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LEGAL PROFESSION UNIFORM LAW APPLICATION ACT 2014 - SCHEDULE 9

SCHEDULE 9 – Savings, transitional and other provisions

Part 1 - Preliminary

1 Savings and transitional regulations

(1) The local regulations may contain provisions of a savings or transitional nature consequent on--
(a) the enactment of this Act or any Act that amends this Act, or
(b) the enactment of any Act of Victoria that amends the Legal Profession Uniform Law set out in Schedule 1 to the Legal Profession Uniform Law Application Act 2014 of Victoria.
(2) Any such provision may, if the local regulations so provide, take effect from the date of assent to the Act concerned or a later date.
(3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication on the NSW legislation website, the provision does not operate so as--
(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
(4) Any such provision has effect despite anything to the contrary in this Schedule or Schedule 4 to the Legal Profession Uniform Law (NSW) .
(5) The local regulations may make separate savings and transitional provisions or amend this Schedule to consolidate the savings and transitional provisions.

Part 2 - Provisions consequent on enactment of this Act

2 Definition

In this Part--

"repealed Act" means the Legal Profession Act 2004 .

3 General savings and transitional provisions

(1) This clause has effect subject to this Act and the Legal Profession Uniform Law (NSW) .
(2) Each person, body, thing and circumstance appointed or created under the repealed Act or existing or continuing under that Act immediately before the commencement of relevant provisions of the Legal Profession Uniform Law (NSW) continues to have the same status, operation and effect as it would have had if this Act had not been enacted.
(3) Any act, matter or thing subsisting immediately before the commencement of relevant provisions of the Legal Profession Uniform Law (NSW) that--
(a) was done or omitted under the repealed Act, and
(b) could have been done or omitted under that Law (with any necessary modifications) if that Law had been in force when it was done or omitted,
is taken to have been done or omitted under that Law.
(4) Any act, matter or thing subsisting immediately before the commencement of relevant provisions of this Act that--
(a) was done or omitted under the repealed Act, and
(b) could have been done or omitted under this Act (with any necessary modifications) if this Act had been in force when it was done or omitted,
is taken to have been done or omitted under this Act.
(5) Without limitation, subclause (2) extends to bodies in existence or continuing under the repealed Act, except the costs assessors' rules committee under section 394 of that Act.

4 References to repealed Act

A reference to the repealed Act in any Act (other than this Act or the Legal Profession Uniform Law (NSW) ) or in any subordinate instrument, agreement, deed or other document, so far as the reference relates to any period on or after the date of the repeal and if not inconsistent with the subject-matter, is to be construed as--

(a) a reference to the Legal Profession Uniform Law (NSW) , if the reference relates to a matter that is dealt with by that Law, or
(b) a reference to this Act, if the reference relates to a matter that is dealt with by this Act but not by the Legal Profession Uniform Law (NSW) .

5 Term of office of NSW Commissioner

For the purposes of clause 1 of Schedule 4, any term for which a person was appointed as Legal Services Commissioner under the repealed Act is taken to be a term of office as NSW Commissioner.

6 Approved insurance policies for professional indemnity insurance

Any order of the Attorney General under section 403 or 406 of the repealed Act that is in force immediately before the commencement of section 95 of this Act is, with any necessary modifications, taken to be an order of the Attorney General under section 95(2) of this Act.

Part 3 - Provisions consequent on enactment of Legal Profession Uniform Law Application Legislation Amendment Act 2015

7 Definition

In this Part--

"repealed Act" means the Legal Profession Act 2004 .

8 Working account for costs of Part 7

The working account referred to in section 400 of the repealed Act immediately before the commencement of this clause is taken to be the working account established for the Department of Justice, as referred to in section 93G of this Act.

9 Manager, Costs Assessment

The registrar of the Supreme Court who was Manager, Costs Assessment immediately before the commencement of this clause is taken to have been appointed as Manager, Costs Assessment on that commencement.

