Чернов Сергей Витальевич
Москва, ул. 7-ая Парковая, д. 24 офис 413
метро Щелковская и Первомайская
Закон Австралии об Адвокатской профессии.
Legal Profession Act 2004.
524 Protection from liability
No matter or thing done or omitted to be done by a mediator subjects the mediator to any action, liability, claim or demand if the matter or thing was done or omitted in good faith for the purposes of mediation under this Part.
Part 4.4 – Investigation of complaints
525 Complaints to be investigated
(1) Each complaint must be investigated under this Part.
(2) This section does not apply to:
(a) a complaint that is dismissed or withdrawn under this Chapter (to the extent that it is dismissed or withdrawn), or
(b) a complaint to the extent that it is a consumer dispute after it has been referred to mediation under this Chapter, or
(c) a complaint that is a separate complaint under section 534 (Conduct that may be investigated) and that under subsection (7) of that section need not be the subject of a separate or further investigation, or
(d) a complaint that is a modified complaint under section 535 (Modified complaints) and that under subsection (4) of that section need not be the subject of a separate or further investigation, or
(e) a complaint to which section 538 (Decision of Commissioner or Council without investigation) applies.
(3) This section has effect subject to section 564 (Consent orders) in relation to a complaint to the extent that the relevant Australian legal practitioner, the Commissioner and (if applicable) the relevant Council have agreed on the terms of an instrument of consent filed or to be filed with the Tribunal under that section.
526 Investigation of complaints by Commissioner
(1) The Commissioner may conduct an investigation into a complaint instead of referring it to a Council for investigation, or may take over the investigation of a complaint from a Council, if the Commissioner considers it appropriate.
(2) The Commissioner may, with the consent of a Council, refer a complaint to the Council after the Commissioner has completed an investigation into the complaint (including after proceedings with respect to the complaint have been commenced in the Tribunal by the Commissioner).
(3) A Council is to provide any assistance required by the Commissioner to conduct an investigation into a complaint (including copies of or access to all documents held by the Council that relate to the complaint or are required for the purpose of investigating the complaint).
527 Investigation of complaints by Council
(1) A Council must, subject to this section, conduct an investigation into each complaint referred to it by the Commissioner or made by the Council.
(2) This section does not apply to:
(a) a complaint taken over by the Commissioner or referred to an independent investigator under this Part, or
(b) a complaint that is not required to be investigated under this Part.
528 Consultation and cooperation on complaints
(1) The Law Society Council and the Bar Council may consult and cooperate when dealing with a complaint against an Australian legal practitioner arising from the same, or related, facts as a complaint against another Australian legal practitioner for which the other Council is the relevant Council. For the purposes of this subsection, the Councils may exchange information concerning the complaints.
(2) The Law Society Council or Bar Council may consult and cooperate with the corresponding authority of another jurisdiction when dealing with a complaint against an interstate legal practitioner under this Act or under a corresponding law. For the purposes of this subsection, the Councils and corresponding authority may exchange information concerning the complaint.
529 Monitoring by Commissioner of conduct of investigation
(1) The Commissioner is to monitor investigations by a Council into complaints.
(2) A Council investigating a complaint is to report to the Commissioner on the progress of the investigation if required to do so by the Commissioner.
(3) A Council is required to provide any assistance required by the Commissioner to monitor investigations by the Council (including access to or a copy of all documents held by the Council that relate to the complaint or are required for the purpose of monitoring the investigation).
530 Directions by Commissioner about conduct of investigation
(1) The Commissioner may give a Council directions on the handling of a complaint being investigated by the Council if the Commissioner considers that it is in the public interest to do so having regard to the seriousness of the complaint.
(2) The directions may include, for example, directions to pursue a particular line of inquiry or directions concerning the time for completing the investigation.
(3) Directions may not be given on the decision to be taken by a Council following the investigation.
(4) If the directions of the Commissioner about the investigation of a complaint are not complied with, the Commissioner may, under section 526 (Investigation of complaints by Commissioner), take over the investigation of the complaint.
(5) The Commissioner may also issue general guidelines to a Council about the investigation of complaints.
531 Appointment of investigator
(1) The Commissioner or a Council investigating or required to investigate a complaint may, in writing, appoint a suitably qualified person as an investigator to investigate the complaint as agent of the Commissioner or Council.
(2) Such an appointment may be made generally (to apply for all complaints or for all complaints of a specified class) or for a specified complaint.
531A Authorised persons
(1) The Commissioner or a Council may, in writing, appoint suitably qualified persons to be authorised persons for the purposes of this Part.
(2) An authorised person may exercise any or all of the functions of an investigator that are or would be exercisable by an investigator appointed by the Commissioner or Council, as the case may be, and accordingly references in this Act and the regulations to such an investigator extend to an authorised person.
(3) An authorised person may exercise any such functions in relation to a complaint whether or not an investigator has been appointed in relation to the complaint.
(4) An appointment under this section may be made generally (to apply for all complaints or for all complaints of a specified class) or for a specified complaint.
532 Independent investigation of certain complaints
(1) The Commissioner is to arrange for a complaint to be investigated by an independent investigator if the Commissioner decides not to conduct the investigation into the complaint under section 526 (Investigation of complaints by Commissioner) and:
(a) the Commissioner is satisfied that investigation by an independent investigator is in the interests of justice or in the public interest, or
(b) the relevant Council is satisfied that investigation by an independent investigator is in the interests of justice or in the public interest and requests the Commissioner to arrange for the investigation.
(2) The independent investigator is to report to the Commissioner on his or her investigation of the complaint.
(3) This Part applies to any such investigation as if it were conducted by the Council (except that the decision on the complaint is to be made by the Commissioner after consideration of the report of the independent investigator).
(4) The Commissioner and each Council are to provide any assistance required by the independent investigator to conduct an investigation into a complaint (including copies of or access to all documents held by the Commissioner or Council that relate to the complaint or are required for the purpose of investigating the complaint).
(5) The independent investigator is to provide a copy of his or her report on the investigation to the relevant Council.
533 Referral of matters to costs assessors
(1) The Commissioner or a Council may at their discretion, for the purpose of investigating a complaint, apply under Division 11 of Part 3.2 for an assessment of costs claimed by an Australian legal practitioner.
(2) Any such application may be made outside the 60-day period referred to in section 350 (Application by clients for costs assessment).
(3) In exercising their discretion under subsection (1), the Commissioner or a Council must consider whether the client was aware of his or her right to apply for a review of the costs within that 60-day period and, if the client was aware, whether the application may cause significant injustice to the practitioner.
(4) Subject to this section, Division 11 of Part 3.2 applies to any such application as if the Commissioner or Council were a client of the practitioner.
(5) No fee is payable under section 354 (How to make an application for costs assessment) for any such application.
534 Conduct that may be investigated
(1) An investigation may extend to conduct of the Australian legal practitioner concerned revealed during the investigation where:
(a) the conduct is related to the subject-matter of the complaint and involves the complainant but is not within an allegation contained in the complaint, or
(b) the conduct is not related to the subject-matter of the complaint but involves the complainant, or
(c) the conduct is related to the subject-matter of the complaint but does not involve the complainant, or
(d) the conduct is not related to the subject-matter of the complaint and does not involve the complainant.
(2) The Australian legal practitioner must be informed in writing of the extended investigation as soon as practicable after the investigation is extended and must be given a reasonable opportunity to make submissions regarding the additional matters.
(3) Subsection (2) does not apply if, under section 508 (Practitioner to be notified of complaint), notice of the complaint was not given to the Australian legal practitioner.
(4) Matters arising in connection with subsection (1) (a) may be made the subject of a separate complaint under section 503 (Complaints) or of modification of a complaint under section 535 (Modified complaints).
(5) Matters arising in connection with subsection (1) (b), (c) or (d) may be made the subject of a separate complaint under section 503 (Complaints).
(6) The making of the separate complaint or the modification of the complaint as referred to in subsection (4) or (5) need not occur until the extended investigation has been completed.
(7) If matters arising in connection with subsection (1) (a)-(d) are made the subject of a separate complaint under section 503 (Complaints), the separate complaint need not be the subject of a separate or further investigation if the Commissioner or Council investigating the original complaint is satisfied that the matter has already been sufficiently investigated during the investigation of the original complaint.
535 Modified complaints
(1) The Commissioner or Council investigating a complaint may, during or after completion of the investigation, by instrument in writing, modify the complaint by doing either or both of the following:
(a) omitting or altering any allegations or details in the complaint,
(b) adding additional allegations or details to the complaint.
(2) A modification of a complaint:
(a) must relate to the subject-matter of the original complaint, and
(b) may be made even though the conduct to which the modification relates occurred more than 3 years before the date of the modification.
(3) Before taking action under subsection (1), the Commissioner or Council is to consult the original complainant (except where the Commissioner or Council proposing to take the action is the complainant).
(4) A modified complaint need not be the subject of a separate or further investigation if the Commissioner or Council investigating the original complaint is satisfied that the matter has already been sufficiently investigated during the investigation of the original complaint.
(5) Sections 508 (Practitioner to be notified of complaint), 509 (Submissions by practitioner) and 512 (Withdrawal of complaints) apply, with any necessary adaptations, to a modification of a complaint under this section in the same way as they apply to a complaint made under section 503 (Complaints).
536 Application of Chapter 6
Chapter 6 (Provisions relating to investigations) applies to an investigation under this Part.
Part 4.5 – Decision of Commissioner or Council
537 Decision of Commissioner or Council after investigation
(1) After completion of an investigation of a complaint against an Australian legal practitioner, the Commissioner or a Council must:
(a) commence proceedings in the Tribunal under this Chapter, or
(b) dismiss the complaint under this Part, or
(c) take action under section 540 (Summary conclusion of complaint procedure by caution, reprimand, compensation order or imposition of conditions)).
(2) Unless section 540 (Summary conclusion of complaint procedure by caution, reprimand, compensation order or imposition of conditions) applies, the Council or the Commissioner must commence proceedings in the Tribunal with respect to a complaint against an Australian legal practitioner if satisfied that there is a reasonable likelihood that the practitioner will be found by the Tribunal to have engaged in unsatisfactory professional conduct or professional misconduct.
(3) Nothing in this section affects section 512 (Withdrawal of complaints).
538 Decision of Commissioner or Council without investigation
(1) This section applies to a complaint against an Australian legal practitioner, where the Commissioner or relevant Council is satisfied that, having regard to the nature of the subject-matter of the complaint and the reasonable likelihood that the Tribunal will find that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct, action should be taken under this section.
(2) The Commissioner or Council may commence proceedings in the Tribunal under this Chapter in relation to a complaint to which this section applies without the need to commence or complete an investigation.
(3) A Council is not to commence proceedings pursuant to this section unless the Commissioner concurs.
539 Dismissal of complaint
(1) After completion of an investigation of a complaint against an Australian legal practitioner, the Commissioner or a Council may dismiss the complaint in whole or in part if satisfied that:
(a) there is no reasonable likelihood that the practitioner will be found by the Tribunal to have engaged in either unsatisfactory professional conduct or professional misconduct, or
(b) it is in the public interest to do so.
(2) The Commissioner or Council may make a compensation order under Part 4.9 if the complaint is dismissed under this section on the ground of the public interest and the complainant requested a compensation order in respect of the complaint.
540 Summary conclusion of complaint procedure by caution, reprimand, compensation order or imposition of conditions
(1) This section applies if:
(a) either:
(i) the Commissioner or a Council completes an investigation of a complaint against an Australian legal practitioner, or
(ii) the report of an independent investigator is given to the Commissioner, and
(b) the Commissioner or Council (as the case requires):
(i) is satisfied that there is a reasonable likelihood that the practitioner would be found by the Tribunal to have engaged in unsatisfactory professional conduct (but not professional misconduct), and
(ii) is satisfied that the practitioner is generally competent and diligent, and
(iii) is satisfied that the taking of action under this section is justified having regard to all the circumstances of the case (including the seriousness of the conduct concerned) and to whether any other substantiated complaints have been made against the practitioner.
(2) The Commissioner or Council may do any or all of the following:
(a) caution the practitioner,
(b) reprimand the practitioner,
(c) make a compensation order under Part 4.9 if the complainant requested a compensation order in respect of the complaint,
(d) determine that a specified condition be imposed on the practitioner's practising certificate.
(3) Failure to attend as required by the Commissioner or Council to receive a caution or reprimand is capable of being professional misconduct.
(4) If action is taken under subsection (2), no further action is to be taken under this Chapter with respect to the complaint.
(5) If the Commissioner or Council decides to reprimand or make a compensation order against an Australian legal practitioner under this section, or that a condition be imposed on an Australian legal practitioner's practising certificate under this section, the practitioner may apply to the Tribunal for a review of the decision. Reviews are carried out under Chapter 5 of the Administrative Decisions Tribunal Act 1997. Section 729A modifies the operation of that Act. An appeal lies to the Supreme Court under section 729A against a decision of the Administrative Decisions Tribunal.
(6) If the Commissioner determines that a specified condition be imposed on a practising certificate, the appropriate Council is required to impose and maintain the condition. The condition may be amended, suspended, reinstated or revoked with the concurrence of the Commissioner.
541 Record of decision
The Commissioner or a Council must cause a record of their decision with respect to a complaint, together with reasons for the decision, to be kept in respect of each complaint dealt with under this Part.
542 Reasons to be provided to complainant and practitioner
(1) If a complaint has been made about an Australian legal practitioner, the complainant and the practitioner are entitled to receive a statement of reasons from the Commissioner or Council, as the case requires, in relation to:
(a) a decision to dismiss the complaint, or
(b) a decision to commence proceedings in the Tribunal with respect to the complaint, or
(c) a decision to take action under section 540 (Summary conclusion of complaint procedure by caution, reprimand, compensation order or imposition of conditions), or
(d) a decision to omit, from the allegations particularised in a disciplinary application made to the Tribunal in respect of the complaint, matter that was originally part of the complaint.
(2) The right of the complainant to apply to the Commissioner for a review of the decision must be included in the statement under this section, except in the case of a decision to commence proceedings in the Tribunal.
(3) A statement to a complainant is not required under this section in the case of an official complaint.
Part 4.6 – Review of Councils' decisions
543 Application for review
(1) A complainant may apply to the Commissioner for a review of any of the following decisions made by a Council:
(a) a decision to dismiss a complaint made by the complainant,
(b) a decision to caution or reprimand the Australian legal practitioner concerned, or make a compensation order against the practitioner, because of the complaint,
(c) a decision to omit, from the allegations particularised in a disciplinary application made to the Tribunal in respect of a complaint, matter that was originally part of the complaint.
