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Главная » Иностранное законодательство » Австралия Australia » Закон об Адвокатской деятельности. Legal Profession Act 2004.

Закон об Адвокатской деятельности.
Legal Profession Act 2004.

"cross-claim" includes counter-claim and cross-action.
348 Costs order against law practice acting without reasonable prospects of success
(1) If it appears to a court in which proceedings are taken on a claim for damages that a law practice has provided legal services to a party without reasonable prospects of success, the court may of its own motion or on the application of any party to the proceedings make either or both of the following orders in respect of the practice or of a legal practitioner associate of the practice responsible for providing the services:
(a) an order directing the practice or associate to repay to the party to whom the services were provided the whole or any part of the costs that the party has been ordered to pay to any other party,
(b) an order directing the practice or associate to indemnify any party other than the party to whom the services were provided against the whole or any part of the costs payable by the party indemnified.
(2) The Supreme Court may on the application of any party to proceedings on a claim for damages make any order that the court in which proceedings on the claim are taken could make under this section.
(3) An application for an order under this section cannot be made after a final determination has been made under this Part by a costs assessor of the costs payable as a result of an order made by the court in which the proceedings on the claim concerned were taken.
(4) A law practice or legal practitioner associate of the practice is not entitled to demand, recover or accept from a client any part of the amount for which the practice or associate is directed to indemnify a party pursuant to an order under this section.
349 Onus of showing facts provided reasonable prospects of success
(1) If the court (the "trial court") hearing proceedings on a claim for damages finds that the facts established by the evidence before the court do not form a basis for a reasonable belief that the claim or the defence had reasonable prospects of success, there is a presumption for the purposes of this Division that legal services provided on the claim or the defence (as appropriate) were provided without reasonable prospects of success.
(2) If the Supreme Court (when the Supreme Court is not the trial court) is satisfied, either as a result of a finding of the trial court or otherwise on the basis of the judgment of the trial court, that the facts established by the evidence before the trial court do not form a basis for a reasonable belief that the claim or the defence had reasonable prospects of success, there is a presumption for the purposes of this Division that legal services provided on the claim or the defence (as appropriate) were provided without reasonable prospects of success.
(3) A presumption arising under this section is rebuttable and a person seeking to rebut it bears the onus of establishing that at the time legal services were provided there were provable facts (as provided by section 345 (Law practice not to act unless there are reasonable prospects of success)) that provided a basis for a reasonable belief that the claim or the defence on which they were provided had reasonable prospects of success.
(4) A law practice or legal practitioner associate of the practice may, for the purpose of establishing that at the time legal services were provided there were provable facts (as provided by section 345 (Law practice not to act unless there are reasonable prospects of success)) that provided a basis for a reasonable belief that the claim or the defence on which they were provided had reasonable prospects of success, produce information or a document despite any duty of confidentiality in respect of a communication between the law practice or a legal practitioner associate of the practice and a client, but only if:
(a) the client is the client to whom the legal services were provided or consents to its disclosure, or
(b) the court is satisfied that it is necessary for the law practice or associate to do so in order to rebut a presumption arising under this section.
Division 11 – Costs assessment
Subdivision 1 – Applications
349A Definition
In this Division:

"client" means a person to whom or for whom legal services are or have been provided.

350 Application by client or third party payers for costs assessment
(1) A client may apply to the Manager, Costs Assessment for an assessment of the whole or any part of legal costs.
(2) A third party payer may apply to a costs assessor for an assessment of the whole or any part of legal costs payable by the third party payer.
(3) An application for a costs assessment may be made even if the legal costs have been wholly or partly paid.
(3A) If any legal costs have been paid without a bill, the client or third party payer may nevertheless apply for a costs assessment.
(4) An application by a client or third party payer for a costs assessment under this section must be made within 12 months after:
(a) the bill was given or the request for payment was made to the client or third party payer, or
(b) the costs were paid if neither a bill was given nor a request was made.
(5) However, an application that is made out of time, otherwise than by:
(a) a sophisticated client, or
(b) a third party payer who would be a sophisticated client if the third party payer were a client of the law practice concerned,
may be dealt with by the costs assessor if the Supreme Court, on application by the costs assessor or the client or third party payer who made the application for assessment, determines, after having regard to the delay and the reasons for the delay, that it is just and fair for the application for assessment to be dealt with after the 12-month period.
(6) If the third party payer is a non-associated third party payer, the law practice must provide the third party payer, on the written request of the third party payer, with sufficient information to allow the third party payer to consider making, and if thought fit to make, an application for a costs assessment under this section.
(7) If there is an associated third party payer for a client of a law practice:
(a) nothing in this section prevents:
(i) the client from making one or more applications for assessment under this section in relation to costs for which the client is solely liable, and
(ii) the associated third party payer from making one or more applications for assessment under this section in relation to costs for which the associated third party payer is solely liable,
and those applications may be made by them at the same time or at different times and may be dealt with jointly or separately, and
(b) the client or the associated third party payer:
(i) may participate in the costs assessment process where the other of them makes an application for assessment under this section in relation to costs for which they are both liable, and
(ii) is taken to be a party to the assessment and is bound by the assessment, and
(c) the law practice:
(i) must participate in the costs assessment process where an application is made under this section by the associated third party payer in the same way as the practice must participate in the process where an application is made under this section by a client, and
(ii) is taken to be a party to the assessment and is bound by the assessment.
(8) If there is a non-associated third party payer for a client of a law practice:
(a) nothing in this section prevents:
(i) the client from making one or more applications for assessment under this section in relation to costs for which the client is liable, and
(ii) the non-associated third party payer from making one or more applications for assessment under this section in relation to costs for which the non-associated third party payer is liable,
and those applications may be made by them at the same time or at different times but must be dealt with separately, and
(b) the client:
(i) may participate in the costs assessment process where the non-associated third party payer makes an application under this section in relation to the legal costs for which the non-associated third party payer is liable, and
(ii) is taken to be a party to the assessment and is bound by the assessment, and
(c) the law practice:
(i) must participate in the costs assessment process, and
(ii) is taken to be a party to the assessment, and
(d) despite any other provision of this Division, the assessment of the costs payable by the non-associated third party payer does not affect the amount of legal costs payable by the client to the law practice.
(9) In this section:"client" includes the following:
(a) an executor or administrator of a client,
(b) a trustee of the estate of a client.
"third party payer" includes the following:
(a) an executor or administrator of a third party payer,
(b) a trustee of the estate of a third party payer.
351 Application for costs assessment by law practice retaining another law practice
(1) A law practice that retains another law practice to act on behalf of a client may apply to the Manager, Costs Assessment for an assessment of the whole or any part of the legal costs to which a bill given by the other law practice in accordance with Division 7 (Billing) relates.
(2) If any legal costs have been paid without a bill, the law practice may nevertheless apply for a costs assessment.
(2A) An application for a costs assessment may be made even if the legal costs have been wholly or partly paid.
(3) An application under this section must be made within 60 days after:
(a) the bill was given or the request for payment was made, or
(b) the costs were paid if neither a bill was given nor a request was made.
(4) An application cannot be made under this section if there is a costs agreement between the client and the other law practice.
352 Application for costs assessment by law practice giving bill
(1) A law practice that has given a bill may apply to the Manager, Costs Assessment for an assessment of the whole or any part of the legal costs to which the bill relates.
(2) If any legal costs have been paid without a bill, the law practice may nevertheless apply for a costs assessment.
(3) An application for a costs assessment may be made even if the legal costs have been wholly or partly paid.
(4) An application may not be made under this section unless at least 30 days have passed since:
(a) the bill was given or the request for payment was made, or
(b) the costs were paid if neither a bill was given nor a request was made, or
(c) an application has been made under this Division by another person in respect of the legal costs.
353 Application for assessment of party/party costs
(1) A person who has paid or is liable to pay, or who is entitled to receive or who has received, costs as a result of an order for the payment of an unspecified amount of costs made by a court or a tribunal may apply to the Manager, Costs Assessment for an assessment of the whole of, or any part of, those costs.
(2) A court or tribunal may direct the Manager, Costs Assessment to refer for assessment costs payable as a result of an order made by the court or tribunal. Any such direction is taken to be an application for assessment duly made under this Division.
(3) An application or direction under this section may not be made in relation to costs arising out of criminal proceedings in a court except as provided by section 257G of the Criminal Procedure Act 1986.
(4) An application or direction under this section may be made in relation to an application for and the issue of an apprehended violence order within the meaning of the Crimes (Domestic and Personal Violence) Act 2007.
354 How to make an application for costs assessment
(1) An application for a costs assessment:
(a) must be made in accordance with the regulations (if any), and
(b) subject to subsection (4), must be accompanied by the fee prescribed by the regulations.
(2) The application must authorise a costs assessor to have access to, and to inspect, all documents of the applicant that are held by the applicant, or by any law practice, Australian legal practitioner or Australian-registered foreign lawyer concerned, in respect of the matter to which the application relates.
(3) The application must contain a statement by the applicant that there is no reasonable prospect of settlement of the matter by mediation.
(4) The Manager, Costs Assessment may waive or postpone payment of the application fee either wholly or in part if satisfied that the applicant is in such circumstances that payment of the fee would result in serious hardship to the applicant or his or her dependants.
(5) The Manager, Costs Assessment may refund the application fee either wholly or in part if satisfied that it is appropriate because the application is not proceeded with.
355 Consequences of application
If an application for a costs assessment is made in accordance with this Division:

(a) the costs assessment must take place without any money being paid into court on account of the legal costs the subject of the application, and
(b) the law practice must not commence or maintain any proceedings to recover the legal costs until the costs assessment has been completed.
356 Persons to be notified of application
(1) The Manager, Costs Assessment is to cause a copy of an application for costs assessment to be given to any law practice or client concerned or any other person whom the Manager thinks it appropriate to notify.
(2) A person who is notified by the Manager, Costs Assessment under subsection (1):
(a) is entitled to participate in the costs assessment process, and
(b) is taken to be a party to the assessment, and
(c) if the costs assessor so determines, is bound by the assessment.
356A Regulations
The regulations may make provision for or with respect to the making and processing of applications for costs assessments.

Subdivision 2 – Assessment
357 Referral of matters to costs assessors
(1) The Manager, Costs Assessment is to refer each application for costs assessment to a costs assessor to be dealt with under this Division.
(2) A costs assessor who has an interest in an application must, as soon as practicable after becoming aware of that fact, refer the application to the Manager, Costs Assessment for referral to another costs assessor.
(3) If the Manager, Costs Assessment is satisfied that it is inappropriate for a costs assessor to determine a particular application that has been referred to the costs assessor, the Manager, Costs Assessment may:
(a) revoke the referral of the application, and
(b) refer the application for assessment to another costs assessor.
(4) An application that has been referred to another costs assessor under this section is to be dealt with as a new assessment or, if the Manager, Costs Assessment so directs, by continuing the assessment.
(5) When a referral has been revoked, the costs assessor to whom the application was initially referred must return all documents relating to the assessment of the application to the Manager, Costs Assessment. This includes documents relating to any work done on the assessment and a statement of the amount calculated for costs in respect of any work done on the assessment.
358 Costs assessor may require documents or further particulars
(1) For the purposes of determining an application for a costs assessment, a costs assessor may, by notice in writing, require a person (including the applicant, the law practice concerned, or any other law practice or client) 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) including, for example:
(i) information as to the instructions given to, or work done by, any law practice in respect of the matter concerned, and
(ii) information as to the basis on which the costs concerned were calculated,
(c) to otherwise assist in, or co-operate with, the determination of the assessment in a specified manner.
(2) A person who is subject to a requirement under subsection (1) must comply with the requirement. Maximum penalty: 50 penalty units.
(3) If a person fails, without reasonable excuse, to comply with a notice under this section, the costs assessor may decline to deal with the application or may continue to deal with the application on the basis of the information provided.
(4) A failure by an Australian legal practitioner to comply with a notice under this section without reasonable excuse is capable of being professional misconduct.
359 Consideration of applications by costs assessors
(1) A costs assessor must not determine an application for assessment unless the costs assessor:
(a) has given both the applicant and any law practice or client or other person concerned a reasonable opportunity to make written submissions to the costs assessor in relation to the application, and
(b) has given due consideration to any submissions so made.
(2) In considering an application, a costs assessor is not bound by rules of evidence and may inform himself or herself on any matter in such manner as he or she thinks fit.
(3) For the purposes of determining an application for assessment or exercising any other function, a costs assessor may determine any of the following:
(a) whether or not disclosure has been made in accordance with Division 3 (Costs disclosure) and whether or not it was reasonably practicable to disclose any matter required to be disclosed under Division 3,
(b) whether a costs agreement exists, and its terms.
360 (Repealed)
361 Assessment of costs by reference to costs agreement
(1) A costs assessor must assess the amount of any disputed costs that are subject to a costs agreement by reference to the provisions of the costs agreement if:
(a) a relevant provision of the costs agreement specifies the amount, or a rate or other means for calculating the amount, of the costs, and
(b) the agreement has not been set aside under section 328 (Setting aside costs agreements),
unless the assessor is satisfied:
(c) that the agreement does not comply in a material respect with any applicable disclosure requirements of Division 3 (Costs disclosure), or
(d) that Division 5 (Costs agreements) precludes the law practice concerned from recovering the amount of the costs, or
(e) that the parties otherwise agree.
(2) The costs assessor is not required to initiate an examination of the matters referred to in subsection (1) (c) and (d).
362 Costs fixed by regulations or other legislation
(1) An assessment of costs fixed by a regulation under section 329 (1) (a), (b), (b1), (c), (d) or (e) is to be made in accordance with that regulation.
(2) An assessment of costs fixed by a regulation under section 329 (1) (f) is to be made having regard to that regulation.
(3) An assessment of costs fixed by a regulation under section 149 of the Motor Accidents Compensation Act 1999 is to be made in accordance with that regulation (despite anything to the contrary in a regulation under section 329).
(4) An assessment of costs fixed by a provision of any other Act, or a statutory rule made under any other Act, is to be made:
(a) if the costs are fixed by a provision of any other Act--in accordance with that provision (despite anything to the contrary in a regulation under section 329), or
(b) if the costs are fixed by a provision of a statutory rule made under any other Act--in accordance with that provision (but only to the extent that the provision is not inconsistent with a regulation under section 329).
363 Criteria for costs assessment
(1) In conducting an assessment of legal costs, the costs assessor must consider:
(a) whether or not it was reasonable to carry out the work to which the legal costs relate, and
(b) whether or not the work was carried out in a reasonable manner, and
(c) the fairness and reasonableness of the amount of legal costs in relation to the work, except to the extent that section 361 or 362 applies to any disputed costs.
(2) In considering what is a fair and reasonable amount of legal costs, the costs assessor may have regard to any or all of the following matters:
(a) whether the law practice and any Australian legal practitioner or Australian-registered foreign lawyer acting on its behalf complied with any relevant legislation or legal profession rules,
(b) any disclosures made by the law practice under Division 3 (Costs disclosure),
(c) any relevant advertisement as to:
(i) the law practice's costs, or
(ii) the skills of the law practice or of any Australian legal practitioner or Australian-registered foreign lawyer acting on its behalf,
(d) (Repealed)
(e) the skill, labour and responsibility displayed on the part of the Australian legal practitioner or Australian-registered foreign lawyer responsible for the matter,
(f) the retainer and whether the work done was within the scope of the retainer,
(g) the complexity, novelty or difficulty of the matter,
(h) the quality of the work done,
(i) the place where, and circumstances in which, the legal services were provided,
(j) the time within which the work was required to be done,
(k) any other relevant matter.
363A Interest on amount outstanding
(1) A costs assessor may, in an assessment, determine that interest is not payable on the amount of costs assessed or on any part of that amount and determine the rate of interest (not exceeding the rate referred to in section 321 (4)).
(2) This section applies despite any costs agreement or section 321.
(3) This section does not authorise the giving of interest on interest.
(4) This section does not apply to or in respect of the assessment of costs referred to in Subdivision 3 (Party/party costs).
Subdivision 3 – Party/party costs
364 Assessment of costs--costs ordered by court or tribunal
(1) In conducting an assessment of legal costs payable as a result of an order made by a court or tribunal, the costs assessor must consider:
(a) whether or not it was reasonable to carry out the work to which the costs relate, and
(b) whether or not the work was carried out in a reasonable manner, and
(c) what is a fair and reasonable amount of costs for the work concerned.
(2) In considering what is a fair and reasonable amount of legal costs, a costs assessor may have regard to any or all of the following matters:
(a) the skill, labour and responsibility displayed on the part of the Australian legal practitioner or Australian-registered foreign lawyer responsible for the matter,
(b) the complexity, novelty or difficulty of the matter,
(c) the quality of the work done and whether the level of expertise was appropriate to the nature of the work done,
(d) the place where and circumstances in which the legal services were provided,
(e) the time within which the work was required to be done,
(f) the outcome of the matter.
(3) An assessment must be made in accordance with the operation of the rules of the relevant court or tribunal that made the order for costs and any relevant regulations.
(4) If a court or a tribunal has ordered that costs are to be assessed on an indemnity basis, the costs assessor must assess the costs on that basis, having regard to any relevant rules of the court or tribunal and relevant regulations.
365 Effect of costs agreements in assessments of party/party costs
(1) A costs assessor may obtain a copy of, and may have regard to, a costs agreement.
(2) However, a costs assessor must not apply the terms of a costs agreement for the purposes of determining appropriate fair and reasonable costs when assessing costs payable as a result of an order by a court or tribunal.
366 Court or tribunal may determine matters
This Division does not limit any power of a court or a tribunal to determine in any particular case the amount of costs payable or that the amount of the costs is to be determined on an indemnity basis.

