Victorian Consolidated Legislation

Legal Profession Act 2004 - SECT 1.2.1.

PART 1.2 INTERPRETATION

Definitions

1.2.1. Definitions



(1) In this Act-

ADI means an authorised deposit-taking institution within the meaning of the
Banking Act 1959 of the Commonwealth; admission rules means rules relating to
the admission of local lawyers and associated matters made under Division 5 of
Part 2.3;

admission to the legal profession means-

   (a)  admission by the Supreme Court under this Act as a lawyer; or

   (b)  admission by a Supreme Court under a corresponding law as-

   (i)  a lawyer; or

   (ii) a legal practitioner; or

   (iii) a barrister; or

   (iv) a solicitor; or

   (v)  a barrister and solicitor; or

   (vi) a solicitor and barrister- but does not include the grant of a
        practising certificate under this Act or a corresponding law; advocate
        member of the Board, means the member referred to in section
        6.2.8(1)(a); affairs of a law practice includes the following-

   (a)  all accounts and records required under this Act or the regulations to
        be maintained by the practice or an associate or former associate of
        the practice;

   (b)  other records of the practice or an associate or former associate of
        the practice;

   (c)  any transaction-

   (i)  to which the practice or an associate or former associate of the
        practice was or is a party; or

   (ii) in which the practice or an associate or former associate of the
        practice has acted for a party; amend includes-

   (a)  in relation to a practising certificate-

   (i)  impose a condition on the certificate; and

   (ii) vary or revoke a condition already imposed on the certificate;

   (b)  in relation to registration as a foreign lawyer-

   (i)  amend the lawyer's registration certificate; and

   (ii) impose a condition on the registration; and

   (iii) vary or revoke a condition already imposed on the registration;

appointed member of the Board, means a member of the Board referred to in
section 6.2.5(1)(c); approved external examiner has the meaning given in
section 3.3.51; associate, of a law practice, has the meaning given in section
1.2.4; audit year means the year ending on 31 October; Australian lawyer has
the meaning given in section 1.2.2(a); Australian legal practitioner has the
meaning given in section 1.2.3(a); Australian practising certificate means a
local practising certificate or an interstate practising certificate;
Australian-registered foreign lawyer means a locally registered foreign lawyer
or an interstate-registered foreign lawyer; Australian roll means the local
roll or an interstate roll; Australian trust account means a local trust
account or an interstate trust account; barrister means an Australian legal
practitioner who engages in legal practice solely as a barrister; Board means
Legal Services Board established by Part 6.2; Board of Examiners means Board
of Examiners under section 6.5.9; civil complaint has the meaning given in
section 4.2.2(1);

civil dispute has the meaning given in section 4.2.2(2); client includes a
person to whom or for whom legal services are provided;

Commissioner means Legal Services Commissioner appointed under Part 6.3;

community legal centre means an organisation, whether incorporated or not-

   (a)  that is held out or holds itself out as being a community legal centre
        (or a centre or establishment of a similar description); and

   (b)  that provides legal services-

   (i)  that are directed generally to persons or organisations that lack the
        financial means to obtain privately funded legal services or whose
        cases are expected to raise issues of public interest or are of
        general concern to disadvantaged groups in the community; and

   (ii) that are made available to persons or organisations that have a
        special need arising from their location or the nature of the legal
        matter to be addressed or have a significant physical or social
        disability; and

   (iii) that are not intended, or likely, to be provided at a profit to the
        community legal centre and the income (if any) from which cannot or
        will not be distributed to any member or employee of the centre
        otherwise than by way of reasonable remuneration under a contract of
        service or for services; compensation order has the meaning given in
        section 4.3.17(1)(a); complainant means a person who makes a
        complaint; complaint means a complaint made under Chapter 4;
        conditions means conditions, limitations or restrictions; conduct
        includes an act or omission; conduct complaint means a complaint to
        the extent that it is not a civil complaint; contributor class means a
        class determined by the Board under section 6.7.24; corporate legal
        practitioner means an Australian legal practitioner who engages in
        legal practice as an employee of a person who, or body that, is not an
        Australian legal practitioner, an Australian-registered foreign lawyer
        or a law practice, and who provides legal services only to, and for
        the purposes of, his or her employer; corresponding authority means-

