no. 6291. legal profession practice act 1958. · 1958. legal profession practice. no. 6291 92a no....

1958. Legal Profession Practice. No. 6291 92a

No. 6291.

LEGAL PROFESSION PRACTICE ACT 1958.

An Act to consolidate the Law relating to the Law Institute of Victoria and regulating the Practice of the Legal Profession.

[30th September, 1958.]

BE it enacted by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and

the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to s a y ) : —

1. This Act may be cited as the Legal Profession Practice Act short uti« 1958, and shall come into operation on a day to be fixed by mennfST proclamation of the Governor in Council published in the Ai«fi0I,<rf

Government Gazette, and is divided into Parts as follows:— Part I.—General Provisions relating to Rights and

Privileges of Barristers and Solicitors ss. 3-12. Part II.—Council of Legal Education—Constitution and

Powers ss. 13-14 . Part I II .—Law Institute ss. 15-38. Part IV.—Solicitors' Trust Accounts and Special

Examination and Audit of Accounts ss. 39-50. Part V.—Provisions relating to the Solicitors' Guarantee

Fund, Examination and Audit of Solicitors' Trust Accounts, Annual Practising Certificates and Offences &c. ss. 51-104.

Division 1.—Preliminary s. 5 1 .

924 1958. Legal Profession Practice. No . 6291

Division 2.—Solicitors' Guarantee F u n d ss. 52-73 . Division 3.—Examination and Audit of Trust

Accounts ss. 74-78. Division 4 .—Annua l Practising Certificates ss.

79-87. Division 5.—Rules ss. 88-89. Division 6.—Offences ss. 90-99. Division 7.—Miscellaneous ss. 100-104.

Par t VI.—Admission of persons elsewhere admitted ss. 105-109.

Par t VII.—Miscellaneous ss. 1 1 0 - 1 1 5 .

Repeal. 2 . ( 1 ) The Acts mentioned in the Schedule to the extent schedule. thereby expressed to be repealed are hereby repealed accordingly.

( 2 ) Except as in this Act expressly or by necessary implication provided—

(a) all persons things and circumstances appointed or created by or under any of the repealed Acts or existing or continuing under any of such Acts immediately before the commencement of this Act shall under and subject to this Act continue to have the same status operation and effect as they respectively would have had if such Acts had not been so repealed;

(b) in particular and without affecting the generality of the foregoing paragraph, such repeal shall not disturb the continuity of status operation or effect of any regulation rule by-law order application decision contract appeal proceeding cancellation suspension delegation certificate examination audit nomination election membership appointment account fund fee charge liability or right made effected issued granted given presented passed fixed accrued incurred or acquired or existing or continuing by or under any of such Acts before the commencement of this Act.

PART I.—GENERAL PROVISIONS RELATING TO RIGHTS AND PRIVILEGES OF BARRISTERS AND SOLICITORS.

Interpretation 3 . In this Par t " barrister " means a barrister of the Supreme NO. 3715 s. 3. c o u r t a n ( j « s o i i c i t o r " means an attorney solicitor and proctor of

the said court.

wghtsjpowera 4 . ( 1 ) Every person admitted as a barrister of the Supreme S? pe'Sons'868 Cour t pr ior to the twenty-third day of November O n e thousand admitted.y eight hundred and ninety-one shall be deemed to have been NO. 3715 s. 4. admitted as a soiicitor as from such date and subject to any

1958. Legal Profession Practice. No. 6291 925

order made by such Court shall in addition to his right to practise as a barrister be entitled to practise as a solicitor and to all the rights, powers, and privileges of a solicitor.

(2) Every person admitted as a solicitor of the Supreme Court prior to such date shall be deemed to have been admitted as a barrister as from such date, and subject to any order made by such Court shall in addition to his right to practise as a solicitor be entitled to practise as a barrister and to all the rights, powers, and privileges of a barrister.

(3 ) Every person admitted as a barrister and solicitor of such court prior to the commencement of this Act shall subject to any order made by such Court have all the rights, powers, and privileges of a barrister and solicitor under this Act.

5 . ( 1 ) No person shall be admitted to practise as a barrister or solicitor solely, but every person admitted by the Supreme Court shall be admitted to practise as a barrister and solicitor.

(2) Except so far as may be otherwise specially enacted every person shall before he is admitted and enrolled as a barrister and solicitor take the oath of allegiance and an oath that he will well and honestly demean himself in the practice of the profession of a barrister and solicitor according to the best of his knowledge and ability and admission shall be deemed not to be complete until an order of the Court for admission has been taken out and the roll signed.

(3 ) Every person duly admitted as a barrister or solicitor or as a barrister and solicitor shall while his qualification continues be entitled to practise in or before the courts or persons mentioned in section one hundred and eleven of this Act on compliance with the special provisions if any relating to the right to practise in such courts or before such persons.

6. No person shall by reason of sex be deemed to be under any sex disability for admission to practise as a barrister and solicitor of the J^,<^^Ut^ Supreme Court any law or usage to the contrary notwithstanding.

7 . Subject to the rights of precedence of Her Majesty's Precedence of Attorney-General and Her Majesty's Solicitor-General (who shall solicitors, have precedence after the Attorney-General) and Her Majesty's J j ° / !2£^ :

Counsel the right of precedence among barristers and solicitors (O («). *" shall be regulated by the date of their admission as barristers or solicitors or as barristers and solicitors.

8. Except so far as is otherwise expressly enacted no barrister NO barrister or or solicitor or barrister and solicitor shall be in any manner offlcefof*01" whatsoever an officer of the Supreme Court : Provided that ^ " " ^ j 8 nothing herein contained shall prevent the Supreme Court from °"

VOL. IV.—30

No person to be admitted as barrister or solicitor solely. No. 3715 s. 5.

Oaths.

Right to practise in all courts.

926 1958. Legal Profession Practice. No. 629!

Fees on admission &c. No. 3715 s. 9; No. 5182 a. 59.

Barristers may sue for work done and are to be liable for negligence. No. 3715 a. 10.

having and exercising the same summary jurisdiction over every barrister and solicitor as the Court could heretofore have exercised in the case of solicitors.

9. (1 ) Before any person is admitted to practice as a barrister and solicitor after the commencement of Part VII . of the Legal Profession Practice Act 1946 he shall pay into court or to such officer or person as the Judges of the Supreme Court may by rules prescribe a fee of Ten guineas and thereafter every person who was so admitted after the said commencement shall pay annually to such officer or person as the Judges of the Supreme Court may by rules prescribe a fee of Two guineas until he has paid in the aggregate (including the initial payment of Ten guineas) an amount of Forty guineas or such smaller amount as the Judges of the Supreme Court may fix by rule.

(2 ) Notwithstanding anything in any Act the Judges of the Supreme Court may make rules for fixing the amount aforesaid and for fixing the time and manner of payment of the said fees by persons to be admitted or admitted as aforesaid, and may fix different methods of payment in respect of persons so admitted according to the nature of their practice, and for fixing the mode of application of the said fees, and no person shall be granted a practising certificate in any year unless he has paid every such fee then due and payable by him.

10. (1) Every barrister shall be entitled to maintain an action for and recover from the solicitor or client respectively by whom he has been employed his fees costs and charges for any professional work done by him.

(2) Every barrister shall be liable for negligence as a barrister to the client on whose behalf he has been employed to the same extent as a solicitor was on the twenty-third day of November One thousand eight hundred and ninety-one liable to his client for negligence as a solicitor.

Restriction as to costs. No. 3715 a 11.

1 1 . No barrister and solicitor shall be entitled to any costs whether as between party and party or between solicitor and client for instructions to or attendances upon counsel he or his partner or partners being such counsel or for attendances at court on trial or hearing or in chambers as solicitor where he or his partner or partners are also acting and receiving a fee as counsel for the like attendance and for the same client.

provision as to 12 . (1 ) Any barrister and solicitor who in any cause or matter caM^SSurt* has received or agreed to receive a fee for work, the whole or amTaoBcitor. any port ion of which involves a t tendance in cour t and who does not No.37i5s.iz give substantial attendance to such cause or matter in court, shall

http://No.37i5s.iz


return to the client by or on whose behalf he has been employed or shall be deprived of the whole or such portion of such fee as the taxing master or other taxing officer may determine on the application of such client.

(2) The question whether or not any barrister and solicitor has given such substantial attendance to any cause or matter in court shall be decided by the taxing master or other taxing officer subject to an appeal to a judge of the Supreme Court in chambers, and such decision shall not affect any liability which such barrister and solicitor has incurred for negligence.

(3) No contract or agreement between a barrister and solicitor and any other person shall have any force or effect in so far as such contract or agreement is contrary to the provisions of this section.

PART II.—COUNCIL OF LEGAL EDUCATION—CONSTITUTION AND POWERS.

13. (1) There shall be a Council of Legal Education in and coumca of for the State of Victoria. Such council shall consist of the &fcatk» judges of the Supreme Court the peison for the time being holding tabiished. the office of Attorney-General the person for the time being N0. |TIS •. i3S holding the office of Solicitor-General the person for the time «)<»>."" being holding the office of the Dean of the Faculty of Law of the University of Melbourne and two members nominated by the council of such University and three members nominated annually by the Council of the Law Institute of Victoria and three members nominated annually by the Victorian Bar Council. Such members shall be nominated before or during the year for which they are nominated and shall hold office until the thirty-first day of December of that year and be eligible for re-appointment. The failure of any of such bodies to nominate members of the Council of Legal Education shall not nor shall any other vacancy in the council affect the acts or authority of the said council.

(2) The council shall have power to appoint a secretary.

(3) The Chief Justice shall be president of the council, and the Chief Justice or in his absence the senior or only puisne judge present shall be the chairman at meetings of the council.

(4) All questions coming before a meeting of the council shall be decided by the majority of votes of members present at the meeting, and the chairman shall have an additional vote where otherwise there would be an equality of votes, and in every such case the decision so arrived at shall be the decision of the council.

928 1958. Legal Profession Practice. No. 6291

Power to Council to frame reguIa:ions. No. 3715 s. 14; No. 4191 s. 2.

Rules as to qualifications of barristers and solicitors.

Rules to be laid before Parliament.

Postponement by Governor In Council.

Publication and coming into operation.

14. (1) The council may frame regulations fixing the times of meetings and for regulating its proceedings and for the nomination of the members to be nominated by the Council of the Law Institute and the Victorian Bar Council and to fill vacancies in the said council.

(2) Subject to the provisions of this Act the council may from time to time make and alter rules relating to the courses of study and examination service of articles and other qualifications of candidates to practise as barristers and solicitors and for the admission of such candidates to practice.

(3) Subject to the provisions of this Act the council may make and alter rules for the purposes of sections one hundred and five, one hundred and seven, and one hundred and nine of this Act.

(4) The rules made by such council after the same come into operation by virtue of the provisions of this Act shall have the force of law.

(5) The rules made by the Council of Legal Education shall be forthwith signed by the Chief Justice or in his absence from Victoria the senior puisne judge and by the secretary to the council and shall be transmitted to the Governor in Council, and shall be laid before both Houses of Parliament within fourteen days if Parliament is then sitting and if Parliament is not then sitting then within fourteen days after the next meeting of Parliament.

(6) The Governor in Council may if Parliament is not in session by Order in Council postpone the coming into operation of the said rules until after the expiration of one month after the meeting of Parliament in the next ensuing session.

(7) Any rules so made shall be published in the Government Gazette and shall come into operation after the expiration of one month from their transmission to the Governor in Council or from any later date prescribed therein unless their operation is postponed by Order in Council made under the provisions of the last preceding sub-section. Any such rules may within one month after the same have been laid before Parliament be disallowed by resolution of either House of Parliament and any rules so disallowed shall thenceforth become void and of no effect but without prejudice to the validity of any proceedings which may in the meantime have been taken under the same.

Interpretation. No. 3714 s. 3.

" Chairman."

" Chief Justice.-'

PART III.—LAW INSTITUTE.

15. (1) In this Part unless inconsistent with the context or subject-matter—

" Chairman " includes acting chairman. " Chief Justice " means the Chief Justice of the Supreme

Court and includes " Acting Chief Justice," and in the absence of the Chief Justice and the Acting Chief Justice from duty means the senior puisne Judge for the time being.


" Council " means the council of the institute. " council." "Institute" means the Law Institute of Victoria "institute."

incorporated by the Law Institute Act 1917. "Misconduct" means misconduct in a professional "Mis- _

capacity or any other conduct in respect of which an application might at the date of the commencement of the Law Institute Act 1917 have been made to the Supreme Court by any person to strike a practitioner off any roll of practitioners or to require a practitioner to answer allegations contained in an affidavit.

" Practitioner " means a person duly admitted as a barrister *: Prac- n and solicitor or a barrister or an attorney solicitor and proctor of the Supreme Court.

" Supreme Court" means the Supreme Court of the State " supreme r c IT- . • Court." of Victoria.

The Law Institute of Victoria and the Council. 16. (1) There shall be a body corporate by the name of the incorporation

Law Institute of Victoria which is hereby declared to have been fnstitute. established and incorporated by the Law Institute Act 1917. No.37i48.4.

