Western Australian Consolidated Acts Western Australian Consolidated Acts[Section 3]
THIS DEED is made the 22nd day of August 1985 BY THE LAW SOCIETY OF WESTERN
AUSTRALIA (INC.) of 8th Floor, Exchange House, 68 St. George’s
Terrace, Perth (“the Trustee”)
WHEREAS:
A. Legal practitioners in Western Australia are
obliged pursuant to the provisions of the Legal Practitioners Act 1893 to
keep trust accounts with banks to which are paid all moneys held by the
practitioner on behalf of persons other than the practitioner (“trust
moneys”).
B. Legal practitioners are obliged pursuant to the
provisions of the Legal Contribution Trust Act 1967 to pay a certain
proportion of trust moneys to the Legal Contribution Trust.
C. Banks have hitherto not paid interest on trust
moneys (other than moneys paid to the Legal Contribution Trust) held in trust
accounts.
D. Certain banks have agreed with the Trustee that
they will pay to the Trustee moneys equivalent in amount to interest on trust
moneys held in trust accounts kept with the banks.
E. The Trustee wishes to establish with the
approval of the Attorney General a trust into which all such money and any
other money received by the Trustee as the result of agreements with the said
banks and further agreements with other Banks will be paid from time to time
(“the Trust”) and to hold as Trustee of the Trust all moneys
comprising the Trust Fund for public charitable purposes upon the trusts
hereinafter declared.
NOW THIS DEED WITNESSES:
Interpretation.
(1) In this Deed the following terms where the
context admits shall have the following meanings: —
(a) “Accounting Period” means the
period from the date hereof to the next ensuing thirtieth day of June and
thereafter each period of twelve months ending on the thirtieth day of June in
each year and if the date of termination of the Trust is not the thirtieth day
of June in any year the last Accounting Period shall be the period commencing
on the first day of July next preceding the date of termination of the Trust
and terminating on the date of termination of the Trust;
(b) “Allocations Committee” means the
Committee established under Clause 6;
(c) “Attorney General” means the
Attorney General or Minister for Justice for the State of Western Australia;
(d) “Bank” means any bank with which
legal practitioners may lawfully deposit funds held by them on trust;
(e) “Bank Agreement” means an
agreement made by the Trustee with a Bank of a kind referred to in
Clause 14(5);
(f) “cash” includes cheque and bank
cheque;
(g) “Investment” means any one of the
assets or investments forming for the time being part of the Trust Fund;
(h) “person” includes a public body,
company or association or body of persons corporate or unincorporate;
(i) “present” in relation to a meeting
means present in person;
(j) “the State” means the State of
Western Australia;
(k) “the Trust” means the Trust hereby
established and which shall be called the Law Society Public Purposes Trust
Fund;
(l) “Trustee” means the Law Society of
Western Australia (Inc.) or other trustee or trustees for the time being of
this Trust whether original additional or substituted;
(m) “Trust Fund”
means: —
(i) all moneys or other benefits received by the
Trustee pursuant to a Bank Agreement;
(ii) all moneys or other property which may at any
time hereafter in any other manner accrue to the capital of the Trust Fund;
(iii) all such accumulations of income as are
hereinafter or by law directed to be held as additions to the capital of the
Trust Fund; and
(iv) the moneys investments and other property
from time to time representing the capital of the Trust Fund and accumulations
thereto.
1. (2) In this Deed: —
(a) the singular shall include the plural and vice
versa and any gender shall mean and include all other genders;
(b) a reference to any statutory enactment shall
be construed as a reference to such enactment as amended and modified from
time to time;
(c) a reference to any clause, sub-clause or
paragraph is a reference to a clause, sub-clause or paragraph, as the case may
be, in this Deed;
(d) the headings contained in this Deed shall not
be taken into account in the construction hereof.
2. Proper Law. This Deed shall be construed and
take effect in accordance with the laws of the State.
3. Objects of Trust. The objects of the Trust
shall be:
(1) To advance the education of the community, and
any section of it, with respect to the law;
(2) To advance the collection, assessment and
dissemination to the community, and any section of it, of information
relating to the law; and
(3) To improve the access of the community, and
any section of it, to legal services.