10 Mortgage practices and managed investment schemes--transitional arrangements

(1) Section 135(2) of the repealed Act continues to apply to an incorporated legal practice (and to any related body corporate).
(2) Part 3.5 of, and Schedule 8 to, the repealed Act continue to apply in respect of mortgages that were entered into before the repeal of that Act and to matters connected with managed investment schemes as referred to in those provisions.
(3) Section 258 of the Legal Profession Uniform Law as set out in Schedule 1 to the Legal Profession Uniform Law Application Act 2014 of Victoria does not apply as a law of this jurisdiction.
(4) Subclauses (1), (2) and (3) cease to have effect on 1 July 2018.
(5) A reference in Schedule 8 to the repealed Act to the Fidelity Fund is taken to be a reference to the fidelity fund within the meaning of the Legal Profession Uniform Law (NSW) .
(6) Without limiting any other provision of this Schedule, the local regulations may modify the operation of this clause.

Part 4 - Provisions consequent on enactment of Justice Legislation Amendment Act (No 3) 2018

11 Definitions

In this Part--

"amending Act" means the Justice Legislation Amendment Act (No 3) 2018 .

"assets" means any legal or equitable estate or interest (whether present or future, whether vested or contingent and whether personal or assignable) in real or personal property of any description (including money), and includes securities, choses in action and documents.

"Indemnity Fund" means the Solicitors Mutual Indemnity Fund established under section 101 of this Act (as in force immediately before the repeal day).

"insolvent insurer agreements" means the following agreements entered into on 27 November 2001--

(a) the LawCover scheme loan and claims authority agreement between CIC Insurance Limited (in liquidation), Lawcover Pty Limited, the Law Society of New South Wales and Anthony McGrath and Alexander Macintosh as liquidators,
(b) the LawCover scheme loan and claims authority agreement between HIH Casualty and General Insurance Limited (in liquidation), Lawcover Pty Limited, the Law Society of New South Wales and Anthony McGrath and Alexander Macintosh as liquidators,
(c) the LawCover scheme loan and claims authority agreement between FAI General Insurance Company Limited (in liquidation), Lawcover Pty Limited, the Law Society of New South Wales and Anthony McGrath and Alexander Macintosh as liquidators.

"instrument" means an instrument (other than this Act or an instrument made under this Act) or any other document that creates, modifies or extinguishes rights or liabilities (or would do so if lodged, filed or registered in accordance with any law), and includes any judgment, order, process or other instrument issued by a court or tribunal.

"Lawcover Insurance" means Lawcover Insurance Pty Limited (ABN 15 095 082 509).

"Lawcover Pty Ltd" means Lawcover Pty Limited (ABN 48 003 326 618).

"liabilities" means any liabilities, debts or obligations (whether present or future, whether vested or contingent and whether personal or assignable).

"repeal day" means the day on which Division 3 of Part 8 of this Act is repealed by the amending Act.

"rights" means any rights, powers, privileges or immunities (whether present or future, whether vested or contingent and whether personal or assignable).

12 Closure of Indemnity Fund and transfer of contents

(1) On the repeal day, the following has effect--
(a) half of the monetary assets of the Indemnity Fund are transferred to, and become the assets of, the Law Society,
(b) half of the monetary assets of the Indemnity Fund are transferred to, and become the assets of, the Public Purpose Fund,
(c) all assets of the Indemnity Fund that are not monetary assets are transferred to, and become the assets of, Lawcover Insurance.
(2) On the repeal day, the following has effect--
(a) the rights and liabilities arising in connection with the monetary assets transferred to the Law Society vest in the Law Society,
(b) the rights and liabilities arising in connection with the monetary assets transferred to the Public Purpose Fund vest in the Trustees of the Public Purpose Fund,
(c) all other rights and liabilities arising in connection with the Indemnity Fund or assets of the Indemnity Fund, and of Lawcover Pty Ltd as manager of the Indemnity Fund, vest in Lawcover Insurance.
(3) Without limiting subclause (2)(c), the rights or liabilities transferred to Lawcover Insurance include any rights or liabilities relating to the Indemnity Fund, and Lawcover Pty Ltd as the manager of that Fund, under the insolvent insurer agreements.
(4) Assets, rights and liabilities may be transferred to the Public Purpose Fund, the Law Society or Lawcover Insurance under this Part despite any other law or agreement (including the insolvent insurer agreements) and whether or not the consent of the Trustees of the Public Purpose Fund, the Law Society or Lawcover Insurance has been obtained.
(5) In this clause--

"monetary assets" means money and any property that may be realised as money.

