SCHEDULE 9 - Savings and transitional provisions

Section 660

1.    Interpretation

In this Schedule –

old Act means the Legal Profession Act 1993 .

2.    Roll of legal practitioners

The Roll of the Legal Practitioners kept by the Supreme Court and in existence immediately before the commencement of Part 2.2 (Admission of local lawyers) is taken to be, or to form part of, the roll of local lawyers under section 35 (Roll of local lawyers).

3.    Admission

A person –

(a) who was admitted by the Supreme Court as a legal practitioner before the commencement of Part 2.2 ; and

(b) whose enrolment by the Supreme Court was current or pending immediately before the commencement of Part 2.2  –

is taken to have been admitted by the Supreme Court as a lawyer under this Act on the day on which the person was admitted as a legal practitioner.

4.    Admission as barrister

A person admitted as a barrister under section 28 of the old Act is taken to be admitted as a lawyer under this Act on the day on which the person was admitted as a barrister, subject to the condition that the person may practise solely as a barrister.

5.    Applications for admission

(1) An application for admission as a legal practitioner or barrister under the old Act that was pending immediately before the commencement of Part 2.2 of this Act is taken to be an application for admission as a lawyer under Part 2.2 of this Act.

(2) The applicant may be admitted as a lawyer under this Act if the applicant could have been admitted as a legal practitioner or barrister under the old Act if Part 2.2 of this Act had not been enacted, and the admission requirements of this Act are taken to have been satisfied in relation to the applicant.

6.    Practising certificates

(1) A practising certificate in force under the old Act immediately before the commencement of Part 2.3 of this Act –

(a) is, on that commencement, taken to be in force under this Act; and

(b) subject to the payment of the prescribed fee when and as duly demanded by the Law Society after that commencement, continues in force until midnight of 30 June immediately following that commencement.

(2) For the purposes of subclause (1) , the prescribed fee is one half of the fee that would have been payable for the issue of the practising certificate had the old Act not been repealed.

(3) An application for a practising certificate under the old Act that was pending immediately before the commencement of Part 2.3 of this Act is taken to be an application for a local practising certificate under Part 2.3 of this Act.

7.    Foreign lawyers

An approval to practise as a foreign lawyer under the old Act that is in force immediately before the commencement of Part 2.6 of this Act is taken to be registration under that Part.

8.    Incorporated legal practices

(1) An incorporated legal practice that was, immediately before the commencement of Part 2.5 (Incorporated legal practices and multi-disciplinary partnerships), a legal practitioner corporation within the meaning of the old Act is taken to have complied with section 115(1) (Notice of intention to start providing legal services) of this Act.

(2) Section 123 (Disclosure obligations) does not apply in respect of any matter for which services are first provided before the commencement of Part 2.5 .

9.    Members of Law Society

A person who, immediately before the commencement of section 619 (Membership of Law Society), was a member of the Law Society under the old Act is, on that commencement, a member of the Law Society under this Act.

10.    Members of Council

A person who, before the commencement of section 621 (The Council), was elected as a member of the Council under the old Act holds office, on that commencement, as a member of the Council as if elected under the by-laws under section 627 (Power of Council to make by-laws) until the period for which the member was elected under the old Act expires.

11.    Delegations of powers of Council

A power, the exercise of which has, before the commencement of Part 7.5 (The Council of the Law Society), been delegated to the Council under the old Act is, on that commencement, to be treated for all purposes as if it had been delegated under this Act.

12.    Executive Director of Law Society

The person who, immediately before the commencement of Part 7.5 , held office as Executive Director of the Law Society under the old Act holds office, on that commencement, as Executive Director of the Law Society as if appointed under this Act.

13.    Employees of Law Society

A person who, immediately before the commencement of Part 7.5 , was employed by the Council under the old Act is, on that commencement, taken to have been appointed and employed under this Act.

14.    Members of the Board of Legal Education

A person who, immediately before the commencement of Part 7.2 (Board of Legal Education), was a member of the Board of Legal Education under the old Act holds office, on that commencement, as a member of the Board of Legal Education, as if appointed under this Act, until the period for which that member was nominated under the old Act expires.

15.    Secretary to Board of Legal Education

The person who, immediately before the commencement of Part 7.2 , held office as secretary to the Board of Legal Education under the old Act holds office, on that commencement, as secretary to the Board of Legal Education as if appointed under this Act.

16.    Solicitors' Trust

A person who, immediately before the commencement of Part 7.6 (Solicitors' Trust), was a member of the Solicitors' Trust established under the old 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 the old Act expires.

17.    Employees of Solicitors' Trust

A person who, immediately before the commencement of Part 7.6 , was employed by the Solicitors' Trust established under the old Act is, on that commencement, taken to have been appointed and employed under this Act.

