpractice, professional 20
misconduct, or unprofessional conduct or practice; or 21
(b) for a practitioner's clerk or employee--a charge of misconduct or 22
default in relation to the practitioner's practice. 23
3--Other provisions about legal ombudsman 24
`Division
of appointment 25
`Duration
`6AJ.(1) The appointment of the legal ombudsman is for the term, not 26
longer than 2 years, decided by the Governor in Council. 27
`(2) However, the legal ombudsman may continue to hold office until the 28
s9 29 s9
Queensland Law Society Legislation Amendment
(No. 2)
ombudsman's successor assumes office, unless the ombudsman vacates 1
office under subsection (3) or the ombudsman's appointment is ended 2
under subsection (4). 3
`(3) The office of the legal ombudsman becomes vacant if-- 4
(a) the ombudsman dies or resigns by signed notice of resignation 5
given to the Minister; or 6
(b) the ombudsman is found guilty of an indictable offence; or 7
(c) the ombudsman's appointment is ended by the Governor in 8
Council under subsection (4). 9
`(4) The Governor in Council may, at any time, end the appointment of 10
the legal ombudsman for any reason or none. 11
legal ombudsman 12
`Acting
`6AK. The Governor in Council may appoint a person, qualified for 13
appointment as the legal ombudsman, to act as legal ombudsman-- 14
(a) during a vacancy in the office; or 15
(b) during any period, or during all periods, when the legal 16
ombudsman is absent from duty or from the State or is, for 17
another reason, unable to perform the duties of the office. 18
and expenses of legal ombudsman 19
`Fees
`6AL.(1) The legal ombudsman is entitled to be paid-- 20
(a) the fees for the discharge of the ombudsman's functions under 21
this Act approved by the Governor in Council; and 22
(b) expenses necessarily and reasonably incurred by the ombudsman 23
in discharging the ombudsman's functions under this Act and 24
approved by the Minister. 25
`(2) The legal ombudsman's fees and expenses are payable out of the 26
legal practitioners' fidelity guarantee fund. 27
s 10 30 s 12
Queensland Law Society Legislation Amendment
(No. 2)
report 1
`Annual
`6AM.(1) The legal ombudsman must, not later than 4 months after the 2
end of each financial year, prepare and give to the Minister a report on the 3
discharge of the ombudsman's functions during the year. 4
`(2) The report may contain any recommendations the legal ombudsman 5
considers appropriate. 6
`(3) The Minister must table a copy of the report in the Legislative 7
Assembly within 14 days after receiving the report. 8
`PART 2C--TRUST ACCOUNTS AND TRUST 9
PROPERTY'. 10
of s 8 (Recovery of fees etc.) 11
Amendment
Clause 10. Section 8(2), after `penalties'-- 12
insert-- 13
`, other than a penalty payable under section 6R(1)(c),2'. 14
and renumbering of ss 79 15
Relocation
Clause 11. Sections 7, 8 (as amended by this Act) and 9-- 16
relocate to part 2 and renumber as sections 5K to 5M respectively. 17
of new s 53 and pt 6 18
Insertion
Clause 12. After section 52-- 19
insert-- 20
2 Section 6R (Orders tribunal may make against a practitioner after charge brought
under this part)
s 12 31 s 12
Queensland Law Society Legislation Amendment
(No. 2)
to the statutory committee and solicitors disciplinary 1
`References
tribunal 2
`53. In an Act or document, a reference to the statutory committee or the 3
solicitors disciplinary tribunal may, if the context permits, be taken to be a 4
reference to the solicitors complaints tribunal. 5
`PART 6--TRANSITIONAL 6
of complaints 7
`Reopening
`54.(1) If, before the commencement of this part, the council investigated 8
a complaint, the council may refuse to reopen the investigation even though 9
