Legal Profession Act 1993

Legal Profession Act 1993

An Act to make provisions with respect to the practice of law

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART 1 - Preliminary

1.   Short title

This Act may be cited as the Legal Profession Act 1993 .

2.   Commencement

This Act commences on a day to be proclaimed.

3.   Interpretation

[Section 3 Amended by No. 62 of 1996, s. 3 and Sched. 1 ]In this Act, unless the contrary intention appears –[Section 3 Amended by No. 26 of 1999, s. 4, Applied:12 Jul 1999]

approved means approved by the Board;

articled clerk means a person who has entered into articles of clerkship under Part 6 ;

barrister means –

(a) a person who is admitted as a barrister under section 28 ; or

(b) a legal practitioner who elects to practise solely as a barrister under the Rules of Practice;

Board means the Board of Legal Education continued under section 18 ;

by-laws means by-laws made under this Act;

[Section 3 Amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] company means a company as defined in the Corporations Act;

[Section 3 Amended by No. 2 of 2001, s. 4, Applied:01 Jun 2001] conditions includes limitations, restrictions and prohibitions;

[Section 3 Amended by No. 2 of 2001, s. 4, Applied:01 Jun 2001] corresponding law means a law declared under Part 7A to be a corresponding law;

costs include remuneration, charges, expenses and disbursements;

Council means the Council of the Society continued under section 7 ;

fiduciary default means –

(a) a defalcation, misappropriation or misapplication of money or other property held on trust by a legal firm or legal practitioner corporation; or

(b) [Section 3 Amended by No. 51 of 2001, s. 4, Applied:16 Jul 2001] the failure of a firm or legal practitioner corporation to account for that money or property held on trust by that firm or legal practitioner corporation; or

(c) [Section 3 Amended by No. 51 of 2001, s. 4, Applied:16 Jul 2001] a breach of any duty by a firm or legal practitioner corporation as trustee in relation to money or property held on trust by that firm or legal practitioner corporation;

firm means –

(a) [Section 3 Amended by No. 2 of 2001, s. 4, Applied:01 Jun 2001] a person practising as a legal practitioner on the person's own account otherwise than solely as a barrister; or

(b) an association of 2 or more persons practising as legal practitioners in partnership;

foreign law means the law of a jurisdiction other than Australia;

foreign law firm means an association consisting of 2 or more foreign lawyers practising foreign law in partnership;

foreign lawyer means a person qualified and admitted to practise law in a jurisdiction outside Australia;

Guarantee Fund means the Solicitors' Guarantee Fund continued under section 107 ;

[Section 3 Amended by No. 2 of 2001, s. 4, Applied:01 Jun 2001] interstate legal practitioner means a natural person –

(a) who is admitted to legal practice in a participating State; and

(b) who holds an interstate practising certificate in respect of that State; and

(c) whose principal place of legal practice is that State;

[Section 3 Amended by No. 2 of 2001, s. 4, Applied:01 Jun 2001] interstate practising certificate means a certificate or other authorisation issued and in force in a participating State that corresponds to a practising certificate;

Law Foundation of Tasmania means the company limited by guarantee incorporated under that name on 1 July 1980;

Legal Ombudsman means the person appointed as such under section 82 ;

[Section 3 Amended by No. 2 of 2001, s. 4, Applied:01 Jun 2001] legal practice means the practice of the law;

legal practitioner means –

(a) a person admitted and enrolled as a barrister and solicitor under this Act, the Legal Practitioners Act 1896 , the Legal Practitioners Act 1946 or the Legal Practitioners Act 1959 ; or

(ab) [Section 3 Amended by No. 2 of 2001, s. 4, Applied:01 Jun 2001] an interstate legal practitioner practising in this State; or

(b) a legal practitioner corporation that holds a practising certificate under Part 13 ;

legal practitioner corporation means a company which is formed for the purpose of practising the profession of the law;

[Section 3 Amended by No. 2 of 2001, s. 4, Applied:01 Jun 2001] legal services means services relating to legal practice;

[Section 3 Amended by No. 32 of 1995, Sched. 1, Applied:30 Mar 1998]

[Section 3 Amended by No. 2 of 2001, s. 4, Applied:01 Jun 2001] local legal practitioner means –

(a) a legal practitioner –

(i) who holds a practising certificate; and

(ii) whose sole or principal place of legal practice is in this State; and

(b) a person registered to carry on legal practice in this State under the Mutual Recognition Act 1992 of the Commonwealth;

[Section 3 Amended by No. 2 of 2001, s. 4, Applied:01 Jun 2001] participating State means a State in which a corresponding law is in force;

practise and practise as a legal practitioner includes to practise as a legal practitioner while employed by a firm or legal practitioner corporation;

practising certificate means a practising certificate issued and in force under Part 7 ;

Registrar means the Registrar of the Supreme Court;

regulations means regulations made under this Act;

[Section 3 Amended by No. 2 of 2001, s. 4, Applied:01 Jun 2001] regulatory authority means –

(a) the Supreme Court, Council or Tribunal; and

(b) a person or body in a participating State having a function under legislation relating to the regulation of legal practice that corresponds to that function as exercised by a body referred to in paragraph (a) ;

roll means any roll of legal practitioners or barristers kept by the Supreme Court;

Rules of Practice means the Rules of Practice made under section 17 ;

Society means The Law Society of Tasmania continued under section 4 ;

solicitor means a solicitor of the Supreme Court and includes an attorney and a proctor;

[Section 3 Amended by No. 2 of 2001, s. 4, Applied:01 Jun 2001] State includes –

(a) the Australian Capital Territory; and

(b) the Northern Territory;

[Section 3 Amended by No. 2 of 2001, s. 4, Applied:01 Jun 2001] State office means an office maintained in this State by an interstate legal practitioner or an employer or partner of that practitioner to provide legal services;

Tribunal means the Disciplinary Tribunal established under section 66 ;

Trust means The Solicitors' Trust continued under section 95 ;

trust deposit account means a deposit account established by the Trust under section 98 ;

trust financial institution account means an account established under section 101 .

PART 2 - The Law Society of Tasmania

4.   The Law Society

(1)  The Law Society of Tasmania established under the Law Society Act 1962 is continued as a body corporate with a common seal.

(2)  The Society –

(a) may acquire, hold, dispose of and otherwise deal with property; and

(b) may sue and be sued in its corporate name.

(3)  All courts and persons acting judicially must take judicial notice of the imprint of the common seal on a document and presume that it was duly sealed by the Society.

5.   Membership of Society

(1)  An individual legal practitioner who holds a practising certificate may become a member of the Society.

(2)  A barrister may become a member of the Society.

(3)  A barrister or a legal practitioner who is suspended or prohibited from practising as a barrister or a legal practitioner is not entitled to be a member of the Society and ceases to be a member during the period of the suspension or prohibition.

(4)  The Society may admit any person as an associate member of the Society on the terms and conditions prescribed by the by-laws.

(5)  The Society may expel a person as an associate member or member of the Society in accordance with the by-laws.

6.   Functions and powers of Society

(1)  The Society has the following functions:

(a) the regulation, promotion and representation of the legal profession;

(b) the promotion of law reform;

(c) any other functions which promote the objects of the Society.

(2)  The Society may do all things necessary or convenient to perform its functions.

PART 3 - The Council

7.   The Council

(1)  The Council of the Society established under the Law Society Act 1962 is continued.

(2)  The Council consists of 16 members elected under the by-laws.

(3)  The quorum at any meeting of the Council is 9 members.

(4)  All acts and proceedings of the Council or of any person acting pursuant to any direction of the Council are, notwithstanding the subsequent discovery of any defect in the election of any member or that any person was disqualified from acting as, or incapable of being, a member, as valid as if the member had been duly elected and was qualified to act as, or capable of being, a member and as if the Council had been fully constituted.

(5)  Any act or proceeding of the Council or of any person acting pursuant to any direction of the Council is not invalidated or prejudiced only because at the time when the act or proceeding was done, taken or commenced, there was a vacancy in the membership of the Council.

(6)  In any proceedings by or against the Council, unless evidence is given to the contrary, no proof is required of –

(a) the constitution of the Council; or

(b) any resolution of the Council; or

(c) the election of any member; or

(d) the presence of a quorum at any meeting of the Council.

8.   Powers of Council

The Council –

(a) has the sole management of the Society, its affairs, its funds, its income and property for the purposes and benefit of the Society; and

(b) may exercise the powers that are vested in the Society and do all acts and things that this Act directs or authorizes to be done by the Society, except those powers, acts and things that are expressly required to be exercised or done by the Society in ordinary general meeting or special general meeting.

9.   Executive committee

(1)  There is established an executive committee of the Council.

(2)  The executive committee consists of such members as may be prescribed under by-laws made by the Council.

10.   Inspection of records of Council proceedings

The Council must make available for inspection by a member of the Society at all reasonable times without payment the determinations and orders made by the Council or Tribunal and records of its proceedings other than those relating to –

(a) an investigation under section 58 ; or

(b) a conference under section 59 .

11.   Delegation

The Council, by resolution, may delegate to the executive committee or any person any of its functions or powers other than this power of delegation.

12.   Power of Council to make by-laws

(1)  The Council may, by resolution and in accordance with section 13 , make by-laws with respect to any or all of the following:

(a) the objects of the Society;

(b) the custody and use of the common seal of the Society;

(c) the regulation, promotion and representation of the legal profession and the Society;

(d) the geographical areas of the State for the purpose of representation of members of the Council;

(e) the determination of offices of the Society, the election of persons to those offices and their tenure;

(f) the election of members of the Council and the tenure of their membership;

(g) the membership of the executive committee;

(h) the filling of any casual vacancy in any office of the Society, in the membership of the Council or in the membership of the executive committee;

(i) the convening of and regulation of proceedings at ordinary general meetings and special general meetings of the Society and the conduct of business at those meetings;

(j) the convening of and regulation of proceedings at meetings of the Council, the executive committee or of a committee of the Council and the conduct of business by the Council, the executive committee or other committee;

(k) the admission, resignation and expulsion of members and associate members of the Society;

(l) the re-entry of persons who have ceased to be members or associate members of the Society;

(m) the fees, levies and subscriptions payable in respect of membership by members and associate members of the Society;

(n) the fees payable in respect of practising certificates;

(na) [Section 12 Subsection (1) amended by No. 26 of 1999, s. 5, Applied:14 May 1999] a levy payable by legal practitioners holding practising certificates;

(o) [Section 12 Subsection (1) amended by No. 2 of 2001, s. 5, Applied:01 Jun 2001] .  .  .  .  .  .  .  .  

(p) the power of the Council to make rules of the Society for any purpose specified in the by-laws;

(q) any other matter relating to the administration of the Society or giving effect to the objects of the Society.

(2)  By-laws made under subsection (1) may be made subject to conditions, or be made so as to apply differently according to factors, limitations or restrictions, as are specified in the by-laws.

13.   Procedure relating to the making of by-laws

(1)  A resolution by the Council to make any by-laws must be adopted on the affirmative vote of at least three quarters of the members of the Council present and voting at the meeting.

(2)  The Executive Director is to cause a resolution to be published in all daily newspapers published and circulating in the State within one month of its adoption.

(3)  If, within one month of publication of a resolution, 25 or more members of the Society make a requisition for a special general meeting of the Society to consider the resolution, the Executive Director must convene a special general meeting as soon as reasonably practicable.

(4)  The Executive Director of the Society must give 15 days' notice in writing to each member of the Society of a special general meeting to be held stating the resolution to be considered at that meeting.

(5)  A resolution considered by a special general meeting may be carried by a majority of the members present and voting at that meeting.

(6)  A resolution carried under subsection (5) takes effect one month after the date on which it was so carried.

(7)  If, within a period of one month of the publication of a resolution, a requisition is not made, the resolution takes effect –

(a) when that period expires; or

(b) at such later date as may be specified in the resolution.

14.   Executive Director and other employees

(1)  The Council, on any terms and conditions it considers appropriate, may appoint and employ a person as Executive Director of the Society and such other persons as it deems necessary.

(2)  The Executive Director must –

(a) keep all the necessary books and documents; and

(b) carry out all instructions from the Society and the Council; and

(c) perform all duties imposed on the Executive Director under this Act or under the by-laws, regulations or Rules of Practice or other rules.

15.   Institution of proceedings on behalf of Society

(1)  The Council may institute prosecutions and other proceedings in the name of the Society.

(2)  Any prosecutions or proceedings instituted by the Council under subsection (1) are to be instituted on behalf of the Society.

16.   Society entitled to appear in certain proceedings

(1)  The Council may appoint a barrister or legal practitioner to appear before a court or tribunal in a matter which affects the Society or its members or in which the Society is directly or indirectly concerned or interested.

(2)  Without limiting subsection (1) , the Society is entitled to appear –

(a) in any proceedings instituted by the Council; and

(b) in any proceedings in which a person seeks admission as a barrister or legal practitioner; and

(c) in any proceedings in which it is alleged that a barrister or legal practitioner is guilty of unprofessional conduct, professional misconduct or an offence against this Act; and

(d) in any proceedings which affect the Society or its members.

17.   Rules of Practice

(1)  The Council may make rules to be known as Rules of Practice for regulating any of the following matters:

(a) the professional practice, conduct and discipline of barristers and legal practitioners and foreign lawyers;

(b) the practice of law of a jurisdiction other than Australia;

(c) the approval to practise as a combined firm and foreign law firm or legal practitioner corporation and foreign law firm and conditions of such an approval;

(d) [Section 17 Subsection (1) amended by No. 74 of 1999, Sched. 2, Applied:01 Jan 2000] the establishment of accounts at authorised deposit-taking institutions for money of clients;

(e) the keeping, inspection and audit of records relating to money received, held or paid for on behalf of clients;

(f) the recovery of fees by barristers and legal practitioners;

(g) the advertising of services and fees.

(2)  Any rules made under subsection (1) may empower the Council –

(a) to grant exemptions, either conditionally or unconditionally, from the requirement to comply with any of those rules; and

(b) to do all things necessary to ascertain whether the rules are being complied with.

(3)  Any rules made under subsection (1) which prohibit advertising do not apply to –

(a) any incorporated non-profit making organization which provides legal services for the community; and

(b) any legal practitioner or firm advertising fees for services.

PART 4 - Board of Legal Education

18.   Board of Legal Education

(1)  The Board of Legal Education established under the Legal Practitioners Act 1959 is continued as a body corporate with a common seal.

(2)  The Board –

(a) may acquire, hold, dispose of and otherwise deal with property; and

(b) may sue and be sued in its corporate name.

(3)  The common seal is to be kept and used as authorized by the Board.

(4)  The execution of a document sealed by the Board is to be attested by 2 members of the Board.

(5)  All courts and persons acting judicially must take judicial notice of the imprint of the common seal on a document and presume that it was duly sealed by the Board.

19.   Membership of Board

(1)  The Board consists of the following members:

(a) the Attorney-General who is the chairperson of the Board;

(b) one judge nominated by the judges;

(c) one person nominated by the Faculty of Law in the University of Tasmania and who is a member of the academic staff of that Faculty;

(d) one person nominated by the Council of the University of Tasmania and who is a legal practitioner;

(e) 2 persons nominated by the Society and who are legal practitioners.

(2)  The members referred to in subsection (1) (b) , (c) , (d) and (e) are appointed by the Minister.

(3)  If a nomination under subsection (1) is not made within 30 days after the date on which that nomination is required by the Minister to be made, the Minister may appoint suitably qualified persons for appointment under that subsection.

(4)  If a body referred to in paragraph (c) or (d) of subsection (1) changes its name, the Minister may, by order, amend that paragraph by substituting the body's new name.

(5)  If the body referred to in paragraph (c) or (d) of subsection (1) ceases to exist, the Minister, on the recommendation of the Board may, by order, amend that paragraph by substituting the name of a body which the Minister is satisfied substantially represents the interests represented by the first-mentioned body.

(6)  Schedule 1 has effect with respect to members of the Board.

(7)  Schedule 2 has effect with respectto meetings of the Board.

20.   Functions and powers of Board

(1)  The Board has the following functions:

(a) to conduct such examinations as it considers necessary;

(b) to determine the subjects which candidates for admission under Part 5 must pass;

(c) to approve courses of practical instruction on the duties of a legal practitioner.

(2)  The Board may do all things necessary or convenient to perform its functions.

21.   Secretary to Board

[Section 21 Amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] Subject to and in accordance with the State Service Act 2000 , a person may be appointed as secretary to the Board and may hold office in conjunction with State Service employment.

22.   Rules of Board

(1)  The Board may make rules for the purpose of exercising its powers and performing its functions under this Act.

(2)  Without limiting subsection (1) , rules may be made for any or all of the following purposes:

(a) prescribing examinations for the purposes of Part 5 ;

(b) prescribing a scale of fees payable in respect of an application to sit for examinations conducted by the Board;

(c) providing for the manner in which the fees referred to in paragraph (b) may be disbursed;

(d) [Section 22 Subsection (2) amended by No. 26 of 1999, s. 6, Applied:12 Jul 1999] providing for the form of articles of clerkship, the filing and execution of those articles and the fees payable in respect of those articles;

(e) providing for such matters relating to the admission and enrolment of legal practitioners and barristers as may be necessary;

(f) [Section 22 Subsection (2) amended by No. 2 of 2001, s. 6, Applied:01 Jun 2001] providing for the manner in which a person may satisfy the Board as to the fulfillment of requirements relating to admission as a legal practitioner or barrister and the fees payable in respect of that matter.

(3)  Rules may be made subject to conditions, or be made so as to apply differently according to factors, limitations or restrictions, as are specified in the rules.

(4)  If the Board prescribes a scale of fees under subsection (2) (b) , it may prescribe different fees in relation to examinations for different subjects.

PART 5 - Admission as Barristers and Legal Practitioners

Division 1 - Admission as barristers and legal practitioners

23.   Admission as legal practitioners

The Supreme Court may admit as a legal practitioner a person who has –

(a) passed the examinations required by the University of Tasmania or some other approved university or approved institution for –

(i) the degree of Bachelor of Laws; or

(ii) a combined degree consisting of the degree of Bachelor of Laws and another degree; and

(b) passed the requirements of –

(i) such subjects in those examinations as the Board may determine; or

(ii) such subjects in examinations conducted by the Board as the Board may determine; and

(c) completed, to the satisfaction of the Board, an approved course of practical instruction on the duties of a legal practitioner; and

(d) [Section 23 Amended by No. 26 of 1999, s. 7, Applied:12 Jul 1999] .  .  .  .  .  .  .  .  

(e) complied with the provisions of section 30 .

24.   Admission of articled clerks with law degrees

The Supreme Court may admit as a legal practitioner a person who has –

(a) passed the examinations required by the University of Tasmania or some other approved university or approved institution for –

(i) the degree of Bachelor of Laws; or

(ii) a combined degree consisting of the degree of Bachelor of Laws and another degree; and

(b) passed the requirements of –

(i) such subjects in those examinations as the Board may determine; or

(ii) such subjects in examinations conducted by the Board as the Board may determine; and

(c) completed, to the satisfaction of the Board, approved articles of clerkship under section 38 for a period of 2 years, at least one year of which occurred after the person has passed the examinations referred to in paragraph (a) or the requirements referred to in paragraph (b) ; and

(d) complied with the provisions of section 30 .

25.   Admission of articled clerks without law degrees

The Supreme Court may admit as a legal practitioner a person who has –

(a) passed the requirements of such subjects in examinations conducted by the Board as the Board may determine; and

(b) completed, to the satisfaction of the Board, articles of clerkship under section 38 for a period of 5 years; and

(c) complied with the provisions of section 30 .

26.   Exemption from examinations

(1)  Notwithstanding the provisions of sections 23 (b) , 24 (b) and 25 (a) , the Board may exempt a person from passing any examination in any subject in such circumstances as it determines.

(2)  A person exempted by the Board is taken to have passed the examination in the subject in respect of which the exemption was granted.

27.   Admission of other persons

(1)  The Supreme Court may admit as a legal practitioner, a person who has complied with the provisions of section 30 and –

(a) is admitted as a solicitor or a barrister and solicitor in –

(i) another State or in a Territory of the Commonwealth; or

(ii) New Zealand; or

(b) is admitted or entitled to be admitted as a solicitor or a barrister and solicitor –

(i) in theUnited Kingdom or in any other jurisdiction where the system of jurisprudence is founded on, is assimilated to or is substantially composed of, the common law and principles of equity as administered in this State; and

(ii) in the opinion of the Board, has qualifications and professional experience substantially equivalent to the requirements referred to in section 23 , 24 or 25 or has demonstrated competence as a solicitor or as a barrister and solicitor in that other jurisdiction.

(2)  A person aggrieved by the opinion of the Board formed under subsection (1) (b) may appeal against that opinion to a judge in chambers.

(3)  At the hearing of an appeal, a judge in chambers may –

(a) confirm the opinion of the Board; or

(b) replace that opinion with his or her opinion.

(4)  The Board is to adopt the opinion formed by a judge in chambers pursuant to subsection (3) (b) as its own opinion.

28.   Admission of barristers

(1)  The Supreme Court may admit as a barrister a person who has complied with the provisions of section 30 and –

(a) is admitted as a barrister in –

(i) another State or in a Territory of the Commonwealth; or

(ii) New Zealand; or

(b) [Section 28 Subsection (1) amended by No. 14 of 1998, s. 4, Applied:22 May 1998] is admitted as a barrister–

(i) in the United Kingdom or in any other jurisdiction where the system of jurisprudence is founded on, is assimilated to or is substantially composed of the common law and principles of equity as administered in this State; and

(ii) in the opinion of the Board has qualifications and professional experience substantially equivalent to the requirements referred to in section 23 , 24 or 25 or has demonstrated competence as a barrister in that other jurisdiction.