   (a)  a person or body having functions under a corresponding law; or

   (b)  when used in the context of a person or body having functions under
        this Act (the local authority)-

   (i)  a person or body having corresponding functions under a corresponding
        law; and

   (ii) without limiting subparagraph (i), if the functions of the local
        authority relate to local lawyers or local legal practitioners
        generally or are limited to any particular class of local lawyers or
        local legal practitioners-a person or body having corresponding
        functions under a corresponding law regardless of whether they relate
        to interstate lawyers or interstate legal practitioners generally or
        are limited to any particular class of interstate lawyers or
        interstate legal practitioners; corresponding disciplinary body means-

   (a)  a court or tribunal having functions under a corresponding law that
        correspond to any of the disciplinary functions of the Tribunal; or

   (b)  the Supreme Court of another jurisdiction exercising-

   (i)  its inherent jurisdiction or powers in relation to the control and
        discipline of any Australian lawyers; or

   (ii) its jurisdiction or powers to make orders under a corresponding law of
        the other jurisdiction in relation to any Australian lawyers;





corresponding foreign law means-

   (a)  a law of a foreign country that corresponds to the relevant provisions
        of this Act or, if the regulations declare a law of a foreign country
        to be a law that corresponds to this Act, the law declared under those
        regulations for the foreign country;

   (b)  if the term is used in relation to a matter that happened before the
        commencement of the law of a foreign country that, under paragraph
        (a), is the corresponding law for the foreign country, a previous law
        applying to legal practice in the foreign country; corresponding law
        means-

   (a)  a law of another jurisdiction that corresponds to the relevant
        provisions of this Act or, if the regulations declare a law of another
        jurisdiction to be a law that corresponds to this Act, the law
        declared under those regulations for the other jurisdiction;

   (b)  if the term is used in relation to a matter that happened before the
        commencement of the law of another jurisdiction that, under paragraph
        (a), is the corresponding law for the other jurisdiction, a previous
        law applying to legal practice in the other jurisdiction; Costs
        Committee means Legal Costs Committee established under section
        3.4.25; costs dispute means a dispute referred to in section
        4.2.2(2)(a); Council means Council of Legal Education under section
        6.5.1; disciplinary complaint has the meaning given in section 4.2.3;
        disqualified person means any of the following persons, whether the
        thing that has happened to the person happened before or after the
        commencement of this definition-

   (a)  a person whose name has (whether or not at his or her own request)
        been removed from an Australian roll and who has not subsequently been
        admitted or re-admitted to the legal profession under this Act or a
        corresponding law; or

   (b)  a person whose Australian practising certificate has been suspended or
        cancelled under this Act or a corresponding law and who, because of
        the cancellation, is not an Australian legal practitioner or in
        relation to whom that suspension has not finished; or

   (c)  a person who has been refused a renewal of an Australian practising
        certificate under this Act or a corresponding law, and to whom an
        Australian practising certificate has not been granted at a later
        time; or

   (d)  a person who is the subject of an order under section 2.2.6 or an
        order under a corresponding law prohibiting a law practice from
        employing or paying the person in connection with the relevant
        practice; or

   (e)  a person who is the subject of an order under this Act or a
        corresponding law prohibiting an Australian legal practitioner from
        being a partner of the person in a business that includes the
        practitioner's practice; or

   (f)  a person who is the subject of an order under section 2.7.25 or 2.7.50
        or under provisions of a corresponding law that correspond to section
        2.7.25 or 2.7.50; domestic partner of a person means-