(2) The institute shall consist of all practitioners who have become or who become members of the institute so long as such practitioners respectively continue to be members of the institute.

17. The institute shall have perpetual succession and a corporate common seal and may break or alter the seal or make a new N°O.3714S.5 seal and by its corporate name shall be capable of suing and being sued and of acquiring receiving and holding real and personal estate of any nature and kind whatsoever and of conveying transferring demising exchanging and otherwise disposing of or mortgaging its property and subject to this Act of doing all such other things as it deems expedient for effectuating its objects.

18. There shall be a president and vice-president of the Officers of the

institute who shall be elected from the members of the council by N " " " ^ S. 6; the institute in general meeting. NO. so8os.2.'

19. Subject to this Part and the by-laws and rules of the Practwoners institute every person who is for the time being entitled to practise membership as a practitioner in the Supreme Court shall be entitled to be a institute,

member of the institute. No.37i4s.7.

20. If any member of the institute, in consequence of a DIS- . . , J , e j , i. M. • • j m A.' • qualification

judgment or order of any court of competent jurisdiction, is of member, rendered incapable of practising in the Supreme Court or in the No.37i4s.8. High Court of Australia or in any of the superior courts of justice in any part of Her Majesty's dominions he shall forthwith cease to be a member of the institute.


council of the 2 1 . ( 1 ) There shall be a council of the institute consisting institute. A / . , °

No. 3714 s. 9: of the following persons, namely— (a) the Attorney-General of Victoria; (b) every member of the institute who is president for

the time being of— (i) the body of persons known as the Bendigo

Law Association; (ii) the body of persons known as the Ballarat

District Law Association; (iii) the body of persons known as the Geelong

Law Association; (iv) the body of persons known as the Gippsland

Law Association; (v) the body of persons known as the Goulburn

Valley Law Association; (vi) the body of persons known as the

North-Eastern Law Association; (vii) the body of persons known as the Western

Law Association; (viii) the body of persons known as the Wimmera

Law Association; (ix) any other body of persons forming an

association of practitioners in any part of Victoria which the council by resolution recognizes as an association entitled to be represented by a member of the council; and

(c) eighteen other members of the institute elected by the institute in such manner and divided into such classes as the by-laws of the institute provide.

Casuai ( 2 ) The institute may by by-laws of the institute provide *eroundin t n a t a casual vacancy in the office of president vice-president

or any elected member of the council may be filled by the council.

QU O rum. ( 3 ) A quorum of the council shall consist of seven members. Acts of council ( 4 ) The continuing members of the council may (provided vSlScies. there is a quorum) act notwithstanding any vacancy in their

body and no act done by or by the authority of the council shall be invalid in consequence of any defect that is afterwards discovered in the election or qualification of the members or any of them.

Power to call 22 . Subject to any by-laws or rules of the institute for the meetings of purpose the council may convene general meetings of the institute the institute. a t s u c ] j times and places and in such manner as the council No. 3714 s. 10. j . , - . r

thinks fit.


23. (1) Subject to this Part and the by-laws of the institute Council to

the council— management of institute's

(a) shall have the sole management of the institute and of affa"*-the affairs and concerns and the funds income and N o " U s 1 1 -property thereof for the purposes and benefit of the institute;

(b) may make rules of the institute in pursuance of any power in that behalf conferred by by-laws of the institute; and

(c) may exercise all powers vested in the institute and do all such acts and things as are hereby directed or authorized to be done by the institute, excepting only such powers acts and things as are expressly required by this Part or the said by-laws to be exercised or done by the institute in general meeting.

(2) Notwithstanding anything in this Part the by-laws of the institute may authorize the council to delegate to committees of the council, which may consist of one or more members of the council, any of the powers of the council other than the power of delegation.

24. (1) Subject to this Part the institute in general meeting „*£;£„£ of'he

may make by-laws for or with respect to— No.37i4s. 12: (a) defining the objects of the institute; (b) the regulation and good government of the institute

and of the members and affairs thereof; (c) the time place and management of and regulation of

proceedings at meetings of the °institute or of the council or of any committee of the council and the management regulation and transaction of the business of the institute or the council or any committee of the council;

(d) the convening of ordinary and special meetings of the institute;

(e) the division of members of the council into classes, the election (including the definition of the qualification of candidates) of members of the council, the election of the president and vice-president and the filling of casual vacancies in the council and in the offices of president and vice-president;

(/) the custody and use of the common seal; (g) the admission resignation and expulsion of members

of the institute; (h) the re-entry of persons who have ceased to be

members;

932 1958. Legal Profession Practice. No. 629l

Power of Governor in Council to revoke by-laws and rules.

Institute's right of audience In matters affecting practitioners. No. 3714 s 13.

(/) fees and subscriptions payable in respect of membership;

(/') empowering the council to make rules of the institute for any purpose specified in the by-laws; and

(k) generally, all matters necessary or convenient for carrying the objects of the institute into full and complete effect.

(2) Any by-law or rule of the institute may (without prejudice to any other method of revocation) be revoked by Order of the Governor in Council.

25. (1) The council may appoint any practitioner to appear before any court in any matter affecting the institute or the members thereof or in which the institute is directly or indirectly concerned or interested.

(2) Any practitioner so appointed shall have audience in any court in any such matter, including—

(a) the conducting of any prosecution or other proceeding instituted by the institute;

(b) the opposing of or objecting to any application for admission as a practitioner; or

(c) moving that any practitioner be suspended from practice, or be struck off any roll of practitioners, or be called upon to answer any matters alleged or contained in any affidavit or be otherwise dealt with on the ground of misconduct.

Institution of proceedings upon behalf of the institute. No. 3714 s. 14.

26. (1) The president or vice-president of the institute or any other person 4uly authorized by the council in that behalf may institute prosecutions and other proceedings in the name of the institute for the breach of any statute or rules of any court relating to the practice of the law or to the preparation of deeds or instruments relating to real or personal estate.

(2) Unless it is proved to the contrary every such prosecution or other proceeding shall be deemed to be instituted by and on behalf of the institute.

The statutory committee. No. 3714 s. 15.

The Statutory Committee.

27. (1) There shall be a committee (to be called the Statutory Committee") with the powers and duties hereinafter provided for.

(2) Any practitioner (whether a member of the institute or not) shall be eligible to be a member of the statutory committee.

(3) The statutory committee shall consist of six members appointed by the Chief Justice.


(4) A member of the statutory committee shail be appointed Termot for a term of three years.

(5) Any member shall be eligible for re-appointment.

(6) Any casual vacancy in the statutory committee may be casual filled by the appointment by the Chief Justice of an eligible person thereto for the remainder of the term of office of the person whose seat has become vacant.

(7) The statutory committee shall appoint for such term not chairman, exceeding three years as it thinks fit one of its number to be the chairman thereof.

(8) A quorum of the statutory committee shall consist of Quorum, three members thereof.

(9) The continuing members of the statutory committee may Acts of (provided there is a quorum) act notwithstanding any vacancy 5>amUm°ttee in their body; and no act done by or by the authority of the vacancies. statutory committee shall be invalid in consequence of any defect that is afterwards discovered in the appointment or qualification of the members or any of them.

• 28. (1) Any person feeling aggrieved by reason of the alleged complaints to misconduct of any practitioner (whether such alleged misconduct respect of any

occurred before or after the commencement of this Act) may by NO^TMT'I*. himself or his agent make a charge thereof in writing to the council or to the statutory committee and the council shall forthwith refer to the statutory committee any such charge received by it.

(2) The council may of its own motion refer to the statutory Reference to committee for inquiry any question as to the misconduct of any £"nKlee.ty

practitioner which appears to the council to require investigation, and may appoint some person to act on its behalf with respect thereto.

(3) The Supreme Court or a judge thereof may refer to the Reference of statutory committee for inquiry any question as to the misconduct questions to of any practitioner which appears to the court or judge to require statutory

investigation.

29. The council may either at the request of the statutory committee or of its own motion appoint a practitioner to investigate any charge made to or any charge or question referred to the statutory committee and to present the same to the statutory committee.

30. (1) The statutory committee—

committee for inquiry.

Appointment of practitioner to invesiigata and present charges. No. 3714 s. 17.

Power of committee to

(a) may require that further particulars be given of any require further i_ J A ^ i i •/» i i J particulars of

charge and that any charge be verified by statutory charge &c. declaration; N°- «M S. ia.


Power to summon practitioners and inquire.

Powers upon inquiry-

Proceedings ex parte if practitioner does not attend when summoned.

Status of committee.

(b) may summon before it any practitioner in respect of whose misconduct any charge has been made to or any charge or question has been referred to the statutory committee, and may inquire into the same; and

(c) shall for the purposes of conducting any inquiry authorized to be made under this Part have all the powers conferred by sections fourteen to sixteen of the Evidence Act 1958 upon a board appointed by the Governor in Council.

(2) If any practitioner having been duly summoned fails to attended at the meeting for which he has been summoned or at any adjournment thereof the statutory committee may proceed with the inquiry in his absence.

(3) The chairman and the other members of the statutory committee shall in the exercise of their functions under this Act be officers of the Supreme Court.

Witnesses compellable to give evidence. No. 3714 s. 1*.

Protection to witnesses

31. (1) Any person in any examination before the statutory committee may object to any question upon the ground that the answer may tend to incriminate him but shall be compellable to answer such question notwithstanding such objection.

(2) No answer given subject to such objection shall be permitted in evidence upon any other proceedings for any offence except that of perjury in connexion with the inquiry.

Committee to report to the Supreme Court. No. 3714 s. 20.

Dissent from findings.

Effect of report by the committee.

Jurisdiction of the Court.

32. (1) If after inquiry into any charge made to or any charge or question referred to it the statutory committee is of opinion that the practitioner has been guilty of any misconduct it shall make and transmit a report thereon to the Supreme Court together with a copy of the evidence taken on the inquiry.

(2) If any member of the statutory committee dissents therefrom the report shall state the fact of dissent and specify the findings dissented from.

(3) The Supreme Court may refer any report of the statutory committee back for further inquiry or for amendment and may review any finding of fact therein.

(4) Subject to any such reference back or review every report of such committee shall for the purposes only of this Act be conclusive evidence of all statements and findings of fact therein contained.

(5) The Supreme Court may upon motion and upon reading the report of the statutory committee upon any charge made to or any charge or question referred to it and (whether with or without any further evidence) make such order as the said court thinks fit.


(6) The statutory committee if it finds that any misconduct alleged by a person aggrieved in any charge as aforesaid has not been proved may order the person making the charge to pay to any practitioner against whom it was made the whole or any part of the costs of the proceedings and incidental thereto.

(7) Such costs shall be taxed by the taxing master of the Supreme Court who shall give his allocatur in respect thereof.

(8) Every such order may be enforced and such costs may be recovered by execution or otherwise in the same manner as if the taxing master's allocatur were a judgment of the Supreme Court for the payment of a liquidated sum of the amount at which such costs are so taxed or allowed.

33. (1) Notwithstanding anything in this Part— ri!jh>n,aaioniof

(a) any person who but for this Part would have been {g^^01"1

entitled to apply to the Supreme Court to strike No.i7i4s.2i. a practitioner off any roll of practitioners or to apply to require a practitioner to answer allegations contained in an affidavit shall be entitled so to apply whether the matter complained of has or has not been inquired into by the statutory committee; and

(b) the institute may in any like case make a like application to the Supreme Court.

(2) Upon any application under this section the Supreme Court—

(a) may deal with the application; (b) may refer the matter to the statutory committee for

inquiry and report; (c) may also require the statutory committee to transmit

to the said court a report upon any inquiry held by the statutory committee into the same subject-matter;

(d) may take such reports into consideration upon the hearing of the application.

(3) For the purposes of any inquiry necessary to make such a report the statutory committee shall have and may exercise all such powers as are conferred upon it with respect to any other inquiry under this Part and for the purposes only of this Part every such report shall subject to any reference back or review by the court be conclusive evidence of all statements and findings of fact therein contained.

34. Notwithstanding anything in this Part— Power m appoint speciah

(a) where any charge is made to or any charge question Sffig^, ,n or matter is referred to the statutory committee SitSoaSes and before the statutory committee makes its »<>•«" *•»-"-

Power of committee to award costs when charge dismissed.

http://No.i7i4s.2i


Power to make rules regulating practice of the committee. No. 3714 8.23.

report thereon the Supreme Court or a judge thereof on the application of the institute or of any person concerned may in any case where in the opinion of the said court or judge the circumstances warrant the appointment appoint a special statutory committee consisting of six practitioners (whether members of the institute or not);

(b) any such special statutory committee and the chairman thereof shall to the exclusion of the statutory committee and the chairman thereof have and may exercise in respect of any such charge question or matter all the powers conferred and be subject to all the duties imposed by this Part on the statutory committee or the chairman thereof (as the case may be) and the provisions of this Part and any rules of court hereunder relating to the statutory committee shall so far as applicable and with such adaptations as are necessary be read and construed and take effect accordingly.