(2)  Seniority between persons who are barristers by virtue of their admission as legal practitioners and persons who are admitted as barristers under this section is determined by the dates of their respective admissions.

(3)  A person admitted as a barrister under this section who has practised as a barrister in this State may, on his or her own motion and subject to complying with the provisions of section 30 , be admitted as a legal practitioner.

29.   Terms and conditions of certain admissions

(1)  The Supreme Court may admit a person as a barrister or legal practitioner under section 27 or 28 on such terms and conditions relating to the right of that person to practise as it thinks fit.

(2)  If the Supreme Court admits a person subject to terms and conditions relating to the right of that person to practise, the Court may, on the application of that person, review, modify or remove all or any of those terms and conditions if –

(a) the application is made at least 12 months after the date on which the person was so admitted; or

(b) in the case of a second or subsequent application, the application is made at least 12 months after the date on which the preceding application was made.

29A.   Rules relating to admission

[Section 29A Inserted by No. 2 of 2001, s. 7, Applied:01 Jun 2001] The Supreme Court may make rules regulating the procedure and practice relating to the admission of legal practitioners.

Division 2 - General provisions relating to admissions and right of audience

30.   Publication of notice for admission

(1)  A person who intends to apply for admission as a barrister or legal practitioner is to cause a notice of that intention to be published within such period and in such a manner as are prescribed by rules made by the Board under section 22 .

(2)  A person who wishes to extend or shorten the period referred to in subsection (1) may apply to the Supreme Court for an order to that effect.

(3)  A person who makes an application under subsection (2) shall forward a copy of that application to the Society.

(4)  The Supreme Court must not hear an application unless –

(a) it is satisfied that the provisions of subsection (3) have been complied with; and

(b) the Society is given an opportunity to appear before the Court hearing the application.

31.   General provisions relating to admissions

(1)  An application for admission must not be granted unless the Supreme Court is satisfied that the applicant has complied with the provisions of this Act and is of good fame and character and is a fit and proper person to be admitted.

(2)  [Section 31 Subsection (2) amended by No. 51 of 2000, s. 4, Applied:14 Jul 2000] A person who applies to be admitted under this Part must, before that admission, take and subscribe the oath specified in Part 1 of Schedule 3 .

(3)  A person who is admitted as a barrister under section 28 must sign the roll of barristers.

(4)  A person admitted as a legal practitioner is to be enrolled in the roll of legal practitioners.

32.   Objection to admission

(1)  The Society or any other person who has reasonable grounds to object to an application for admission may apply to the Supreme Court to hear and determine the issues relating to the objection.

(2)  A person who intends to object to an application for admission must, within 7 days before the date on which the application for admission is to be heard, lodge with the Registrar 2 copies of a notice of objection stating the grounds of the objection.

(3)  On receipt of a notice of objection, the Registrar is to forward one copy of the notice to the applicant.

(4)  A person who lodges a notice of objection is entitled to appear at any hearing held to determine the objection.

(5)  The Supreme Court is to hear and determine the issues relating to the objection before the hearing of an application for admission.

33.   Ineligibility for admission

(1)  A person is not eligible to be admitted as a barrister or legal practitioner if that person –

(a) has been convicted anywhere of a crime; or

(b) has been declared bankrupt under, or has applied to take advantage of, a law relating to bankruptcy, whether in force in the Commonwealth or elsewhere; or

(c) has anywhere ceased to be a barrister, solicitor or barrister and solicitor, or has been suspended from practice–

unless the Supreme Court is satisfied that, notwithstanding such matters, that person is a fit and proper person to be admitted.

(2)  A person is not ineligible to be admitted as a barrister or legal practitioner only because the person is not an Australian citizen or a British subject.

34.   Audience of certain officers of Commonwealth

(1)  A person who –

(a) is employed in the office of the Australian Government Solicitor or in the Australian Securities Commission in this State; and

(b) is a barrister, a solicitor or a barrister and solicitor of a Supreme Court of another State or Territory –

may, subject to subsection (2) , act in this State as a barrister notwithstanding that the employment of that person may be inconsistent with the practice of a barrister.

(2)  A person referred to in subsection (1) (a) must not act in this State as a barrister unless a certificate signed by the Australian Government Solicitor or the Australian Securities Commission certifying that the person is qualified as required by that subsection is filed with the Registrar.

(3)  If a person in respect of whom a certificate is filed under subsection (2) ceases to be qualified as required by subsection (1) , the Australian Government Solicitor or the Australian Securities Commission must, by notice in writing, notify the Registrar accordingly.

(4)  Upon receipt of a notification, the Registrar is to remove the certificate to which the notification relates from the file.

(5)  A person who acts as a barrister under this section is subject to this Act and the control of the Supreme Court and may be disbarred from practising as a barrister in the same manner as if that person were a barrister admitted under section 28 .

35.   Disbarment or removal from roll

(1)  The Supreme Court may disbar or strike off the roll any barrister or legal practitioner or suspend a person admitted as a barrister or legal practitioner under this Part who is anywhere disbarred or struck off a roll or is suspended from practice.

(2)  A barrister or legal practitioner may apply to the Supreme Court to be removed from the roll.

(3)  The disbarment, suspension or striking off or removal from a roll does not prevent any investigation, hearing or proceedings under this Act from commencing, continuing or being determined.

36.   Certificate of admission

The Registrar is to issue a certificate of admission to any person who is admitted as a barrister or legal practitioner under this Part.

PART 6 - Articled Clerks

37.   

38.   Articles of clerkship

(1)  A person may enter into articles of clerkship with a legal practitioner who holds a practising certificate if –

(a) the Board is satisfied that the person –

(i) has the qualifications referred to in section 24 (a) and (b) or section 25 (a) or that the person is in the process of acquiring, or at the start of the next academic year intends to begin the process of acquiring those qualifications; and

(ii) [Section 38 Subsection (1) amended by No. 26 of 1999, s. 10, Applied:12 Jul 1999] .  .  .  .  .  .  .  .  

(b) the Board gives its consent for that person to enter into those articles of clerkship.

(2)  If the Board is satisfied that a person meets the requirements specified in subsection (1) , it must issue to that person a certificate to that effect.

(3)  The Board may give its consent under subsection (1) (b) to a person subject to the condition that the legal practitioner with whom the person enters into articles of clerkship undertakes to ensure that the person is instructed in any manner, and in any areas of practical training, the Board determines.

39.   Number of apprentices, &c., to be limited

(1)  [Section 39 Subsection (1) amended by No. 26 of 1999, Sched. 1, Applied:12 Jul 1999] A legal practitioner must not at any time employ more than 2 persons under articles of clerkship.

(2)  [Section 39 Subsection (2) amended by No. 26 of 1999, Sched. 1, Applied:12 Jul 1999] A legal practitioner must not employ any person under articles of clerkship if the legal practitioner has not held, or has not been named in, a practising certificate for a period of 2 years immediately before the commencement of those articles.

(3)  [Section 39 Subsection (3) amended by No. 26 of 1999, Sched. 1, Applied:12 Jul 1999] A person must not be employed under articles of clerkship by a person holding the office of Registrar or Registrar of Deeds.

40.   Appeals

(1)  A person may appeal to a judge in chambers if the person –

(a) [Section 40 Subsection (1) amended by No. 26 of 1999, s. 11, Applied:12 Jul 1999] fails to satisfy the Board under section 38(1) ; or

(b) fails to obtain the consent of the Board under section 38 (1) (b) .

(2)  At the hearing of an appeal, a judge in chambers may –

(a) dismiss the appeal; or

(b) direct the Board to take such action as the judge considers appropriate in the matter to which the appeal relates.

(3)  The Board or the person making an appeal may appeal to the Supreme Court against the decision of a judge.

41.   Lodgement of articles

(1)  [Section 41 Subsection (1) amended by No. 26 of 1999, Sched. 1, Applied:12 Jul 1999] A person who intends to enter into articles of clerkship must–

(a) lodge with the Registrar–

(i) [Section 41 Subsection (1) amended by No. 26 of 1999, s. 12, Applied:12 Jul 1999] the articles of clerkship; and

(ii) [Section 41 Subsection (1) amended by No. 26 of 1999, s. 12, Applied:12 Jul 1999] the certificate referred to in section 38(2) ; and

(b) pay the prescribed fee; and

(c) [Section 41 Subsection (1) amended by No. 92 of 2001, s. 13, Applied:05 Dec 2001] take and subscribe the oath specified in Part 2 of Schedule 3 .

(2)  If a person has complied with the provisions of subsection (1) , the Registrar is to issue to that person a certificate in an approved form stating –

(a) [Section 41 Subsection (2) amended by No. 26 of 1999, s. 12, Applied:12 Jul 1999] .  .  .  .  .  .  .  .  

(b) that the person is an articled clerk.

42.   Articles to be in approved form

[Section 42 Amended by No. 26 of 1999, s. 13, Applied:12 Jul 1999] Articles of clerkship are to be in an approved form.

43.   Assignment of articles

[Section 43 Amended by No. 26 of 1999, s. 14, Applied:12 Jul 1999] Articles of clerkship may be assigned to a legal practitioner other than the legal practitioner named in those articles if–

(a) the parties to those articles consent; or

(b) the legal practitioner named in those articles dies or ceases to practise, or is suspended from practice, as a legal practitioner; or

(c) those articles are discharged by an order of the Supreme Court.

44.   Discharge of articles

[Section 44 Amended by No. 26 of 1999, Sched. 1, Applied:12 Jul 1999] If a person is employed by a legal practitioner under articles of clerkship and the legal practitioner–

(a) becomes bankrupt; or

(b) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

(c) compounds with creditors; or

(d) makes an assignment of remuneration or estate for the benefit of creditors–

that person may apply to the Supreme Court for an order to discharge those articles or to assign those articles in such manner and subject to such conditions as the Court may direct.

45.   Application for limited right of audience

(1)  A person may apply to the Master of the Supreme Court for a limited right of audience if the person holds a certificate issued under section 41 (2) (b) and –

(a) has the qualifications referred to in section 24 (a) and completed one year of service under articles of clerkship; or

(b) has the qualifications referred to in section 25 (a) and has completed, to the satisfaction of the Board, articles of clerkship for a period of 4 years.

(2)  An application is to be accompanied by the prescribed fee.

(3)  On receipt of an application, the Master of the Supreme Court may grant or refuse to grant the limited right of audience.

(4)  A person aggrieved by the decision of the Master of the Supreme Court to refuse to grant a limited right of audience may appeal against that decision to the Supreme Court.

(5)  A person who holds a certificate issued under section 41 (2) (a) has a limited right of audience.

(6)  The Registrar is to keep a roll of the names of all persons who have a limited right of audience.

46.   Limited right of audience

(1)  A person who has a limited right of audience may appear in the following proceedings:

(a) proceedings in chambers –

(i) in aid of execution or otherwise for the purpose of enforcing or giving effect to a judgment or order of the court or a judge; or

(ii) before the Master; or

(iii) before a judge that are not contested;

(b) [Section 46 Subsection (1) amended by No. 32 of 1995, Sched. 1, Applied:30 Mar 1998] proceedings in the Magistrates Court (Civil Division);

(c) proceedings in a court of petty sessions (including a children's court) relating to an application for –

(i) the admission of any person to bail; or

(ii) the adjournment of any proceedings; or

(iii) the remand of any person;

(d) [Section 46 Subsection (1) amended by No. 90 of 1999, Sched. 1, Applied:14 Aug 2000] proceedings in a court of petty sessions relating to the entry of a plea of guilty to an offence against a regulation under the Traffic Act 1925 , the Vehicle and Traffic Act 1999 , or the Passenger Transport Act 1997 , and proceedings before the court consequent upon the entry of the plea;

(e) proceedings in the Supreme Court as junior counsel if accompanied by a practitioner;

(f) proceedings before a coroner;

(g) proceedings in a court of petty sessions if accompanied by a practitioner.

(2)  A person who exercises a limited right of audience has the same rights and privileges and is subject to the same duties and obligations as if that person were a legal practitioner.

(3)  [Section 46 Subsection (3) amended by No. 26 of 1999, s. 15, Applied:12 Jul 1999] A person who exercises a limited right of audience is not entitled to recover any fees, charges or disbursements in respect of an appearance in any proceedings but the legal practitioner to whom that person is articled may recover fees, charges or disbursements that are reasonable in respect of that appearance.

(4)  If a person exercises a limited right of audience, the legal practitioner by whom the person is employed is responsible for the words and acts of that person unless it can be proved that the words and acts were made without the approval of the legal practitioner.

(5)  If it is proved that words and acts of a person exercising a limited right of audience were made without the approval of the legal practitioner by whom the person is employed, the Supreme Court may, if in its opinion those words and acts are such as to cause the Supreme Court to disbar or suspend the person if the person were a barrister –

(a) [Section 46 Subsection (5) amended by No. 26 of 1999, s. 15, Applied:12 Jul 1999] suspend the articles of clerkship under which the person is employed for such period and upon such conditions as it thinks fit; or

(b) cancel those articles.

(6)  [Section 46 Subsection (6) amended by No. 26 of 1999, Sched. 1, Applied:12 Jul 1999] If articles of clerkship are cancelled under subsection (5) (b) , the person to whom those articles relate is not entitled to enter into any other articles of clerkship without the leave of the Supreme Court.

47.   Aggregation of periods of employment

(1)  [Section 47 Subsection (1) amended by No. 26 of 1999, Sched. 1, Applied:12 Jul 1999] In determining the length of employment under articles of clerkship, any periods of employment under those articles may, subject to subsection (2) , be aggregated notwithstanding that the periods are not continuous.

(2)  [Section 47 Subsection (2) amended by No. 26 of 1999, Sched. 1, Applied:12 Jul 1999] If any articles of clerkship are cancelled under section 46 (5) (b) , any periods of employment under articles after that cancellation are not to be aggregated with any period of such employment before that cancellation.

48.   Irregularities of employment

(1)  [Section 48 Subsection (1) amended by No. 26 of 1999, Sched. 1, Applied:12 Jul 1999] A person may apply to the Master of the Supreme Court for a determination that any period of employment purportedly under articles of clerkship is to be taken into account in calculating the length of employment under those articles notwithstanding that due to mistake or inadvertence–

(a) those articles lapsed or otherwise ceased to have effect before the end of the period specified in the articles; or

(b) during that period there was a failure to comply with this Act or the terms of those articles.

(2)  A person aggrieved by the determination of the Master of the Supreme Court may appeal to the Supreme Court.

49.   Employment in other State or Territory

(1)  [Section 49 Subsection (1) amended by No. 26 of 1999, s. 16, Applied:12 Jul 1999] A period of employment under articles of clerkship or similar articles in any other State or Territory of the Commonwealth in accordance with the law there in force may, with the consent of the Board, be calculated as a period of employment under articles under this Act.

(2)  [Section 49 Subsection (2) omitted by No. 26 of 1999, s. 16, Applied:12 Jul 1999] .  .  .  .  .  .  .  .  

50.   Delivery of certificate

(1)  [Section 50 Subsection (1) amended by No. 26 of 1999, Sched. 1, Applied:12 Jul 1999] If articles of clerkship are discharged or cancelled or have expired, the Registrar may, by notice in writing to the person employed under those articles, require that person to deliver to the Registrar the certificate issued under section 41 (2) within the period specified in that notice.

(2)  On receipt of a certificate delivered under subsection (1) , the Registrar is to cancel that certificate.

(3)  [Section 50 Subsection (3) amended by No. 26 of 1999, Sched. 1, Applied:12 Jul 1999] If, on the expiration of articles of clerkship, a person employed under those articles–

(a) is to apply without delay for admission as a legal practitioner; and

(b) wishes a certificate issued under section 41 (2) to continue until that admission–

the Registrar is not to require that person to deliver the certificate until after a reasonable period to enable that person to be so admitted.

PART 7 - Entitlement to Practise

51.   Practising certificates

(1)  [Section 51 Subsection (1) amended by No. 2 of 2001, s. 8, Applied:01 Jun 2001] A person who is admitted under Part 5 as a legal practitioner may apply to the Society for a practising certificate to practise as a barrister and solicitor or as a barrister.

(2)  An application is to be –

(a) made in the approved form; and

(b) accompanied by the prescribed fee.

(3)  On receipt of an application made by a person, the Society is to issue a practising certificate to the person subject to any conditions it considers appropriate including compliance with indemnity rules made under section 124 .

(4)  A legal practitioner may appeal against any condition imposed by the Society under subsection (3) in accordance with the Rules of the Supreme Court 1965 .

(5)  In hearing an appeal, the Supreme Court may –

(a) vary any condition imposed; or

(b) substitute any condition imposed with another condition; or

(c) cancel any condition imposed; or

(d) confirm any condition imposed.

(6)  [Section 51 Subsection (6) amended by No. 2 of 2001, s. 8, Applied:01 Jun 2001] A practising certificate remains in force from the date specified in the certificate until 31 December next following that date unless sooner cancelled under subsection (7) or (7A) .

(7)  The Society may cancel a practising certificate if a firm or legal practitioner corporation fails to make any payment required under the indemnity rules in relation to indemnity cover.

(7A)  [Section 51 Subsection (7A) inserted by No. 2 of 2001, s. 8, Applied:01 Jun 2001] The Society may suspend for a specified period or cancel a practising certificate if a legal practitioner –

(a) fails to give a satisfactory explanation of conduct in relation to a complaint made against the legal practitioner; or

(b) is sentenced to a term of imprisonment; or

(c) is bankrupt while holding a practising certificate entitling the practitioner to practise as a sole member of a firm or in partnership with another person.

(8)  [Section 51 Subsection (8) amended by No. 2 of 2001, s. 8, Applied:01 Jun 2001] A legal practitioner who is employed as a legal practitioner or who is employed or appointed in a legal capacity–

(a) [Section 51 Subsection (8) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] under the State Service Act 2000 ; or

(b) in the Australian Securities Commission; or

(c) in a State or Commonwealth instrumentality; or

(d) in a municipal corporation; or

(e) in a Commonwealth or State Statutory office–

is taken to hold, for the purposes of this Act and for the purposes of that employment, a practising certificate as a barrister and solicitor or a barrister for the period during which the person is so employed.

51A.   Appeals against cancellation or suspension

[Section 51A Inserted by No. 2 of 2001, s. 9, Applied:01 Jun 2001]

(1)  A legal practitioner may appeal to the Supreme Court against the cancellation or suspension of a practising certificate under section 51(7A) .

(2)  An appeal is to be made in accordance with the Supreme Court Rules 2000 .

51B.   Hearing of appeals

[Section 51B Inserted by No. 2 of 2001, s. 9, Applied:01 Jun 2001] In hearing an appeal under section 51A , the Supreme Court may –

(a) confirm the cancellation or suspension; or

(b) reinstate the practising certificate; or

(c) reinstate the practising certificate subject to any conditions it considers appropriate; or

(d) reinstate the practising certificate and suspend its operation for a specified period; or

(e) vary the period of suspension.

52.   Effect of not practising

(1)  [Section 52 Subsection (1) amended by No. 68 of 1994, s. 3 and Sched. 1 ]A person who makes an application for a practising certificate and who –

(a) intends to practise as the sole member of a firm or in partnership with another person; and

(b) has not during a period of 12 months before that application been the holder of a practising certificate or taken to hold a practising certificate under section 51 (8) –

is not entitled to receive the practising certificate unless on application to the Supreme Court, the person satisfies the Supreme Court as to the matters referred to in subsection (2) .

(2)  The matters in respect of which a person must satisfy the Supreme Court are –

(a) the reasons why the person ceased or failed to practise as a legal practitioner during that period; and

(b) the conduct and employment of that person during that period.

(3)  A person who is required to satisfy the Supreme Court as to the matters referred to in subsection (2) must forward to the Society a copy of the application made under subsection (1) .

(4)  The Society may appear before the Supreme Court and present such evidence as is relevant to the matters referred to in subsection (2) .

53.   Offence to practise without certificate

(1)  A legal practitioner must not, without the approval of the Council, practise for any period as a legal practitioner unless that person is the holder of a practising certificate in force during that period.

Penalty:  Fine not exceeding 50 penalty units.

(2)  A person who practises as a legal practitioner and is not the holder of a practising certificate is not entitled, without the leave of the Supreme Court, to maintain an action for the recovery of costs, fees or disbursements in respect of any act or proceedings done or taken by that person or by any other member or employee of that person's firm in the course of the practice of that firm at any period during which that person was not the holder of a practising certificate.

54.   Offence to practise unless admitted

(1)  A person who is not admitted under Part 5 as a legal practitioner must not –

(a) practise as a legal practitioner; or

(b) claim or profess to be entitled to practise as a legal practitioner; or

(c) permit another person to claim or profess that the person is entitled to practise as a legal practitioner; or

(d) [Section 54 Subsection (1) amended by No. 69 of 2003, Sched. 1, Applied:15 Dec 2003] on behalf or in the name of another person, take out any writ or process or commence, carry on, solicit, defend or appear in any action or other proceeding; or

(e) make a charge or demand, whether as fee for counsel or for legal costs, expenses or commissions payable to a solicitor; or

(f) for fee or reward, prepare or assist in preparing any deed or will or any instrument in writing purporting to create or convey any estate or interest in real or personal property or otherwise practise the business of a conveyancer.