Without limiting the generality of the foregoing,
the objects shall include, to the extent that they are in aid of any of the
principal objects, any of the following:
(a) To advance the education with respect to the
law of persons desiring to study law, law students, law graduates, legal
practitioners, and persons having responsibility for legal education and for
the administration of the law and the legal system;
(b) To establish and advance law libraries and
legal information services, including computerised legal information retrieval
services; and
(c) To advance the examination of the law, the
legal system, the legal profession, legal education, legal services and the
effect of any of them on the community, or any section of it.
The objects of the Trust shall also include:
(d) To promote and establish any body having
objects altogether or in part similar to any of the objects set out in this
clause 3 and to sponsor or otherwise support activities of any such body
insofar as the same shall be incidental or conducive to any of the objects set
out in this Clause 3; and
(e) To carry out, encourage and support any act,
matter or thing which is or may be incidental or conducive to any of the above
objects or which may be conveniently done in connection therewith.
4. Restrictions on Objects. Notwithstanding
anything in this Deed the Trustee shall not expend in excess of three tenths
of the expenditure of the Trustee on behalf of the Trust in any one Accounting
Period in grants to persons whose primary object is the provision of legal
aid.
5. No Profit from Trust Fund. No portion of the
Trust Fund shall be paid or transferred directly or indirectly by way of
dividend bonus or otherwise by way of profit to the Trustee, a member of the
Allocations Committee, the Secretary or a member of the Trustee but this
prohibition shall not apply to payments in good faith of the proper expenses
and outgoings of the Trust Fund, the Trustee, the members of the Allocations
Committee and the Secretary under the terms hereof and shall not apply to
payments in good faith to members of the Trustee in connection with the proper
carrying out of the objects of the Trust.
6. Establishment of Allocations Committee. A
committee to be known as the Allocations Committee shall be established by the
Trustee for the purposes of deciding on the allocation of moneys pursuant to
this Deed.
7. Constitution of Allocations Committee. The
Allocations Committee shall consist of the following
persons: —
(1) two members nominated from time to time by the
Trustee each of whom shall hold office in the Allocations Committee for a
maximum of two years and may be removed from office without notice by the
Trustee;
(2) one member nominated from time to time by the
Attorney General and who may be removed from office without notice by the
Attorney General.
8. Meetings of Allocations Committee.
(1) The Trustee or any member of the Allocations
Committee or the Attorney General may require a meeting of the Allocations
Committee. Seven (7) days notice at the least (exclusive of the day on which
the notice is served or deemed to be served but inclusive of the day for which
notice is given) of all meetings specifying the place the day and the hour of
meeting and in case of special business the general nature of that business
shall be given to the members of the Allocations Committee.
(2) No business shall be transacted at any meeting
of the Allocations Committee unless at the time when the meeting proceeds to
business there are present at least two members one of whom is the member
nominated by the Attorney General.
(3) If within fifteen minutes from the time
appointed for the meeting a quorum is not present it shall stand adjourned to
the same day in the next week at the same time and place and if at the
adjourned meeting a quorum is not present within fifteen minutes from the time
appointed for the meeting the meeting shall be dissolved.
(4) The members present at any meeting shall
choose someone of their number to be Chairman.
(5) The Chairman may with the consent of any
meeting at which a quorum is present (and shall if so directed by the meeting)
adjourn the meeting from time to time and from place to place and save as
aforesaid it shall not be necessary to give any notice of an adjournment or of
the business to be transacted at an adjourned meeting.
(6) A recommendation by the Allocations Committee
may be made unanimously or by majority.
(7) A resolution in writing signed by all the
members of the Allocations Committee shall be as valid and effectual as if it
has been passed at a duly called and constituted meeting of the Allocations
Committee. Any such resolution may consist of duplicate copies of one document
one of which copies shall have been signed by each member.
9. Secretary. The Trustee shall appoint a
Secretary of the Trust who shall have the custody of the books papers and
other records of the Trust. The Secretary shall give notice of meetings of the
Allocations Committee and shall keep the minutes and accounting records of the
Trust. The Trustee shall be entitled to remove the Secretary and appoint a
replacement. The Secretary may be a member of the Allocations Committee.
10. Application of Trust Fund. The Trustee shall
pay or apply the income and capital of the Trust Fund to or for the objects of
the Trust and in accordance with recommendations from time to time of the
Allocations Committee or the determinations of the Attorney General.
11. Disapproval by Attorney General.
(1) The Allocations Committee shall give to the
Attorney General written notice of any recommendation of the Allocations
Committee promptly upon the making of the recommendation.