(2) The application for review is to be in writing.
(3) The application for review may be made at any time within 2 months after the decision is notified to the complainant.
(4) If the Council does not notify the complainant of its decision with respect to the complaint within 6 months after the complaint was referred to the Council, the matter may be reviewed under this Part. In that case, the Council is taken to have dismissed the complaint for the purposes of this Part.
(5) The Commissioner may postpone a review referred to in subsection (4) for a specified period if satisfied that there is good reason for the Council's delay in making a decision with respect to the complaint. In that case, the Council is taken to have dismissed the complaint for the purposes of this Part if it does not notify the complainant of its decision within that further specified period.
544 Reviews
(1) The Commissioner is to review each decision of a Council that is the subject of an application for review under this Part.
(2) The Commissioner may also review a Council's decision (of a type referred to in section 543 (1) (Application for review)) at the request of the Council or on the Commissioner's own initiative.
(3) The Commissioner may conduct a review in such manner as the Commissioner thinks fit and is not limited to considering those matters considered by the Council in making the decision that is the subject of review.
(4) The Commissioner must consult with a Council before completing a review of the Council's decision.
(5) The Commissioner has the same powers when reviewing a decision of the Council as the Commissioner has under this Act when investigating a complaint.
(6) The Commissioner is not to review a decision of a Council that is the subject of an application by the Australian legal practitioner concerned to the Tribunal for a review of the decision, unless the Tribunal orders that the review by the Commissioner may proceed.
545 Decision of Commissioner on review
(1) When the Commissioner has completed the review of a Council's decision, the Commissioner must do any one or more of the following:
(a) confirm the decision of the Council in whole or in part,
(b) refer the matter to mediation,
(c) re-investigate the complaint or direct the relevant Council to do so,
(d) investigate any part of the complaint that was omitted by the Council from the allegations particularised in the disciplinary application made by the Council,
(e) direct the Council to investigate, or re-investigate, any part of the complaint that was omitted by the Council from the allegations particularised in the disciplinary application made by the Council,
(f) caution or reprimand the Australian legal practitioner,
(g) make a compensation order under Part 4.9 (Compensation) if the complainant requested a compensation order in respect of the complaint, whether or not in substitution for a compensation order made by the Council,
(h) commence proceedings in the Tribunal against the Australian legal practitioner,
(i) apply to the Tribunal for the variation of a disciplinary application to include matter that was omitted from the disciplinary application by the Council and that was originally part of the complaint.
(2) If the Commissioner decides to re-investigate a complaint, or to investigate part of a complaint, the provisions of this Chapter, and any other relevant provisions of this Act, apply as if the Commissioner had taken over the investigation of the complaint.
(3) A Council is required to comply with a direction of the Commissioner under this section. The Commissioner may take further action under this section if the Council fails to comply with the direction.
(4) If the Commissioner decides to reprimand or make a compensation order against an Australian legal practitioner under this section, the practitioner may apply to the Tribunal for a review of the decision.
Reviews are carried out under Chapter 5 of the Administrative Decisions Tribunal Act 1997. Section 729A modifies the operation of that Act. An appeal lies to the Supreme Court under section 729A against a decision of the Administrative Decisions Tribunal.
546 Notification about review of Council decisions
(1) The Commissioner must cause his or her decision on a review of a Council's decision with respect to a complaint, together with his or her reasons for the decision, to be notified in writing to the complainant, the Australian legal practitioner against whom the complaint was made and the Council.
(2) The complainant is to be notified under this section even if the complainant did not apply for the review.
547 Assistance by Council
A Council is required to provide any assistance required by the Commissioner to conduct a review or re-investigation (including access to or a copy of all documents held by the Council that relate to the complaint or are required for the purpose of the review or re-investigation).
Part 4.7 – Immediate suspension of local practising certificate
548 Immediate suspension of local practising certificate
(1) This section applies if the Commissioner or the relevant Council considers it necessary in the public interest to immediately suspend a local practising certificate on the ground of the seriousness of the conduct in respect of which a complaint has been made in relation to the holder of the certificate.
(2) The Council may immediately suspend the practising certificate. The Commissioner may direct the Council to immediately suspend the practising certificate, and, if so directed, the Council must immediately suspend the practising certificate.
(3) The suspension operates until the earliest of the following:
(a) the complaint is withdrawn or dismissed,
(b) the suspension is revoked,
(c) the subject-matter of the complaint is finally dealt with by the Tribunal,
(d) the suspension is successfully appealed.
(4) The Council must give written notice of the suspension to the holder of the practising certificate and that notice must:
(a) include an information notice about the suspension, and
(b) indicate the period of operation of the suspension as provided by subsection (3), and
(c) state that the practitioner may make representations about the suspension.
(5) The suspension takes effect on the day that notice of the suspension is given to the holder.
(6) The holder may make written representations to the Commissioner or the Council about the suspension, and the Commissioner or the Council must consider the representations.
(7) The Council may revoke the suspension at any time (unless the suspension was directed by the Commissioner). The Commissioner may at any time direct the Council to revoke the suspension (even if the suspension was not at the direction of the Commissioner).
(8) A decision to revoke a suspension need not be in response to any written representations made by the holder.
Section 80 (Return of local practising certificate) provides for the Council to require the return of a local practising certificate that has been suspended.
549 Appeal
(1) A person may appeal to the Supreme Court against a decision of the Commissioner or a Council under this Part to suspend or direct the suspension of a local practising certificate.
(2) The Supreme Court may make any order it considers appropriate on the appeal.
550 Other powers to suspend not affected
Nothing in this Part affects any other power under this Act to suspend a local practising certificate, and any such power may be exercised despite the existence of a power to suspend the certificate under this Part.
Part 4.8 – Proceedings in Tribunal
551 Commencement of proceedings
(1) Proceedings may be commenced in the Tribunal with respect to the whole or part of a complaint against an Australian legal practitioner by an application (a "disciplinary application") made by the Commissioner or a Council in accordance with this Chapter and containing one or more allegations of unsatisfactory professional conduct or professional misconduct.
(2) An allegation in the disciplinary application must relate to the subject-matter of the complaint but need not be an allegation made in the original complaint or have been the subject of separate or further investigation under this Chapter.
552 Time for commencing proceedings
(1) A disciplinary application may be made to the Tribunal at any time within 6 months after the Council or Commissioner decides that proceedings be commenced in the Tribunal with respect to the complaint concerned.
(2) Despite subsection (1), the Tribunal may, on application in writing by the Council or Commissioner, as the case may require, extend the time for making a disciplinary application.
(3) In exercising the power to extend the time for making a disciplinary application, the Tribunal is to have regard to all the circumstances of the case, and (without affecting the generality of the foregoing) the Tribunal is to have regard to the following:
(a) the public interest,
(b) the extent to which, having regard to the delay, there is or may be prejudice to the legal practitioner concerned by reason that evidence that would have been available if the application had been made within the 6-month period is no longer available,
(c) the reasonableness of the applicant's explanation for the delay in making the application.
(4) The time for making a disciplinary application may be extended under subsection (2) although that time has expired.
(5) This section has effect despite anything in section 44 of the Administrative Decisions Tribunal Act 1997 or the rules or regulations under that Act.
(6) For the purposes of subsection (1), a decision that proceedings be commenced is made when:
(a) the Council or Commissioner decides that there is a reasonable likelihood that the legal practitioner concerned will be found by the Tribunal to have engaged in unsatisfactory professional conduct or professional misconduct, as referred to in section 537 (2) (Decision of Commissioner or Council after investigation) or 538 (1) (Decision of Commissioner or Council without investigation), or
(b) the Commissioner decides to commence proceedings in the Tribunal against the legal practitioner concerned under section 545 (1) (h) (Decision of Commissioner on review).
(7) An official record or notification of a decision referred to in subsection (6) (a) or (b) and stating the date the decision was made is evidence that the decision was made and of the date the decision was made.
553 Hearings
The Tribunal is to conduct a hearing into each allegation particularised in a disciplinary application made to the Tribunal.
554 Joinder
The Tribunal may, subject to its rules and the rules of procedural fairness, order the joinder of more than one disciplinary application against the same or different Australian legal practitioners.
555 Variation of disciplinary application
(1) The Tribunal may vary a disciplinary application, on the application of the person who made the disciplinary application or on its own motion, so as to omit allegations or to include additional allegations, if satisfied that it is reasonable to do so having regard to all the circumstances.
(2) The Commissioner is to be regarded as the applicant in connection with a disciplinary application for the purposes of an application by the Commissioner under section 545 (1) (i) (Decision of Commissioner on review).
(3) Without limiting subsection (1), when considering whether or not it is reasonable to vary a disciplinary application, the Tribunal is to have regard to whether varying the disciplinary application will affect the fairness of the proceedings.
(4) The inclusion of an additional allegation is not precluded on any or all of the following grounds:
(a) the additional allegation has not been the subject of a complaint,
(b) the additional allegation has not been the subject of an investigation,
(c) the alleged conduct concerned occurred more than 3 years ago.
(5) (Repealed)
556 Nature of allegations
(1) A disciplinary application in respect of a complaint cannot be challenged on the ground that the allegations contained in the application do not deal with all of the matters raised in the complaint or deal differently with matters raised in the complaint or deal with additional matters.
(2) This section applies whether the allegations were included in the disciplinary application as made to the Tribunal or were included by way of variation of the application.
557 Substitution of applicant
(1) If a disciplinary application was made by the Commissioner, the Tribunal may, on the application of the Commissioner or a Council, and if satisfied that it is appropriate to do so, direct that a Council is to be regarded as the applicant in connection with the disciplinary application.
(1A) If a disciplinary application was made by a Council, the Tribunal may, on the application of the Commissioner or the Council, and if satisfied that it is appropriate to do so, direct that the Commissioner is to be regarded as the applicant in connection with the disciplinary application.
(2) This section has effect even if a hearing of the matter has commenced before the Tribunal.
558 Rules of evidence
(1) For the purpose of conducting a hearing into a question of professional misconduct, the Tribunal is to observe the rules of law governing the admission of evidence despite any contrary provisions of section 73 (Procedure of the Tribunal generally) of the Administrative Decisions Tribunal Act 1997.
(2) In relation to the conduct of any other hearing of a matter allocated to the Legal Services Division of the Tribunal by the Administrative Decisions Tribunal Act 1997, section 73 of that Act applies to the determination of that matter.
559 Parties
(1) The following persons are entitled to appear at a hearing conducted by the Tribunal:
(a) the Australian legal practitioner against whom the complaint has been made,
(b) the relevant Council,
(c) the Commissioner,
(d) the Attorney General.
(2) The complainant is entitled to appear at the hearing in respect of the following aspects:
(a) those aspects of the hearing that relate to a request by the complainant for a compensation order,
(b) without limiting paragraph (a), those aspects of the hearing that relate to a review of decision made under section 540 (Summary conclusion of complaint procedure by caution, reprimand, compensation order or imposition of conditions) to reprimand or make a compensation order against the practitioner,
(c) other aspects of the hearing, but only if the Tribunal grants leave to the complainant to appear in respect of them.
(3) The Tribunal may grant leave to any other person to appear at the hearing if satisfied that it is appropriate for that person to appear at the hearing.
(4) Despite section 71 of the Administrative Decisions Tribunal Act 1997, a person who is entitled to appear at the hearing or who is granted leave to appear at the hearing may appear personally or be represented by an Australian legal practitioner or (with the leave of the Tribunal) by any other person.
(5) Any person who appears at a hearing (otherwise than as a witness) is taken to be a party to the proceedings concerned.
560 Hearings to be conducted in public
(1) All hearings conducted by the Tribunal into allegations of unsatisfactory professional conduct or professional misconduct are to be open to the public, unless the Tribunal decides to make an order under section 75 of the Administrative Decisions Tribunal Act 1997.
(2) In deciding whether to make an order under section 75 of the Administrative Decisions Tribunal Act 1997 and without affecting the generality of that section, the Tribunal is to have regard to the desirability of protecting from disclosure any material that is the subject of client legal privilege or any duty of confidentiality.
(3) Without limiting the generality of section 75 of the Administrative Decisions Tribunal Act 1997:
(a) the Tribunal may, at any stage of the proceedings, make orders regarding non-disclosure of information obtained under or for the purposes of this Part from or about a client of an Australian legal practitioner where the information is the subject of client legal privilege or any duty of confidentiality, and
(b) the orders may apply to persons generally or to specified persons.
(4) This section has effect whether or not the client has waived the client legal privilege or the benefit of the duty of confidentiality, and whether or not the information was obtained before or after the proceedings were commenced.
(5) The Tribunal may under section 131 (Contempt of Tribunal) of the Administrative Decisions Tribunal Act 1997 report to the Supreme Court a contravention by a person of an order under this section as a matter under subsection (1) (j) of that section.
561 Procedural lapses and defects in appointments
(1) The Tribunal may order that a failure by the Commissioner or a Council, or a person acting for them or under their direction, to observe a procedural requirement in relation to a complaint (including the making, investigation or referral of a complaint, the giving of notice in connection with a complaint, or the making of a decision in connection with a complaint) is to be disregarded, if satisfied that:
(a) the failure has not caused substantial injustice to the parties to the hearing, or
(b) any substantial injustice caused by the failure is outweighed by the public interest in having the complaint dealt with by the Tribunal, or
(c) any substantial injustice caused by the failure can be remedied by an order of the Tribunal.
(2) Subsection (1) applies to a failure occurring before proceedings were commenced in the Tribunal in relation to the complaint as well as to a failure occurring afterwards.
(3) A defect or irregularity in the appointment of any person exercising, or purporting to exercise, a power or function under this Chapter or Chapter 6 does not invalidate an act done or omitted by the person in good faith.
562 Determinations of Tribunal
(1) Orders generally If, after it has completed a hearing under this Part in relation to a complaint against an Australian legal practitioner, the Tribunal is satisfied that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct, the Tribunal may make such orders as it thinks fit, including any one or more of the orders specified in this section.