18.    Client information and legal costs

(1) Subject to subclause (2) , Part 3.3 (Costs disclosure and assessment) applies to a matter if the client first instructs the law practice on or after the commencement of that Part, and Part 11 of the old Act continues to apply to a matter if the client first instructed the law practice in the matter before the commencement of Part 3.3 of this Act.

(2) Part 3.3 does not apply, in respect of a law practice that is retained by another law practice on behalf of a client on or after the commencement of that Part, in relation to a matter in which the other law practice was retained by the client before the commencement of that Part, and in that case Part 11 of the old Act continues to apply.

19.    Taxation of costs

Any taxation of costs commenced under Part 11 of the old Act before the commencement of Part 3.3 of this Act but not completed by that commencement may be completed under Part 11 of the old Act as if it had not been repealed.

20.    Professional indemnity insurance

Professional indemnity insurance maintained by a legal practitioner under the old Act and in force immediately before the commencement of Part 3.4 (Professional Indemnity Insurance) of this Act is taken to be professional indemnity insurance under that Part.

21.    Trust money and trust accounts

An offence is not committed under the provisions of Part 3.2 (Trust money and trust accounts) or of the regulations made for the purposes of that Part for anything done or omitted to be done in good faith during the period of 12 months after the commencement of this clause, if –

(a) it was done for the purpose of attempting to comply with any of those provisions; or

(b) it was done in substantial conformity with the requirements of the old Act or the Rules of Practice 1994 made under the old Act, had that Act and the Rules of Practice 1994 continued in force.

22.    Deficiencies in trust accounts

Section 252 (Dealing with trust money: legal costs and unclaimed money) and section 253 (Deficiency in trust account) apply to a deficiency in a trust account or a failure to pay or deliver trust money whether the deficiency or failure to pay or deliver relates to money received before, on or after the commencement of Part 3.2 (Trust money and trust accounts).

23.    Defaults

(1) Division 5 of Part 9 of the old Act continues to apply to a claim made against the Guarantee Fund under that Division and finalised before the commencement of Part 3.5 (Solicitors' Guarantee Fund) of this Act.

(2) Part 3.5 of this Act applies to a default occurring before the commencement of Part 3.5 if a claim had not been made or finalised under Division 5 of Part 9 of the old Act in respect of the default before that commencement.

24.    Complaints

Any complaint made under Part 8 of the old Act as in force immediately before the commencement of Chapter 4 (Complaints and Discipline) of this Act –

(a) that has not been dismissed or finally determined by the Council before that commencement; or

(b) in relation to which a hearing has not begun under Part 8 of the old Act as in force immediately before that commencement; or

(c) in relation to which an application has not been made under section 72 of the old Act as in force immediately before that commencement –

is to be dealt with by the Board as if it were a complaint made to the Board under Chapter 4 of this Act.

25.    New complaints about old conduct

(1) This clause applies to conduct that –

(a) happened or is alleged to have happened before the commencement of Chapter 4 ; and

(b) could have been, but was not, the subject of a complaint under the old Act.

(2) A complaint about the conduct may be made and dealt with under Chapter 4 even if the conduct could not be the subject of a complaint under this Act if it had happened after the commencement of that Chapter.

(3) Chapter 4 applies (with the necessary modifications) in relation to the conduct.

(4) However, disciplinary action may not be taken against a person under this Act in relation to the conduct if it is more onerous than the disciplinary action that could have been taken against the person under the old Act in relation to the conduct.

26.    Hearing of complaints

(1) If, immediately before the commencement of Chapter 4 (Complaints and Discipline) of this Act, a hearing had begun into a complaint made under Part 8 of the old Act as in force immediately before that commencement, but had not been concluded, the Council may –

(a) terminate the hearing; or

(b) continue and conclude the hearing as if Chapter 4 of this Act had not been enacted.

(2) In making a decision under subclause (1) , the Council may have regard to such matters as it considers appropriate, but must have particular regard to –

(a) how far the hearing had progressed by the commencement of Chapter 4 ; and

(b) fairness to the person who is the subject of the hearing; and

(c) cost and inconvenience to any person; and

(d) any submissions made to the Board by or on behalf of the person who is the subject of the hearing.

(3) If a hearing is terminated under subclause (1)(a) , the complaint is to be dealt with as if it were a complaint made to the Board under Chapter 4 .

(4) The Council, upon the conclusion of the hearing continued under subclause (1)(b) , may take such action as it considers appropriate as if Chapter 4 had not been enacted.