(2) The Trustee shall not act upon a
recommendation of the Allocations Committee unless it has been approved by the
Attorney General.
(3) A recommendation shall be deemed to have been
approved by the Attorney General if the Attorney General does not disapprove
of the recommendation within the period of twenty eight (28) days or such
longer period as the Attorney General and the Allocations Committee may agree.
(4) The Attorney General may by written notice to
the Trustee disapprove in whole or in part of the recommendation within the
period of twenty eight (28) days of notice of a recommendation or such longer
period as has been agreed upon under sub-clause (3) and upon such disapproval
the Attorney General shall state his reasons in writing therefor.
(5) In the event that the Attorney General
disapproves in whole or in part of a recommendation pursuant to sub-clause (4)
hereof, the recommendation shall be reconsidered by the Allocations Committee
in the light of the Attorney General’s reasons for disapproval and the
Attorney General and the Allocations Committee shall endeavour to agree on a
recommendation. In any event, a further recommendation shall be made by the
Allocations Committee to the Attorney General.
(6) If the Attorney General does not approve of
the further recommendation of the Allocations Committee he shall have the
power to determine the allocation of the moneys in respect of which the
Allocations Committee submitted the recommendation of which the Attorney
General disapproves.
12. Income of Trust Fund.
(1) The Trustee shall collect all dividends
interest rents and other income from the Investments of the Trust Fund.
(2) The Trustee shall pay out of the gross income
of the Trust Fund all costs and disbursements commissions fees rates taxes
(including land tax and income tax) management charges and other proper
outgoings in respect of the Investments and administration of the Trust Fund.
13. Investments. The Trustee shall apply and
invest moneys at any time forming part of the Trust Fund in any of the
following: —
(1) on deposit with any Bank on such terms as the
Trustee may agree from time to time;
(2) in any investment being an authorised trustee
investment; and
(3) with the prior approval of the Attorney
General in the purchase acquisition sale or lease of any real or personal
property upon such terms and such security as the Trustee may think fit and in
the improvement development or other dealing with respect to such property as
if the Trustee were the absolute beneficial owner thereof.
14. Powers of Trustee. In addition to the powers
conferred upon the Trustee by law the Trustee shall have the following
powers: —
(1) to pay out of the Trust Fund or the income
thereof all costs charges and expenses incidental to the management of the
Trust Fund or to the exercise of any power authority or discretion herein
contained or in carrying out or performing the objects hereof which the
Trustee may at any time incur including without limitation all taxes, duties
and other imports whatsoever levied or payable in respect of this Deed, the
Trust, the Trust Fund or the income of the Trust Fund;
(2) to pay out of the Trust Fund or the income
thereof to the Trustee its servants agents or contractors remuneration at
reasonable rates for services of whatsoever nature provided from time to time
in respect of the proper management and administration of the Trust and all
matters incidental thereto;
(3) to reimburse the Trustee out of the Trust Fund
all costs and disbursements of whatsoever nature incurred by the Trustee in
the creation of the Trust Fund and the setting up of the Trust;
(4) to receive moneys from the Banks from time to
time as accretions to the Trust Fund;
(5) (a)
from time to time to make Bank Agreements with Banks providing
for: —
(i) the payment of money or provision of other
consideration (whether equivalent to interest or otherwise) to the Trustee of
an amount calculated by reference to trust money deposited in the State with
the respective Banks by Legal Practitioners; and
(ii) such other terms and conditions as the
Trustee may agree;
(b) to ratify and adopt on behalf of the Trust
Bank Agreements made by the Trustee prior to the date hereof;
(6) to open any account or accounts with any bank
or banks and to operate by and in all usual ways upon any such account or
accounts;
(7) to give effectual receipts and discharges for
any moneys received by or on behalf of the Trustee or otherwise relating to
any of the acts matters and things provided for in these presents and to
receive property by gift inter vivos or by Will or under the provisions of any
other trust or trusts or otherwise and either from the Settlor or from any
other person or persons as additions to the Trust Fund and to hold the same
upon the trusts herein set forth and to administer such additions under the
provisions hereof;
(8) to take such action as the Trustee shall think
fit for the adequate protection of any part or parts of the Trust Fund and to
take any act upon the opinion (given in writing) of Counsel or Queen’s
Counsel in relation to the interpretation or effect of these presents or any
other document or statute or as to the administration of the trusts hereof
without being liable to any of the persons beneficially interested in respect
of any act done by the Trustee in accordance with such opinion provided that
nothing in this provision shall prohibit or impede the Trustee from applying
to any Court if it shall think fit;
(9) to do all such other things as may be
incidental to the exercise of the powers and authorities conferred on the
Trustee by these presents;
(10) to carry out any of the above objects in
conjunction with or by providing assistance to any person body institution or
authority whether statutory or otherwise so far as in the opinion of the
Allocations Committee may be necessary or desirable from time to time.