(2) Orders requiring official implementation in this jurisdiction The Tribunal may make the following orders under this subsection:
(a) an order that the name of the practitioner be removed from the local roll,
(b) an order that the practitioner's local practising certificate be suspended for a specified period or cancelled,
(c) an order that a local practising certificate not be issued to the practitioner before the end of a specified period,
(d) an order that:
(i) specified conditions be imposed on the practitioner's practising certificate issued or to be issued under this Act, and
(ii) the conditions be imposed for a specified period, and
(iii) specifies the time (if any) after which the practitioner may apply to the Tribunal for the conditions to be amended or removed,
(e) an order reprimanding the practitioner,
(f) an order that the name of the practitioner be removed from the roll of public notaries maintained under the Public Notaries Act 1997.
(3) Orders requiring official implementation in another jurisdiction The Tribunal may make the following orders under this subsection:
(a) an order recommending that the name of the practitioner be removed from an interstate roll,
(b) an order recommending that the practitioner's interstate practising certificate be suspended for a specified period or cancelled,
(c) an order recommending that an interstate practising certificate not be granted to the practitioner before the end of a specified period,
(d) an order recommending that:
(i) specified conditions be imposed on the practitioner's interstate practising certificate, and
(ii) the conditions be imposed for a specified period, and
(iii) the conditions specify the time (if any) after which the practitioner may apply to the Tribunal for the conditions to be amended or removed.
(4) Orders requiring compliance by practitioner The Tribunal may make the following orders under this subsection:
(a) an order that the practitioner pay a fine of a specified amount,
(b) an order that the practitioner undertake and complete a specified course of further legal education,
(c) an order that the practitioner undertake a specified period of practice under supervision,
(d) an order that the practitioner do or refrain from doing something in connection with the practice of law,
(e) an order that the practitioner cease to accept instructions as a public notary in relation to notarial services,
(f) an order that the practitioner's practice, or the financial affairs of the practitioner or of the practitioner's practice, be conducted for a specified period in a specified way or subject to specified conditions,
(g) an order that the practitioner's practice be subject to periodic inspection for a specified period,
(h) an order that the practitioner undergo counselling or medical treatment or act in accordance with medical advice given to the practitioner,
(i) an order that the practitioner use the services of an accountant or other financial specialist in connection with the practitioner's practice,
(j) an order that the practitioner not apply for a local practising certificate before the end of a specified period.
This subsection is not an exhaustive statement of orders that must be complied with by the practitioner.
(5) Ancillary or other orders The Tribunal may make ancillary or other orders, including an order for payment by the practitioner of expenses associated with orders under subsection (4), as assessed or reviewed in or in accordance with the order or as agreed.
(6) Alternative finding The Tribunal may find that a person has engaged in unsatisfactory professional conduct even though the complaint or disciplinary application alleged professional misconduct or may find that a person has engaged in professional misconduct even though the complaint or disciplinary application alleged unsatisfactory professional conduct.
(7) Maximum fine The amount ordered by the Tribunal under this section to be paid by way of fines by any one Australian legal practitioner in connection with the Tribunal's findings about a complaint must not exceed in total:
(a) $10,000 in the case of unsatisfactory professional conduct not amounting to professional misconduct, or
(b) $75,000 in the case of professional misconduct.
If the Tribunal finds that the practitioner has engaged in both professional misconduct and unsatisfactory professional conduct not amounting to professional misconduct, the amount must not exceed $75,000 in total.
(8) Reprimands If the Tribunal makes an order reprimanding the practitioner, the Tribunal is to publish the order and a statement of its reasons for making the order.
(9) It is sufficient compliance with the requirement to publish an order under subsection (8) if the Tribunal provides to the Commissioner sufficient information to enable the Commissioner to exercise the Commissioner's powers or functions in respect of the Register of Disciplinary Action required to be kept under Part 4.10 (Publicising disciplinary action).
(10) (Repealed)
563 Interlocutory and interim orders
(1) The Tribunal may make interlocutory or interim orders as it thinks fit before making its final decision about a complaint against an Australian legal practitioner.
(2) Without limiting subsection (1), orders of the kinds referred to in section 562 (Determinations of Tribunal) may be made as interlocutory or interim orders.
564 Consent orders
(1) The Tribunal may, with the consent of the Australian legal practitioner concerned contained in a written instrument, make orders under this Part without conducting or completing a hearing in relation to the complaint.
(2) Consent may be given before or after the proceedings were commenced in the Tribunal with respect to the complaint.
(3) If consent is given before the proceedings were commenced, the requirement to conduct an investigation of the complaint (whether commenced or not) may be dispensed with, and any investigation of the complaint already being conducted may be suspended or terminated.
(4) This section does not apply to consent given by the practitioner unless the practitioner, the Commissioner and (if applicable) the relevant Council have agreed on the terms of an instrument of consent.
(5) Without limiting what may be included in the instrument of consent, the instrument is to contain an agreed statement of facts (including as to the grounds of complaint) and may contain undertakings on the part of the practitioner.
(6) The instrument of consent must be filed with the Tribunal.
(7) Nothing in this section affects the procedures regarding the commencement of proceedings in the Tribunal where consent was given before the proceedings are commenced.
(8) If consent was given before the proceedings are commenced, the proceedings are nevertheless to be commenced with respect to the complaint in the same way as if the consent had not yet been given.
(9) The Tribunal is to be constituted in the same way as for the conduct of a hearing into the complaint.
(10) In deciding whether to make orders under this Part pursuant to an instrument of consent, the Tribunal may make such inquiries of the parties as it thinks fit and may, despite any such consent, conduct or complete a hearing in relation to the complaint if it considers it to be in the public interest to do so.
565 Compliance with determinations and orders
(1) Persons and bodies having relevant powers or functions under this Act must:
(a) give effect to any order of the Tribunal made under section 562 (Determinations of Tribunal), 563 (Interlocutory and interim orders) or 564 (Consent orders) that requires official implementation in this jurisdiction, and
(b) enforce any order of the Tribunal made under any of those sections that requires compliance by an Australian legal practitioner (except to the extent that the order relates to the practitioner's practice of law in another jurisdiction).
Section 588 (Compliance with orders made under corresponding laws) contains provisions relating to compliance in this jurisdiction with orders made under corresponding laws.
(2) The applicant that made the disciplinary application concerned must ensure that persons and bodies having relevant powers or functions under a corresponding law of another jurisdiction are notified of the making and contents of:
(a) any order of the Tribunal made under section 562 (Determinations of Tribunal), 563 (Interlocutory and interim orders) or 564 (Consent orders) that requires official implementation in the other jurisdiction, and
(b) any order of the Tribunal made under any of those sections that requires compliance by an Australian legal practitioner (to the extent that the order relates to the practitioner's practice of law in the other jurisdiction).
(3) If the Tribunal makes an order that the name of an Australian legal practitioner who is a local lawyer be removed from the local roll, the Supreme Court is to order the removal of the name from the roll.
(4) If the Tribunal makes an order that an Australian legal practitioner pay a fine, a copy of the order may be filed in the registry of a court having jurisdiction to give judgment for a debt of the same amount as the amount of the fine and the order may be enforced as if it were an order of the court.
(5) Any fine imposed on a legal practitioner by the Tribunal must be paid in the manner and within the period specified by the Tribunal and is to be paid to the Public Purpose Fund.
566 Costs
(1) The Tribunal must make orders requiring an Australian legal practitioner whom it has found to have engaged in unsatisfactory professional conduct or professional misconduct to pay costs (including costs of the Commissioner, a Council and the complainant), unless the Tribunal is satisfied that exceptional circumstances exist.
(2) The Tribunal may make orders requiring an Australian legal practitioner whom it has not found to have engaged in unsatisfactory professional conduct or professional misconduct to pay costs (including costs of the Commissioner, a Council and the complainant), if satisfied that:
(a) the sole or principal reason why the proceedings were commenced in the Tribunal was a failure of the practitioner to co-operate with the Commissioner or a Council, or
(b) the practitioner has contravened an order of the Tribunal made in the course of proceedings concerned, or
(c) there is some other reason warranting the making of an order in the particular circumstances.
(3) The Tribunal may make orders requiring payment of an Australian legal practitioner's costs from the Public Purpose Fund, but may do so only if satisfied that the practitioner did not engage in unsatisfactory professional conduct or professional misconduct and the Tribunal considers that special circumstances warrant the making of the orders. The Tribunal is to have regard to the length and complexity of the proceedings when making a determination under this subsection.
(4) The Tribunal may make orders requiring an Australian legal practitioner in respect of whom proceedings are pending before the Tribunal to pay costs on a interlocutory or interim basis.
(5) The Tribunal may make orders requiring a person to pay costs (including, as appropriate, the costs of the Commissioner, a Council, the complainant and the Australian legal practitioner against whom the complaint was made), if satisfied that:
(a) the person, whether before or during the proceedings, failed to produce or delayed in producing any document required or requested to be produced, and
(b) the failure or delay contributed to delay in commencing, conducting or concluding the proceedings in such a way as to warrant the making of the orders.
(6) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under Part 3.2.
(7) An order for costs may specify the terms on which costs must be paid.
Section 82 of the Administrative Decisions Tribunal Act 1997 makes provision for the recovery of costs.
567 Notification of progress and result of proceedings before Tribunal
(1) The applicant in connection with a disciplinary application made to the Tribunal must cause the complainant to be notified in writing of the determination of the Tribunal.
(2) This section does not apply in relation to an official complaint.
568 Early termination of proceedings before Tribunal
(1) Proceedings before the Tribunal with respect to a complaint cannot be terminated, whether by withdrawal of the disciplinary application or otherwise, before the Tribunal makes its final decision about the complaint, without the leave of the Tribunal.
(2) The Tribunal may give leave for the purposes of this section if it is satisfied that continuation of the proceedings is not warranted in the public interest.
569 Other remedies not affected
This Part does not affect any other remedy available to a complainant.
Part 4.9 – Compensation
570 Request by complainant for compensation order
(1) A complainant may request a compensation order in respect of loss suffered by:
(a) the complainant, or
(b) another person who is a client of the law practice to which the Australian legal practitioner concerned belongs,
(or both) because of the conduct the subject of the complaint. The complainant, or other person, suffering the loss is referred to in this Part as an "aggrieved person".
(2) A complainant who makes such a request must describe the loss suffered by the aggrieved person and the relevant circumstances.
(3) Such a request may be made in the complaint. The request may also be made, by notice in writing to the Commissioner or the relevant Council, at any time after the making and before the disposal of the complaint.
(4) However, such a request may not be made after proceedings have been commenced in the Tribunal with respect to the complaint unless the Tribunal grants the complainant leave to make the request.
(5) Such a request may only be made within 6 years after the conduct that caused the loss is alleged to have occurred.
571 Compensation orders
(1) A compensation order is an order, made in respect of a complaint against an Australian legal practitioner, to compensate the aggrieved person for loss suffered because of conduct that is the subject of the complaint.
(2) A compensation order consists of one or more of the following:
(a) an order that the practitioner cannot recover or must repay the whole or a specified part of the amount charged to the aggrieved person by the practitioner in respect of specified legal services,
(b) an order discharging a lien possessed by the practitioner in respect of a specified document or class of documents,
(c) an order that the practitioner pay to the aggrieved person, by way of monetary compensation for the loss, a specified amount.
(3) A compensation order under subsection (2) (a) preventing recovery of an amount is effective even if proceedings to recover the amount (or any part of it) have been commenced by or on behalf of the practitioner.
(4) A compensation order under subsection (2) (a) requiring repayment of an amount is effective even if a court has ordered payment of the amount (or an amount of which it is part) in proceedings brought by or on behalf of the practitioner.
(5) A compensation order under subsection (2) (c) requiring payment of an amount exceeding:
(a) $25,000, except where paragraph (b) applies, or
(b) $10,000, where the order is made by:
(i) the Commissioner or a Council under section 540 (Summary conclusion of complaint procedure by caution, reprimand, compensation order or imposition of conditions) or section 573 (3) (Making of compensation orders), or
(ii) the Commissioner under section 545 (Decision of Commissioner on review),
is not to be made unless the complainant and the practitioner both consent to the order.
572 Prerequisites to making of compensation orders
(1) Unless the complainant and the Australian legal practitioner concerned agree, a compensation order is not to be made unless the person or body making it is satisfied:
(a) that the aggrieved person has suffered loss because of the conduct concerned, and
(b) that it is in the interests of justice that the order be made.
(2) A compensation order is not to be made in respect of any loss for which the aggrieved person has received or is entitled to receive:
(a) compensation received or receivable under an order that has been made by a court, or
(b) compensation paid or payable from a Fidelity Fund of any jurisdiction, where a relevant claim for payment from the Fund has been made or determined.
573 Making of compensation orders
(1) If the Tribunal has found that an Australian legal practitioner has engaged in unsatisfactory professional conduct or professional misconduct in relation to a complaint, the Tribunal may:
(a) make a compensation order, or
(b) refer the matter to the Commissioner for the making of a compensation order.
(2) The Commissioner may make a compensation order if the Tribunal has referred the matter to the Commissioner for the making of a compensation order. A compensation order made under this subsection is taken to have been made by the Tribunal for the purposes of section 729A (Appeals against orders and decisions of Tribunal).
(3) The Commissioner or relevant Council may:
(a) where proceedings are not proposed to be commenced in the Tribunal with respect to the complaint concerned--make a compensation order referred to in:
(i) section 539 or 540 (in the case of the Commissioner or Council), or
(ii) section 545 (in the case of the Commissioner), or
(b) where proceedings are proposed to be commenced in the Tribunal with respect to the complaint concerned--make a compensation order before the proceedings are commenced, if the Commissioner or Council is satisfied that the Australian legal practitioner against whom the complaint is made is likely to be found to have engaged in unsatisfactory professional conduct or professional misconduct.
(4) To avoid any doubt, subsection (3) (b) extends to the making of a compensation order referred to in section 545, where proceedings are proposed to be commenced in the Tribunal with respect to the complaint concerned.
(5) If the Commissioner or relevant Council decides to make a compensation order against an Australian legal practitioner under subsection (3) (b), the practitioner may apply to the Tribunal for a review of the decision. The review is to be undertaken by the Tribunal:
(a) when conducting a hearing with respect to the complaint, or
(b) if the matter does not proceed to a hearing or the proceedings with respect to the complaint are terminated--during separate proceedings with respect to the application for review.
Reviews are carried out under Chapter 5 of the Administrative Decisions Tribunal Act 1997. Section 729A modifies the operation of that Act. An appeal lies to the Supreme Court under section 729A against a decision of the Administrative Decisions Tribunal.