Penalty:  Fine not exceeding 200 penalty units or imprisonment for a term not exceeding 2 years, or both.

(2)  The provisions of subsection (1) do not prevent a person from –

(a) exercising a limited right of audience under section 46 ; or

(b) [Section 54 Subsection (2) amended by No. 32 of 1995, Sched. 1, Applied:30 Mar 1998] addressing the Magistrates Court (Civil Division); or

(c) conducting a case or examining and cross-examining witnesses under section 38 of the Justices Act 1959 ; or

(d) [Section 54 Subsection (2) amended by No. 69 of 2003, Sched. 1, Applied:15 Dec 2003] acting on his or her own behalf in any legal proceedings or matters; or

(da) [Section 54 Subsection (2) amended by No. 2 of 2001, s. 10, Applied:01 Jun 2001] preparing or assisting in the preparation of a will for fee or reward in the course of the person's employment with –

(i) The Public Trustee established under the Public Trustee Act 1930 ; or

(ii) a trustee company as defined by the Trustee Companies Act 1953 ; or

(db) [Section 54 Subsection (2) amended by No. 22 of 2004, s. 57, Applied:01 Sep 2005] acting as a conveyancer, within the meaning of the Conveyancing Act 2004 , if he or she is authorised to do so under that Act; or

(e) publishing or selling information or material describing the procedures relating to the conveyance or transfer of property that does not involve the preparation of an instrument purporting to convey or transfer property.

(3)  A person who is not a barrister must not –

(a) practise as a barrister; or

(b) claim or profess to be entitled to practise as a barrister; or

(c) permit another person to claim or profess that the person is entitled to practise as a barrister.

Penalty:  Fine not exceeding 200 penalty units, or imprisonment for a term not exceeding 2 years, or both.

54A.   Community legal centres

[Section 54A Inserted by No. 2 of 2001, s. 11, Applied:01 Jun 2001]

(1)  A community legal centre does not contravene this Part only because it –

(a) employs or otherwise uses the services of a legal practitioner to provide legal services to members of the public; or

(b) has a contractual relationship with a member of the public to whom those legal services are provided or receives any fee, gain or reward for providing those legal services; or

(c) shares with a legal practitioner employed or otherwise used by it to provide those legal services, receipts from the business of the centre being business of a kind usually conducted by a legal practitioner; or

(d) adopts or uses the word "legal" or some related term in its name or any registered business name under which it provides legal services to members of the public.

(2)  A community legal centre is an organisation, whether incorporated or not, that –

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

(b) provides legal services that –

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

(ii) are made available to persons or organisations having a special need arising from their location or the nature of the legal matter to be addressed; and

(iii) are not intended or likely to be provided at a profit to the community legal centre, and any income from which is not to be distributed to any member or employee of the centre otherwise than by way of reasonable remuneration under a contract of service or for services; and

(iv) are funded or expected to be funded to a significant level by donations or grants from government, charitable or other organisations; and

(c) employs or otherwise uses persons to provide those legal services, at least one of whom is a legal practitioner with a current practising certificate who is generally responsible for the provision of those legal services.

55.   Foreign lawyers

(1)  A foreign lawyer may apply to the Council for approval –

(a) to be employed by a legal practitioner corporation or firm to advise on foreign law; or

(b) to practise as a foreign law firm on his or her own account.

(2)  A foreign law firm may apply to the Council for approval –

(a) to practise foreign law in Tasmania; or

(b) to combine with a legal practitioner corporation or firm to practise foreign law.

(3)  A foreign law firm given approval to practise foreign law in Tasmania may only do so subject to the following conditions –

(a) that its practice is confined exclusively to advising on the law of the jurisdiction in which the foreign lawyers are qualified and admitted to practise; and

(b) it complies with the standards of professional conduct required under this Act.

(4)  An application under subsection (2) or (3) is to be made in accordance with the Rules of Practice.

(5)  A foreign law firm or foreign lawyer must not advise on or practise foreign law without an approval under this section.

Penalty:  Fine not exceeding 200 penalty units, or imprisonment for a term not exceeding 2 years, or both.

PART 7A - Interstate legal practitioners

Division 1 - Interstate practising certificates

55A.   Interstate legal practitioners entitled to practise in State

(1)  A person who holds an interstate practising certificate is entitled to carry on legal practice in this State as if –

(a) the interstate practising certificate were a practising certificate; and

(b) any conditions of the interstate practising certificate were conditions of the practising certificate.

(2)  A person is entitled to carry on legal practice in this State only if the person –

(a) complies with any applicable requirements of this and any other Act relating to legal practice that would apply to a local legal practitioner whose practising certificate is subject to conditions corresponding to the conditions of the interstate practising certificate; and

(b) complies with any conditions imposed on the person by a regulatory authority.

(3)  A condition imposed on a person by one regulatory authority has no effect for the purpose of this section if it is inconsistent with a more onerous condition imposed on the person by another regulatory authority.

(4)  A failure to comply with this section constitutes professional misconduct or unprofessional conduct under Part 8 .

55B.   Additional conditions

(1)  A regulatory authority in this State, by notice in writing, may impose any condition on the legal practice by an interstate legal practitioner in this State that it may impose on a practising certificate under section 51(3) or section 76(1)(e) .

(2)  A regulatory authority in this State must not impose a condition under this section that is more onerous than a condition it would impose under section 51(3) or section 76(1)(e) in the same or similar circumstances.

(3)  A regulatory authority in this State may vary or revoke any condition imposed under this section.

Division 2 - Indemnity insurance

55C.   Indemnity insurance

An interstate legal practitioner who maintains a State office must not practise as a barrister or solicitor and barrister in this State unless he or she has indemnity insurance in respect of that practice –

(a) that provides the same or higher minimum level of indemnity as that provided for under the Indemnity Rules made under Part 10 ; and

(b) the terms of which are broadly equivalent to those provided under those rules.

Penalty:  Fine not exceeding 20 penalty units.

55D.   Indemnity insurance if no State office

(1)  If the level of indemnity under a policy of indemnity insurance in force in respect of the legal practice of an interstate legal practitioner who does not have a State office is less than that required of an interstate legal practitioner under section 55C , the interstate legal practitioner is to disclose the difference to a client before being retained by the client.

(2)  A failure to comply with this section constitutes professional misconduct or unprofessional conduct under Part 8 .

55E.   Trust accounts

An interstate legal practitioner who maintains a State office must comply with Part 9 as if he or she were a local legal practitioner.

Division 3 - Complaints and discipline

55F.   Complaints relating to local legal practitioners in participating States

A complaint relating to the conduct of a local legal practitioner in respect of his or her legal practice in a participating State may be dealt with under Part 8 as if it were a complaint under that Part.

55G.   Referral to regulatory authority in participating State

(1)  A regulatory authority in this State may refer a complaint made to it to a regulatory authority in a participating State to be dealt with according to the law of that State.

(2)  A regulatory authority in this State may request a regulatory authority in a participating State to investigate the conduct of a legal practitioner in accordance with the law of that State.

(3)  If a referral or request is made under this section, a regulatory authority in this State is not to take any further action in relation to the subject matter of the referral or request, other than any action required under section 55H .

55H.   Dealing with referred matters

(1)  A regulatory authority in this State may investigate a complaint against a legal practitioner referred to it by a regulatory authority in a participating State whether or not the subject matter of the complaint occurred in or outside this State.

(2)  If a regulatory authority in a participating State requests a regulatory authority in this State to investigate the conduct of a legal practitioner, the regulatory authority in this State may investigate that conduct whether or not the conduct occurred in or outside this State.

55I.   Information

(1)  A regulatory authority in this State is to provide without delay any information about a legal practitioner reasonably required by a regulatory authority in a participating State in connection with actual or possible disciplinary action against the legal practitioner.

(2)  A regulatory authority may provide the information despite any law relating to secrecy or confidentiality.

(3)  A regulatory authority in this State is to notify the appropriate regulatory authority in each participating State of any condition imposed by it on a legal practitioner in relation to his or her legal practice as a result of any disciplinary action taken against the legal practitioner.

55J.   Local legal practitioners subject to interstate regulatory authorities

(1)  A local legal practitioner practising in this State must comply with any condition in respect of his or her legal practice imposed by a regulatory authority in a participating State as a result of any disciplinary action against the local legal practitioner.

(2)  A failure to comply with subsection (1) constitutes professional misconduct or unprofessional conduct under Part 8 .

(3)  A regulatory authority in a participating State –

(a) that has power to suspend, cancel, vary the conditions of, impose further conditions on, or order the suspension, cancellation or variation of the conditions of, or imposition of further conditions on, an interstate practising certificate issued to an interstate legal practitioner in that State as a result of any disciplinary action against the interstate legal practitioner; and

(b) to which a local legal practitioner is subject in that State –

has those same powers in relation to the practising certificate of a local legal practitioner as a result of any disciplinary action taken against the local legal practitioner.

(4)  A regulatory authority in this State is to comply with an order of a regulatory authority in a participating State referred to in subsection (3) .

(5)  A regulatory authority in a participating State that has power to order the removal of the name of a person from the roll kept in that State that corresponds to the roll of practitioners in the Supreme Court in this State may order that the name of a local legal practitioner be so removed.

(6)  If an order is made by a regulatory authority in a participating State under subsection (5) , the name of the local legal practitioner is to be removed from the roll of practitioners in this State.

Division 4 - General provisions

55K.   Local legal practitioner receiving trust money interstate

(1)  A local legal practitioner must deal with trust money received in the course of practising outside this State in accordance with Part 9 as if the trust money had been received in the course of practising in this State.

(2)  Subsection (1) does not apply in respect of trust money received in the course of practising in a participating State in which a local legal practitioner has established an office.

55L.   Powers under corresponding law

A regulatory authority in this State may exercise in respect of a legal practitioner any power under a corresponding law conferred on it by the corresponding law.

55M.   Corresponding law

The Minister, by order published in the Gazette, may declare a law of another State relating to the regulation of legal practice to be a corresponding law for the purpose of this Part.

55N.   Agreements and arrangements with other regulatory authorities

A regulatory authority in this State may make any agreement or arrangement with a regulatory authority in a participating State relating to –

(a) the investigation of complaints; and

(b) professional indemnity insurance; and

(c) trust account inspections; and

(d) the appointment of managers and receivers; and

(e) the provision of information under section 55I .

PART 8 - Disciplinary Proceedings

Division 1 - Investigations and hearings of Council

56.   Interpretation of Part 8

In this Part –

complaint means a complaint against a practitioner relating to the professional misconduct or unprofessional conduct of that practitioner;

party to a complaint means –

(a) the Society; and

(b) the practitioner to whom a complaint relates; and

(c) the person who makes a complaint;

practitioner means a person who –

(a) is a barrister or legal practitioner; or

(b) holds a certificateissued under section 41 (2) ; or

(c) was a barrister or legal practitioner on the date on which any matter which is the subject of a complaint occurred; or

(d) was a barrister or solicitor or barrister and solicitor of any jurisdiction on the date on which any matter which is the subject of a complaint occurred;

professional misconduct includes conduct on the part of a practitioner which results in –

(a) a contravention or failure to comply with –

(i) any provision of this Act or any regulations, rules or by-laws made under this Act; or

(ii) any terms and conditions imposed under this Part; or

(b) fiduciary default; or

(c) any serious neglect or undue delay; or

(d) the charging of excessive fees or costs; or

(e) consistent or substantial failure to reach reasonable standards of competence and diligence;

unprofessional conduct includes –

(a) professional conduct that falls short of a standard of conduct that a member of the public is entitled to expect of a practitioner of good repute and competency; and

(b) conduct of a kind referred to in paragraphs (c) , (d) and (e) of the definition of professional misconduct but of a lesser degree of seriousness.

57.   Complaints

(1)  Any person or the Society may make a complaint against a practitioner.

(2)  A complaint –

(a) is to be made in writing; and

(b) is to contain particulars with respect to the matter complained of; and

(c) is to identify the person against whom the complaint is made and the person making the complaint; and

(d) if compensation is claimed, is to specify to the best of the applicant's knowledge any pecuniary loss incurred; and

(e) is to be lodged with the Executive Director of the Society.

(3)  The Executive Director is to take all reasonable steps to ensure that a person who wishes to make a complaint is given such assistance as is necessary to enable that person to make the complaint in accordance with this section.

(4)  On receipt of a complaint, the Executive Director is to –

(a) make a record of the date on which the complaint was received; and

(b) furnish a copy of the complaint to the Legal Ombudsman.

58.   Investigations

[Section 58 Subsection (4) amended by No. 2 of 2001, s. 13, Applied:01 Jun 2001] [Section 58 Substituted by No. 17 of 1996, Applied:09 Jul 2001]

(1)  The Council must investigate a complaint made under section 57 .

(2)  The Council, on its own motion, may investigate the conduct of any practitioner where it has reason to believe that such conduct may amount to professional misconduct or unprofessional conduct.

(3)  If, in the course of an investigation, the Council considers a complaint to be frivolous, vexatious or lacking in substance, it must dismiss the complaint.

(4)  If the Council considers that a complaint relates wholly or partly to a dispute about a bill of costs and is satisfied that the matter amounts to professional misconduct or unprofessional conduct, it may refer the bill of costs –

(a) to a taxing officer referred to in Part 11 to be taxed; or

(b) to an arbitrator referred to in Part 11 for determination of the costs.

(5)  The referral of a bill of costs under subsection (4) does not affect the power of the Council to investigate any other part of a complaint which does not relate to the dispute about the bill of costs.

(5A)  If the Council considers that the subject matter of a complaint amounts to unprofessional conduct that is not sufficiently serious to warrant a hearing under section 60 , it may deal with the complaint under Division 1A .

(6)  In the course of an investigation the Council, by notice in writing served on a practitioner, may require the practitioner –

(a) to produce, within such period as may be specified in the notice, such documents or records or class of documents or records; or

(b) to provide such information relating to that practitioner as it thinks fit; or

(c) to provide a written or verbal explanation of any matter relating to a complaint.

(7)  For the purposes of subsection (6) , the Council may authorize a person to –

(a) take and retain possession of any documents or records required to be produced; and

(b) inspect, make copies of, or take extracts from, such documents or records; and

(c) enter and remain on premises for the purposes of this subsection.

(8)  If a practitioner fails without reasonable excuse to comply with a notice, the Council may –

(a) impose a fine on that practitioner –

(i) not exceeding $500 for a first failure to comply; or

(ii) not exceeding $1 000 for a second failure to comply; or

(b) make an application under section 72  –

(i) in respect of a third or subsequent failure to comply; or

(ii) if the practitioner disputes the failure to comply.

(8A)  In addition to the powers referred to in subsection (8) , the Council may require a practitioner to pay any costs of, or incidental to, the failure to comply with a notice.

(8B)  Any fine imposed under this section is to be paid into the Guarantee Fund.

(9)  A practitioner must not claim professional privilege as a reason for failure to comply with a notice except with the written consent of the person to whom the professional privilege relates.

(10)  [Section 58 Subsection (10) amended by No. 51 of 2001, s. 5, Applied:16 Jul 2001] The Council, at the request of a complainant, must provide the complainant with–

(a) full details of–

(i) the progress of the investigation into the matter; and

(ii) the person or persons conducting the investigation; and

(iii) the documents and records being examined; and

(b) copies of any documents, records or reports relating to the investigation free of charge.

59.   Compulsory conferences

(1)  At any time after receiving a complaint, the Council may require parties to a complaint to attend a conference to settle such part of the complaint that, in the opinion of the Council, may be settled between the parties.

(2)  A practitioner who is required to attend a conference must comply with that requirement.

(3)  The Council may make an application under section 72 in relation to a practitioner who fails without reasonable excuse to comply with subsection (2) .

(4)  If a party to a complaint, other than a practitioner, fails to attend a conference without reasonable excuse, the Council may dismiss the complaint.

(5)  If the parties to a complaint agree to settle, the Council may make any of the determinations specified in section 61 (2) (c) , (d) , (e) or (f) .

(6)  The making of a determination by the Council does not affect the power of the Council to investigate or hear any part of a complaint relating to the unprofessional conduct of a practitioner in respect of which a determination may be made under section 61 (2) .

(7)  The making of a determination by the Council for compensation to be paid in respect of pecuniary loss suffered by a person does not affect the right of that person to recover damages for that pecuniary loss in any other proceedings but any compensation so payable is to be taken into account in any damages awarded in those proceedings.

(8)  If the parties to a complaint do not agree to settle any matter, the Council is to hear the matter under section 60 .

60.   Hearing before Council

(1)  If, as a result of an investigation carried out under section 58 , the Council is of the opinion that any matter which is the subject of that investigation amounts to unprofessional conduct, the matter, subject to subsection (2) , is to be dealt with under this Division.

(2)  The Council may make an application under section 72 for the Tribunal to hear and determine any matter the Council considers –

(a) may amount to both unprofessional conduct and professional misconduct; or

(b) constitutes a course of conduct which ought to be determined by the Tribunal.

(3)  If the Council intends to hold a hearing as a result of an investigation, it is to serve a notice in writing on the practitioner to attend the hearing.

(4)  The Council may require a party to a complaint to provide evidence relating to the complaint.

(5)  [Section 60 Subsection (5) amended by No. 2 of 2001, s. 14, Applied:01 Jun 2001] The Council is to appoint one or more of its members to conduct a hearing under this section.

(6)  In respect of a hearing, the Council may do any or all of the following:

(a) summon any person whose evidence appears to be material to the hearing;

(b) proceed to hold a hearing in the absence of any person who has been duly summoned to appear;

(c) take evidence by affidavit;

(d) take evidence on oath or affirmation and, for that purpose, administer oaths and affirmations;

(e) require any person to produce or to authorize another person to produce any documents or records or class of documents or records in that person's possession or subject to that person's control that in the opinion of the Council appear to be material to the hearing;

(f) require a person who appears at the hearing to answer any questions that, in the opinion of the Council, appear to be material to the hearing;

(g) adjourn the hearing from place to place and from time to time;

(h) regulate its own procedure in relation to the hearing.

(7)  In respect of a hearing, the Council is not bound to observe the rules of law governing the admission of evidence but may inform itself of any matter in such manner as it thinks fit.

(8)  If a practitioner objects to answering a question put during the hearing –

(a) the objection is to be recorded in the minutes of the proceedings; and

(b) the answer to that question is not admissible against the practitioner in any criminal proceedings (except in proceedings under this Act or for perjury).

(9)  A person may not claim any professional privilege as a reason for failure to comply with a requirement made under subsection (6) (e) or (f) except with the written consent of the person in respect of whom the professional privilege is claimed.

(10)  The Council may make an application to the Tribunal under section 72 in relation to a practitioner who fails without reasonable excuse –

(a) to comply with a notice under subsection (3) ; or

(b) to make an oath or affirmation; or

(c) to produce or authorize another person to produce any documents or records when required to do so; or

(d) to answer any questions when required to do so; or

(e) to assist the course of an investigation.

(11)  If, at any time, during a hearing, the Council is of the opinion that the subject matter of the hearing should be dealt with under section 59 , it is to adjourn the hearing and direct the parties to the complaint accordingly.

(12)  The Council is to furnish the Legal Ombudsman with a copy of the notice served under subsection (3) .

61.   Determination of Council

(1)  If, after it has completed a hearing under section 60 , the Council is not satisfied that a practitioner is guilty of unprofessional conduct, the Council may make a determination accordingly.

(2)  If, after it has completed a hearing under section 60 , the Council is satisfied that a practitioner is guilty of unprofessional conduct, the Council may make any one or more of the following determinations:

(a) that the practitioner be admonished or reprimanded;

(b) that the practitioner pay a fine not exceeding $5 000 as it may specify;

(c) subject to subsection (4) , that the practitioner pay compensation of a specified amount to a specified person within a specified period;

(d) that the practitioner waive or repay the whole or part of any fees paid by or charged to a specified person in respect of specified work;

(e) that the practitioner carry out for a specified person such work, either free of charge or for such fee, as the Council may specify;

(f) that the practitioner waive any lien in respect of a specified document or class of document;

(g) that the practitioner undertake and complete a specified course of further legal education;

(h) that the practice of the practitioner be subject to periodic supervision or inspection by a specified person and for a specified period;

(i) that the practitioner seek appropriate advice in relation to the management of the practice of the practitioner from a specified person;

(j) that the practitioner cease to employ in the practice of the practitioner a specified person;

(k) that the practitioner employ in the practice of the practitioner a person belonging to a specified class of persons;

(l) thatthe practitioner cease to accept instructions in relation to a specified class of work for a specified period;

(m) that the practising certificate of the practitioner be endorsed with a condition restricting the practitioner from acting as a practitioner otherwise than in the course of employment by a practitioner holding an unrestricted practising certificate;

(n) that the practitioner pays any costs incurred by the Council in investigating and hearing a complaint.

(3)  A determination made under subsection (1) or (2) has no effect unless it is confirmed by at least 9 members of the Council.

(4)  A determination must not be made under subsection (2) (c) unless the parties consent to the making of the determination.

(5)  The making of a determination by the Council for compensation to be paid in respect of pecuniary loss suffered by a person does not affect the right of that person to recover damages for that pecuniary loss in any other proceedings but any compensation so payable is to be taken into account in any damages awarded in those proceedings.

(6)  If –

(a) the Council makes a determination under subsection (2) (b) or (c) ; and

(b) an application is not made under section 63 (1) –

the Council may, 21 days after making the determination, cause that determination to be sealed with the seal of the Society and filed in the Supreme Court as a judgment under the Supreme Court Civil Procedure Act 1932 .