15. Trustee may act by servants, agents. The
Trustee shall be at full liberty to engage or employ contractors managers
solicitors accountants clerks employees or agents to do any act or thing of
whatever nature that may lawfully be done by the Trustee pursuant to this
Deed.
16. Accounts and Audit.
(1) The Trustee shall keep a complete and accurate
record of all receipts and expenditures on account of the Trust Fund.
(2) Promptly after the close of each Accounting
Period the Trustee shall prepare a written accounting report (prepared in
accordance with normally accepted accounting procedures) for such period
consisting of a balance sheet and statement of income and expenditure and a
list of assets held at the close of such year and a copy thereof shall be
furnished to the Attorney General as soon as practicable after the same is
prepared.
(3) The accounting report shall specify the names
and addresses of all persons having custody of any of the assets of the Trust
Fund.
(4) The Trustee may appoint an auditor to audit
the Accounts of the Trust.
17. Variation of Trusts.
(1) Subject to sub-clause (2) the Trustee may with
the approval of the Attorney General at any time and from time to time by deed
revoke add to or amend any provision of this Deed as amended from time to time
including without limitation the objects to which the Trust Fund may be
applied.
(2) No addition to or revocation or amendment of
this Deed as amended from time to time shall be made if
(a) any law against perpetuities would thereby be
infringed;
(b) any beneficial interest in the Trust Fund
would thereby be conferred on the Trustee or any member of the Allocations
Committee or the Secretary; or
(c) the amendment would be inconsistent with one
or more of the objects of the Trust.
18. Termination of Trust. The Trust may be
determined at any time if so resolved by the Trustee.
19. Procedure upon Termination. Upon the
termination of the Trust the Trustee shall proceed as
follows: —
(1) The Trustee shall get in and stand possessed
of all property and investments constituting the Trust Fund, and may in its
discretion sell call in and convert into money any such parts of the Trust
Fund as shall not consist of money.
(2) The Trustee shall from time to time and as
soon as is practicable divide and distribute in specie the property and
investments available in the Trust Fund in accordance with the Objects of the
Trust in such proportions as may be determined by the Allocations Committee
and approved by the Attorney General and in default of such determination and
approval shall be held on trust for the objects of the Trust in such manner
and by such Trustee as the Court having jurisdiction may direct PROVIDED
ALWAYS that the Trustee shall retain full provision for all costs
disbursements commissions brokerage fees expenses claims and other costs and
demands incurred or anticipated by the Trustee in the liquidation of the
Trust.
20. Notices. A notice hereunder may be given
either personally or by sending it by post to the person at his registered
address or (if he has no registered address within the Commonwealth of
Australia) to the address (if any) within the Commonwealth of Australia last
known. Where a notice is sent by post service of the notice shall be deemed to
be effected by properly addressing prepaying and posting a letter containing
the notice and to have been effected in the case of a notice of a meeting on
the day after the date of its posting and in any other case at the time at
which the letter would be delivered in the ordinary course of post. A notice
may be given by means of telex telegram cablegram or radiogram and service of
such notice shall be deemed to be effected if the telex telegram cablegram or
radiogram is properly addressed paid for and lodged for transmission with a
competent authority or body and to have been effected at the time at which in
the ordinary course the telex telegram cablegram or radiogram would be
delivered.
THE COMMON SEAL of THE LAW
SOCIETY OF WESTERN
AUSTRALIA INC. was hereunto
[C.S.]
affixed by resolution of the
Council in the
presence of:
President: H. H. JACKSON
Hal Jackson
Executive
Director: N. ROBERTS
Neil Roberts
Approved by the Honourable J. M. Berinson M.L.C. Attorney General for the
State of Western Australia.
Joe Berinson