35. (1) The judges of the Supreme Court may make rules of court for—

(a) regulating the practice and proceedings of the statutory committee;

(6) conferring upon the statutory committee any further powers necessary or convenient for the due fulfilment of its functions; and

(c) generally, carrying into effect the provisions of this Part relating to the statutory committee and its functions.

(2) The provisions of section twenty-seven of the Supreme Court Act 1958 shall extend and apply to the making of such rules and to such rules when made.

Members entitled to copy of the rules &c. No. 3714 s. 24.

Miscellaneous Provisions. 36. Every member of the institute and every practitioner shall

be entitled upon payment of the sum of One shilling to receive a printed copy of all by-laws and rules of the institute in force for the time being.

Minutes to be kept. No. 3714 s. 25.

37o (1) The institute shall cause minutes of all proceedings of all meetings of the institute and of the council to be entered in books kept for the purpose, and may cause minutes of any proceedings of any committee of the council to be so entered.

(2) The statutory committee shall cause minutes of all its proceedings to be entered in a book kept for the purpose.


38. (1) The production of a document purporting to be a Evidence of written or printed copy of any by-laws or rules of the institute r

,uiersand

made pursuant to this Part and purporting to be signed by the NO.37MS.26. president or vice-president of the institute shall be prima facie evidence of the due making and existence of such by-laws and rules and of the time at which the same came into force without further proof of the making of the same or of the performance of any condition the doing of any act or the lapse of any time respectively necessary to give them validity.

(2) Any minutes of any proceedings at any meeting of the Evidence of institute or of the council or of any committee of the council or """""e8*0-of the statutory committee signed by any person purporting to be the chairman of the meeting and purporting to be so signed either at the meeting at which such proceedings took place or at the next ensuing meeting and any document purporting to be a copy thereof or an extract therefrom and purporting to be signed by the president or vice-president of the institute in the case of minutes other than those of the proceedings of the statutory committee or by the chairman of the statutory committee in the case of minutes of the proceedings thereof shall without further proof be admissible in evidence in all proceedings before any court or any person acting judicially within the meaning of the Evidence Act 1958; and until evidence is given to the contrary every meeting in respect of the proceedings of which the minutes have been so made shall be deemed to have been duly convened and held and all the members thereof to have been duly qualified and when such proceedings are proceedings of any committee of the council or of the statutory committee until the contrary is proved any such committee of the council or the statutory committee (as the case may be) shall be deemed to have been duly and regularly constituted and to have had power to deal with the matters referred to in such proceedings.

(3) In any legal proceedings within the meaning of the Evidence of Evidence Act 1958 no proof shall until evidence is given to the tacorP°r',tion-contrary be required of the incorporation of the institute.

PART IV.—SOLICITORS' TRUST ACCOUNTS AND SPECIAL EXAMINATION AND AUDIT OF ACCOUNTS.

39. (1) In this Part unless inconsistent with the context or interpretation, .subject-matter— *& «JJ| £ &.

"Agent" in relation to any solicitor includes banker "Agent" of the solicitor and any person employed by the solicitor as accountant or auditor, whether such person is or is not a servant of the solicitor, and also includes any person who at any time has been or has acted as banker accountant or auditor or otherwise as agent of the solicitor.

http://no.37Ms.26


" Moneys" includes an instrument for the payment of money in any case where the instrument may be paid into a bank.

" Moneys received for or on behalf of any person" includes moneys held for or on behalf of any person whether originally received for or on his behalf or not.

" Servant" in relation to any solicitor includes former servant of the solicitor,

solicitor." " Solicitor " means a barrister and solicitor of the Supreme Court engaged in the practice of his profession either solely on his own account or in partnership with any other person or persons and who or the firm of which he is a partner in the course of such practice receives any money upon trust or upon terms requiring him to account to any person therefor.

(2) In this Part any reference to moneys received by a solicitor shall be deemed to include a reference to moneys received in the course of or in connexion with the practice by any partner of that solicitor or by any of his or the firm's clerks or servants or by any practitioner with whom he or the firm shares the remuneration for any business.

Solicitors' Trust Accounts.

40. (1) All moneys received for or on behalf of any person by any solicitor, unless forthwith paid by the solicitor to such person or as such person directs (whether generally or in any particular case)—

(a) shall forthwith be paid into a bank in Victoria to a trust account (whether general or particular) designated or evident as such; and

(b) shall be retained in such trust account until paid to such person or as such person directs or otherwise according to law.

(2) Such moneys shall not be available for payment of the debts of the solicitor to any other creditor of the solicitor or be liable to be paid or taken in execution under the order or process of any Court at the instance of any such creditor.

(3) Nothing in this section shall be construed as taking away or affecting any lawful claim or lien which the solicitor has against or upon any of such moneys.

(4) Any solicitor who— (a) contravenes any of the provisions of sub-section (1)

of this section shall be liable to a penalty of not less than Ten pounds and not more than One hundred pounds; or

' Moneys.''

" Moneys received for or on behalf of any person."

' Servant.'

As to references to moneys received by a solicitor.

Moneys to be paid by solicitor into bank to trust account. No. 4418 s. 3.


(b) with intent to defraud contravenes any of the provisions of sub-section (1) of this section shall be guilty of a misdemeanour and liable to a penalty of not less than Fifty pounds and not more than Two hundred and fifty pounds or to imprisonment for a term of not more than two years or to both such penalty and imprisonment.

41. (1) Every solicitor shall keep accounts of all moneys Keeping of so received by him and of any disbursement or disposal thereof accolinM-or dealing therewith, in such manner as to disclose the true position in regard thereto and to enable the accounts to be conveniently and properly audited.

(2) Any solicitor who contravenes the provisions of sub-section (1) of this section shall be liable to a penalty of not more than One hundred pounds.

42. (1) If at any time there is any deficiency of money in •or payable into any trust account of any solicitor such solicitor shall unless he gives a sufficient and satisfactory explanation of such deficiency be guilty of a misdemeanour and shall be liable to imprisonment for a term of not more than seven years.

(2) Any solicitor who fails to account for any security or moneys received for or on behalf of any person by him for any purpose whatsoever shall unless he gives a sufficient and satisfactory explanation of such failure be guilty of a misdemeanour and shall be liable to imprisonment for a term of not more than seven years.

(3) No prosecution under this section shall be commenced without the written consent of the Attorney-General.

43. (1) Subject to the provisions of this section no bank Relief to shall, in connexion with any transaction on any account of any ^4418 solicitor kept with it or with any other bank (other than an account kept'by a solicitor as trustee for a specified beneficiary), incur any liability or be under any obligation to make any inquiry or be deemed to have any knowledge of any right of any person to any money paid or credited to any such account which it would not incur or be under or be deemed to have in the case of an account kept by a person entitled absolutely to all the money paid or credited to it:

Provided that nothing in this sub-section shall relieve a bank from any liability or obligation under which it would be apart from this Part.

(2) Notwithstanding anything in the last preceding sub-section, a bank at which a solicitor keeps a trust account designated or evident as such shall not, in respect of any liability

Defalcation by solicitor a misdemeanour. No. 4924 8. 3.


of the solicitor to the bank, not being a liability in connexion with that account, have or obtain any recourse or right, whether by way of set off, counter claim, charge, or otherwise, against moneys standing to the credit of that account:

Provided that nothing in this sub-section shall deprive a bank of any right existing at the commencement of the Legal Profession Practice Act 1936.

Power to Attorney-General to appoint inspector to examine and audit books and accounts of solicitor. No. 4418 s. 6; No. 4924 s. 2.

Verification of statements.

Statement in applications to be privileged.

Special Examination and Audit of Solicitors' Accounts.

44. (1) The Attorney-General may upon application in writing addressed to him in that behalf by—

(a) any person alleging that— (i) any solicitor holds or has held money or

any securities belonging to or for or on behalf of such person; and

(ii) such solicitor has failed to account to such person in respect of any such money or security; or

(b) the secretary of the Law Institute of Victoria stating that the council of that institute has good reason to believe that—

(i) any solicitor holds or has held money or any securities belonging to or for or on behalf of any person; and

(ii) such solicitor has failed to account to such person in respect of any such money or security—

appoint in writing a competent inspector to examine audit and report upon the books and accounts either generally or in relation to any particular matter of that solicitor.

(2) Every such application shall state— (a) particulars of the relationship between such person

and the solicitor; (b) particulars of the money or security in respect of

which the solicitor is alleged to have failed to account to such person and of any transactions relating thereto; and

(c) such other particulars as are prescribed.

(3) Every statement in any such application shall be verified by a statutory declaration made by the applicant.

(4) Every statement made in any application shall if made bona fide and without malice be privileged.


(5) The Attorney-General shall before appointing such Matters inspector be satisfied— Attorhney-

General to be

(a) that the applicant has good reason for and is not satisfied. actuated by malicious motives in making the application; and

(b) that it is expedient in the interests of the solicitor or such person or the public generally that the books and accounts of the solicitor should be examined audited and reported upon as aforesaid.

(6) The Attorney-General may if he thinks fit before appointing such inspector give such solicitor a reasonable opportunity of being heard upon the matters alleged in such application.

(7) (a) Where the Attorney-General has appointed a n Accounts and incnoofnr books of bank inspector relating to

solicitor's (i) on demand in writing in that behalf made by the account,

inspector every bank at which the solicitor keeps a trust account designated or evident as such shall produce to the inspector any books accounts cheques or other documents of the bank relating to such account;

(ii) on demand in writing made in that behalf by the Attorney-General after satisfying himself that examination of the private banking account of the solicitor is reasonably necessary to enable the inspector to complete his examination and audit of and report on the books and accounts of the solicitor, every bank shall produce to the inspector any books accounts cheques or other documents of the bank relating to the solicitor's private account or any specified part thereof.

(b) For the purposes of this Act the bank shall be deemed to be the agent of the solicitor and such books accounts and documents shall be deemed to be the books and accounts of the solicitor.

(c) No bank shall incur any liability whether in respect of any breach of trust or otherwise by reason only of any disclosure made pursuant to this sub-section.

45. (1) For the purpose of carrying out an examination Empioymem and audit of the books and accounts of the solicitor under this Mr°sohnsrbi Part any inspector appointed as aforesaid—

(a) may examine on oath such solicitor or any servant or agent of such solicitor in relation to such books and accounts;

persons by inspectors. No. 4418 s. 7.

$42 1958. Legal Profession Practice. No. 6291

Refusal to produce books

•&c.

No. 4418 s. 8.

(b) may employ such persons as he considers necessary; and

(c) may by writing under his hand authorize any person employed by him to do, in relation to such examination and audit, any act or thing that he could himself do in his capacity as an inspector, except to examine any person on oath.

(2) Except for the purpose of carrying into effect the provisions of this Part or so far as may be required for the purpose of any proceedings, civil or criminal, against such solicitor no inspector appointed as aforesaid shall communicate any matter which may come to his knowledge in the performance of his duties as such inspector to any person other that the Attorney-General or such person as the Attorney-General directs.

(3) Any inspector who contravenes the provisions of the last preceding sub-section shall be liable to a penalty of not more than Fifty pounds.

46. Any solicitor, or the servant or agent of any solicitor, who—

(a) refuses to produce any books accounts or documents to any inspector appointed under this Part to examine and audit the books and accounts of that solicitor or to any person who produces the written authority of that inspector given in pursuance of the provisions of the last preceding section; or

(b) refuses to answer any question relevant to such examination and audit put to him by any such inspector or person with respect to the practice of such solicitor—

shall be liable to a penalty of not more than Five hundred pounds or to imprisonment for a term of not more than two years.

Inspector to report to Attorney-General. No. 4418 s. 9.

47. On the conclusion of any such examination and audit the inspector shall make a report with respect thereto to the Attorney-General.

Proceedings on reports of Inspectors. No. 4418 s. 10.

48. (1) If from any report to the Attorney-General by an inspector appointed under this Part it appears to the Attorney-General that a solicitor has been guilty of an offence (whether under this Part or otherwise) in relation to his practice as a solicitor for which he is criminally liable and that the case is one in which a prosecution ought to be instituted, the Attorney-General shall cause proceedings to be instituted accordingly.

1958. Legal Profession Practice. No. 6291 94S

Penalty for destroying concealing or altering records or sending records or other property-out ol Victoria. No. 4418 s. 11.

(2) All servants and agents of the solicitor shall give all assistance in connexion with the prosecution which they are reasonably able to give.

(3) If any person refuses fails or neglects to give assistance in the manner required by the last preceding sub-section, he shall be liable to a penalty of not more than One hundred pounds.

49. (1) Any person who, with intent to defeat the purposes of this Part or with intent to prevent delay or obstruct the carrying out of any examination and audit of the books or accounts of any solicitor under this Part—

(a) destroys conceals or alters any book account document or record relating to the practice of the solicitor; or

(b) sends or attempts to send or conspires with any other person to send out of Victoria any such book account document or record or any property of any description belonging to or in the disposition or under the control of such solicitor—

shall for every such offence be liable to a penalty of not more than Five hundred pounds or to imprisonment for a term of not more than two years.