27.    Application to Tribunal

(1) If, before the commencement of Chapter 4 (Complaints and Discipline) of this Act, an application was made under section 72 of the old Act as in force immediately before that commencement, and a hearing in relation to the application had not commenced at that commencement, the application is taken on that commencement to be made under section 464 (Applications to Tribunal) of this Act.

(2) If, immediately before the commencement of Chapter 4 of this Act, a hearing had begun into an application made under section 72 of the old Act as in force immediately before that commencement, but had not been concluded, the Tribunal, as constituted under the old Act as in force immediately before that commencement, may –

(a) terminate the hearing; or

(b) continue and conclude the hearing as if Chapter 4 of this Act had not been enacted.

(3) If a decision is made to terminate the hearing under subclause (2)(a) , the application is to be dealt with as if it were an application made to the Tribunal under section 464 of this Act.

(4) In making a decision under subclause (2) , the Tribunal may have regard to such matters as it considers appropriate, but must have particular regard to –

(a) how far the hearing had progressed by the commencement of Chapter 4 of this Act; and

(b) fairness to the person who is the subject of the hearing; and

(c) cost and inconvenience to the Tribunal, the person who is the subject of the hearing or other persons; and

(d) any submissions made to the Tribunal by or on behalf of the person who is the subject of the hearing.

(5) In a case to which subclause (2)(b) applies, the Tribunal, on the conclusion of the hearing, may take such action as it considers appropriate having regard to the findings of the hearing, as if Chapter 4 of this Act had not been enacted.

28.    Application for rehearing

(1) If, before the commencement of Chapter 4 (Complaints and Discipline) of this Act, an application was made under section 63 of the old Act, as in force immediately before that commencement, and a hearing in relation to the application had not commenced at that commencement, the application is taken on that commencement to be made under section 458 (Application against determinations) of this Act.

(2) If, immediately before the commencement of Chapter 4 of this Act, a hearing had commenced into an application made under section 63(1)(a) of the old Act, as in force immediately before that commencement, but had not been concluded, the Tribunal, as constituted under the old Act as in force immediately before that commencement, may –

(a) terminate the hearing; or

(b) continue and conclude the hearing as if Chapter 4 of this Act had not been enacted.

(3) If a decision is made to terminate the hearing under subclause (2)(a) , the application is to be dealt with as if it were an application made to the Tribunal, as constituted under this Act, under section 464 of this Act.

(4) In making a decision under subclause (2) , the Tribunal may have regard to such matters as it considers appropriate, but must have particular regard to –

(a) how far the hearing had progressed by the commencement of Chapter 4 of this Act; and

(b) fairness to the person who is the subject of the hearing; and

(c) cost and inconvenience to the Tribunal, the person who is the subject of the hearing or other persons; and

(d) any submissions made to the Tribunal by or on behalf of the person who is the subject of the hearing.

(5) In a case to which subclause (2)(b) applies, the Tribunal, on the conclusion of the hearing, may take such action as it considers appropriate, as if Chapter 4 of this Act had not been enacted.

(6) If, immediately before the commencement of Chapter 4 of this Act, a hearing had begun in relation to an application made under section 63(1)(b) of the old Act, as in force immediately before that commencement, but had not been concluded, the Supreme Court is to continue and conclude the hearing and take such action as it considers appropriate, as if Chapter 4 of this Act had not been enacted.

29.    Orders

(1) An order of the Tribunal made under section 76 of the old Act as in force immediately before the commencement of Chapter 4 (Complaints and Discipline) of this Act is taken to have been made under Part 4.7 (Proceedings in Disciplinary Tribunal) of this Act.

(2) An action taken under section 79(2) of the old Act as in force immediately before the commencement of Chapter 4 of this Act is taken to have been taken under section 458 (Application against determinations) of this Act.

(3) An order made under section 81 of the old Act as in force immediately before the commencement of Chapter 4 of this Act is taken to have been made under section 487 (Determination of application) of this Act.

(4) An order made under section 89 of the old Act as in force immediately before the commencement of Chapter 4 of this Act is taken to have been made under section 488 (Orders pending determination of complaint) of this Act.

30.    Determination under section 61 of old Act

(1) A determination made by the Council under section 61(2) of the old Act, as in force immediately before the commencement of Chapter 4 (Complaints and Discipline) of this Act, is taken to have been made by the Board under section 454 (Determination of Board) of this Act.

(2) A determination made by the Council under section 65B(2) of the old Act as in force immediately before the commencement of Chapter 4 of this Act is taken to have been made by the Board under section 456 (Procedure for less serious complaint) of this Act.

31.    Determinations imposing fines

Where a fine imposed on a person pursuant to Part 8 of the old Act as in force immediately before the commencement of Chapter 4 (Complaints and Discipline) of this Act had not been paid, or paid in full, immediately before that commencement, that fine, or the unpaid balance of that fine, is due and payable to the Board, and may be recovered as a debt due to the Board in a court of competent jurisdiction.

