Sch 3Costs disclosure and adjudication

Schedule 3—Costs disclosure and adjudication 1—Interpretation In this Schedule— adjudication means an adjudication of legal costs under Part 7; barrister means a legal practitioner who practises the profession of the law solely as a barrister; business day means a day other than a Saturday, a Sunday or a public holiday; client includes a person to whom or for whom legal services are provided; conditional costs agreement means a costs agreement that provides that the payment of some or all of the legal costs is conditional on the successful outcome of the matter to which those costs relate, as referred to in clause 25, but does not include a costs agreement to the extent to which clause 27(1) applies; costs agreement means an agreement about the payment of legal costs; itemised bill means a bill that specifies in detail how the legal costs are made up; (b) a partnership consisting of 1 or more Australian-registered foreign lawyers or 1 or more Australian legal practitioners, or both; legal costs means amounts that a person has been or may be charged by, or is or may become liable to pay, a law practice for the provision of legal services including disbursements but not including interest; legal services means work done, or business transacted, in the ordinary course of practising the profession of the law; litigious matter means a matter that involves, or is likely to involve, the issue or defence of proceedings in a court or tribunal; A matter is a litigious matter when proceedings are initiated or at any stage when proceedings are likely. lump sum bill means a bill that describes the legal services to which it relates and specifies the total amount of the legal costs; public authority means an authority or body (whether a body corporate or not) established or incorporated for a public purpose by a law of a jurisdiction or of the Commonwealth, and includes a body corporate incorporated under a law of a jurisdiction or of the Commonwealth in which a jurisdiction or the Commonwealth has a controlling interest; scale of costs means a scale of costs of a court or tribunal of this State; sophisticated client means a client to whom, because of clause 13(1)(c) or (d), disclosure under clause 10 or 11(1) is or was not required; third party payer—see clause 2; uplift fee means additional legal costs (excluding disbursements) payable under a costs agreement on the successful outcome of the matter to which the agreement relates. 2—Terms relating to third party payers (1) For the purposes of this Schedule— (a) a person is a third party payer, in relation to a client of a law practice, if the person is not the client and— (i) is under a legal obligation to pay all or any part of the legal costs for legal services provided to the client; or (ii) being under that obligation, has already paid all or a part of those legal costs; and (b) a third party payer is an associated third party payer if the legal obligation referred to in paragraph (a) is owed to the law practice, whether or not it is also owed to the client or another person; and (c) a third party payer is a non‑associated third party payer if the legal obligation referred to in paragraph (a) is owed to the client or another person but not the law practice. (2) The legal obligation referred to in subclause (1) can arise by or under contract or legislation or otherwise. (3) A law practice that retains another law practice on behalf of a client is not on that account a third party payer in relation to that client. Part 2—Application of Schedule 3—Application of Schedule—first instructions rule This Schedule applies to a matter if the client first instructs the law practice in relation to the matter in this State. 4—Schedule also applies by agreement or at client's election (1) This Schedule applies to a matter if— (a) either— (i) this Schedule does not currently apply to the matter; or (ii) it is not possible to determine the jurisdiction in which the client first instructs the law practice in relation to the matter; and (b) either— (i) the legal services are or will be provided wholly or primarily in this State; or (ii) the matter has a substantial connection with this State, or both; and (c) either— (i) the client accepts, in writing or by other conduct, a written offer to enter into an agreement under subclause (2)(a) in respect of the matter; or (ii) the client gives a notification under sublause (2)(b) in respect of the matter. (2) For the purposes of subclause (1)(c), the client may— (a) accept, in writing or by other conduct, a written offer that complies with subclause (3) to enter into an agreement with the law practice that this Schedule is to apply to the matter; or (b) notify the law practice in writing that the client requires this Schedule to apply to the matter. (3) An offer referred to in subclause (2)(a) must clearly state— (a) that it is an offer to enter into an agreement that this Schedule is to apply to the matter; and (b) that the client may accept it in writing or by other conduct; and (c) the type of conduct that will constitute acceptance. (4) A notification has no effect for the purposes of subclause (2)(b) if it is given after the period of 28 days after the law practice discloses to the client (under a corresponding law) information about the client's right to make a notification of that kind, but nothing in this subclause prevents an agreement referred to in subclause (2)(a) from coming into effect at any time. 5—Displacement of Schedule (1) This clause applies if this Schedule applies to a matter by the operation of clause 3 or 4. (2) This Schedule ceases to apply to the matter if— (a) either— (i) the legal services are or will be provided wholly or primarily in another jurisdiction; or (ii) the matter has a substantial connection with another jurisdiction, or both; and (b) either— (i) the client enters, under the corresponding law of the other jurisdiction, into an agreement with the law practice that the corresponding provisions of the corresponding law apply to the matter; or (ii) the client notifies, under the corresponding law of the other jurisdiction (and within the time allowed by the corresponding law), the law practice in writing that the client requires the corresponding provisions of the corresponding law to apply to the matter. (3) Nothing in this clause prevents the application of this Schedule to the matter by means of a later agreement or notification under clause 4. 6—First instructions to law practice A client first instructs a law practice in relation to a matter in a particular jurisdiction if the law practice first receives instructions from or on behalf of the client in relation to the matter in that jurisdiction, whether in person or by post, telephone, fax, email or other form of communication. 7—Substantial connection of matter with State The regulations may prescribe the circumstances in which, or the rules to be used to determine whether, a matter has or does not have a substantial connection with this State for the purposes of this Schedule. 