(6) If:
(a) the Commissioner or relevant Council makes a compensation order, and
(b) proceedings are subsequently commenced in the Tribunal with respect to the complaint concerned,
the Tribunal may make a further order under subsection (1), but the order, if requiring payment of an amount (when added to the amount in the original order) exceeding $25,000, is not to be made unless the complainant and the Australian legal practitioner both consent to the order.
(7) A compensation order may specify the person to whom monetary compensation is payable, whether to the aggrieved person or to another person on behalf of the aggrieved person.
574 Enforcement of compensation orders
(1) A copy of a compensation order made by the Commissioner or a Council may be filed in the Local Court and the order (so far as it relates to any amount payable under the order) may be enforced as if it were an order of the court. A compensation order made by the Tribunal is enforceable under section 82 of the Administrative Decisions Tribunal Act 1997.
(2) (Repealed)
575 Other remedies not affected
The recovery of compensation awarded under this Part does not affect any other remedy available to an aggrieved person, but any compensation so awarded is to be taken into account in any other proceedings by or on behalf of the aggrieved person in respect of the same loss.
Part 4.10 – Publicising disciplinary action
576 Definitions
In this Division:
"disciplinary action" against an Australian legal practitioner means any of the following actions taken under a law of this or another jurisdiction, whether or not taken under this Chapter or under provisions of a corresponding law that correspond to this Chapter:
(a) the suspension or cancellation of the Australian practising certificate of the practitioner,
(b) the refusal to grant or renew an Australian practising certificate applied for by the practitioner (other than a refusal on the ground that the practitioner is not eligible to apply for the grant or renewal),
(c) the removal of the name of the practitioner from an Australian roll,
(d) the making of an order by a court or tribunal, or by another person or body, for or following a finding of unsatisfactory professional conduct or professional misconduct by the practitioner, other than an order cautioning the practitioner,
(e) the reprimanding of the practitioner, or the making of a compensation order against the practitioner, by a person or body without a formal finding of unsatisfactory professional conduct or professional misconduct,
(f) the appointment of a manager or receiver for a legal practice of which the practitioner is a legal practitioner associate, where the associate is specified or referred to in the notice of appointment served on the law practice. Sections 625 and 632 (Effect of service of notice of appointment) refer to service of such a notice.
577 Register of Disciplinary Action
(1) The Commissioner is to keep a register (in this Act referred to as the "Register of Disciplinary Action") of:
(a) disciplinary action taken under this Act against Australian legal practitioners, and
(b) disciplinary action taken under a corresponding law against Australian legal practitioners who are or were enrolled or practising in this jurisdiction when the conduct that is the subject of the disciplinary action occurred, and
(c) disciplinary action taken under a corresponding law against Australian legal practitioners who are enrolled or practising in this jurisdiction if the disciplinary action was recorded on a register of disciplinary action kept under the corresponding law when the practitioner became enrolled or commenced to practise in this jurisdiction.
(2) The Register is to include:
(a) the full name of the person against whom the disciplinary action was taken (including any name by which the person was previously known and any name by which the person becomes known after the disciplinary action is taken), and
(b) the person's business address or former business address, and
(c) the person's home jurisdiction or most recent home jurisdiction, and
(d) particulars of the disciplinary action taken, and
(e) other particulars prescribed by the regulations.
(3) The Register may be kept in a form determined or identified by the Commissioner and may form part of other registers.
(4) The Register is to be made available for public inspection on:
(a) the internet site of the Commissioner, or
(b) an internet site identified on the internet site of the Commissioner.
(5) Information recorded in the Register may be provided to members of the public in any other manner approved by the Commissioner.
(6) The Commissioner may cause any error in or omission from the Register to be corrected.
(7) The requirement to keep the Register applies only in relation to disciplinary action taken after the commencement of this section, but details relating to earlier disciplinary action may be included in the Register.
(8) A Council or the Tribunal must provide to the Commissioner sufficient information to enable the Commissioner to exercise the Commissioner's functions in respect of the Register.
578 Other means of publicising disciplinary action
(1) The Commissioner or Council may publicise disciplinary action taken against an Australian legal practitioner in any manner the Commissioner or Council thinks fit.
(2) Nothing in this section affects the provisions of this Part relating to the Register.
579 Quashing of disciplinary action
(1) If disciplinary action is quashed on appeal or review, any reference to that disciplinary action must be removed from the Register.
(2) If disciplinary action is quashed on appeal or review after the action was publicised by the Commissioner or a Council under section 578 (Other means of publicising disciplinary action), the result of the appeal or review must be publicised with equal prominence by the Commissioner or Council.
580 Liability for publicising disciplinary action
(1) No liability is incurred by a protected person in respect of anything done or omitted to be done in good faith for the purpose of:
(a) publicising disciplinary action taken against an Australian legal practitioner, or
(b) exercising the powers or functions of the Commissioner or a Council under this Part, or
(c) keeping, publishing or enabling access to the Register.
(2) Without limiting subsection (1), no liability (including liability in defamation) is incurred by a person publishing in good faith:
(a) information about disciplinary action:
(i) recorded in the Register, or
(ii) otherwise publicised by the Commissioner or a Council under this Part,
or matter purporting to contain information of that kind where the matter is incorrect in any respect, or
(b) a fair report or summary of that information.
(3) In this section:"protected person" means:
(a) the State, or
(b) the Commissioner, or
(c) a Council, or
(d) a person responsible for keeping the whole or any part of the Register, or
(e) an internet service provider or internet content host, or
(f) a member of staff of or a person acting at the direction of an authority of the State or any person or body referred to in this definition.
581 Disciplinary action taken where infirmity, injury or illness is involved
(1) Disciplinary action taken against a person is not to be recorded in the Register or otherwise publicised under this Part if the action was taken because of the person's inability properly to carry out the requirements of legal practice and the inability arises wholly or principally from infirmity, injury or mental or physical illness.
(2) Subsection (1) does not apply where the disciplinary action involves:
(a) the suspension or cancellation of the person's Australian practising certificate, or
(b) a refusal to grant or renew an Australian practising certificate applied for by the person, or
(c) a restriction or prohibition on the person's right to engage in legal practice,
but in that case the reason for the disciplinary action, and any other information relating to the infirmity, injury or mental or physical illness, is not to be recorded in the Register or otherwise publicised under this Division without the person's consent.
582 Effect of secrecy provisions and non-disclosure orders
(1) The provisions of this Part apply despite any confidentiality or secrecy provisions of this Act.
(2) The provisions of this Part are subject to any order made by:
(a) the Tribunal in relation to disciplinary action taken under this Chapter, or
(b) a corresponding disciplinary body in relation to disciplinary action taken under provisions of a corresponding law that correspond to this Chapter, or
(c) a court or tribunal of this or another jurisdiction,
so far as the order prohibits or restricts the disclosure of information.
(3) Despite subsection (2), the name and other identifying particulars of the person against whom the disciplinary action was taken, and the kind of disciplinary action taken, must be recorded in the Register in accordance with the requirements of this Part and may be otherwise publicised under this Part.
Part 4.11 – Inter-jurisdictional provisions
583 Protocols
(1) The Commissioner may, after consultation with the Councils, enter into arrangements (referred to in this Part as "protocols") with corresponding authorities for or with respect to investigating and dealing with conduct that appears to have occurred in more than one jurisdiction.
(2) In particular, the protocols may make provision for or with respect to:
(a) providing principles to assist in determining where conduct occurs, either generally or in specified classes of cases, and
(b) giving and receiving consent for conduct occurring in a jurisdiction to be dealt with under a law of another jurisdiction, and
(c) the procedures to be adopted for requesting and conducting the investigation of any aspect of complaints under this Chapter.
584 Request to another jurisdiction to investigate complaint
(1) The Commissioner or a Council may request a corresponding authority to arrange for the investigation of any aspect of a complaint being dealt with by the Commissioner or Council and to provide a report on the result of the investigation.
(2) A report on the result of the investigation received from:
(a) the corresponding authority, or
(b) a person or body authorised by the corresponding authority to conduct the investigation,
may be used and taken into consideration by the Commissioner or Council and the Tribunal in the course of dealing with the complaint under this Chapter.
585 Request from another jurisdiction to investigate complaint
(1) This section applies in relation to a request received by the Commissioner or a Council from a corresponding authority to arrange for the investigation of any aspect of a complaint being dealt with under a corresponding law.
(2) The Commissioner or Council may conduct the investigation or authorise another regulatory authority of this jurisdiction to conduct it.
(3) The provisions of this Chapter relating to the investigation of a complaint apply, with any necessary adaptations, in relation to the investigation of the relevant aspect of the complaint that is the subject of the request.
(4) The Commissioner or Council or other regulatory authority of this jurisdiction must provide a report on the result of the investigation to the corresponding authority.
586 Sharing of information with corresponding authorities
The Commissioner and the Councils may separately or jointly enter into arrangements with a corresponding authority for providing information to the corresponding authority about:
(a) complaints and investigations under this Chapter, and
(b) any action taken with respect to any complaints made or investigations conducted under this Chapter, including determinations of the Tribunal under this Chapter.
587 Co-operation with other authorities
(1) When dealing with a complaint or conducting an investigation, the Commissioner and the Councils may separately or jointly consult and co-operate with another person or body (whether in or of Australia or a foreign country) who or which has or may have relevant information or powers in relation to the person against whom the complaint was made or the person under investigation.
(2) For the purposes of subsection (1), the Commissioner and Councils and the other person or body may exchange information concerning the complaint or investigation.
588 Compliance with orders made under corresponding laws
(1) Persons and bodies having relevant powers or functions under this Act must:
(a) give effect to or enforce any recommendation or order of a corresponding disciplinary body or other corresponding authority made under a corresponding law in relation to powers exercisable under this Act, and
(b) give effect to or enforce any recommendation or order of a corresponding disciplinary body or other corresponding authority made under a corresponding law so far as the recommendation or order relates to the practice of law by the Australian legal practitioner concerned in this jurisdiction.
(2) If a corresponding disciplinary body makes a recommendation or order that a person's name be removed from the roll of lawyers under this Act, the Supreme Court must order the removal of the name from the local roll kept under section 32 (Roll of local lawyers).
(3) If a corresponding disciplinary body makes a recommendation or order that an Australian legal practitioner pay a fine, a copy of the recommendation or order may be filed in the registry of a court having jurisdiction to give judgment for a debt of the same amount as the amount of the fine and the recommendation or order may be enforced as if it were an order of the court.
589 Other powers or functions not affected
Nothing in this Part affects any powers or functions that a person or body has apart from this Part.
Part 4.12 – Miscellaneous
590 Jurisdiction of Supreme Court
The inherent jurisdiction and powers of the Supreme Court with respect to the control and discipline of local lawyers are not affected by anything in this Chapter, and extend to:
(a) local legal practitioners, and
(b) interstate legal practitioners engaged in legal practice in this jurisdiction.
591 Rules of procedural fairness
The rules of procedural fairness, to the extent that they are not inconsistent with the provisions of this Act or the regulations, apply in relation to the investigation of complaints and the procedures of the Commissioner and the Councils under this Chapter.
592 Duty to deal with complaints efficiently and expeditiously
It is the duty of the Commissioner and the Councils to deal with complaints (including any investigations) as efficiently and expeditiously as is practicable.
593 Information about complaints procedure
(1) Each Council and the Commissioner must ensure that information appropriate to the interests and needs of lay persons and relating to the scheme established by this Chapter, including information about:
(a) the complaints system, including the manner of making complaints, and
(b) the procedure for dealing with complaints,
is readily available to members of the public.
(2) Each Council and Commissioner must provide assistance to members of the public in making complaints.
(3) Each Council and the Commissioner must ensure that information appropriate to the interests and needs of legal practitioners and relating to the scheme established by this Chapter, including information about:
(a) the operation of the scheme, and
(b) the procedures adopted in relation to the scheme,
is readily available to legal practitioners.
594 Co-operation and information sharing between Commissioner and Councils
The Commissioner and the Councils must consult and co-operate with each other when dealing with a complaint or conducting an investigation under this Chapter and for that purpose may exchange information about:
(a) complaints and investigations under this Chapter, and
(b) any action taken with respect to any complaints made or investigations conducted under this Chapter.
595 Pre-complaint powers where client is denied access to documents
(1) The Commissioner or a Council may exercise powers under this section for the purpose of assisting a client of an Australian legal practitioner to decide whether to make a complaint in relation to an Australian legal practitioner.
(2) The Commissioner or Council may, by notice in writing served on the practitioner, require the practitioner to produce, at a specified time and place and to a specified person, any specified document (or a copy of the document), if:
(a) the document relates to a matter conducted or being conducted for the client, and
(b) the practitioner refuses to give the document to the client or to give the client access to the document, whether because of a lien claimed by the practitioner or otherwise.
(3) The place specified in the notice at which the document is to be produced must be:
(a) an office of the Commissioner or Council, unless paragraph (b) applies, or
(b) if the office of the practitioner is in an area prescribed by the regulations--a place within a distance prescribed by or determined under the regulations from that office.
(4) The person specified in the notice to whom the document is to be produced must be:
(a) in the case of a notice given by the Commissioner--a person (whether or not an Australian legal practitioner) nominated by the Commissioner and acting as agent of the Commissioner, or
(b) in the case of a notice given by a Council--an Australian legal practitioner acting as agent of the Council.
(5) The Commissioner or Council may:
(a) inspect and make notes from the document, and
(b) retain the document for a period the Commissioner or Council thinks necessary for the purpose referred to in subsection (1).
(6) The client may inspect and take notes from the document under the supervision of the specified person at the specified place for a reasonable period.
(7) The practitioner is entitled to the return of any document following an inspection under this section.
(8) Section 672 (General provisions relating to requirements under this Division) (other than section 672 (4)) applies to the requirement specified in a notice under this section in the same way as it applies to a requirement imposed on a person under section 659 (Requirement to provide access to documents and information relating to affairs of law practice).
(9) If a complaint is made in relation to the practitioner while the document is in the custody of the Commissioner or Council and the document is relevant to the complaint, an investigator under this Chapter may take custody of and retain the document as if it had been produced under section 659 (Requirement to provide access to documents and information relating to affairs of law practice).
(10) Nothing in this section prevents the Commissioner or Council making a complaint arising wholly or partly in connection with the document or the matter to which the document relates.
(11) This section does not authorise the Commissioner or Council to copy the whole or a part of the document (otherwise than by making notes from the document) or require a copy of the whole or a part of the document to be made, but the Commissioner or Council may accept such a copy if it is voluntarily offered.