(7)  A determination filed in the Supreme Court is enforceable under the provisions of the Supreme Court Civil Procedure Act 1932 as if it were a judgment under that Act.

(8)  Any fine imposed under this section is to be paid into the Guarantee Fund.

62.   Notice of determination

(1)  The Council, by notice in writing served on each party to a complaint, must state its determination and the reasons for the determination.

(2)  The Council is to furnish to the Legal Ombudsman a copy of any determination made by it under section 61 .

63.   Appeals against determinations

(1)  A person who is served with a notice of the determination of the Council may, within 21 days after the date of that determination, apply to have the matter to which the determination relates reheard by –

(a) the Tribunal under Division 2 ; or

(b) the Supreme Court under Division 3 .

(2)  If an application is made, the determination to which that application relates is of no effect on and from the date of that application.

64.   Referral of matters relating to professional misconduct

If, during an investigation or hearing under this Division, the Council is of the opinion that any matter which is the subject of the investigation or hearing amounts to professional misconduct, it must make an application –

(a) under section 72 for the Tribunal to hear and determine the matter; or

(b) to the Supreme Court to hear and determine the matter.

65.   Investigations committee

(1)  The Council may establish investigations committees consisting of such persons as the Council considers appropriate.

(2)  The function of an investigations committee is to investigate any matter relating to a complaint referred to it by the Council.

(3)  The Council may delegate to an investigations committee any of its functions or powers under sections 58 and 59 .

Division 1A - Informal proceedings

65A.   Appearance to explain certain matters

[Section 65A of Part 8 Inserted by No. 2 of 2001, s. 15, Applied:01 Jun 2001]

(1)  If the Council considers that a matter under section 58(5A) is to be dealt with under this Division, it may serve on the legal practitioner notice to appear before it to give an explanation of the matter.

(2)  The notice is to specify the date, time and place at which the legal practitioner is to appear.

(3)  The date specified for the appearance is to be at least 14 days after the date of service of the notice.

65B.   Determination

[Section 65B of Part 8 Inserted by No. 2 of 2001, s. 15, Applied:01 Jun 2001]

(1)  If, after hearing the explanation of a legal practitioner of a matter to which a complaint relates, the Council is satisfied that the legal practitioner is not guilty of the conduct to which the matter relates, it may dismiss the complaint.

(2)  If, after hearing the explanation of a legal practitioner of a matter to which a complaint relates, the Council is satisfied that the legal practitioner is guilty of the conduct to which the matter relates and considers the matter is not sufficiently serious to warrant a hearing under section 60 , the Council may make any one or more of the following determinations:

(a) that the legal practitioner be reprimanded;

(b) that the legal practitioner be cautioned;

(c) that the legal practitioner make an undertaking to take, or refrain from taking, any specified action;

(d) that the legal practitioner attend a course of training;

(e) that the legal practitioner make reparation;

(f) that the legal practitioner make an apology.

(3)  Failure to comply with an undertaking constitutes professional misconduct or unprofessional conduct under Part 8 .

65C.   Referral to Tribunal

[Section 65C of Part 8 Inserted by No. 2 of 2001, s. 15, Applied:01 Jun 2001]

(1)  If, during the hearing of an explanation of a matter, the Council considers the matter is more serious than initially considered, it is to –

(a) discontinue the hearing; and

(b) make an application under section 72 for the Tribunal to hear and determine the matter.

(2)  If a legal practitioner fails to comply with a notice served under section 65A , the Council is to make an application under section 72 for the Tribunal to hear and determine the matter relating to that failure.

Division 2 - The Disciplinary Tribunal

66.   Disciplinary Tribunal

(1)  There is established by this Act a Tribunal to be known as the Disciplinary Tribunal.

(2)  [Section 66 Subsection (2) amended by No. 2 of 2001, s. 16, Applied:01 Jun 2001] The Tribunal consists of 7 legal practitioners or barristers appointed by the judges from a panel of 15 legal practitioners or barristers of whom 3 are to be nominated by the Tasmanian Bar Association and the balance are to be nominated by the Society.

(3)  The members of the Tribunal are to elect a chairperson of the Tribunal from the members of the Tribunal.

(4)  The powers and functions of the Tribunal may be exercised and performed by any 3 or more of its members.

(5)  Schedule 4 has effect with respect to the membership of the Tribunal.

67.   Immunity of members of Tribunal

An action does not lie against a member of the Tribunal in respect of any act done by that member in good faith and in the exercise or purported exercise of any power conferred, or in the performance or purported performance of any function imposed, by this Act.

68.   Confidentiality

A member of the Tribunal or a person employed or engaged on work related to the affairs of the Tribunal must not divulge any information gained by virtue of that office or position except –

(a) in the course of carrying out the duties of the office or position; or

(b) as may be authorized by this Act; or

(c) as may be required by a court in relation to proceedings before the court.

69.   General functions and powers of the Tribunal

(1)  Subject to subsection (2) , the Tribunal must hear and determine any –

(a) matter relating to professional misconduct; and

(b) matter referred to in an application made under this Division.

(2)  If, during the course of a hearing, the Tribunal is of the opinion that a matter is one which should be heard and determined by the Supreme Court –

(a) it may refer the matter to the Supreme Court to be dealt with as an application under section 80 ; and

(b) it must suspend the hearing with effect from the date of the referral; and

(c) it must advise the parties accordingly.

(3)  If, during the course of a hearing, the Tribunal is of the opinion that a related matter may constitute professional misconduct, it may require the Council to conduct an investigation under section 58 .

(4)  The Tribunal may make orders and do all things necessary or convenient to be done for hearing and determining the matter to which an application underthis Division relates.

(5)  The Tribunal may make rules for regulating the making, hearing and determining of applications under this Division.

70.   Secretary to Tribunal

(1)  Subject to subsection (2) , the Tribunal may appoint a Secretary to the Tribunal to assist the Tribunal in the carrying out of its powers and functions under this Act.

(2)  The Tribunal must not appoint a person who is a member of the Council as Secretary to the Tribunal.

71.   Report of Tribunal

(1)  The Tribunal must –

(a) by 15 July in each year, submit a report to the Attorney-General stating the number of complaints received and the determinations made in respect of those complaints; and

(b) publish that report in any annual report prepared by the Society.

(2)  The Attorney-General may require the Tribunal to provide further information in relation to any matter contained in a report submitted under subsection (1) .

72.   Applications to Tribunal

(1)  Any person may make an application to the Tribunal to hear and determine a complaint.

(2)  An application –

(a) is to be made in writing; and

(b) is to specify the facts upon which the application is based; and

(c) is to be lodged with the Secretary to the Tribunal.

(3)  The Secretary to the Tribunal is to serve a copy of an application on all the other parties to the complaint.

(4)  The Tribunal may direct or authorize the amendment of an application at any time.

(5)  On receipt of an application, the Tribunal is to serve on the parties to the complaint a notice in writing specifying the date, time and place for the hearing of the application.

(6)  The date specified in a notice for the hearing of an application shall be a date that is 7 days or more after the date of service of the notice.

(7)  The Secretary to the Tribunal is to take all reasonable steps to ensure that a person who wishes to make an application is given such assistance as is necessary to enable that person to make the application in accordance with this section.

(8)  The Secretary to the Tribunal is to provide the Legal Ombudsman with a copy of –

(a) any application lodged under this section; and

(b) the notice specifying the date, time and place for the hearing of the application.

73.   Procedure of Tribunal

(1)  In respect of an application under this Division, the Tribunal may do any or all of the following:

(a) summon any person whose evidence appears to be material to the application;

(b) proceed to hear and determine the application or any part of the application in the absence of any party who has been summoned to appear before it;

(c) take evidence by affidavit;

(d) take evidence on oath or affirmation and, for that purpose, administer oaths and affirmations;

(e) require any person to produce or authorize another person to produce any documents or records or class of documents, or records in that person's possession or subject to that person's control that in the opinion of the Tribunal appear to be material to the application;

(f) require a person who appears before it, to answer any question that, in the opinion of the Tribunal, appears to be material to the application;

(g) require the Council to conduct any investigation the Tribunal considers necessary in order to hear and determine a complaint;

(h) require any person to assist the Council in such an investigation;

(i) adjourn the hearing of an application or any part of an application from place to place and from time to time;

(j) regulate its own procedure in relation to the hearing of an application.

(2)  The Tribunal may impose a fine not exceeding $5 000 on any person who, if required to do so under subsection (1) , neglects or fails, without reasonable excuse –

(a) to comply with a summons; or

(b) to make an oath or affirmation; or

(c) to produce or authorize another person to produce any documents or records when required to do so; or

(d) to answer any question when required to do so; or

(e) to assist the Council in an investigation.

(3)  Any fine imposed under subsection (2) is to be paid into the Guarantee Fund.

(4)  A person may not claim professional privilege as a reason for failure to comply with a requirement made under subsection (1) (e) or (f) except with the written consent of the person to whom the professional privilege relates.

74.   Procedure at hearing of application

(1)  At the hearing of an application under this Division, a party to the application may –

(a) be represented by a legal practitioner; and

(b) give evidence and examine any other person who gives evidence at the hearing; and

(c) give the Tribunal a written submission in respect of the matter to which the hearing relates.

(2)  The Tribunal may impose a fine not exceeding $5 000 on any person who –

(a) obstructs, hinders or interrupts the proceedings of the Tribunal; or

(b) threatens or insults a member of the Tribunal; or

(c) gives an answer or makes a statement which, to that person's knowledge, is false or misleading.

(3)  The Tribunal may refer the subject matter of an application to be heard and determined by the Council under Division 1 of this Part if, after taking into account any report made by the Council, it considers that the matter –

(a) relates to unprofessional conduct; or

(b) is an alleged failure to comply with, or contravention of, a regulation, rule or by-law made under this Act which is of such a nature that it ought to be heard and determined by the Council.

(4)  Any fine imposed under subsection (2) is to be paid into the Guarantee Fund.

75.   Evidence of conviction and sentence

At a hearing held under this Division, a certificate purporting to be signed by a proper officer of a court of this State, of a State or Territory of the Commonwealth or of a court in any jurisdiction relating to the conviction and sentencing of aperson by that court is admissible and is evidence of the contents of that certificate.

76.   Orders of Tribunal

(1)  After holding a hearing in respect of a complaint against a practitioner, the Tribunal may make any one or more of the following orders:

(a) an order dismissing the complaint;

(b) an order admonishing or reprimanding the practitioner;

(c) an order directing the practitioner to pay a fine not exceeding $20 000;

(d) an order directing that the practitioner be suspended from practising as a legal practitioner or barrister for such period as is specified in the order;

(e) an order directing that the practitioner be prohibited from practising as a legal practitioner or barrister otherwise than in accordance with such conditions as are specified in the order;

(f) an order directing the Registrar to remove the name of the practitioner from the roll of barristers or legal practitioners;

(g) an order in respect of costs including the costs incurred by the Council in investigating and hearing a complaint;

(h) an order directing that costs be taxed in accordance with the Rules of the Supreme Court 1962 ;

(i) if a person has suffered loss as a result of the professional misconduct or unprofessional conduct of the practitioner, an order directing the practitioner to pay compensation of a specified amount to the person within a specified period;

(j) an order that the practitioner undertake and complete a specified course of further legal education;

(k) an order that the practice of the practitioner be subject to periodic supervision or inspection by a specific person and for a specified period;

(l) an order that the practitioner seek appropriate advice in relation to the management of the practice of the practitioner from a specified person;

(m) an order that the practitioner cease to employ in the practice of the practitioner a specified person;

(n) an order that the practitioner employ in the practice of the practitioner a person belonging to a specified class of persons;

(o) an order that the practitioner cease to accept instructions in relation to a specified class of work for a specified period;

(p) an order that the practising certificate of the practitioner be endorsed with a condition restricting the practitioner from acting as a practitioner otherwise than in the course of employment by a practitioner holding an unrestricted practising certificate;

(q) an order that the practitioner waive or repay the whole or part of any fees paid by or charged to a specified person in respect of specified work;

(r) an order that the practitioner carry out for a specified person such work, either free of charge or for such fee, as the Tribunal may so specify;

(s) an order that the practitioner waive any lien in respect of a specified document or class of document;

(t) an order that the Council publish or broadcast an order under this section including a statement of findings.

(2)  The Tribunal may make an order imposing a fine not exceeding $2 000 on any practitioner who fails to comply with or contravenes any condition imposed under subsection (1) (e) or (p) .

(3)  An order must not be made under subsection (1) (i) unless the parties consent to the making of the order.

(4)  The amount of compensation payable under subsection (1) (i) is an amount not exceeding such sum as may be agreed from time to time between the Society and the Attorney-General.

(5)  The making of an order by the Council for compensation to be paid in respect of pecuniary loss suffered by a person does not affect the right of that person to recover damages for that pecuniary loss in any other proceedings but any compensation so payable is to be taken into account in any damages awarded in those proceedings.

(6)  An order must not be made under subsection (1) (i) in respect of any loss if the complainant has received or is entitled to receive compensation under Division 5 of Part 9 .

(7)  The Tribunal may cause an order made under subsection (1) (c) , (g) , (h) , (i) , (q) or (2) to be filed in the Supreme Court as a judgment under the Supreme Court Civil Procedure Act 1932 21 days after the date of that order.

(8)  An order filed in the Supreme Court is enforceable under the provisions of the Supreme Court Civil Procedure Act 1932 as if it were a judgment under that Act.

(9)  If a person fails to comply with an order made under subsection (1) (d) , (e) , (j) , (k) , (l) , (m) , (n) , (o) , (p) , (r) or (s) , the Council may apply to the Supreme Court for an appropriate order.

(10)  An order under this section, except an order under subsection (1) (d) or (f) , takes effect after the period within which an appeal may be instituted expires.

(11)  The Tribunal is to record an order made by it under this section together with the reasons for the order.

(12)  The Tribunal is to provide the Legal Ombudsman with a copy of any order made by it under this section together with the reasons for the order.

(13)  Any fine imposed under this section is to be paid into the Guarantee Fund.

77.   Publication of orders

(1)  Subject to subsection (2) , the Tribunal is to cause a copy of a record of an order made by it under section 76 (11) to be published in any publication which is circulated by the Society to the legal profession in this State.

(2)  The name of a party to a complaint to which the record of an order relates must not be published but may be substituted by such other form as the Tribunal considers appropriate.

78.   Appeals against orders of Tribunal

A party to a complaint who is aggrieved by an order made by the Tribunal under section 76 may –

(a) appeal against that order to the Supreme Court; and

(b) make an application to stay that order pending the determination of the appeal.

79.   Hearing and determination of appeal

(1)  An appeal under section 78 is to be made in accordance with the Rules of the Supreme Court 1965 and dealt with by way of rehearing.

(2)  The Supreme Court, in deciding an appeal against an order made by the Tribunal under section 76 , may –

(a) confirm that order; or

(b) vary that order; or

(c) quash that order; or

(d) substitute for that order any order that the Tribunal had jurisdiction to make; or

(e) refer the matter of the appeal to the Tribunal for rehearing; or

(f) make any other order, including an order in respect of costs, it thinks appropriate.

(3)  An order varied or substituted under subsection (2) takes effect on and from the date of the decision to vary or substitute the order.

Division 3 - Disciplinary proceedings before the Supreme Court

80.   Applications to Supreme Court

(1)  Any person may make an application to the Supreme Court to hear and determine a complaint.

(2)  An application under this section, unless the Supreme Court otherwise orders, is to be heard in open court and in accordance with the Rules of the Supreme Court 1965 .

(3)  Notice of an application made under this section is to be given to the parties to the complaint to which the application relates.

(4)  If the Supreme Court considers that an application relating to a complaint should be heard and determined by the Council or the Tribunal, it may refer that complaint to be heard and determined by the Council or Tribunal.

81.   Hearing and determination of application

The Supreme Court, in deciding an application made under section 80 , may –

(a) dismiss the application; or

(b) make any one or more of the orders specified in section 76 (1) ; or

(c) make a default order under section 111 ; or

(d) make any order, including an order in respect of costs, it thinks appropriate.

Division 4 - Legal Ombudsman

82.   Appointment of Legal Ombudsman

(1)  The Attorney-General may appoint a person to be a Legal Ombudsman for the purposes of this Part.

(2)  A person must not be appointed as a Legal Ombudsman if that person –

(a) is or has been a practitioner; or

(b) holds or has held a practising certificate; or

(c) is otherwise qualified in law; or

(d) [Section 82 Subsection (2) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] is a State Service officer or State Service employee.

(3)  A person appointed as a Legal Ombudsman is to be appointed for such term, not exceeding 3 years, and subject to such conditions as are specified in the instrument of appointment.

(4)  [Section 82 Subsection (4) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] The Legal Ombudsman, in the capacity as Legal Ombudsman, is not subject to the provisions of the State Service Act 2000 .

(5)  The Legal Ombudsman is entitled to such remuneration as is specified in the instrument of appointment.

(6)  Any remuneration payable to the Legal Ombudsman is payable out of the Guarantee Fund up to an amount not exceeding –

(a) $15 000 each year; or

(b) such greater amount as the Minister and the Council may agree.

83.   Vacation of office

(1)  The Legal Ombudsman, by notice in writing to the Attorney-General, may resign at any time.

(2)  The Attorney-General may remove the Legal Ombudsman from office by notice in writing.

84.   Temporary vacancy

(1)  If the Legal Ombudsman is absent from the State or is unable to carry out the functions of the office of Legal Ombudsman, the Attorney-General may appoint a person to act as Legal Ombudsman during the period of such absence or inability.

(2)  A person appointed under subsection (1) has the same powers and functions of the Legal Ombudsman for the period of that appointment.

85.   Powers and functions of Legal Ombudsman

(1)  The functions of the Legal Ombudsman are –

(a) to monitor written complaints and applications lodged under this Part; and

(b) to investigate and examine any complaints made by any person in respect of the manner in which an investigation or hearing under this Part has been dealt with; and

(c) to investigate any other matter relating to disciplinary proceedings under this Part as the Attorney-General may direct.

(2)  For the purposes of carrying out the functions specified in subsection (1) , the Legal Ombudsman may –

(a) require the Executive Director of the Society, or any member of the Council or Tribunal to furnish such information as may be necessary to carry out those functions; and

(b) attend any meeting of the Council or Tribunal during deliberations on an investigation or complaint; and

(c) take part in any such deliberations but not in a vote; and

(d) attend any hearing held under this Part.

(3)  Any person required to furnish information to the Legal Ombudsman must do so within such period as the Legal Ombudsman specifies.

86.   Annual report of Legal Ombudsman

(1)  The Legal Ombudsman, as soon as practicable after 31 December in each year, must make a report to the Attorney-General on the functions performed during the period of 12 months ending on thatdate.

(2)  A report is to include such recommendations as the Legal Ombudsman considers appropriate.

87.   Immunity of Legal Ombudsman

An action does not lie against the Legal Ombudsman in respect of any act done by the Legal Ombudsman in good faith and in the exercise or purported exercise of any power conferred, or in the performance or purported performance of any function imposed, by this Act.

88.   Disclosure of information

The Legal Ombudsman must not divulge any information gained by virtue of that office to any person other than –

(a) the Attorney-General; or

(b) the Society; or

(c) a person authorized by the Attorney-General to receive such information.

Division 5 - Miscellaneous

89.   Orders pending determination of complaint

(1)  If a complaint is made against a practitioner under this Part, the Supreme Court may, on application made to it and pending the determination of the complaint –

(a) make an order suspending the practitioner from practice; or

(b) make an order imposing such conditions on the right of the practitioner to practise as it thinks necessary; or

(c) make any other order it thinks fit.

(2)  An application under subsection (1) may be made ex parte.

90.   Power to remove name from roll

A power under this Part to remove the name of a person from the roll of barristers or legal practitioners includes a power –

(a) in the case of a person who is a barrister, to disbar that person; or

(b) [Section 90 Amended by No. 26 of 1999, s. 17, Applied:12 Jul 1999] in the case of a person who is an articled clerk–

(i) [Section 90 Amended by No. 26 of 1999, Sched. 1, Applied:12 Jul 1999] to terminate the articles of clerkship of that person; and

(ii) to terminate the limited right of audience granted to that person under section 45 ; and

(iii) to cancel a certificate issued to that person under section 41 (2) .

91.   Power to suspend from practice

[Section 91 Amended by No. 26 of 1999, s. 18, Applied:12 Jul 1999] A power under this Part to suspend a person from practising is a power, in the case of a person who is an articled clerk–

(a) [Section 91 Amended by No. 26 of 1999, Sched. 1, Applied:12 Jul 1999] to suspend the articles of clerkship of that person; or

(b) to suspend the limited right of audience granted to that person under section 45 .

92.   Referral of hearing involving crimes

(1)  If, during the course of any investigation or hearing, the Tribunal or Council is of the opinion that a crime has been committed it must –

(a) refer the subject matter of the hearing to the Director of Public Prosecutions; and

(b) suspend the hearing with effect from the date of the referral until –

(i) after criminal proceedings relating to that matter are concluded; or

(ii) the Director of Public Prosecutions advises the Tribunal or Council that no criminal proceedings are to be taken.

(2)  If a hearing is suspended, the Tribunal or Council may, if it thinks appropriate to do so –

(a) serve a notice in accordance with section 109 ; and

(b) suspend the practising certificate of the practitioner who is the subject of the hearing for any period not exceeding 30 days.

93.   Inherent jurisdiction of Supreme Court preserved

Nothing in this Part derogates from the inherent jurisdiction of the Supreme Court to discipline a practitioner.