8—Application of different laws (1) This clause applies if this Schedule applies to a matter for a period and a corresponding law applies for another period. (2) If this Schedule applied to a matter for a period and a corresponding law applies to the matter afterwards, this Schedule continues to apply in respect of legal costs (if any) incurred while this Schedule applied to the matter. (3) If a corresponding law applied to a matter for a period and this Schedule applies to the matter afterwards, this Schedule does not apply in respect of legal costs (if any) incurred while the corresponding law applied to the matter, so long as the corresponding law continues to apply in respect of those costs. (4) However— (a) the client may enter into a written agreement with the law practice that the adjudication of costs provisions of this Schedule are to apply in respect of all legal costs incurred in relation to the matter, and Part 7 accordingly applies in respect of those legal costs; or (b) if the client enters into a written agreement with the law practice that the adjudication of costs provisions of a corresponding law are to apply in respect of all legal costs incurred in relation to the matter, Part 7 accordingly does not apply in respect of those legal costs. (5) A written agreement referred to in subclause (4) need not be signed by the client but, in that case, the client's acceptance must be communicated to the law practice by fax, email or some other written form. (6) If a corresponding law applied to a matter for a period and this Schedule applies to the matter afterwards, this Schedule does not require disclosure of any matters to the extent that they have already been disclosed under a corresponding law. (7) This clause has effect despite any other provisions of this Schedule. Part 3—Costs disclosure 9—Disclosure not required by barrister Disclosure to a client under this Part is not required to be made by a barrister engaged for the purposes of the client's matter. 10—Disclosure of costs to clients (1) A law practice must disclose to a client in accordance with this Part— (a) the basis on which legal costs will be calculated, including whether a scale of costs, or a recommendation as to the calculation of barristers' costs, applies to any of the legal costs; and (b) if the law practice will not be calculating legal costs in accordance with an applicable scale of costs—that another law practice may calculate legal costs in accordance with the scale; and (c) the client's right to— (i) negotiate a costs agreement with the law practice; and (ii) receive a bill from the law practice; and (iii) request an itemised bill after receipt of a lump sum bill; and (iv) be notified under clause 17 of any substantial change to the matters disclosed under this clause; and (d) an estimate of the total legal costs if reasonably practicable or, if that is not reasonably practicable, a range of estimates of the total legal costs and an explanation of the major variables that will affect the calculation of those costs; and (e) details of the intervals (if any) at which the client will be billed; and (f) the rate of interest (if any) that the law practice charges on overdue legal costs, whether that rate is a specific rate of interest or is a benchmark rate of interest (as referred to in subclause (2)); and (g) if the matter is a litigious matter, an estimate of— (i) the range of costs that may be recovered if the client is successful in the litigation; and (ii) the range of costs the client may be ordered to pay if the client is unsuccessful; and (h) the client's right to progress reports in accordance with clause 19; and (i) details of the person whom the client may contact to discuss the legal costs; and (j) the following avenues that are open to the client in the event of a dispute in relation to legal costs: (i) raising the matter with the practice; (ii) adjudication of costs under Part 7; (iii) the setting aside of a costs agreement under clause 30; (iv) if the client believes there has been overcharging—making a complaint to the Commissioner; and (k) any time limits that apply to the taking of any action referred to in paragraph (j); and (l) that the law of this State applies to legal costs in relation to the matter; and (m) information about the client's right— (i) to accept under a corresponding law a written offer to enter into an agreement with the law practice that the corresponding provisions of the corresponding law apply to the matter; or (ii) to notify under a corresponding law (and within the time allowed by the corresponding law) the law practice in writing that the client requires the corresponding provisions of the corresponding law to apply to the matter. (2) For the purposes of subclause (1)(f), a benchmark rate of interest is a rate of interest for the time being equal to or calculated by reference to a rate of interest that is specified or determined from time to time by an ADI or another body or organisation, or by or under other legislation, and that is publicly available. (3) The regulations may make provision for or with respect to the use of benchmark rates of interest, and in particular for or with respect to permitting, regulating or preventing the use of particular benchmark rates or particular kinds of benchmark rates. (4) For the purposes of subclause (1)(g), the disclosure must include— (a) a statement that an order by a court for the payment of costs in favour of the client will not necessarily cover the whole of the client's legal costs; and (b) if applicable, a statement that disbursements may be payable by the client even if the client enters a conditional costs agreement. (5) A law practice is taken to have complied with the requirement to disclose the details referred to in subclause (1)(c)(i) to (iii), (h), (j), (k) and (m) if it provides a written statement in or to the effect of a form prescribed by the regulations for the purposes of this subclause at the same time as the other details are disclosed as required by this clause. (6) A form prescribed for the purposes of subclause (5) may, instead of itself containing details of the kind referred to in that subclause, refer to publicly accessible sources of information (such as an Internet website) from which those details can be obtained. (7) The regulations may— (a) require the Society to develop a statement of the relevant details and to revise it as necessary to keep it up to date; and (b) require the Society to make the statement publicly available in the prescribed manner. 11—Disclosure if another law practice is to be retained (1) If a law practice intends to retain another law practice on behalf of the client, the first law practice must disclose to the client the details specified in clause 10(1)(a), (d) and (e) in relation to the other law practice, in addition to any information required to be disclosed to the client under clause 10. (2) A law practice retained or to be retained on behalf of a client by another law practice is not required to make disclosure to the client under clause 10, but must disclose to the other law practice the information necessary for the other law practice to comply with subclause (1). (3) This clause does not apply if the first law practice ceases to act for the client in the matter when the other law practice is retained. 12—Timing of disclosure to client (1) Disclosure under clause 10 must be made in writing before, or as soon as practicable after, the law practice is retained in the matter. (2) Disclosure under clause 11(1) must be made in writing before, or as soon as practicable after, the other law practice is retained. (3) Disclosure made to a person before the law practice is retained in a matter is taken to be disclosure to the person as a client for the purposes of clauses 10 and 11. 