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Complaints against foreign lawyers registered under section 36P and law experts registered under section 36PA

Legal Profession Act 1966

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—(1) Every foreign lawyer who is registered under section 36P, and every law expert who is registered under section 36PA, is subject to the control of the Supreme Court and shall be liable on due cause shown —(a)to have his or her registration under section 36P or 36PA (as the case may be) cancelled or suspended (for such period as the court may think fit);(b)to pay a penalty of not more than $100,000;(c)to be censured; or(d)to suffer the punishment referred to in paragraph (b) in addition to the punishment referred to in paragraph (a) or (c).(2) Any complaint of the conduct of a foreign lawyer who is registered under section 36P, or the conduct of a law expert who is registered under section 36PA —(a)must be made to the Registrar in writing; and(b)subject to subsection (3), must be supported by such statutory declaration as the Registrar may require.(3) No statutory declaration is required if the complaint is made by a Judge, by an International Judge, by the Attorney‑General, by the Council or by any public officer acting in the course of the public officer’s duties.(4) Where any complaint is made to the Registrar of the conduct of a foreign lawyer registered under section 36P, or the conduct of a law expert registered under section 36PA, the Registrar must, within one week after the date on which the Registrar receives the complaint —(a)furnish the foreign lawyer or law expert a copy of the complaint; and(b)make a request to the Chief Justice to appoint a complaints committee to hear and investigate the complaint.(5) The Chief Justice may appoint one or more complaints committees, each comprising —(a)a chairperson, who is a person who has at any time held office as a Supreme Court Judge or a Judicial Commissioner;(b)an advocate and solicitor of not less than 12 years’ standing; and(c)a foreign lawyer of not less than 12 years’ standing who is registered under any provision of this Act which is prescribed for the purposes of this paragraph.(6) The Chief Justice may at any time —(a)revoke the appointment of a complaints committee;(b)remove any member of a complaints committee; or(c)fill any vacancy in a complaints committee.(7) The Chief Justice must appoint a solicitor to be the secretary of every complaints committee.(8) A complaints committee appointed to hear and investigate a complaint of the conduct of a foreign lawyer who is registered under section 36P —(a)must, within 4 weeks after the date of its appointment —(i)determine whether there is a prima facie case for an investigation into the complaint; and(ii)if it is of the opinion that there is no prima facie case for an investigation into the complaint, determine that no cause of sufficient gravity for disciplinary action exists against the foreign lawyer; and(b)may, in any event, invite the complainant to make a complaint of the conduct of the foreign lawyer to either or both of the following:(i)the foreign authority having the function conferred by law of authorising or registering persons to practise law in the state or territory in which the foreign lawyer is duly authorised or registered to practise law;(ii)any relevant professional disciplinary body of the state or territory in which the foreign lawyer is duly authorised or registered to practise law.(8A) A complaints committee appointed to hear and investigate a complaint of the conduct of a law expert who is registered under section 36PA must, within 4 weeks after the date of its appointment —(a)determine whether there is a prima facie case for an investigation into the complaint; and(b)if it is of the opinion that there is no prima facie case for an investigation into the complaint, determine that no cause of sufficient gravity for disciplinary action exists against the law expert.(9) If a complaints committee is of the opinion that there is a prima facie case for an investigation into a complaint of the conduct of a foreign lawyer who is registered under section 36P, or the conduct of a law expert who is registered under section 36PA —(a)the secretary of the complaints committee must notify in writing the Chief Justice, the Registrar, the complainant and the foreign lawyer or law expert of the opinion of the complaints committee;(b)the Registrar must, within one week after the date on which the Registrar receives the notification under paragraph (a), notify the appointing committee and the instructing authority of the opinion of the complaints committee;(c)the appointing committee must, within 3 weeks after the date on which it receives the notification under paragraph (b), appoint a solicitor to conduct the subsequent proceedings before the complaints committee and to frame the charge or charges to be preferred against the foreign lawyer or law expert; and(d)the solicitor appointed to conduct those proceedings must frame the charge or charges preferred against the foreign lawyer or law expert, and submit the charge or charges to the complaints committee, within 2 weeks after the date on which the solicitor is appointed, or such longer period as the complaints committee may allow.(10) If a complaints committee is directed by a Judge under section 36T(5) to hear and investigate a complaint of the conduct of a foreign lawyer who is registered under section 36P, or the conduct of a law expert who is registered under section 36PA, on the basis that there is a prima facie case for an investigation into the complaint —(a)the Registrar must notify in writing the Chief Justice, the complaints committee, the appointing committee, the instructing authority, the complainant and the foreign lawyer or law expert of the direction of the Judge;(b)the appointing committee must, within 3 weeks after the date on which it receives the notification under paragraph (a), appoint a solicitor to conduct the subsequent proceedings before the complaints committee and to frame the charge or charges to be preferred against the foreign lawyer or law expert; and(c)the solicitor appointed to conduct those proceedings must frame the charge or charges preferred against the foreign lawyer or law expert, and submit the charge or charges to the complaints committee, within 2 weeks after the date on which the solicitor is appointed, or such longer period as the complaints committee may allow.