PART 9 - Provisions Relating to Protection of Money

Division 1 - Interpretation

94.   Interpretation of Part 9

[Section 94 Amended by No. 62 of 1996, s. 3 and Sched. 1 ]In this Part, unless the contrary intention appears –

Court fund means a fund established under section 111 ;

designated trust deposit account means a trust deposit account designated by the Trust for the purposes of this Part;

default order means an order made by the Supreme Court under section 111 ;

lowest balance means the lowest daily balance in any trust financial institution account held by a firm or legal practitioner corporation;

prescribed deposit means an amount calculated by adding together –

(a) the lowest balance in a trust account held by a firm or legal practitioner corporation; and

(b) the amount in a trust deposit account on the final day of the prescribed period;

prescribed period means –

(a) a period of 3 months ending on and including the last day of March, June, September and December in each year; or

(b) where another period is prescribed, that other period.

Division 2 - Solicitors' Trust

95.   Solicitors' Trust

(1)  The Solicitors' Trust established under the Legal Practitioners Act 1959 is continued as a body corporate with a common seal.

(2)  The Trust –

(a) may acquire, hold, dispose of and otherwise deal with property; and

(b) may sue and be sued in its corporate name.

(3)  All courts and persons acting judicially must take judicial notice of the imprint of the common seal on a document and presume that it was duly sealed by the Trust.

96.   Membership of Trust

(1)  The Trust consists of the following members appointed by the Governor:

(a) 2 persons nominated by the Council and who are members of the Society;

(b) one person nominated by the Attorney-General and who is a member of –

(i) the Australian Society of Certified Practising Accountants; or

(ii) the Institute of Chartered Accountants in Australia.

(2)  The members of the Trust are to elect a chairperson of the Trust from the members of the Trust.

(3)  If a nomination under subsection (1) is not made within 30 days after the date on which that nomination is required by the Governor to be made, the Governor may appoint suitably qualified persons to be appointed under that subsection.

(4)  If a body referred to in paragraph (b) of subsection (1) changes its name the Governor may, by order, amend that paragraph by substituting the body's other name.

(5)  If a body referred to in paragraph (b) of subsection (1) ceases to exist, the Governor, on the recommendation of the Attorney-General, may by order, amend that paragraph by substituting the name of a body which the Governor is satisfied substantially represents the interests represented by the first-mentioned body.

(6)  Schedule 5 has effect with respect to the membership of the Trust.

(7)  Schedule 6 has effect with respect to the meetings of the Trust.

97.   Functions and powers of Trust

(1)  The function of the Trust is to administer and manage the Guarantee Fund.

(2)  The Trust may do all things necessary or convenient to perform its function.

(3)  The Trust may appoint and employ on such terms as it thinks fit such persons as may be necessary for the carrying out of its powers and functions under this Part.

98.   Trust deposit accounts

(1)  [Section 98 Subsection (1) amended by No. 74 of 1999, Sched. 2, Applied:01 Jan 2000] The Trust is to establish in an authorised deposit-taking institution in Tasmania as many accounts as it thinks fit to be known as trust deposit accounts.

(2)  The funds of a trust deposit account must consist of all money deposited to the credit of that account pursuant to –

(a) section 102 ; or

(b) section 105 ; or

(c) section 145 .

99.   Application of funds in trust deposit accounts

(1)  The Trust may invest so much of the funds of a trust deposit account as it thinks proper in any of the ways trustees are authorized to invest trust funds under the Trustee Act 1898 .

(2)  The Trust must apply any income arising from any funds invested by it under subsection (1) –

(a) firstly, in the payment of its operating expenses, including the remuneration of its members and the payment of persons appointed and employed by it under section 97 ; and

(b) secondly, in the creation and maintenance of the Guarantee Fund.

(3)  [Section 99 Subsection (3) amended by No. 62 of 1996, s. 3 and Sched. 1 ]A person who has a claim on a trust financial institution account is not entitled to –

(a) a particular amount of money in a trust deposit account; or

(b) a particular amount of money invested under subsection (1) ; or

(c) any interest received on such amounts.

100.   Accounts, reports and audit

(1)  The Trust must –

(a) keep proper accounts and records in relation to all of its operations; and

(b) as soon as practicable after 31 December in each year, prepare a statement of accounts exhibiting a true and correct view of the transactions of the Trust with respect to the period of 12 months ending on that date.

(2)  The statement of accounts prepared under subsection (1) is to be submitted to a company auditor appointed by the Trust for examination and certification.

(3)  The Trust must deposit with the Minister, the Council and the Registrar copies of the statement of accounts certified by a company auditor under subsection (2) .

(4)  The Trust must submit to the Minister and the Council a report in respect of its operations and financial position when required to do so by the Council or Minister.

(5)  For the purpose of enabling the Trust to keep proper accounts and records, the Society must make available when required by the Trust any of its accounts and records.

Division 3 - Trust accounts

101.   Trust accounts

(1)  [Section 101 Subsection (1) amended by No. 74 of 1999, Sched. 2, Applied:01 Jan 2000] [Section 101 Subsection (1) amended by No. 62 of 1996, s. 3 and Sched. 1 ]A firm or legal practitioner corporation must establish and maintain in an authorised deposit-taking institution in Tasmania at least one account to be called a trust financial institution account.

(2)  [Section 101 Subsection (2) amended by No. 62 of 1996, s. 3 and Sched. 1 ]A trust financial institution account is to be operated in accordance with the Rules of Practice made under this Act.

(3)  [Section 101 Subsection (3) amended by No. 62 of 1996, s. 3 and Sched. 1 ]Subject to subsection (5) , any money received by a firm, a member of a firm or by a member of a legal practitioner corporation, as a stakeholder is to be paid into the trust financial institution account of the firm or legal practitioner corporation until disbursed in accordance with the terms of any agreement entered into by any person for that purpose.

(4)  [Section 101 Subsection (4) amended by No. 62 of 1996, s. 3 and Sched. 1 ]Subject to subsection (5) , any money received for or on behalf of any person by a firm, a member of a firm or a member of a legal practitioner corporation is to be paid into the trust financial institution account of the firm or legal practitioner corporation until paid or disbursed as that person may direct.

(5)  [Section 101 Subsection (5) amended by No. 62 of 1996, s. 3 and Sched. 1 ]Any money received for or on behalf of a person by a firm or a member of a legal practitioner corporation is not required to be paid into the trust financial institution account if the person on whose behalf the money is received has given a written direction –

(a) that the money is not to be paid into the trust financial institution account; and

(b) [Section 101 Subsection (5) amended by No. 2 of 2001, s. 17, Applied:01 Jun 2001] that the money is to be disbursed in accordance with the direction.

(6)  Subsection (4) does not apply to money which –

(a) is received in payment of legal costs; or

(b) is not subject to a trust.

(7)  [Section 101 Subsection (7) amended by No. 62 of 1996, s. 3 and Sched. 1 ]A firm or legal practitioner corporation which has 2 or more offices may establish and maintain a separate trust financial institution account in respect of the business conducted at each of those offices.

(8)  A firm or legal practitioner corporation must not permit any money it receives which is subject to a trust to be mixed together with other money which is not subject to a trust.

(9)  [Section 101 Subsection (9) amended by No. 62 of 1996, s. 3 and Sched. 1 ]This section does not affect any claim or lien a firm or legal practitioner corporation may have against or upon any money in its trust financial institution account.

102.   Deposit of trust money

(1)  [Section 102 Subsection (1) amended by No. 62 of 1996, s. 3 and Sched. 1 ]A firm or legal practitioner corporation must, within 21 days after the end of a prescribed period, pay out of any of its trust financial institution accounts into a designated trust deposit account an amount that, taken together with an amount held by the firm or legal practitioner corporation in any trust deposit account, is not less than two-thirds of the prescribed deposit for that period.

(2)  The Council, on application being made to it, may exempt a firm or legal practitioner corporation from the provisions of subsection (1) for such period and subject to such conditions as it thinks fit.

(3)  If the Council exempts a firm or legal practitioner corporation, it may –

(a) revoke that exemption; or

(b) where it imposes a condition on that exemption, vary, revoke or amend that condition.

(4)  If, at the end of a prescribed period, the amount held by a firm or legal practitioner corporation in a designated trust deposit account exceeds two-thirds of the prescribed deposit for that period, the firm or legal practitioner corporation may apply to the Trust for repayment of that excess.

(5)  [Section 102 Subsection (5) amended by No. 62 of 1996, s. 3 and Sched. 1 ]A firm or legal practitioner corporation is not liable to pay an amount under subsection (1) if –

(a) the amount payable is less than $10 000, or such other amount as may be prescribed; and

(b) [Section 102 Subsection (5) amended by No. 2 of 2001, s. 18, Applied:01 Jun 2001] the firm or legal practitioner corporation submits to the Trust at its request a complete copy of all financial statements relating to any trust financial institution account of the firm or legal practitioner corporation in respect of the relevant period.

(6)  A firm or legal practitioner corporation which fails to deposit the required amount into a trust deposit account is liable to pay the Council interest on the amount not deposited for the period of the default at a rate fixed by the Council.

(7)  The Council may remit part or all of any interest paid under subsection (6) .

(8)  The Council must pay any interest received by it under subsection (6) into a trust deposit account established under section 98 .

103.   Withdrawals

(1)  [Section 103 Subsection (1) amended by No. 62 of 1996, s. 3 and Sched. 1 ]If a firm or legal practitioner corporation requires money which was paid from a trust financial institution account into a trust deposit account, it may draw a bill of exchange on the Trust up to the full amount that it has to its credit in the trust deposit account without regard to any withdrawal by the Trust from that trust deposit account.

(2)  The Trust is to conduct its affairs so as to enable it to meet any bill of exchange drawn pursuant to subsection (1) .

(3)  [Section 103 Subsection (3) amended by No. 62 of 1996, s. 3 and Sched. 1 ]A firm or legal practitioner corporation must –

(a) not draw a bill of exchange under subsection (1) unnecessarily; and

(b) recoup the trust deposit account on which such a bill of exchange was drawn at the first reasonable opportunity; and

(c) give the Trust every reasonable assistance in the carrying out of its functions and powers under this Part; and

(d) not do any act which reduces the lowest balance in its trust financial institution account without reasonable cause.

(4)  If, in the opinion of the Trust, a firm or legal practitioner corporation has failed to comply with the provisions of subsection (3) , the Trust is to report the matter to the Council.

(5)  On receipt of a report, the Council may require the firm or legal practitioner corporation to explain why it has contravened any provision of subsection (3) .

(6)  A bill of exchange drawn by a firm or legal practitioner corporation under this section is not to be drawn by a person other than a legal practitioner except on such terms and conditions as the Council may determine in each case.

104.   Interest on trust account

(1)  [Section 104 Subsection (1) amended by No. 74 of 1999, Sched. 2, Applied:01 Jan 2000] [Section 104 Subsection (1) amended by No. 62 of 1996, s. 3 and Sched. 1 ]The Society may enter into an agreement with an authorised deposit-taking institution for the institution to pay to the Society any payment calculated by reference to, or any interest accruing on, a trust account held by a firm or legal practitioner corporation.

(2)  Subsection (1) does not apply to separate interest accruing on a trust account maintained by a firm or legal practitioner corporation for the exclusive benefit of a particular client.

105.   Trust to invest interest

(1)  [Section 105 Subsection (1) amended by No. 74 of 1999, Sched. 2, Applied:01 Jan 2000] [Section 105 Subsection (1) amended by No. 62 of 1996, s. 3 and Sched. 1 ]The Society must pay to the Trust any payment or interest paid to it by an authorised deposit-taking institution under section 104 .

(2)  The Trust must pay any payment or interest received by it under subsection (1) into a trust deposit account.

(3)  The Trust must apply any payment or interest received by it under subsection (1) as provided in section 99 .

(4)  [Section 105 Subsection (4) amended by No. 62 of 1996, s. 3 and Sched. 1 ]A person who has a claim on a trust account held by a firm or legal practitioner corporation is not entitled to –

(a) any payment or interest made by a bank, building society or credit union under section 104 ; or

(b) any interest accruing on any such payment or interest.

106.   Audited accounts of interest

[Section 106 Amended by No. 62 of 1996, s. 3 and Sched. 1 ][Section 106 Amended by No. 74 of 1999, Sched. 2, Applied:01 Jan 2000] On or before 1 September in each year, the Trust must submit a report to the Society and the Minister containing audited accounts of any payment or interest received from an authorised deposit-taking institution under section 104 .

Division 4 - Solicitors' Guarantee Fund

107.   Solicitors' Guarantee Fund

(1)  The Solicitors' Guarantee Fund created and maintained under the Legal Practitioners Act 1959 is continued.

(1A)  [Section 107 Subsection (1A) inserted by No. 26 of 2002, s. 4, Applied:28 Jun 2002] The primary purpose of the Guarantee Fund is to provide compensation or exoneration as specified in section 112 .

(2)  [Section 107 Subsection (2) omitted by No. 26 of 2002, s. 4, Applied:28 Jun 2002] .  .  .  .  .  .  .  .  

(3)  The funds of the Guarantee Fund consist of –

(a) any money applied to the Guarantee Fund by the Trust under section 99 (2) (b) ; and

(b) any costs awarded to the Society or Trust in respect of an application or appeal made under this Part; and

(c) any other money made available to the Guarantee Fund.

108.   Application of funds of Guarantee Fund

(1)  The Trust may invest the funds of the Guarantee Fund in any of the ways trustees are authorized to invest trust funds under the Trustee Act 1898 .

(2)  The Trust must apply the funds of the Guarantee Fund –

(a) in the payment of any –

(i) remuneration payable to the Legal Ombudsman; and

(ii) [Section 108 Subsection (2) amended by No. 26 of 2002, s. 5, Applied:28 Jun 2002] [Section 108 Subsection (2) amended by S.R. 2008, No. 18, Applied:09 Apr 2008] costs incurred by a person appointed as manager under section 119(2)(b) , the Society or Trust in respect of an application or appeal under this Part; and

(iii) [Section 108 Subsection (2) amended by No. 26 of 2002, s. 5, Applied:28 Jun 2002] [Section 108 Subsection (2) amended by S.R. 2008, No. 18, Applied:09 Apr 2008] .  .  .  .  .  .  .  .  

(b) [Section 108 Subsection (2) amended by No. 26 of 2002, s. 5, Applied:28 Jun 2002] if those funds exceed the amount of $3.5 million or such greater amount as the Minister and the Council agree, in the payment of that excess for the following purposes and in the following percentages:

(i) 60% for the Legal Aid Commission or such other legal assistance scheme as the Minister may approve;

(ii) 5% for the Law Foundation of Tasmania;

(iii) 35% for the Law Society or any other purpose approved by the Minister on the recommendation of the Council.

(2A)  [Section 108 Subsection (2A) inserted by No. 26 of 2002, s. 5, Applied:28 Jun 2002] [Section 108 Subsection (2A) omitted by S.R. 2008, No. 18, Applied:09 Apr 2008] .  .  .  .  .  .  .  .  

(2B)  [Section 108 Subsection (2B) inserted by No. 26 of 2002, s. 5, Applied:28 Jun 2002] [Section 108 Subsection (2B) omitted by S.R. 2008, No. 18, Applied:09 Apr 2008] .  .  .  .  .  .  .  .  

(2C)  [Section 108 Subsection (2C) inserted by No. 26 of 2002, s. 5, Applied:28 Jun 2002] [Section 108 Subsection (2C) omitted by S.R. 2008, No. 18, Applied:09 Apr 2008] .  .  .  .  .  .  .  .  

(3)  The Minister and the Council may agree to alter the percentages referred to in subsection (2) .

Division 5 - Claims against defaulting legal practitioners

109.   Prohibition on withdrawal of certain property

(1)  [Section 109 Subsection (1) amended by No. 62 of 1996, s. 3 and Sched. 1 ]If the Council thinks it is necessary to do so to protect money or other property belonging to a person, it may cause a notice in writing to be served –

(a) [Section 109 Subsection (1) amended by No. 74 of 1999, Sched. 2, Applied:01 Jan 2000] on the manager of an authorised deposit-taking institution in which a firm or legal practitioner corporation keeps a trust financial institution account prohibiting the authorised deposit-taking institution from permitting a withdrawal from, or any other dealing with, that account (other than a deposit of money into that account) unless the Supreme Court otherwise orders; and

(b) on a person who holds on behalf of a firm or legal practitioner corporation any property (not being money in that trust financial institution account) prohibiting any dealing with that property unless the Supreme Court otherwise orders.

(2)  A notice takes effect immediately it is served and remains in force until –

(a) it is revoked under subsection (4) or section 110 (2) (c) ; or

(b) it is varied under section 110 (2) (b) .

(3)  A person who fails to comply with a notice is guilty of an offence and is liable on summary conviction to a fine not exceeding 100 penalty units.

(4)  The Council may revoke a notice at any time.

110.   Appeal against notice

(1)  A legal practitioner who is aggrieved by a notice referred to in section 109 may appeal to a judge.

(2)  A judge, in deciding an appeal against a notice under section 109 , may, by order –

(a) confirm that notice; or

(b) vary that notice; or

(c) revoke that notice.

(3)  A judge is to cause a copy of an order under subsection (2) to be served on the Council.

111.   Default order and Court fund

(1)  The following persons may apply to the Supreme Court for an order declaring a firm or legal practitioner corporation to be in default:

(a) the Society;

(b) a person who claims to have suffered loss or incurred liability of a kind referred to in section 112 as a result of a fiduciary default;

(ba) [Section 111 Subsection (1) amended by No. 51 of 2001, s. 6, Applied:16 Jul 2001] a person appointed as manager under section 119(2)(b) ;

(c) a firm or legal practitioner corporation who –

(i) has paid money to a person referred to in paragraph (b) ; or

(ii) [Section 111 Subsection (1) amended by No. 26 of 2002, s. 6, Applied:28 Jun 2002] has incurred liability as a result of a fiduciary default;

(d) [Section 111 Subsection (1) amended by No. 26 of 2002, s. 6, Applied:28 Jun 2002] [Section 111 Subsection (1) amended by S.R. 2008, No. 18, Applied:09 Apr 2008] .  .  .  .  .  .  .  .  

(2)  If a default order is made, a Court fund is to be established in the Supreme Court.

(3)  [Section 111 Subsection (3) amended by No. 26 of 2002, s. 6, Applied:28 Jun 2002] If a Court fund is established in respect of a firm or legal practitioner corporation, a right to claim against the firm or legal practitioner corporation gives rise to an additional right to claim against that Court fund.

(4)  If a Court fund is established in respect of a firm or legal practitioner corporation, the Supreme Court may make any order specified under section 119 (2) .

(5)  [Section 111 Subsection (5) amended by No. 62 of 1996, s. 3 and Sched. 1 ]There is to be paid into a Court fund established in respect of a firm or legal practitioner corporation –

(a) such money standing to the credit of any trust financial institution account and trust deposit account of that firm or legal practitioner corporation as the Supreme Court orders; and

(b) [Section 111 Subsection (5) amended by No. 26 of 2002, s. 6, Applied:28 Jun 2002] such money from the Guarantee Fund as is necessary to meet the requirements specified in section 112 .

(6)  [Section 111 Subsection (6) amended by No. 14 of 1998, s. 5, Applied:22 May 1998] [Section 111 Subsection (6) substituted by No. 26 of 2002, s. 6, Applied:28 Jun 2002] The Trust must pay into a Court fund such amount from the Guarantee Fund as is sufficient to enable the payment of 100 cents in the dollar in respect of –

(a) compensation and exoneration specified in section 112 to each person entitled to make, and who makes, a claim on that Court fund in the amount accepted and in accordance with any terms or conditions imposed under section 114 , subject to any orders made under section 115 ; and

(b) costs and compensation for lost interest directed by the Supreme Court under section 112(3) .

(6A)  [Section 111 Subsection (6A) inserted by No. 26 of 2002, s. 6, Applied:28 Jun 2002] The amount referred to in subsection (6) must be paid by the Trust notwithstanding that that amount exceeds the sum standing to the credit of the Guarantee Fund as at the close of business on the day on which an application was made for a default order in respect of which the Court fund was established.

(6B)  [Section 111 Subsection (6B) inserted by No. 26 of 2002, s. 6, Applied:28 Jun 2002] The Trust may determine the time or times at which such amounts are to be paid.

(6C)  [Section 111 Subsection (6C) inserted by No. 26 of 2002, s. 6, Applied:28 Jun 2002] In making a determination under subsection (6B) , the Trust may take into account –

(a) any other known fiduciary default and the likely claims resulting from it; and

(b) the amount of any other Court fund and any claims made or likely to be made on it; and

(c) the Trust's obligations to make payments under section 108(2)(a) ; and

(d) the Trust's obligations to pay the remuneration of a manager appointed under section 119(2)(b) or to indemnify the manager against liability pursuant to an order made by a judge under section 119(2)(b) .

(7)  [Section 111 Subsection (7) omitted by No. 26 of 2002, s. 6, Applied:28 Jun 2002] .  .  .  .  .  .  .  .  

(8)  [Section 111 Subsection (8) amended by No. 26 of 2002, s. 6, Applied:28 Jun 2002] If the Trust pays any amount into a Court fund under subsection (5) , the Trust may make an application to the Supreme Court for an order that that amount or a lesser amount be paid to the Trust by a firm, a member or former member of a firm or a legal practitioner corporation.