13 Vesting of assets, rights and liabilities in transferees

(1) The following provisions apply to assets, rights or liabilities transferred under this Part--
(a) the assets vest by virtue of clause 12 and without the need for any further conveyance, transfer, assignment or assurance,
(b) the rights or liabilities become by virtue of clause 12 the rights or liabilities of the transferee,
(c) all proceedings relating to the assets, rights or liabilities commenced before the transfer by or against the transferor or a predecessor of the transferor and pending immediately before the transfer are taken to be proceedings pending by or against the transferee,
(d) any act, matter or thing done or omitted to be done in relation to the assets, rights or liabilities before the transfer by, to or in respect of the transferor or a predecessor of the transferor is (to the extent to which that act, matter or thing has any force or effect) taken to have been done or omitted by, to or in respect of the transferee,
(e) the transferee has all the entitlements and obligations of the transferor in relation to those assets, rights and liabilities that the transferor would have had but for the transfer, whether or not those entitlements and obligations were actual or potential at the time the transfer took effect,
(f) a reference in any Act, in any instrument made under any Act or in any document of any kind to--
(i) the transferor, or
(ii) any predecessor of the transferor,
to the extent to which the reference relates to those assets, rights or liabilities, is taken to be, or include, a reference to the transferee.
(2) No attornment to the transferee by a lessee from the transferor is required.
(3) In this clause--

"transferee" , in relation to assets, rights or liabilities, means a person to whom the assets, rights or liabilities are transferred under this Part.

"transferor" means Lawcover Pty Ltd in its capacity as the manager of the Indemnity Fund.

14 No compensation payable

No compensation is payable to any person or body in connection with a transfer under this Part.

15 Confirmation of vesting

(1) The Minister may, by notice in writing, confirm a transfer of particular assets, rights or liabilities under this Part.
(2) The notice is conclusive evidence of the transfer.

16 Law Society to subscribe for shares in Lawcover Insurance

(1) The Law Society must, on or after the repeal day, subscribe to an amount of capital in Lawcover Insurance that is not less than the value, on the repeal day, of the monetary assets transferred to the Law Society under this Part.
(2) The Law Society may deduct from that amount any costs incurred by the Law Society relating to the subscription.

17 Effect of amendment of Schedule 7

Schedule 7, as amended by the amending Act, has effect despite any other law or agreement (including the insolvent insurer agreements).

18 Payment of amounts to be shared with Public Purpose Fund

(1) If an amount is recovered by Lawcover Insurance as a result of the exercise of its functions under Schedule 7 or this Part (including functions under the insolvent insurer agreements that are conferred under that Schedule or this Part)--
(a) half the amount is to be retained by Lawcover Insurance, and
(b) half the amount is to be paid into the Public Purpose Fund.
(2) This clause does not apply to an amount that is payable to another person under any other Act or law or the insolvent insurer agreements (subject to this Part).

19 Operation of Part

The operation of this Part, or the operation of Schedule 7 as amended by the amending Act, is not to be regarded--

(a) as a breach of contract or confidence or otherwise as a civil wrong, or
(b) as a breach of any contractual provision prohibiting, restricting or regulating the assignment or transfer of assets, rights or liabilities, or
(c) as giving rise to any remedy by a party to an instrument, or as causing or permitting the termination of any instrument, because of a change in the beneficial or legal ownership of any asset, right or liability, or
(d) as an event of default under any contract or other instrument.