(11) Where subsection (9) or (10) applies, the complaints committee must give the foreign lawyer or law expert a reasonable opportunity to be heard by the complaints committee, and must, within 16 weeks after the date on which the charge or charges preferred against the foreign lawyer or law expert are submitted to the complaints committee —(a)record the complaints committee’s findings in relation to the charge or charges preferred against the foreign lawyer or law expert; and(b)determine that —(i)no cause of sufficient gravity for disciplinary action exists against the foreign lawyer or law expert;(ii)while no cause of sufficient gravity for disciplinary action exists against the foreign lawyer or law expert, the foreign lawyer or law expert should be given a warning, reprimanded or ordered to pay a penalty sufficient and appropriate to the misconduct committed; or(iii)cause of sufficient gravity for disciplinary action exists against the foreign lawyer or law expert.(12) The Chief Justice may, on the application of a complaints committee, grant to the complaints committee either or both of the following:(a)an extension of the period specified in subsection (8)(a) or (8A) not extending beyond a period of 6 weeks after the date of the appointment of the complaints committee;(b)an extension of the period specified in subsection (11).(13) The opinion and determination of a complaints committee under subsection (8)(a)(ii) or (8A)(b), and the findings and determination of a complaints committee under subsection (11), must be in the form of a report, of which the secretary of the complaints committee must —(a)submit a copy to each of the Chief Justice and the Registrar; and(b)supply a copy to each of the complainant, the foreign lawyer or law expert concerned and the instructing authority.(14) Where a complaints committee makes a determination under subsection (11)(b)(ii), it may give the foreign lawyer or law expert concerned a warning, reprimand the foreign lawyer or law expert, or order the foreign lawyer or law expert to pay a penalty of not more than $20,000.(15) Where a complaints committee makes a determination under subsection (11)(b)(iii) —(a)the Registrar must, within one week after the date on which the Registrar receives a copy of the report submitted under subsection (13)(a), notify the appointing committee in writing of the determination of the complaints committee;(b)the appointing committee must, within 3 weeks after the date on which it is notified under paragraph (a) of the determination of the complaints committee, appoint a solicitor to act for the instructing authority in an application under section 36U(1) against the foreign lawyer or law expert concerned and to conduct all proceedings relating to the application; and(c)the solicitor appointed to act for the instructing authority in the application must file the application on behalf of the instructing authority within one month after the date on which the solicitor is appointed.(16) Where a complaints committee makes a determination under subsection (11)(b)(i), (ii) or (iii), the complaints committee may —(a)make an order for the payment of costs by the complainant or the foreign lawyer or law expert concerned; and(b)in the order, specify the amount of those costs or direct that the amount be taxed by the Registrar.(17) Any person awarded any costs under subsection (16) may sue for and recover those costs as if those costs were a debt due to that person.(18) The person prescribed for the purposes of this subsection must —(a)publish the findings and determination of a complaints committee under subsection (11) in such manner as may be prescribed; and(b)make public a copy of the record of the proceedings of the complaints committee (including the findings and determination of the complaints committee).(19) Any person may obtain a copy of the record of proceedings of a complaints committee (including the findings and determination of the complaints committee under subsection (11)) from the person prescribed for the purposes of this subsection upon paying the prescribed fee.(20) All the members of a complaints committee must be present to constitute a quorum for a meeting of the complaints committee.(21) Any questions arising at a meeting of a complaints committee are to be determined by a majority of votes of the members of the complaints committee.(22) Any resolution or decision in writing signed by all the members of a complaints committee is as valid and effectual as if it had been made or reached at a meeting of the complaints committee where all of the members of the complaints committee were present.(23) A complaints committee may require the complainant to deposit with the Registrar a sum not exceeding $1,000 to cover costs.(24) A complaints committee may, for the purposes of hearing and investigating a complaint, require the complainant or the foreign lawyer or law expert concerned to answer any question or furnish any document that the complaints committee considers relevant.(25) For the purposes of any complaint heard and investigated by a complaints committee —(a)the complaints committee may administer oaths; and(b)the instructing authority, the foreign lawyer or law expert concerned and the secretary of the complaints committee may sue out subpoenas to testify or to produce documents.(26) No person may be compelled under any subpoena referred to in subsection (25)(b) to produce any document which the person could not be compelled to produce at the trial of an action.(27) A subpoena referred to in subsection (25)(b) must be served and may be enforced as if it were a subpoena issued in connection with a civil action in the General Division of the High Court.(28) Any person giving evidence before a complaints committee is legally bound to tell the truth.(29) Any person who makes a complaint under subsection (2) which that person knows to be false in any material particular shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000.(30) Any person who, without reasonable excuse, refuses or fails to comply with any requirement of a complaints committee under subsection (24) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000.

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