Subdivision 4 – Determinations
367 Determinations of costs assessments
(1) A costs assessor is to determine an application for a costs assessment relating to a bill by confirming the bill or, if the assessor is satisfied that the disputed costs are unfair or unreasonable, by substituting for the amount of the costs an amount that, in the assessor's opinion, is a fair and reasonable amount.
(2) The costs assessor may include an allowance for any fee paid or payable for the application by the applicant.
(3) A costs assessor may not determine that any part of a bill that is not the subject of an application is unfair or unreasonable.
(4) A costs assessor may determine that the amount of fair and reasonable costs is the amount agreed to by the parties if during the course of the assessment the parties notify the costs assessor that they have agreed on the amount of those costs.
367A Determinations of costs assessments for party/party costs
A costs assessor is to determine an application for an assessment of costs payable as a result of an order made by a court or tribunal by making a determination of the fair and reasonable amount of those costs.

368 Certificate as to determination
(1) On making a determination of costs referred to in Subdivision 2 or 3 of this Division, a costs assessor is to issue a certificate that sets out the determination.
(2) A costs assessor may issue more than one certificate in relation to an application for costs assessment. Such certificates may be issued at the same time or at different stages of the assessment process.
(3) However, any such certificate may not set out the costs of the costs assessment within the meaning of section 369. Section 369 makes provision for the recovery of the costs of costs assessments relating to costs to which either section 317 (Effect of failure to disclose) or 364 (Assessment of costs--costs ordered by court or tribunal) applies. The section requires a costs assessor to issue a separate certificate setting out the costs of such costs assessments. That section also makes provision for the effect of such a certificate.
(4) In the case of an amount of costs that has been paid, the amount (if any) by which the amount paid exceeds the amount specified in any such certificate may be recovered as a debt in a court of competent jurisdiction.
(5) In the case of an amount of costs that has not been paid, the certificate is, on the filing of the certificate in the office or registry of a court having jurisdiction to order the payment of that amount of money, and with no further action, taken to be a judgment of that court for the amount of unpaid costs, and the rate of any interest payable in respect of that amount of costs is the rate of interest in the court in which the certificate is filed.
(5A) The costs assessor must forward the certificate or a copy of the certificate to:
(a) the Manager, Costs Assessment, and
(b) each party to the assessment, unless subsection (6) applies.
(6) If the costs of the costs assessor are payable by a party to the assessment as referred to in section 369, the costs assessor must:
(a) forward a copy of the certificate to the Manager, Costs Assessment only, and
(b) advise the parties that the certificate has been so forwarded and will be available to the parties on payment of the costs of the costs assessor.
(7) Subsection (6) does not apply:
(a) in respect of a certificate issued before the completion of the assessment process under subsection (2), or
(b) in such circumstances as may be prescribed by the regulations.
369 Costs of costs assessment
(1) This section applies to the costs of a costs assessment in relation to:
(a) costs to which section 317 (Effect of failure to disclose) applies, and
(b) costs to which section 364 (Assessment of costs--costs ordered by court or tribunal) applies, and
(c) costs that on assessment are reduced by 15% or more.
(2) A costs assessor is, subject to this section, to determine the costs of a costs assessment to which this section applies.
(2A) Subject to any order of or the rules of the relevant court or tribunal, the costs assessor may determine by whom and to what extent the costs of an assessment referred to in section 364 (Assessment of costs--costs ordered by court or tribunal) are payable and include the determination in the certificate issued under this section in relation to the assessment.
(3) The costs of a costs assessment to which this section applies are payable:
(a) for a costs assessment in relation to costs to which section 317 (Effect of failure to disclose) applies--by the law practice that provided the legal services concerned, or
(b) for a costs assessment in relation to costs to which section 364 (Assessment of costs--costs ordered by court or tribunal) applies--by such persons, and to such extent, as may be determined by the costs assessor, or
(c) for a costs assessment in relation to costs that on assessment are reduced by 15% or more--by the law practice that provided the legal services concerned or, if the costs assessor so determines, by such persons, and to such extent, as may be determined by the costs assessor.
(4) The costs assessor may refer to the Supreme Court any special circumstances relating to a costs assessment and the Court may make any order it thinks fit concerning the costs of the costs assessment.
(5) On making a determination, a costs assessor may issue and forward to each party and the Manager, Costs Assessment a certificate that sets out the costs of the costs assessment.
(6) If the application for a costs assessment has been dealt with by more than one costs assessor, a certificate issued can set out the costs of any other costs assessor.
(7) The certificate is, on the filing of the certificate in the office or registry of a court having jurisdiction to order the payment of that amount of money, and with no further action, taken to be a judgment of that court for the amount of unpaid costs.
(8) The costs of the costs assessor are to be paid to the Manager, Costs Assessment.
(9) The Manager, Costs Assessment may take action to recover the costs of a costs assessor or Manager, Costs Assessment.
(10) In this section:"costs of the costs assessment" includes the costs incurred by the costs assessor or the Manager, Costs Assessment in the course of a costs assessment under this Division, and also includes the costs related to the remuneration of the costs assessor.
370 Reasons for determination
(1) A costs assessor must ensure that a certificate issued under section 368 (Certificate as to determination) or 369 (Recovery of costs of costs assessment) that sets out his or her determination is accompanied by:
(a) a statement of the reasons for the costs assessor's determination, and
(b) such supplementary information as may be required by the regulations.
(2) The statement of reasons must be given in accordance with the regulations.
371 Correction of error in determination
(1) At any time after making a determination, a costs assessor may, for the purpose of correcting an inadvertent error in the determination:
(a) make a new determination in substitution for the previous determination, and
(b) issue a certificate under section 368 (Certificate as to determination) or 369 (Recovery of costs of costs assessment) that sets out the new determination.
(2) Such a certificate replaces any certificate setting out the previous determination of the costs assessor that has already been issued by the costs assessor and, on the filing of the replacement certificate in the office or registry of a court having jurisdiction to order the payment of the amount of the new determination, any judgment that is taken to have been effected by the filing of that previously issued certificate is varied accordingly.
372 Determination to be final
A costs assessor's determination of an application is binding on all parties to the application and no appeal or other assessment lies in respect of the determination, except as provided by this Division.

Subdivision 5 – Review of determination by panel
373 Application by party for review of determination
(1) A party to a costs assessment who is dissatisfied with a determination of a costs assessor may, within 30 days after the certificate under section 368 (Certificate as to determination) or 369 (Recovery of costs of costs assessment) has been forwarded to the parties that sets out the determination of the costs assessor or within such further time as the Manager, Costs Assessment may allow, apply to the Manager, Costs Assessment for a review of the determination. Section 328 (10) provides that a party to a costs agreement may apply to the Manager, Costs Assessment under this section for a review of a determination to make, or not make, an order under section 328 to set aside the costs agreement or a provision of the costs agreement.
(2) The application must:
(a) be made in accordance with the regulations (if any), and
(b) be accompanied by the fee prescribed by the regulations.
(3) The Manager, Costs Assessment may waive or postpone payment of the fee either wholly or in part if satisfied that the applicant is in such circumstances that payment of the fee would result in serious hardship to the applicant or his or her dependants.
(4) The Manager, Costs Assessment may refund the fee paid under this section either wholly or in part if satisfied that it is appropriate because the application is not proceeded with.
(5) A party who applies for a review under this Subdivision must ensure that notice of the application is given to the other parties to the assessment not less than 7 days before the application is made or as prescribed by the regulations.
373A Application by Manager for review of determination of costs of costs assessment
(1) The Manager, Costs Assessment may, within 30 days after the issue of a certificate under section 369 (5) that sets out the costs of a costs assessment determined by a costs assessor, prepare an application for a review of the determination.
(2) The Manager, Costs Assessment must ensure that notice of the Manager's intention to apply for a review is given to the parties to the proposed review not less than 7 days before the application is referred to a panel under section 374 or as prescribed by the regulations.
374 Referral of application to panel
(1) The Manager, Costs Assessment:
(a) in the case of an application duly made under section 373--is to refer the application to a panel, or
(b) in the case of an application prepared under section 373A--may refer the application to a panel.
(2) The panel is to be constituted by 2 costs assessors.
(3) A costs assessor whose determination is the subject of an application for a review under this Subdivision may not be a member of a panel to which the application has been referred.
(4) A member of a panel who has an interest in an application must, as soon as practicable after becoming aware of that fact, inform the Manager, Costs Assessment of that interest.
(5) If the Manager, Costs Assessment is satisfied that a member of a panel has an interest in the application, the Manager must refer the application to a differently constituted panel that does not include that member.
375 General functions of panel in relation to review application
(1) A panel constituted under this Subdivision may review the determination of the costs assessor and may:
(a) affirm the costs assessor's determination, or
(b) set aside the costs assessor's determination and substitute such determination in relation to the costs assessment as, in their opinion, should have been made by the costs assessor who made the determination that is the subject of the review.
(2) For the purposes of subsection (1), the panel has, in relation to the application for assessment, all the functions of a costs assessor under this Part and is to determine the application, subject to this Subdivision and the regulations, in the manner that a costs assessor would be required to determine an application for costs assessment.
(3) However, the assessment is to be conducted on the evidence that was received by the costs assessor who made the determination that is the subject of the assessment and, unless the panel determines otherwise, the panel is not:
(a) to receive submissions from the parties to the assessment, or
(b) to receive any fresh evidence or evidence in addition to or in substitution for the evidence received by the costs assessor.
(3A) A panel reviewing the determination of a costs assessor may determine that the amount of fair and reasonable costs is the amount agreed to by the parties to the review if during the course of the review the parties notify the panel that they have agreed on the amount of those costs.
(4) If the costs assessors who constitute the panel are unable to agree on a determination in relation to an application, the panel is to affirm the determination of the costs assessor who made the determination that is the subject of the review.
376 Relevant documents to be produced to panel
(1) A panel constituted under this Subdivision may, by notice in writing, require a costs assessor, a law practice or any other person (such as an applicant or an associate of a law practice) to produce to the panel any document in his or her possession relating to an assessment of costs by a costs assessor.
(2) If a person fails, without reasonable excuse, to comply with a notice under this section, the panel may decline to deal with an application for review or may continue to deal with it on the basis of the information provided.
(3) A costs assessor is to retain in his or her possession any document relating to a costs assessment (other than a document that is returned to a party to the assessment) until:
(a) the period of 12 months has elapsed since the issue of a certificate under section 368 (Certificate as to determination) setting out the determination of the costs assessor, or
(b) the costs assessor receives a notice under subsection (1) in relation to the document,
whichever happens first.
(4) A law practice or an associate of a law practice is to retain in his or her possession any document relating to a costs assessment that is returned to the practice or associate by the costs assessor until:
(a) the period of 12 months has elapsed since the issue of a certificate under section 368 setting out the determination of the costs assessor, or
(b) the practice or associate receives a notice under subsection (1) in relation to the document,
whichever happens first.
(5) A contravention of this section by an Australian legal practitioner is capable of being professional misconduct.
377 Effect of review on costs assessor's determination
(1) If the Manager, Costs Assessment refers a determination of a costs assessor to a panel for review under this Subdivision, the operation of that determination is suspended.
(2) The panel may end such a suspension:
(a) if it affirms the determination of the costs assessor, or
(b) in such other circumstances as it considers appropriate.
378 Certificate as to determination of panel
(1) On making a determination in relation to an application for review of a costs assessment under this Subdivision, a panel is to issue each party and the Manager, Costs Assessment with a certificate that sets out the determination.
(2) However, any such certificate may not set out the costs of the review within the meaning of section 379. Section 379 requires a panel to issue a separate certificate setting out the costs of the review. That section also makes provision for the effect of such a certificate.
(3) If the panel sets aside the determination of the costs assessor, the following provisions apply:
(a) if the amount of costs has already been paid, the amount (if any) by which the amount paid exceeds the amount specified in the determination of the panel may be recovered as a debt in a court of competent jurisdiction,
(b) if the amount of the costs has not been paid, a certificate is, on the filing of the certificate in the office or registry of a court having jurisdiction to order the payment of that amount of money, and with no further action, taken to be a judgment of that court for the amount of unpaid costs, and the rate of any interest payable in respect of that amount of costs is the rate of interest in the court in which the certificate is filed,
(c) if the costs assessor issued a certificate in relation to his or her determination under section 368 (Certificate as to determination) or 369 (Recovery of costs of costs assessment):
(i) the certificate ceases to have effect, and
(ii) any judgment that is taken to have been effected in relation to that certificate also ceases to have effect, and
(iii) any enforcement action taken in respect of that judgment is to be reversed.
(4) If the panel sets aside the costs assessor's determination, any amount substituted by the panel may include an allowance for any fee paid or payable for the application for review by the applicant or for any amount paid or payable for the costs of the costs assessor by a party to the assessment.
(5) If the costs of the panel are payable by a person referred to in section 379, the panel must:
(a) forward the certificate to the Manager, Costs Assessment, instead of forwarding it or copies of it to the parties, and
(b) advise the parties that the certificate has been so forwarded and will be available to the parties on payment of the costs of the panel.
(6) Subsection (5) does not apply in such circumstances as may be prescribed by the regulations.
379 Recovery of costs of review
(1) A panel that conducts a review of a costs assessor's determination under this Subdivision is to determine the costs of the review and may, subject to this section, determine by whom and to what extent those costs are to be paid.
(2) If the panel affirms the determination of the costs assessor, the panel is to require the party who applied for the review to pay the costs of the review.
(3) If the panel sets aside the determination of the costs assessor, and makes a determination in favour of the party who applied for review, the panel is to require the party who applied for the review to pay the costs of the review if the determination of the panel increases or decreases the total costs payable (as assessed by the costs assessor) by an amount that is less than 15 per cent (or such other percentage as may be prescribed by the regulations) of the total costs payable as assessed by the costs assessor.
(4) Subject to subsections (2) and (3), the panel may require any party to the assessment that is reviewed to pay the costs of the review or may determine that the costs of the review are to be shared between the parties in any manner that the panel considers appropriate.
(5) The panel is to issue to each party and the Manager, Costs Assessment, a certificate that sets out the panel's determination under this section.
(6) The certificate is, on filing of the certificate in the office or registry of a court having jurisdiction to order the payment of that amount of money, and with no further action, taken to be a judgment of that court for the amount of unpaid costs of the review.
(7) The costs of the review are to be paid to the Manager, Costs Assessment.
(8) The Manager, Costs Assessment may take action to recover the costs of a review.
(9) Regulations may be made with respect to determinations of a panel under this section.
(10) In this section:"costs of a review" means the costs incurred by the panel or the Manager, Costs Assessment in the course of a review under this Subdivision, and includes the costs related to the remuneration of the costs assessors who constitute the panel.
380 Reasons for determination
(1) The panel must ensure that a certificate issued under section 378 (Certificate as to determination of panel) or 379 (Recovery of costs of review) that sets out the determination of the panel is accompanied by:
(a) a statement of the reasons for the panel's determination, and
(b) such supplementary information as may be required by the regulations.
(2) The statement of reasons must be given in accordance with the regulations.
381 Correction of error in determination
(1) At any time after making a determination, a panel that conducts a review may, for the purpose of correcting an inadvertent error in the determination:
(a) make a new determination in substitution for the previous determination, and
(b) issue a certificate under section 378 (Certificate as to determination of panel) or 379 (Recovery of costs of review) that sets out the new determination of the panel.
(2) Such a certificate replaces any certificate setting out the previous determination of the panel that has already been issued by the panel and, on the filing of the replacement certificate in the office or registry of a court having jurisdiction to order the payment of the amount of the new determination, any judgment that is taken to have been effected by the filing of that previously issued certificate is varied accordingly.
382 Appeal against determination of panel
(1) Subdivision 6 (Appeals) applies in relation to a decision or determination of a panel under this Subdivision as if references in Subdivision 6 to a costs assessor were references to the panel.
(2) Subject to subsection (1), the panel's determination of an application for review of a costs assessor's determination is binding on all parties to the assessment that is the subject of a review and no appeal or other review lies in respect of the determination.
383 Regulations
The regulations may make provision for or with respect to reviews under this Subdivision, including the constitution and membership of a panel and the procedure for conducting reviews.