   (a)  a person who is in a registered relationship with the person; or

   (b)  an adult person to whom the person is not married but with whom the
        person is in a relationship as a couple where one or each of them
        provides personal or financial commitment and support of a domestic
        nature for the material benefit of the other, irrespective of their
        genders and whether or not they are living under the same roof, but
        does not include a person who provides domestic support and personal
        care to the person-

   (i)  for fee or reward; or

   (ii) on behalf of another person or an organisation (including a government
        or government agency, a body corporate or a charitable or benevolent
        organisation); elected member of the Board, means a member of the
        Board referred to in section 6.2.5(1)(b); engage in legal practice
        includes practise law; external intervener has the meaning given in
        section 5.1.2; family member of a person means-

   (a)  a spouse or domestic partner of the person; or

   (b)  a parent or grandparent of the person; or

   (c)  a child or grandchild of the person; or

   (d)  a sibling of the person; or

   (e)  a child of a sibling of the person; Fidelity Fund means the fund
        maintained under section 6.7.15;

financial institution means-

   (a)  an ADI; or

   (b)  a person (other than a law practice or an Australian legal
        practitioner) whose sole or principal business activities are the
        borrowing of money or the provision of finance or both; or

   (c)  a person (other than a law practice or an Australian legal
        practitioner)-

   (i)  whose business activities include the borrowing of money or the
        provision of finance or both; and

   (ii) who is, or is a member of a class of persons that is, prescribed as a
        financial institution for the purposes of this Act; foreign country
        means-

   (a)  a country other than Australia; or

   (b)  a state, province or other part of a country other than Australia;

foreign roll means an official roll of lawyers (whether admitted, practising
or otherwise) kept in a foreign country, but does not include a prescribed
roll or prescribed kind of roll; function includes duty and power; grant of an
interstate practising certificate includes the issue of an interstate
practising certificate;

GST has the same meaning as in the
A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth;

home jurisdiction has the meaning given in section 1.2.5; incorporated legal
practice has the same meaning as in Part 2.7; information notice has the
meaning given in section 1.2.7;

insolvent under administration means-

   (a)  a person who is an undischarged bankrupt within the meaning of the
        Bankruptcy Act 1966 of the Commonwealth (or the corresponding
        provisions of the law of a foreign country or external territory); or

   (b)  a person who has executed a deed of arrangement under Part X of the
        Bankruptcy Act 1966 of the Commonwealth (or the corresponding
        provisions of the law of a foreign country or external territory) if
        the terms of the deed have not been fully complied with; or

   (c)  a person whose creditors have accepted a composition under Part X of
        the Bankruptcy Act 1966 of the Commonwealth (or the corresponding
        provisions of the law of a foreign country or external territory) if a
        final payment has not been made under that composition; or

   (d)  a person for whom a debt agreement has been made under Part IX of the
        Bankruptcy Act 1966 of the Commonwealth (or the corresponding
        provisions of the law of a foreign country or external territory) if
        the debt agreement has not ended or has not been terminated; or

   (e)  a person who has executed a personal insolvency agreement under Part X
        of the Bankruptcy Act 1966 of the Commonwealth (or the corresponding
        provisions of the law of a foreign country or external territory) but
        not if the agreement has been set aside or terminated or all of the
        obligations that the agreement created have been discharged;
        interstate lawyer has the meaning given in section 1.2.2(c);
        interstate legal practitioner has the meaning given in section
        1.2.3(c); interstate practising certificate means a practising
        certificate granted under a corresponding law; interstate-registered
        foreign lawyer is a person who is registered as a foreign lawyer under
        a corresponding law; interstate roll means a roll of lawyers
        maintained under a corresponding law; interstate trust account means a
        trust account maintained under a corresponding law; jurisdiction means
        a State or Territory of the Commonwealth; law firm means a partnership
        consisting only of-

   (a)  Australian legal practitioners; or

   (b)  one or more Australian legal practitioners and one or more
        Australian-registered foreign lawyers; or

   (c)  incorporated legal practices; or

   (d)  one or more incorporated legal practices and one or more Australian
        legal practitioners; or