13—Exceptions to requirement for disclosure (1) Disclosure under clause 10 or 11(1) is not required to be made in any of the following circumstances: (a) if the total legal costs in the matter, excluding disbursements, are not likely to exceed $1 500 (exclusive of GST) or the prescribed amount (whichever is higher); (b) if— (i) the client has received 1 or more disclosures under clause 10 or 11(1) from the law practice in the previous 12 months; and (ii) the client has agreed in writing to waive the right to disclosure; and (iii) a principal of the law practice decides on reasonable grounds that, having regard to the nature of the previous disclosures and the relevant circumstances, the further disclosure is not warranted; (c) if the client is— (i) a law practice or a legal practitioner; or (ii) a public company, a subsidiary of a public company, a large proprietary company, a foreign company, a subsidiary of a foreign company or a registered Australian body (each within the meaning of the Corporations Act 2001 of the Commonwealth); or (iii) a financial services licensee (within the meaning of that Act); or (iv) a liquidator, administrator or receiver (as respectively referred to in that Act); or (v) a partnership that carries on the business of providing professional services if the partnership consists of more than 20 members or if the partnership would be a large proprietary company (within the meaning of that Act) if it were a company; or (vi) a proprietary company (within the meaning of that Act) formed for the purpose of carrying out a joint venture, if any shareholder of the company is a person to whom disclosure of costs is not required; or (vii) an unincorporated group of participants in a joint venture, if any member of the group is a person to whom disclosure of costs is not required and if any other members of the group who are not such persons have indicated that they waive their right to disclosure; or (viii) a Minister of the Crown in right of a jurisdiction or the Commonwealth acting in his or her capacity as such, or a government department or public authority of a jurisdiction or the Commonwealth; (d) if the legal costs or the basis on which they will be calculated have or has been agreed as a result of a tender process; (e) if the client will not be required to pay the legal costs or they will not otherwise be recovered by the law practice; For instance, disclosure would not be required where the law practice acts in the matter on a pro bono basis. (f) in any circumstances prescribed by the regulations. (2) Despite subclause (1)(a), if a law practice becomes aware that the total legal costs are likely to exceed $1 500 (exclusive of GST) or the prescribed amount (whichever is higher), the law practice must disclose the matters in clause 10 or 11 (as the case requires) to the client as soon as practicable. (3) A law practice must ensure that a written record of a principal's decision that further disclosure is not warranted as mentioned in subclause (1)(b) is made and kept with the files relating to the matter concerned. (4) The reaching of a decision referred to in subclause (3) otherwise than on reasonable grounds is capable of constituting unsatisfactory professional conduct or professional misconduct on the part of the principal. (5) Nothing in this clause affects or takes away from any client's right— (a) to progress reports in accordance with clause 19; or (b) to obtain reasonable information from the law practice in relation to any of the matters specified in clause 10; or (c) to negotiate a costs agreement with a law practice and to obtain a bill from the law practice. 14—Additional disclosure—settlement of litigious matters (1) If a law practice negotiates the settlement of a litigious matter on behalf of a client, the law practice must disclose to the client, before the settlement is agreed— (a) a reasonable estimate of the amount of legal costs payable by the client if the matter is settled (including any legal costs of another party that the client is to pay); and (b) a reasonable estimate of any contributions towards those costs likely to be received from another party. (2) A law practice retained on behalf of a client by another law practice is not required to make a disclosure to the client under subclause (1), if the other law practice makes the disclosure to the client before the settlement is executed. 15—Additional disclosure—uplift fees (1) A law practice must, before entering into a costs agreement that involves an uplift fee— (a) provide the client with— (i) an estimate of the total legal costs the client would be likely to incur if the agreement did not involve an uplift fee; or (ii) if it is not reasonably practicable to provide an estimate of the total legal costs—a range of estimates of the total legal costs the client would be likely to incur if the agreement did not involve an uplift fee and an explanation of the major variables that would affect the calculation of those costs; and (b) disclose to the client in writing— (i) the uplift fee (or the basis of the calculation of the uplift fee); and (ii) the reasons why the uplift fee is warranted. (2) A law practice is not required to make a disclosure under subclause (1) to a sophisticated client. 16—Form of disclosure (1) Written disclosures under this Part— (a) must be expressed in clear plain language; and (b) may be in a language other than English if the client is more familiar with that language. (2) If the law practice is aware that the client is unable to read, the law practice must arrange for the information required to be given to a client under this Part to be conveyed orally to the client in addition to providing the written disclosure. 17—Ongoing obligation to disclose A law practice must, in writing, disclose to a client any substantial change to anything included in a disclosure already made under this Part as soon as is reasonably practicable after the law practice becomes aware of that change. 18—Effect of failure to disclose (1) If a law practice does not disclose to a client or an associated third party payer anything required by this Part to be disclosed, the client or associated third party payer need not pay the legal costs unless they have been adjudicated under Part 7. (2) A law practice that does not disclose to a client or an associated third party payer anything required by this Part to be disclosed may not maintain proceedings against the client or associated third party payer (as the case may be) for the recovery of legal costs unless the costs have been adjudicated under Part 7. (3) If a law practice does not disclose to a client or an associated third party payer anything required by this Part to be disclosed and the client or associated third party payer has entered a costs agreement with the law practice, the client or associated third party payer may also apply under clause 30 for the costs agreement to be set aside. (4) If a law practice does not disclose to a client or an associated third party payer anything required by this Part to be disclosed, then, on an adjudication of the relevant legal costs, the amount of the costs may be reduced by an amount considered by the Supreme Court to be proportionate