South Australian Current Acts

LEGAL PRACTITIONERS ACT 1981 - SECT 5

5—Interpretation

        (1)         In this Act, unless the contrary intention appears—

"amend" includes—

            (a)         in relation to a practising certificate—

                  (i)         impose a condition on the certificate; and

                  (ii)         amend or revoke a condition already imposed on the certificate; and

            (b)         in relation to registration as a foreign lawyer—

                  (i)         amend the lawyer's registration certificate; and

                  (ii)         impose a condition on the registration; and

                  (iii)         amend or revoke a condition already imposed on the registration;

"associate"—see section 5A;

"Associate Justice" means an Associate Justice of the Supreme Court;

"Australian Government Solicitor" means the Australian Government Solicitor constituted under the Judiciary Act 1903 of the Commonwealth and includes any person authorised by or under that Act to act in the name of the Australian Government Solicitor;

"Australian-registered foreign lawyer" means a locally registered foreign lawyer or an interstate-registered foreign lawyer;

"Chief Executive" of the Society means the principal executive officer employed by the Society and includes any person who is, for the time being, discharging the duties of that officer;

"Chief Justice" means the Chief Justice of the Supreme Court and includes an acting Chief Justice of the Supreme Court;

"the combined trust account" means the Legal Practitioners Combined Trust Account maintained by the Society under Part 4;

"Commissioner" means the person holding or acting in the office of Legal Profession Conduct Commissioner under Part 6 Division 2;

"community legal centre" means a body that provides legal services to the community, or a section of the community, on a non-profit basis, and includes the Aboriginal Legal Rights Movement, but does not include the Legal Services Commission;

"conduct" of a legal practitioner includes any act or omission by the legal practitioner;

"conviction" includes a formal finding of guilt;

"corporation" means—

            (a)         a company within the meaning of the Corporations Act 2001 of the Commonwealth; or

            (b)         any other body corporate, or body corporate of a kind, prescribed by the regulations;

"corresponding authority" means—

            (a)         a person or body having powers or functions under a corresponding law; or

            (b)         when used in the context of a person or body having powers or functions under this Act (the "local authority")—

                  (i)         a person or body having corresponding powers or functions under a corresponding law; and

                  (ii)         without limiting subparagraph (i), if the powers or functions of the local authority relate to local legal practitioners generally or are limited to any particular class of local legal practitioners—a person or body having corresponding powers or functions under a corresponding law regardless of whether they relate to interstate legal practitioners generally or are limited to any particular class of interstate legal practitioners;

"corresponding disciplinary body" means—

            (a)         a court or tribunal having powers or functions under a corresponding law that correspond to any of the powers and functions of the Tribunal; or

            (b)         the Supreme Court of another jurisdiction exercising—

                  (i)         its inherent jurisdiction or powers in relation to the control and discipline of legal practitioners; or

                  (ii)         its jurisdiction or powers to make orders under a corresponding law of the other jurisdiction in relation to legal practitioners;

"corresponding law" means the following:

            (a)         a law of another jurisdiction that corresponds to the relevant provisions of this Act or, if a regulation is made declaring a law of the other jurisdiction to be a law that corresponds to this Act, the law declared under that regulation for the other jurisdiction;

            (b)         if the term is used in relation to a matter that happened before the commencement of the law of another jurisdiction that, under paragraph (a), is the corresponding law for the other jurisdiction, a previous law applying to legal practice in the other jurisdiction;

"the Council" means the council of the Law Society;

"director", in relation to—

            (a)         a company within the meaning of the Corporations Act 2001 of the Commonwealth—means a director as defined in section 9 of that Act; or

            (b)         any other body corporate, or body corporate of a kind, prescribed by the regulations—means a person specified or described in the regulations;

"document" means book, file, account, paper (including a security or any instrument) or any record of information, whether in writing or accessible only through the use of a computer or other device;

"domestic partner" means a person who is a domestic partner within the meaning of the Family Relationships Act 1975 , whether declared as such under that Act or not;

"elective officer" of the Society means an officer of the Society elected by the members of the Society in accordance with its rules;

"Fidelity Fund" means the Legal Practitioners Fidelity Fund maintained by the Society under Part 4;

"fiduciary or professional default" in relation to a legal practitioner means—

            (a)         any defalcation, misappropriation or misapplication of trust money received in the course of legal practice by the legal practitioner or an incorporated legal practice or firm of which the legal practitioner is a member; or