   (e)  one or more incorporated legal practices and one or more
        Australian-registered foreign lawyers; or

   (f)  one or more incorporated legal practices, one or more Australian legal
        practitioners and one or more Australian-registered foreign lawyers;
        Law Institute means Law Institute of Victoria Limited A.C.N. 075 475
        731; law practice means-

   (a)  an Australian legal practitioner who is a sole practitioner; or

   (b)  a law firm; or

   (c)  a multi-disciplinary partnership; or

   (d)  an incorporated legal practice; or

   (e)  a community legal centre; lay associate has the meaning given in
        section 1.2.4; legal costs means amounts that a person has been or may
        be charged by, or is or may become liable to pay to, a law practice
        for the provision of legal services including disbursements but not
        including interest; legal practitioner associate has the meaning given
        in section 1.2.4; legal practitioner director, in relation to an
        incorporated legal practice, has the meaning given in Part 2.7; legal
        practitioner partner, in relation to a multi-disciplinary partnership,
        has the meaning given in Part 2.7; legal profession rules means rules
        relating to legal practice or approved clerks made under Part 3.2;
        legal services means work done, or business transacted, in the
        ordinary course of legal practice; Liability Committee means Legal
        Practitioners' Liability Committee under section 6.6.1; local lawyer
        has the meaning given in section 1.2.2(b); local legal practitioner
        has the meaning given in section 1.2.3(b); local practising
        certificate means a practising certificate granted under this Act;
        local roll means the roll of lawyers kept under this Act; local trust
        account means a trust account maintained under this Act; locally
        registered foreign lawyer is a person who is registered as a foreign
        lawyer under this Act; managed investment scheme has the same meaning
        as in Chapter 5C of the Corporations Act; mental impairment includes
        alcoholism and drug-dependence;



modifications includes modifications by way of alteration, omission, addition
or substitution; mortgage means an instrument under which an interest in real
property is charged, encumbered or transferred as security for the payment or
repayment of money, and includes-

   (a)  any instrument of a kind that is prescribed by the regulations as
        being a mortgage; and

   (b)  a proposed mortgage; mortgage financing means facilitating a loan
        secured or intended to be secured by a mortgage by-

   (a)  acting as an intermediary to match a prospective lender and borrower;
        or

   (b)  arranging the loan; or

   (c)  receiving or dealing with payments for the purposes of, or under, the
        loan- but does not include providing legal advice or preparing an
        instrument for the loan; multi-disciplinary partnership has the
        meaning given in Part 2.7; non-advocate member of the Board, means a
        member referred to in section 6.2.8(1)(b); perform a function includes
        exercise a power; practical legal training means-

   (a)  legal training by participation in course work; or

   (b)  supervised legal training, whether involving articles of clerkship or
        otherwise; or

   (c)  a combination of both paragraphs (a) and (b); prescribed investigatory
        body means a person or body that is, or is a member of a class that
        is, prescribed by the regulations for the purposes of this definition;
        principal, of a law practice, has the meaning given in section 1.2.4;
        professional association means-

   (a)  the Law Institute;

   (b)  the Victorian Bar;

   (c)  a person or body prescribed by the regulations; professional
        misconduct has the meaning given in Division 2 of Part 4.4;

regulatory authority, in relation to another jurisdiction, means-

   (a)  if there is only one regulatory authority for the other
        jurisdiction-that regulatory authority unless paragraph (c) applies;
        or

   (b)  if there are separate regulatory authorities for the other
        jurisdiction for different branches of the legal profession or for
        persons who practise in a particular style of legal practice-the
        regulatory authority relevant to the branch or style concerned unless
        paragraph (c) applies; or

   (c)  if the regulations specify or provide for the determination of one or
        more regulatory authorities for the other jurisdiction either
        generally or for particular purposes-the regulatory authority or
        authorities specified in or determined in accordance with the
        regulations; serious offence means an offence whether committed in or
        outside this jurisdiction that is-

