South Australian Consolidated Acts South Australian Consolidated Acts (1) In this Act,
unless the contrary intention appears—
"approved auditor"—see section 33;
"Australian Government Solicitor" means the Australian Government Solicitor
constituted under the Judiciary Act 1903 of the Commonwealth and includes
any person authorised by or under that Act to act in the name of the
Australian Government Solicitor;
"Board" means the Legal Practitioners Conduct Board continued in existence
under this Act;
"Chief Justice" means the Chief Justice of the Supreme Court and includes an
acting Chief Justice of the Supreme Court;
"the combined trust account" means the Legal Practitioners Combined
Trust Account maintained by the Society under Part 4;
"community legal centre" means a body established on a non-profit basis to
provide legal services to the community, or a section of the community;
"company" means a company incorporated or taken to be incorporated under the
Corporations Act 2001 of the Commonwealth that is taken to be registered
in South Australia for the purposes of that Act;
"conduct" of a legal practitioner includes any act or omission by the
legal practitioner;
"corresponding law" means a law of another State declared by proclamation
under this section to be a corresponding law;
"the Council" means the council of the Law Society;
"director" of a company includes any person occupying or acting in the
position of director of the company whether validly appointed to occupy or
duly authorised to act in that position or not, and includes any person in
accordance with whose directions or instructions the directors of the company
are accustomed to act;
"document" means book, file, account, paper (including a security or any
instrument) or any record of information, whether in writing or accessible
only through the use of a computer or other device;
"domestic partner" means a person who is a domestic partner within the meaning
of the Family Relationships Act 1975 , whether declared as such under
that Act or not;
"elective officer" of the Society means an officer of the Society elected by
the members of the Society in accordance with its rules;
"the Executive Director" of the Society means the principal executive officer
employed by the Society and includes any person who is, for the time being,
discharging the duties of that officer;
"fiduciary or professional default" in relation to a legal practitioner
means—
(a) any
defalcation, misappropriation or misapplication of trust money received in the
course of legal practice by the legal practitioner or a firm of which the
legal practitioner is a member; or
(b) any
wrongful or negligent act or omission occurring in the course of the practice
of the legal practitioner, or a firm of which the legal practitioner is a
member,
whether committed by the legal practitioner, an employee of the legal
practitioner or any other person;
"the guarantee fund" means the Legal Practitioners' Guarantee Fund maintained
by the Society under Part 4;
"interstate legal practitioner" means a natural person—
(a) who
has been admitted as a legal practitioner in a participating State; and
(b) who
holds an interstate practising certificate issued or given by a
regulatory authority in that State or is entitled by admission or otherwise to
practise the profession of the law in that State; and
(c) who
is not a local legal practitioner; and
(d)
whose principal place of legal practice is not this State;
"interstate practising certificate" means a certificate or other form of
authorisation issued by a regulatory authority in a participating State that
confers an authority to practise the profession of the law in that State,
whether that authority is general or subject to limitations or conditions;
"the Law Society" or "the Society" means The Law Society of South Australia ;
"legal costs" includes disbursements;
"legal practitioner" or "practitioner" means—
(a) a
person duly admitted and enrolled as a barrister and solicitor of the Supreme
Court; or
(ab) an
interstate legal practitioner who practises the profession of the law in this
State; or
(b) a
company that holds a practising certificate;
"local legal practitioner" means a legal practitioner who holds a
practising certificate;
"LPEAC" means the Legal Practitioners Education and Admission Council
established under Division 1 of Part 2A;
"Master" means a master of the Supreme Court;
"money" includes any instrument for the payment of money that may be
negotiated by an ADI;
"mortgage financing" means facilitating a loan secured by mortgage by—
(a)
acting as an intermediary to match a prospective lender and borrower; and
(b)
subsequently arranging the loan; and
(c)
receiving or dealing with payments for the purposes of, or under, the loan,
but does not include the provision of legal advice or the preparation of an
instrument;
"participating State" means a State in which a corresponding law is in force;