Subdivision 6 – Appeals
384 Appeal against decision of costs assessor as to matter of law
(1) A party to an application for a costs assessment who is dissatisfied with a decision of a costs assessor as to a matter of law arising in the proceedings to determine the application may, in accordance with the rules of the District Court, appeal to the Court against the decision.
(2) After deciding the question the subject of the appeal, the District Court may, unless it affirms the costs assessor's decision:
(a) make such determination in relation to the application as, in its opinion, should have been made by the costs assessor, or
(b) remit its decision on the question to the costs assessor and order the costs assessor to re-determine the application.
(3) On a re-determination of an application, fresh evidence, or evidence in addition to or in substitution for the evidence received at the original proceedings, may be given.
385 Appeal against decision of costs assessor by leave
(1) A party to an application for a costs assessment relating to a bill may, in accordance with the rules of the District Court, seek leave of the Court to appeal to the Court against the determination of the application made by a costs assessor.
(2) A party to an application for a costs assessment relating to costs payable as a result of an order made by a court or a tribunal may, in accordance with the rules of the court or tribunal, seek leave of the court or tribunal to appeal to the court or tribunal against the determination of the application made by a costs assessor.
(3) The District Court or court or tribunal may, in accordance with its rules, grant leave to appeal and may hear and determine the appeal.
(4) An appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence received at the original proceedings, may be given.
(5) After deciding the questions the subject of the appeal, the District Court or court or tribunal may, unless it affirms the costs assessor's decision, make such determination in relation to the application as, in its opinion, should have been made by the costs assessor.
386 Effect of appeal on application
(1) If a party to an application for a costs assessment has appealed against a determination or decision of a costs assessor, either the costs assessor or the court or tribunal to which the appeal is made may suspend, until the appeal is determined, the operation of the determination or decision.
(2) The costs assessor or the court or tribunal may end a suspension made by the costs assessor. The court or tribunal may end a suspension made by the court or tribunal.
387 Assessor can be party to appeal
A costs assessor can be made a party to any appeal against a determination or decision of the costs assessor by the District Court.

388 Notices of appeal
A copy of every document initiating an appeal against a determination or decision of a costs assessor must be served on the Manager, Costs Assessment by the party making the appeal.

389 Court may refer unreviewed determination to review panel
(1) If an appeal is made under section 385 (Appeal against decision of costs assessor by leave) against a determination of a costs assessor and the determination to which the appeal relates has not been reviewed by a panel in accordance with Subdivision 5 (Review of determination by panel), the court or tribunal to which the appeal is made may refer the appeal to the Manager, Costs Assessment for a review by a panel under that Subdivision.
(2) For the purposes of Subdivision 5 (Review of determination by panel), the referral of an appeal by a court or tribunal under subsection (1) to the Manager, Costs Assessment is taken to be a duly made application for a review under that Subdivision.
Subdivision 7 – General
390 Costs assessors
(1) The Chief Justice of New South Wales may appoint persons to be costs assessors under this Act.
(2) A costs assessor has the functions that are conferred on the costs assessor by or under this or any other Act.
(3) Schedule 5 has effect with respect to costs assessors.
(4) A costs assessor is not an officer of the Supreme Court when acting as a costs assessor.
(5) Proceedings relating to anything done or omitted to be done by the Chief Justice of New South Wales in respect of the appointment or removal of a costs assessor (including terms of appointment and any other incidental matters) may not be instituted against the Chief Justice of New South Wales but may be instituted against "The Manager, Costs Assessment" as nominal defendant.
391 Protection from liability
A matter or thing done or omitted to be done by the Chief Justice of New South Wales, the Manager, Costs Assessment or a costs assessor (including a costs assessor acting as a member of a panel constituted under this Division) 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 Part, subject the Chief Justice of New South Wales, the Manager, Costs Assessment or any costs assessor personally to any action, liability, claim or demand.

392 Confidentiality
A costs assessor must not disclose any information obtained in connection with the exercise of the costs assessor's functions (including any functions as a member of a panel constituted under this Division) unless the disclosure is made:

(a) in connection with the exercise of those functions or the administration or execution of this Act, or
(b) for the purposes of any legal proceedings arising out of this Act or of any report of any such proceedings, or
(c) in the case of information relating to an Australian legal practitioner or other person--with the consent of the practitioner or other person, or
(d) with other lawful excuse.
Maximum penalty: 20 penalty units.

393 Referral for disciplinary action
(1) If, on a costs assessment or review, the costs assessor considers that the legal costs charged by a law practice are grossly excessive, the costs assessor must refer the matter to the Commissioner to consider whether disciplinary action should be taken against any Australian legal practitioner or Australian-registered foreign lawyer involved.
(2) If the costs assessor considers that a costs assessment raises any other matter that may amount to unsatisfactory professional conduct or professional misconduct on the part of an Australian legal practitioner or Australian-registered foreign lawyer, the costs assessor must refer the matter to the Commissioner to consider whether disciplinary action should be taken against an Australian legal practitioner or Australian-registered foreign lawyer.
394 Rules of procedure for applications
(1) There is to be a costs assessors' rules committee consisting of those costs assessors appointed to the committee by the Chief Justice of New South Wales.
(2) The committee is to regulate its own proceedings for the calling of meetings and the conduct of its business.
(3) The committee may make rules, not inconsistent with this Part, governing the practice and procedure of the assessment of costs, including matters relating to the appointment of costs assessors to particular matters and the interests of costs assessors in particular matters.
(4) The committee has any other functions conferred on the committee by or under this or any other Act.
(5) Any amount payable from the Public Purpose Fund for the purpose of meeting the costs of the committee is to be paid, in accordance with section 290 (Payment of certain costs and expenses from Fund), to the Treasurer for credit of the Consolidated Fund.
(6) The rules must be published on the NSW legislation website.
(7) Sections 40 (Notice of statutory rules to be tabled) and 41 (Disallowance of statutory rules) of the Interpretation Act 1987 apply to the rules in the same way as they apply to a statutory rule.
395 Division not to apply to interest on judgment debt
This Division does not apply to an amount of interest ordered on a judgment debt (being an order for the payment of costs) under section 85 (4) of the District Court Act 1973 or section 95 (4) of the Supreme Court Act 1970.

395A Contracting out of Division by sophisticated clients
A sophisticated client of a law practice, or an associated third party payer who would be a sophisticated client if the third party payer were a client of the law practice concerned, may contract out of this Division.

Division 12 – Miscellaneous
396 Application of Part to cross-vested matters
(1) The regulations may make provisions modifying the application of this Part to matters commenced in another jurisdiction and transferred to the Supreme Court under cross-vesting legislation of the Commonwealth or another State or Territory.
(2) Without limiting subsection (1), the regulations may modify the application of this Part by removing an obligation that a local legal practitioner or interstate legal practitioner would otherwise have (in relation to such matters) under this Part.
397 Application of Part to incorporated legal practices and multi-disciplinary partnerships
The regulations may provide that specified provisions of this Part do not apply to incorporated legal practices or multi-disciplinary partnerships or both or apply to them with specified modifications.

398 Application of Part to Australian-registered foreign lawyers
(1) This Part applies to Australian-registered foreign lawyers as if a reference in this Part to a law practice or an Australian legal practitioner were a reference to an Australian-registered foreign lawyer.
(2) The regulations may make provisions modifying the application of this Part to Australian-registered foreign lawyers.
399 Imputed acts, omissions or knowledge
For the purposes of this Part:

(a) anything done or omitted by, to or in relation to:
(i) an Australian legal practitioner, or
(ii) an Australian-registered foreign lawyer (except for the purposes of any provision of this Part prescribed by the regulations for the purposes of this section),
in the course of acting on behalf of a law practice is taken to have been done or omitted by, to or in relation to the law practice, and
(b) without limiting paragraph (a), the law practice is taken to become or be aware of, or to have a belief as to, any matter if:
(i) an Australian legal practitioner, or
(ii) an Australian-registered foreign lawyer (except for the purposes of any provision of this Part prescribed by the regulations for the purposes of this section),
becomes or is aware of, or has a belief as to, the matter in the course of acting on behalf of the law practice.
400 Costs of administering Part
(1) All costs related to the administration of this Part (other than the costs referred to in section 394 (5)) (Rules of procedure for applications), are to be paid out of money to be provided from a working account established for the Attorney General's Department by the Treasurer under section 13A of the Public Finance and Audit Act 1983 for the purposes of this Part.
(2) The following amounts received by the Manager, Costs Assessment are to be paid to the credit of that working account:
(a) an application fee for an assessment,
(b) an application fee for a review of an assessment,
(c) a payment for the costs of a costs assessor,
(d) a payment for the costs of a review of an assessment.
Part 3.3 – Professional indemnity insurance

Division 1 – Preliminary
401 Purpose
The purpose of this Part is to continue the scheme for professional indemnity insurance to protect clients of law practices from professional negligence.

402 Definitions
(1) In this Part:"insurable barrister" means a barrister who holds a local practising certificate that entitles the holder to practise as a barrister on his or her own account, other than a barrister:
(a) who is exempted, or who is a member of a class of barristers that is exempted, by the Bar Council from the requirement to be insured under this Part, or
(b) who is engaged in practice referred to in section 111 (Government and other lawyers--exemption from certain conditions).
"insurable solicitor" means a solicitor who holds a local practising certificate that entitles the holder to practise as a solicitor on his or her own account, other than a solicitor:
(a) who has given a written undertaking to the Law Society Council that the solicitor will not practise during the period to which the practising certificate relates otherwise than in the course of the solicitor's employment by a body or person specified in the undertaking (not being employment by an incorporated legal practice), or
(b) who is exempted, or who is a member of a class of solicitors that is exempted, by the Law Society Council from the requirement to be insured under this Part.
(2) The Bar Council may exempt barristers or classes of barristers from the requirement to be insured under this Part on such grounds as the Council considers sufficient.
(3) The Law Society Council may exempt solicitors or classes of solicitors from the requirement to be insured under this Part on such grounds as the Council considers sufficient.
Division 2 – Barristers
403 Professional indemnity insurance for barristers
(1) The Bar Council must not grant or renew a local practising certificate to an insurable barrister unless it is satisfied that there is, or will be, in force with respect to the barrister an approved indemnity insurance policy.
(2) A policy of indemnity insurance is approved if:
(a) the policy is not to expire before the expiration of the local practising certificate of the barrister to whom the policy relates, and
(b) the Attorney General has, by order in writing given to the Bar Council, approved the type of policy, the level of insurance provided by the policy and the terms of the policy, and
(c) any conditions imposed by the order are complied with.
(3) The Bar Council is entitled to accept as evidence that there is, or will be, in force with respect to an insurable barrister an approved indemnity insurance policy:
(a) evidence in the form of written advice from an insurer or insurance broker to the effect that an insurer has agreed to issue the policy, or
(b) evidence that the premium for the policy has been received and accepted by the insurer for the purposes of the issue of the policy, or
(c) evidence that the regulations provide is acceptable evidence for the purposes of this section.
Division 3 – Solicitors
404 Definitions
In this Division:

"approved insurance policy" means a policy of indemnity insurance that is an approved insurance policy as provided by section 406 (Solicitor to be insured and to make contributions).

"Company" means the company that, immediately before the commencement of this Act, was managing the Solicitors' Mutual Indemnity Fund established by the Legal Practitioners Act 1898.

"Indemnity Fund" means the Solicitors Mutual Indemnity Fund managed by the Company.

405 Solicitors Mutual Indemnity Fund
(1) The Solicitors Mutual Indemnity Fund managed by the Company consists of the following:
(a) the Solicitors' Mutual Indemnity Fund established by the Legal Practitioners Act 1898,
(b) the money paid on account of the Indemnity Fund by insurable solicitors either as annual contributions or as levies under this Division,
(c) the interest or other income accruing from investment of the money in the Indemnity Fund,
(d) any other money lawfully paid into the Indemnity Fund,
(e) investments made under section 408 (Investment of Indemnity Fund),
(f) such other assets as are acquired as part of the Indemnity Fund.
(2) The Company may arrange with an insurer for insurance of the Indemnity Fund or any part of it.
(3) The Indemnity Fund is the property of the Law Society and may be used only for the purposes of this Division.
406 Solicitor to be insured and to make contributions
(1) The Law Society Council must not grant or renew a local practising certificate to an insurable solicitor unless it is satisfied:
(a) that there is, or will be, in force with respect to the solicitor an approved insurance policy, and
(b) that any contribution or levy, or instalment of a contribution, that is payable by the solicitor under section 411 (Contributions) or 412 (Levies) or under Schedule 7 has been paid to the Company.
(2) A policy of indemnity insurance is an approved insurance policy if:
(a) the policy is not to expire before the expiration of the local practising certificate of the solicitor to whom the policy relates, and
(b) the Attorney General has, by order in writing given to the Law Society, approved of the insurer the type of policy, the level of insurance provided by the policy and the terms of the policy, and
(c) any conditions imposed by the order are complied with.
(3) The Law Society may negotiate with insurers and other persons in relation to the provision of indemnity insurance to any solicitor or former solicitor with respect to civil liability that may arise in connection with:
(a) the solicitor's or former solicitor's practice or former practice, or
(b) the solicitor's or former solicitor's administration of any trust or deceased estate of which the solicitor or former solicitor is or was a trustee or executor,
and may do any other thing necessary for or in connection with the Law Society Council's functions under this section.
(4) The Law Society is entitled to accept as evidence that there is, or will be, in force with respect to an insurable solicitor an approved indemnity insurance policy:
(a) evidence in the form of written advice from an insurer or insurance broker to the effect that an insurer has agreed to issue the policy, or
(b) evidence that the premium for the policy has been received and accepted by the insurer for the purposes of the issue of the policy, or
(c) evidence that the solicitor is employed by a law practice that has an approved indemnity insurance policy in force that covers the solicitor,
(d) evidence that the regulations provide is acceptable evidence for the purposes of this section.
407 Separate account
The Company is to maintain with an ADI in New South Wales a separate account with the name "Solicitors Mutual Indemnity Fund".

408 Investment of Indemnity Fund
Money in the Indemnity Fund that is not immediately required for the purposes of the Fund may be invested:

(a) in accordance with Division 2 of Part 2 of the Trustee Act 1925 as if the money were trust funds, or
(b) on deposit with the Treasurer, or
(c) in the purchase of securities or shares listed for quotation on a prescribed financial market (within the meaning of section 9 of the Corporations Act 2001 of the Commonwealth), or
(d) in the acquisition of an interest in real estate in Australia, or
(e) in bills of exchange drawn, accepted or endorsed by an ADI.
409 Payments from Indemnity Fund
(1) There is payable from the Indemnity Fund in such order as the Company decides:
(a) the expenses incurred by the Company in carrying on its business, and
(b) premiums in respect of any approved insurance policy required by section 406 (Solicitor to be insured and to make contributions), and
(c) such amount as the Company determines towards meeting any difference between the indemnity provided by the approved insurance policy required by section 406 and the liability of a person insured under the policy, and
(d) such other amounts as the Company determines.
(2) The Company is required to pay from the Indemnity Fund the costs of an investigation of the Indemnity Fund, as referred to in section 414 (Investigation of Indemnity Fund), in accordance with a direction given by the Attorney General under that section.
(3) The Company may make determinations under subsection (1):
(a) that differ according to different circumstances, or
(b) that are subject to compliance with conditions imposed by the Company,
or that do both.
(4) The Company may:
(a) divide solicitors into classes approved by the Law Society Council, and
(b) under subsection (1) (c), make a different determination for each of the classes.
410 Payments relating to defaulting insurers
(1) Payments may be made by the Company from the Indemnity Fund for the purpose of indemnifying any person who is insured under an approved insurance policy that was issued or renewed by a defaulting insurer, in accordance with arrangements approved from time to time by the Attorney General.
(2) The Law Society and the Company may enter into an agreement with a defaulting insurer (including a provisional liquidator or liquidator of a defaulting insurer), or with any insured person, in connection with the payment of amounts from the Indemnity Fund under this section.
(3) In particular, any such agreement may provide for the following:
(a) the assignment or subrogation to the Company of the rights and remedies of a defaulting insurer or the insured person (or both) under or in connection with the approved insurance policy,
(b) the recovery by the Company from a defaulting insurer of any amount paid from the Indemnity Fund under this section.
(4) Any payment made from the Indemnity Fund under this section, and any agreement entered into with an insured person under this section, does not prevent the recovery by the Company from a defaulting insurer of any amount that would have been recoverable by the insured person under or in connection with the approved insurance policy had the payment not been made or the agreement not been entered into.
(5) Any amount recovered by the Company as a result of the exercise of its functions under this section (including its functions under an agreement referred to in this section) is to be paid into the Indemnity Fund. This does not apply to any amount that is payable to another person:
(a) under any other Act or law, or
(b) under any agreement referred to in this section, or
(c) under the regulations.
(6) Payments may be made from the Indemnity Fund for the purpose of meeting any reasonable costs and expenses incurred by the Company in exercising its functions under this section, including its functions under an agreement referred to in this section.
(7) For the purposes of this section, an insurer under an approved insurance policy is a "defaulting insurer" if the Company is satisfied that:
(a) the insurer is unwilling or unable to meet any claims or other liabilities under the approved insurance policy, or
(b) a liquidator or provisional liquidator has been appointed in respect of the insurer, or
(c) the insurer has been dissolved.
411 Contributions
(1) An insurable solicitor is liable to pay to the Indemnity Fund an annual contribution of an amount determined by the Company and approved by the Law Society Council. An insurable solicitor is also liable to pay to the Indemnity Fund such further amounts in respect of the annual contribution as may be determined by the Company and approved by the Law Society Council.
(2) The Company may make a different determination under subsection (1) for a particular solicitor or class of solicitors.
(3) If a solicitor applies for a practising certificate that will be in force for part only of a year commencing on 1 July, the contribution is such proportion of the total amount determined for the solicitor under subsection (1) as is borne to 1 year by the number of days for which the practising certificate will be in force.
(4) A contribution required to be paid under this section must be paid to the Company on account of the Indemnity Fund.
(5) The Company may permit a contribution to be paid by instalments under an arrangement approved by the Law Society Council.
412 Levies
(1) If the Company is at any time of the opinion that the assets of the Indemnity Fund may be insufficient to meet its liabilities, the Company may impose on each insurable solicitor a levy payable to the Company on account of the Indemnity Fund.
(2) A levy is to be of such amount as the Company determines and may differ according to the different factors in relation to which contributions under this Division have been determined.
(3) A levy is payable at the time, and in the manner, fixed by the Company which may, in a special case, allow time for payment.
413 Failure to pay contribution or levy
If, after being given written notice, an insurable solicitor fails to pay a contribution, instalment of a contribution, or levy in accordance with section 411 (Contributions) or 412 (Levies) or Schedule 7 (Professional indemnity insurance--provisions relating to HIH insurance) the Company must report the failure to the Law Society Council.