to the seriousness of the failure to disclose. (5) If a law practice retains another law practice on behalf of a client and the first law practice fails to disclose something to the client solely because the retained law practice failed to disclose relevant information to the first law practice as required by clause 11(2), then subclauses (1) to (4)— (a) do not apply to the legal costs owing to the first law practice on account of legal services provided by it, to the extent that the non‑disclosure by the first law practice was caused by the failure of the retained law practice to disclose the relevant information; and (b) do apply to the legal costs owing to the retained law practice. (6) In a matter involving both a client and an associated third party payer where disclosure has been made to 1 of them but not the other— (a) subclause (1) does not affect the liability of the one to whom disclosure was made to pay the legal costs; and (b) subclause (2) does not prevent proceedings being maintained against the one to whom the disclosure was made for the recovery of those legal costs. (7) Failure by a law practice to comply with this Part is capable of constituting unsatisfactory professional conduct or professional misconduct on the part of any legal practitioner or Australian-registered foreign lawyer involved in the failure. 19—Progress reports (1) A law practice must give a client, on reasonable request— (a) a written report of the progress of the matter in which the law practice is retained; and (b) a written report of the legal costs incurred by the client to date, or since the last bill (if any), in the matter. (2) A law practice may charge a client a reasonable amount for a report under subclause (1)(a) but must not charge a client for a report under subclause (1)(b). (3) A law practice retained on behalf of a client by another law practice is not required to give a report to the client under subclause (1), but must disclose to the other law practice any information necessary for the other law practice to comply with that subclause. (4) Subclause (3) does not apply if the other law practice ceases to act for the client in the matter when the law practice is retained. 20—Disclosures to associated third party payers (1) If a law practice is required to make a disclosure to a client of the law practice under this Part, the law practice must, in accordance with subclauses (2) and (3), also make the same disclosure to any associated third party payer for the client, but only to the extent that the details or matters disclosed are relevant to the associated third party payer and relate to costs that are payable by the associated third party payer in respect of legal services provided to the client. (2) A disclosure under subclause (1) must be made in writing— (a) at the time the disclosure to the client is required under this Part; or (b) if the law practice only afterwards becomes aware of the legal obligation of the associated third party payer to pay legal costs of the client—as soon as practicable after the law practice became aware of the obligation. (3) Clause 16 applies to a disclosure to an associated third party payer under subclause (1) in the same way as it applies to a client. (4) An associated third party payer for a client of a law practice has the same right as the client to obtain reports under clause 19(1)(b) of legal costs incurred by the client, but only to the extent that the costs are payable by the associated third party payer in respect of legal services provided to the client, and the law practice must comply with that clause accordingly. Part 4—Legal costs generally 21—Recovery of legal costs Legal costs are recoverable— (a) under a costs agreement made in accordance with Part 5 or the corresponding provisions of a corresponding law; or (b) if paragraph (a) does not apply, in accordance with an applicable scale of costs or any applicable recommendations as to the calculation of barristers' costs; or (c) if neither paragraph (a) nor (b) applies, according to the fair and reasonable value of the legal services provided. 22—Security for legal costs A law practice may take reasonable security from a client for legal costs (including security for the payment of interest on unpaid legal costs) and may refuse or cease to act for a client who does not provide reasonable security. 23—Interest on unpaid legal costs (1) A law practice may charge interest on unpaid legal costs if the costs are unpaid 30 days or more after the practice has given a bill for the costs in accordance with this Schedule. (2) A law practice may also charge interest on unpaid legal costs in accordance with a costs agreement. (3) A law practice must not charge interest under subclause (1) or (2) on unpaid legal costs unless the bill for those costs contains a statement that interest is payable and of the rate of interest. (4) A law practice may not charge interest under this clause or under a costs agreement at a rate that exceeds the rate prescribed by the regulations. Part 5—Costs agreements 24—Making costs agreements (1) A costs agreement may be made— (a) between a client and a law practice retained by the client; or (b) between a client and a law practice retained on behalf of the client by another law practice; or (c) between a law practice and another law practice that retained that law practice on behalf of a client; or (d) between a law practice and an associated third party payer. (2) A costs agreement must be written or evidenced in writing. (3) A costs agreement may consist of a written offer in accordance with subclause (4) that is accepted in writing or by other conduct. Acceptance by other conduct is not permitted for conditional costs agreements—see clause 25. (4) The offer must clearly state— (a) that it is an offer to enter into a costs agreement; and (b) that the offer can be accepted in writing or by other conduct; and (c) the type of conduct that will constitute acceptance. (5) Except as provided by clause 51, a costs agreement cannot provide that the legal costs to which it relates are not subject to adjudication of costs under Part 7. If it attempts to do so, the costs agreement will be void—see clause 29(1). (6) A reference in clause 30 and in prescribed provisions of this Schedule to a client is, in relation to a costs agreement that is entered into between a law practice and an associated third party payer as referred to in subclause (1)(d) and to which a client of the law practice is not a party, a reference to the associated third party payer. 