Western Australian Numbered Acts Western Australian Numbered Acts In this
Act —
“accountant” means a member
of —
(a) The
Institute of Chartered Accountants in Australia (AR643BN
084 642 571); or
(b) CPA
Australia (ACN 008 392 452); or
(c) the
National Institute of Accountants (ACN 004 130 643);
“ADI” means an authorised
deposit-taking institution as defined in the Banking Act 1959 of the
Commonwealth;
“admission rules” means rules relating
to the admission of lawyers and associated matters made under
section 575;
"admission to the legal profession" means
admission by a Supreme Court as —
(a) a
lawyer; or
(b) a
legal practitioner; or
(c) a
barrister; or
(d) a
solicitor; or
(e) a
barrister and solicitor; or
(f) a
solicitor and barrister,
under this Act or a
corresponding law but does not include the grant of a practising certificate
under this Act or a corresponding law and
"admitted to the legal profession "has a corresponding meaning;
“affairs” of a law practice include
the following —
(a) all
accounts and records required under this Act to be maintained by the practice
or an associate or former associate of the practice;
(b)
other records of the practice or an associate or former associate of the
practice;
(c) any
transaction —
(i)
to which the practice or an associate or former associate
of the practice was or is a party; or
(ii)
in which the practice or an associate or former associate
of the practice has acted for a party;
“amend” includes —
(a) in
relation to a practising certificate —
(i)
impose a condition on the certificate; and
(ii)
vary or revoke a condition already imposed on the
certificate;
and
(b) in
relation to registration as a foreign lawyer —
(i)
amend the lawyer’s registration certificate; and
(ii)
impose a condition on the registration; and
(iii)
vary or revoke a condition already imposed on the
registration;
“approved form” means a form approved
by the Board;
“associate” has the meaning given in
section 6(1);
“Australian lawyer” has the meaning
given in section 4(a);
“Australian legal practitioner” has
the meaning given in section 5(a) as affected by section 36(3);
"Australian practising certificate" means a local
practising certificate or an interstate practising certificate;
"Australian-registered foreign lawyer" means a
locally registered foreign lawyer or an interstate-registered foreign lawyer;
“Australian roll” means the local roll
or an interstate roll;
“barrister” means an Australian legal
practitioner who engages in legal practice solely as a barrister;
“Board” means the Legal Practice Board
established under section 534;
“client” includes a person to whom or
for whom legal services are provided;
“compensation order” means an order
referred to in section 448;
“complaint” means a complaint under
Part 13;
“Complaints Committee” means the
committee established under section 555;
“compliance certificate” has the
meaning given in section 31;
“condition” means condition,
limitation or restriction;
“conduct” means conduct whether
consisting of an act or omission;
“conviction” has the meaning given in
section 10;
“corporation” means —
(a) a
company as defined in the Corporations Act section 9; or
(b) any
other body corporate, or body corporate of a kind, prescribed by the
regulations;
“Corporations Act” means the
Corporations Act 2001 of the Commonwealth;
“corresponding authority”
means —
(a) a
person or body having functions under a corresponding law; or
(b) when
used in the context of a person or body having functions under
this Act (the "local authority") —
(i)
a person or body having corresponding functions under a
corresponding law; and
(ii)
without limiting subparagraph (i), if the functions
of the local authority relate to local lawyers or local legal practitioners
generally or are limited to any particular class of local lawyers or local
legal practitioners — a person or body having corresponding
functions under a corresponding law regardless of whether they relate to
interstate lawyers or interstate legal practitioners generally or are limited
to any particular class of interstate lawyers or interstate legal
practitioners;
“corresponding disciplinary body”
means —
(a) a
body having functions under a corresponding law that correspond to any of the
functions of the Complaints Committee; or
(b) a
court or tribunal having functions under a corresponding law that correspond
to any of the functions of the Complaints Committee, State Administrative
Tribunal or Supreme Court in relation to the control and discipline of any
Australian lawyers; or
(c) the
Supreme Court of another jurisdiction exercising —
(i)
its inherent jurisdiction or powers in relation to the
control and discipline of any Australian lawyers; or
(ii)
its jurisdiction or powers to make orders under a
corresponding law of the other jurisdiction in relation to any Australian
lawyers;
“corresponding foreign law”
means —
(a) a
law of a foreign country that corresponds to the relevant provisions of this
Act or, if a regulation is made declaring a law of the foreign country to be a
law that corresponds to this Act, the law declared under that regulation for
the foreign country; or
(b) if
the term is used in relation to a matter that happened before the commencement
of the law of a foreign country that, under paragraph (a), is the