20 Additional matters relating to insolvent insurer agreements

(1) For the purposes of this Part, and the transfer of assets, rights and liabilities under this Part that arise under the insolvent insurer agreements--
(a) references in the agreements to Lawcover Pty Ltd acting in its capacity as the manager of the Indemnity Fund are taken to be references to Lawcover Insurance, and
(b) references in the agreements to the payment of amounts to or from the Indemnity Fund are taken to be references to payment of amounts to or from an account of Lawcover Insurance nominated by Lawcover Insurance for that purpose.
(2) The amendments made to this Act by the amending Act do not affect--
(a) the operation of the insolvent insurer agreements, except as provided by or under this Schedule or Schedule 7, or
(b) the power of the Law Society and Lawcover Insurance to enter into amendments to those agreements to reflect the effect of the amendments made to this Act by the amending Act.

21 Law Society consent to change in functions

The Law Society is taken to consent to the exercise by Lawcover Insurance of functions conferred on Lawcover Insurance under this Part or as a result of the amendments made to this Act by the amending Act.

22 Displacement of Corporations legislation

This Part and Schedule 7 are declared to be Corporations legislation displacement provisions for the purposes of section 5G of the Corporations Act 2001 of the Commonwealth in relation to section 477 of the Corporations legislation.

Note : Section 5G of the Corporations Act 2001 of the Commonwealth provides that if a State law declares a provision of a State law to be a Corporations legislation displacement provision, any provision of the Corporations legislation with which the State provision would otherwise be inconsistent does not apply to the extent necessary to avoid the inconsistency.

Part 5 - Provisions consequent on enactment of Justice Legislation Amendment Act (No 2) 2019

23 Validations

(1) The 2015 delegation is taken to be, and always to have been, validly made under section 406 of the Uniform Law.
(2) The 2015 delegation is taken to have had the following operation during the relevant period for the purposes of this Act and the Uniform Law--
(a) the delegation of functions to the Bar Association also operated to delegate the functions to the Bar Council,
(b) the delegation of functions to the Law Society also operated to delegate the functions to the Law Society Council,
(c) the delegation authorised the Bar Association, Law Society and each Council (an
"authorised delegate" ) to make further delegations of functions to another entity (a
"subdelegate" ),
(d) the delegation authorised an authorised delegate or a subdelegate to appoint investigators under section 282 of the Uniform Law (whether generally or in relation to a particular law practice or a particular complaints investigation),
(e) the delegation authorised an authorised delegate or a subdelegate to exercise the Chapter 5 functions of the NSW Commissioner in relation to complaints even if--
(i) a complaint was made to or by the delegate or subdelegate instead of the Commissioner, or
(ii) a disciplinary matter or consumer matter dealt with by the delegate or subdelegate was a matter other than one the Commissioner decided not to deal with or continue to deal with, or
(iii) a decision or determination was made or other action taken by a delegate or subdelegate concerning a disciplinary matter without the matter being referred to the delegate by the Commissioner, or
(iv) a decision or determination was made or other action taken by a delegate or subdelegate concerning a consumer matter without the matter being referred to the delegate by the Commissioner.
Note : Under the Uniform Law,
"Chapter 5 functions" means--
(a) functions under Chapter 5, or
(b) functions under another provision of that Law relating to Chapter 5, or
(c) functions under the Uniform Rules relating to Chapter 5.
(3) Without limiting subclause (2), an authorised delegate or a subdelegate is taken during the relevant period--
(a) to have been authorised under this Act and the Uniform Law--
(i) to receive or make complaints in exercise of the Chapter 5 functions of the NSW Commissioner, and
(ii) to initiate or prosecute proceedings in respect of complaints in a court or tribunal in exercise of the Chapter 5 functions of the NSW Commissioner, and
(b) to have made a complaint even if there was non-compliance with a requirement of section 267 of the Uniform Law.
(4) Accordingly--
(a) any decision, determination or other action of an authorised delegate or subdelegate during the relevant period that would have been valid if subclauses (1)-(3) had been in force at the time is validated, and
(b) any proceedings commenced by an authorised delegate or subdelegate during the relevant period that would have been validly commenced if subclauses (1)-(3) had been in force at the time are validated, and
(c) any order or other decision of a court or tribunal made during the relevant period in proceedings referred to in paragraph (b) that would have been valid if subclauses (1)-(3) had been in force at the time is validated.
(5) Any proceedings commenced in a court or tribunal by an authorised delegate or subdelegate that were terminated on a relevant invalidity ground during the relevant period at the instigation of an authorised delegate or subdelegate--
(a) may be recommenced under the authority of this clause by the same delegate or subdelegate in the court or tribunal on the basis of the applications and other documents by which those proceedings were last commenced, and
(b) any thing done in the terminated proceedings (other than the termination of the proceedings) is taken to have been done in the recommenced proceedings.
(5A) Any proceedings not commenced in a court or tribunal by an authorised delegate or subdelegate may be commenced under the authority of this clause if--
(a) the authorised delegate or subdelegate made a decision between 1 January 2019 and 25 June 2019 to commence proceedings, and
(b) the proceedings had not commenced by 25 June 2019.
(6) Proceedings may be commenced or recommenced under the authority of this clause despite section 137 of this Act, but only if they are commenced or recommenced no later than 6 months after the day on which this clause commences.
(7) Without limiting any other power to make rules of court, rules of court may be made under the Civil Procedure Act 2005 and the Civil and Administrative Tribunal Act 2013 for or with respect to the practice and procedure to be followed in connection with recommenced proceedings.
(8) To avoid doubt--
(a) any decision that terminated proceedings during the relevant period on a relevant invalidity ground is not affected by this clause unless proceedings are recommenced, and
(b) any decision as to costs made in respect of terminated proceedings is not affected by this clause regardless of whether proceedings are recommenced.
(9) This clause (including anything authorised by this clause) has effect despite anything to the contrary in--
(a) the 2015 delegation, or
(b) this Act, the Uniform Law or any other law.
(10) In this clause--