25—Conditional costs agreements (1) A costs agreement may provide that the payment of some or all of the legal costs is conditional on the successful outcome of the matter to which those costs relate. (2) A conditional costs agreement may relate to any matter, except— (a) a criminal matter; or (b) a matter that relates to or involves child protection, custody or guardianship or adoption; or (c) proceedings under any of the following Acts of the Commonwealth: (i) the Family Law Act 1975; (iii) the Child Support (Assessment) Act 1989; or (d) any other matter of a kind prescribed by regulation. (3) A conditional costs agreement— (a) must set out the circumstances that constitute the successful outcome of the matter to which it relates; and (b) may provide for disbursements to be paid irrespective of the outcome of the matter; and (c) must be— (i) in writing; and (ii) in clear plain language; and (iii) signed by the client; and (d) must contain a statement that the client has been informed of the client's right to seek independent legal advice before entering into the agreement; and (e) must contain a cooling‑off period of not less than 5 clear business days during which the client, by written notice, may terminate the agreement. (4) Subclause (3)(c)(iii), (d) and (e) do not apply to a conditional costs agreement made under clause 24(1)(c). (5) Subclause (3)(c)(iii), (d) and (e) do not apply to a conditional costs agreement made with a sophisticated client. (6) If a client terminates an agreement within the period referred to in subclause (3)(e), the law practice— (a) may recover only those legal costs in respect of legal services performed for the client before that termination that were performed on the instructions of the client and with the client's knowledge that the legal services would be performed during that period; and (b) without affecting the generality of paragraph (a), may not recover the uplift fee (if any). 26—Conditional costs agreements involving uplift fees (1) Subject to subclause (1a), a conditional costs agreement may provide for the payment of an uplift fee. (1a) Subclause (1) does not apply to a conditional costs agreement relating to proceedings under the Migration Act 1958 of the Commonwealth. (2) The basis of calculation of the uplift fee must be separately identified in the agreement. (3) The agreement must contain an estimate of the uplift fee or, if that is not reasonably practicable— (a) a range of estimates of the uplift fee; and (b) an explanation of the major variables that will affect the calculation of the uplift fee. (4) If a conditional costs agreement relates to a litigious matter— (a) the agreement must not provide for the payment of an uplift fee unless the risk of the claim failing, and of the client having to meet his or her own costs, is significant; and (b) the uplift fee must not exceed 25% of the legal costs (excluding disbursements) otherwise payable. (5) A law practice must not enter into a costs agreement in contravention of this clause. 27—Contingency fees are prohibited (1) A law practice must not enter into a costs agreement under which the amount payable to the law practice, or any part of that amount, is calculated by reference to the amount of any award or settlement or the value of any property that may be recovered in any proceedings to which the agreement relates. (2) Subclause (1) does not apply to the extent that the costs agreement adopts an applicable scale of costs. 28—Effect of costs agreement Subject to this Part and Part 7, a costs agreement may be enforced in the same way as any other contract. 29—Certain costs agreements are void (1) A costs agreement that contravenes, or is entered into in contravention of, any provision of this Part is void. (2) Subject to this clause and Part 7, legal costs under a void costs agreement are recoverable as set out in clause 21(b) or (c). (3) However, a law practice is not entitled to recover any amount in excess of the amount that the law practice would have been entitled to recover if the costs agreement had not been void and must repay any excess amount received. (4) A law practice that has entered into a costs agreement in contravention of clause 26 is not entitled to recover the whole or any part of the uplift fee and must repay the amount received in respect of the uplift fee to the person from whom it was received. (5) A law practice that has entered into a costs agreement in contravention of clause 27 is not entitled to recover any amount in respect of the provision of legal services in the matter to which the costs agreement related and must repay any amount received in respect of those services to the person from whom it was received. (6) If a law practice does not repay an amount required by subclause (3), (4) or (5) to be repaid, the person entitled to be repaid may recover the amount from the law practice as a debt in a court of competent jurisdiction. 30—Setting aside costs agreements (1) On application by a client, the Supreme Court may order that a costs agreement be set aside if satisfied that the agreement is not fair and reasonable. (2) In determining whether or not a costs agreement is fair and reasonable, and without limiting the matters to which the Supreme Court can have regard, the Court may have regard to any or all of the following matters: (a) whether the client was induced to enter into the agreement by the fraud or misrepresentation of the law practice or of any representative of the law practice; (b) whether any legal practitioner or Australian-registered foreign lawyer acting on behalf of the law practice has been found guilty of unsatisfactory professional conduct or professional misconduct in relation to the provision of legal services to which the agreement relates; (c) whether the law practice failed to make any of the disclosures required under Part 3; (d) the circumstances and the conduct of the parties before and when the agreement was made; (e) the circumstances and the conduct of the parties in the matters after the agreement was made; (f) whether and how the agreement addresses the effect on costs of matters and changed circumstances that might foreseeably arise and affect the extent and nature of legal services provided under the agreement; (g) whether and how billing under the agreement addresses changed circumstances affecting the extent and nature of legal services provided under the agreement. (3) The Supreme Court may adjourn the hearing of an application under this clause pending the completion of any investigation or determination of any charge in relation to the conduct of any legal practitioner or Australian-registered foreign lawyer. (4) If the Supreme Court orders that a costs agreement be set aside, it may make an order in relation to the payment of legal costs the subject of the agreement. (5) In making an order under subclause (4)— (a) the Supreme Court must apply the applicable scale of costs (if any) and any applicable recommendations as to the calculation of barristers' costs; or (b) if there is no applicable scale of costs or recommendations—the Court must determine the fair and reasonable legal costs in relation to the work to which the agreement related, taking into account— (i) the seriousness of the conduct of the law practice or any legal practitioner or Australian-registered foreign lawyer acting on its behalf; and (ii) whether or not it was reasonable to carry out the work; and (iii) whether or not the work was carried out in a reasonable manner. (6) In making an order under subclause (4), the Supreme Court may not order the payment of an amount in excess of the amount that the law practice would have been entitled to recover if the costs agreement had not been set aside. (7) For the purposes of subclause (5), the Supreme Court may have regard to any or all of the following matters: (a) whether the law practice and any legal practitioner or Australian-registered foreign lawyer acting on its behalf complied with any relevant legislation or legal profession rules; (b) any disclosures made by the law practice under Part 3, or the failure to make any disclosures required under that Part; (c) any relevant advertisement as