(2) If in any prosecution for an offence alleged to have been Burden of committed against this section it is proved that the person charged proof' with such offence—

(a) has concealed destroyed or altered any book account document or record as aforesaid; or

(b) has sent or attempted to send or conspired to send out of Victoria any such book account document or record or any property aforesaid—

the onus of proving that in so doing he had not acted with intent to defeat the purposes of this Part or with intent to prevent delay or obstruct the carrying out of an examination and audit under this Part shall lie on him.

50. (1) The Governor in Council may make regulations Regulations,

prescribing all matters necessary or expedient to be prescribed for No-4418 s- '2-carrying out or giving effect to this Part.

(2) All such regulations shall be published in the Government Gazette and shall be laid before both Houses of Parliament within fourteen days after the making thereof if Parliament is then sitting and if Parliament is not then sitting within fourteen days after the next meeting of Parliament; and a copy of all such regulations shall be posted to each member of Parliament.

Publication of regulations


Interpretation. No. 5182 s. 3; No. 5863 s. 4 (4) . " Commencing date.''

" Commencing year."

" Committee of management."

• Council."

• Court."

'Defalcation."

' Division."

' Fund."

' Institute."

" Money."

" Practising certificate." " Practising fee."

" Practising public accountant."

" Practitioner."

' Prescribed."

PART V.—PROVISIONS RELATING TO THE SOLICITORS' GUARANTEE FUND, AUDIT AND EXAMINATION OF SOLICITORS' TRUST ACCOUNTS, ANNUAL PRACTISING CERTIFICATES AND OFFENCES &C.

DIVISION 1.—PRELIMINARY.

51. (1) In this Part unless inconsistent with the context or subject-matter:—

" Commencing date" means the first day of January One thousand nine hundred and forty-eight.

" Commencing year " means the calendar year beginning on the commencing date.

" Committee of management" means the committee of management to which all or any of the powers of the council under Divisions two and three may be delegated pursuant to this Part or, if there is no committee of management, then the council.

" Council" means the council of the institute.

" Court " means the Supreme Court of Victoria.

" Defalcation " means any larceny embezzlement failure to account fraudulent misappropriation or other act punishable by imprisonment of or in relation to any money or other property.

" Division " means Division of this Part.

" Fund " means the Solicitors' Guarantee Fund established under this Act.

" Institute" means the Law Institute of Victoria incorporated by the Law Institute Act 1917.

" Money " includes instrument for the payment of money in any case where the instrument may be paid into a bank.

"Practising certificate" means a practising certificate issued under Division four, and " practising fee '* means the fee payable upon the application therefor.

" Practising public accountant" means member in public practice of any body of accountants or auditors approved by the Governor in Council for the purposes of this Part.

" Practitioner" means a person who has been admitted and enrolled as a barrister or a solicitor or a barrister and solicitor of the Supreme Court and who continues to be on the roll.

Prescribed Part.

means prescribed by rules made under this


" Rules " means rules of the institute for the time being • in force made by the council under this Part.

" Secretary " means the secretary for the time being of > the institute.

" Solicitor "— (a) in Divisions two and three, means a

practitioner who is engaged in practice as a solicitor within the meaning of Part VII. of this Act either solely on his own account or in partnership with any other practitioner or upon terms of sharing with any other practitioner the remuneration for any business; and

(b) in Division four (except as otherwise expressly provided) and Divisions five to seven means—

(i) a solicitor as defined in paragraph (a) of this interpretation;

(ii) a practitioner who is employed by and in connexion with the practice of a solicitor as defined in the said paragraph (a) or a firm of such solicitors; and

(iii) any other practitioner not engaged in practice exclusively as a barrister who is declared by the council by notice published in the Government Gazette to be a solicitor, or who comes within any class of practitioners so declared by the council to be solicitors, for the purposes of Divisions four to seven—

and the expressions " practise as a solicitor " and " the practice of a solicitor" and similar expressions shall in those respective Divisions have corresponding interpretations.

" Statutory committee" means the statutory committee under Part III. of this Act.

" Trust" and " trustee " extend to cases where the trustee has a beneficial interest in the trust property and to the duties incident to the office of a personal representative, and " trustee" includes a personal representative.

" Trust accounts" means accounts of the receipt disbursement disposal or other dealing (whether as solicitor sole trustee or joint trustee) of or with

Rules.'

Secretary.'

Solicitor.'

" Statutory committee."

" Trust" and " Trustee."

" Trust accounts."


As to sharing remuneration.

any money which in the course of or in connexion with the practice of any solicitor or firm of solicitors is or was entrusted to or received on behalf of any other person by the solicitor (whether practising on his own account or as a member of a firm of solicitors or howsoever otherwise) or by the firm of solicitors or by any of his or their clerks servants or agents or by any practitioner with whom he shares or they share remuneration for any business; but does not include the accounts of the receipt disbursement disposal or other dealing with any money while the same is not solely or exclusively under the control of a solicitor or solicitors.

(2) For the purposes of this Part, a solicitor who receives any remuneration in respect of business transacted by him as agent for another solicitor who practises in another town shall not be deemed to be a practitioner who shares remuneration with that other solicitor.

Establishment of Solicitors' Guarantee Fund. No. 5182 s. 4.

DIVISION 2.—SOLICITORS' GUARANTEE FUND.

52. (1) The institute shall keep established the fund known as the Solicitors' Guarantee Fund (in this Part referred to as "the fund").

(2) The fund shall be the property of the institute but shall be kept separate from all other property of the institute and shall be held in trust for the purposes set out in this Part.

(3) The accounts of the fund shall be kept separate from the other accounts of the institute.

Fund to be kept in separate bank account. No. 5182 s. 5.

53. All moneys constituting the fund shall, pending the investment or application thereof in accordance with this Part, be paid or transferred into a bank in Victoria to the credit of a separate account to be called " The Solicitors' Guarantee Fund Account".

Moneys payable into fund. No. 5182 s. 6.

54. The fund shall consist of— (a)

(b)

(c) id)

(e)

all sums paid by solicitors either as annual contributions or as levies in accordance with the provisions of this Part in that behalf;

the interest and profits from time to time accruing from the investment of the fund;

all sums given or advanced by the institute; all moneys recovered by or on behalf of the institute

in the exercise of any right of action conferred by this Division; and

any other moneys that may be lawfully paid into the fund.


55. Subject to this Part, there shall from time to time be Expenditure paid out of the fund as required and in such order as the council ( J ^ J ^ , deems proper—

(a) the amount of all claims, including costs, allowed or established against the institute in respect of the fund;

(b) all legal and other expenses incurred in investigating or defending claims made against the fund or the institute in respect of the fund or otherwise incurred in relation to the fund or in the exercise by the council of the rights powers and authorities vested in it by this Part in relation to the fund;

(c) all premiums payable in respect of contracts of indemnity or insurance entered into by the council pursuant to section seventy-one of this Act;

(d) the expenses incurred or involved in the administration of the fund including the salaries and wages of persons employed by the council therein;

O) the expenses incurred or involved in the administration by the council of the powers authorities and discretions conferred on the council by this Division or by the provisions of Part III. with respect to the statutory committee; and

(/) any other moneys payable out of the fund in accordance with this Part or the rules.

56. The accounts of the fund shall be audited from time to Audit of time and at least once in every year by a practising public S H S 5

accountant appointed by the council and at least once in every year NO. si82s.«. an audited balance sheet shall be laid before the council.

57. Subject to the provisions of the next succeeding section, council to the fund shall be administered by the council on behalf of the gd

ndinister

institute. No. sm s. 9.

58. (1) The council may by resolution delegate all or any counciimay of its powers authorities and discretions under this Division or j^into Division three (other than this power of delegation) to a SSaSS SS iSf. commit tee of management appointed by the council consisting of NO. s m s. io. not less than three and not more than five persons being members of the institute of whom a majority shall be members of the council for the time being.

( 2 ) A n y power authority or discretion so delegated m a y be exercised by members forming a majority of the commit tee of management as if by this Pa r t that power had been conferred on a majority of the members of the committee of management .


(3) Any such delegation may be at any time in like manner rescinded or varied.

(4) The council may at any time remove any member of the committee of management and may fill any vacancy in the committee of management howsoever arising.

59. (1) Subject to the next succeeding section, every solicitor on making application for a practising certificate in respect of any year shall, in addition to all other fees then payable by him, pay as a contribution to the fund—

(a) if he commenced to practise as a solicitor less than two years before the date on which the practising certificate will take effect and has not become a partner of another solicitor or taken over an already established practice—the sum of Five pounds; and

(b) in any other case—the sum of Five pounds or such other sum being not less than Five pounds and not more than Ten pounds as may from time to time be prescribed as the contribution to be paid to the fund—

and no practising certificate shall be issued to the solicitor until he has paid the contribution.

(2 ) If any practitioner intends to commence to practise as a solicitor he shall before commencing so to practise give notice of his intention to the secretary of the institute, and he shall, on making application for a practising certificate, become liable to pay to the fund the amount of the contribution for that year, and no practising certificate shall be issued to h im until he has paid the contribution.

(3) If in any year the practising certificate to be issued to any solicitor will be in force for a period of not more than six months the contribution to be paid by the solicitor for that year shall be one-half of the contribution payable under sub-section (1) of this section.

(4) All contributions payable under this section shall be paid to the institute at its office.

Provisions« 6 0 . ( 1 ) Subject to the fund amounting to and being to£iooTfx)o?ts maintained at not less than the sum of One hundred thousand No. 5182 s. 12. p o u n d s

solicitor ( a ) every solicitor who has made twenty annual contributions contributions to the fund, and in respect of whom ^rs'wuhout no payment from the fund has been made or (if claim&c- any such payment has been made ) the fund has

been reimbursed, shall be freed and discharged from further annual contributions to the fund;

Solicitors to pay prescribed contribution to fund. No. 5182 s. 11.

Practitioner commencing practice to pay contribution.

Reduced contribution in certain case.


£100,000.

(b) on the retirement from practice of any such solicitor Refund on the council may in its discretion pay to such retIrement• solicitor a sum representing the total amount of annual contributions made by him to the fund either with or without simple interest thereon at a rate not exceeding Three pounds per centum per annum;

(c) on the death of any such solicitor without any Ree^don

payment having been made to him under paragraph (b) of this sub-section the council may in its discretion make such a payment either to his legal representative or to his widow or any dependant or dependants without regard either to the last will of the practitioner or to his legal representative.

(2) If the fund is reduced below the sum of One hundred Provision

thousand pounds the council shall determine to what extent (if reduced helow

any) a solicitor who has been freed and discharged from payment """""" under the provisions of sub-section (1) of this section shall again be required to pay annual contributions under the last preceding section.

(3) The council may from time to time decide in relation to ^S^g?o£

a particular solicitor or to all solicitors— relation to r repayments.

(a) that the provisions of paragraph (b) only or of paragraph (c) only but not of both such paragraphs of sub-section (1) of this section shall be applied;

(b) that payment be made under the paragraph or paragraphs applicable of portion only of the sum representing the total amount of annual contributions with or without interest.

(4) The council may from time to time apply the whole or Benevolent a portion of the capital of the fund exceeding One hundred fUn

1(£

rovident

thousand pounds or the income from such surplus for or towards the establishment of a benevolent and provident fund for the benefit of solicitors retired solicitors and the dependants of retired or deceased solicitors or for the objects of the institute.

61. (1) If at any time the fund is not sufficient to satisfy the I$p'iin

liabilities that are then ascertained of the institute in relation lnnua°nt° thereto, the council may impose on every solicitor who commenced to practise as a solicitor two years or more before the date for payment a levy of such amount as it thinks fit, not exceeding Ten pounds, for payment into the fund.

(2) The amount of such levy shall become payable on such date and shall be paid in such manner as is fixed by the council. The council may in any special case allow further time for payment of any levy or part thereof, in which event the levy or that part of it shall not become payable until the expiration of that time.

contributions. No. 51821.13.


(3) No person shall be required to pay by way of levy under this section more than Ten pounds in the aggregate in any period of twelve months or more than Fifty pounds during the whole period of his practice.

Institute may advance moneys from its general funds to the fund. No. 5182 s. 14.

62. The institute may from time to time from its general funds give or advance on such terms as the council thinks fit any sums of money for the purposes of the fund; and any moneys so advanced may from time to time be repaid from the fund to the general funds of the institute.

Investment of fund. No. 5182 a. IS.

63. Any moneys in the fund that are not immediately required for its purposes may be invested in any manner in which trustees are for the time being authorized by law to invest trust funds.

Application of fund. No. 5182 s. 16.

As to losses from defalcation by a solicitor.