corresponding law for the foreign country, a previous law applying to legal
practice in the foreign country;
“corresponding law” means —
(a) a
law of another jurisdiction that corresponds to the relevant provisions of
this Act or, if a regulation is made declaring a law of another jurisdiction
to be a law that corresponds to this Act, the law declared under that
regulation for the other jurisdiction; or
(b) if
the term is used in relation to a matter that happened before the commencement
of the law of another jurisdiction that, under paragraph (a), is the
corresponding law for the other jurisdiction, a previous law applying to legal
practice in the other jurisdiction;
“director” means —
(a) in
relation to a company within the meaning given in the Corporations
Act — a director as defined in section 9 of that Act; or
(b) in
relation to any other body corporate, or body corporate of a kind, prescribed
by the regulations — a person specified or described in the
regulations;
“disqualified person” means any of the
following persons, whether the thing that has happened to the person happened
before or after the commencement of this definition —
(a) a
person whose name has (whether or not at his or her own request) been removed
from an Australian roll and who has not subsequently been admitted or
re-admitted to the legal profession under this Act or a corresponding law;
(b) a
person whose Australian practising certificate has been suspended or cancelled
under this Act or a corresponding law and who, because of the cancellation, is
not an Australian legal practitioner or in relation to whom that suspension
has not finished;
(c) a
person who has been refused a renewal of an Australian practising certificate
under this Act or a corresponding law, and to whom an Australian
practising certificate has not been granted at a later time;
(d) a
person who is the subject of an order under this Act or a corresponding law
prohibiting a law practice from employing or paying the person in connection
with the relevant practice;
(e) a
person who is the subject of an order under this Act or a corresponding law
prohibiting an Australian legal practitioner from being a partner of the
person in a business that includes the practitioner’s practice;
(f) a
person who is subject to an order under section 120 or 145 or under
provisions of a corresponding law that correspond to section 120
or 145;
“document” means any record of
information, and includes —
(a)
anything on which there is writing; and
(b)
anything on which there are marks, figures, symbols or perforations having a
meaning for persons qualified to interpret them; and
(c)
anything from which sounds, images or writings can be reproduced with or
without the aid of anything else; and
(d) a
map, plan, drawing or photograph,
and a reference in
this Act to a document (as so defined) includes a reference to —
(e) any
part of the document; and
(f) any
copy, reproduction or duplicate of the document or of any part of the
document; and
(g) any
part of such a copy, reproduction or duplicate;
“engage in legal practice” includes
practise law;
“external examination” means an
external examination under Part 9 Division 4 of a law
practice’s trust records;
“external examiner” means a person
holding an appointment as an external examiner under Part 9
Division 4;
“external territory” means a Territory
of the Commonwealth (not being the Australian Capital Territory, the Jervis
Bay Territory or the Northern Territory of Australia) for the government of
which as a Territory provision is made by a Commonwealth Act;
“foreign country” means —
(a) a
country other than Australia; or
(b) a
state, province or other part of a country other than Australia;
“foreign regulatory action” taken in
relation to a person means —
(a)
removal of the person’s name from a foreign roll for disciplinary
reasons; or
(b)
suspension or cancellation of, or refusal to renew, the person’s right
to engage in legal practice in a foreign country;
“foreign roll” means an official roll
of lawyers (whether admitted, practising or otherwise) kept in a foreign
country, but does not include a roll prescribed by the regulations or a kind
of roll prescribed by the regulations;
“grant” of a practising certificate
includes the issue of a practising certificate;
“Guarantee Fund” means the
Solicitor’s Guarantee Fund established under section 336;
“home jurisdiction” has the meaning
given in section 7;
“incorporated legal practice” has the
meaning given in Part 7 Division 2;
“information notice” has the meaning
given in section 9;
“insolvent under administration”
means —
(a) a
person who is an undischarged bankrupt under the Bankruptcy Act 1966 of
the Commonwealth (or the corresponding provisions of the law of a foreign
country or external territory); or
(b) a
person who has executed a deed of arrangement under Part X of the
Bankruptcy Act 1966 of the Commonwealth (or the corresponding provisions
of the law of a foreign country or external territory) if the terms of the
deed have not been fully complied with; or
(c) a
person whose creditors have accepted a composition under Part X of the
Bankruptcy Act 1966 of the Commonwealth (or the corresponding provisions
of the law of a foreign country or external territory) if a final payment has
not been made under that composition; or