(9)  [Section 111 Subsection (9) amended by No. 26 of 2002, s. 6, Applied:28 Jun 2002] In determining whether to make an order on an application under subsection (8) or section 108(2C) , the Supreme Court is to take into account–

(a) the management of the trust accounts of the firm or legal practitioner corporation; and

(b) any matter relating to a fiduciary default and any investigations into that default; and

(ba) [Section 111 Subsection (9) amended by No. 26 of 2002, s. 6, Applied:28 Jun 2002] the membership of the firm at any relevant time; and

(c) any other relevant matter.

(10)  Any money paid into a Court fund is free from any equity which may affect a trust account or any property from which that money was derived.

(11)  A Court fund is not subject to marshalling for the exoneration of any other fund which is not a Court fund to which a person claiming on the Court fund may resort.

112.   Application of Court fund

(1)  [Section 112 Subsection (1) amended by No. 26 of 2002, s. 7, Applied:28 Jun 2002] A Court fund in respect of a firm or legal practitioner corporation is to be applied by the Supreme Court in–

(a) [Section 112 Subsection (1) amended by No. 2 of 2001, s. 19, Applied:01 Jun 2001] the compensation to a client for the loss of trust money or other property as a result of a fiduciary default if –

(i) the loss occurred wholly in this State whether in the course of legal practice in this State or in a participating State by a legal practitioner; or

(ii) the loss occurred both in this State and a participating State whether in the course of legal practice in this State or in a participating State by a local legal practitioner; or

(iii) the loss occurred in this State or a participating State or both in the course of legal practice in this State or in a participating State by a local legal practitioner but it is not possible to determine where the loss occurred; and

(b) the exoneration of any property of a client which the firm, a member of the firm or a member of a legal practitioner corporation mortgaged, pledged or charged without the authority of the client and otherwise than for the benefit of the client; and

(c) the compensation for a firm or legal practitioner corporation who has paid money because of liability incurred as a result of a fiduciary default.

(2)  [Section 112 Subsection (2) substituted by No. 26 of 2002, s. 7, Applied:28 Jun 2002] Compensation payable under subsection (1) does not include compensation for the loss of interest unless the Supreme Court directs otherwise under subsection (3) .

(3)  A Court fund in respect of a firm or legal practitioner corporation may be applied as the Supreme Court directs after taking into account any recommendations of the Society in –

(a) the payment of the costs incurred by any person –

(i) in connection with any application relating to the making of a default order pursuant to which the Court fund was established; and

(ii) in any proceedings consequential to the making of the default order; and

(iii) in connection with any application in respect of the Court fund; and

(b) the payment of compensation for the loss of interest.

113.   Vesting in Trust of rights

[Section 113 Amended by No. 26 of 2002, s. 8, Applied:28 Jun 2002] If a default order has been made in respect of a firm or legal practitioner corporation, the rights and interests of any person arising from any loss incurred in respect of which the default order was made are assigned to the Trust when an amount is paid out of a Court fund to that person and only to the extent of that amount.

114.   Claims against Court fund

(1)  If a Court fund is established, the Supreme Court may order the Trust –

(a) to advertise in such manner as the Supreme Court directs for claims to be made against the Court fund within such period as the Supreme Court may specify; and

(b) to ascertain any prospective claimants and notify them that claims may be made against the Court fund.

(2)  A claim is to be lodged with the Trust.

(3)  On receipt of a claim, the Trust may –

(a) accept the claim; or

(b) reject the claim in part or in whole.

(3A)  [Section 114 Subsection (3A) inserted by No. 26 of 2002, s. 9, Applied:28 Jun 2002] If the Trust is of the opinion that there is a reasonable possibility that the person lodging the claim may recover part or all of the loss to which the claim relates, the Trust may impose terms or conditions on the acceptance of the claim.

(4)  [Section 114 Subsection (4) substituted by No. 26 of 2002, s. 9, Applied:28 Jun 2002] If the Trust rejects a claim or imposes terms or conditions on the acceptance of a claim, it must notify in writing the person lodging the claim of the reasons for the rejection or the imposition of the terms or conditions.

115.   Review of rejection of claim or imposition of terms or conditions

(1)  [Section 115 Subsection (1) amended by No. 26 of 2002, s. 10, Applied:28 Jun 2002] A person who is aggrieved by the decision of the Trust to reject a claim, or to impose terms or conditions on the acceptance of a claim, under section 114 may apply to a judge to review the decision.

(2)  [Section 115 Subsection (2) amended by No. 26 of 2002, s. 10, Applied:28 Jun 2002] An application is to be made within a period of one month after receipt of a notification under section 114(4) , or within any further period the judge determines.

(3)  On the hearing of an application, a judge may –

(a) [Section 115 Subsection (3) amended by No. 26 of 2002, s. 10, Applied:28 Jun 2002] affirm the decision of the Trust to reject the claim, or to impose terms or conditions on the acceptance of the claim, in part or in whole; or

(b) quash that decision; or

(c) substitute another decision in place of that decision.

(4)  A judge, in determining an application, may make such order for costs as the judge considers just.

(5)  If an order for costs is made, the costs are recoverable only out of the Court fund in respect of which the application is made.

116.   Administration of Court fund

(1)  [Section 116 Subsection (1) substituted by No. 14 of 1998, s. 6, Applied:22 May 1998] In administering a Court fund, the Supreme Court may order –

(a) that an interim dividend be paid out of the Court fund to a person before all claims payable out of the Court fund have been determined; and

(b) that advance payments be paid out of the Court fund to a person who, in the opinion of the Supreme Court, is suffering personal hardship.

(2)  An order is not subject to an appeal.

(3)  [Section 116 Subsection (3) substituted by No. 26 of 2002, s. 11, Applied:28 Jun 2002] The Trust may enter into an agreement for the compromise or settlement of –

(a) any claim made; or

(b) any right to make a claim –

against a Court fund whether or not the loss to which the claim relates has been ascertained.

(3A)  [Section 116 Subsection (3A) amended by S.R. 2008, No. 18, Applied:09 Apr 2008] [Section 116 Subsection (3A) inserted by No. 26 of 2002, s. 11, Applied:28 Jun 2002] The Trust may do all things necessary or convenient to enter into or perform an agreement under subsection (3) including entering into an agreement with a manager appointed under section 119(2)(b) .

(4)  If a surplus of money remains in a Court fund after all claims against the Court fund have been satisfied, that surplus is to be paid to the Trust.

117.   Sale or disposal of practice

(1)  If the Supreme Court makes a default order in respect of a firm or legal practitioner corporation, it may make such furtherorders as it considers appropriate for the sale or disposal of –

(a) the practice of the firm or legal practitioner corporation; and

(b) the interests of any member of the firm or legal practitioner corporation; and

(c) personal property of the firm or legal practitioner corporation or a member of the firm or legal practitioner corporation used for or in connection with the practice of the firm or legal practitioner corporation.

(2)  The proceeds of a sale or disposal are to be applied –

(a) firstly, in defraying the expenses incurred in the sale or disposal; and

(b) secondly, in such manner as the Supreme Court may direct.

118.   Subrogation of innocent member of firm or legal practitioner corporation

A member of a firm or legal practitioner corporation who –

(a) has made a payment to a person in respect of any loss or damages incurred by that person as a result of a fiduciary default committed by another member of that firm or legal practitioner corporation; and

(b) was not a party to that fiduciary default –

is subrogated to the extent of that payment to all the rights and remedies of that person.

118A.   Meaning of "fiduciary default"

[Section 118A Inserted by No. 91 of 2001, s. 13, Applied:05 Dec 2001]

(1)  In this section –

amendment day means 16 July 2001, being the day of commencement of the Extension Act;

Extension Act means the Legal Profession Amendment Act (No. 2) 2001 .

(2)  In its application to this Division, paragraph (c) of the definition of fiduciary default in section 3 is taken to include a breach of duty of the kind referred to in the paragraph that occurred before the amendment day, but only in respect of a loss of money or property suffered after 1 July 1995.

(3)  Without limiting the generality of subsection (2) , a loss of money or property is taken to have been suffered after 1 July 1995 if, irrespective of when it actually occurred, the person who suffered the loss was not aware of it, and could not reasonably have been aware of it, until after that date.

(4)  This section has effect notwithstanding section 2 of the Extension Act.

Division 6 - Management of practices

119.   Management of practice

(1)  The Council may apply to a judge for an order to be made under this section in respect of a legal practitioner if it is satisfied –

(a) that the legal practitioner has died or cannot be located; or

(b) that the legal practitioner is unable to attend properly to the practice; or

(c) that a default order has been made in respect of the legal practitioner; or

(d) that it is necessary to do so for the protection of money or other property belonging to a person.

(2)  [Section 119 Subsection (2) amended by No. 62 of 1996, s. 3 and Sched. 1 ]On the hearing of an application in respect of a legal practitioner, a judge may make any or all of the following orders:

(a) an order authorizing the Council to serve a notice in writing –

(i) [Section 119 Subsection (2) amended by No. 74 of 1999, Sched. 2, Applied:01 Jan 2000] on the manager of an authorised deposit-taking institution in which a firm or legal practitioner corporation keeps a trust financial institution account prohibiting the authorised deposit-taking institution from permitting a withdrawal from, or any other dealing with, that account (other than the deposit of money into that account) unless the judge otherwise directs; or

(ii) on a person who holds on behalf of that firm or legal practitioner corporation any property (other than money in that trust financial institution account) prohibiting any dealing with that property unless the judge otherwise directs;

(b) an order appointing a person as manager of the practice of that legal practitioner;

(c) an order authorizing the Council to suspend the legal practitioner from practising as a legal practitioner for such period as is specified in the order;

(d) an order quashing or varying a notice served by the Council under section 109 ;

(e) any other order it thinks appropriate.

(3)  Without limiting the generality of paragraph (e) of subsection (2) , an order made in respect of a legal practitioner under that paragraph may be an order –

(a) in respect of the remuneration of a manager appointed pursuant to subsection (2) (b) ; or

(b) that the remuneration of the manager is payable –

(i) out of the estate of that legal practitioner; or

(ii) by the Trust out of the Guarantee Fund; or

(c) that the manager be indemnified wholly or in part by the Trust against liability arising in the course of the management of the practice of that legal practitioner; or

(d) as to the ownership of money and other property received by the manager in the course of the management of that practice.

(4)  A person appointed as manager pursuant to an order made under subsection (2) (b) –

(a) must be a legal practitioner; and

(b) is to be appointed for such period as is specified in the order or such further period as the judge making the order may determine.

(5)  If the Council serves a notice pursuant to an order made under subsection (2) (a) , the provisions of section 109 (2) , (3) and (4) apply to that notice as if it were a notice served under section 109 .

120.   Powers of managers

[Section 120 Amended by No. 62 of 1996, s. 3 and Sched. 1 ]A person appointed as manager under section 119 (2) (b) pursuant to an order made in respect of a legal practitioner may do any or all of the following:

(a) transact the business of the practice of that legal practitioner;

(b) operate the trust financial institution account and trust deposit account of that firm or legal practitioner corporation;

(c) take possession of any records, papers, books or documents relating to the practice of that legal practitioner;

(d) for the purposes of paragraph (c) , enter and remain on any premises which that person reasonably believes to contain those records, papers, books or documents;

(e) execute deeds and other instruments as attorney for that legal practitioner.

121.   Inspections of accounts

(1)  [Section 121 Subsection (1) amended by No. 62 of 1996, s. 3 and Sched. 1 ]The Council must allow a person authorized by the Trust to inspect –

(a) any account, register, book or other record maintained by a firm, legal practitioner corporation or person in relation to a trust financial institution account or a trust deposit account; or

(b) [Section 121 Subsection (1) amended by No. 74 of 1999, Sched. 2, Applied:01 Jan 2000] any trust financial institution account or trust deposit account or any records kept by an authorised deposit-taking institution in relation to such accounts.

(2)  The Trust is to reimburse the Council from the Guarantee Fund for any amount reasonably expended by it in respect of any inspection made under subsection (1) .

(3)  Any dispute as to the amount or method of reimbursement under subsection (2) is to be referred to and determined by the Master.

(4)  A determination by the Master is final.

Division 7 - Miscellaneous

122.   Disclosure of information

[Section 122 Amended by No. 62 of 1996, s. 3 and Sched. 1 ]A person, otherwise than in the course of duty, must not disclose any information in respect of any amount in a trust financial institution account or trust deposit account.

Penalty:  Fine not exceeding 20 penalty units.

122A.   Certain orders taken to be judgments of Supreme Court

[Section 122A Inserted by No. 26 of 2002, s. 12, Applied:28 Jun 2002] An order made by the Supreme Court under section 108(2C) or section 111(8) is taken to be a judgment of the Supreme Court and is enforceable under the Supreme Court Civil Procedure Act 1932 .

123.   Rules

(1)  The Council, with the approval of the Minister, may make rules for the purposes of this Part.

(2)  Without limiting the generality of subsection (1) , rules may make provisions with respect to –

(a) payments into and out of trust deposit accounts; and

(b) the drawing of bills of exchange under section 103 ; and

(c) the accounting system of the Trust.

PART 10 - Professional Indemnity Insurance

124.   Indemnity Rules

(1)  The Council may make rules with respect to the provision of indemnity against loss arising from claims in respect of any description of civil liability incurred by –

(a) a firm or legal practitioner corporation in connection with the practice of any of its members; and

(b) a person who was formerly a member of a firm or legal practitioner corporation in connection with the practice of any of its members.

(2)  Indemnity Rules may authorize or require the Society to –

(a) negotiate with an insurer or any other person, whether carrying on business in this State or not, with respect to the provision of professional indemnity insurance; and

(b) make any agreements or arrangements with an insurer or any other person, whether carrying on business in this State or not, with respect to the provision of such insurance.

(3)  Without limiting subsection (1) or (2) , the Indemnity Rules may –

(a) require any firm or legal practitioner corporation to make payments relating to such period as the Society may determine in connection with any premium or other money payable under any indemnity cover; and

(b) fix the amount of payments required to be made by a firm or legal practitioner corporation under paragraph (a) ; and

(c) specify the circumstances in which a firm or legal practitioner corporation is exempt from the Indemnity Rules; and

(d) empower the Council to take such steps as it considers necessary to ascertain whether or not the Indemnity Rules are being complied with; and

(e) contain incidental, procedural or supplementary provisions.

(4)  The Council may carry into effect any arrangements that it considers necessary for the provision of indemnity under or pursuant to the Indemnity Rules.

125.   Provision of information

(1)  For the purposes of the provision of professional indemnity insurance, the Society, by notice in writing, may require a legal practitioner or former legal practitioner to provide the Society with such information as is specified in the notice relating to –

(a) the number of persons the legal practitioner employs, or formerly employed, in the firm or legal practitioner corporation; and

(b) the duties performed by each of those persons; and

(c) the gross income the firm or legal practitioner corporation received from fees during a period specified in the notice; and

(d) any claims made against the legal practitioner in respect of any alleged civil liability arising from –

(i) the practice or former practice of the firm or legal practitioner corporation; or

(ii) the administration of any trust or deceased estate of which the legal practitioner is, or formerly was, a trustee, executor or administrator.

(2)  A person who is a member or former member of the Council or an employee or former employee of the Society must not communicate any information provided under subsection (1) to a person who is not –

(a) a member of the Council; or

(b) an employee of the Society; or

(c) a person with whom an agreement or arrangement has been made under section 124 (2) ; or

(d) an employee or agent of a person referred to in paragraph (c) .

Penalty:  Fine not exceeding 5 penalty units.

(3)  Subsection (2) does not apply to a communication that is made –

(a) for the purposes of proceedings in a court; or

(b) to the Attorney-General; or

(c) at any investigation or hearing of the Tribunal; or

(d) [Section 125 Subsection (3) amended by No. 76 of 2003, Sched. 1, Applied:01 Jan 2004] to a police officer acting in the course of duty.

126.   Inspection of indemnity insurance documents

(1)  The Society is to keep any documents relating to professional indemnity insurance at its office.

(2)  A legal practitioner or former legal practitioner for whom professional indemnity insurance is provided under any indemnity cover may –

(a) inspect any documents relating to that insurance free of charge; and

(b) make a copy of, or take extracts from, any of those documents free of charge.

PART 11 - Remuneration

127.   Interpretation of Part 11

In this Part, unless the contrary intention appears –

account means a bill of costs which is not itemized;

arbitrator means a person appointed under section 141 ;

client includes a person –

(a) who retains the services of a barrister or legal practitioner; and

(b) who is liable to pay or has paid any costs for the services of a barrister or legal practitioner whether or not the person retained the services of the barrister or legal practitioner; and

(c) for whom a firm or legal practitioner corporation holds money or other property on trust in the course of the business of that firm or legal practitioner corporation;

taxing officer means a person who is a taxing officer of the Supreme Court under section 10 (1) of the Supreme Court Act 1959 .

128.   Rules in respect of costs and taxation of costs

[Section 128 Amended by No. 32 of 1995, Sched. 1, Applied:30 Mar 1998] Except in so far as the Magistrates Court (Civil Division) Act 1992 or the Rules of the Supreme Court 1965 made under the Supreme Court Civil Procedure Act 1932 may provide in respect of the matters referred to in paragraph (a) , (b) or (c) , the Council may make rules–

(a) prescribing the means and conditions under which a legal practitioner is entitled to–

(i) recover any costs claimed by that legal practitioner; and

(ii) claim or enforce a lien on any property of a client in respect of costs claimed by that legal practitioner; and

(iii) issue an interim and a final account; and

(b) regulating the procedures for arbitration by an arbitrator of costs claimed, appropriated or recovered by a legal practitioner; and

(ba) [Section 128 Amended by No. 2 of 2001, s. 20, Applied:01 Jun 2001] regulating the procedures relating to taxation of costs; and

(bb) [Section 128 Amended by No. 2 of 2001, s. 20, Applied:01 Jun 2001] providing for the functions and powers of a taxing officer under this Act; and

(c) regulating the conditions under which a legal practitioner is entitled to charge interest.

129.   Remuneration by agreement

(1)  [Section 129 Subsection (1) amended by No. 2 of 2001, s. 21, Applied:01 Jun 2001] A legal practitioner and a client may enter into an agreement in writing that the legal practitioner is to be remunerated otherwise than in accordance with any scale of costs that may otherwise be applicable.

(2)  On the taxation of an itemized bill of costs a taxing officer or an arbitrator may set aside or amend an agreement where it appears that the agreement is unfair and unreasonable in the circumstances.

(3)  Where a taxing officer or an arbitrator sets aside or amends an agreement, the taxing officer or arbitrator may allow such costs as are appropriate in the circumstances.

130.   Accounts

(1)  A legal practitioner who wishes to commence an action against a client for the recovery of costs claimed in respect of services provided to the client must –

(a) serve an account of those costs on the client; and

(b) [Section 130 Subsection (1) amended by No. 2 of 2001, s. 22, Applied:01 Jun 2001] if an account is not itemised, inform the client that the account may, at the client's request, be itemized; and

(c) [Section 130 Subsection (1) amended by No. 2 of 2001, s. 22, Applied:01 Jun 2001] notify the client that a disputed itemized bill of costs may be submitted to a taxing officer under section 135 or an arbitrator under section 143 .

(2)  Service on a client of an account of costs may be made –

(a) by delivering the account to the client in person; or

(b) by sending it by post to the usual or last known place of residence or business of the client.

(3)  A legal practitioner must not charge a client for drawing or engrossing an account or itemized bill of costs which does not exceed one folio.

131.   Interim accounts

(1)  A legal practitioner may serve on a client an interim account for services provided to the client.

(2)  A legal practitioner may cease to represent a client who –

(a) has failed to pay an interim account within 30 days after the determination by an arbitrator under section 143 ; and

(b) has failed to give adequate security to cover costs as determined by the arbitrator.

132.   Itemized bill of costs

(1)  A legal practitioner, at the written request of a client, must serve the client with an itemized bill of costs setting out in detail all the services provided and the costs claimed in respect of each of those services.

(1A)  [Section 132 Subsection (1A) inserted by No. 2 of 2001, s. 23, Applied:01 Jun 2001] A client is to make a written request referred to in subsection (1) within 30 days after receipt of the bill of costs.

(2)  A legal practitioner who serves on a client an itemized bill of costs may charge the client an appropriate fee.

(3)  A legal practitioner must not charge a fee for the drawing and engrossing of an itemized bill of costs if the amount of an itemized bill of costs is less than the amount of the bill of costs originally given to the client.

(4)  Subject to taxation and arbitration, a client is liable to pay the total amount due as set out in an itemized bill of costs and any interest payable under section 137 .

133.   Recovery of costs

A legal practitioner must not commence an action against a client for the recovery of costs claimed in respect of services rendered to the client until 30 days after the service of an account or itemized bill of costs under section 130 , 131 or 132 .

134.   Appointment by Council of persons to tax costs

(1)  The Council may, from time to time, appoint such legal practitioners as it thinks necessary to tax an itemized bill of costs claimed against or recovered from a client.

(2)  A person appointed under subsection (1) may determine the rights and obligations of a legal practitioner and a client in respect of an itemized bill of costs pursuant to rules made under section 128 .

(3)  A determination in respect of an itemized bill of costs ceases to have effect upon the taxation of the bill of costs by a taxing officer pursuant to this Part.

135.   Taxation of costs

(1)  On application to the Registrar, an itemized bill of costs charged, claimed or recovered by a legal practitioner against a client is subject to taxation by a taxing officer.

(2)  Unless the Supreme Court or a judge otherwise orders, proceedings for the taxation of an itemized bill of costs paid to or recoverable by a legal practitioner are to be instituted within 12 months after the date on which it was paid or recovered.