As to tosses from defalcation by a firm of solicitors

64. (1) Subject to this Part, the fund shall be held and applied for the purpose of compensating persons who suffer pecuniary loss—

(a) from any defalcation committed after the commencing date by a solicitor who at any time has been the holder of a practising certificate, or by any of the clerks or servants of any such solicitor, or by any practitioner with whom any such solicitor shares remuneration for any business, of or in relation to any money or other property which, whether before or after the commencement of this Act, in the course of or in connexion with the solicitor's practice—

(i) was or is entrusted to or received by the solicitor or any of his clerks or servants or any such practitioner for or on behalf of any other person; or

(ii) (the solicitor being in respect of the money or other property either the sole trustee or a trustee with another person) was or is entrusted to or received by him or any of his clerks or servants or any such practitioner for or on behalf of the trustees of the said money or property;

(b) from any defalcation committed after the commencing date by the members or by any of the members of a firm of solicitors any of whom at any time has been the holder of a practising certificate, or by any of the clerks or servants of any such firm or of any of the members thereof, or by any practitioner with whom the members of any such firm or any of them share remuneration for any business, of or in relation to any money or other property which,

1958. . Legal Profession Practice. No. 6291 951

whether before or after the commencement of this Act, in the course of or in connexion with the firm's practice—

(i) was or is entrusted to or received by the members of the firm or any of them or any of their clerks or servants or any such practitioner for or on behalf of any other person; or

(ii) (the members of the firm of solicitors or any of them being in respect of the money or other property either the sole trustee or trustees or trustee or trustees with another person or other persons) was or is entrusted to or received by the firm or any of its members or any of their clerks or servants or any such practitioner for or on behalf of the trustees of the said money or property.

(2) The total amount that may be applied in the J ^ t f

of any compensation of all persons who suffer loss— payatSein

( i ) through defalcations by any solicitor who is not in ^ ^ r o r

partnership with any other solicitor and through soiicSom defalcations by any of his clerks or servants and by any practitioner with whom he shares the remuneration for any business; or

(ii) through defalcations by the members or any of the members of any firm of solicitors and through defalcations by any of their clerks or servants and by any practitioner with whom they or any of them share the remuneration for any business—

shall not in any event exceed in respect of that solicitor or that firm of solicitors the appropriate sum following, that is to say:—

(a) as to defalcations committed in the period of five years beginning on the commencing date—the sum of Five thousand pounds;

(b) as to defalcations committed in the year beginning on the fifth anniversary of the commencing date or partly in that year and partly before that year— the sum of Six thousand pounds;

(c) as to defalcations committed in the year beginning on the sixth anniversary of the commencing date or partly in that year and partly before that year— the sum of Seven thousand pounds;

(d) as to defalcations committed in the year beginning on the seventh anniversary of the commencing date or partly in that year and partly before that year—the sum of Eight thousand pounds;


Right to claim compensation and take proceedings tbereon.

No claim in respect of certain defalcations.

Amount of claim.

(e) as to defalcations committed in the year beginning on the eighth anniversary of the commencing date or partly in that year and partly before that year— the sum of Nine thousand pounds; or

(/) as to defalcations committed in or after the year beginning on the ninth anniversary of the commencing date or partly in or after that year and partly before that year—the sum of Ten thousand pounds—

but for the purposes of this sub-section any amount paid from the fund shall, to the extent to which the fund is subsequently reimbursed therefor, be disregarded.

(3) Subject to this Part every person who suffers pecuniary loss as provided in sub-section (1) of this section shall be entitled to claim compensation from the fund and to take proceedings in the Supreme Court as hereinafter provided against the institute in relation to the fund to establish such claim.

(4) No person shall in any case have any claim against the fund in respect of—

(a) any defalcation committed before the commencing date;

(b) any defalcation committed before the date of the issue of the first practising certificate issued to the solicitor concerned or (as the case may be) to any member of the firm of solicitors concerned; or

(c) any defalcation in respect of money or other property which prior to the commission of the defalcation has in the due course of the administration of the trust ceased to be under the sole control of the solicitor concerned or (as the case may be) of the members of the firm of solicitors concerned or any of them.

(5) Subject to this Part the amount which any proper claimant shall be entitled to claim as compensation from the fund shall be the amount of the actual pecuniary loss suffered by him less the amount or value of all moneys or other benefits received or receivable by him from any source other than the fund in reduction of the loss.

Notice calling for claims. No 51?2s. 17.

65. (1) The council may cause to be published a notice in or to the effect of the prescribed form in a newspaper published and circulating in the district in which the solicitor or firm of solicitors concerned is or was practising and also in a daily newspaper published and circulating in the city of Melbourne.

(2) Such notice shall fix a date not being earlier than three months after the said publication on or before which claims may be made.

1958. Legal Profession Practice. No. 6291 1)03

(3 ) A claim for compensation from the fund in respect of rime tor any defalcation shall be made in writing to the council— ~ claims'

(a) where such a notice has been published as aforesaid —on or before the date fixed in the said notice; or

(b) where no such notice has been published—within six months after the claimant has become aware of the defalcation—

and any claim which is not so made shall be barred unless the council otherwise determines; but the barring of a claim by the effluxion of such period of six months shall not preclude a valid claim on or before the date fixed by any notice as aforesaid which is subsequently published.

(4) No action for damages shall lie against the institute No action or the council or the committee of management or any member fnstuu'e &c. or employe of the institute or the council or the committee of publication management by reason of any notice published in good faith ofnotlce-and without malice for the purposes of this section.

66. (1) Subject to this Part the council may allow and settle Power to

any proper claim against the fund at any time after the allow and

commission of the defalcation in respect of which the claim arose, ft"1™'1"8,-., x NO. 3182 S. 18.

(2) No person shall be entitled without leave of the council £yjjj£to to commence any proceedings against the institute in relation to establish . . , , J r o o claim unless

the fund UnleSS disallowed by council &c.

(a) the council has disallowed his claim; and (b) the claimant has exhausted all relevant rights of action

and other legal remedies for recovery of the money or other property in respect of which the defalcation was committed available against the solicitor or the members of the firm of solicitors in relation to whom or which the claim arose and all other persons liable in respect of the loss suffered by the claimant:

Provided that any person who has been refused such leave by the council may apply to a judge of the Court in chambers against the refusal by the council of such leave and the judge may make such order as he thinks fit.

(3) In any proceedings brought to establish a claim evidence Asto of any admission or confession by or other evidence which of evidence,

would be admissible against the solicitor or other person by whom it is alleged that the defalcations were committed shall be admissible to prove the commission of the defalcations notwithstanding that that solicitor or other person is not the defendant in or a party to those proceedings, and all defences which would have been available to that solicitor or person shall be available to the institute.


As to quantum of proof of •defalcation.

(4) The council or, where proceedings are brought to establish a claim, the Court, if satisfied that the defalcation on which the claim is founded was actually committed, may allow the claim and act accordingly, notwithstanding that the person who committed the defalcation has not been convicted or prosecuted therefor or that the evidence on which the council or Court (as the case may be) acts would not be sufficient to establish the guilt of that person upon a criminal trial for the defalcation.

Form of order by Court establishing claim. No. 5182 s. 19.

Rules.

Costs.

67. (1) Where in any proceedings brought to establish a claim the Court is satisfied that the defalcation on which the claim is founded was actually committed and that otherwise the claimant has a valid claim the Court shall by order—

(a) declare the fact and the date of the defalcation and the amount of the claim of the claimant; and

(b) direct that the council allow the claim as so declared and deal with the same in accordance with the provisions of this Part.

(2) The Judges of the Supreme Court may make rules for or with respect to the practice and procedure generally upon proceedings under this Division.

(3) In any such proceedings in the discretion of the Court.

all questions of costs shall be

Power to -council to require production of securities Ac. No. 5182 s. 20.

68. The council may at any time and from time to time require the production and delivery of any securities documents or statements of evidence necessary or available to support any claim made or necessary or available for the purpose either of exercising its rights against any solicitor or firm of solicitors or other persons concerned or of enabling criminal proceedings to be taken against the person who committed the defalcations and may in default of delivery of any such securities documents or statements of evidence disallow any claim.

•Subrogation of institute to rights &c. of claimant upon payment from fund. No. 5182 s. 21.

69. On payment out of the fund of any moneys in respect of any claim under this Division the institute shall be subrogated to the extent of such payment to all the rights and remedies of the claimant against the solicitor or the members of the firm of solicitors in relation to whom the claim arose and against die person by whom the defalcation was committed or, in the event of his or their death bankruptcy or other disability, against his or their legal personal representatives or other persons having authority to administer his or their estates.

Payment of claims only from fund. "No. 5182 s. 22.

70. (1) No moneys or other property belonging to the institute other than the fund shall be available for the payment of any claim under this Division whether the claim is allowed by the council or is made the subject of an order of the Court.


(2) Where the amount at credit in the fund is insufficient to pay the whole amount of all claims which have been allowed or in respect of which orders of the Court have been made as aforesaid, then the amount at credit in the fund shall, subject to the next succeeding sub-section, be apportioned between the claimants in such manner as the council having regard to the provisions of sub-section (4) of this section thinks equitable, and any such claim so far as it then remains unpaid shall be charged against future receipts of the fund and paid out of the fund when moneys are available therein.

(3) Where the aggregate of all claims which have been allowed or in respect of which orders of the Court have been made as aforesaid in relation to defalcations by or in connexion with a solicitor or firm of solicitors exceeds the total amount which may pursuant to sub-section (2) of section sixty-four of this Act be applied as compensation in respect of that solicitor or firm of solicitors, then the said total amount shall be apportioned between the claimants in such manner as the council having regard to the provisions of sub-section (4) of this section thinks equitable, and upon payment out of the fund of the said total amount in accordance with such apportionment all such claims and any orders relating thereto and all other claims which may thereafter arise or be made in respect of defalcations by or in connexion with the said solicitor or firm of solicitors shall be absolutely discharged.

(4) The council in apportioning and paying amounts pursuant to either of the last two preceding sub-sections—

(a) shall take into consideration the relative degrees of hardship suffered or likely to be suffered by the several claimants in the event of their claims not being satisfied in whole or in part; and

(b) shall subject to paragraph (a) of this sub-section satisfy claims for amounts not exceeding Three hundred pounds in full before claims for amounts exceeding Three hundred pounds are satisfied to a greater extent than Three hundred pounds.

71 . (1) Notwithstanding anything to the contrary in the Council may

foregoing provisions, the council may in its discretion enter into romricteof any contract with any person or body of persons corporate or {SKEy for unincorporate carrying on fidelity insurance business in Victoria SUSP0"30* whereby the institute will be insured or indemnified to the extent NO. 5182*23; and in the manner provided by such contract against liability to pay claims under this Part.

(2) Any such contract may be entered into in relation to solicitors generally, or in relation to any particular solicitor or solicitors named therein, or in relation to solicitors generally with the exclusion of any particular solicitor or solicitors named therein.

Provision where fund insufficient to meet claims, and charging of future receipts.

Provision where amount of claims exceeds total amount payable as compensation.

Considerations upon apportionment of moneys.


(3) No action shall lie against the institute or against any member or servant of the institute or council or against any member of the committee of management for injury alleged to have been suffered by any solicitor by reason of the publication in good faith of a statement that any contract entered into under this section does or does not apply with respect to that solicitor.

Application of insurance moneys. No. 5182 s. 24.

72. No claimant against the fund shall have any right of action against any person or body of persons with whom a contract of insurance or indemnity is made under this Part in respect of such contract, or have any right or claim with respect to any moneys paid by the insurer in accordance with any such contract; but all such moneys shall be paid into the fund and shall be applied in or towards the settlement of relevant claims.

Application of 73. All sums and all fees costs and expenses paid to or N0

S 5i82s. 25. recovered by the institute pursuant to this Division shall be paid into and from part of the fund.

Council may appoint public accountant to audit or examine accounts of solicitor.

No. 5182 s. 28.

How appointment made.

Costs of audit or examination.

DIVISION 3.—EXAMINATION AND AUDIT OF TRUST ACCOUNTS.

74. (1) The council may at any time appoint a practising public accountant to audit or examine the trust accounts of any specified solicitor or firm of solicitors, whether a member or members of the institute or not, and the books and papers relating thereto, for any period directed by the council, and to furnish to the council a confidential report thereon:

Provided that the council shall not make such an appointment until it has first given the solicitor or firm of solicitors an opportunity of showing cause why the audit or examination should not be made.

(2) Every appointment made under this section shall be in writing and shall be signed on behalf of the council by the president or two members thereof.

(3) The council may defray the costs of the audit or examination out of the fund, and if—

(a) the solicitor or any member of the firm of solicitors failed to keep accounts in accordance with section forty-one of this Act or the corresponding previous enactment; or

(b) the audit or examination discloses any contravention of or failure to comply with any provision of this Act or any corresponding previous enactment relating to trust funds or trust accounts—

the institute may recover the costs of the audit or examination from the solicitor or firm of solicitors as a debt due by him or them to the institute.


75. (1) Any accountant or other person employed by a solicitors and solicitor or firm of solicitors or appointed by the council under produce books this Part to make an audit or examination of the trust accounts ^ ' of a solicitor or firm of solicitors may require the solicitor or solicitors or any of his or their clerks servants or agents to produce to him all accounts books papers securities and other documents relating to the business or accounts of the solicitor or firm of solicitors and to give all information in relation thereto and to furnish all authorities and orders to bankers and others that may be reasonably required of him or them.

(2) Any such person so required to do anything under the R^SJ^^ok last preceding sub-section who without lawful justification or &rc°.an* excuse (the proof whereof shall lie on him) refuses or fails so offence-to do or otherwise hinders obstructs or delays the accountant or other person so employed or appointed in the performance of his duties or the exercise of his powers under this Part shall be guilty of an offence and liable to a penalty of not more than Fifty pounds.'