Part 2.4 provides for the suspension or cancellation of a local practising certificate for a failure to pay such a contribution, instalment of a contribution, or levy.

414 Investigation of Indemnity Fund
(1) The Attorney General may at any time appoint an appropriately qualified person to conduct an investigation in relation to the Indemnity Fund, including in relation to any of the following:
(a) the state and sufficiency of the Indemnity Fund,
(b) the adequacy of the amount or rate of any contributions or levies paid or payable under this Division,
(c) the management of the Indemnity Fund by the Company, and the adequacy of the investment strategies being adopted by the Company,
(d) such other matters relating to the Indemnity Fund as the Attorney General determines.
(2) The Company is to provide all reasonable assistance to the person appointed to conduct the investigation.
(3) The person appointed to conduct the investigation is to report to the Attorney General on the result of the investigation.
(4) The Attorney General may, by notice in writing served on the Company, require the Company to pay from the Indemnity Fund the costs of the investigation.
(5) For the purposes of subsection (4), the "costs of the investigation" means:
(a) the reasonable costs and expenses incurred in connection with the investigation by the person appointed to conduct the investigation, and
(b) the reasonable cost of any remuneration paid to that person in connection with the investigation.
415 Powers of investigators
(1) For the purpose of conducting an investigation under section 414 (Investigation of Indemnity Fund), an investigator may, by notice in writing served on any person, require the person to provide to the investigator such information or records relating to the Indemnity Fund or the Company's management of the Indemnity Fund as the investigator specifies in the notice.
(2) The notice must specify the manner in which information or records are required to be provided and a reasonable time by which the information or records are required to be provided.
(3) A person who, without reasonable excuse, neglects or fails to comply with a requirement made of the person under this section is guilty of an offence. Maximum penalty: 100 penalty units.
(4) A person who provides any information in purported compliance with a requirement made under this section, knowing that it is false or misleading in a material particular, is guilty of an offence. Maximum penalty: 100 penalty units.
(5) In this section:"investigator" means a person appointed by the Attorney General under section 414 (Investigation of Indemnity Fund) to conduct an investigation in relation to the Indemnity Fund.
416 Application of Division to other persons
The Company may apply this Division (sections 406 (Solicitor to be insured and to make contributions) and 413 (Failure to pay contribution or levy) and Schedule 7 excepted) to persons who:

(a) are not insurable solicitors, and
(b) are within a class of persons approved by the Law Society Council for the purposes of this section, and
(c) are insured under a policy of insurance that, if the persons were insurable solicitors, would be an approved policy of indemnity insurance for the purposes of section 406 (Solicitor to be insured and to make contributions), and
(d) pay to the Indemnity Fund such contributions and levies as the Company determines and the Law Society Council approves.
417 Provisions relating to HIH insurance
Schedule 7 has effect.

Part 3.4 – Fidelity cover

Division 1 – Preliminary
418 Purpose
The purpose of this Part is to establish and maintain a fund to provide a source of compensation for defaults by law practices arising from acts or omissions of associates.

419 Definitions
In this Part:

"allow" a claim includes compromise or settle the claim.

"capping and sufficiency provisions" of:

(a) this jurisdiction--means section 456 (Caps on payments) and section 457 (Sufficiency of Fidelity Fund), or
(b) another jurisdiction--means the provisions of the corresponding law of that jurisdiction that correspond to those sections.
"claim" means a claim under this Part.

"claimant" means a person who makes a claim under this Part.

"concerted interstate default" means a default of a law practice arising from or constituted by an act or omission:

(a) that was committed jointly by 2 or more associates of the practice, or
(b) parts of which were committed by different associates of the practice or different combinations of associates of the practice,
where this jurisdiction is the relevant jurisdiction for at least one of the associates and another jurisdiction is the relevant jurisdiction for at least one of the associates.

"default", in relation to a law practice, means:

(a) a failure of the practice to pay or deliver trust money or trust property that was received by the practice in the course of legal practice by the practice, where the failure arises from or is constituted by an act or omission of an associate that involves dishonesty, or
(b) a fraudulent dealing with trust property that was received by the practice in the course of legal practice by the practice, where the fraudulent dealing arises from or is constituted by an act or omission of an associate that involves dishonesty.
"dishonesty" includes fraud.

"pecuniary loss", in relation to a default, means:

(a) the amount of trust money, or the value of trust property, that is not paid or delivered, or
(b) the amount of money that a person loses or is deprived of, or the loss of value of trust property, as a result of a fraudulent dealing.
"relevant jurisdiction" --see section 433 (Meaning of "relevant jurisdiction").

420 Time of default
(1) This section applies for the purpose of determining which jurisdiction's law applies in relation to a default.
(2) The default is taken to have occurred when the act or omission giving rise to or constituting the default occurred.
(3) An omission is taken to have occurred on the day on or by which the act not performed ought reasonably to have been performed or on such other day as is determined in accordance with the regulations.
421 Application of this Part
This Part does not apply to a default of a law practice consisting of a barrister.

Division 2 – Fidelity Fund
422 Establishment of Legal Practitioners Fidelity Fund
(1) The Law Society must establish and maintain a Legal Practitioners Fidelity Fund consisting of:
(a) the money (including invested money) that, immediately before the commencement of this section, made up the Solicitors' Fidelity Fund maintained under the Legal Profession Act 1987,
(b) the money paid on account of the Fidelity Fund either as annual contributions or levies under this Part,
(c) the money paid in accordance with the regulations under section 197 (Fidelity cover) on account of the Fidelity Fund by locally registered foreign lawyers,
(d) the interest or other income accruing from investment of the money in the Fidelity Fund,
(e) money paid to the Fidelity Fund from the Public Purpose Fund, and
(f) any other money lawfully paid to the Fidelity Fund.
(2) The Fidelity Fund is the property of the Law Society, is to be administered by the Law Society Council and is to be applied in accordance with this Part.
423 Establishment of separate Legal Practitioners Fidelity Fund Account
(1) The Law Society must maintain with an ADI in New South Wales a separate account with the name "Legal Practitioners Fidelity Fund Account" and must pay to the credit of the account all money received on account of the Fidelity Fund.
(2) The account is be operated in the manner determined by the Law Society Council.
424 Investment of Fidelity Fund
Money in the Fidelity Fund that is not immediately required for the purposes of the Fund may be invested:

(a) in accordance with Division 2 of Part 2 of the Trustee Act 1925 as if the money were trust funds, or
(b) on deposit with the Treasurer.
425 Payments from Fidelity Fund
There is to be paid from the Fidelity Fund in such order as the Law Society Council decides:

(a) premiums for insurance of the Fidelity Fund,
(b) legal expenses incurred in investigating or defending claims made against the Fidelity Fund, or against the Law Society in relation to the Fidelity Fund, or otherwise incurred in relation to the Fidelity Fund,
(c) the amount of a claim (including interest and costs) allowed or established against the Law Society in respect of the Fidelity Fund,
(d) the expenses of administering the Fidelity Fund, including allowances and travelling expenses for members of the Law Society Council and the Fidelity Fund Management Committee in connection with the exercise of their functions in relation to the Fidelity Fund,
(e) the costs of the Law Society Council in exercising its function under section 699 (2) (Functions of Law Society), and
(f) any other money payable from the Fidelity Fund under this Part or in respect of amounts paid or payable for the purposes of Chapter 5 (External intervention) or under rules or regulations made under this Act.
426 Management Committee
(1) The Law Society Council may by resolution delegate all or any of its functions in relation to the Fidelity Fund to a Management Committee consisting of:
(a) 3 or more persons who are members of the Council, and
(b) not more than 8 persons who are not members of the Council but are members of the Law Society.
(2) The Law Society Council may by resolution rescind or vary a resolution made under subsection (1).
(3) The Law Society Council may terminate a person's membership of the Committee and may fill the subsequent or any other vacancy.
(4) At a meeting of the Committee, 3 members, including at least 1 member of the Law Society Council, constitute a quorum.
(5) At a meeting of the Committee:
(a) a member of the Committee appointed for the purpose by the Law Society Council is to preside, or
(b) if he or she is absent from the meeting, another member of the Committee elected for the purpose by those present at the meeting is to preside.
(6) The decision of a majority of the members present and voting at a meeting of the Committee is a decision of the Committee and, in the event of an equality of votes, the member presiding at the meeting is entitled to an additional vote as a casting vote.
(7) The Committee may call, adjourn, and regulate the conduct of, its meetings as it thinks fit.
427 Audit
The Law Society Council must cause the accounts relating to the Fidelity Fund to be audited annually by a firm of accountants approved by the Attorney General.

428 Insurance
(1) The Law Society Council may arrange with an insurer for the insurance of the Fidelity Fund.
(2) Without limiting subsection (1), the Law Society Council may arrange for the insurance of the Fidelity Fund against particular claims or particular classes of claims.
(3) The proceeds paid under a policy of insurance against particular claims or particular classes of claims are to be paid into the Fidelity Fund, and a claimant is not entitled to have direct recourse to the proceeds or any part of them.
(4) No liability (including liability in defamation) is incurred by a protected person in respect of anything done or omitted to be done in good faith for the purpose of arranging for the insurance of the Fidelity Fund.
(5) In this section:"protected person" means:
(a) the Law Society or a member of the Law Society Council or the Fidelity Fund Management Committee, or
(b) a member of staff of or a person acting at the direction of the Law Society, Law Society Council or Fidelity Fund Management Committee.
429 Borrowing
The Law Society cannot borrow money for the purposes of the Fidelity Fund.

Division 3 – Contributions and levies
430 Contributions
(1) An Australian lawyer must, when applying for the grant or renewal of a local practising certificate as a solicitor, pay to the Law Society on account of the Fidelity Fund the appropriate contribution to the Fidelity Fund for the year ending on 30 June during which the practising certificate would be in force.
(2) A solicitor who is an interstate legal practitioner and who (whether alone or with a co-signatory) becomes authorised to withdraw money from a local trust account must pay to the Law Society on account of the Fidelity Fund the appropriate contribution to the Fidelity Fund for the year ending on 30 June during which the authorisation commenced or continues, as required by the regulations under section 472 (Interstate legal practitioner becoming authorised to withdraw from local trust account).
(3) The amount of a contribution to the Fidelity Fund is an amount determined by the Law Society Council and approved by the Attorney General (subject to regulations under section 472 in the case of a contribution under subsection (2)).
(4) The Law Society Council may determine different contributions for different classes of solicitors and may permit a contribution to be paid by instalments under an arrangement approved by the Council.
(5) The amount of the contribution that would otherwise be payable for a year ending on 30 June is reduced by one-half if:
(a) (in the case of a contribution under subsection (1)) the application for a practising certificate is made after 31 December in that year, or
(b) (in the case of a contribution under subsection (2)) the solicitor becomes authorised to withdraw money from the local trust account after 31 December in that year.
(6) The Law Society may refund, at a rate determined by the Law Society Council, a part of a contribution paid by a solicitor for a year ending on 30 June if:
(a) (in the case of a contribution under subsection (1)) the solicitor ceases to practise as a solicitor at any time before 30 June in that year, or
(b) (in the case of a contribution under subsection (2)) the solicitor ceases before 30 June in that year to be authorised to withdraw money from the local trust account.
(7) This section does not apply to the Crown Solicitor or any other solicitor who:
(a) is employed by the Crown or by a corporation prescribed for the purposes of this section, and
(b) practises as a solicitor only in the course of that employment.
431 Levies
(1) If the Law Society Council is at any time of the opinion that the Fidelity Fund is likely to be insufficient to meet the liabilities to which it is subject, the Council may, by resolution, impose on each solicitor liable to contribute to the Fidelity Fund a levy payable to the Council on account of the Fidelity Fund.
(2) A levy is to be of such amount as the Law Society Council determines and may differ according to whether the solicitor is an interstate legal practitioner and to whether a solicitor is practising:
(a) on his or her own account or in partnership, or
(b) as an employee of another solicitor, or
(c) as an employee of a person who is not a solicitor, or of a corporation.
(3) A levy is payable at the time, and in the manner, fixed by the Law Society Council, which may, in a special case, allow time for payment.
432 Failure to pay contribution or levy
If a solicitor fails to pay a contribution required under section 430 or, after being given the prescribed notice, fails to pay a levy in accordance with this Part, the Law Society Council may:

(a) in the case of a local legal practitioner--suspend the solicitor's practising certificate while the failure continues, or
(b) in the case of an interstate legal practitioner--suspend that practitioner's entitlement under Part 2.4 to practise in this State while the failure continues and request the corresponding authority in the jurisdiction in which the practitioner has his or her sole or principal place of legal practice to suspend the solicitor's interstate practising certificate until the Law Society Council notifies the regulatory authority that the contribution or levy has been paid.
Division 4 – Defaults to which this Part applies
433 Meaning of "relevant jurisdiction"
(1) The relevant jurisdiction for an associate of a law practice whose act or omission (whether alone or with one or more other associates of the practice) gives rise to or constitutes a default of the practice is to be determined under this section. The concept of an associate's "relevant jurisdiction" is used to determine the jurisdiction whose Fidelity Fund is liable for a default of a law practice arising from or constituted by an act or omission committed by the associate. The relevant jurisdiction for an associate is in some cases the associate's home jurisdiction.
(2) In the case of a default involving trust money received in Australia (whether or not it was paid into an Australian trust account), the relevant jurisdiction for the associate is:
(a) if the trust money was paid into an Australian trust account and if the associate (whether alone or with a co-signatory) was authorised to withdraw any or all of the trust money from the only or last Australian trust account in which the trust money was held before the default--the jurisdiction under whose law that trust account was maintained, or
(b) in any other case--the associate's home jurisdiction.
(3) In the case of a default involving trust money received outside Australia and paid into an Australian trust account, the relevant jurisdiction for the associate is:
(a) if the associate (whether alone or with a co-signatory) was authorised to withdraw any or all of the trust money from the only or last Australian trust account in which the trust money was held before the default--the jurisdiction under whose law that trust account was maintained, or
(b) in any other case--the associate's home jurisdiction.
(4) In the case of a default involving trust property received in Australia, or received outside Australia and brought to Australia, the relevant jurisdiction for the associate is the associate's home jurisdiction.
Section 461 (Defaults involving interstate elements where committed by one associate only) provides that the Law Society Council may treat the default as consisting of 2 or more defaults for the purpose of determining the liability of the Fidelity Fund.