"2015 delegation" means the delegation of the NSW Commissioner's functions to the Bar Association and Law Society purportedly made by the NSW Commissioner under section 406 of the Uniform Law on 18 June 2015.

"action" includes an omission.

"commenced" , in relation to proceedings, includes initiated or prosecuted.

"consumer matter" has the meaning given by section 269 of the Uniform Law.

"disciplinary matter" has the meaning given by section 270 of the Uniform Law.

"proceedings" include purported proceedings.

"relevant invalidity ground" , in relation to proceedings, means on the ground that the proceedings were not validly commenced by an authorised delegate or subdelegate because of any one or more of the following reasons--
(a) the delegate or subdelegate was not authorised to commence the proceedings by the 2015 delegation, including because--
(i) the 2015 delegation was not valid, or
(ii) the terms of the 2015 delegation did not allow the delegate or subdelegate to commence the proceedings, or
(iii) the delegate, subdelegate or NSW Commissioner did not comply with a provision of the 2015 delegation,
(b) the proceedings were based on a complaint purportedly made to or by the delegate or subdelegate in circumstances where this Act or the Uniform Law required the complaint to have been made to or by the NSW Commissioner,
(c) the proceedings were based on a complaint purportedly made to or by the delegate or subdelegate in circumstances where there was non-compliance with a requirement of section 267 of the Uniform Law.

"relevant period" means the period commencing on 18 June 2015 and ending immediately before the day on which this clause commences.

"rules of court" , in relation to the Civil and Administrative Tribunal, means--
(a) Tribunal rules referred to in section 25 of the Civil and Administrative Tribunal Act 2013 , and
(b) procedural directions given by the President of the Tribunal under section 26 of that Act.

"terminated" includes withdrawn, stayed, dismissed, discontinued or otherwise not proceeded with.

"Uniform Law" means the Legal Profession Uniform Law (NSW) .



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