   (a)  an indictable offence against a law of the Commonwealth or any
        jurisdiction (whether or not the offence is or may be dealt with
        summarily); or

   (b)  an offence against the law of another jurisdiction that would be an
        indictable offence against a law of this jurisdiction if committed in
        this jurisdiction (whether or not the offence could be dealt with
        summarily if committed in this jurisdiction); or

   (c)  an offence against the law of a foreign country that would be an
        indictable offence against a law of the Commonwealth or this
        jurisdiction if committed in this jurisdiction (whether or not the
        offence could be dealt with summarily if committed in this
        jurisdiction);

show cause event, in relation to a person, means-

   (a)  his or her becoming bankrupt or being served with notice of a
        creditor's petition presented to the Court under section 43 of the
        Bankruptcy Act 1966 of the Commonwealth; or

   (b)  his or her presentation (as a debtor) of a declaration to the Official
        Receiver under section 54A of the Bankruptcy Act 1966 of the
        Commonwealth of his or her intention to present a debtor's petition or
        his or her presentation (as a debtor) of such a petition under section
        55 of that Act; or

   (c)  his or her applying to take the benefit of any law for the relief of
        bankrupt or insolvent debtors, compounding with his or her creditors
        or making an assignment of his or her remuneration for their benefit;
        or

   (d)  his or her being found guilty of a serious offence or a tax offence,
        whether or not-

   (i)  the offence was committed in or outside this jurisdiction; or

   (ii) the offence was committed while the person was engaging in legal
        practice as an Australian legal practitioner or was practising foreign
        law as an Australian-registered foreign lawyer, as the case requires;
        or

   (iii) other persons are prohibited from disclosing the identity of the
        offender; sole practitioner means an Australian legal practitioner who
        engages in legal practice on his or her own account; spouse of a
        person means a person to whom the person is married;

suitability matter has the meaning given in section 1.2.6; supervised legal
practice means legal practice by a person who is an Australian legal
practitioner-

   (a)  as an employee of a law practice if-

   (i)  at least one partner, legal practitioner director or other employee of
        the law practice is an Australian legal practitioner who holds a
        practising certificate as a principal of a law practice; and

   (ii) the person engages in legal practice under the supervision of an
        Australian legal practitioner referred to in subparagraph (i); or

   (b)  as a partner in a law firm if-

   (i)  at least one other partner is an Australian legal practitioner who
        holds a practising certificate as a principal of a law practice; and

   (ii) the person engages in legal practice under the supervision of an
        Australian legal practitioner referred to in subparagraph (i); or

   (c)  in a capacity approved under a legal profession rule; supervising
        legal practitioner, in relation to a community legal centre, means a
        person employed or engaged to be responsible for the provision of
        legal services by the centre under section 2.9.2; tax offence means an
        offence under the Taxation Administration Act 1953 of the
        Commonwealth, whether committed in or outside this jurisdiction; this
        jurisdiction means Victoria; Tribunal means Victorian Civil and
        Administrative Tribunal established by the
        Victorian Civil and Administrative Tribunal Act 1998; trust money has
        the meaning given in section 3.3.2; trust property means property
        entrusted to a law practice in the course of or in connection with the
        provision of legal services by the practice, but does not include
        trust money or money referred to in section 3.3.3; unsatisfactory
        professional conduct has the meaning given in Division 2 of Part 4.4;
        Victorian Bar means Victorian Bar Inc, an association incorporated
        under the Associations Incorporation Act 1981.

(2) For the purposes of the definition of domestic partner in subsection (1)-

   (a)  registered relationship has the same meaning as in the
        Relationships Act 2008; and

   (b)  in determining whether persons who are not in a registered
        relationship are domestic partners of each other, all the
        circumstances of their relationship are to be taken into account,
        including any one or more of the matters referred to in section 35(2)
        of the Relationships Act 2008 as may be relevant in a particular case;
        and

   (c)  a person is not a domestic partner of another person only because they
        are co-tenants.