(d) a
person for whom a debt agreement has been made under Part IX of the
Bankruptcy Act 1966 of the Commonwealth (or the corresponding provisions
of the law of a foreign country or external territory) if the debt agreement
has not ended or has not been terminated; or
(e) a
person who has executed a personal insolvency agreement under Part X of the
Bankruptcy Act 1966 of the Commonwealth (or the corresponding provisions
of the law of a foreign country or external territory) but not if the
agreement has been set aside or terminated or all of the obligations that the
agreement created have been discharged;
“interstate government lawyer” has the
meaning given in section 79(1);
“interstate lawyer” has the meaning
given in section 4(c);
“interstate legal practitioner” has
the meaning given in section 5(c);
"interstate practising certificate" means a
current practising certificate granted under a corresponding law;
"interstate-registered foreign lawyer" means a
person who is registered as a foreign lawyer under a corresponding law;
“interstate regulatory authority ”
means, in relation to another jurisdiction —
(a) if
there is only one regulatory authority for the jurisdiction — that
regulatory authority unless subparagraph (c) applies; or
(b) if
there are separate regulatory authorities for the jurisdiction for different
branches of the legal profession or for persons who practise in a particular
style of legal practice — the regulatory authority relevant to the
branch or style concerned unless subparagraph (c) applies; or
(c) if
the regulations specify or provide for the determination of one or more
regulatory authorities for the jurisdiction either generally or for particular
purposes — the regulatory authority or authorities specified in or
determined in accordance with the regulations;
“interstate roll” means a roll of
lawyers maintained under a corresponding law;
“jurisdiction” means a State or
Territory of the Commonwealth;
“Law Complaints Officer” means the
person holding the office of that name under section 572;
“law firm” means a partnership
consisting only of —
(a)
Australian legal practitioners; or
(b) one
or more Australian legal practitioners and one or more
Australian-registered foreign lawyers;
“law practice” means —
(a) an
Australian legal practitioner who is a sole practitioner; or
(b) a
law firm; or
(c) a
multi-disciplinary partnership; or
(d) an
incorporated legal practice;
“Law Society” means the Law Society of
Western Australia (Inc.);
“lay associate” has the meaning given
in section 6(2)(b);
“legal costs” means amounts that a
person has been or may be charged by, or is or may become liable to pay to, a
law practice for the provision of legal services including disbursements but
not including interest;
“legal practitioner associate” has the
meaning given in section 6(2)(a);
“legal practitioner director” , in
relation to an incorporated legal practice, has the meaning given in
Part 7 Division 1;
“legal practitioner partner” , in
relation to a multi-disciplinary partnership, has the meaning given in
Part 7 Division 1;
“legal profession rules” means rules
relating to legal practice made under this Act;
“legal services” means work done, or
business transacted, in the ordinary course of legal practice;
“local lawyer” has the meaning given
in section 4(b);
“local legal practitioner” has the
meaning given in section 5(b) as affected by section 36(3);
“local practising certificate” means a
practising certificate granted under this Act;
“local regulatory authority ”
means —
(a) an
authority having functions under this Act; or
(b) a
person or body prescribed by the regulations as a local regulatory authority;
“local roll” has the meaning given in
section 28(1);
"locally registered foreign lawyer" means a person
who is registered as a foreign lawyer under Part 8;
“managed investment scheme” has the
same meaning as in the Corporations Act Chapter 5C;
“modifications” includes modifications
by way of alteration, omission, addition or substitution;
“mortgage” means an instrument under
which an interest in real property is charged, encumbered or transferred as
security for the payment or repayment of money, and includes —
(a) any
instrument of a kind that is prescribed by the regulations as being a
mortgage; and
(b) a
proposed mortgage;
“mortgage financing” means
facilitating a loan secured or intended to be secured by mortgage
by —
(a)
acting as an intermediary to match a prospective lender and borrower; or
(b)
arranging the loan; or
(c)
receiving or dealing with payments for the purposes of, or under, the loan,
but does not include
providing legal advice or preparing an instrument for the loan;
“multi-disciplinary partnership” has
the meaning given in Part 7 Division 3;
“practical legal training” means
either, or a combination of both, of the following —
(a)
legal training by participation in course work;
(b)
supervised legal training, whether involving articles of clerkship or
otherwise;
“previous Act” means —
(a) the
Legal Practice Act 2003 ;
(b) the
Legal Practitioners Act 1893 ;
“principal” has the meaning given in
section 6(3);
“Principal Registrar” has the meaning
given in the Supreme Court Act 1935 section 4(1);
“professional misconduct” has the
meaning given in section 403;
“serious offence” means an offence