76. Notwithstanding anything contained in any Act or Banks to regulation or any law rule or practice to the contrary, the manager accounts. or other principal officer of any bank with which a solicitor or No.si82s.3o. firm of solicitors has deposited any moneys, whether in his or their own account or in any general or separate trust account, shall disclose every such account to an accountant or other person employed or appointed under this Part to make an audit or examination upon demand made by the accountant or other person, and shall permit him to make a copy of or extract from any such account, and any such manager or other principal officer who fails to comply with any provision of this sub-section shall be guilty of an offence and liable to a penalty of not more than Fifty pounds.

77. (1) No accountant or other person employed or Accountant appointed to make any audit or examination of any accounts secrecy. of a solicitor or firm of solicitors for the purposes of this Part No.si82s.3i. shall (otherwise than is prescribed) communicate any matter of which he is informed or which comes to his knowledge in the course of such audit or examination to any person except in the course of his report; and if he contravenes this provision he shall (in addition to the penalty hereinafter provided and in addition to any liability he may incur to the solicitor or firm of solicitors) be subject to the like liability and damages to a client or cestui que trust of the solicitor or firm of solicitors as the solicitor or firm of solicitors would be if he or they divulged such matters.

(2) The council on receiving any such report shall consider council not the same in camera and not otherwise, and it shall not be lawful report except for any member of the council or any of its officers to communicate asProvide<t

VOL. IV.—31

http://No.si82s.3o

http://No.si82s.3i


Council may refer report to accountancy organization.

Penalty for breach of secrecy.

to any person any information disclosed in such report except in the performance of his duty or as is provided in the next succeeding sub-section.

(3) The council shall if and when required by the Attorney-General furnish the report or a copy of the report to the Attorney-General. If the report in the opinion of the council discloses that any auditor of any accounts in respect of which the report is made has been guilty of any breach of duty it may refer to any accountancy institute or organization of which the auditor is or has been a member the report or so much of it as the council may consider necessary to enable the said institute or organization to investigate the conduct of the auditor.

(4) Every person who contravenes or fails to comply with any of the provisions of this section shall in addition to any other proceedings penalty or punishment to which he may be liable, be guilty of an offence and liable to a penalty of not more than Fifty pounds.

penalties fees 78. All penalties imposed under this Division and all costs NO. 5182 s. 32. Paid to or recovered by the institute pursuant to this Division

shall be paid into and form part of the fund.

Roll of solicitors. No. 5182 s. 33.

DIVISION 4.—ANNUAL PRACTISING CERTIFICATES.

79. It shall be the duty of the secretary to keep a roll of solicitors and to issue practising certificates to persons who are entitled under this Division to take out certificates authorizing them to practise; and the council may give such orders and directions and make such regulations touching the performance and execution of those duties as it thinks proper.

80. (1) Subject to this Act every solicitor who intends to practise during the following year shall during the month of

Applications

certificates. No. 5182 s. 34; November in each year make application to the secretary for a NO. 5683 s. 2. pracfjsjng certificate.

(2) If any solicitor is absent from Victoria or for any other reason deemed sufficient by the secretary does not make an application for a practising certificate during the month of November in any year, the secretary either during or after that month may accept an application made by the solicitor or by any partner of the solicitor or by any person authorized by the solicitor in that behalf and may issue a practising certificate to the solicitor; and such alterations as the nature of the case may require may be made in any declaration required to be lodged with any such application.


81. (1) At any time in the months of July to October in each year every applicant for a practising certificate who during any part of the period of twelve months ending on the preceding thirtieth day of June was in practice as a solicitor within the meaning of paragraph (a) of the interpretation of " solicitor " in section fifty-one of this Act shall cause to be lodged with the secretary a report by a practising public accountant (or, if a practising public accountant is not conveniently available, by a competent accountant or other competent person approved by the council) of an audit, made in accordance with the rules, of the trust accounts of the solicitor (including the trust accounts of any firm of solicitors of which he is a member) for the said period of twelve months or the part thereof during which he had been practising or for such other period as the council may authorize under the rules in a particular case.

(2) A practising certificate shall not be issued to an applicant £r£$^ng

to whom sub-section (1) of this section applies if he fails to S be Sue? comply with that sub-section or if the report lodged under that ratisflctory sub-section shows that on any date within the period covered re«)ortlod8e

by the audit there was not in a bank or banks to the credit of a trust account or trust accounts kept in accordance with the provisions of section forty of this Act a sum or sums sufficient to pay all moneys received by the solicitor and any firm of solicitors aforesaid for or on behalf of other persons and not previously paid by the solicitor or firm of solicitors to those persons or in accordance with directions given by them:

Provided that a practising certificate may be issued to an applicant, notwithstanding that the report shows that there was at some time during the said period a deficiency in the said account or accounts, if the report shows that the amount of the deficiency was restored before the date of the report and if the deficiency was, in the opinion of the council, attributable to inadvertence or some other circumstance for which the solicitor ought fairly to be excused.

(3) The foregoing provisions of this section shall not apply in the case of any such solicitor who—

(a) during the said period of twelve months has neither as practising on his own account nor as a member of a firm held or received any money which should be kept in or paid into a trust account in a bank(a); and

(b) not later than the twenty-first day of July following delivers to the secretary a statutory declaration in the prescribed form.

Applicants to lodge report of annual audit. No. 3182 s. 36; No. 5863 s. 3.

(a) See sections 40, 41.


82, (1) Any practitioner who— (a) has not previously practised as a solicitor; (b) has previously practised as a solicitor but is not so

practising at the time of the application; or (c) is practising as a solicitor within the meaning of

sub-paragraph (ii) or (iii) of paragraph (b) of the interpretation of " Solicitor " in section fifty-one of this Act and intends to practise as a solicitor within the meaning of paragraph (a) of that interpretation—

may at any time make application to the secretary for a practising certificate.

(2) Every such application shall be accompanied by a statutory declaration in or to the effect of the appropriate prescribed form.

issue of 83. (1) Subject to this Part upon compliance by the applicant Mrtificate. with such of the foregoing provisions of this Division as are No. SIIU 38; applicable to him and on payment by him of the prescribed s.4(i>. practising fee (if any) payable by him together with the

contribution to the fund payable by him under Division two and any levy then payable by him under Division two the secretary shall issue to the applicant a practising certificate in the prescribed form.

Such certificates may be in different forms according as to whether the applicant intends to practise as a solicitor within the meaning of paragraph (a) of the interpretation of " Solicitor " in section fifty-one of this Act or to practise solely as a solicitor within the meaning of sub-paragraph (ii) or (iii) of paragraph (b) of that interpretation, and the certificate may authorize the applicant to practise accordingly and shall have effect according to the tenor thereof.

(2) A practising certificate issued on the application of a solicitor made under section eighty of this Act shall come into force—

(a) on the first day of January next following the date of the application; or

(6) (where an application made after the first day of January is accepted pursuant to sub-section (2) of the said section eighty) on such later day specified in the certificate as the council directs—

and, unless cancelled or suspended, shall continue in force until the thirty-first day of December in the same year:

Provided that the council may for any special reason direct that any such practising certificate issued after the said first day of January shall be dated back and deemed to have taken effect on the said first day of January.

Applications by new practitioner, Ac. No. 5182 s. 37; No. 5863 s . 4 ( 2 ) .

Date of operation and period of certificate issued on application of practising solicitor.


(3) A practising certificate issued on the application of a Date of practitioner made under section eighty-two of this Act shall come SenfpdSPand

into force on the day specified therein, being the day on which the issued on requirements of this Part have been satisfied, and, unless cancelled »pp,licationof

or suspended, shall continue in force until the thirty-first day of p™*i«i°n« December in the same year:

Provided that where such an application is made within three months before the thirty-first day of December in any year the council may direct that the certificate be issued to continue in force until the thirty-first day of December in the following year.

84. (1) The secretary may refuse to issue a practising Grounds for certificate or may cancel a practising certificate or may suspend a certificute. practising certificate for any period not exceeding twelve months if No. si82 s. 39. the applicant for or the holder of the certificate—

(a) has become bankrupt in circumstances which in the opinion of the council involve moral turpitude or fraud on his part;

(6) has been convicted of felony or misdemeanour; (c) has contravened or failed to comply with any Act

regulation or rule relating to his trust funds or trust accounts or the trust funds or the trust accounts of any firm of solicitors of which he is or has been a member;

(d) has contravened or failed to comply with or is in any way in default under any provision of this Act or any other Act relating to his practice as a solicitor;

(e) has when called upon by the council so to do failed to give a sufficient and satisfactory explanation touching any alleged contravention of or failure to comply with any provision of this Act or any other Act relating to his practice as a solicitor and the failure to give such explanation still continues;

(/) has failed to comply with any summons requisition or direction lawfully made or given by the statutory committee;

(g) has after the commencing date been practising as a solicitor without a practising certificate; or

(h) has failed to reimburse the fund any sum paid out of the fund in respect of any loss occasioned by any defalcation committed by him or in respect of his practice or the practice of a firm of solicitors of which he was a member, or in respect of fees for any audit or examination of his trust accounts or the trust accounts of any such firm by an accountant appointed by the council.


Reference of application, &c. to council.

Notice of intention to refuse &c. to be given.

Inquiry by Council.

Decision by Council.

Secretary to act upon council's decision.

Saving of solicitor's right to practise in certain cases pending decision on application

(2) The secretary may refer to the council any application for a practising certificate or any question arising in relation to any such application or in relation to any proposed cancellation or suspension of a certificate; and the council shall then hold an inquiry into any matters set out in the application (if any) and in any papers submitted to it by the secretary before it reaches a decision upon the application or question.

(3) Before any certificate is refused to an applicant or any certificate held by a solicitor is cancelled or suspended the secretary shall send by post a notice addressed to the applicant or solicitor setting out the grounds upon which it is proposed to refuse or cancel or suspend the certificate.

(4) If the applicant or solicitor so requires in writing received by the secretary within seven days (or such extended time as the council may allow) after the posting of the notice the council shall hold full inquiry into the matter and shall afford the applicant or solicitor full opportunity of giving an explanation and of raising any relevant matters either personally or in writing.

(5) In reaching its decision the council shall take into consideration the explanation given and any relevant matters raised by the applicant or solicitor; and if the council is of opinion having regard to all the circumstances that the applicant or solicitor has acted honestly and reasonably in the matter, or that he ought fairly to be pardoned or excused for any contravention failure of compliance or other act or default committed by him, it shall direct that the certificate be issued or not cancelled or not suspended (as the case may be).

(6) The secretary shall give effect to any decision of the council upon any application question or matter into which it holds an inquiry pursuant to this section.

(7) Where the decision of the secretary or of the council upon any application for a practising certificate is not made until after the beginning of the year in respect of which the application was made then—

(a) in the case of an application made by a solicitor who held an uncancelled and unsuspended practising certificate for the period immediately before the year in respect of which the application is made— the applicant shall, if he has paid the practising fee (if any) and the contribution to the fund payable by him in respect of the application as well as any levy then payable by him, be deemed pending the making of the decision to hold a practising certificate for all the purposes of this Part; and

(b) in the case of an application by any other practitioner—the applicant shall not be deemed to hold a practising certificate pending the making of


the decision unless upon payment by him of the fee contribution and levy aforesaid the council declares in writing that he shall be deemed to hold such a certificate pending the making of the decision.

(8) The secretary shall send by post to any applicant whose Notification application for a certificate is refused and to any solicitor whose cancellation certificate is cancelled or suspended notice in writing of such or suspension-refusal cancellation or suspension.

(9) Where upon any application for a practising certificate Return of fee the applicant has paid the practising fee and the contribution to the contribution. fund payable by him in respect of the application and the application is subsequently refused such fee and contribution shall be returned to him.

(10) No action shall lie against the council or the secretary NO action for refusing to grant a practising certificate or for cancelling or ^"j^or suspending a practising certificate. " """ secretary.

85 . ( 1 ) Any person whose practising certificate has been Application

suspended may at any time during or after the period for which it whSS"011

was suspended apply to the secretary to issue a new practising £?££!{" Certificate. suspended.

No. 5182 s. 40.

(2) The secretary may refer the application to the council and in reaching a decision thereon the secretary or council may dispense with the further performance of any matter or the further remedying of any breach of any obligation by the practitioner, other than a matter or obligation relating to the payment of any money.

86 . ( 1 ) Any person whose practising certificate has been Application cancelled or whose application for a certificate has been refused refund0" may at any time apply to the secretary for a practising certificate. ™hosecate or

certificate

(2 ) The secretary shall refer the application to the council c fend

and the council in reaching a decision upon the application shall No.sms.4i; again consider such of the matters referred to in sub-section (1 ) No 5m s-5

of section eighty-four as are still subsisting and as would be grounds for cancelling a practising certificate if the applicant then held a certificate and shall hold a further inquiry into those matters unless it considers that they have already been sufficiently inquired into and that the applicant will not be prejudiced if no further inquiry is made.

No. 5863 s. 6.