"practise the profession of the law", "legal
practice" or " practise", in relation to a legal practitioner—see
section 21;
"practising certificate" means a practising certificate issued under Part 3;
"regulatory authority" means—
(a) in
relation to this State—the Supreme Court, LPEAC, the Society, the Board
or the Tribunal;
(b) in
relation to a participating State—a person or body in that State having
a function conferred by legislation relating to regulation of legal practice
that corresponds to a function exercised under this Act by a regulatory
authority of this State;
"solicitor" includes attorney and proctor;
"spouse"—a person is the spouse of another if they are legally married;
"State" includes a Territory;
"the statutory interest account" means the Statutory Interest Account
maintained by the Society under Part 4;
"the Tribunal" means the Legal Practitioners Disciplinary Tribunal established
under Part 6;
"trust account" means an account maintained at an ADI by a legal practitioner
under Part 3;
"trust money" means money received by a legal practitioner to which the
practitioner is not wholly entitled both at law and in equity, but does not
include money received by a practitioner in the course of mortgage financing;
"unprofessional conduct", in relation to a legal practitioner, means—
(a) an
offence of a dishonest or infamous nature committed by the legal practitioner
in respect of which punishment by imprisonment is prescribed or authorised by
law; or
(b) any
conduct in the course of, or in connection with, practice by the
legal practitioner that involves substantial or recurrent failure to meet the
standard of conduct observed by competent legal practitioners of good repute;
"unqualified person" means a person (including a body corporate) who is not
entitled to practise the profession of the law;
"unsatisfactory conduct", in relation to a legal practitioner, means conduct
in the course of, or in connection with, practice by the legal practitioner
that is less serious than unprofessional conduct but involves a failure to
meet the standard of conduct observed by competent legal practitioners of good
repute.
(2) If under a
corresponding law an interstate legal practitioner's right to practise does
not derive from the holding of an interstate practising certificate, then a
reference in this Act to an interstate practising certificate, or the
endorsement of a condition on an interstate practising certificate, is to be
read as a reference to the practitioner's right to engage in legal practice
under that law or to the imposition of a condition on that right.
(3) For the purposes
of this Act, a legal practitioner establishes an office in a State when the
practitioner offers or provides services in the course of legal practice to
the public in the State from an office maintained by the practitioner, or by
the employer or a partner of the practitioner, for the purpose in the State.
(4) A reference in
this Act to trust money received by a legal practitioner includes a reference
to—
(a)
money coming under the direct control of the legal practitioner, whether or
not by the exercise of an express power or authority or by operation of law;
and
(b)
money paid on the advice of the legal practitioner to a person in a prescribed
relationship with the legal practitioner, but only if the money comes under
the indirect control of the legal practitioner through the prescribed
relationship or otherwise; and
(c)
money in relation to which the legal practitioner (whether directly or through
a person in a prescribed relationship with the legal practitioner) has a power
of disposal exercisable jointly and severally with the person on whose behalf
it was received or a nominee of the person.
(5) For the purposes
of subsection (4), a person will be taken to be in a prescribed
relationship with a legal practitioner if the person is—
(a) a
partner of the legal practitioner (whether or not the person is a
legal practitioner); or
(b) an
employee or agent of the legal practitioner, or a director of the
legal practitioner (being a body corporate); or
(c) a
body corporate, or a member of a body corporate, partnership, syndicate or
joint venture, in which the legal practitioner or a person referred to in
paragraph (a), (b) or (f) has a beneficial interest; or
(d) a
co-trustee of the legal practitioner; or
(e) a
related body corporate (within the meaning of the Corporations Act 2001
of the Commonwealth) of a person referred to in a preceding paragraph that is
a body corporate; or
(f) the
legal practitioner's spouse or domestic partner or a child, grandchild,
sibling, parent or grandparent of the legal practitioner or of the
legal practitioner's spouse or domestic partner; or
(g) a
person of a class prescribed by the regulations.
(6) The Governor may,
by proclamation, declare a law of another State to be a corresponding law and
may, by subsequent proclamation, vary or revoke any such declaration.