(whether committed in or outside this jurisdiction) that is —
(a) an
indictable offence against a law of the Commonwealth or any jurisdiction
(whether or not the offence is or may be dealt with summarily); or
(b) an
offence against the law of another jurisdiction that would be an indictable
offence against a law of this jurisdiction if committed in this jurisdiction
(whether or not the offence could be dealt with summarily if committed in this
jurisdiction); or
(c) an
offence against the law of a foreign country that would be an indictable
offence against a law of the Commonwealth or this jurisdiction if committed in
this jurisdiction (whether or not the offence could be dealt with summarily if
committed in this jurisdiction);
“show cause event” , in relation to a
person, means —
(a) the
person becoming bankrupt or being served with notice of a creditor’s
petition presented to the Court under the Bankruptcy Act 1966 of the
Commonwealth section 43; or
(b) the
presentation by the person (as a debtor) of a declaration to the Official
Receiver under the Bankruptcy Act 1966 of the Commonwealth
section 54A of his or her intention to present a debtor’s petition
or his or her presentation (as a debtor) of such a petition under
section 55 of that Act; or
(c) the
application by the person to take the benefit of any law for the relief of
bankrupt or insolvent debtors, compounding with his or her creditors or making
an assignment of his or her remuneration for their benefit; or
(d) the
conviction of the person for a serious offence or a tax offence, whether or
not —
(i)
the offence was committed in or outside this
jurisdiction; or
(ii)
the offence was committed while the person was engaging
in legal practice as an Australian legal practitioner or was practising
foreign law as an Australian-registered foreign lawyer, as the case requires;
or
(iii)
other persons are prohibited from disclosing the identity
of the offender;
“sole practitioner” means an
Australian lawyer who engages in legal practice on his or her own account;
“suitability matter” has the meaning
given in section 8;
“supervised legal practice” means
legal practice by a person who is an Australian legal
practitioner —
(a) as
an employee of a law practice if —
(i)
at least one partner, legal practitioner director or
other employee of the law practice is an Australian legal practitioner who
holds an unrestricted practising certificate; and
(ii)
the person engages in legal practice under the
supervision of an Australian legal practitioner referred to in
subparagraph (i);
or
(b) as a
partner in a law firm if —
(i)
at least one other partner is an Australian legal
practitioner who holds an unrestricted practising certificate; and
(ii)
the person engages in legal practice under the
supervision of an Australian legal practitioner referred to in
subparagraph (i);
or
(c) as a
WA government lawyer if the person engages in legal practice under the
supervision of —
(i)
the State Solicitor; or
(ii)
the Director of Legal Aid appointed under the
Legal Aid Commission Act 1976 section 18; or
(iii)
the Director of Public Prosecutions appointed under the
Director of Public Prosecutions Act 1991 section 5; or
(iv)
the holder of an office prescribed by regulations for the
purposes of this paragraph;
or
(d) as
an interstate government lawyer if the person engages in legal practice under
the supervision of —
(i)
a person acting as a Director of the Australian
Government Solicitor established under Part VIIIB Division 2 of the
Judiciary Act 1903 of the Commonwealth; or
(ii)
a General Counsel or Regional General Counsel of the
Australian Securities and Investments Commission; or
(iii)
the holder of an office prescribed by regulations for the
purposes of this paragraph;
or
(e) as
an employee of a body that carries on a business other than the practice of
law if the person engages in legal practice under the supervision of an
Australian legal practitioner who holds an unrestricted practising
certificate; or
(f) in a
capacity approved for the purposes of this paragraph under a legal profession
rule;
“Supreme Court (full bench)” means the
Supreme Court constituted by at least 3 judges;
“tax offence” means an offence under
the Taxation Administration Act 1953 of the Commonwealth, whether
committed in or outside this jurisdiction;
“taxing officer” means a taxing
officer of the Supreme Court;
“this jurisdiction” means this State;
“Trust” means the Legal Contribution
Trust established under section 391;
“trust account” has the meaning given
in section 205(1);
“trust money” has the meaning given in
section 205(1);
“trust property” means property
entrusted to a law practice in the course of or in connection with the
provision of legal services by the practice, but does not include trust money
or money referred to in section 206;
“trust records” has the meaning given
in section 205(1);
"unrestricted practising certificate" means an
Australian practising certificate that is not subject to any condition under
this Act or a corresponding law requiring the holder to engage in supervised
legal practice or restricting the holder to practise as or in the manner of a
barrister;
"unsatisfactory professional conduct" has the
meaning given in section 402;
“WA government lawyer” has the meaning
given in section 36(1).