596 Failure to comply with orders
(1) (Repealed)
(2) A person who fails to comply with an order of the Tribunal under this Act or an order of a corresponding disciplinary body under a corresponding law is not entitled to apply for the grant or renewal of a local practising certificate while the failure continues.
597 Performance criteria
(1) The Councils and the Commissioner must jointly develop performance criteria relating to the handling of complaints under this Chapter.
(2) Each Council is to include the relevant criteria in its annual report under this Act, together with an assessment of its performance against the criteria in the period to which the report relates.
criteria in the period to which the report relates.
(4) The Councils and the Commissioner are to ensure that the assessments referred to in subsections (2) and (3) are done in the same or a consistent manner, so as to facilitate assessment of the performance of the complaint handling system.
598 Reports to Attorney General
(1) The Commissioner and each Council must submit to the Attorney General, at the times and in respect of the periods required by the Attorney General, reports on their respective handling of complaints.
(2) A report is to deal with matters specified by the Attorney General and other matters the Commissioner or Council considers appropriate to include in the report.
(3) The obligations under this section are in addition to any obligations to provide an annual or other report under this or any other Act.
599 Conditions imposed under this Chapter
Any requirements of Chapter 2 (General requirements for engaging in legal practice) relating to the imposition of conditions do not apply to conditions imposed under this Chapter.
600 Effect of other proceedings
A complaint may be made and dealt with even though the Australian legal practitioner concerned is the subject of proposed or current criminal or civil proceedings relating to the subject-matter of the complaint.
601 Protection from liability
(1) A matter or thing done or omitted to be done by:
(a) the Commissioner, or
(b) the Bar Association or Law Society, or
(c) a Council or any member of a Council, or
(d) a committee or subcommittee of a Council or any member of a committee or subcommittee, or
(e) any person involved in the conduct of an investigation under this Part, or
(f) the Tribunal or any member of the Tribunal, or
(g) the Registrar of the Tribunal, or
(h) a mediator to whom a matter is referred under this Chapter, or
(i) any other person exercising a power or function under this Chapter, or
(j) any member of the staff of any of the above,
does not, if the matter or thing was done or omitted to be done in good faith for the purpose of the administration of this Chapter, subject a protected person personally to any action, liability, claim or demand.
(2) In this section:"protected person" means any of the following natural persons:
(a) the Commissioner,
(b) a member of a Council or committee or subcommittee of a Council,
(c) a person involved in the conduct of an investigation under this Chapter,
(d) a member or the Registrar of the Tribunal,
(e) a mediator to whom a matter is referred under this Chapter,
(f) a member of the staff of the Commissioner, the Bar Association, the Law Society or the Tribunal.
602 Non-compellability of certain witnesses
(1) A person referred to in section 601 (Protection from liability) is not compellable in any legal proceedings (including proceedings before the Tribunal) to give evidence or produce documents in respect of any matter in which the person was involved in the course of the administration of this Chapter.
(2) This section does not apply to:
(a) proceedings under Part 3 of the Royal Commissions Act 1923, or
(b) proceedings before the Independent Commission Against Corruption, or
(c) proceedings under Part 3 of the Special Commissions of Inquiry Act 1983, or
(d) an inquiry under the Ombudsman Act 1974.
603 Confidentiality of client communications
An Australian legal practitioner must comply with a requirement under this Chapter to answer a question or to produce information or a document, despite any duty of confidentiality in respect of a communication between the practitioner and a client.
604 Waiver of privilege or duty of confidentiality
(1) If a client of an Australian legal practitioner makes a complaint about the practitioner, the complainant is taken to have waived client legal privilege, or the benefit of any duty of confidentiality, to enable the practitioner to disclose to the appropriate authorities any information necessary for investigating and dealing with the complaint.
(2) Without limiting subsection (1), any information so disclosed may be used in or in connection with any procedures or proceedings relating to the complaint.
605 Undertakings by Commissioner or Council regarding privileged or confidential information
(1) The Commissioner or a Council may give undertakings regarding non-disclosure of information obtained under or for the purposes of this Chapter from or about a client of an Australian legal practitioner where the information is the subject of client legal privilege or any duty of confidentiality.
(2) An undertaking cannot be inconsistent with any duty of the Commissioner or Council under this or any other Act to disclose information.
(3) This section has effect whether or not the client has waived the client legal privilege or the benefit of the duty of confidentiality.
606, 607 (Repealed)
608 Undertakings by practitioner
(1) This section applies if an Australian legal practitioner gives an undertaking to the Commissioner, a Council or the Tribunal in the course of:
(a) the Commissioner or a Council investigating or dealing with a complaint against the practitioner, or
(b) a mediation conducted in connection with a complaint against or a consumer dispute with the practitioner, or
(c) proceedings before the Tribunal.
(2) A breach of the undertaking is capable of being unsatisfactory professional conduct or professional misconduct.
(3) Nothing in this section implies that breaches of other undertakings are not capable of being unsatisfactory professional conduct or professional misconduct.
609 Investigations not related to complaints under this Chapter
This Chapter does not affect the power of a Council to conduct an investigation into the affairs of an Australian legal practitioner or law practice under the provisions of any other Part of this Act or under any other Act.
Chapter 5 – External intervention
Part 5.1 – Preliminary
610 Purpose
(1) The purpose of this Chapter is to ensure that an appropriate range of options is available for intervention in the business and professional affairs of law practices and Australian-registered foreign lawyers for the purpose of protecting the interests of:
(a) the general public, and
(b) clients, and
(c) lawyers, including the owners and employees of law practices, so far as their interests are not inconsistent with those of the general public and clients.
(2) It is intended that interventions occur consistently with:
(a) similar interventions in other jurisdictions, especially where a law practice operates in this jurisdiction and one or more other jurisdictions, and
(b) other provisions of this Act.
This Chapter:
(a) applies to all law practices, regardless of whether they are incorporated under the Corporations Act 2001 of the Commonwealth, and
(b) is intended to apply so that it, rather than the Corporations Act 2001 of the Commonwealth or the Bankruptcy Act 1966 of the Commonwealth applies in respect of the winding up of trust property and in respect of the carrying on of a law practice by external intervention.
611 Definitions
(1) In this Chapter:"external intervener" means a supervisor, manager or receiver under this Chapter."external intervention" means the appointment of, and the exercise of the powers and functions of, a supervisor, manager or receiver under this Chapter."regulated property", in relation to a law practice, means the following:
(a) trust money or trust property received, receivable or held by the practice,
(b) interest, dividends or other income or anything else derived from or acquired with money or property referred to in paragraph (a),
(c) documents or records of any description relating to anything referred to in paragraph (a) or (b),
(d) any computer hardware or software, or other device, in the custody or control of the practice or an associate of the practice by which any records referred to in paragraph (c) may be produced or reproduced in visible form.
(2) Other expressions used in this Chapter have the same meaning as in Part 3.1 (Trust money and trust accounts).
612 Application of Chapter to barristers
This Chapter applies in respect of the law practice of a barrister subject to the following modifications:
(a) a reference to the Law Society Council is to be read as a reference to the Bar Council,
(b) Parts 5.3 (Supervisors) and 5.5 (Receivers) do not apply in respect of a law practice of a barrister,
(c) the powers of the manager for a law practice of a barrister include power to reallocate or return briefs.
613 Application of Chapter to Australian-registered foreign lawyers
This Chapter applies, with any necessary adaptations, to Australian-registered foreign lawyers and former Australian-registered foreign lawyers in the same way as it applies to law practices.
614 Application of Chapter to other persons
This Chapter applies, with any necessary adaptations, to:
(a) a former law practice or former Australian legal practitioner, and
(b) the executor (original or by representation) or administrator for the time being of a deceased Australian legal practitioner or of his or her estate, and
(c) the administrator or receiver, or receiver and manager, or official manager, of the property of an incorporated legal practice, and
(d) the liquidator of an incorporated legal practice that is being or has been wound up,
in the same way as it applies to law practices.
Part 5.2 – Initiation of external intervention
615 Circumstances warranting external intervention
External intervention may take place in relation to a law practice in any of the following circumstances:
(a) where a legal practitioner associate involved in the practice:
(i) has died, or
(ii) ceases to be an Australian legal practitioner, or
(iii) has become an insolvent under administration, or
(iv) is in prison,
(b) in the case of a firm--where the partnership has been wound up or dissolved,
(c) in the case of an incorporated legal practice--where the corporation concerned:
(i) ceases to be an incorporated legal practice, or
(ii) is being or has been wound up, or
(iii) has been deregistered or dissolved,
(d) in any case--where the Law Society Council forms a belief on reasonable grounds that the practice or an associate of the practice:
(i) is not dealing adequately with trust money or trust property or is not properly attending to the affairs of the practice, or
(ii) has committed a serious irregularity, or a serious irregularity has occurred, in relation to trust money or trust property or the affairs of the practice, or
(iii) has failed properly to account in a timely manner to any person for trust money or trust property received by the practice for or on behalf of that person, or
(iv) has failed properly to make a payment of trust money or a transfer of trust property when required to do so by a person entitled to that money or property or entitled to give a direction for payment or transfer, or
(v) is in breach of the regulations or legal profession rules with the result that the record-keeping for the practice's trust account is inadequate, or
(vi) has been or is likely to be convicted of an offence relating to trust money or trust property, or
(vii) is the subject of a complaint relating to trust money or trust property received by the practice, or
(viii) has failed to comply with any requirement of an investigator or external examiner appointed under this Act, or
(ix) has ceased to be engaged in legal practice without making provision for properly dealing with trust money or trust property received by the practice or for properly winding up the affairs of the practice, or
(e) where any other proper cause exists in relation to the practice.
616 Determination regarding external intervention
(1) This section applies when the Law Society Council becomes aware that one or more of the circumstances referred to in section 615 (Circumstances warranting external intervention) exist in relation to a law practice and decides that, having regard to the interests of the clients of the practice and to other matters that it considers appropriate, external intervention is warranted.
(2) The Law Society Council may determine:
(a) to appoint a supervisor of trust money received by the law practice, if the Council is of the opinion:
(i) that external intervention is required because of issues relating to the practice's trust accounts, and
(ii) that it is not appropriate that the provision of legal services by the practice be wound up and terminated because of those issues, or
(b) to appoint a manager for the law practice, if the Council is of the opinion:
(i) that external intervention is required because of issues relating to the practice's trust records, or
(ii) that the appointment is necessary to protect the interests of clients in relation to trust money or trust property, or
(iii) that there is a need for an independent person to be appointed to take over professional and operational responsibility for the practice, or
(c) to apply for the appointment of a receiver for the law practice, if the Council is of the opinion:
(i) that the appointment is necessary to protect the interests of clients in relation to trust money or trust property, or
(ii) that it may be appropriate that the provision of legal services by the practice be wound up and terminated.
(3) The Law Society Council may, from time to time, make further determinations in relation to the law practice and for that purpose may revoke a previous determination with effect from a date or event specified by the Council. Revocation of a determination does not itself affect the appointment of a receiver already made.
(4) A further determination may be made under subsection (3) whether or not there has been any change in the circumstances in consequence of which the original determination was made and whether or not any further circumstances have come into existence in relation to the law practice after the original determination was made.
(5) An appointment of a supervisor or manager for a law practice may be made in respect of the practice generally or may be limited in any way the Law Society Council considers appropriate, including for example to matters connected with a particular legal practitioner associate or to matters connected with a particular office or a particular subject-matter.
Part 5.3 – Supervisors
617 Appointment of supervisor
(1) This section applies if the Law Society Council determines to appoint a supervisor of trust money for a law practice.
(2) The Law Society Council may, by instrument in writing, appoint a person as supervisor.
(3) The appointee must be either:
(a) an Australian legal practitioner who holds an unrestricted practising certificate, or
(b) a person holding accounting qualifications with experience in law practices' trust accounts,
and may (but need not) be an employee of the Law Society.
(4) The instrument of appointment must:
(a) identify the practice and the supervisor, and
(b) indicate that the external intervention is by way of appointment of a supervisor, and
(c) specify the term of the appointment, and
(d) specify any conditions imposed by the Law Society Council when the appointment is made, and
(e) specify any fees payable by way of remuneration to the supervisor specifically for carrying out his or her duties in relation to the external intervention, and Paragraph (e) is intended to exclude remuneration payable generally, eg as an employee of the Law Society Council.
(f) provide for the legal costs and the expenses that may be incurred by the supervisor in relation to the external intervention.
(5) The instrument of appointment may specify any reporting requirements to be observed by the supervisor.
618 Notice of appointment
(1) As soon as possible after an appointment of a supervisor of trust money for a law practice is made, the Law Society Council must serve a notice of the appointment on:
(a) the practice, and
(b) any other person authorised to operate any trust account of the practice, and
(c) any external examiner appointed to examine the practice's trust records, and
(d) the ADI with which any trust account of the practice is maintained, and
(e) any person whom the Council reasonably believes should be served with the notice.
(2) The notice must:
(a) identify the law practice and the supervisor of trust money, and
(b) indicate that the external intervention is by way of appointment of a supervisor, and
(c) specify the term of the appointment, and
(d) specify any reporting requirements to be observed by the supervisor, and
(e) specify any conditions imposed by the Law Society Council when the appointment is made, and
(f) include a statement that the law practice may appeal against the appointment of the supervisor under section 649 (Appeal against appointment), and
(g) contain or be accompanied by other information or material prescribed by the regulations.
619 Effect of service of notice of appointment
(1) After service on an ADI of a notice of the appointment of a supervisor of trust money of a law practice and until the appointment is terminated, the ADI must ensure that no funds are withdrawn or transferred from a trust account of the practice unless:
(a) the withdrawal or transfer is made by cheque or other instrument drawn on that account signed by the supervisor or a nominee of the supervisor, or
(b) the withdrawal or transfer is made by the supervisor or a nominee of the supervisor by means of electronic or internet banking facilities, or
(c) the withdrawal or transfer is made in accordance with an authority to withdraw or transfer funds from the account signed by the supervisor or a nominee of the supervisor.
(2) After service on a person (other than the supervisor or an ADI) of a notice of the appointment of a supervisor of trust money of a law practice and until the appointment is terminated, the person must not:
(a) deal with any of the practice's trust money, or
(b) sign any cheque or other instrument drawn on a trust account of the practice, or
(c) authorise the withdrawal or transfer of funds from a trust account of the practice.
Maximum penalty: 100 penalty units.