434 Defaults to which this Part applies
(1) This Part applies to a default of a law practice arising from or constituted by an act or omission of one or more associates of the practice, where this jurisdiction is the relevant jurisdiction for the only associate or one or more of associates involved.
(2) It is immaterial where the default occurs.
(3) It is immaterial that the act or omission giving rise to or constituting a default does not constitute a crime or other offence under the law of this or any other jurisdiction or of the Commonwealth or that proceedings have not been commenced or concluded in relation to a crime or other offence of that kind.
435 Defaults relating to financial services or investments
(1) This Part does not apply to a default of a law practice to the extent that the default occurs in relation to money or property that is entrusted to or held by the practice for or in connection with:
(a) a financial service provided by the practice or an associate of the practice in circumstances where the practice or associate is required to hold an Australian financial services licence covering the provision of the service (whether not such a licence is held at any relevant time), or
(b) a financial service provided by the practice or an associate of the practice in circumstances where the practice or associate provides the service as a representative of another person who carries on a financial services business (whether or not the practice or associate is an authorised representative at any relevant time).
(2) Without limiting subsection (1), this Part does not apply to a default of a law practice to the extent that the default occurs in relation to money or property that is entrusted to or held by the practice for or in connection with:
(a) a managed investment scheme, or
(b) mortgage financing,
undertaken by the practice.
(3) Without limiting subsections (1) and (2), this Part does not apply to a default of a law practice to the extent that the default occurs in relation to money or property that is entrusted to or held by the practice for investment purposes, whether on its own account or as agent, unless:
(a) the money or property was entrusted to or held by the practice:
(i) in the ordinary course of legal practice, and
(ii) primarily in connection with the provision of legal services to or at the direction of the client, and
(b) the investment is or is to be made:
(i) in the ordinary course of legal practice, and
(ii) for the ancillary purpose of maintaining or enhancing the value of the money or property pending completion of the matter or further stages of the matter or pending payment or delivery of the money or property to or at the direction of the client.
(4) In this section:"Australian financial services licence", "authorised representative", "financial service" and "financial services business" have the same meanings as in Chapter 7 of the Corporations Act 2001 of the Commonwealth.
Division 5 – Claims about defaults
436 Claims about defaults
(1) A person who suffers pecuniary loss because of a default to which this Part applies may make a claim against the Fidelity Fund to the Law Society about the default.
(2) A claim is to be made in writing in a form approved by the Law Society Council.
(3) The Law Society Council may require the person who makes a claim to do either or both of the following:
(a) to give further information about the claim or any dispute to which the claim relates,
(b) to verify the claim or any further information, by statutory declaration.
(4) The Law Society Council must investigate a claim made to it, including the default to which it relates, and may do so in any manner it considers appropriate.
437 Time limit for making claims
(1) Subject to section 439 (Time limit for making claims following advertisement), a claim does not lie against the Fidelity Fund unless the prospective claimant notifies the Law Society of the default concerned:
(a) within the period of 6 months after the prospective claimant becomes aware of the default, or
(b) within a further period allowed by the Law Society Council, or
(c) if the Supreme Court allows further time after the Law Society Council refuses to do so--within a period allowed by the Supreme Court.
(2) The Supreme Court or Law Society Council may allow a further period referred to in subsection (1) if satisfied that it would be appropriate to do so in a particular case having regard to matters the Supreme Court or Law Society Council considers relevant.
438 Advertisements
(1) If the Law Society Council considers that there has been, or may have been, a default by a law practice, it may publish either or both of the following:
(a) a notice that seeks information about the default,
(b) a notice that invites claims about the default and fixes a final date after which claims relating to the default cannot be made.
(2) The final date fixed by a notice must be a date that is:
(a) at least 3 months later than the date of the first or only publication of the notice, and
(b) not more than 12 months after the date of that first or only publication.
(3) A notice must be published:
(a) in a newspaper circulating generally throughout Australia, and
(b) in a newspaper circulating generally in each jurisdiction where the law practice:
(i) has an office, or
(ii) at any relevant time had an office,
if known to the Law Society Council, and
(c) on the internet site (if any) of the Law Society.
(4) The Law Society Council may provide information to persons making inquiries in response to a notice published under this section.
(5) Apart from extending the period during which claims can be made under this Part (where relevant), publication of a notice under this section does not confer any entitlements in relation to any claim or the default to which it relates or provide any grounds affecting the determination of any claim.
(6) Neither the publication in good faith of a notice under this section, nor the provision of information in good faith under this section, subjects a protected person to any liability (including liability in defamation).
(7) In this section:"protected person" means:
(a) the Law Society or a member of the Law Society Council or the Fidelity Fund Management Committee, or
(b) the proprietor, editor or publisher of the newspaper, or
(c) an internet service provider or internet content host, or
(d) a member of staff of or a person acting at the direction of any person or entity referred to in this definition.
439 Time limit for making claims following advertisement
(1) This section applies if the Law Society Council publishes a notice under section 438 (Advertisements) fixing a final date after which claims relating to a default cannot be made.
(2) A claim may be made:
(a) up to and including the final date fixed under the notice, or
(b) within a further period allowed by the Law Society Council, or
(c) if the Supreme Court allows further time after the Law Society Council refuses to do so--within a period allowed by the Supreme Court,
even though it would have been barred under section 437 (Time limit for making claims) had the notice not been published.
440 Claims not affected by certain matters
(1) A claim may be made about a law practice's default despite a change in the status of the practice or the associate concerned after the occurrence of the act or omission giving rise to or constituting the default.
(2) A claim that has been made is not affected by a later change in the status of the practice or associate.
(3) For the purposes of this section, a "change in status" includes:
(a) a change in the membership or staffing or the dissolution of the practice (in the case of a partnership), and
(b) a change in the directorship or staffing or the winding up or dissolution of the practice (in the case of an incorporated legal practice), and
(c) the fact that the associate has ceased to practise or to hold an Australian practising certificate (in the case of an associate who was an Australian legal practitioner), and
(d) the death of the associate (in the case of a natural person).
441 Advance payments
(1) The Law Society Council may, at its absolute discretion, make payments to a claimant in advance of the determination of a claim if satisfied that:
(a) the claim is likely to be allowed, and
(b) payment is warranted to alleviate hardship.
(2) Any payments made in advance are to be taken into account when the claim is determined.
(3) Payments under this section are to be made from the Fidelity Fund.
(4) If the claim is disallowed, the amounts paid under this section are recoverable by the Law Society as a debt due to the Fidelity Fund.
(5) If the claim is allowed but the amount payable is less than the amount paid under this section, the excess paid under this section is recoverable by the Law Society as a debt due to the Fidelity Fund.
Division 6 – Determination of claims
442 Determination of claims
(1) The Law Society Council must determine a claim by wholly or partly allowing or disallowing it.
(2) The Law Society Council must disallow a claim to the extent that the claim does not relate to a default for which the Fidelity Fund is liable.
(3) The Law Society Council may wholly or partly disallow a claim, or reduce a claim, to the extent that:
(a) the claimant knowingly assisted in or contributed towards, or was a party or accessory to, the act or omission giving rise to the claim, or
(b) the negligence of the claimant contributed to the loss, or
(c) the conduct of the transaction with the law practice in relation to which the claim is made was illegal, and the claimant knew or ought reasonably to have known of that illegality, or
(d) proper and usual records were not brought into existence during the conduct of the transaction, or were destroyed, and the claimant knew or ought reasonably to have known that records of that kind would not be kept or would be destroyed, or
(e) the claimant has unreasonably refused to disclose information or documents to or co-operate with:
(i) the Law Society Council, or
(ii) any other authority (including, for example, an investigative or prosecuting authority),
in the investigation of the claim.
(4) Subsections (2) and (3) do not limit the Law Society Council's power to disallow a claim on any other ground.
(5) Without limiting subsection (2) or (3), the Law Society Council may reduce the amount otherwise payable on a claim to the extent the Council considers appropriate:
(a) if satisfied that the claimant assisted in or contributed towards, or was a party or accessory to, the act or omission giving rise to the claim, or
(b) if satisfied that the claimant unreasonably failed to mitigate losses arising from the act or omission giving rise to the claim, or
(c) if satisfied that the claimant has unreasonably hindered the investigation of the claim.
(6) If the amount of a claim does not exceed $2,500 or such other amount as may be prescribed by the regulations, the Law Society Council may allow the claim after waiving compliance with such of the provisions of this Part as it thinks fit.
(7) The Law Society Council must, in allowing a claim, specify the amount payable.
443 Claimant required to pursue claims etc
(1) The Law Society Council may give a claimant not less than 21 days' written notice requiring the claimant to do such of the following as are specified in the notice:
(a) take specified steps for the purpose of pursuing the claim,
(b) supply the Law Society Council with specified particulars in relation to the claim,
(c) produce or deliver to the Law Society Council any securities or documents necessary or available to support the claim or to enable the Law Society Council to establish any rights of the Law Society against the law practice,
(d) do specified things in connection with the claim.
(2) If the claimant fails to comply with the notice, the Law Society Council may:
(a) wholly or partly disallow the claim, or
(b) direct that the whole, or a specified part of, any interest otherwise payable under section 446 not be paid.
444 Maximum amount allowable
(1) The amount payable in respect of a default must not exceed the pecuniary loss resulting from the default.
(2) This section does not apply to costs payable under section 445 (Costs) or to interest payable under section 446 (Interest).
445 Costs
(1) If the Law Society Council wholly or partly allows a claim, the Council must order payment of the claimant's reasonable legal costs involved in making and proving the claim, unless the Council considers that special circumstances exist warranting a reduction in the amount of costs or warranting a determination that no amount should be paid for costs.
(2) If the Law Society Council wholly disallows a claim, the Council may order payment of the whole or part of the claimant's reasonable legal costs involved in making and attempting to prove the claim, where the Council considers it is appropriate to make the order.
(3) The costs are payable from the Fidelity Fund.
446 Interest
(1) In determining the amount of pecuniary loss resulting from a default, the Law Society Council is to add interest on the amount payable (excluding interest), unless the Council considers that special circumstances exist warranting a reduction in the amount of interest or warranting a determination that no amount should be paid by way of interest.
(2) The interest is to be calculated from the date on which the claim was made, to the date the Law Society Council notifies the claimant that the claim has been allowed, at the rate specified in or determined under the regulations.
(3) To the extent that regulations are not in force for the purposes of subsection (2), interest is to be calculated at the rate of 5 per cent per annum.
(4) The interest is payable from the Fidelity Fund.
447 Reduction of claim because of other benefits
(1) A person is not entitled to recover from the Fidelity Fund any amount equal to amounts or to the value of other benefits:
(a) that have already been paid to or received by the person, or
(b) that have already been determined and are payable to or receivable by the person, or
(c) that (in the opinion of the Law Society Council) are likely to be paid to or received by the person, or
(d) that (in the opinion of the Law Society Council) might, but for neglect or failure on the person's part, have been paid or payable to or received or receivable by the person,
from other sources in respect of the pecuniary loss to which a claim relates.
(2) The Law Society Council may, at its absolute discretion, pay to a person the whole or part of an amount referred to in subsection (1) (c) if satisfied that payment is warranted to alleviate hardship, but nothing in this subsection affects section 449 (Repayment of certain amounts).
448 Subrogation
(1) On payment of a claim from the Fidelity Fund, the Law Society Council is subrogated to the rights and remedies of the claimant against any person in relation to the default to which the claim relates.
(2) Without limiting subsection (1), that subsection extends to a right or remedy against:
(a) the associate in respect of whom the claim is made, or
(b) the person authorised to administer the estate of the associate in respect of whom the claim is made and who is deceased or an insolvent under administration.
(3) Subsection (1) does not apply to a right or remedy against an associate if, had the associate been a claimant in respect of the default, the claim would not be disallowable on any of the grounds set out in section 442 (3) (Determination of claims).
(4) The Law Society Council may exercise its rights and remedies under this section in its own name or in the name of the claimant.
(5) If the Law Society Council brings proceedings under this section in the name of the claimant, it must indemnify the claimant against any costs awarded against the claimant in the proceedings.
(6) The Law Society Council must pay into the Fidelity Fund any money recovered in exercising its rights and remedies under this section.
449 Repayment of certain amounts
(1) If a claimant:
(a) receives a payment from the Fidelity Fund in respect of the claim, and
(b) receives or recovers from another source or sources a payment on account of the pecuniary loss, and
(c) there is a surplus after deducting the amount of the pecuniary loss from the total amount received or recovered by the claimant from both or all sources,
the amount of the surplus is a debt payable by the claimant to the Fund.
(2) However, the amount payable by the claimant cannot exceed the amount the claimant received from the Fidelity Fund in respect of the claim.
450 Notification of delay in making decision
(1) If the Law Society Council considers that a claim is not likely to be determined within 12 months after the claim was made, the Council must notify the claimant in writing that the claim is not likely to be determined within that period.
(2) The notification must contain a brief statement of reasons for the delay and an indication of the period within which the claim is likely to be determined.
451 Notification of decision
(1) The Law Society Council must, as soon as practicable, notify the claimant in writing about any decision it makes about the claim.
(2) The notification must include an information notice about:
(a) a decision of the Law Society Council to wholly or partly disallow a claim, or
(b) a decision of the Law Society Council to reduce the amount allowed in respect of a claim.
452 Appeal against decision on claim
(1) A claimant may appeal to the Supreme Court against:
(a) a decision of the Law Society Council to wholly or partly disallow a claim, or
(b) a decision of the Law Society Council to reduce the amount allowed in respect of a claim,
but an appeal does not lie against a decision of the Council to limit the amount payable, or to decline to pay an amount, under the capping and sufficiency provisions of this jurisdiction.
(2) An appeal against a decision must be lodged within 30 days of receiving the information notice about the decision.
(3) On an appeal under this section:
(a) the appellant must establish that the whole or part of the amount sought to be recovered from the Fidelity Fund is not reasonably available from other sources, unless the Law Society Council waives that requirement, and
(b) the Supreme Court may, on application by the Law Society Council, stay the appeal pending further action being taken to seek recovery of the whole or part of that amount from other sources.
(4) The Supreme Court may review the merits of the Law Society Council's decision.
(5) The Supreme Court may:
(a) affirm the decision, or
(b) if satisfied that the reasons for varying or setting aside the Law Society Council's decision are sufficiently cogent to warrant doing so:
(i) vary the decision, or
(ii) set aside the decision and make a decision in substitution for the decision set aside, or
(iii) set aside the decision and remit the matter for reconsideration by the Law Society Council in accordance with any directions or recommendations of the Court,
and may make other orders as it thinks fit.
(6) No order for costs is to be made on an appeal under this section unless the Supreme Court is satisfied that an order for costs should be made in the interests of justice.
453 Appeal against failure to determine claim
(1) A claimant may appeal to the Supreme Court against a failure of the Law Society Council to determine a claim after 12 months after the claim was made.
(2) An appeal against a failure to determine a claim may be made at any time after the period of 12 months after the claim was made and while the failure continues.
(3) On an appeal under this section:
(a) the appellant must establish that the whole or part of the amount sought to be recovered from the Fidelity Fund is not reasonably available from other sources, unless the Law Society Council waives that requirement, and
(b) the Supreme Court may, on application by the Law Society Council, stay the appeal pending further action being taken to seek recovery of the whole or part of that amount from other sources.
(4) The Supreme Court may determine the appeal:
(a) by:
(i) giving directions to the Law Society Council for the expeditious determination of the matter, and
(ii) if the Court is satisfied that there has been unreasonable delay--ordering that interest be paid at a specified rate that is higher than the rate applicable under section 446 (Interest), until further order or the determination of the claim, and
(iii) if the Court is satisfied that there has not been unreasonable delay--ordering that, if delay continues in circumstances of a specified kind, interest be paid for a specified period at a specified rate that is higher than the rate applicable under section 446 (Interest), until further order or the determination of the claim, or
(b) by deciding not to give directions or make orders under paragraph (a).
(5) No order for costs is to be made on an appeal under this section unless the Supreme Court is satisfied that an order for costs should be made in the interests of justice.
454 Court proceedings
In any proceedings brought in a court under section 448 (Subrogation) or section 452 (Appeal against decision on claim):