87. ( 1 ) (a) Any applicant for or holder of a practising Appeal, certificate who feels aggrieved by the refusal of a certificate to him N°- si82 S. « : or the cancellation or suspension of his certificate may within one month after the secretary posts to him notice of the refusal cancellation or suspension appeal in the prescribed form to the Court against such refusal cancellation or suspension.

http://No.sms.4i


Appeal to be a rehearing.

Powers of Court.

Saving of solicitor's right to practise in certain cases pending decision of appeal.

Cancellation or suspension not to take effect pending appeal.

(b) The appellant shall not later than seven days after the lodging of the appeal with the Court lodge a copy thereof with the secretary.

(2) The return day for any such appeal shall be such day being not less than fourteen days and not more than twenty-eight days after the lodging of the appeal as is set out in the form lodged by him as aforesaid.

(3) Every appeal shall be in the nature of a rehearing and may be heard in court or in chambers.

(4) The Court shall entertain inquire into and decide upon the appeal and for that purpose may do all such matters and things relating thereto and in the same manner and to the same extent as it is empowered to do in the exercise of its ordinary jurisdiction; it shall take into consideration all the matters which at an inquiry held by the council pursuant to section eighty-four of this Act the council ought to take into consideration; and if the Court is of opinion that relief ought to be granted it shall have power to grant relief; and the decision of the Court shall be final and conclusive and the secretary shall give effect thereto.

(5) Where the decision of the Court upon any appeal against a refusal to issue a practising certificate is not made until after the beginning of the year in respect of which the application for a certificate is made, then—

(a) in the case of an application made by a solicitor who held an uncancelled and unsuspended practising certificate for the period immediately before the year in respect of which the application is made— the applicant shall, if he has paid the practising fee (if any) and the contribution to the fund payable by him in respect of the application as well as any levy then payable by him, be deemed pending the decision of the appeal to hold a practising certificate for all the purposes of this Part; and

(b) in the case of an application by any other practitioner—the applicant shall not be deemed to hold a practising certificate pending the decision of the appeal unless, upon payment by him of the fee contribution and levy aforesaid, the council declares in writing that he shall be deemed to hold such a certificate pending the decision of the appeal.

(6) In the case of an appeal against a cancellation or suspension of a practising certificate, the cancellation or suspension shall not take effect pending the decision of the appeal.


DIVISION 5. RULES.

88. (1) The council may make rules of the institute for or council with respect to all or any of the following matters:— KTSiefa1?

to certain (a) Prescribing the practising fee to be paid upon the matters-

lodging of any application for a practising certificate No'5182 s- 43

and providing for the payment to the institute of and the recovery of the prescribed fee: Provided that—

(i) such fee shall not exceed the fee in respect of membership of the institute for the time being payable, under any by-law made pursuant to section twenty-four of this Act, by any member of the institute of a like class (as defined by the council) to that of the person lodging the application; and

(ii) a member of the institute who has paid his subscription to the institute for the year to which or any part of which the certificate if issued would relate shall not be required to pay any practising fee on lodging any such application;

(b) Regulating in respect of any matter the professional duties practice conduct and discipline of practitioners whether engaged in practice as principals on their own account or employed by other practitioners or by persons not practitioners;

(c) Prescribing the duties of solicitors in relation to the giving of receipts for moneys received by or entrusted to them and the keeping of accounts of such moneys and of the disbursement or disposal thereof or dealing therewith;

(d) Generally, insuring that accounts of moneys received for or on behalf of other persons by solicitors and of the disbursement or disposal thereof or dealing therewith shall be duly kept and, where examination or audit is required by this Part, duly examined or audited;

(e) Prescribing the duties of practising public accountants and other persons engaged or appointed to make examinations and audits of accounts pursuant to this Part including the scope of and the mode of making such examinations and audits;

(/) Prescribing the duties of the solicitors concerned in relation to audits or examinations made pursuant to this Part;


(g) Prescribing the forms of reports to be furnished to the council of examinations and audits made pursuant to this Part;

(h) Prescribing, subject to this Part, the amount of the annual contribution to the fund to be paid by solicitors;

(/) Providing for the method of payment and recovery of any fee contribution or levy payable under this Part;

(/') Providing, subject to this Part, for the investment of so much of the fund as is not immediately required for the purposes thereof;

(k) Prescribing the forms of notice to be given to the council in respect of claims against the fund and the particulars to be shown therein;

(/) Prescribing the form of practising certificates and forms of declarations, applications, notices and other documents to be used in relation to any application for such a certificate or the refusal of any such application or the cancellation or suspension of any such certificate under this Part;

(m) Requiring any evidence that a person has been admitted to practice or is still practising or has discontinued practising as a solicitor, or as to the reason of any person's discontinuing practice, and generally for the obtaining of information that may be considered necessary or reasonable for the purposes of determining the merits of applications for practising certificates or matters in relation thereto;

(«) Prescribing any other forms necessary or expedient for use under this Part or the rules (and all forms prescribed by the rules or forms of like effect shall be sufficient in law);

(o) Generally, prescribing any matters authorized or permitted to be prescribed under this Part or necessary or expedient to be prescribed for carrying this Part into effect.

Application (2) Rules under this section— and S"rates1*? ( f l) S^ a^ s o ^a r a s aPPl l c a°l e extend and apply to all

practitioners (whether members of the institute or not) in the course of their practice or employment as such except those practising exclusively as barristers and except those who are public officers

J (including officers of the Commissioners of the State Savings Bank of Victoria) in the course of their duties as such;

1958. Legal Profession Practice. No. 6291 %7

(b) may be made so as to apply to practitioners who are members of firms and to firms of which any practitioner is a member;

(c) shall have no force or effect unless they have been approved by the Chief Justice before the publication thereof;

(d) shall be published in the Government Gazette; (e) shall come into operation on the date of such

publication or on a later date specified in the rules; and

(/) may (without affecting any other method of revocation) be revoked by Order of the Governor in Council.

(3) The power to make rules of the institute conferred on saving oi the council by this Division shall be in addition to and not in roSto derogation from any other powers of the council to make rules, Snadk

eer™a?f

and such other powers may be exercised as if this Division had not In-been passed.

89. (1) Where any practitioner contravenes or fails to comply with any of the provisions of this Act or of any rules made under sub-section (1) of the last preceding section—

(a) such contravention or failure shall, without limiting the generality of the meaning of the term " misconduct", be deemed misconduct within the meaning of Part III. of this Act;

(b) the council and the statutory committee may respectively take the like proceedings and do the like acts matters and things in relation thereto as they are respectively empowered to take or do under that Part in relation to any charge made or any charge question or matter referred to either of them under that Part;

(c) any person aggrieved by reason of any such contravention or failure may by himself or his agent make a charge thereof in writing to the council or to the statutory committee; and

(d) the provisions of Part III. of this Act, so far as applicable and with such adaptations as are necessary, shall extend and apply accordingly.

(2) Notwithstanding anything to the contrary in this Act, if after inquiry into any charge made to it or any charge question or matter referred to it (whether pursuant to Part III. of this Act or to the last preceding sub-section of this section) the statutory committee is of opinion that the practitioner has been guilty of any misconduct and that such misconduct does not merit his suspension from practice or his being struck off the roll, the statutory

Noncompliance with provisions of rules to be misconduct. &c. No. 5182 s. 44.

Power of statutory committee to deal with misconduct in certain circumstancei.


committee (if the practitioner notifies the statutory committee in writing that he desires the charge question or matter to be dealt with under this sub-section by the statutory committee and that he is prepared to abide by its decision) without making and transmitting a report thereon to the Supreme Court—

(a) may make an order requiring the practitioner to pay to the institute a sum of not more than Twenty-five pounds to be paid within the time specified in the order; and

(b) may at the same time determine the amount of the costs and expenses of the inquiry and by and to whom and in what amounts and within what time the costs and expenses shall be paid—

and any such sum or any such costs and expenses shall be payable accordingly, and may be recovered in any court of petty sessions as a civil debt recoverable summarily or in any court of competent jurisdiction.

DIVISION 6.—OFFENCES.

90. (1) No person shall be qualified to act or practise or shall act or practise as a solicitor unless—

(a) he is a practitioner; and (6) he holds a practising certificate for the time being in

force which authorizes him to act or practise in the capacity concerned.

(2) Any person who is not so qualified is in this Division referred to as an " unqualified person ".

(3) For the purposes of sub-section (1) of this section practising as a solicitor, without limiting the generality of the meaning of that expression as defined for the purposes of this Division, shall include, in the case of a practitioner, the being employed by and in connexion with the practice of a solicitor or firm of solicitors.

(4) A person shall not be capable of maintaining any action or suit for the recovery of any fee reward or disbursement for or in respect of any business matter or thing done by him as a solicitor whilst he was an unqualified person.

(5) Notwithstanding the provisions of this section it shall not be necessary in any proceedings for a solicitor to allege in any process or pleading in the proceedings, nor (unless the contrary is asserted in any such process or pleading or given in evidence by the other party to the proceedings) to prove, that he is the holder of a practising certificate for the time being in force.

(6) Every person who contravenes or fails to comply with the provisions of sub-section (1) of this section shall be guilty of an offence and shall be liable on summary conviction to a penalty

Prohibition of practice by unqualified persons. No. 5182 s. 45: No. 5863 8 . 4 ( 3 ) .

" Unqualified person."

Practising as solicitor to include, in case of practitioner, being employed by solicitor.

Unqualified persons restrained from suing for fees. &c.

Penalty for practising unlawfully.


of not more than Fifty pounds and in addition shall be guilty of a contempt of the Court and shall be liable to be punished accordingly.

91. The provisions of sections one hundred and ten and one hundred and eleven of this Act shall with such adaptations as are necessary extend and apply with respect to all unqualified persons in the same manner in all respects as they apply with respect to persons who are not admitted and enrolled pursuant to this Act.

92. (1) Any unqualified person who— (a) pretends to be or takes or uses any name title addition

or description implying that he is qualified or recognized by law to act as a solicitor; or

(b) holds himself out to be or advertises or represents himself to be qualified to act as a solicitor—

shall be guilty of an offence and liable on summary conviction to a penalty of not more than Fifty pounds and shall in addition be guilty of a contempt of the Court and liable to be punished accordingly.

(2) Any person not being a practitioner who— (a) holds himself out to be or advertises or represents

himself as competent or qualified to act as or to carry out the functions of a legal adviser or practitioner; or

(b) permits or suffers his name to be used in any such way by any other person—

shall be guilty of an offence and be liable on summary conviction to a penalty of not more than Fifty pounds and shall in addition be guilty of a contempt of the Court and liable to be punished accordingly.

93. (1) Any unqualified person who for or in expectation of any fee gain or reward (whether the fee gain or reward is or is expected to be direct or indirect) draws fills up or prepares any instrument creating or regulating rights between parties or relating to real or personal property, or any legal proceedings, shall be guilty of an offence and liable on summary conviction to a penalty of not more than Fifty pounds and shall in addition be guilty of a contempt of the Court and liable to be punished accordingly.

(2) This section shall not apply to any practitioner practising exclusively as a barrister or to any person employed merely to engross any such instrument or proceeding, or to any public officer or any officer of the Commissioners of the State Savings Bank of Victoria drawing or preparing official instruments applicable to their respective offices and in the course of their duty.

Application of ss. 110. t i l to all unqualified persons. No. 5182 s. 46.

Unqualified person

£retending to e qualified to

act as solicitor. No. 5182 s. 47.

Person not ractitioner olding

himself out to act as legal adviser etc.

E

Drawing, &c. certain instruments by unqualified person. No. 5182 s. 48.


Solicitor sharing receipts &c. with unqualified person. No. 5182 B. 49.

Solicitor employing &c. person struck oft the roll, &c. No. 5182 s. 50.

(3) No prosecution under this or the last preceding section shall be commenced except with the consent of the Attorney-General.

94. (1) Except in the cases and subject to the conditions prescribed by rules made under this Act no solicitor shall share with an unqualified person receipts from his practice or from any business usually carried on by a solicitor in conjunction with his practice.

(2) Any solicitor who contravenes or fails to comply with the last preceding sub-section may be struck off the roll or suspended from practice for such period as the Court thinks fit or otherwise dealt with as the Court thinks fit.

95. (1) Except with the written permission of the council (which may be given for such period and subject to such conditions as the council thinks fit) no solicitor shall, in connexion with his practice as such, employ or remunerate any person if to the knowledge of such solicitor—

(a) such person has been struck off the roll of the Court or of any court within the British Empire otherwise than at his own request; or

(b) such person has been suspended by the Court or any court within the British Empire from practising as a solicitor.

(2) A solicitor aggrieved by the refusal of the council to grant any such permission or by any condition attached by the council to the grant thereof may appeal to the Court which may confirm the refusal or the conditions (as the case may be) or may grant such permission for such period and subject to such conditions as the Court thinks fit.

(3) If any solicitor contravenes or fails to comply with any provision of this section or any condition subject to which any such permission has been granted he may be struck off the roll or suspended from practice for such period as the Court thinks fit or otherwise dealt with as the Court thinks fit.

Failure to disclose fact of having been struck off, 4c. No. 5182 s. 51.

