S. 1. LEGAL PRACTITIONERS ACT 1898. COMMISSIONER'S MEMORANDUM AND CERTIFICATE. THIS Bill consolidates the following Acts : 11 Vic. No. 33; 11 Vic. No. 57; 20 Vic. No. 14; 22 Vic. No. 23; 39 Vic. No. 32; 46 Vic. No. 2; 55 Vic. No. 31. Section X of the Charter of Justice has not been introduced into this consolidation, as it rests upon the authority of an Imperial Act, and is not itself a statute at all, and for various reasons it seems hardly advisable to cut it up and distribute its various clauses amongst our own Acts of legislation. Clause 3. To prevent any possible argument that the Bill applies to any but legal persons entitled to practise in New South Wales barrister" has been defined to mean a barrister-at-law admitted by the Supreme Court. In the same clause under the definition of " University graduate "the words "of Sydney" are new. The Act 20 Vic. No. 14, sec. 1, dispenses graduates in Arts in the Sydney University from the examinations under 11 Vic. No. 57, except as to the law examination. The Act 22 Vic. No. 23, sec. 1, gives a similar privilege to graduates in Arts or in Law or in Medicine in the universities of Oxford or Cambridge, or in any university granting degrees by virtue of any Statute or Royal Charter or Colonial Act assented to by Her Majesty or any of her predecessors. The result of this was to give to graduates in Law or Medicine in (say) the university of Melbourne a position of superiority over those in our own university. It seemed that a distinction so invidious had been created by oversight and not by the deliberate intention of the Legislature, and I have ventured respectfully to correct it by introducing the two words referred to. Clause 4. The words "November or are new. The prothonotary states that the fixing by statute of the annual election of the barrister's board so late as December has been found extremely inconvenient to the public and the profession and the offices, as certain things cannot be done till after the election has taken place. So trifling a detail as the fixing of a date for such a purpose seems rather a matter for a rule of court or a regulation than the heavy machinery of a statute. I have ventured to put in the words referred to. Clauses 11 and 14. The use of the inaccurate word "disbarred" in sec. 3 of the Act 55 Vic. No. 31 has created a great difficulty, and in the cases of ex parte Grant and ex parte Mugliston (reported in 9 W.N. 77 and 12 W.N. 120 respectively) the Court came to different conclusions as to its powers. Some words have therefore been introduced to remove all doubt, and make what was the evident intention quite clear. The words " from the date of his admission in New South Wales " have been added after the words any solicitor (or barrister) of five years' standing," and the expressions "removed" and "removed from the roll of barristers" have been substituted for "struck off" and "disbarred" respectively. Clause 13. The wording is somewhat altered from that of sec. 1 of 20 Vic. No. 14 because the term of five years is not required by statute but only by rule of court, and also generally to improve the reading of the clause. Court or a judge" has "And such other one or two Clause 17. Some changes have been made here. been substituted for " the judges or any one of them." officers," &c., has been put for or such," &c., because the officers are to assist the master, and they cannot assist one whom they have entirely ousted. The phrase "Court or a judge " has been put for " judges." The section here dealt with is most confused, and the best sense possible has been made of it. Clause 20. The word "prothonotary" was originally "registrar." The two offices are united, and the title "registrar " is now never applied to the prothonotary. Clause 16. The phrase" in such manner and form as the judges of the Supreme Court shall direct," being vague and unsatisfactory, has been changed to "in the prescribed manner and form," the word "prescribed" being defined in clause 3 to mean prescribed by rules of court. Clause 21 (2). One of the difficulties of this consolidation has been to deal with the phrase, incessantly repeated in the Act 11 Vic. No. 33," or executor, administrator, or assignee of such attorney or trustee of his estate." Curiously enough, however, in the proviso to sec. 4 of this Act, these words were omitted when they should have appeared. The omission was clearly an oversight, and the clause has been so drafted as to correct it. clauses. Clause 21 (3). This is new, and merely facilitates the drafting of the subsequent In this clause 21, and in one or two other places, it has been found necessary to insert the expression "executor, administrator, or assignee, &c.," which as a rule has been eliminated from the body of the bill by the definition of the word "solicitor " in the interpretation clause. Clause 22 (2). The registrar in bankruptcy has here been made the taxing officer. The Act 11 Vic. No. 33, sec. 1, made the chief commissioner of insolvent estates the taxing officer. By sec. 127 of the Bankruptcy Act" judge in bankruptcy" was substituted for "chief commissioner," &c. This would make the judge the taxing officer, and in certain ways subordinate to the prothonotary. The judge, of course, never does tax, but the registrar does, and this clause now follows the practice. Divorce and Probate are new jurisdictions since the 11 Vic. No. 33. Taxing in these jurisdictions has in fact been done by the registrars, who are now recognised. Clause 22 (3). This also embodies the practice which has grown up of necessity, and makes the procedure uniform in all the Courts. Clause 23. “Shall thereupon" has been altered to "thereupon shall" to agree with the whole of the rest of the Act. The expression here was apparently a slip. Clause 26. “Taxation" has been put for "reference." The words appointment and reference are loosely used throughout the original Act to mean sometimes the order of reference, sometimes