to— (i) the law practice's costs; or (ii) the skills of the law practice or of any legal practitioner or Australian-registered foreign lawyer acting on its behalf; (d) the skill, labour and responsibility displayed on the part of the legal practitioner or Australian-registered foreign lawyer responsible for the matter; (e) the retainer and whether the work done was within the scope of the retainer; (f) the complexity, novelty or difficulty of the matter; (g) the quality of the work done; (h) the place where, and circumstances in which, the work was done; (i) the time within which the work was required to be done; (j) any other relevant matter. (8) The Supreme Court may determine whether or not a costs agreement exists. (9) The Supreme Court may order the payment of the costs of and incidental to an application under this clause. (10) In this clause— client means a person to whom or for whom legal services are or have been provided. Part 6—Billing 31—Legal costs cannot be recovered unless bill has been served (1) A law practice must not commence legal proceedings to recover legal costs from a person until at least 30 days after the law practice has given a bill to the person in accordance with clauses 32 and 33. (2) A court of competent jurisdiction may make an order authorising a law practice to commence legal proceedings against a person sooner if satisfied that— (a) the law practice has given a bill to the person in accordance with clauses 32 and 33; and (b) the person is about to leave this State. (3) A court or tribunal before which any proceedings are brought in contravention of subclause (1) must stay those proceedings on the application of a party, or on its own initiative. (4) This clause applies whether or not the legal costs are the subject of a costs agreement. 32—Bills (1) A bill may be in the form of a lump sum bill or an itemised bill. (2) A bill must be signed on behalf of a law practice by a legal practitioner or an employee of the law practice authorised by a principal of the law practice to sign bills. (3) It is sufficient compliance with subclause (2) if a letter signed on behalf of a law practice by a legal practitioner or an employee of the law practice authorised by a principal of the law practice to sign bills is attached to, or enclosed with, the bill. (4) If an employee of a law practice who is authorised by a principal of the practice to sign bills on behalf of the practice signs a bill or a letter attached to, or enclosed with, a bill, the bill or letter will be taken to have been signed by the principal. (5) A bill is to be given to a person in accordance with section 95D. 33—Notification of client's rights (1) A bill must include or be accompanied by a written statement setting out— (a) the following avenues that are open to the client in the event of a dispute in relation to legal costs: (i) raising the matter with the law practice; (ii) adjudication of costs by the Supreme Court under Part 7; (iii) the setting aside of a costs agreement under clause 30; (iv) if the client believes there has been overcharging—making a complaint to the Commissioner; and (b) if the bill is not an itemised bill—the law practice's obligation to provide an itemised bill on request by the client; and (c) any time limits that apply to the taking of any action referred to in paragraph (a). These matters will already have been disclosed under clause 10(1). (2) Subclause (1) does not apply in relation to a sophisticated client. (3) A law practice is taken to have complied with the requirement to provide the written statement referred to in subclause (1) if it provides a written statement in or to the effect of a form prescribed by the regulations for the purposes of this subclause. (4) A form prescribed for the purposes of subclause (3) may, instead of itself containing details of the kind referred to in that subclause, refer to publicly accessible sources of information (such as an Internet website) from which those details can be obtained. (5) The regulations may— (a) require the Society to develop a statement of the relevant details and to revise it as necessary to keep it up to date; and (b) require the Society to make the statement publicly available in the prescribed manner. 34—Request for itemised bill (1) If a bill that is not an itemised bill is given by a law practice, any person who is entitled to apply for an adjudication of the legal costs to which the bill relates may request the law practice to give the person an itemised bill. (2) The law practice must comply with the request within 21 days after the date on which the request is made. (3) If the person making the request is liable to pay only a part of the legal costs to which the bill relates, the request for an itemised bill may only be made in relation to those costs that the person is liable to pay. (4) Subject to subclause (5), a law practice must not commence legal proceedings to recover legal costs from a person who has been given a lump sum bill until at least 30 days after the date on which the person is given the bill. (5) If the person makes a request for an itemised bill in accordance with this clause, the law practice must not commence legal proceedings to recover the legal costs from the person until at least 30 days after complying with the request. (6) A law practice is not entitled to charge a person for the preparation of an itemised bill requested under this clause. (7) Section 95D applies to the giving of an itemised bill under this clause. 35—Interim bills (1) A law practice may give a person an interim bill covering part only of the legal services the law practice was retained to provide. (2) Legal costs that are the subject of an interim bill may be adjudicated under Part 7, either at the time of the interim bill or at the time of the final bill, whether or not the interim bill has previously been adjudicated or paid. Part 7—Adjudication of costs 36—Definition In this Part— client means a person to whom or for whom legal services are or have been provided. 37—Application by clients or third party payers for adjudication of costs (1) The Supreme Court may— (a) on the application of a client for an adjudication of the whole or any part of legal costs; or (b) on the application of a third party payer for an adjudication of the whole or any part of legal costs payable by the third party payer, adjudicate and settle the bill for those costs. (2) An application for an adjudication of costs may be made even if the legal costs have been wholly or partly paid. (3) If any legal costs have been paid without a bill, the client or third party payer may nevertheless apply for an adjudication. (4) An application by a client or third party payer for an adjudication of costs under this clause must be made within 6 months after— (a) the bill was given or the request for payment was made to the client or third party payer; or (b) the costs were paid if neither a bill was given nor a request was made. (5) However, an application that is made out of time, otherwise than by— (a) a sophisticated client; or (b) a third party payer who would be a sophisticated client if the third party payer were a client of the law practice concerned, may be dealt with by the Supreme Court if the Court, on application by the client or third party payer who made the application for adjudication, determines, after having regard