(3) A supervisor of trust money may, for the purposes of subsection (1) (b), enter into arrangements with an ADI for withdrawing money from a trust account of the law practice concerned by means of electronic or internet banking facilities.
(4) Any money that is withdrawn or transferred in contravention of subsection (1) may be recovered from the ADI concerned by the supervisor as a debt in any court of competent jurisdiction, and any amount recovered is to be paid into a trust account of the law practice or another account nominated by the supervisor.
620 Role of supervisor of trust money
(1) A supervisor of trust money of a law practice has the powers and duties of the practice in relation to trust money, including powers:
(a) to receive trust money entrusted to the practice, and
(b) to open and close trust accounts.
(2) For the purpose of exercising or performing his or her powers or duties under subsection (1), the supervisor may exercise any or all of the following powers:
(a) to enter and remain on premises used by the law practice for or in connection with its engaging in legal practice,
(b) to require the practice or an associate or former associate of the practice or any other person who has or had control of documents relating to trust money received by the practice to give the supervisor either or both of the following:
(i) access to the files and documents the supervisor reasonably requires, and
(ii) information relating to the trust money the supervisor reasonably requires,
(c) to operate equipment or facilities on the premises, or to require any person on the premises to operate equipment or facilities on the premises, for a purpose relevant to his or her appointment,
(d) to take possession of any relevant material and retain it for as long as may be necessary,
(e) to secure any relevant material found on the premises against interference, if the material cannot be conveniently removed,
(f) to take possession of any computer equipment or computer program reasonably required for a purpose relevant to his or her appointment.
(3) If the supervisor takes anything from the premises, the supervisor must issue a receipt in a form approved by the Law Society Council and:
(a) if the occupier or a person apparently responsible to the occupier is present at or near the premises, give it to him or her, or
(b) otherwise, leave it at the premises in an envelope addressed to the occupier.
(4) If the supervisor is refused access to the premises or the premises are unoccupied, the supervisor may use whatever appropriate force is necessary to enter the premises and may be accompanied by a member of the police force to assist entry.
(5) This section applies to trust money held by the practice before the supervisor is appointed, as well as to trust money received afterwards.
(6) The supervisor does not have a role in the management of the affairs of the law practice except in so far as the affairs relate to a trust account of the practice.
There may be jurisdictional variations in connection with the conferral of powers under this section.
621 Records of and dealing with trust money of law practice under supervision
(1) A supervisor of trust money for a law practice must maintain the records of his or her dealings with the trust money:
(a) separately from records relating to dealings with trust money before his or her appointment as supervisor, and
(b) separately from the affairs of any other law practice for which he or she is supervisor, and
(c) in the manner prescribed by the regulations.
(2) Subject to subsection (1), a supervisor of trust money for a law practice must deal with the trust money in the same way as a law practice must deal with trust money.
622 Termination of supervisor's appointment
(1) The appointment of a supervisor of trust money for a law practice terminates in the following circumstances:
(a) the term of the appointment comes to an end,
(a1) the appointment is set aside on appeal under section 649,
(b) the appointment of a manager for the practice takes effect,
(c) the appointment of a receiver for the practice takes effect,
(d) the supervisor has distributed all trust money received by the practice and wound up all trust accounts,
(e) a determination of the Law Society Council that the appointment be terminated has taken effect.
(2) The Law Society Council may determine in writing that the appointment be terminated immediately or with effect from a specified date.
(3) The Law Society Council must serve a written notice of the termination on all persons originally served with notice of the appointment.
Part 5.4 – Managers
623 Appointment of manager
(1) This section applies if the Law Society Council determines to appoint a manager for a law practice.
(2) The Law Society Council may, by instrument in writing, appoint a person as manager.
(3) Subject to subsection (3A), the appointee must be an Australian legal practitioner who holds an unrestricted practising certificate, and may (but need not) be an employee of the Law Society.
(3A) In the case of the appointment of a manager for a law practice that consists of a barrister, the appointee may (but need not) be an employee of the Bar Association and need not be an Australian lawyer or the holder of an Australian practising certificate.
(4) The instrument of appointment must:
(a) identify the law practice and the manager, and
(b) indicate that the external intervention is by way of appointment of a manager, and
(c) specify the term of the appointment, and
(d) specify any conditions imposed by the Law Society Council when the appointment is made, and
(e) specify any fees payable by way of remuneration to the manager specifically for carrying out his or her duties in relation to the external intervention, and Paragraph (e) is intended to exclude remuneration payable generally, eg as an employee of the Law Society Council.
(f) provide for the legal costs and the expenses that may be incurred by the manager in relation to the external intervention.
(5) The instrument of appointment may specify any reporting requirements to be observed by the manager.
624 Notice of appointment
(1) As soon as possible after an appointment of a manager for a law practice is made, the Law Society Council must serve a notice of the appointment on:
(a) the practice, and
(b) any other person authorised to operate any trust account of the practice, and
(c) any external examiner appointed to examine the practice's trust records, and
(d) the ADI with which any trust account of the practice is maintained, and
(e) any person whom the Council reasonably believes should be served with the notice.
(2) The notice must:
(a) identify the law practice and the manager, and
(b) indicate that the external intervention is by way of appointment of a manager, and
(c) specify the term of the appointment, and
(d) specify any reporting requirements to be observed by the manager, and
(e) specify any conditions imposed by the Law Society Council when the appointment is made, and
(f) include a statement that the law practice may appeal against the appointment of the manager under section 649 (Appeal against appointment), and
(g) contain or be accompanied by other information or material prescribed by the regulations.
625 Effect of service of notice
(1) After service on a law practice of a notice of the appointment of a manager for the practice and until the appointment is terminated, a legal practitioner associate of the practice who is specified or referred to in the notice must not participate in the affairs of the practice except under the direct supervision of the manager. Maximum penalty: 100 penalty units.
(2) After service on an ADI of a notice of the appointment of a manager for a law practice and until the appointment is terminated, the ADI must ensure that no funds are withdrawn or transferred from a trust account of the practice unless:
(a) the withdrawal or transfer is made by cheque or other instrument drawn on that account signed by:
(i) the manager, or
(ii) a receiver appointed for the practice, or
(iii) a nominee of the manager or receiver, or
(b) the withdrawal or transfer is made by means of electronic or internet banking facilities, by:
(i) the manager, or
(ii) a receiver appointed for the practice, or
(iii) a nominee of the manager or receiver, or
(c) the withdrawal or transfer is made in accordance with an authority to withdraw or transfer funds from the account signed by:
(i) the manager, or
(ii) a receiver appointed for the practice, or
(iii) a nominee of the manager or receiver.
(3) After service on a person of a notice of the appointment of a manager for a law practice and until the appointment is terminated, the person must not:
(a) deal with any of the practice's trust money, or
(b) sign any cheque or other instrument drawn on a trust account of the practice, or
(c) authorise the withdrawal or transfer of funds from a trust account of the practice,
but this subsection does not apply to a legal practitioner associate referred to in subsection (1), an ADI or the manager or receiver for the practice. Maximum penalty: 100 penalty units.
(4) A manager may, for the purposes of subsection (2) (b), enter into arrangements with an ADI for withdrawing money from a trust account of the law practice concerned by means of electronic or internet banking facilities.
(5) Any money that is withdrawn or transferred in contravention of subsection (2) may be recovered from the ADI concerned by the manager, or a receiver for the law practice, as a debt in any court of competent jurisdiction, and any amount recovered is to be paid into a trust account of the practice or another trust account nominated by the manager.
626 Role of manager
(1) A manager for a law practice may carry on the practice and may do all things that the practice or a legal practitioner associate of the practice might lawfully have done, including but not limited to the following:
(a) transacting any urgent business of the practice,
(b) transacting, with the approval of any or all of the existing clients of the practice, any business on their behalf, including:
(i) commencing, continuing, defending or settling any proceedings, and
(ii) receiving, retaining and disposing of property,
(c) accepting instructions from new clients and transacting any business on their behalf, including:
(i) commencing, continuing, defending or settling any proceedings, and
(ii) receiving, retaining and disposing of regulated property,
(d) charging and recovering legal costs, including legal costs for work in progress at the time of the appointment of the manager,
(e) entering into, executing or performing any agreement,
(f) dealing with trust money in accordance with this Act and the regulations,
(g) winding up the affairs of the practice.
(2) For the purpose of exercising his or her powers under subsection (1), the manager may exercise any or all of the following powers:
(a) to enter and remain on premises used by the law practice for or in connection with its engaging in legal practice,
(b) to require the practice, an associate or former associate of the practice or any other person who has or had control of client files and associated documents (including documents relating to trust money received by the practice) to give the manager either or both of the following:
(i) access to the files and documents the manager reasonably requires, and
(ii) information relating to client matters the manager reasonably requires,
(c) to operate equipment or facilities on the premises, or to require any person on the premises to operate equipment or facilities on the premises, for a purpose relevant to his or her appointment,
(d) to take possession of any relevant material and retain it for as long as may be necessary,
(e) to secure any relevant material found on the premises against interference, if the material cannot be conveniently removed,
(f) to take possession of any computer equipment or computer program reasonably required for a purpose relevant to his or her appointment.
(3) If the manager takes anything from the premises, the manager must issue a receipt in a form approved by the Law Society Council and:
(a) if the occupier or a person apparently responsible to the occupier is present at or near the premises, give it to him or her, or
(b) otherwise, leave it at the premises in an envelope addressed to the occupier.
(4) If the manager is refused access to the premises or the premises are unoccupied, the manager may use whatever appropriate force is necessary to enter the premises and may be accompanied by a member of the police force to assist entry.
627 Records and accounts of law practice under management and dealings with trust money
(1) The manager for a law practice must maintain the records and accounts of the practice that he or she manages:
(a) separately from the management of the affairs of the practice before his or her appointment as manager, and
(b) separately from the affairs of any other law practice for which he or she is manager, and
(c) in the manner prescribed by the regulations.
(2) Subject to subsection (1), the manager for a law practice must deal with trust money of the practice in the same way as a law practice must deal with trust money.
628 Deceased estates
(1) It is the duty of the manager for a law practice to co-operate with the legal personal representative of a deceased legal practitioner associate of the practice for the orderly winding up of the estate.
(2) The manager is not, in the exercise or performance of powers and duties as manager, a legal personal representative of the deceased legal practitioner associate, but nothing in this subsection prevents the manager from exercising or performing powers or duties as a legal personal representative if otherwise appointed as representative.
(3) Subject to subsections (1) and (2) and to the terms of the manager's appointment, if the manager was appointed before the death of the legal practitioner associate, the manager's appointment, powers and duties are not affected by the death.
629 Termination of manager's appointment
(1) The appointment of a manager for a law practice terminates in the following circumstances:
(a) the term of the appointment comes to an end,
(a1) the appointment is set aside on appeal under section 649,
(b) the appointment of a receiver for the practice takes effect, where the terms of the appointment indicate that the receiver is authorised to exercise the powers and duties of a manager,
(c) the manager has wound up the affairs of the practice,
(d) a determination of the Law Society Council that the appointment be terminated has taken effect.
(2) The Law Society Council may determine in writing that the appointment be terminated immediately or with effect from a specified date.
(3) If the appointment terminates in the circumstances referred to in subsection (1) (a), (b) or (d), the former manager must, as soon as practicable after the termination, transfer and deliver the regulated property and client files of the law practice to:
(a) another external intervener appointed for the practice, or
(b) the practice, if another external intervener is not appointed for the practice.
(4) The former manager need not transfer regulated property and files to the law practice in compliance with subsection (3) unless the manager's expenses have been paid to the Law Society Council.
(5) The Law Society Council must serve a written notice of the termination on all persons originally served with notice of the appointment.
Part 5.5 – Receivers
630 Appointment of receiver
(1) This section applies if the Law Society Council determines to apply to the Supreme Court for the appointment of a receiver for a law practice.
(2) The Supreme Court may, on the application of the Law Society Council, appoint a person as receiver for the law practice.
(3) The Supreme Court may make the appointment whether or not the law practice or a principal of the practice concerned has been notified of the application and whether or not the practice or principal is a party to the proceedings.
(4) Before commencing to hear an application for appointment of a receiver, the Supreme Court must order from the precincts of the Court any person who is not:
(a) an officer of the Court, or
(b) a party, an officer or employee of a party, a legal representative of a party, or a clerk of a legal representative of a party, or
(c) a principal of the law practice concerned, or
(d) a person who is about to or is in the course of giving evidence, or
(e) a person permitted by the Court to be present in the interests of justice.
(5) The appointee must be either:
(a) an Australian legal practitioner who holds an unrestricted practising certificate, or
(b) a person holding accounting qualifications with experience in law practices' trust accounts,
and may (but need not) be an employee of the Law Society Council.
(6) The instrument of appointment must:
(a) identify the law practice and the receiver, and
(b) indicate that the external intervention is by way of appointment of a receiver, and
(c) specify any conditions imposed by the Supreme Court when the appointment is made, and
(d) specify any fees payable by way of remuneration to the receiver specifically for carrying out his or her duties in relation to the external intervention, and Paragraph (d) is intended to exclude remuneration payable generally, for example as an employee of the Law Society Council.
(e) provide for the legal costs and the expenses that may be incurred by the receiver in relation to the external intervention.
(7) The instrument of appointment may:
(a) specify the term (if any) of the appointment, and
(b) specify any reporting requirements to be observed by the receiver.
(8) An appointment of a receiver for a law practice may be made in respect of the practice generally or may be limited in any way the Supreme Court considers appropriate, including for example to matters connected with a particular legal practitioner associate or to matters connected with a particular office or a particular subject-matter.
631 Notice of appointment
(1) As soon as possible after an appointment of a receiver for a law practice is made, the Law Society Council must serve a notice of the appointment on:
(a) the practice, and
(b) any person authorised to operate any trust account of the practice, and
(c) any external examiner appointed to examine the practice's trust records, and
(d) the ADI with which any trust account of the practice is maintained, and
(e) any person who the Supreme Court directs should be served with the notice, and
(f) any person whom the Council reasonably believes should be served with the notice.
(2) The notice must:
(a) identify the law practice and the receiver, and
(b) indicate that the external intervention is by way of appointment of a receiver, and
(c) specify the term (if any) of the appointment, and
(c1) indicate the extent to which the receiver has the powers of a manager for the practice, and
(d) specify any reporting requirements to be observed by the receiver, and
(e) specify any conditions imposed by the Supreme Court when the appointment is made, and
(f) contain or be accompanied by other information or material prescribed by the regulations.