(3)  If an application for the taxation of an itemized bill of costs is made, any proceedings for the recovery of a bill of costs are to be stayed until the application is determined.

135A.   Assistance to taxing officer

[Section 135A Inserted by No. 2 of 2001, s. 24, Applied:01 Jun 2001]

(1)  The Council may appoint persons to constitute a panel to assist taxing officers in taxing bills of costs under sections 58 and 135 .

(2)  A panel is to consist of 2 or more legal practitioners with expertise in relevant areas of legal practice.

136.   Matters considered in taxation of costs

(1)  In taxing an itemized bill of costs, a taxing officer is to have regard to the following matters:

(a) in the case of a bill of costs relating to the preparation of a deed, agreement or other legal document –

(i) the skill, labour and responsibility involved; and

(ii) the investigation carried out in respect of the title of any property conveyed or affected by the deed, agreement or legal document; and

(b) in any other case, the skill, labour, responsibility and expedition involved and the degree of preclusion from other work.

(2)  Subject to this section and any rules made under section 128 , a taxing officer may tax an itemized bill of costs in such manner as the taxing officer thinks fit.

136A.   Review of taxation of costs

[Section 136A Inserted by No. 2 of 2001, s. 25, Applied:01 Jun 2001] A person may request a review of a taxing officer's decision relating to the taxation of bills of costs under section 58 or 135 in the same manner as provided for under the Supreme Court Rules 2000 .

137.   Interest

(1)  On thetaxation of an itemized bill of costs, a taxing officer may allow interest at a rate determined by the taxing officer on money disbursed by a legal practitioner for a client.

(2)  Interest referred to in subsection (1) is payable from the date on which the legal practitioner paid the disbursement.

(3)  Interest is payable on any account served under section 130 from the date of that service.

(4)  Interest is payable on any interim account served under section 131 from the date of that service.

(5)  Interest under subsections (3) and (4) is payable –

(a) at a rate agreed between the legal practitioner and client; or

(b) [Section 137 Subsection (5) amended by No. 2 of 2001, s. 26, Applied:01 Jun 2001] if it is not so agreed, at the rate applicable to a liquidated debt under the Supreme Court Civil Procedure Act 1932 .

(6)  If the amount of an account is varied as a result of itemization, taxation or arbitration, interest on that account is payable in accordance with that variation.

138.   Security for costs

(1)  A legal practitioner may require a client to give reasonable security for future costs, fees, charges and disbursements.

(2)  A legal practitioner may cease to represent a client who fails to give reasonable security when required to do so.

139.   First charge and prior right to payment

(1)  Subject to any other Act, a legal practitioner who is employed to prosecute or defend any matter or proceedings in any court –

(a) is entitled to a first charge upon any property recovered or preserved; and

(b) has a prior right to payment out of that property for the taxed costs, charges and expenses as between legal practitioner and client in respect of those proceedings.

(2)  The court before which a matter or proceeding has been heard or is pending may make such orders as it thinks fit for taxation of, and for raising and paying, the costs, charges and expenses out of, any property recovered.

(3)  This section applies to an arbitration as if it were a proceeding in a court and the court may make declarations and orders accordingly.

140.   Delivering up of documents

(1)  Any person may apply to the Supreme Court for an order that a legal practitioner deliver up documents –

(a) held by the legal practitioner on behalf of that person; or

(b) relating to any proceedings taken or work done by the legal practitioner on behalf of that person.

(2)  The Supreme Court may make an order referred to in subsection (1) –

(a) notwithstanding the existence of a lien on the documents; and

(b) subject to such terms and conditions it thinks appropriate.

(3)  In making an order subject to any condition the Supreme Court is to take into account the rights of the legal practitioner to costs for services provided.

141.   Arbitrators

The Council may appoint a legal practitioner as an arbitrator for the purposes of this Part.

142.   Powers of arbitrator

(1)  An arbitrator may conduct an arbitration in respect of a dispute relating to an itemized bill of costs when the total amount does not exceed the prescribed sum.

(2)  In conducting an arbitration, an arbitrator is to mediate and settle a dispute without formality and with the least expense.

(3)  For the purposes of subsection (1) , the prescribed sum means the sum prescribed for the definition of a "small claim" under the Magistrates Court (Small Claims Division) Act 1989 .

143.   Determination of arbitrator

(1)  A legal practitioner or a client may submit a disputed itemized bill of costs to an arbitrator to determine the costs.

(2)  If both the legal practitioner and the client agree to arbitration, any determination by the arbitrator in respect of the disputed itemized bill of costs is evidence that the bill of costs so determined is proper and reasonable.

(3)  If the legal practitioner does not agree to arbitration, the arbitrator may determine the costs and such a determination is evidence that the bill of costs so determined is proper and reasonable.

(4)  An arbitrator must notify the legal practitioner and the client of any determination.

(5)  If the determination of an arbitrator results in an increase in the disputed itemized bill of costs, a client may apply for that increase to be reviewed at taxation within 30 days of that determination.

PART 11A - Information

143A.   Information for client

[Section 143A Inserted by No. 2 of 2001, s. 27, Applied:01 Jun 2001]

(1)  Before being retained by a client to provide legal services, a legal practitioner must give the prospective client a written statement setting out –

(a) details of the method of costing the legal services, billing intervals and arrangements; and

(b) the client's right to –

(i) negotiate a costs agreement with the legal practitioner; and

(ii) receive a bill of costs from the legal practitioner; and

(iii) request an itemised bill within 30 days after receipt of the bill of costs.

(2)  In urgent circumstances, the statement may be given orally before the legal practitioner is retained and is to be confirmed in writing as soon as practicable afterwards.

(3)  As soon as practicable after being retained by a client to provide legal services, a legal practitioner must give the client a concise written statement setting out the following:

(a) the name of the legal practitioner who is to primarily perform the work (except in the case of a sole practitioner who is to perform the work personally) and whether that person practises as a principal or an employee;

(b) if the whole or part of the work is to be performed by someone other than a legal practitioner, information relating to that fact;

(c) an estimate of the total legal costs, if reasonably practicable;

(d) if it is not reasonably practicable to estimate the total legal costs, a range of estimates of the total legal costs and an explanation of the major variables that may affect the calculation of those costs;

(e) if the legal services involve or are likely to involve litigation, an estimate of –

(i) the range of costs that may be recovered if the client is successful in that litigation; and

(ii) the range of costs the client may be ordered to pay if they are unsuccessful;

(f) the client's right to request a progress report in accordance with section 143G ;

(g) the avenues that are open to the client in the event of a dispute or complaint in relation to legal costs or the provision of the legal services;

(h) the address of the Law Society.

143B.   Information if another legal practitioner retained

[Section 143B Inserted by No. 2 of 2001, s. 27, Applied:01 Jun 2001]

(1)  If a legal practitioner intends to retain another legal practitioner on behalf of a client, the first legal practitioner must give the client a written statement before retaining the legal practitioner setting out the details specified in section 143A(1)(b) , (3)(c) and (d) in relation to the other legal practitioner, in addition to any information required to be given to the client under section 143A .

(2)  A legal practitioner retained or to be retained on behalf of a client by another legal practitioner is not required to give a statement to the client under section 143A , but must disclose to the first legal practitioner on request the information necessary for the first legal practitioner to comply with this section.

(3)  In urgent circumstances, the statement may be given orally before the legal practitioner is retained and is to be confirmed in writing as soon as practicable afterwards.

143C.   Form of statement

[Section 143C Inserted by No. 2 of 2001, s. 27, Applied:01 Jun 2001]

(1)  A statement under this Part –

(a) is to be expressed in clear plain language; and

(b) may be in a language other than English if the client is more familiar with that language.

(2)  If the legal practitioner is aware that the client is unable to read, the legal practitioner must arrange for the information required to be given to the client to be conveyed orally to the client in addition to providing the written statements.

143D.   Changes to be notified

[Section 143D Inserted by No. 2 of 2001, s. 27, Applied:01 Jun 2001] A legal practitioner must notify the client of any substantial change to anything included in a statement under section 143A , 143B or 143E(2) as soon as practicable after the legal practitioner becomes aware of that change.

143E.   Exceptions

[Section 143E Inserted by No. 2 of 2001, s. 27, Applied:01 Jun 2001]

(1)  A statement under section 143A , 143B or 143D is not required to be given in any of the following cases:

(a) if the total legal costs, excluding disbursements, are not likely to exceed $750;

(b) if the client has received statements under section 143A(1) and (2) at least twice in the previous 12 months and agrees in writing to waive the right to a statement;

(c) if the client is a public company, a subsidiary of a public company, a foreign company or a registered Australian body (within the meaning of the Corporations Law);

(d) if the client is a Minister acting in the capacity as such, a government department or statutory authority.

(2)  If a legal practitioner becomes aware that the total legal costs are likely to exceed $750, the legal practitioner must give the client a statement including the matters in section 143A(1) and (2) as soon as practicable.

(3)  This section does not affect or take away from any client's right –

(a) to receive progress reports in accordance with section 143G ; or

(b) to obtain reasonable information from the legal practitioner in relation to any of the matters specified in section 143A or 143B ; or

(c) to negotiate a costs agreement with a legal practitioner and to obtain a bill of costs from the legal practitioner.

143F.   Effect of failure to give information

[Section 143F Inserted by No. 2 of 2001, s. 27, Applied:01 Jun 2001] If a legal practitioner does not give to a client any information required to be given under this Part –

(a) on a taxation of a bill of costs, the taxed amount of the bill may be reduced by an amount considered by the person conducting the assessment to be proportionate to the seriousness of the failure to give the information; or

(b) in determining a dispute in relation to legal costs, the Council or Tribunal may reduce the amount of the legal costs by an amount considered by it to be proportionate to the seriousness of the failure to give the information.

143G.   Progress reports

[Section 143G Inserted by No. 2 of 2001, s. 27, Applied:01 Jun 2001] A legal practitioner must give a client a written report of the progress of the matter in relation to which the legal practitioner is retained within 7 days after receiving a request from the client to do so.

PART 12 - Unclaimed Money

144.   Interpretation

[Section 144 Amended by No. 62 of 1996, s. 3 and Sched. 1 ]In this Part, unclaimed money means any principal or interest –

(a) which is legally payable out of a trust financial institution account of a firm or legal practitioner corporation established under section 101 to a person so entitled; and

(b) which is not claimed by that person within 2 years after the date on which the entitlement accrued.

145.   Unclaimed money to be paid into trust deposit accounts

(1)  [Section 145 Subsection (1) amended by No. 62 of 1996, s. 3 and Sched. 1 ]A firm or legal practitioner corporation, as soon as practicable after money in its trust financial institution account becomes unclaimed money, may pay that unclaimed money into a trust deposit account established by the Trust under section 98 .

(2)  A firm or legal practitioner corporation who pays any unclaimed money into a trust deposit account under subsection (1) must provide the Trust with the details referred to in section 146 (2) within 7 days of that payment.

(3)  The Trust may pay any interest or income arising from any unclaimed money invested by it under section 99 (1) into the Guarantee Fund.

145A.   Using unclaimed money

[Section 145A Inserted by No. 2 of 2001, s. 28, Applied:01 Jun 2001]

(1)  The Trust, with the approval in writing of the Minister, may use any unclaimed money to find any person entitled to that money.

(2)  The Trust, if of the view that the cost of finding a person is likely to exhaust the whole or a substantial part of the unclaimed money, may pay the money into the Consolidated Fund.

146.   Register of unclaimed money

(1)  [Section 146 Subsection (1) amended by No. 62 of 1996, s. 3 and Sched. 1 ]A firm or legal practitioner corporation must keep a register of any unclaimed money in its trust financial institution account.

(2)  A register is to specify the following details relating to each unclaimed money:

(a) the name and address of the person entitled to that unclaimed money;

(b) the total amount due to that person;

(c) the description of that unclaimed money;

(d) the date of the last claim.

(3)  A firm or legal practitioner corporation must, on or before the last day of January in each year, lodge a copy of the register with the Trust.

(4)  On receipt of the copy of the register, the Trust is to cause that copy to be published in the Gazette and in the daily newspapers published and circulating in Tasmania.

(5)  A firm or legal practitioner corporation must make available the register at all reasonable times to any person for inspection at the office from which the firm or legal practitioner corporation normally carries on business.

147.   Claims for unclaimed money

(1)  A person who claims to be entitled to any unclaimed money paid into a trust deposit account pursuant to section 145 may make an application to the Trust for the payment of that unclaimed money.

(2)  If the chairperson of the Trust is satisfied that a person making an application in relation to unclaimed money is entitled to the payment of that unclaimed money, the chairperson may direct the Trust to pay such unclaimed money to that person.

(3)  A payment of unclaimed money may, if the Trust so decides, include such interest or income arising from the investment of such unclaimed money as the Trust may determine.

(4)  [Section 147 Subsection (4) inserted by No. 2 of 2001, s. 29, Applied:01 Jun 2001] The Trust is to pay into the Consolidated Fund any money that remains unclaimed 12 months after the date of publication of a copy of a register under section 146(4) .

PART 13 - Legal Practitioner Corporations

148.   Practising certificates for legal practitioner corporations

A legal practitioner corporation must not practise as a legal practitioner unless it is the holder of a practising certificate issued by the Council under section 150 .

Penalty:  Fine not exceeding 500 penalty units.

149.   Application for practising certificate

(1)  An application to the Council by a legal practitioner corporation for a practising certificate as a legal practitioner –

(a) is to be in a form approved by the Council; and

(b) must specify –

(i) the name of the applicant; and

(ii) the registered office of the applicant within Tasmania; and

(iii) the place or places where the applicant proposes to carry on the practice of the profession of the law; and

(iv) the names and addresses of the members and officers of the applicant; and

(c) is to be accompanied by –

(i) a copy of the memorandum and articles of association of the applicant certified by a statement by the secretary or an executive officer of the applicant to be a true copy of those memorandum and articles; and

(ii) any other prescribed document; and

(iii) the prescribed fee, if any.

(2)  If the Council is not satisfied as to the particulars provided in an application, the Council may –

(a) require the applicant to provide a statement of such further particulars as it may specify; and

(b) decline to consider the application until such a statement is so provided.

150.   Issue of practising certificates

(1)  The Council is to issue a practising certificate to a legal practitioner corporation to practise as a legal practitioner if it is satisfied –

(a) that the application is made in accordance with section 149 ; and

(b) as to the particulars contained in any statement required under section 149 (2) (a) ; and

(c) that the memorandum and articles of association of the company to which the application relates –

(i) comply with the requirements specified in section 151 ; and

(ii) are appropriate to a company formed for the purpose of practising the profession of the law.

(2)  The Council is to send the practising certificate to the applicant.

(3)  If the Council is not satisfied as to the matters referred to in subsection (1) and refuses to issue a practising certificate, it must –

(a) serve on the applicant a notice in writing of the refusal and the reasons for it; and

(b) refund any fee already paid under section 149 (1) (c) (iii) .

151.   Memorandum and articles of association

For the purposes of section 150 (1) (c) (i) , the memorandum and articles of association of a company are to provide that –

(a) the sole object of the company is to practise the profession of the law; and

(b) the directors of the company are to be natural persons –

(i) if there are more than 2 directors, each of whom holds a current practising certificate; or

(ii) if there are only 2 directors, one who holds a practising certificate and the other who is a person approved by the Council; and

(ba) [Section 151 Amended by No. 2 of 2001, s. 30, Applied:01 Jun 2001] if there is only one director, the director is to hold a current practising certificate; and

(c) a director of the company must not, without the approval of the Council, be a director of any other legal practitioner corporation; and

(d) the total voting rights exercisable at a meeting of the members of the company are to be held by directors or employees of the company who hold current practising certificates; and

(e) any share or interest in a share in the company and any right to participate in the distribution of the profits of the company is to be owned beneficially only by –

(i) a person who is a director or employee of the company and who holds a current practising certificate; or

(ii) a category of person approved by the Council; and

(f) if a person –

(i) ceases to be a director or employee of the company; or

(ii) ceases to hold a current practising certificate; or

(iii) ceases to be eligible to hold shares in the company; or

(iv) dies –

any shares held by that person are to be redeemed by the company and distributed amongst the remaining members of the company who are eligible to hold those shares or transferred to another person who is eligible to hold those shares; and

(g) if any shares are not redeemed or transferred within 6 months after the occurrence of any event referred to in paragraph (f) , the Council, the company or the person who seeks to dispose of the shares or his or her personal representative may apply to the Supreme Court for an order vesting the shares in a person appointed by the Supreme Court as trustee for sale to a person who is eligible to hold those shares; and

(h) the company is to provide the Council with particulars relating to the acquisition or disposition of any interest in a share immediately on that acquisition or disposition; and

(i) a person who holds shares in the company may only sell or dispose of those shares to another person who is eligible to hold those shares; and

(j) the Legal Profession Act 1993 restricts the alteration of the memorandum and articles of association.

152.   Notification of non-compliance with memorandum and articles of association

(1)  If the provisions contained in the memorandum and articles of association of a legal practitioner corporation are not complied with or are altered without the approval of the Council as required by section 153 , the legal practitioner corporation must, within 14 days of the non-compliance and by notice in writing, inform the Council accordingly.

(2)  On receipt of a notice of non-compliance, the Council may give such directions as it considers necessary to ensure the required compliance.

(3)  The Council may suspend the practising certificate issued to a legal practitioner corporation for such period as it thinks fit if, in its opinion, the legal practitioner corporation has failed to comply with –

(a) the provisions of subsection (1) ; or

(b) any directions of the Council made under subsection (2) ; or

(c) the provisions of section 153 .

153.   Alteration to memorandum or articles of association

A legal practitioner corporation must not make any alteration to its memorandum or articles of association unless the proposed alteration has been approved by the Council.

154.   Authority of practising certificate

A practising certificate issued to a legal practitioner corporation –

(a) authorizes the legal practitioner corporation to practise as a legal practitioner; and

(b) is in force on and from the date specified in the certificate for a period of 12 months commencing on that date unless the certificate ceases to be in force earlier.

155.   Applications for renewal of practising certificates

(1)  A legal practitioner corporation may apply to the Council for the renewal of a practising certificate for a further period of 12 months at any time before the expiry of the certificate.

(2)  An application –

(a) is to be in a form approved by the Council; and

(b) must contain such particulars as may be directed by the form; and

(c) is to be accompanied by the prescribed fee, if any.

(3)  If the Council is not satisfied as to the particulars provided in an application, the Council may –

(a) require the applicant to provide a statement of such further particulars as it may specify; and

(b) refuse to consider the application until such a statement is so provided.

156.   Issue of renewal of practising certificates

(1)  The Council is to issue a renewal of a practising certificate if it is satisfied –

(a) that the application is made in accordance with section 155 ; and

(b) as to the particulars contained in any statement required under section 155 (2) (b) ; and

(c) that the applicant has complied with any requirement under section 155 (3) (a) .

(2)  If the Council issues the renewal of a practising certificate, it is to send the approval to the applicant.

(3)  If the Council is not satisfied as to the matters referred to in subsection (1) and refuses to renew a practising certificate, it must –

(a) serve on the applicant a notice in writing of the refusal and the reasons for it; and

(b) refund any fee already paid under section 155 (2) (c) .

(4)  The Council may refuse to renew a practising certificate if the applicant has altered its memorandum and articles of association in contravention of section 153 .

(5)  If the renewal of a practising certificate is issued before the date on which the practising certificate ceases to be in force, the renewed practising certificate is in force for a period of 12 months commencing on that date.

(6)  If an application for the renewal of a practising certificate is made and not withdrawn before the date on which the practising certificate ceases to be in force and the renewal is not issued before that date –

(a) the practising certificate continues to be in force on and from that date until the renewal is issued, the application is withdrawn or the renewal is refused, whichever occurs first; and

(b) the renewed practising certificate continues to be in force for the remaining portion of the 12 months commencing on that date.

157.   List of legal practitioner corporations

(1)  The Council is to keep a list of legal practitioner corporations in respect of which it has issued practising certificates.

(2)  The Council is to cause to be entered in the list –

(a) the name of the legal practitioner corporation to which the practising certificate relates; and

(b) particulars of the following matters:

(i) its registered office;

(ii) the names and addresses of its members and officers;

(iii) the details of any suspension or cancellation ofthe practising certificate;

(iv) such other matters as the Council considers appropriate.

(3)  The Council may from time to time cause to be made in the list such alterations as it considers necessary.

(4)  The Council may, if it considers appropriate, cause a copy of the list to be published in the Gazette.

(5)  The Council is to make the list available at all reasonable times for inspection by any person at its office.

158.   Evidentiary provision with respect to list

(1)  The production of a copy of the Gazette containing a copy of the list kept under section 157 (1) is evidence in any proceedings of the existence of the practising certificates indicated in the list.

(2)  A certificate, copy or extract certificate certified by the President of the Society to be a true copy of the list kept under section 157 (1) or an entry in that list is, unless the contrary is shown, evidence of the facts stated in that certificate, copy or extract or entry.

159.   Appeals

(1)  If the Council refuses to issue or renew a practising certificate under this Part, the applicant may appeal to a judge against the refusal.

(2)  An appeal is to be made within 21 days after a notice is served under section 150 (3) (a) , 156 (3) (a) or 162 (5) (a) .

(3)  An appeal is to be instituted, heard and determined in accordance with the Rules of the Supreme Court.

(4)  If on hearing an appeal a judge is satisfied that in all the circumstances of the case a practising certificate should have been issued or renewed, the judge is to make an order directing that a practising certificate be issued or renewed and be in force on and from such date as is specified in the order.