the council has, after the commencement, power to investigate aspects of 10
the complaint it did not have when the investigation was first done. 11
`(2) If, before the commencement of this part, the lay observer 12
investigated a complaint, the legal ombudsman may refuse to reopen the 13
investigation even though the ombudsman or the council has, after the 14
commencement, power to investigate aspects of the complaint the lay 15
observer or council did not have when the investigation was first done. 16
before the statutory committee or the solicitors disciplinary 17
`Charges
tribunal 18
`55.(1) This section applies if, at the commencement of this part, a 19
charge was before the statutory committee or the solicitors disciplinary 20
tribunal, but not fully dealt with. 21
`(2) The charge may be continued before the statutory committee or the 22
solicitors disciplinary tribunal and dealt with by the committee or tribunal as 23
if the Queensland Law Society Legislation Amendment Act (No. 2) 1996 24
had not been enacted.'. 25
s 13 32 s 16
Queensland Law Society Legislation Amendment
(No. 2)
ART 3--AMENDMENT OF LEGAL AID ACT 1978 1
P
amended in pt 3 2
Act
Clause 13. This part amends the Legal Aid Act 1978. 3
of s 23 (Rights of officers of commission in respect of 4
Amendment
legal practice) 5
Clause 14. Section 23(10), `Queensland Law Society Act 1952, section 6'-- 6
omit, insert-- 7
`Queensland Law Society Act 1952, to the extent parts 2, 2A and 2B 8
regulate the way in which complaints against practitioners for malpractice, 9
professional misconduct, or unprofessional conduct or practice may be 10
investigated and dealt with,'. 11
of s 81 (Secrecy) 12
Amendment
Clause 15.(1) Section 81(2A)(c)-- 13
omit. 14
(2) Section 81(2A)(e), `Solicitors Disciplinary Tribunal'-- 15
omit, insert-- 16
`solicitors complaints tribunal'. 17
ART 4--AMENDMENT OF SUPREME COURT OF 18
P
QUEENSLAND ACT 1991 19
amended in pt 4 20
Act
Clause 16. This part amends the Supreme Court of Queensland Act 1991. 21
s 17 33 s 19
Queensland Law Society Legislation Amendment
(No. 2)
of sch 1 (Subject matter for rules) 1
Amendment
Clause 17. Schedule 1, part 1, item 31-- 2
omit. 3
PART 5--AMENDMENT OF TRUST ACCOUNTS ACT 4
1973 5
amended in pt 5 6
Act
Clause 18. This part amends the Trust Accounts Act 1973. 7
of s 25 (As to right of auditors and employees to 8
Amendment
communicate certain matters) 9
Clause 19. Section 25, `statutory committee of the Queensland Law Society 10
Incorporated'-- 11
omit, insert-- 12
`solicitors complaints tribunal established'. 13
34
Queensland Law Society Legislation Amendment
(No. 2)
CHEDULE 1
¡S
MINOR AMENDMENTS OF THE QUEENSLAND 2
LAW SOCIETY ACT 1952 3
section 3 4
1. Section 3A, `6(4)'-- 5
omit, insert-- 6
`6Z'. 7
2. Section 4(7), `statutory committee'-- 8
omit, insert-- 9
`tribunal'. 10
3. Section 5C, `(including the statutory committee)'-- 11
omit. 12
4. Section 5D, heading, after `proceedings'-- 13
insert-- 14
`by council'. 15
5. Heading before section 8-- 16
omit. 17
6. Section 9, `(including the statutory committee)'-- 18
omit. 19
35
Queensland Law Society Legislation Amendment
(No. 2)
SCHEDULE (continued)
7. Section 15(c), `section 21'-- 1
omit, insert-- 2
`section 29'. 3
8. Section 29(1), `the insurance commissioner or'-- 4
omit. 5
9. Section 41(1)(g), `the statutory committee or'-- 6
omit. 7
10. Section 41B(1)(a), `statutory committee'-- 8
omit, insert-- 9
`tribunal'. 10
11. Section 41B(1)(g), `an order made by the statutory committee 11
or'-- 12
omit. 13
12. Section 48-- 14
omit. 15
© State of Queensland 1996
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