32.    Appeals against determination

Where, before the commencement of Chapter 4 , an appeal was made in accordance with section 63 of the old Act, as in force immediately before that commencement, but has not been determined, that appeal is taken to be made under section 458 (Application against determinations) of this Act.

33.    Appeals against orders of Tribunal

Where, before the commencement of Chapter 4 (Complaints and Discipline), an appeal was made in accordance with section 78 of the old Act, as in force immediately before that commencement, but has not been determined, that appeal is taken to be made under section 484 (Appeals against orders of Tribunal) of this Act.

34.    Undertakings

(1) The requirement of a practitioner to give an undertaking to the Council or Tribunal in accordance with a determination or order under Part 8 of the old Act as in force immediately before the commencement of Chapter 4 (Complaints and Discipline) of this Act that has not been complied with immediately before that commencement is taken to be a requirement to give an undertaking to the Board or Tribunal under that Chapter.

(2) An undertaking given to the Council or Tribunal by a practitioner under Part 8 of the old Act as in force immediately before the commencement of Chapter 4 of this Act and subsisting immediately before that commencement is taken to be an undertaking given to the Board or Tribunal under that Chapter, and any breach of the undertaking may be dealt with and have consequences under that Chapter in all respects in the same way as a failure to honour an undertaking given to the Board or Tribunal after that commencement.

35.    Legal Ombudsman

(1) Any complaint lodged under section 85 of the old Act with the Legal Ombudsman for monitoring, investigation or examination and not finally determined before the commencement of Chapter 4 (Complaints and discipline) is to be referred to the Board for investigation under section 440 (Complaints to be investigated) of this Act.

(2) The Legal Ombudsman is to forward any documents in his or her possession relating to his or her functions under the old Act to the Board within 30 days of the commencement of Chapter 4 .

36.    Managers

Chapter 5 (External Intervention) applies in relation to a manager appointed under Division 6 of Part 9 of the old Act before the commencement of Chapter 5 of this Act as if the manager had been appointed under that Chapter.

37.    References to legal practitioner

A reference in any Act or statutory rule made before the commencement of Part 1.2 (Interpretation) or in any document to –

(a) a legal practitioner, is to be read as a reference to an Australian legal practitioner within the meaning of this Act; and

(b) a practitioner, is to be read as a reference to an Australian legal practitioner within the meaning of this Act; and

(c) a barrister, is to be read as a reference to a barrister within the meaning of this Act; and

(d) a solicitor, or a solicitor and barrister, is to be read as a reference to an Australian legal practitioner within the meaning of this Act –

except where the Act, statutory rule or document otherwise provides or the context or subject matter indicates that the term is to have a different meaning.

38.    General savings and transitional provision

(1) If any thing of a kind required or permitted to be done under a provision of this Act was done under a corresponding provision of the old Act and still had effect immediately before the commencement of section 4 of this Act, the thing continues in effect on and after that commencement as if –

(a) this Act had been in force when it was done; and

(b) it had been done under this Act.

(2) If subclause (1) applies in relation to the signing, lodgment, issue or publication of a written instrument, a reference in the instrument to a provision of the old Act must, for that subclause, be read as a reference to the corresponding provision of this Act.

(3) Without limiting subclauses (1) and (2) , if a provision of the old Act that corresponds to a provision of this Act would, but for its repeal, have applied in relation to any thing done or being done or in existence before the commencement of this Schedule, the provision of this Act applies (with the necessary modifications) in relation to the thing.

(4) This clause does not have effect to the extent that –

(a) other provision is made by this Schedule; or

(b) the context or subject matter otherwise indicates or requires.

(5) In addition, this clause has effect subject to any transitional regulations that may be made under clause 40 .

39.    Continued application of old Act

If a provision of the old Act continues to apply under this Schedule, the following provisions also continue to apply in relation to the provision:

(a) other provisions of the old Act necessary to give effect to the continued provision;

(b) subordinate legislation made under the old Act for the continued provision as in force immediately before the commencement of section 4 of this Act.

40.    Transitional regulations

(1) The regulations may make provision (a " transitional regulation " ) in respect of a matter for which –

(a) it is necessary to make provision to allow or facilitate the doing of any thing to achieve the transition from the operation of the old Act to this Act; and

(b) this Act does not make provision or sufficient provision.

(2) A transitional regulation may have retrospective operation to a date not earlier than the date of the commencement of this Schedule.

(3) Regulations made under subclause (1) , if the regulations so provide, are to have effect notwithstanding the provisions of this Schedule.