to the delay and the reasons for the delay, that it is just and fair for the application for adjudication to be dealt with after the 6 month period. (6) If the third party payer is a non‑associated third party payer, the law practice must provide the third party payer, on the written request of the third party payer, with sufficient information to allow the third party payer to consider making, and if thought fit to make, an application for an adjudication of costs under this clause. (7) If there is an associated third party payer for a client of a law practice— (a) nothing in this clause prevents— (i) the client from making 1 or more applications for adjudication under this clause in relation to costs for which the client is solely liable; and (ii) the associated third party payer from making 1 or more applications for adjudication under this clause in relation to costs for which the associated third party payer is solely liable, and those applications may be made by them at the same time or at different times and may be dealt with jointly or separately; and (b) the client or the associated third party payer— (i) may participate in the adjudication of costs process where the other of them makes an application for adjudication under this clause in relation to costs for which they are both liable; and (ii) is taken to be a party to the adjudication and is bound by the adjudication; and (c) the law practice is taken to be a party to the adjudication and is bound by the adjudication. (8) If there is a non‑associated third party payer for a client of a law practice— (a) nothing in this clause prevents— (i) the client from making 1 or more applications for adjudication under this clause in relation to costs for which the client is liable; and (ii) the non‑associated third party payer from making 1 or more applications for adjudication under this clause in relation to costs for which the non‑associated third party payer is liable, and those applications may be made by them at the same time or at different times but must be dealt with separately; and (b) the client— (i) may participate in the adjudication of costs process where the non‑associated third party payer makes an application for adjudication under this clause in relation to the legal costs for which the non‑associated third party payer is liable; and (ii) is taken to be a party to the adjudication and is bound by the adjudication; and (c) despite any other provision of this Part, the adjudication of the costs payable by the non‑associated third party payer does not affect the amount of legal costs payable by the client to the law practice. (9) In this clause— client includes the following: (a) an executor or administrator of a client; (b) a trustee of the estate of a client; third party payer includes the following: (a) an executor or administrator of a third party payer; (b) a trustee of the estate of a third party payer. 38—Application for adjudication by law practice retaining another law practice (1) If a law practice retains another law practice to act on behalf of a client, the law practice— (a) may apply to the Supreme Court; and (b) if instructed to do so by the client or third party payer (if any)—must apply to the Supreme Court, for an adjudication of the whole or any part of the legal costs to which a bill given by the other law practice in accordance with Part 6 relates. (2) If any legal costs have been paid without a bill, the law practice may nevertheless apply for an adjudication. (3) An application for an adjudication of costs may be made even if the legal costs have been wholly or partly paid. (4) An application under this clause must be made within 60 days after— (a) the bill was given or the request for payment was made; or (b) the costs were paid if neither a bill was given nor a request was made; or (c) in the case of an application made on the instructions of a client or third party payer—within 60 days of the day on which the client or third party payer was given notification in writing of the legal costs to which the bill relates. (5) An application cannot be made under this clause if— (a) there is a costs agreement between the client and the other law practice; and (b) the bill given by the other law practice is in accordance with the terms of the costs agreement. 39—Application for adjudication of costs by law practice giving bill (1) A law practice that has given a bill in accordance with Part 6 may apply to the Supreme Court for an adjudication of the whole or any part of the legal costs to which the bill relates. (2) If any legal costs have been paid without a bill, the law practice may nevertheless apply for an adjudication. (3) An application for an adjudication of costs may be made even if the legal costs have been wholly or partly paid. (4) An application may not be made under this clause unless at least 30 days have passed since— (a) the bill was given or the request for payment was made; or (b) the costs were paid if neither a bill was given nor a request was made; or (c) an application has been made under this Part by another person in respect of the legal costs. 40—Application may be dismissed The Supreme Court may summarily dismiss an application for an adjudication of costs that it considers frivolous or vexatious. 41—Power of Supreme Court on application for adjudication (1) The Supreme Court's power to adjudicate and settle a bill (but no other power of the Court under this clause) may, subject to any rule, order or direction of the Court, be exercised by the Registrar of the Court. (2) Subject to the rules of the Supreme Court, an appeal lies to an Associate Justice against a decision of the Registrar pursuant to subclause (1). (3) If an application for adjudication of legal costs has been made in accordance with this Part, the Supreme Court may— (a) restrain a person claiming to be entitled to the costs from commencing an action for recovery of the costs; or (b) stay any proceedings for recovery of the costs. (4) The Supreme Court may, on adjudication of a bill under this Part— (a) order the refund of any amount overpaid; or (b) if the proceedings have been instituted by the person seeking recovery of the costs—order payment of legal costs in accordance with the adjudicated bill. 42—Commissioner may institute proceedings The Commissioner may institute proceedings for the adjudication of legal costs under clause 37 and must institute such proceedings if ordered to do so by the Tribunal. 43—Court may order plaintiff to apply for adjudication Any court in which proceedings for the recovery of legal costs have been instituted may order the plaintiff to apply to have the legal costs adjudicated in accordance with this Part, and may adjourn the proceedings until the adjudication has been completed. 44—Consequences of application If an application for an adjudication of costs is made in accordance with this Part— (a) a party to the adjudication cannot be required to pay money into court on account of the legal costs the subject of the application; and (b) any proceedings to recover the legal costs that may have been commenced by the law practice are stayed until the adjudication has been completed; and (c) the law practice must not commence any proceedings to recover the legal costs until the adjudication has been completed. 