632 Effect of service of notice
(1) After service on a law practice of a notice of the appointment of a receiver for the practice and until the appointment is terminated, a legal practitioner associate of the practice who is specified or referred to in the notice must not participate in the affairs of the practice. Maximum penalty: 100 penalty units.
(2) After service on an ADI of a notice of the appointment of a receiver for a law practice and until the appointment is terminated, the ADI must ensure that no funds are withdrawn or transferred from a trust account of the practice unless:
(a) the withdrawal or transfer is made by cheque or other instrument drawn on that account signed by:
(i) the receiver, or
(ii) a manager appointed for the practice, or
(iii) a nominee of the receiver or manager, or
(b) the withdrawal or transfer is made by means of electronic or internet banking facilities, by:
(i) the receiver, or
(ii) a manager appointed for the practice, or
(iii) a nominee of the receiver or manager, or
(c) the withdrawal or transfer is made in accordance with an authority to withdraw or transfer funds from the account signed by:
(i) the receiver, or
(ii) a manager appointed for the practice, or
(iii) a nominee of the receiver or manager.
(3) After service on a person of a notice of the appointment of a receiver for a law practice and until the appointment is terminated, the person must not:
(a) deal with any of the practice's trust money, or
(b) sign any cheque or other instrument drawn on a trust account of the practice, or
(c) authorise the withdrawal or transfer of funds from a trust account of the practice,
but this subsection does not apply to an ADI or the receiver or manager for the practice. Maximum penalty: 100 penalty units.
(4) A receiver may, for the purposes of subsection (2) (b), enter into arrangements with an ADI for withdrawing money from a trust account of the law practice concerned by means of electronic or internet banking facilities.
(5) Any money that is withdrawn or transferred in contravention of subsection (2) may be recovered from the ADI concerned by the receiver or a manager for the practice, as a debt in any court of competent jurisdiction, and any amount recovered is to be paid into a trust account of the law practice or another trust account nominated by the receiver.
633 Role of receiver
(1) The role of a receiver for a law practice is:
(a) to be the receiver of regulated property of the practice, and
(b) to wind up and terminate the affairs of the practice.
(2) For the purpose of winding up the affairs of the law practice and in the interests of the practice's clients, the Supreme Court may, by order, authorise:
(a) the receiver to carry on the legal practice engaged in by the law practice, if the receiver is an Australian legal practitioner who holds an unrestricted practising certificate, or
(b) an Australian legal practitioner who holds an unrestricted practising certificate, or a law practice whose principals are or include one or more Australian legal practitioners who hold unrestricted practising certificates, specified in the instrument to carry on the legal practice on behalf of the receiver.
(3) Subject to any directions given by the Supreme Court, the person authorised to carry on the legal practice engaged in by a law practice has all the powers of a manager under this Part and is taken to have been appointed as manager for the law practice.
(4) The Supreme Court may, by order, terminate an authorisation to carry on a legal practice granted under this section.
(5) For the purpose of exercising his or her powers under this section, the receiver may exercise any or all of the following powers:
(a) to enter and remain on premises used by the law practice for or in connection with its engaging in legal practice,
(b) to require the practice, an associate or former associate of the practice or any other person who has or had control of client files and associated documents (including documents relating to trust money received by the practice) to give the receiver:
(i) access to the files and documents the receiver reasonably requires, and
(ii) information relating to client matters the receiver reasonably requires,
(c) to operate equipment or facilities on the premises, or to require any person on the premises to operate equipment or facilities on the premises, for a purpose relevant to his or her appointment,
(d) to take possession of any relevant material and retain it for as long as may be necessary,
(e) to secure any relevant material found on the premises against interference, if the material cannot be conveniently removed,
(f) to take possession of any computer equipment or computer program reasonably required for a purpose relevant to his or her appointment.
(6) If the receiver takes anything from the premises, the receiver must issue a receipt in a form approved by the Law Society Council and:
(a) if the occupier or a person apparently responsible to the occupier is present at or near the premises, give it to him or her, or
(b) otherwise, leave it at the premises in an envelope addressed to the occupier.
(7) If the receiver is refused access to the premises or the premises are unoccupied, the receiver may use whatever appropriate force is necessary to enter the premises and may be accompanied by a member of the police force to assist entry.
634 Records and accounts of law practice under receivership and dealings with trust money
(1) The receiver for a law practice must maintain the records and accounts of the practice that he or she manages:
(a) separately from the management of the affairs of the practice before his or her appointment as receiver, and
(b) separately from the affairs of any other law practice that the receiver is managing, and
(c) in the manner prescribed by the regulations.
(2) Subject to subsection (1), the receiver for a law practice must deal with trust money of the practice in the same way as a law practice must deal with trust money.
635 Power of receiver to take possession of regulated property
(1) A receiver for a law practice may take possession of regulated property of the practice.
(2) A person in possession or having control of regulated property of the law practice must permit the receiver to take possession of the regulated property if required by the receiver to do so.
(3) If a person contravenes subsection (2), the Supreme Court may, on application by the receiver, order the person to deliver the regulated property to the receiver.
(4) If, on application made by the receiver, the Supreme Court is satisfied that an order made under subsection (3) has not been complied with, the Court may order the seizure of any regulated property of the law practice that is located on the premises specified in the order and make any further orders it thinks fit.
(5) An order under subsection (4) operates to authorise:
(a) any member of the police force, or
(b) the receiver or a person authorised by the receiver, together with any member of the police force,
to enter the premises specified in the order and search for, seize and remove anything that appears to be regulated property of the law practice.
(6) The receiver must, as soon as possible, return anything seized under this section if it transpires that it is not regulated property of the law practice.
636 Power of receiver to take delivery of regulated property
(1) If a receiver for a law practice believes on reasonable grounds that another person is under an obligation, or will later be under an obligation, to deliver regulated property to the practice, the receiver may, by notice in writing, require that other person to deliver the property to the receiver.
(2) If a person has notice that a receiver has been appointed for a law practice and the person is under an obligation to deliver regulated property to the practice, the person must deliver the property to the receiver. Maximum penalty: 50 penalty units.
(3) A document signed by a receiver acknowledging the receipt of regulated property delivered to the receiver is as valid and effectual as if it had been given by the law practice.
637 Power of receiver to deal with regulated property
(1) This section applies if a receiver for a law practice acquires or takes possession of regulated property of the practice.
(2) The receiver may deal with the regulated property in any manner in which the law practice might lawfully have dealt with the property.
638 Power of receiver to require documents or information
(1) A receiver for a law practice may require:
(a) a person who is an associate or former associate of the practice, or
(b) a person who has or has had control of documents relating to the affairs of the practice, or
(c) a person who has information relating to regulated property of the practice or property that the receiver believes on reasonable grounds to be regulated property of the practice,
to give the receiver either or both of the following:
(d) access to the documents relating to the affairs of the practice the receiver reasonably requires,
(e) information relating to the affairs of the practice the receiver reasonably requires (verified by statutory declaration if the requirement so states).
(2) A person who is subject to a requirement under subsection (1) must comply with the requirement. Maximum penalty: 100 penalty units.
(3) (Repealed)
639 Examinations
(1) The Supreme Court may, on the application of a receiver for a law practice, make an order directing that an associate or former associate of the practice or any other person appear before the Court for examination on oath or affirmation in relation to the regulated property of the practice.
(2) On an examination of a person under this section, the person must answer all questions that the Court allows to be put to the person. Maximum penalty: 50 penalty units.
(3) The person is not excused from answering a question on the ground that the answer might tend to incriminate the person.
(4) If, before answering the question, the person objects on the ground that it may tend to incriminate the person, the answer is not admissible in evidence against the person in any proceedings for an offence, other than:
(a) an offence against this Act, or
(b) an offence relating to the falsity of the answer.
640 Lien for costs on regulated property
(1) This section applies if:
(a) a receiver has been appointed for a law practice, and
(b) the practice or a legal practitioner associate of the practice claims a lien for legal costs on regulated property of the practice.
(2) The receiver may serve on the law practice or legal practitioner associate a written notice requiring the practice or associate to give the receiver within a specified period of not less than one month:
(a) particulars sufficient to identify the regulated property, and
(b) a detailed bill.
(3) If the law practice or legal practitioner associate requests the receiver in writing to give access to the regulated property that is reasonably necessary to enable the practice or associate to prepare a bill in compliance with subsection (2), the time allowed does not begin to run until the access is provided.
(4) If a requirement of a notice under this section is not complied with, the receiver may, in dealing with the regulated property claimed to be subject to the lien, disregard the claim.
641 Regulated property not to be attached
Regulated property of a law practice for which a receiver has been appointed (including regulated property held by the receiver) is not liable to be taken, levied on or attached under any judgment, order or process of any court or any other process.
642 Recovery of regulated property where there has been a breach of trust etc
(1) This section applies if regulated property of or under the control of a law practice has, before or after the appointment of a receiver for the practice, been taken by, paid to, or transferred to, a person ("the transferee") in breach of trust, improperly or unlawfully and the transferee:
(a) knew or believed at the time of the taking, payment or transfer that it was done in breach of trust, improperly or unlawfully, or
(b) did not provide to the practice or any other person any or any adequate consideration for the taking, payment or transfer, or
(c) because of the taking, payment or transfer, became indebted or otherwise liable to the practice or to a client of the practice in the amount of the payment or in another amount.
(2) The receiver is entitled to recover from the transferee:
(a) if subsection (1) (a) applies--the amount of the payment or the value of the regulated property taken or transferred, or
(b) if subsection (1) (b) applies--the amount of the inadequacy of the consideration or, if there was no consideration, the amount of the payment or the value of the regulated property taken or transferred, or
(c) if subsection (1) (c) applies--the amount of the debt or liability,
and, on the recovery of that amount from the transferee, the transferee ceases to be liable for it to any other person.
(3) If any money of or under the control of a law practice has, before or after the appointment of a receiver for the practice, been paid in breach of trust, improperly or unlawfully to a person ("the prospective plaintiff") in respect of a cause of action that the prospective plaintiff had, or claimed to have, against a third party:
(a) the receiver may prosecute the cause of action against the third party in the name of the prospective plaintiff, or
(b) if the prospective plaintiff did not have at the time the payment was made a cause of action against the third party, the receiver may recover the money from the prospective plaintiff.
(4) If any regulated property of or under the control of a law practice has, before or after the appointment of a receiver for the practice, been used in breach of trust, improperly or unlawfully so as to discharge a debt or liability of a person ("the debtor"), the receiver may recover from the debtor the amount of the debt or liability so discharged less the consideration (if any) provided by the debtor for the discharge.
(5) A person authorised by the Law Society Council to do so may give a certificate with respect to all or any of the following facts:
(a) the receipt of regulated property by the law practice concerned from any person, the nature and value of the property, the date of receipt, and the identity of the person from whom it was received,
(b) the taking, payment or transfer of regulated property, the nature and value of the property, the date of the taking, payment or transfer, and the identity of the person by whom it was taken or to whom it was paid or transferred,
(c) the entries made in the trust account and in any other ledgers, books of account, vouchers or records of the practice and the truth or falsity of those entries,
(d) the money and securities held by the practice at the specified time.
(6) If the receiver brings a proceeding under subsection (2), (3) or (4), a certificate given under subsection (5) is evidence and, in the absence of evidence to the contrary, is proof of the facts specified in it.
643 Improperly destroying property etc
A person must not, with intent to defeat the operation of this Part, and whether before or after appointment of a receiver, destroy, conceal, remove from one place to another or deliver into the possession, or place under the control, of another person any regulated property of a law practice for which a receiver has been or is likely to be appointed.
Maximum penalty on indictment: imprisonment for 5 years.
644 Deceased estates
(1) It is the duty of the receiver for a law practice to co-operate with the legal personal representative of a deceased legal practitioner associate of the practice for the orderly winding up of the estate.
(2) The receiver is not, in the exercise or performance of powers and duties as receiver, a legal personal representative of the deceased legal practitioner associate, but nothing in this subsection prevents the receiver from exercising or performing powers or duties as a legal personal representative if otherwise appointed as representative.
(3) Subject to subsections (1) and (2) and to the terms of the receiver's appointment, if the receiver was appointed before the death of the legal practitioner associate, the receiver's appointment, powers and duties are not affected by the death.
645 Termination of receiver's appointment
(1) The appointment by the Supreme Court of a receiver for a law practice terminates in the following circumstances:
(a) the term (if any) of the appointment comes to an end,
(b) a determination of the Supreme Court that the appointment be terminated has taken effect.
(2) The Supreme Court may, on application by the Law Society Council or the receiver made at any time, determine that the appointment be terminated immediately or with effect from a specified date.
(2A) A receiver for a law practice must apply to the Supreme Court for termination of the appointment when the affairs of the practice have been wound up and terminated, unless the term (if any) of the appointment has already come to an end.
(2AA) The Supreme Court may make any order it considers appropriate in relation to an application under this section.
(2B) The appointment of a receiver is not stayed by the making of an application for termination of the receiver's appointment, and the receiver may accordingly continue to exercise his or her powers and functions as receiver pending the Supreme Court's decision on the application except to the extent (if any) that the Court otherwise directs.
(3) The former receiver must, as soon as practicable, transfer and deliver the regulated property of the law practice to:
(a) another external intervener appointed for the practice within the period of 14 days beginning with the day after the date of the termination, or
(b) the practice, if another external intervener is not appointed for the practice within that period and if paragraph (c) does not apply, or
(c) another person in accordance with arrangements approved by the Supreme Court, if it is not practicable to transfer and deliver the regulated property to the practice.
(4) The former receiver need not transfer and deliver regulated property to the law practice in compliance with subsection (3) unless the expenses of receivership have been paid.
(5) The Law Society Council must serve a written notice of the termination on all persons originally served with notice of the appointment.
Part 5.6 – General
646 Conditions on appointment of external intervener
(1) An appointment of an external intervener is subject to:
(a) any conditions imposed by the appropriate authority, and
(b) any conditions imposed by or under the regulations.
(2) The appropriate authority may impose conditions:
(a) when the appointment is made, or
(b) during the term of the appointment.
(3) The appropriate authority may revoke or vary conditions imposed under subsection (2).
(4) In this section:"appropriate authority" means:
(a) the Law Society Council for appointments made by the Council, or
(b) the Supreme Court for appointments made by the Court.
647 Status of acts of external intervener
(1) An act done or omitted to be done by an external intervener for a law practice is, for the purposes of:
(a) any proceeding, or
(b) any transaction that relies on that act or omission,
taken to have been done or omitted to be done by the practice.