(a) evidence of any admission or confession by, or other evidence that would be admissible against, an Australian legal practitioner or other person with respect to an act or omission giving rise to a claim is admissible to prove the act or omission despite the fact that the practitioner or other person is not a defendant in, or a party to, the proceedings, and
(b) any defence that would have been available to the practitioner or other person is available to the Law Society Council.
Division 7 – Payments from Fidelity Fund for defaults
455 Payments for defaults
(1) The Fidelity Fund is to be applied by the Law Society Council for the purpose of compensating claimants in respect of claims allowed under this Part in respect of defaults to which this Part applies.
(2) An amount payable from the Fidelity Fund in respect of a claim is payable to the claimant or to another person at the claimant's direction.
456 Caps on payments
(1) The Law Society Council may fix either or both of the following:
(a) the maximum amounts, or the method of calculating maximum amounts, that may be paid from the Fidelity Fund in respect of individual claims or classes of individual claims,
(b) the maximum aggregate amount, or the method of calculating maximum aggregate amount, that may be paid from the Fidelity Fund in respect of all claims made in relation to individual law practices or classes of law practices.
(2) Amounts must not be paid from the Fidelity Fund that exceed the amounts fixed, or calculated by a method fixed, under subsection (1).
(3) Payments from the Fidelity Fund in accordance with the requirements of subsection (2) are made in full and final settlement of the claims concerned.
(4) Despite subsection (2), the Law Society Council may authorise payment of a larger amount if satisfied that it would be reasonable to do so after taking into account the position of the Fidelity Fund and the circumstances of the particular case.
(5) No proceedings can be brought, by way of appeal or otherwise, to require the payment of a larger amount or to require the Law Society Council to consider payment of a larger amount.
457 Sufficiency of Fidelity Fund
(1) If the Law Society Council is of the opinion that the Fidelity Fund is likely to be insufficient to meet the Fund's ascertained and contingent liabilities, the Council may do any or all of the following:
(a) postpone all payments relating to all or any class of claims out of the Fund,
(b) impose a levy under section 431 (Levies),
(c) make partial payments of the amounts of one or more allowed claims out of the Fund with payment of the balance being a charge on the Fund,
(d) make partial payments of the amounts of 2 or more allowed claims out of the Fund on a pro rata basis, with payment of the balance ceasing to be a liability of the Fund.
(2) In deciding whether to do any or all of the things mentioned in subsection (1), the Law Society Council:
(a) must have regard to hardship where relevant information is known to the Council, and
(b) must endeavour to treat outstanding claims equally and equitably, but may make special adjustments in cases of hardship.
(3) If the Law Society Council declares that a decision is made under subsection (1) (d):
(a) the balance specified in the declaration ceases to be a liability of the Fidelity Fund, and
(b) the Council may (but need not) at any time revoke the declaration in relation to either the whole or a specified part of the balance, and the balance or that part of the balance again becomes a liability of the Fund.
(4) A decision of the Law Society Council made under this section is final and not subject to appeal or review.
Division 8 – Claims by law practices or associates
458 Claims by law practices or associates about defaults
(1) This section applies to a default of a law practice arising from or constituted by an act or omission of an associate of the practice.
(2) A claim may be made under section 436 (Claims about defaults) by another associate of the law practice, if the associate suffers pecuniary loss because of the default.
(3) A claim may be made under section 436 by the law practice, if the practice is an incorporated legal practice and it suffers pecuniary loss because of the default.
459 Claims by law practices or associates about notional defaults
(1) If, in respect of a default arising from or constituted by an act or omission of an associate of a law practice (the "first associate"):
(a) another associate (the "other associate") of the practice, or the practice itself, has paid compensation for pecuniary loss resulting from the default, and
(b) the other associate or the practice has, in the opinion of the Law Society Council, at all times acted honestly and reasonably in relation to the default,
the other associate or the practice may make a claim as if the compensation paid by the other associate or practice were a pecuniary loss suffered as a result of the default.
(2) The other associate or the practice may not claim under this section more than the amount paid by the other associate or practice as compensation for pecuniary loss resulting from the default as referred to in subsection (1) (a).
(3) A reference in this section to another associate of the law practice includes a reference to:
(a) a former associate of the practice, and
(b) in relation to the payment of compensation and the making of a claim--the personal representative of a deceased associate of the practice or a deceased former associate of the practice.
Division 9 – Defaults involving interstate elements
460 Concerted interstate defaults
(1) The Law Society Council may treat a concerted interstate default as if the default consisted of 2 or more separate defaults:
(a) one of which is a default to which this Part applies, where this jurisdiction is the relevant jurisdiction for one or more of the associates involved, and
(b) the other or others of which are defaults to which this Part does not apply, where another jurisdiction or jurisdictions are the relevant jurisdictions for one or more of the associates involved.
(2) The Law Society Council may treat a claim about a concerted interstate default as if the claim consisted of:
(a) one or more claims made under this Part, and
(b) one or more claims made under a corresponding law or laws.
(3) A claim about a concerted interstate default is to be assessed on the basis that the fidelity funds of the relevant jurisdictions involved are to contribute:
(a) in equal shares in respect of the default, regardless of the number of associates involved in each of those jurisdictions, and disregarding the capping and sufficiency provisions of those jurisdictions, or
(b) in other shares as agreed by the Law Society Council and the corresponding authority or authorities involved.
(4) Subsection (3) does not affect the application of the capping and sufficiency requirements of this jurisdiction in respect of the amount payable from the Fidelity Fund after the claim has been assessed.
461 Defaults involving interstate elements where committed by one associate only
(1) This section applies to a default of a law practice arising from or constituted by an act or omission that was committed by only one associate of the practice, where the default involves more than one of the cases referred to in section 433 (2)-(4) (Meaning of "relevant jurisdiction").
(2) The Law Society Council may treat the default to which this section applies as if the default consisted of 2 or more separate defaults:
(a) one of which is a default to which this Part applies, where this jurisdiction is the relevant jurisdiction, and
(b) the other or others of which are defaults to which this Part does not apply, where another jurisdiction or jurisdictions are the relevant jurisdictions.
(3) The Law Society Council may treat a claim about the default to which this section applies as if the claim consisted of:
(a) one or more claims made under this Part, and
(b) one or more claims made under a corresponding law or laws.
(4) A claim about a default to which this section applies is to be assessed on the basis that the fidelity funds of the relevant jurisdictions involved are to contribute:
(a) in equal shares in respect of the default, and disregarding the capping and sufficiency provisions of those jurisdictions, or
(b) in other shares as agreed by the Law Society Council and the corresponding authority or authorities involved.
(5) Subsection (4) does not affect the application of the capping and sufficiency requirements of this jurisdiction in respect of the amount payable from the Fidelity Fund after the claim has been assessed.
Division 10 – Inter-jurisdictional provisions
462 Protocols
(1) The regulations may authorise the Law Society Council to enter into arrangements (referred to in this Part as "protocols") with corresponding authorities for or with respect to matters to which this Part relates.
(2) Without limiting subsection (1), the regulations may authorise the making of a protocol that provides that the Law Society Council is taken to have:
(a) requested a corresponding authority to act as agent of the Council in specified classes of cases, or
(b) agreed to act as agent of a corresponding authority in specified classes of cases.
(3) The regulations may:
(a) provide for the amendment, revocation or replacement of protocols, and
(b) provide that protocols or specified classes of protocols do not have effect in this jurisdiction unless approved by or in accordance with the regulations.
463 Forwarding of claims
(1) If a claim is made to the Law Society Council about a default that appears to be a default to which a corresponding law applies, the Council must forward the claim or a copy of it to a corresponding authority of the jurisdiction concerned.
(2) If a claim is made to a corresponding authority about a default that appears to be a default to which this Part applies and the claim or a copy of it is forwarded under a corresponding law to the Law Society Council by the corresponding authority, the claim is taken:
(a) to have been made under this Part, and
(b) to have been so made when the claim was received by the corresponding authority.
464 Investigation of defaults to which this Part applies
(1) This section applies if a default appears to be a default to which this Part applies and to have:
(a) occurred solely in another jurisdiction, or
(b) occurred in more than one jurisdiction, or
(c) occurred in circumstances in which it cannot be determined precisely in which jurisdiction the default occurred.
(2) The Law Society Council may request a corresponding authority or corresponding authorities to act as agent or agents for the Council, for the purpose of processing or investigating a claim about the default or aspects of the claim.
465 Investigation of defaults to which a corresponding law applies
(1) This section applies if a default appears to be a default to which a corresponding law applies and to have:
(a) occurred solely in this jurisdiction, or
(b) occurred in more than one jurisdiction (including this jurisdiction), or
(c) occurred in circumstances in which it cannot be determined precisely in which jurisdiction the default occurred.
(2) The Law Society Council may act as agent of a corresponding authority, if requested to do so by the corresponding authority, for the purpose of processing or investigating a claim about the default or aspects of the claim.
(3) If the Law Society Council agrees to act as agent of a corresponding authority under subsection (2), the Council may exercise any of its powers or functions in relation to processing or investigating the claim or aspects of the claim as if the claim had been made under this Part.
466 Investigation of concerted interstate defaults and other defaults involving interstate elements
(1) This section applies if:
(a) a concerted interstate default, or
(b) a default to which section 461 (Defaults involving interstate elements where committed by one associate only) applies,
appears to have occurred.
(2) The Law Society Council may request a corresponding authority or corresponding authorities to act as agent or agents for the Council, for the purpose of processing or investigating a claim about the default or aspects of the claim.
(3) The Law Society Council may act as agent of a corresponding authority, if requested to do so by the corresponding authority, for the purpose of processing or investigating a claim about the default or aspects of the claim.
(4) If the Law Society Council agrees to act as agent of a corresponding authority under subsection (3), the Council may exercise any of its powers or functions in relation to processing or investigating the claim or aspects of the claim as if the claim had been made entirely under this Part.
467 Recommendations by Law Society Council to corresponding authorities
If the Law Society Council is acting as agent of a corresponding authority in relation to a claim made under a corresponding law, the Council may make recommendations about the decision the corresponding authority might make about the claim.

468 Recommendations to and decisions by Law Society Council after receiving recommendations from corresponding authorities
(1) If a corresponding authority makes recommendations about the decision the Law Society Council might make about a claim in relation to which the corresponding authority was acting as agent of the Council, the Council may:
(a) make its decision about the claim in conformity with the recommendations, whether with or without further consideration, investigation or inquiry, or
(b) disregard the recommendations.
(2) A corresponding authority cannot, as agent of the Law Society Council, make a decision about the claim under Division 6 (Determination of claims).
469 Request to another jurisdiction to investigate aspects of claim
(1) The Law Society Council may request a corresponding authority to arrange for the investigation of any aspect of a claim being dealt with by the 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 entity authorised by the corresponding authority to conduct the investigation,
may be used and taken into consideration by the Law Society Council in the course of dealing with the claim under this Part.
470 Request from another jurisdiction to investigate aspects of claim
(1) This section applies in relation to a request received by the Law Society Council from a corresponding authority to arrange for the investigation of any aspect of a claim being dealt with under a corresponding law.
(2) The Law Society Council may conduct the investigation.
(3) The provisions of this Part relating to the investigation of a claim apply, with any necessary adaptations, in relation to the investigation of the relevant aspect of the claim that is the subject of the request.
(4) The Law Society Council must provide a report on the result of the investigation to the corresponding authority.
471 Co-operation with other authorities
(1) When dealing with a claim under this Part involving a law practice or an Australian legal practitioner, the Law Society Council may consult and co-operate with another person or body who or which has powers under the corresponding law of another jurisdiction in relation to the practice or practitioner.
(2) For the purposes of subsection (1), the Law Society Council and the other person or body may exchange information concerning the claim.
Division 11 – Miscellaneous
472 Interstate legal practitioner becoming authorised to withdraw from local trust account
(1) An interstate legal practitioner who (whether alone or with a co-signatory) becomes authorised to withdraw money from a local trust account must:
(a) notify the Law Society Council of the authorisation in accordance with the regulations, and
(b) make contributions to the Fidelity Fund in accordance with the regulations.
(2) Without limiting subsection (1), the regulations may determine or provide for the determination of any or all of the following:
(a) the manner in which the notification is to be made and the information or material that is to be included in or to accompany the notification,
(b) the amount of the contributions, their frequency and the manner in which they are to be made.
(3) (Repealed)
473 Application of Part to incorporated legal practices
(1) The regulations may provide that specified provisions of this Part, and any other provisions of this Act or any legal profession rule relating to the Fidelity Fund, do not apply to incorporated legal practices or apply to them with specified modifications.
(2) For the purposes of the application of the provisions of this Part, and any other provisions of this Act or any legal profession rule relating to the Fidelity Fund, to an incorporated legal practice, a reference in those provisions to a default of a law practice extends to a default of an incorporated legal practice, but only if it occurs in connection with the provision of legal services.
(3) Nothing in this section affects any obligation of an Australian legal practitioner who is an officer or employee of an incorporated legal practice to comply with the provisions of this Act or any legal profession rule relating to the Fidelity Fund.
474 Application of Part to multi-disciplinary partnerships
(1) The regulations may provide that specified provisions of this Part, and any other provisions of this Act or any legal profession rule relating to the Fidelity Fund, do not apply to multi-disciplinary partnerships or apply to them with specified modifications.
(2) For the purposes of the application of the provisions of this Part, and any other provisions of this Act or any legal profession rule relating to the Fidelity Fund, to a multi-disciplinary partnership, a reference in those provisions to a default of a law practice extends to a default of a multi-disciplinary partnership or a partner or employee of a multi-disciplinary partnership, whether or not any person involved is an Australian legal practitioner, but only if it occurs in connection with the provision of legal services.
(3) Nothing in this section affects any obligation of an Australian legal practitioner who is a partner or employee of a multi-disciplinary partnership to comply with the provisions of this Act or any legal profession rule relating to the Fidelity Fund.
475 Application of Part to sole practitioners whose practising certificates lapse
(1) This section applies if an Australian lawyer is not an Australian legal practitioner because his or her Australian practising certificate has lapsed and the lawyer was a sole practitioner immediately before the certificate lapsed, but does not apply where:
(a) the certificate has been suspended or cancelled under this Act or a corresponding law, or
(b) the lawyer's application for the grant or renewal of an Australian practising certificate has been refused under this Act or a corresponding law and the lawyer would be an Australian legal practitioner had it been granted or renewed.
(2) For the purposes of other provisions of this Part, the practising certificate is taken not to have lapsed, and accordingly the lawyer is taken to continue to be an Australian legal practitioner.
(3) Subsection (2) ceases to apply:
(a) if a manager or receiver is appointed under this Act for the law practice, or
(b) when the period of 6 months after the practising certificate actually lapsed expires, or
(c) if the lawyer's application for the grant or renewal of an Australian practising certificate is refused under this Act or a corresponding law,
whichever first occurs.
476 Availability of property of Law Society
The Fidelity Fund is the only property of the Law Society available for the satisfaction of a successful claim.

Part 3.5 – Mortgage practices and managed investment schemes

Division 1 – Preliminary
477 Definitions
(1) In this Part:"ASIC exemption" means an exemption from the Corporations Act 2001 of the Commonwealth given by the Australian Securities and Investments Commission under that Act."associate" of a solicitor--see subsection (2)."borrower" means a person who borrows from a lender or contributor money that is secured by a mortgage."client" of a solicitor means a person who:
(a) receives the solicitor's advice about investment in a regulated mortgage or managed investment scheme, or
(b) gives the solicitor instructions to use money for a regulated mortgage or managed investment scheme.
"contributor" means a person who lends, or proposes to lend, money that is secured by a contributory mortgage arranged by a solicitor."contributory mortgage" means a mortgage to secure money lent by 2 or more contributors as tenants in common or joint tenants, whether or not the mortgagee is a person who holds the mortgage in trust for or on behalf of those contributors."financial institution" means:
(a) an ADI, or
(b) a body that, immediately before 1 July 1999, was a society within the meaning of the Friendly Societies (NSW) Code or a body that is a friendly society for the purposes of the Life Insurance Act 1995 of the Commonwealth, or
(c) a trustee company within the meaning of the Trustee Companies Act 1964, or
(d) a property trust or other body corporate established by or in respect of a church that may invest money in accordance with an Act, or
(e) a corporation or other body, or a corporation or body of a class, prescribed by the regulations for the purpose of this definition.
"lender" means a person who lends, or proposes to lend, a borrower money that is secured by a mortgage."member" of a managed investment scheme has the same meaning as in the Corporations Act 2001 of the Commonwealth."regulated mortgage" means a mortgage (including a contributory mortgage) other than:
(a) a mortgage under which the lender is a financial institution, or
(b) a mortgage under which the lender or contributors nominate the borrower, but only if the borrower is not a person introduced to the lender or contributors by the solicitor who acts for the lender or contributors or by:
(i) an associate of the solicitor, or
(ii) an agent of the solicitor, or
(iii) a person engaged by the solicitor for the purpose of introducing the borrower to the lender or contributors, or
(c) a mortgage, or a mortgage of a class, that the regulations prescribe as exempt from this definition.
"responsible entity" has the same meaning as in the Corporations Act 2001 of the Commonwealth."run-out mortgage" means a regulated mortgage that was entered into before 7 September 2001 (the date of commencement of section 117 of the Legal Profession Act 1987, as inserted by the Legal Profession Amendment (Mortgage Practices) Act 2000), which is not:
(a) a State regulated mortgage, or
(b) a mortgage that forms part of a managed investment scheme that is required to be operated by a responsible entity under the Corporations Act 2001 of the Commonwealth (as modified by any ASIC exemption or the regulations under that Act).
"State regulated mortgage" is defined in section 478 (State regulated mortgage--meaning)."State regulated mortgage practice" means a solicitor's practice in respect of which a nomination made in accordance with section 480 (Nomination of practice as State regulated mortgage practice) is in force.
(2) In this Part, a reference to an associate of a solicitor is a reference to:
(a) a partner of the solicitor, whether or not the partner is a solicitor, or
(b) an employee or agent of the solicitor, or
(c) a corporation, or a member of a corporation, partnership, syndicate or joint venture, in which the solicitor or a person referred to in paragraph (a), (b) or (e) has a beneficial interest, or
(d) a co-trustee of the solicitor, or
(e) a person who bears a prescribed relationship to the solicitor or to a person referred to in paragraphs (a) (d), or
(f) a corporation that (if the solicitor or a person referred to in paragraphs (a)-(e) were, or is, a corporation) would be, or is, a subsidiary of the solicitor or person within the meaning of the Corporations Act 2001 of the Commonwealth, or
(g) a person prescribed by the regulations as an associate of the solicitor.
(3) For the purposes of subsection (2) (e), a person bears a prescribed relationship to a solicitor or other person if the relationship is that of:
(a) a spouse, or
(b) a de facto partner, or
(c) a child, grandchild, sibling, parent or grandparent, whether derived through paragraph (a) or (b) or otherwise, or
(d) a kind prescribed by the regulations for the purposes of this section.
"De facto partner" is defined in section 21C of the Interpretation Act 1987.
478 State regulated mortgage--meaning
For the purposes of this Part, a regulated mortgage is a State regulated mortgage, in relation to a solicitor, if:

(a) the solicitor's practice is a State regulated mortgage practice, and
(b) the regulated mortgage does not form part of a managed investment scheme or, if it does form part of a managed investment scheme, the managed investment scheme is not required to be operated by a responsible entity under the Corporations Act 2001 of the Commonwealth (as modified by any ASIC exemption or the regulations under the Corporations Act 2001 of the Commonwealth).
Division 2 – Mortgage practices
479 Conduct of mortgage practices
(1) A solicitor must not, in the solicitor's capacity as solicitor for a lender or contributor, negotiate the making of or act in respect of a regulated mortgage unless:
(a) the mortgage is a State regulated mortgage, or
(b) the mortgage is a run-out mortgage, or
(c) the mortgage forms part of a managed investment scheme that is operated by a responsible entity.
(2) A solicitor must not, in the solicitor's capacity as solicitor for a lender or contributor, negotiate the making of or act in respect of a regulated mortgage except in accordance with:
(a) the Corporations Act 2001 of the Commonwealth, or that Act as modified by any ASIC exemption or the regulations under that Act, and
(b) this Act, the regulations and the legal profession rules.
(3) A solicitor must not, in the solicitor's capacity as solicitor for a lender or contributor, negotiate the making of or act in respect of a regulated mortgage that forms part of a managed investment scheme unless the solicitor complies with any ASIC exemption that applies to managed investment schemes that:
(a) have more than 20 members, and
(b) are operated under the supervision of the Law Society in accordance with that exemption.
This subsection applies even if the regulated mortgage forms part of a managed investment scheme that has no more than 20 members.
(4) Subsection (3) does not apply if the managed investment scheme is operated by a responsible entity.
(5) A solicitor who knows that an associate has contravened a requirement referred to in subsection (1), (2) or (3) must notify the Law Society Council of that fact in writing within 21 days after becoming aware of the contravention.
(6) A contravention of this section is capable of being professional misconduct.
480 Nomination of practice as State regulated mortgage practice
(1) A solicitor who, in the solicitor's capacity as solicitor for a lender or contributor, negotiates the making of or acts in respect of a regulated mortgage, or who proposes to do so, may, by notice in writing given to the Law Society Council, nominate the solicitor's practice as a State regulated mortgage practice.
(2) A nomination may, with the approval of the Law Society Council, be made for a solicitor by another solicitor (for example, by a solicitor on behalf of members of a firm of solicitors).
(3) A nomination of a solicitor's practice as a State regulated mortgage practice takes effect on the date the notice of the nomination is given to the Law Society Council.
(4) A nomination ceases to be in force, in respect of a solicitor, if:
(a) the solicitor revokes the nomination by notice in writing given to the Law Society Council, or
(b) the solicitor ceases to be an Australian legal practitioner, or
(c) the Law Society Council, by notice in writing served on the solicitor, rejects the nomination of the solicitor's practice.
(5) A nomination under this section is to include such information as may be required by the regulations or the legal profession rules.
481 Requirement to notify Law Society of State regulated mortgages
(1) A solicitor who, in the solicitor's capacity as solicitor for a lender or contributor, negotiates the making of or acts in respect of a State regulated mortgage must give the Law Society Council notice in writing of that fact in accordance with the regulations or legal profession rules. Maximum penalty: 50 penalty units.
(2) A contravention of this section is capable of being professional misconduct.
482 Solicitor to have fidelity cover in respect of regulated mortgages
(1) A solicitor who, in the solicitor's capacity as solicitor for a lender or contributor, negotiates the making of or acts in respect of a regulated mortgage must ensure that an approved policy of fidelity insurance is in force in respect of the solicitor for the purpose of compensating persons who suffer pecuniary loss because of any dishonest failure to pay money payable under the mortgage.
(2) A policy of fidelity insurance is an approved policy of fidelity insurance if:
(a) the Law Society Council is of the opinion that the terms of the policy comply with agreed national standards for fidelity insurance for solicitors, and
(b) the policy is not to expire before the expiration of the local practising certificate or interstate practising certificate of the solicitor to whom the policy relates, and
(c) the insurer and the terms of the policy have been approved by the Attorney General by order in writing given to the Law Society, and
(d) any conditions imposed by the order are complied with.
(3) A solicitor who, in the solicitor's capacity as solicitor for a lender or contributor, negotiates the making of or acts in respect of a regulated mortgage without ensuring that an approved policy of fidelity insurance is in force in respect of the solicitor in accordance with this section is guilty of an offence. Maximum penalty: 50 penalty units.
(4) A contravention of this section is capable of being professional misconduct.
(5) A contravention of this section does not limit the operation of section 483 (Bar on claims against Fidelity Fund relating to regulated mortgages).
(6) This section does not apply in respect of any regulated mortgage that forms part of a managed investment scheme that is operated by a responsible entity.
483 Bar on claims against Fidelity Fund relating to regulated mortgages
A person who is a lender or contributor under a regulated mortgage is not entitled to make a claim against the Fidelity Fund for the purpose of obtaining compensation for a pecuniary loss if the claim relates to a regulated mortgage in respect of which a solicitor is required to have fidelity insurance under section 482 (Solicitor to have fidelity cover in respect of regulated mortgages).

484 Notification of insurance arrangements for regulated mortgage
(1) If a client entrusts money to a solicitor and the money, or part of the money, is proposed to be advanced to a borrower for a regulated mortgage, the solicitor must, within 7 days after the money is entrusted to the solicitor, give the client a notice in writing that:
(a) advises the client of the effect of section 483 (Bar on claims against Fidelity Fund relating to regulated mortgages), and
(b) includes details of the policy of fidelity insurance referred to in section 482 (1) (Solicitor to have fidelity cover in respect of regulated mortgages).
(2) The solicitor must not advance any of the money to a borrower for a regulated mortgage unless:
(a) the client has been given the notice referred to in subsection (1), and
(b) after having been given that notice, the client has given the solicitor a specific authority in writing to advance the money for that mortgage.
(3) A contravention of this section is capable of being professional misconduct.
(4) A contravention of this section does not limit the operation of section 483 (Bar on claims against Fidelity Fund relating to regulated mortgages).
(5) This section does not apply in respect of a regulated mortgage that forms part of a managed investment scheme that is operated by a responsible entity.
485 Failure to obtain fidelity insurance for regulated mortgage
(1) The Law Society Council must not grant a practising certificate to an Australian lawyer who is or will be required to comply with section 482 (Solicitor to have fidelity cover in respect of regulated mortgages) unless it is satisfied that:
(a) there is, or will be, in force with respect to the Australian lawyer an approved policy of fidelity insurance within the meaning of section 482, and
(b) the policy is, or will be, in force with respect to the Australian lawyer during the currency of the lawyer's practising certificate.
(2) The Law Society Council must suspend the local practising certificate of a solicitor who is required to comply with section 482 if it is not satisfied that:
(a) there is in force with respect to the solicitor an approved policy of fidelity insurance within the meaning of section 482, and
(b) the policy is in force with respect to the solicitor during the currency of the solicitor's practising certificate.
(3) If an interstate legal practitioner is required to comply with section 482 and the Law Society Council is not satisfied that there is in force with respect to the practitioner an approved policy of fidelity insurance within the meaning of section 482, the Council must suspend that practitioner's entitlement under Part 2.4 to practise in this State while the failure continues and request the corresponding authority in the jurisdiction in which the practitioner has his or her sole or principal place of legal practice to suspend the solicitor's interstate practising certificate until the Law Society Council notifies the corresponding authority that the practitioner is complying with section 482.
Division 3 – Managed investment schemes
486 Involvement of solicitors in managed investment schemes
(1) This Part does not prevent a solicitor from carrying out any legal services in connection with a managed investment scheme that is operated by a responsible entity, or from having an interest in such a managed investment scheme or in the responsible entity for such a managed investment scheme.
(2) However, if a client entrusts, or proposes to entrust, money to a solicitor to be invested in a managed investment scheme that is operated by a responsible entity, and the solicitor has a prescribed interest in the managed investment scheme, the solicitor must give the client a notice in writing that advises the client that:
(a) the solicitor has an interest in the managed investment scheme, and
(b) the operation of the managed investment scheme does not form part of the solicitor's practice, and
(c) there is no claim against the Fidelity Fund for a pecuniary loss arising from an investment in the managed investment scheme.
(3) The notice is to include such other matters as may be required by the regulations or the legal profession rules.
(4) The solicitor must not advance the money entrusted to the solicitor to the responsible entity for the managed investment scheme or to any other person unless the client has been given the notice.
(5) A solicitor who knows that an associate has contravened a requirement referred to in this section must notify the Law Society Council in writing of that fact within 21 days after becoming aware of the contravention.
(6) A contravention of this section is capable of being professional misconduct.
(7) A contravention of this section does not limit the operation of section 487 (Claims against Fidelity Fund relating to managed investment schemes connected with solicitors).
(8) For the purposes of this section, a solicitor has a prescribed interest in a managed investment scheme if:
(a) the solicitor, or an associate of the solicitor, is a director of or concerned in the management of the responsible entity for the managed investment scheme, or
(b) the solicitor, or an associate of the solicitor, is a shareholder in the responsible entity for the managed investment scheme, or
(c) the solicitor, or an associate of the solicitor, is taken to be an agent of the responsible entity under Chapter 5C of the Corporations Act 2001 of the Commonwealth, or
(d) the solicitor, or an associate of the solicitor, receives any pecuniary benefit from the managed investment scheme or the responsible entity for the managed investment scheme if a client of the solicitor invests in the managed investment scheme, or
(e) the solicitor, or an associate of the solicitor, has an interest of a kind prescribed by the regulations or solicitors rules in the managed investment scheme or the responsible entity for the managed investment scheme.
487 Claims against Fidelity Fund relating to managed investment schemes connected with solicitors
A person who entrusts money to a solicitor to be invested in a managed investment scheme that is operated by a responsible entity is not entitled to make a claim against the Fidelity Fund for the purpose of obtaining compensation for any pecuniary loss arising from that investment.

488 Transfer of mortgages to responsible entity
(1) A solicitor who, in the solicitor's capacity as solicitor for a lender or contributor, is responsible for the administration of a regulated mortgage must not transfer that mortgage to a responsible entity for a managed investment scheme unless the lender or contributor has given the solicitor authority in writing to transfer the regulated mortgage to the responsible entity.
(2) A contravention of this section is capable of being professional misconduct.
(3) For the purposes of this section, a solicitor transfers a regulated mortgage to a responsible entity when the solicitor does anything that results in:
(a) a responsible entity for a managed investment scheme becoming the holder or custodian of the regulated mortgage, or
(b) any advances of money made in respect of the mortgage, or the property that is charged or encumbered by the mortgage, becoming scheme property (within the meaning of the Corporations Act 2001 of the Commonwealth) of a managed investment scheme.

489 Regulations and rules relating to managed investment schemes
Without limiting section 493 (Regulations and rules relating to Part), the regulations and legal profession rules may include provisions for the purpose of:

(a) ensuring that the operation of a managed investment scheme by a responsible entity is kept separate from a solicitor's practice, and
(b) ensuring that clients of a solicitor are aware that the operation of such a managed investment scheme does not form part of the solicitor's practice.
Division 4 – Transitional arrangements--pre-existing mortgages
490 Part extends to pre-existing mortgages
Schedule 8 contains provisions of a savings and transitional nature in connection with the operation of this Part.

Division 5 – Miscellaneous
491 Law Society may require information about mortgage practices
(1) The Law Society Council may, by notice in writing, require a solicitor to provide information to the Law Society Council about any of the following:
(a) whether the solicitor, an associate of the solicitor or a person engaged by the solicitor negotiates the making of or acts in respect of regulated mortgages or has done so in the past,
(b) details of regulated mortgages that continue to have effect,
(c) whether the solicitor proposes:
(i) to nominate the solicitor's practice as a State regulated mortgage practice, or
(ii) to transfer responsibility for any regulated mortgage, or
(iii) to take no further action in respect of any regulated mortgage,
(d) such other information, relating to regulated mortgages, as the regulations or the legal profession rules may require to be provided.
(2) A contravention of this section is capable of being professional misconduct.
492 Indemnity insurance
Nothing in this Part affects the terms of any policy of indemnity insurance approved under section 406 (Solicitor to be insured and to make contributions).

493 Regulations and rules relating to Part
(1) The regulations and, subject to the regulations, the legal profession rules may make provision for or with respect to:
(a) regulated mortgages, including run-out mortgages, and
(b) the involvement of solicitors in managed investment schemes.
(2) In particular, the regulations and the legal profession rules may make provision for or with respect to the following:
(a) the negotiation of the making of or acting in respect of regulated mortgages by solicitors,
(b) the manner in which the Law Society Council is to be given any notice or other information under this Part,
(c) the form of notices and authorities for the purposes of this Part,
(d) the manner in which notices are to be given in accordance with this Part.
(3) If the regulations or the legal profession rules prescribe a form of notice or authority for the purposes of this Part, the notice or authority is to be given in the prescribed form.
Chapter 4 – Complaints and discipline

Part 4.1 – Preliminary and application

Division 1 – Preliminary
494 Purposes and objects
(1) The purposes of this Chapter are as follows:
(a) to provide a nationally consistent scheme for the discipline of the legal profession in this jurisdiction, in the interests of the administration of justice and for the protection of clients of law practices and the public generally,
(b) to promote and enforce the professional standards, competence and honesty of the legal profession,
(c) to provide a means of redress for complaints about lawyers,
(d) to enable lay persons to participate in complaints and disciplinary processes involving lawyers to ensure that community interests and perspectives are recognised, Sections 695 and 698 provide for lay representation on committees of the Bar Association, Bar Council, Law Society and Law Society Council.
(e) to give complainants, lawyers and other participants in the system immunity from civil liability for communications made by them in good faith in connection with the complaints and disciplinary system.
(2) The objects of this Chapter relating to lay persons and the clients of law practices are as follows:
(a) to give every person the right to complain about the conduct of lawyers,
(b) to ensure that information is readily available to lay persons about the means of redress that are available under the scheme,
(c) to give clients of law practices access to sufficient advice and assistance in order to make complaints in accordance with their rights and responsibilities under this Chapter,
(d) to promote transparency and openness for lay persons at all levels of the operation of the scheme, subject to the need to preserve confidentiality in appropriate circumstances,
(e) to provide an opportunity for mediation of consumer disputes relating to legal services,
(f) to provide complainants with a reasonable opportunity to comment on statements of the lawyer against whom the complaint is made before the complaint is disposed of,
(g) to ensure that complainants receive adequate notice of the commencement and status of the disciplinary process at relevant stages of the process (including notice of the dismissal of complaints and the reasons for the dismissal),
(h) to give complainants the right to seek an independent review of decisions of Councils to dismiss complaints or reprimand Australian legal practitioners.
(3) The objects of this Chapter relating to the providers of legal services are as follows:
(a) to ensure that information is readily available to lawyers about the means of redress that are available under the scheme,
(b) to ensure that the rules of natural justice (being rules for procedural fairness) are applied to any disciplinary proceedings taken against lawyers,
(c) to ensure that lawyers are aware of the standards of honesty, competence and diligence expected of them.
(4) The Commissioner is to keep under review the provisions and operation of this Chapter for the purpose of:
(a) ascertaining whether the scheme established by this Chapter meets the purposes and objects of this Chapter, and
(b) identifying modifications that may ensure that those purposes and objects are better met,
but this subsection does not affect the making or carrying out of other arrangements for reviewing the provisions or operation of the provisions of this Act or of this Act generally.
495 Definitions
In this Chapter:

"compensation order" means an order under Part 4.9 (Compensation).

"complaint" means a complaint under this Chapter.

"conduct" means conduct whether consisting of an act or omission.

"disciplinary application" means an application made to the Tribunal under section 551 (Commencement of proceedings) with respect to a complaint against an Australian legal practitioner.

"investigation" means an investigation under this Chapter by the Commissioner or a Council into a complaint, and includes an independent investigation under section 532 (Independent investigation of certain complaints).

"loss" means loss of a pecuniary nature, but does not include non-economic loss within the meaning of the Civil Liability Act 2002.

"official complaint" means a complaint made by the Commissioner or a Council.

"relevant Council" means:

(a) in relation to a complaint concerning a person who was a barrister when the conduct the subject of the complaint allegedly occurred--the Bar Council, or
(b) in relation to a complaint concerning a person who was a solicitor when the conduct the subject of the complaint allegedly occurred--the Law Society Council, or
(c) in relation to a complaint concerning a person who was neither a barrister nor a solicitor when the conduct the subject of the complaint allegedly occurred--the Bar Council or the Law Society Council, whichever the Commissioner nominates for the purposes of the complaint.
496 Unsatisfactory professional conduct
For the purposes of this Act:

"unsatisfactory professional conduct" includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.

497 Professional misconduct
(1) For the purposes of this Act:"professional misconduct" includes:
(a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, and
(b) conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
(2) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the matters that would be considered under section 25 or 42 if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate and any other relevant matters.
498 Conduct capable of being unsatisfactory professional conduct or professional misconduct
(1) Without limiting section 496 or 497, the following conduct is capable of being unsatisfactory professional conduct or professional misconduct:
(a) conduct consisting of a contravention of this Act, the regulations or the legal profession rules,
(b) charging of excessive legal costs in connection with the practice of law,
(c) conduct in respect of which there is a conviction for:
(i) a serious offence, or
(ii) a tax offence, or
(iii) an offence involving dishonesty,
(d) conduct of an Australian legal practitioner as or in becoming an insolvent under administration,
(e) conduct of an Australian legal practitioner in becoming disqualified from managing or being involved in the management of any corporation under the Corporations Act 2001 of the Commonwealth,
(f) conduct consisting of a failure to comply with the requirements of a notice under this Act or the regulations (other than an information notice),
(g) conduct of an Australian legal practitioner in failing to comply with an order of the Disciplinary Tribunal made under this Act or an order of a corresponding disciplinary body made under a corresponding law (including but not limited to a failure to pay wholly or partly a fine imposed under this Act or a corresponding law),
(h) conduct of an Australian legal practitioner in failing to comply with a compensation order made under this Act or a corresponding law.
(2) Conduct of a person consisting of a contravention referred to in subsection (1) (a) is capable of being unsatisfactory professional conduct or professional misconduct whether or not the person is convicted of an offence in relation to the contravention.
Division 2 – Application
499 Practitioners to whom this Chapter applies
(1) This Chapter applies to an Australian legal practitioner in respect of conduct to which this Chapter applies, and so applies:
(a) whether or not the practitioner is a local lawyer, and
(b) whether or not the practitioner holds a local practising certificate, and
(c) whether or not the practitioner holds an interstate practising certificate, and
(d) whether or not the practitioner resides or has an office in this jurisdiction, and
(e) whether or not the person making a complaint about the conduct resides, works or has an office in this jurisdiction.
(2) However, this Chapter does not apply to a person while the person holds office as:
(a) a judicial officer within the meaning of the Judicial Officers Act 1986, or
(b) a Justice of the High Court, or
(c) a judge of a court created by the Parliament of the Commonwealth, or
(d) a judge of a court, or a judicial member of a tribunal, of another State or a Territory,
regardless of whether the unsatisfactory professional conduct or professional misconduct the subject of a complaint allegedly occurred before or after the person's appointment to the office concerned.
(3) A provision of this or any other Act that protects a person from any action, liability, claim or demand in connection with any act or omission of the person does not affect the application of this Chapter to the person in respect of the act or omission.
(4) For the purposes of this Chapter, conduct of an Australian legal practitioner in the exercise of official functions as an arbitrator or costs assessor constitutes conduct occurring in connection with the practice of law. However, conduct concerned with the justiciable aspects of decision making by an arbitrator or costs assessor does not constitute conduct occurring in connection with the practice of law for the purposes of this Chapter.
(5) For the purposes of this Chapter, conduct of an Australian legal practitioner does not constitute conduct occurring in connection with the practice of law to the extent that it is conduct engaged in in the exercise of executive or administrative functions under an Act or statutory rule as:
(a) any officer or employee in the service of the Crown (including the Public Service), or
(b) a person appointed to an office by the Governor, or
(c) any member, officer or employee of a Council, the Bar Association or the Law Society.
500 Application of Chapter to lawyers, former lawyers and former practitioners
(1) This Chapter applies to Australian lawyers and former Australian lawyers in relation to conduct occurring while they were Australian lawyers, but not Australian legal practitioners, in the same way as it applies to Australian legal practitioners and former Australian legal practitioners, and so applies with any necessary modifications.
(2) This Chapter applies to former Australian legal practitioners in relation to conduct occurring while they were Australian legal practitioners in the same way as it applies to persons who are Australian legal practitioners, and so applies with any necessary modifications.
This Chapter also applies to Australian-registered foreign lawyers. See section 190 (Application of Australian professional ethical and practice standards).