the granting of the appointment, sometimes the actual taxation. In this Bill the word" taxation " has been introduced where taxation was meant and "appointment" is used to mean an appointment for taxation, and "reference" is used to mean a reference by a judge. Clause 28 (2). The draftsman of the original section apparently did not notice that there is no "order" for appointment, and it has therefore been necessary somewhat to alter the wording, but without changing the meaning. Clause 29. In the Imperial Act this section had a definite meaning (see Chitty's Practice, p. 107), in our Act it is hard to say exactly what it means, but I have been obliged to repeat it without any attempt at alteration. Clause 37. The original section said nothng about "appointments." It has always been treated as including them, and they are now included. Clause 38. This has had to remain as it is, notwithstanding that it is rather uncertain in whose name an application should be made when the solicitor is dead. Clause 39 (2). The words "Court or" at the end of this subsection were omitted, evidently by inadvertence, in the original section. Clause 40. Is far from satisfactory, but has been left untouched. The wording of the principal Acts here consolidated has been very troublesome and many changes have been made for the sake of clearness, but without altering the sense. Except in the particulars above set out I certify that this Bill solely consolidates and in no way alters, adds to, or amends the law as contained in the Acts thereby consolidated. CHAS. G. HEYDON, Commissioner for the Consolidation of the Statute Law. S. 1. ACT No. XXII., 1898. An Act to consolidate the enactments relating to Legal E it enacted by the Queen's Most Excellent Majesty, by and Legislative Assembly of New South Wales in Parliament assembled, and by the authority of the same, as follows :— PART I. 1. This Act may be cited as the "Legal Practitioners Act, 1898," and is divided into Parts, as follows: PART I.-PRELIMINARY-ss. 1-3. S. 1. PART V. BILLS OF COSTS--ss. 21-39. PART VI.-UNQUALIFIED PRACTITIONERS—s. 40. 2. (1) The Acts mentioned in the Schedule to this Act are, Repeal. to the extent therein expressed, hereby repealed. Schedule. repealed. (2) All persons appointed or elected under the Acts officers under hereby repealed and holding office at the time of the passing of Acts hereby this Act shall be deemed to have been appointed or elected hereunder. Acts hereby re (3) All rules made under the authority of any Act Rules under hereby repealed and being in force at the time of the passing of pealed. this Act shall be deemed to have been made under the authority of this Act. 3. In this Act, unless the context or subject-matter other- Interpretation. wise indicates or requires “Barrister” means a barrister-at-law admitted by the Court. 'Court" means the Supreme Court. "Judge" means a Judge of the Court. "Prescribed" means prescribed by rules of Court. 'Solicitor" means an attorney, solicitor, and proctor of the s. 1. "University graduate” means a person who has taken any 20 Vic. No. 14, degree in arts, or in law, or in medicine, granted after examination (a) in the University of Sydney or of Oxford or of Cam- (b) in any university granting degrees by virtue of any 22 Vic. No. 23, s. 1. S. 4. Admission 11 Vic. No. 57, s. 1. Meetings. Ibid. s. 4. Rules for examination. Ibid. s. 1. 39 Vic. No. 32, ss. 1, 2. Examiners. s. 1. PART II. 4. The Judges, the Attorney General, and two barristers to be annually elected by the practising barristers in the month of November or December for the year then ensuing shall form a Board for the approval of properly qualified persons to be barristers. General power to admit barristers is conferred on the Court by clause 10 of the Charter of Justice (post). Rules regulating their admission are made by the Board above-mentioned, and published annually in the Law Almanac for the year. 5. (1) No meeting of the Board nor any meeting of the bar for the election of such two members of the Board shall be held without notice in writing previously given by the Attorney General to each member of the Board (or to each practising barrister as the case may be) three days at the least before the day of meeting, specifying therein the time and place of meeting. (2) Every such notice may be given by leaving the same at the party's chambers or usual residence. (3) The acts and resolutions of the majority of the Board or barristers present at any meeting so called shall have effect and be binding as the acts and resolutions of the whole body. 6. The Board shall make and promulgate rules for the examination of candidates for admission as barristers in(a) Latin classics; (b) Greek classics, or logic, or French language and literature ; (c) mathematics; (d) law; and in such other branches of knowledge as the Board thinks fit. 7. The Board may depute the examination of candidates 11 Vic. No. 37, to such persons as they consider competent to examine such candidates, subject to the payment of such reasonable fees to the examiners as the Board shall order to be paid by such candidates. Exemption of university graduates and certain undergraduates. 20 Vic. No. 14, s. 1. 8. (1) No university graduate shall be required to pass any examination under this Part of this Act other than an examination in law. (2) No candidate who has passed two annual examinations in the University of Sydney shall be required to pass an 22 Vic. No. 23, examination in any of the subjects mentioned in subsections (a), 39 Vic. No. 32, (b), and (c) of section six. s. 1. s. 1. Character of candidates. 11 Vic. No. 57, s. 2. 9. No candidate, however qualified in other respects, shall be admitted as a barrister unless the Board is satisfied that he is a person of good fame and character : Provided that nothing herein contained shall be construed to apply to the admission of barristers of England or Ireland or advocates of Scotland. |