(2) Nothing in this section subjects an associate of the law practice to any personal liability.
648 Eligibility for reappointment or authorisation
A person who has been appointed as an external intervener for a law practice is eligible for re-appointment as an external intervener for the practice, whether the later appointment is made in respect of the same type of external intervention or is of a different type.
649 Appeal against appointment
(1) The following persons may appeal against the appointment of a supervisor or manager in relation to a law practice:
(a) the practice,
(b) an associate of the practice,
(c) any person authorised to operate a trust account of the practice,
(d) any other person whose interests may be adversely affected by the appointment.
(2) The appeal is to be lodged within 7 days after notice of the appointment is served on:
(a) the person who proposes to appeal, or
(b) the law practice, if a notice is not required to be served on the person who proposes to appeal.
(3) The Supreme Court may make any order it considers appropriate on the appeal.
(4) The appointment of a supervisor or manager is not stayed by the making of an appeal, and the supervisor or manager may accordingly continue to exercise his or her powers and functions as supervisor or manager during the currency of the appeal except to the extent (if any) that the Supreme Court otherwise directs.
Appeals about the appointment of receivers lie if and as provided under the Supreme Court Act 1970.
650 Directions of Supreme Court
The Supreme Court may, on application by:
(a) an external intervener for a law practice, or
(b) a principal of the practice, or
(c) any other person affected by the external intervention,
give directions in relation to any matter affecting the intervention or the intervener's powers, duties or functions under this Act.
650A Manager and receiver appointed for law practice
If a manager and a receiver are appointed for a law practice, any decision of the receiver prevails over any decision of the manager in the exercise of their respective powers, to the extent of any inconsistency.
651 ADI disclosure requirements
(1) An ADI must, at the request of an external intervener for a law practice, disclose to the intervener without charge:
(a) whether or not the practice, or an associate of the practice specified by the intervener, maintains or has maintained an account at the ADI during a period specified by the intervener, and
(b) details identifying every account so maintained.
Maximum penalty: 50 penalty units.
(2) An ADI at which an account of a law practice or associate of a law practice is or has been maintained must, at the request of an external intervener for the law practice, and without charge:
(a) produce for inspection or copying by the intervener, or a nominee of the intervener, any records relating to any such account or money deposited in any such account, and
(b) provide the intervener with full details of any transactions relating to any such account or money.
Maximum penalty: 50 penalty units.
(3) If an external intervener believes, on reasonable grounds, that trust money has, without the authorisation of the person who entrusted the trust money to the law practice, been deposited into the account of a third party who is not an associate of the law practice, the ADI at which the account is maintained must disclose to the intervener without charge:
(a) whether or not a person specified by the intervener maintains or has maintained an account at the ADI during a period specified by the intervener, and
(b) the details of any such account.
Maximum penalty: 50 penalty units.
(4) An obligation imposed by this section on an ADI does not apply unless the external intervener produces to the ADI evidence of the appointment of the intervener in relation to the law practice concerned.
(5) A request under this section may be general or limited to a particular kind of account.
(6) This section applies despite any legislation or duty of confidence to the contrary.
(7) An ADI or an officer or employee of an ADI is not liable to any action for any loss or damage suffered by another person as a result of producing records or providing details in accordance with this section.
652 Fees, legal costs and expenses
(1) An external intervener is entitled to be paid:
(a) fees by way of remuneration, and
(b) the legal costs and the expenses incurred in relation to the external intervention,
in accordance with the instrument of appointment.
(2) An account of the external intervener for fees, costs and expenses may, on the application of the Law Society, be assessed under Part 3.2 (Costs disclosure and assessment).
(3) The fees, costs and expenses are payable by and recoverable from the law practice.
(4) Fees, costs and expenses not paid to the external intervener by the law practice are payable from the Public Purpose Fund.
(5) The Law Society Council may recover any unpaid fees, costs and expenses from the law practice.
(6) Fees, costs and expenses paid by or recovered from the law practice after they have been paid from the Public Purpose Fund are to be paid to the Fund.
653 Reports by external intervener
(1) An external intervener must provide written reports in accordance with any reporting requirements to be observed by the intervener as specified in the instrument of appointment.
(2) If the instrument of appointment does not specify any reporting requirements, an external intervener must provide:
(a) written reports as required from time to time by the Law Society Council, and
(b) a written report to the Law Society Council at the termination of the appointment.
(3) An external intervener must also keep the Law Society Council informed of the progress of the external intervention, including reports to the Law Society Council about any significant events occurring or state of affairs existing in connection with the intervention or with any of the matters to which the intervention relates.
(4) Nothing in this section affects any other reporting obligations that may exist in respect of the law practice concerned.
654 Report to Commissioner of disciplinary matters
If an external intervener becomes aware of any matter in the course of an external intervention that the external intervener thinks may be unsatisfactory professional conduct or professional misconduct on the part of an Australian legal practitioner or Australian-registered foreign lawyer, the external intervener must (unless the matter is or has already been the subject of a complaint under Chapter 4) refer the matter to the Commissioner to consider whether disciplinary action should be taken against an Australian legal practitioner or Australian-registered foreign lawyer.
655 Confidentiality
(1) An external intervener must not disclose information obtained as a result of his or her appointment except:
(a) so far as is necessary for exercising his or her powers or functions,
(b) as provided in subsection (2).
(2) An external intervener may disclose information to any of the following:
(a) any court, tribunal or other person acting judicially,
(b) a regulatory authority of any jurisdiction,
(c) any officer of or Australian legal practitioner instructed by:
(i) a regulatory authority of any jurisdiction, or
(ii) the Commonwealth or a State or Territory of the Commonwealth, or
(iii) an authority of the Commonwealth or of a State or Territory of the Commonwealth,
in relation to any proceedings, inquiry or other matter pending or contemplated arising out of the investigation or examination,
(d) a member of the police force of any jurisdiction if the external intervener believes on reasonable grounds that the information relates to an offence that may have been committed by the law practice concerned or by an associate of the law practice,
(e) the law practice concerned or a principal of the law practice or, if the practice is an incorporated legal practice, a shareholder in the practice,
(f) a client of the law practice concerned if the information relates to the client,
(g) another external intervener appointed (or formerly appointed) in relation to the law practice or carrying out (or who formerly carried out) an external examination of the trust records of the law practice concerned,
(h) any Australian legal practitioner or accountant employed by the external intervener or by another external intervener referred to in paragraph (g).
656 Protection from liability
No liability attaches to the Law Society or Law Society Council or a person appointed as an external intervener for a law practice for any act or omission by the external intervener done in good faith and in the exercise or purported exercise of the external intervener's powers or duties under this Act.
Chapter 6 – Provisions relating to investigations
Part 6.1 – Preliminary
657 Primary purpose of Chapter
(1) The primary purpose of this Chapter is to provide powers that are exercisable in connection with:
(a) trust account investigations--the investigation of the affairs of law practices under Division 3 of Part 3.1 (Trust money and trust accounts), and
(b) trust account examinations--the external examination of the trust records of law practices under Division 4 of Part 3.1, and
(c) complaint investigations--the investigation of complaints under Chapter 4 (Complaints and discipline), and
(d) compliance audits--the conduct of audits under section 670 in relation to law practices.
This Chapter also applies in relation to matters under Division 7 of Part 2.4 (see section 77) and matters under Division 7 of Part 2.7 (see section 217).
(2) Subsection (1) does not limit the operation of any other provision of this Chapter.
658 Definitions
In this Chapter:
"complaint investigation" --see section 657 (1) (c).
"compliance audit" --see section 657 (1) (d).
"investigator" means:
(a) an investigator under Division 3 of Part 3.1, or
(b) an external examiner under Division 4 of Part 3.1, or
(c) an investigator or independent investigator under Chapter 4, or
(d) in relation to a compliance audit--the person appointed by the Law Society Council or the Commissioner under section 670 to conduct the audit.
"trust account examination" --see section 657 (1) (b).
"trust account investigation" --see section 657 (1) (a).
Part 6.2 – Requirements relating to documents, information and other assistance
659 Requirement to provide access to documents and information relating to affairs of law practice
(1) This section applies to the following activities:
(a) trust account investigations,
(b) trust account examinations,
(c) complaint investigations,
(d) compliance audits.
(2) For the purpose of carrying out an activity to which this section applies in relation to a law practice, an investigator may, on production of evidence of his or her appointment, require the practice or an associate or former associate of the practice or any other person (including, for example, an ADI, auditor or liquidator) who has or has had control of documents relating to the affairs of the practice to give the investigator either or both of the following:
(a) access to the documents relating to the affairs of the practice that the investigator reasonably requires,
(b) information relating to the affairs of the practice that the investigator reasonably requires (verified by statutory declaration if the requirement so states).
(3) A person who is subject to a requirement under subsection (2) must comply with the requirement. Maximum penalty: 50 penalty units.
(4) A person who is subject to a requirement under subsection (2) is not entitled to charge the investigator for giving any such access or information.
660 Requirements in relation to complaint investigations
(1) For the purpose of carrying out a complaint investigation in relation to an Australian lawyer, an investigator may, by notice served on the lawyer, require the lawyer to do any one or more of the following:
(a) to produce, at a specified time and place, any specified document (or a copy of the document),
(b) to provide written information on or before a specified date (verified by statutory declaration if the requirement so states),
(c) to otherwise assist in, or co-operate with, the investigation of the complaint in a specified manner.
(2) For the purpose of carrying out a complaint investigation in relation to an Australian lawyer, the investigator may, on production of evidence of his or her appointment, require any associate or former associate of a law practice of which the lawyer is or was an associate or any other person (including, for example, an ADI, auditor or liquidator but not including the lawyer) who has or has had control of documents relating to the affairs of the lawyer to give the investigator either or both of the following:
(a) access to the documents relating to the affairs of the lawyer the investigator reasonably requires,
(b) information relating to the affairs of the lawyer the investigator reasonably requires (verified by statutory declaration if the requirement so states).
(3) A person who is subject to a requirement under subsection (1) or (2) must comply with the requirement. Maximum penalty: 50 penalty units.
(4) A requirement imposed on a person under this section is to be notified in writing to the person and is to specify a reasonable time for compliance.
(5) A person who is subject to a requirement under subsection (1) or (2) is not entitled to charge the investigator for doing anything in compliance with the requirement.
Part 6.3 – Entry and search of premises
661 Application of Part and interpretation
(1) This Part applies to the following investigations:
(a) trust account investigations,
(b) complaint investigations.
(2) In this Part:"relevant material", in relation to an investigation to which this Part applies, means any information, document or other material that:
(a) an investigator reasonably requires for the purposes of the investigation, and
(b) relates, or may relate, to the subject matter of the investigation.
662 Investigator's power to enter premises
(1) For the purpose of carrying out an investigation to which this Part applies, an investigator may enter and remain on any premises to exercise the powers referred to in section 664.
(2) In the case of a trust account investigation, the investigator:
(a) may enter any premises, other than residential premises, without the need for consent or a search warrant, and
(b) may enter residential premises:
(i) at any time with the consent of the occupier, or
(ii) under the authority of a search warrant issued under this Part, or
(iii) at any time without the consent of the occupier and without a warrant, but only if the investigator believes, on reasonable grounds, that it is urgently necessary to do so in order to prevent the destruction of or interference with any relevant material.
(3) In the case of a complaint investigation, the investigator may enter any premises:
(a) at any time with the consent of the occupier, or
(b) under the authority of a search warrant issued under this Part.
(4) The investigator must not exercise the power referred to in subsection (2) (b) (iii) unless the appropriate Council or the Commissioner has authorised the investigator (orally or in writing) to do so.
(5) The investigator must, at the reasonable request of a person apparently in charge of the premises or any other person on the premises, produce evidence of his or her appointment.
663 Search warrant
(1) An investigator may apply to an authorised officer for the issue of a search warrant for premises if the investigator believes on reasonable grounds that any relevant material is located at the premises.
(2) An authorised officer to whom such an application is made may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising an investigator named in the warrant:
(a) to enter and inspect the premises, and
(b) to exercise on the premises the powers referred to in section 664 (Powers of investigator while on premises).
(3) Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this section.
(4) In this section:"authorised officer" has the same meaning as in the Law Enforcement (Powers and Responsibilities) Act 2002.
664 Powers of investigator while on premises
(1) An investigator who enters premises under this Part may exercise any or all of the following powers:
(a) search the premises and examine anything on the premises,
(b) search for any relevant material,
(c) operate equipment or facilities on the premises for a purpose relevant to the investigation,
(d) take possession of any relevant material and retain it for as long as may be necessary to examine it to determine its evidentiary value,
(e) make copies of any relevant material or any part of any relevant material,
(f) seize and take away any relevant material or any part of any relevant material,
(g) use (free of charge) photocopying equipment on the premises for the purpose of copying any relevant material,
(h) with respect to any computer or other equipment that the investigator suspects on reasonable grounds may contain any relevant material:
(i) inspect and gain access to a computer or equipment,
(ii) download or otherwise obtain any documents or information,
(iii) make copies of any documents or information held in it,
(iv) seize and take away any computer or equipment or any part of it,
(i) if any relevant material found on the premises cannot be conveniently removed, secure it against interference,
(j) request any person who is on the premises to do any of the following:
(i) to state his or her full name, date of birth and address,
(ii) to answer (orally or in writing) questions asked by the investigator relevant to the investigation,
(iii) to produce relevant material,
(iv) to operate equipment or facilities on the premises for a purpose relevant to the investigation,
(v) to provide access (free of charge) to photocopying equipment on the premises the investigator reasonably requires to enable the copying of any relevant material,
(vi) to give other assistance the investigator reasonably requires to carry out the investigation,
(k) do anything else reasonably necessary to obtain information or evidence for the purposes of the investigation.
(2) Any documents, information or anything else obtained by the investigator may be used for the purposes of the investigation.
(3) If an investigator takes anything away from the premises, the investigator must issue a receipt in a form approved by the appropriate Council or the Commissioner and:
(a) if the occupier or a person apparently responsible to the occupier is present, give it to him or her, or
(b) otherwise, leave it on the premises in an envelope addressed to the occupier.
(4) An investigator may be accompanied by any assistants the investigator requires, including persons with accounting expertise and persons to assist in finding and gaining access to electronically stored information.
(5) A person requested to do anything under subsection (1) (j) must not, without reasonable excuse, fail to comply with the request. Maximum penalty: 50 penalty units.