501 Conduct to which this Chapter applies--generally
(1) Subject to subsection (3), this Chapter applies to conduct of an Australian legal practitioner occurring in this jurisdiction.
(2) This Chapter also applies to an Australian legal practitioner's conduct occurring outside this jurisdiction, but only:
(a) if it is part of a course of conduct that has occurred partly in this jurisdiction and partly in another jurisdiction, and either:
(i) the Commissioner and the corresponding authority of each other jurisdiction in which the conduct has occurred consent to its being dealt with under this Act, or
(ii) the complainant and the practitioner consent to its being dealt with under this Act, or
(b) if it occurs in Australia but wholly outside this jurisdiction and the practitioner is a local lawyer or a local legal practitioner, and either:
(i) the Commissioner and the corresponding authority of each jurisdiction in which the conduct has occurred consent to its being dealt with under this Act, or
(ii) the complainant and the practitioner consent to its being dealt with under this Act, or
(c) if:
(i) it occurs wholly or partly outside Australia, and
(ii) the practitioner is a local lawyer or a local legal practitioner.
If consent is not given, the matter will be dealt with in each jurisdiction under subsection (1) or its equivalent.
(3) This Chapter does not apply to conduct occurring in this jurisdiction if:
(a) the Commissioner consents to its being dealt with under a corresponding law, or
(b) the complainant and the Australian legal practitioner consent to its being dealt with under a corresponding law.
(4) Subsection (3) does not apply if the conduct is not capable of being dealt with under the corresponding law.
(5) The Commissioner may give consent for the purposes of subsection (3) (a), and may do so conditionally or unconditionally.
(6) This Chapter extends to conduct as a public notary.
502 Conduct to which this Chapter applies--insolvency, serious offences and tax offences
(1) This Chapter applies to the following conduct of a local legal practitioner whether occurring in Australia or elsewhere:
(a) conduct of the practitioner in respect of which there is a conviction for:
(i) a serious offence, or
(ii) a tax offence, or
(iii) an offence involving dishonesty,
(b) conduct of the practitioner as or in becoming an insolvent under administration,
(c) conduct of the practitioner in becoming disqualified from managing or being involved in the management of any corporation under the Corporations Act 2001 of the Commonwealth.
(2) This section has effect despite anything in section 501 (Conduct to which this Chapter applies--generally).
Part 4.2 – Complaints about Australian legal practitioners

503 Complaints
(1) A complaint may be made under this Part about an Australian legal practitioner's conduct.
(2) A complaint may be made under this Part about the conduct of an Australian legal practitioner occurring outside this jurisdiction, but the complaint must not be dealt with under this Part unless this Part is or becomes applicable to it.
(3) A complaint that is duly made is to be dealt with in accordance with this Part.
504 Making of complaints
(1) A complaint about an Australian legal practitioner may be made by:
(a) a client of the practitioner, or
(b) a Council, or
(c) the Commissioner, or
(d) any other person.
(2) A complaint must be in writing.
(3) A complaint must:
(a) identify the complainant, and
(b) identify the Australian legal practitioner about whom the complaint is made or, if it is not possible to do so, identify the law practice concerned, and
(c) describe the alleged conduct the subject of the complaint.
(4) This section does not affect any other right of a person to complain about the conduct of an Australian legal practitioner.
(5) The Commissioner, or the Council to which a complaint is referred, is to ensure that the complainant is notified in writing of receipt of a complaint (other than an official complaint).
505 To whom complaint made
(1) A complaint is to be made to the Commissioner, unless it is made by the Commissioner or by a Council.
(2) A complaint that is made to a Council instead of the Commissioner is to be forwarded as soon as practicable to the Commissioner by the Council, and is taken to have been made to the Commissioner when received by the Council.
(3) A copy of a complaint made by a Council is to be forwarded as soon as possible to the Commissioner by the Council.
506 Complaints made over 3 years after conduct concerned
(1) A complaint may be made about conduct of an Australian legal practitioner irrespective of when the conduct is alleged to have occurred.
(2) However, a complaint cannot be dealt with (otherwise than to dismiss it or refer it to mediation) if the complaint is made more than 3 years after the conduct is alleged to have occurred, unless a determination is made under this section that:
(a) it is just and fair to deal with the complaint having regard to the delay and the reasons for the delay, or
(b) the complaint involves an allegation of professional misconduct and it is in the public interest to deal with the complaint.
(3) A determination under this section:
(a) in the case of a complaint made to or by the Commissioner--is to be made by the Commissioner, or
(b) in the case of a complaint made by a Council--is to be made by the Council.
(4) A determination made under this section is final and cannot be challenged in any proceedings by the complainant or the Australian legal practitioner concerned.
507 Further information and verification
The Commissioner, or the Council to which a complaint is referred for investigation, may require the complainant to do either or both of the following:

(a) to give further information about the complaint,
(b) to verify the complaint, or any further information, by statutory declaration.
508 Practitioner to be notified of complaint
(1) The Commissioner, or the Council by which a complaint is made or to which a complaint is referred for investigation, is to ensure that as soon as practicable after the complaint is made the Australian legal practitioner about whom the complaint is made is given:
(a) a copy of the complaint, and
(b) a notice in writing informing the practitioner of the practitioner's right to make submissions to the Commissioner or Council and specifying the period within which submissions must be made, unless the Commissioner or Council advises the practitioner that the Commissioner or Council has dismissed or intends to dismiss the complaint.
(2) Subsection (1) does not apply if the complaint is dismissed under section 511 (Summary dismissal of complaints).
(3) Subsection (1) does not apply if the Commissioner, after such consultation with the relevant Council as the Commissioner thinks appropriate in the circumstances, is of the opinion that the giving of the notice will or is likely to:
(a) prejudice the investigation of the complaint, or
(b) prejudice an investigation by the police or other investigatory or law enforcement body of any matter with which the complaint is concerned, or
(c) place the complainant or another person at risk of intimidation or harassment, or
(d) prejudice pending court proceedings.
(4) In a case in which subsection (3) applies, the Commissioner, or the Council by which a complaint is made or to which a complaint is referred for investigation:
(a) may postpone giving the practitioner a copy of the complaint and notice about making submissions, until of the opinion that it is appropriate to do so, or
(b) may at their discretion:
(i) notify the practitioner of the general nature of the complaint, and
(ii) inform the practitioner of the practitioner's right to make submissions to the Commissioner or Council, specifying the period within which submissions must be made, if of the opinion that the practitioner has sufficient information to make submissions.
(5) Nothing in this section requires the Commissioner or a Council to give written notice under this section to the practitioner until the Commissioner or Council has had time to consider the complaint, seek further information about the complaint from the complainant or otherwise undertake preliminary inquiries into the complaint, and properly prepare the notice.
509 Submissions by practitioner
(1) The Australian legal practitioner about whom a complaint is made may, within a period specified by the Commissioner, or by the Council by which a complaint is made or to which a complaint is referred for investigation, make submissions to the Commissioner or Council about the complaint or its subject-matter or both.
(2) The Commissioner or Council may at their discretion extend the period in which submissions may be made.
(3) The Commissioner or Council must consider the submissions made within the permitted period before deciding what action is to be taken in relation to the complaint.
510 Preliminary assessment
(1) When the Commissioner, or the Council to which a complaint is referred for investigation, is deciding whether or not to dismiss a complaint under section 511 (Summary dismissal of complaints), they may conduct a preliminary assessment of the complaint for the purpose of assessing the substance of the complaint.
(2) The Commissioner or Council may, in writing, appoint a suitably qualified person as an investigator to conduct the preliminary assessment of the complaint as agent of the Commissioner or Council. 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.
(3) The investigator is not bound by rules of evidence and may inform himself or herself on any matter in such manner as he or she thinks fit.
(4) Chapter 6 (Provisions relating to investigations), except Part 6.3 (Entry and search of premises), applies to a preliminary assessment under this section as if the assessment were a complaint investigation and the investigator conducting the assessment were an investigator conducting a complaint investigation.
(5) The investigator may terminate the preliminary assessment at any time and may make any recommendations the investigator considers appropriate.
(6) Any evidence or information obtained by the Commissioner or Council, or by the investigator, in the course of conducting the preliminary assessment may be used by the Commissioner or Council, or by an investigator appointed by them, in or in relation to any later investigation or consideration of the complaint.
511 Summary dismissal of complaints
(1) The Commissioner, or the Council by which a complaint is made or to which a complaint is referred for investigation, may dismiss a complaint if:
(a) further information is not given, or the complaint or further information is not verified, as required by the Commissioner or Council under section 507 (Further information and verification), or
(b) the complaint is vexatious, misconceived, frivolous or lacking in substance, or
(c) the complaint was made more than 3 years after the conduct complained of is alleged to have occurred, unless a determination is made under section 506 (Complaints made over 3 years after conduct concerned) in relation to the complaint, or
(d) the conduct complained about has been the subject of a previous complaint that has been dismissed, or
(e) the conduct complained about is the subject of another complaint, or
(f) it is not in the public interest to deal with the complaint having regard to the fact that the name of the Australian legal practitioner to whom the complaint relates has already been removed from any Australian roll in which he or she was enrolled, or
(g) the Commissioner or Council is satisfied that it is otherwise in the public interest to dismiss the complaint, or
(h) the complaint is not one that the Commissioner or Council has power to deal with.
(2) A complaint may be dismissed under this section without any investigation or without completing an investigation.
512 Withdrawal of complaints
(1) A complaint may, subject to this section, be withdrawn by the person who made it unless proceedings with respect to the complaint have been commenced in the Tribunal.
(2) If the complaint was made to the Commissioner, the withdrawal of the complaint is not effective unless notice in writing of the withdrawal is given by the complainant to the Commissioner or to the Council to which the complaint has been referred for investigation.
(3) The Commissioner or the Council to which the complaint has been referred may reject the withdrawal of the complaint if satisfied that the conduct may involve unsatisfactory professional conduct or professional misconduct.
(4) If a complaint is duly withdrawn, no further action is to be taken under this Chapter with respect to the complaint.
(5) The withdrawal of a complaint does not prevent:
(a) a further complaint being made under this Part, by the same or any other person, with respect to the matter the subject of the withdrawn complaint, or
(b) action being taken on any other complaint made with respect to that matter.
(6) This section extends to the withdrawal of a complaint so far as it relates to some only or part only of the matters that form the subject of the complaint.
513 Referral of complaints to Council
(1) The Commissioner may refer a complaint made to or by the Commissioner to the relevant Council if the complaint is not to be investigated by the Commissioner under Part 4.4 (Investigation of complaints).
(2) When referring a complaint to a Council, the Commissioner may recommend that the Council investigate the complaint or refer it to mediation, or both.
(3) A decision to refer a complaint to a Council is to be made, as far as practicable, within 21 days after the complaint is made or, if further information or verification is required, within 21 days after the further information or verification is given or provided. A Council is not excused from dealing with a complaint because it is referred to the Council after the time prescribed by this subsection.
(4) The Commissioner may refer a complaint to a Council even though the Commissioner commenced but did not complete an investigation into the complaint.
(5) This section does not apply to a complaint that is dismissed by the Commissioner under this Part.
Part 4.3 – Mediation

514 Definition
In this Part:

"consumer dispute" is a dispute between a person and an Australian legal practitioner about conduct of the practitioner to the extent that the dispute does not involve an issue of unsatisfactory professional conduct or professional misconduct.

515 Mediation of complaint involving consumer dispute solely
(1) This section applies to a complaint that involves a consumer dispute but does not involve an issue of unsatisfactory professional conduct or professional misconduct.
(2) If the Commissioner, or the Council by which a complaint is made or to which a complaint is referred for investigation, considers that the whole or a part of the matter that is the subject of the complaint is capable of resolution by mediation, the Commissioner or Council may suggest to the complainant and the Australian legal practitioner to whom the complaint relates that they enter into a process of mediation.
(3) If the complainant and the practitioner agree to enter into a process of mediation in connection with the complaint:
(a) the Commissioner or Council may refer the complaint to mediation, and
(b) no further action is required on the complaint to the extent that it is referred to mediation, except as provided by section 518 (Facilitation of mediation).
The complaint may be withdrawn under section 512 (Withdrawal of complaints) if the matter is resolved by mediation.

516 Mediation of hybrid complaint
(1) This section applies to a complaint that involves both a consumer dispute and an issue of unsatisfactory professional conduct or professional misconduct.
(2) If the Commissioner, or the Council by which a complaint is made or to which a complaint is referred for investigation, considers that the whole or a part of the consumer dispute is capable of resolution by mediation, the Commissioner or Council may suggest to the complainant and the Australian legal practitioner to whom the complaint relates that they enter into a process of mediation.
(3) If the complainant and the practitioner agree to enter into a process of mediation in connection with the consumer dispute:
(a) the Commissioner or Council may refer the complaint to mediation, and
(b) so far as it involves an issue of unsatisfactory professional conduct or professional misconduct, the complaint is to continue to be dealt with under this Chapter, and
(c) no further action is required on the consumer dispute to the extent that it is referred to mediation, except as provided by section 518 (Facilitation of mediation) and except so far as the consumer dispute is relevant to determination of the complaint.
The complaint may be withdrawn under section 512 (Withdrawal of complaints) if the matter is resolved by mediation.

517 Compulsory mediation of consumer dispute
(1) Despite any other provision of this Part, the Commissioner may, by notice in writing, require the complainant and the Australian legal practitioner concerned to enter into a process of mediation under this Part in connection with a consumer dispute that comprises or is involved in a complaint.
(2) After the notice is given:
(a) the Commissioner may refer the complaint to mediation, and
(b) if and so far as it involves an issue of unsatisfactory professional conduct or professional misconduct, the complaint is to continue to be dealt with under this Chapter after or during the mediation or attempt at mediation, and
(c) no further action is required on the consumer dispute to the extent that it is referred to mediation, except as provided by section 518 (Facilitation of mediation) and except so far as the consumer dispute is relevant to determination of the complaint.
The complaint may be withdrawn under section 512 (Withdrawal of complaints) if the matter is resolved by mediation.
(3) Failure on the part of the practitioner to comply with the terms of a notice under this section is capable of being unsatisfactory professional conduct or professional misconduct.
518 Facilitation of mediation
If the complainant and the Australian legal practitioner concerned agree or are required to enter into a process of mediation under this Part in connection with a complaint, the Commissioner or Council, as the case may require, may facilitate the mediation to the extent they consider appropriate.

519 Nature of mediation
Mediation of a consumer dispute is not limited to formal mediation procedures and extends to encompass preliminary assistance in dispute resolution, such as the giving of informal advice designed to ensure that the parties are fully aware of their rights and obligations and that there is full and open communication between the parties concerning the dispute.

520 Mediators
(1) The Commissioner is to maintain a list of mediators who are available to attempt a mediation of a consumer dispute.
(2) The Commissioner is to consult the Councils and may consult any other relevant body about the selection and training of mediators.
521 Certificate of failure of mediation
(1) If a mediation is not successful, the mediator is to provide the complainant and the Australian legal practitioner concerned with a certificate certifying that the mediation has been attempted but was not successful.
(2) The certificate is evidence of the matters certified and is admissible in any proceedings where consideration of those matters or any of them are or may be relevant.
522 Confidentiality of mediation process
(1) The following are not admissible in any proceedings in a court or the Tribunal or before a person or body authorised to hear and receive evidence:
(a) evidence of anything said or admitted during a mediation or attempted mediation under this Part of the whole or a part of the matter that is the subject of a complaint, and
(b) a document prepared for the purposes of the mediation or attempted mediation.
(2) Subsection (1) does not apply to an agreement reached during mediation.
523 Recommendation for investigation
A mediator may recommend to the Commissioner or a Council that a complaint should be investigated, without disclosing any evidence, admission or document referred to in section 522 (Confidentiality of mediation process).

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Чернов Сергей Витальевич