            (b)         any wrongful or negligent act or omission occurring in the course of the practice of the legal practitioner, or an incorporated legal practice or firm of which the legal practitioner is a member,

whether committed by the legal practitioner, an employee of the legal practitioner or any other person;

"foreign country" means—

            (a)         a country other than Australia; or

            (b)         a state, province or other part of a country other than Australia;

"foreign law" means law of a foreign country;

"home jurisdiction"—see section 5B;

"incorporated legal practice" has the same meaning as in Schedule 1;

"interstate legal practitioner" means a natural person—

            (a)         who has been admitted as a legal practitioner in a participating State; and

            (b)         who holds an interstate practising certificate issued or given by a regulatory authority in that State or is entitled by admission or otherwise to practise the profession of the law in that State; and

            (c)         who is not a local legal practitioner; and

            (d)         whose principal place of legal practice is not this State;

"interstate practising certificate" means a certificate or other form of authorisation issued by a regulatory authority in a participating State that confers an authority to practise the profession of the law in that State, whether that authority is general or subject to limitations or conditions;

"interstate-registered foreign lawyer" means a person who is registered as a foreign lawyer under a corresponding law;

"jurisdiction" means a State or Territory of the Commonwealth;

"law practice" means—

            (a)         a legal practitioner who is a sole practitioner; or

            (b)         a firm of—

                  (i)         legal practitioners; or

                  (ii)         incorporated legal practices; or

                  (iii)         legal practitioners and incorporated legal practices; or

            (c)         an incorporated legal practice that practises on its own account; or

            (d)         a community legal centre;

"the Law Society" or "the Society" means The Law Society of South Australia ;

"legal costs" includes disbursements;

"legal practitioner" or "practitioner" means—

            (a)         a person duly admitted and enrolled as a barrister and solicitor of the Supreme Court; or

            (ab)         an interstate legal practitioner who practises the profession of the law in this State;

"legal practitioner director" means a director of an incorporated legal practice who is a legal practitioner holding an unrestricted practising certificate;

"legal profession rules" means—

            (a)         the Society's professional conduct rules;

            (b)         any other rules prescribed by the regulations for the purposes of this definition;

"legal services" means work done, or business transacted, in the ordinary course of engaging in legal practice;

"local legal practitioner" means a legal practitioner who holds a practising certificate;

"locally registered foreign lawyer" means a person who is registered as a foreign lawyer under this Act;

"LPEAC" means the Legal Practitioners Education and Admission Council established under Division 1 of Part 2A;

"money" includes any instrument for the payment of money that may be negotiated by an ADI;

"mortgage financing" means facilitating a loan secured by mortgage by—

            (a)         acting as an intermediary to match a prospective lender and borrower; and

            (b)         subsequently arranging the loan; and

            (c)         receiving or dealing with payments for the purposes of, or under, the loan,

but does not include the provision of legal advice or the preparation of an instrument;

"officer" means—

            (a)         in relation to a company within the meaning of the Corporations Act 2001 of the Commonwealth—an officer as defined in section 9 of that Act; or

            (b)         in relation to any other body corporate, or body corporate of a kind, prescribed by the regulations—a person specified or described in the regulations;

"participating State" means a State in which a corresponding law is in force;

"partner" includes—

            (a)         an incorporated legal practice that engages in legal practice as a member of a firm of incorporated legal practices or a firm of legal practitioners and incorporated legal practices; and

            (b)         a legal practitioner director of an incorporated legal practice referred to in paragraph (a);

"practise the profession of the law", in relation to a legal practitioner or incorporated legal practice—see section 21 (and "engage in legal practice" and "practise" have the same meaning);

"practising certificate" means a practising certificate issued under Part 3;

"principal"—see section 5A;

"professional mentoring agreement"—see section 90B;

"professional misconduct"—see section 69;

"professional obligations" of a legal practitioner or an incorporated legal practice include—

            (a)         duties to the Supreme Court; and

            (b)         obligations in connection with conflicts of interest; and

            (c)         duties to clients, including disclosure; and

            (d)         ethical rules required to be observed by legal practitioners;

"Regulator" means—

            (a)         in relation to this jurisdiction—the Commissioner; or

            (b)         in relation to another jurisdiction—the person or body defined as the Regulator in relation to that jurisdiction by the corresponding law of that jurisdiction or, if there is no such definition, the person or body with functions or powers under the corresponding law that correspond to those of the Commissioner under this Act;

"regulatory authority" means—

            (a)         in relation to this State—the Supreme Court, LPEAC, the Society, the Commissioner or the Tribunal;