96. Any person who having been— (a) struck off the roll of the Court or of any court within

the British Empire otherwise than at his own request; or

(b) suspended by the Court or any court within the British Empire from practising as a solicitor—

accepts employment by a solicitor in connexion with that solicitor's practice without previously informing that solicitor that he has been so struck off or suspended as aforesaid shall be guilty of an offence and liable to a penalty of not more than Ten pounds.


solicitor. No. 5182 s. SJ.

97. Any solicitor who in connexion with his practice as such solicitor knowingly employs or remunerates any practitioner who is not the IT^S&T holder of a practising certificate for the time being in force shall be practisfng guilty of an offence and liable to a penalty of not more than Fifty cerliflcate-pOUndS. No. 5182*. 52.

98. (1) If any act is done by a body corporate or by any Body director officer or servant thereof of such a nature or in such a acting as manner as to be calculated to imply that the body corporate is qualified or recognized by law as qualified to act as a solicitor, the body corporate shall be liable to a penalty of not more than One hundred pounds, and, in the case of an act done by a director officer or servant of the body corporate, he shall also be liable to a penalty of not more than Fifty pounds.

(2) For the removal of doubt it is hereby declared that, References to without affecting the generality of any of the provisions of this Act, fSte'Sody any reference in sections ninety, ninety-one and ninety-two of this corP°rale-Act to an unqualified person or to a person includes reference to a body corporate.

99. In addition to and without limiting or derogating from any Power of other power of the Court relating to the punishment of practitioners £?poleto

guilty of misconduct, the Court may impose on any such penal«1es-practitioner a penalty of not more than One hundred pounds. No"5182 s'34'

DIVISION 7. MISCELLANEOUS.

100. A certificate purporting to be signed by the secretary certificate of that any person is or is not or was or was not the holder of a oV™/™'0

practising certificate shall be prima facie evidence of the facts Evidence, •therein stated. NO.SI82S. 55.

101 . All penalties imposed under this Part and all sums ordered Application to be paid to the institute and all fees, costs and expenses payable °ee5&£lt'es' to the institute under this Part (other than those imposed ordered NO.SIS2S.56. to be paid or payable pursuant to the provisions of Division two

• or Division three) shall when recovered or paid be paid to the general funds of the institute.

102. In addition to any other method of recovery and to any Recovery of other right remedy or power vested in the institute the council or "one»8-the secretary, whether by this Act or otherwise, any sum of money °'5t82 s"57' whatsoever payable under this Part may be recovered in any

- court of petty sessions as a civil debt recoverable summarily or in . any court of competent jurisdiction.

http://no.sis2s.56

972 19,58. Legal Profession Practice. No. 6291

Orders of Court to obtain possession of documents. No. 5863 s. 7.

103. (1) If the council is of opinion that—

(a) any defalcation has been or may have been committed in relation to any trust account or trust fund of any solicitor; or

(b) a solicitor has for any reason ceased or been unable to attend to his practice and any person is unable to obtain documents to which he is entitled and which are or were held by the solicitor—

the Court on application in that behalf by the council and on being satisfied that the council has reasonable grounds for such opinion may authorize the council to take possession of any relevant accounts books documents or papers of or held or previously held by the solicitor and may give such directions in relation thereto as the Court thinks fit.

(2) In this section " Solicitor " means any person who is or has been a practitioner within the meaning of the interpretation of " Practitioner " in section fifty-one of this Act.

Charging orders. No. S182 s. 58.

(1) Any court in which a solicitor has been employed to prosecute or defend any action matter or proceeding, may at any time by order declare the solicitor entitled to a charge on the property recovered or preserved through his instrumentality for his taxed costs in reference to that action matter or proceeding, and may make such orders for the taxation of the said costs and for raising money to pay or for paying the said costs out of the said property as to such court seems fit.

(2) Subject to this section, all conveyances assurances transfers and acts done to defeat or operating to defeat the charge shall, except in the case of a conveyance assurance or transfer to a bona fide purchaser for value without notice, be void as against the solicitor.

(3) Where the order affects any land that is not under the provisions of the Transfer of Land Act 1958 the provisions of sub-section (2) of this section shall not apply with respect to any such land until a memorial of the order containing a sufficient description of the land affected, the name and the usual or last-known place of abode and the trade or profession of the person whose estate is affected, the court and title of the cause or matter in which the order was made, the date of the order, and the amount of the money thereby ordered to be raised or paid is left with the Registrar-General and a fee of Six shillings is paid to him, and the Registrar-General shall thereupon enter the particulars in the book kept by him pursuant to section two hundred and nine of the Property Law Act 1958.


(4) Where the order affects any land or registered mortgage or registered charge or registered lease of land under the provisions of the Transfer of Land Act 1958 the provisions of sub-section (2) of this section shall not apply with respect to any such land mortgage charge or lease until an office copy of the order is lodged with the Registrar of Titles, and the Registrar of Titles shall thereupon make all such entries upon any Crown grant or duplicate thereof or upon any certificate or duplicate certificate of title mortgage charge lease or other registered instrument as are necessary or expedient in consequence of this section; and the holder of any such document shall produce the same to the Registrar of Titles for such purpose.

(5) This section shall extend to cases in which the employment of the solicitor occurred before the commencement of this Act and the costs or any part thereof were earned before such commencement, as well as to cases in which the employment of the practitioner occurred and the costs were earned after such commencement.

PART VI.—ADMISSION OF PERSONS ELSEWHERE ADMITTED.

105. Any person now or hereafter duly admitted and at the Admission of time of his application entitled to practise as an attorney, solicitor, %%%?$££" or barrister of the Supreme Court of any State of the States-Commonwealth of Australia shall on proof being made of such Noiiloi8-151

admission be entitled to be admitted by the Supreme Court of s-2(1)-Victoria to practise as a barrister and solicitor in accordance with rules made or to be made by the Council of Legal Education.

106. If a barrister or solicitor or barrister and solicitor is suspension or struck off the rolls or suspended from practice in any State of the TOIUOIO8

Commonwealth he shall upon proof thereof be struck off or ^ve°*f®ctJ°-

suspended for a similar period in Victoria. v" """" "* No. 3715 s. 17.

107. Subject to the provisions of this Act the council may Ruiesasto make and alter rules regulating the admission to practise as p iuonere barristers and solicitors in Victoria of persons duly admitted and g£1'£s°

tl,er

entitled to practise as barristers, attorneys, or solicitors or as NO.3715S.I8-, barristers and solicitors of the Supreme Court of any State of the J^'c^urf). Commonwealth.

108. If at any time the standard of legal education and Part may be qualification in any State of the Commonwealth is substantially standard of reduced and to such an extent as would in the opinion of the JedSceifby Council of Legal Education be prejudicial to the public interest, anys1316-then it shall be lawful for the Governor in Council on being No'3715 s"" requested so to do by the Council of Legal Education by Order

http://no.3715s.i8-

974 I 9 5 8 i Le8al Profession Practice. No. 6291

in Council to suspend the operation of this Part in relation to any such State, and such suspension may be revoked at any time by Order in Council.

Rules as w 109. Subject to the provisions of this Act the council shall have ofEngiandf1 power from time to time to make and alter rules regulating the Ireland.

an admission to practise in Victoria as barristers and solicitors of NO. 37i5s. 2i; persons duly admitted and entitled to practise as barristers N°: 4264 si 2! advocates counsel attorneys writers to the signet or legal

practitioners howsoever styled of the superior courts of England, Scotland, or Ireland or any part of Her Majesty's dominions beyond the Commonwealth subject to any conditions (either general or applicable to particular places or persons only) that seem expedient:

Provided that for the purposes of this section and of any rules made or to be made thereunder and subject otherwise to the provisions of this section a law agent or solicitor of Scotland duly enrolled as such shall be deemed to be duly admitted and entitled to practise as a legal practitioner in the superior courts of Scotland.

PART VI I .—MISCELLANEOUS.

110. In the next three succeeding sections unless inconsistent with the context or subject-matter—

" Solicitor " includes attorney solicitor or proctor and also a barrister or a barrister and solicitor when practising as an attorney solicitor or proctor.

No person to 1 1 1 . Except so far as is otherwise expressly enacted no person attorney unless shall act as a solicitor or as such solicitor sue out any writ or enrolled!and process or commence carry on solicit or defend any action suit or No. 37i5s. 23. other proceeding in the name of any other person or in his own

name in the Supreme Court, County Court, Court of Mines, Court of General Sessions, or Court of Petty Sessions or before any judge or chairman of any of such Courts or before any warden justice or justices unless such person has been admitted and enrolled and otherwise duly qualified to act as a barrister or a solicitor or a barrister and solicitor of the Supreme Court and continues to be so duly qualified and on the roll at the time of his acting in the capacity of a solicitor as aforesaid; and every person who acts or does anything in contravention of the provisions of this section shall be guilty of a contempt of the Supreme Court and punishable accordingly upon the application of any person complaining thereof and upon proof made thereof upon oath either oral or by affidavit and shall be incapable of maintaining or prosecuting any action suit or other proceeding for any fee reward or disbursement for or in respect of any business matter or thing done by him in connexion with the matters aforesaid.

Interpretation. No. 3715 s. 22.

1958. Legal Profession Practice. No. 6291 (J75

112. No solicitor who is a prisoner in any gaol shall during his solicitor* not confinement in such gaol as a solicitor in his own name or in the &c. actions

name of any other solicitor sue out any writ or process or commence ^"ne'fs. or prosecute or defend any action suit or other proceeding civil or No. 3715 s. 24. criminal in any of the courts aforesaid or as precedent to any proceeding before any of the persons aforesaid; and every solicitor acting in contravention of the provisions of this section and every other solicitor permitting or empowering such first-mentioned solicitor so to do shall be guilty of a contempt of the Supreme Court and punishable accordingly upon the application of any person complaining thereof and upon proof made thereof by oath either oral or by affidavit; and every solicitor acting in contravention of any of the provisions of this section shall be incapable of maintaining or prosecuting any action suit or other proceeding for any fee reward or disbursement for or in respect of any business matter or thing done by him whilst such first-mentioned solicitor was a prisoner as aforesaid.

113. If any solicitor acts as agent in any such action suit or solicitors not other proceeding as is mentioned in section one hundred and agents for

eleven for any person not duly qualified to act as a solicitor or if q^Smld?0' any solicitor permits or suffers his name to be in any way made use NO. 3715 s. 2s. of in any such action suit or proceeding upon the account or for the profit of any person not duly qualified as aforesaid or if any solicitor sends any process or does any other act thereby to enable any person not duly qualified as aforesaid to appear act or practise as a solicitor in any such action suit or other proceeding knowing such person not to be duly qualified as aforesaid any such solicitor may upon the application of any person complaining thereof and upon proof made thereof upon oath either oral or by affidavit to the satisfaction of the Supreme Court that such solicitor wilfully and knowingly offended therein be struck off the roll and such Court may make such order as to costs as it thinks just.

114. Nothing in the last three preceding sections shall limit the saving. jurisdiction or control of any court with respect to solicitors given No. 371s s. 26. by the other provisions of this Act or by any other enactment or law in force.

115. When in any enactment passed before the commencement Meaning of of the Legal Profession Practice Act 1891 and repealed by any of »x

D,arrisit0erS"

the Acts (other than the Legal Profession Practice Act ACc'tsnother

1915) mentioned in the Second Schedule to the No. 3715 s. 28. Acts Interpretation Act 1915 there were used expressions such as " barrister " " barrister-at-law " " counsel " " solicitor " " attorney" "proctor" or expressions referring to a person practising or as having practised as a barrister, or barrister-at-law or counsel or solicitor or attorney or proctor or to a person practising or having practised in all or some or any of such capacities and such provision

1958. Legal Profession Practice. No. 6291

is re-enacted in any of the Acts (other than this Act) mentioned in the First Schedule to the Acts Enumeration and Revision Act 1958, such expressions and so far as affected by the meanings of such expressions the provision in which they occur shall be given the same meaning as they would have been given prior to the first day of October One thousand nine hundred and fifteen whether such meaning is the same as or different from the meaning which on the construction of the said last-mentioned Acts alone would have been given.

SCHEDULE.

Number of Act. Title of Act. Extent of Repeal.

3715 . . Legal Profession Practice Act 1928 So much as is not already repealed.

3714 . . Law Institute Act 1928 The whole. 4191 . . Statute Law Revision Act 1933 Item in Schedule

referring to Legal Profession Practice Act 1928.

4264 . . Statute Law Revision Act 1934 Item in Schedule referring to Legal Profession Practice Act 1928.

4418 . . Legal Profession Practice Act 1936 The whole. 4924 . . Legal Profession Practice Act 1942 The whole. 5080 . . Law Institute Act 1945 The whole. 5182 . . Legal Profession Practice Act 1946 The whole. 5406 . . Legal Profession Practice Act 1949 The whole. 5604 . . Solicitor-General Act 1951 Section 5 ( 1 ) . 5863 . . Legal. Prof ession Practice (Amendment^

Act 1955 The whole.

no. 6291. legal profession practice act 1958. · 1958. legal profession practice. no. 6291 92a no....

Documents