(5)  The Council is to give effect to any order made under subsection (4) .

160.   Liability of members

(1)  A member of a legal practitioner corporation who holds voting rights in that corporation is jointly and severally liable with all other directors of that legal practitioner corporation for the acts or omissions of the legal practitioner corporation in the course of, or in connection with, its practice of the profession of the law.

(2)  A member of a legal practitioner corporation who has made a payment to a person in respect of any loss or damages incurred by that person as a result of any act or omission of another member of that legal practitioner corporation is entitled to be indemnified by that other member in respect of that payment.

161.   Offences by legal practitioner corporations

(1)  If an offence against this Act is committed by a legal practitioner corporation, every person concerned in the management of that corporation is deemed also to have committed the offence and may be convicted of the offence, unless that person proves that the act or omission constituting the offence took place without that person's knowledge or consent.

(2)  A person referred to in subsection (1) may be convicted of an offence under that subsection whether or not the legal practitioner corporation is charged with or convicted of the offence.

162.   Foreign corporations

(1)  In this section, foreign corporation means a body corporate other than a body incorporated under the law of this State.

(2)  A foreign corporation may apply to the Council for a practising certificate as a legal practitioner corporation.

(3)  An application –

(a) is to be made in a form approved by the Council; and

(b) is to be accompanied by such documents as the Council may determine; and

(c) is to be accompanied by the prescribed fee, if any.

(4)  The Council may issue a practising certificate to a foreign corporation if the Council is satisfied that –

(a) the foreign corporation substantially corresponds to a corporation that may be formed as a legal practitioner corporation under this Part; and

(b) the foreign corporation is entitled to practise as a practitioner in the place at which, in the opinion of the Council, it has its principal place of business; and

(c) a legal practitioner corporation is entitled to practise as a practitioner in that place under similar terms to those under which it is entitled to practise under this Act.

(5)  If the Council is not satisfied as to the matters referred to in subsection (4) and refuses to issue a practising certificate to a foreign corporation, it must –

(a) serve on the foreign corporation a notice in writing of the refusal and the reasons for it; and

(b) refund any fee already paid under subsection (3) (c) .

(6)  A foreign corporation must not practise as a legal practitioner unless it is the holder of a practising certificate issued under this section.

Penalty:  Fine not exceeding 500 penalty units.

PART 14 - Miscellaneous

163.   

164.   False and misleading statements

A person must not, in giving any information relating to an application under this Act –

(a) make a statement knowing it to be false or misleading; or

(b) omit any matter from a statement knowing that without that matter the statement is false or misleading.

Penalty:  Fine not exceeding 20 penalty units.

165.   Protection from liability

(1)  A member of the Council, a delegate under section 11 or an arbitrator is not personally subject to any liability, action, claim or demand in respect of any act done, purported to be done or omitted to be done in good faith in theexercise of a power or the performance of a function under this Act.

(2)  A liability that would, but for this section, attach to a member of the Council, a delegate under section 11 or an arbitrator attaches to the Society.

166.   Regulations

(1)  The Governor may make regulations for the purposes of this Act, other than the matters in respect of which the Council, the Tribunal or the Board may make rules and the Society may make by-laws under this Act.

(2)  Without limiting the generality of subsection (1) , regulations may be made for or with respect to the fees payable under this Act.

(3)  Regulations made under this section may –

(a) apply generally or be limited in their application by reference to specified exceptions or specified factors; and

(b) apply differently according to different factors, limitations or restrictions of a specified kind; and

(c) authorize any matter or thing to be from time to time determined, applied or regulated by any specified person or body.

(4)  Regulations under this section may –

(a) provide that a contravention of, or a failure to comply with, any of the regulations is an offence; and

(b) in respect of any such offence, provide for the imposition of a fine not exceeding 100 penalty units and, in the case of a continuing offence, a further penalty of a fine not exceeding 10 penalty units for each day during which the offence continues.

167.   Repeal

The enactments specified in Schedule 7 are repealed.

168.   Savings and transitional provisions

The savings and transitional provisions set out in Schedule 8 have effect.

169.   Administration of Act

Until an order is made under section 4 of the Administrative Arrangements Act 1990 –

(a) the administration of this Act is assigned to the Minister for Justice; and

(b) the Department responsible to the Minister for Justice is the Department of Justice.

SCHEDULE 1 - Provisions with Respect to Members of Board

Section 19 (7)

1.   Interpretation

In this Schedule –

deputy means a person appointed as a deputy under clause 5 ;

member means a member of the Board.

2.   Term of office

A member, other than the Attorney-General, is to be appointed for such period, not exceeding 3 years, as is specified in the member's instrument of appointment.

3.   Holding other office

The holder of an office who is required under any Act to devote the whole of his or her time to the duties of that office, is not disqualified from –

(a) holding that office and also the office of a member or deputy; or

(b) accepting any remuneration payable to a member or deputy.

4.   Remuneration of members

A member or deputy is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister determines.

5.   Appointment of deputy

(1) A member, with the approval of the Minister, may appoint another person to be the deputy of that member.

(2) A deputy appointed under subclause (1) holds office for such period as the Minister may determine.

(3) All things done or omitted to be done by a deputy while acting in the office of a member are as valid and have the same consequences as if they had been done or omitted to be done by that member.

6.   Vacation of office

(1) A member may resign from office by written notice addressed to the Minister.

(2) A member vacates office if he or she –

(a) dies; or

(b) resigns; or

(c) is removed from office under subclause (3) , (4) or (5) .

(3) The Minister may only remove a member from office if the member –

(a) is absent from 4 consecutive meetings of the Board without the permission of the Minister; or

(b) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with the member's creditors or makes an assignment of the member's remuneration or estate for their benefit; or

(c) is convicted, in Tasmania or elsewhere, of a crime or an offence punishable by imprisonment for 12 months or longer; or

(d) is convicted of an offence against this Act.

(4) The judges may remove a member or deputy from office if they are satisfied that the member is unable to perform adequately or competently the duties of office.

(5) The Minister may remove a member from office if –

(a) the Minister is satisfied, having regard to the information supplied by the person who, or the association, organization or body which, nominated that member, that the member is no longer qualified to be a member of the Board; or

(b) that person, association, organization or body recommends the removal of that member.

(6) The appointment of any deputy of a member terminates if that member is removed from office pursuant to subclause (5) .

7.   Filling of casual vacancies

If the office of a member becomes vacant, the Minister may appoint a person to the vacant office for the remainder of that member's term of office.

8.   Validity of proceedings

(1) An act or proceeding of the Board or of a person acting under the direction of the Board is not invalid by reason only that at the time when the act or proceeding was done, taken or commenced, there was a vacancy in the membership of the Board.

(2) An act or proceeding of the Board or of a person acting under the direction of the Board is valid even if –

(a) the appointment of a member of the Tribunal was defective; or

(b) a person appointed as a member of the Tribunal wasdisqualified from acting as, or incapable of being, such a member.

9.   Presumptions

In any proceedings by or against the Board, unless evidence is given to the contrary, proof is not required of –

(a) the constitution of the Board; or

(b) any resolution of the Board; or

(c) the appointment of any member or deputy; or

(d) the presence of a quorum at any meeting of the Board.

SCHEDULE 2 - Provisions with Respect to Meetings of Board

Section 19 (8)

1.   Interpretation

In this Schedule, member means a member of the Board or the deputy of a member.

2.   Convening of meetings of the Board

A meeting of the Board may be convened by the chairperson or by any 2 members.

3.   Procedure at meetings

(1) The quorum at any duly convened meeting of the Board is 4 members.

(2) Any duly convened meeting of the Board at which a quorum is present is competent to transact any business of the Board.

(3) Questions arising at a meeting of the Board are to be determined by a majority of votes of the members present and voting.

4.   Chairperson

(1) The chairperson of the Board or his or her deputy is to preside at all meetings of the Board.

(2) If the chairperson of the Board or his or her deputy is not present at a meeting of the Board, a member elected by the members present is to preside at that meeting.

(3) The person presiding at a meeting of the Board has a deliberative vote and, in the event of an equality of votes, also has a casting vote.

5.   Minutes

The Board is to cause full and accurate minutes to be kept of its proceedings at meetings and must submit to the Minister a copy of the minutes of each meeting within 14 days after the date on which the meeting is held.

6.   General procedure

Subject to this Schedule, the procedure for the calling of, and for the conduct of business at, meetings of the Board are as determined by the Board.

SCHEDULE 3

PART 1 - Oath for Barristers and Legal Practitioners

Section 31 (2)

PART 2 - Oath for Articled Clerks

Section 41 (1) (c)

SCHEDULE 4 - Provisions with Respect to Membership of Tribunal

Section 66 (5)

1.   Interpretation

In this Schedule –

member means a member of the Tribunal;

substitute member means a person appointed under clause 5 to act as a substitute of a member.

2.   Term of office

A member is to be appointed for such term, not exceeding 3 years, as is specified in the instrument of appointment.

3.   Holding other office

The holder of an office who is required under any Act to devote the whole of his or her time to the duties of the office, is not disqualified from –

(a) holding that office and also the office of a member or substitute member; or

(b) accepting and retaining any remuneration payable to a member or substitute member.

4.   Remuneration of members

A member or substitute member is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister determines.

5.   Appointment of substitute

(1) The members present at a meeting of the Tribunal may elect a member to act as substitute in the office of the chairperson of the Tribunal or appoint any person to act as substitute in the office of a member other than the chairperson of the Tribunal while the chairperson of the Tribunal or that member is absent from office through illness or any other cause.

(2) For the purposes of subclause (1) , a member, other than the chairperson of the Tribunal, is absent from office if the member is acting in the office of the chairperson of the Tribunal pursuant to subclause (1) .

(3) For the purposes of subclause (1) , a member is absent from office if there is a vacancy in that office which has not been filled in accordance with clause 7 .

(4) All things done or omitted to be done by a substitute member while acting in the office of a member are as valid and have the same consequences as if they had been done or omitted to be done by that member.

6.   Vacation of office

(1) A member may resign from office by written notice addressed to the judges.

(2) A member vacates office if he or she –

(a) dies; or

(b) resigns; or

(c) is removed from office under subclause (3) or (4) .

(3) The judges may only remove a member from office if the member –

(a) becomes bankrupt, applies to take the benefit of any law from the relief of bankrupt or insolvent debtors, compounds with the member's creditors or makes an assignment of the member's remuneration or estate for their benefit; or

(b) is convicted, in Tasmania or elsewhere, of a crime or an offence punishable by imprisonment for 12 months or longer; or

(c) is convicted of an offence against this Act.

(4) The judges may remove a member or substitute member from office if they are satisfied that the member or substitute member is unable to perform adequately or competently the duties of office.

7.   Filling of casual vacancies

If the office of a member becomes vacant, the judges may appoint a person to the vacant office for the remainder of that member's term of office.

8.   Validity of proceedings

(1) An act or proceeding of theTribunal or of a person acting under the direction of the Tribunal is not invalid by reason only that at the time when the act or proceeding was done, taken or commenced, there was a vacancy in the membership of the Tribunal.

(2) An act or proceeding of the Tribunal or of a person acting under the direction of the Tribunal is valid even if –

(a) the appointment of a member of the Tribunal was defective; or

(b) a person appointed as a member of the Tribunal was disqualified from acting as, or incapable of being, such a member.

SCHEDULE 5 - Provisions with respect to membership of trust

Section 96 (6)

1.   Interpretation

In this Schedule –

member means a member of the Trust;

substitute member means a person appointed under clause 5 to act as a substitute for a member.

2.   Term of office

A member is to be appointed for such term, not exceeding 3 years, as is specified in the instrument of appointment.

3.   Holding other office

The holder of an office who is required under any Act to devote the whole of his or her time to the duties of that office, is not disqualified from –

(a) holding that office and also the office of a member; or

(b) accepting and retaining any remuneration payable to a member.

4.   Remuneration of members

A member or substitute member is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Society, with the approval of the Minister, determines.

5.   Appointment of substitute

(1) The members present at a meeting of the Trust may elect a member to act as substitute in the office of the chairperson of the Trust or appoint any person to act as substitute in the office of a member other than the chairperson of the Trust while the chairperson of the Trust or that member is absent from office through illness or any other cause.

(2) For the purposes of subclause (1) , a member, other than the chairperson of the Trust, is absent from office if the member is acting in the office of the chairperson of the Trust pursuant to subclause (1) .

(3) For the purposes of subclause (1) , a member is absent from office if there is a vacancy in that office which has not been filled in accordance with clause 7 .

(4) All things done or omitted to be done by a substitute member while acting in the office of a member is as valid, and has the same consequences, as if they had been done or omitted to be done by that member.

6.   Vacating of office

(1) A member may resign from office by written notice addressed to the Governor.

(2) A member vacates office if he or she –

(a) dies; or

(b) resigns; or

(c) is removed from office under subclause (3) or (4) .

(3) The Governor may remove a member from office if the member –

(a) is absent from 4 consecutive meetings of the Trust without the permission of the Council; or

(b) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with the member's creditors or makes an assignment of the member's remuneration or estate for their benefit; or

(c) is convicted, in Tasmania or elsewhere, of a crime or an offence punishable by imprisonment for 12 months or longer; or

(d) is convicted of an offence against this Act.

(4) The Governor may remove a member or substitute member from office –

(a) if satisfied that the member or substitute member is unable to perform adequately or competently the duties of office; or

(b) on the recommendation of the Minister after advice from the Council.

7.   Filling of casual vacancies

If the office of a member becomes vacant, the Minister may appoint a person on the nomination of the Council to the vacant office for the remainder of that member's term of office.

8.   Validity of proceedings

(1) An act or proceeding of the Trust or of a person acting under the direction of the Trust is not invalid or prejudiced by reason only that at the time when the act or proceeding was done, taken or commenced, there was a vacancy in the membership of the Trust.

(2) An act or proceeding of the Trust or of a person acting under the direction of the Trust is valid and has effect, even if –

(a) the appointment of a member of the Trust was defective; or

(b) a person appointed as a member of the Trust was disqualified from acting as, or incapable of being, such a member.

9.   Presumptions

In any proceedings by or against the Trust, unless evidence is given to the contrary, proof is not required of –

(a) the constitution of the Trust; or

(b) any resolution of the Trust; or

(c) the appointment of any member; or

(d) the presence of a quorum at any meeting of the Trust.

SCHEDULE 6 - Provisions with respect to meetings of trust

Section 96 (7)

1.   Interpretation

In this Schedule, member means a member of the Trust or substitute for that member.

2.   Convening of meetings

A meeting of the Trust may be convened by the chairperson or by any 2 members.

3.   Procedure at meetings

(1) The quorum at any duly convened meeting of the Trust is 2 members.

(2) Any duly convened meeting of the Trust at which a quorum is present is competent to transact any business of the Trust.

(3) Questions arising at a meeting of the Trust are to be determined by a majority of votes of the members present and voting.

4.   Chairperson

(1) The Trust, as soon as practicable after 1 July in each year, is to choose one of its members to be the chairperson of the Trust for the period ending on 31 December in that year.

(2) The chairperson of the Trust is to preside at all meetings of the Trust at which the chairperson is present.

(3) If the chairperson of the Trust is not present at a meeting of the Trust, a member elected by the members present is to preside at that meeting.

(4) The chairperson of the Trust or the member presiding at a meeting of the Trust pursuant to subclause (3) has a deliberative vote and, in the event of an inequality of votes, also has a casting vote.

5.   Minutes

The Trust is to cause full and accurate minutes to be kept of its proceedings at meetings.

6.   General procedure

Subject to this Schedule, the procedure for the calling of, and for the conduct of business at, meetings of the Trust are as determined by the Trust.

SCHEDULE 7 - Repeals

Section 167

SCHEDULE 8 - Savings and transitional provisions

Section 168

1.   Interpretation

In this Schedule –

fidelity bond means a fidelity bond lodged pursuant to Part VI of the repealed Act ;

repealed Act means the Legal Practitioners Act 1959 .

2.   Entitlement to practise

A person who, immediately before the commencement of this Act, is entitled to practise as a practitioner or barrister under the repealed Act , is, on that commencement, entitled to practise as a legal practitioner or barrister under this Act and is taken to be admitted as a legal practitioner or barrister under Part 5 of this Act.

3.   Practising certificates

(1) A practising certificate in force under the repealed Act immediately before the commencement of this Act, is, on that commencement, in force under this Act.

(2) A practising certificate which is in force under this Act pursuant to subclause (1) ceases to have effect on and from 1 January in the year immediately following the date of commencement of this Act.

4.   Articled clerks and apprentices-at-law

(1) A person who, immediately before the commencement of this Act, entered into articles of clerkship under the repealed Act is, on that commencement, an articled clerk for the purposes of this Act.

(2) [Schedule 8 Amended by No. 26 of 1999, s. 20, Applied:12 Jul 1999] .  .  .  .  .  .  .  .  

(3) A person who, immediately before the commencement of this Act, holds a certificate issued under section 20B (7) or 32AE (1) of the repealed Act is, on that commencement, taken to be on the roll kept by the Registrar under this Act.

5.   Members of Society

(1) A person who, immediately before the commencement of this Act, elected to be a member of the Society under the repealed Act , is, on that commencement, a member of the Society under this Act.

(2) A person who, immediately before the commencement of this Act, was a member of the Society under the repealed Act , is, on that commencement, a member of the Society under this Act.

6.   Members of Council

A person who, before the commencement of this Act, was elected as a member of the Council under the Law Society Act 1962 holds office, on that commencement, as a member of the Council as if elected under the by-laws until the period for which the member was elected under that Act expires.

7.   Members of Board

A person other than the Attorney-General who, before the commencement of this Act, was nominated as a member of the Board of Legal Education under the repealed Act holds office, on that commencement, as a member of the Board as if appointed under this Act until the period for which that member was nominated under that Act expires.

8.   Secretary to Board

The person who, immediately before the commencement of this Act, held office as secretary to the Board of Legal Education under the repealed Act holds office, on that commencement, as secretary to the Board as if appointed under this Act.

9.   Executive Director of Society

The person who, immediately before the commencement of this Act, held office as Executive Director of the Society under the repealed Act , on that commencement, holds office as Executive Director of the Society as if appointed under this Act.

10.   Delegations of powers of Council

A power, the exercise of which has, before the commencement of this Act, been delegated to the council of the Society by by-laws of the Society under the Law Society Act 1962 is, on that commencement, to be treated for all purposes as if it had been delegated under this Act.

11.   Solicitors' Trust

A person who, immediately before the commencement of this Act, was a member of the Solicitors' Trust established under the repealed Act holds office, on that commencement, as a member of the Trust as if appointed under this Act until the period for which the member was appointed under that Act expires.

12.   Employees of Solicitors' Trust

A person who, immediately before the commencement of this Act, was employed by the Solicitors' Trust established under the repealed Act is, on that commencement, taken to have been appointed and employed under this Act.

13.   Solicitors' Guarantee Fund

(1) If, immediately before the commencement of this Act, an action was brought under section 55 of the repealed Act , that action may continue and be completed under the repealed Act or under this Act.

(2) If an action referred to in subsection (1) is continued under the repealed Act , the provisions of Division 5 of Part 9 of this Act apply as if the action were an application for a default order.

14.   Applications, &c., under Law Society Act 1962

(1) Any applications or proceedings which immediately before the commencement of this Act, were made or heard under the Law Society Act 1962 , continue, on that commencement, to be completed under that Act as if this Act had not been enacted.

(2) Any appeal which, immediately before the commencement of this Act, was begun under section 19 of the Law Society Act 1962 but not finally determined, continues, on that commencement, to be completed under that Act as if this Act had not been enacted.

14A.   Failure to comply with Indemnity Rules andRules of Practice under the Law Society Act 1962

(1) An application that could have been made before 31 December 1994 under section 58B(5) of the repealed Act relating to a failure to comply with any provision of the Indemnity Rules made under that Act and that was not made before that date may be –

(a) made after that date; and

(b) heard and determined by the Tribunal according to rules made under section 17 of the Law Society Act 1962 .

(2) An application that could have been made before 31 December 1994 under section 16(1) of the Law Society Act 1962 and that was not made before that date may be –

(a) made after that date; and

(b) [Schedule 8 Amended by No. 2 of 2001, s. 31, Applied:01 Jun 2001] heard and determined by the Tribunal as if it were a disciplinary committee established under section 15 of that Act.

(3) In determining an application referred to in subclause (1) or (2) , the Tribunal has power to make any one or more of the following orders:

(a) an order removing from, or striking off, the roll the name of any practitioner to whom the application relates;

(b) an order suspending a practitioner from practice;

(c) an order imposing a fine not exceeding $5000;

(d) an order relating to payment of costs by any party;

(e) any other order it considers appropriate.

(4) Any fine imposed under subclause (3) is forfeited to the Society.

15.   Fidelity bonds

Where, immediately before the commencement of this Act, a fidelity bond becomes forfeited under the repealed Act , any action taken under that Act may continue and be completed under that Act or under this Act.

16.   Rules of Practice

Any Rules of Practice made and in force under the repealed Act immediately before the commencement of this Act, are, on that commencement, taken to have been made under this Act.

17.   Taxation of bill of costs

[Schedule 8 Amended by No. 2 of 2001, s. 31, Applied:01 Jun 2001] A bill of costs paid by a client or served on a client by a legal practitioner before 31 December 1994 is to be taxed under section 135 as if it were an itemised bill of costs referred to in that section.