            (b)         in relation to a participating State—a person or body in that State having a function conferred by legislation relating to regulation of legal practice that corresponds to a function exercised under this Act by a regulatory authority of this State;

            (c)         in relation to another jurisdiction—

                  (i)         if there is only 1 regulatory authority for the other jurisdiction—that regulatory authority, unless subparagraph (iii) applies; or

                  (ii)         if there are separate regulatory authorities for the other jurisdiction for different branches of the legal profession or for persons who practise in a particular style of legal practice—the regulatory authority relevant to the branch or style concerned, unless subparagraph (iii) applies; or

                  (iii)         if the regulations specify or provide for the determination of 1 or more regulatory authorities for the other jurisdiction either generally or for particular purposes—the regulatory authority or authorities specified or determined in accordance with the regulations;

"related body corporate" means—

            (a)         in relation to a company within the meaning of the Corporations Act 2001 of the Commonwealth—a related body corporate within the meaning of section 50 of that Act; or

            (b)         in relation to any other body corporate, or body corporate of a kind, prescribed by the regulations—a person specified or described in the regulations;

"serious offence" means an offence, whether committed in or outside this State, that is—

            (a)         an indictable offence against a law of this State, the Commonwealth or a State or Territory of the Commonwealth (whether or not the offence is or may be dealt with summarily); or

            (b)         an offence against a law of a State or Territory of the Commonwealth that would be an indictable offence against a law of this State if committed in this State (whether or not the offence could be dealt with summarily if committed in this State); or

            (c)         an offence against a law of a foreign country that would be an indictable offence against a law of the Commonwealth or this State if committed in this State (whether or not the offence could be dealt with summarily if committed in this State);

"show cause event", in relation to a person, means the person—

            (a)         becoming bankrupt or being served with notice of a creditor's petition presented to the Court under section 43 of the Bankruptcy Act 1966 of the Commonwealth; or

            (b)         presenting (as a debtor) a declaration to the Official Receiver under section 54A of the Bankruptcy Act 1966 of the Commonwealth of his or her intention to present a debtor's petition or presenting (as a debtor) such a petition under section 55 of that Act; or

            (c)         applying to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounding with his or her creditors or making an assignment of his or her remuneration for their benefit; or

            (d)         being convicted of a serious offence or a tax offence, whether or not—

                  (i)         the offence was committed in or outside this State; or

                  (ii)         the offence was committed while the person was practising the law as a legal practitioner or was practising foreign law as an Australian-registered foreign lawyer, as the case requires; or

                  (iii)         other persons are prohibited from disclosing the identity of the offender;

"sole practitioner" means a legal practitioner who practices the profession of the law on his or her own account;

"solicitor" includes attorney and proctor;

"spouse"—a person is the spouse of another if they are legally married;

"State" includes a Territory;

"the statutory interest account" means the Statutory Interest Account maintained by the Society under Part 4;

"tax offence" means an offence under the Taxation Administration Act 1953 of the Commonwealth, whether committed in or outside this State;

"the Tribunal" means the Legal Practitioners Disciplinary Tribunal established under Part 6;

"trust account" has the meaning given in Schedule 2;

"trust money" has the meaning given in Schedule 2;

"unqualified person" means a person (including a body corporate) who is not entitled to practise the profession of the law;

"unrestricted practising certificate" means a practising certificate that is not subject to any condition under this Act or a corresponding law requiring the holder to engage in supervised legal practice or restricting the holder to practise as, or in the manner of, a barrister;

"unsatisfactory professional conduct"—see section 68.

        (2)         If under a corresponding law an interstate legal practitioner's right to practise does not derive from the holding of an interstate practising certificate, then a reference in this Act to an interstate practising certificate, or the endorsement of a condition on an interstate practising certificate, is to be read as a reference to the practitioner's right to engage in legal practice under that law or to the imposition of a condition on that right.

        (3)         For the purposes of this Act, a legal practitioner establishes an office in a State when the practitioner offers or provides services in the course of legal practice to the public in the State from an office maintained by the practitioner, or by the employer or a partner of the practitioner, or by a corporation of which the practitioner is a director, for the purpose in the State.

        (4)         Nothing in this Act or the legal profession rules affects the exercise by the Director of Public Prosecutions, the Crown Solicitor or a prosecutor instructed by the Director of Public Prosecutions or the Crown Solicitor of any discretion in the context of a prosecution.

        (6)         The Governor may, by proclamation, declare a law of another State to be a corresponding law and may, by subsequent proclamation, vary or revoke any such declaration.