45—Persons to be notified of application (1) The Supreme Court may cause a copy of an application for adjudication of legal costs to be given to any law practice or client concerned or any other person whom the Court thinks it appropriate to notify. (2) A person who is notified by the Supreme Court under subclause (1)— (a) is entitled to participate in the adjudication process; and (b) is taken to be a party to the adjudication; and (c) if the Court so determines, is bound by the adjudication. 46—Criteria for adjudication (1) In conducting an adjudication of legal costs, the Supreme Court must— (a) consider— (i) whether or not it was reasonable to carry out the work to which the legal costs relate; and (ii) whether or not the work was carried out in a reasonable manner; and (iii) the fairness and reasonableness of the amount of legal costs in relation to the work, except to the extent that clause 47 or 48 applies to any disputed costs; and (b) if the legal costs have been the subject of a complaint to the Commissioner of overcharging—have regard to any recommendation made by the Commissioner that the charges be reduced or an amount refunded to the client. (2) In considering what is a fair and reasonable amount of legal costs, the Supreme Court may have regard to any or all of the following matters: (a) whether the law practice and any legal practitioner or Australian-registered foreign lawyer acting on its behalf has complied with the law; (b) any disclosures made by the law practice under Part 3; (c) any relevant advertisement as to— (i) the law practice's costs; or (ii) the skills of the law practice or of any legal practitioner or Australian-registered foreign lawyer acting on its behalf; (d) the skill, labour and responsibility displayed on the part of the legal practitioner or Australian-registered foreign lawyer responsible for the matter; (e) the retainer and whether the work done was within the scope of the retainer; (f) the complexity, novelty or difficulty of the matter; (g) the quality of the work done; (h) the place where, and circumstances in which, the legal services were provided; (i) the time within which the work was required to be done; (j) any other relevant matter. (3) In conducting an adjudication of legal costs payable by a non‑associated third party payer, the Supreme Court must also consider whether it is fair and reasonable in the circumstances for the non‑associated third party payer to be charged the amount claimed. 47—Adjudication of costs by reference to costs agreement (1) The Supreme Court must adjudicate the amount of any disputed costs that are subject to a costs agreement by reference to the provisions of the costs agreement if— (a) a relevant provision of the costs agreement specifies the amount, or a rate or other means for calculating the amount, of the costs; and (b) the agreement has not been set aside under clause 30, unless the Court is satisfied— (c) that the agreement does not comply in a material respect with any applicable disclosure requirements of Part 3; or (d) that Part 5 precludes the law practice concerned from recovering the amount of the costs; or (e) that the parties otherwise agree. (2) The Supreme Court is not required to initiate an examination of the matters referred to in subclause (1)(c) and (d). 48—Adjudication of costs by reference to scale of costs The Supreme Court must adjudicate the amount of any disputed costs that are subject to a scale of costs by reference to the scale. 49—Costs of adjudication (1) The Supreme Court must determine the costs of an adjudication of costs. (2) Unless the Supreme Court otherwise orders, the law practice to which the legal costs are payable or were paid must pay the costs of the adjudication if— (a) on the adjudication the legal costs are reduced by 15% or more; or (b) the Court is satisfied that the law practice failed to comply with Part 3. (3) Unless the Supreme Court otherwise orders, if the law practice is not, under subclause (2), liable to pay the costs of the adjudication, the costs of the adjudication must be paid by the applicant for the adjudication. (4) However, if an application for an adjudication of costs is made following the making of a determination by the Commissioner in relation to the costs under section 77N, the applicant is required to pay the costs of the adjudication unless the Supreme Court orders otherwise. (5) In determining whether to make an order under subclause (4), the Supreme Court must have regard to the extent (if any) to which the result of the adjudication is more favourable for the applicant than the Commissioner's determination. 50—Referral for disciplinary action (1) If, on an adjudication, the Supreme Court considers that the legal costs charged by a law practice are grossly excessive, the Court must refer the matter to the Commissioner to consider whether disciplinary action should be taken. (2) If the Supreme Court considers that an adjudication raises any other matter that may amount to unsatisfactory professional conduct or professional misconduct on the part of a legal practitioner or Australian-registered foreign lawyer, the Court may refer the matter to the Commissioner or a corresponding authority to consider whether disciplinary action should be taken. 51—Contracting out of Part by sophisticated clients A sophisticated client of a law practice, or an associated third party payer who would be a sophisticated client if the third party payer were a client of the law practice concerned, may contract out of this Part (but no such contract affects the Commissioner's power to institute proceedings for the adjudication of legal costs under clause 42). Part 8—Miscellaneous 52—Application of Schedule to incorporated legal practices The regulations may provide that specified provisions of this Schedule do not apply to incorporated legal practices, or to specified classes of incorporated legal practices, or apply to them with specified modifications. 53—Imputed acts, omissions or knowledge For the purposes of this Schedule— (a) anything done or omitted by, to or in relation to— (i) a legal practitioner; or (ii) an Australian-registered foreign lawyer (except for the purposes of clause 26(4) or for the purposes of any provision of this Schedule prescribed by the regulations for the purposes of this clause), in the course of acting on behalf of a law practice is taken to have been done or omitted by, to or in relation to the law practice; and (b) without limiting paragraph (a), the law practice is taken to become or be aware of, or to have a belief as to, any matter if— (i) a legal practitioner; or (ii) an Australian-registered foreign lawyer (except for the purposes of clause 26(4) or for the purposes of any provision of this Schedule prescribed by the regulations for the purposes of this clause), becomes or is aware of, or has a belief as to, the matter in the course of acting on behalf of the law practice. Schedule 4—Investigatory powers complaint investigation means an investigation of a complaint under Part 6 and includes an investigation made into the conduct of a legal practitioner or former legal practitioner on the Commissioner's own initiative or at the request of the Attorney‑General or the Society; ILP compliance audit means the conduct of an audit under Schedule 1 clause 19 in relation to an incorporated legal practice; investigator means— (a) an investigator under Schedule 2; or (b) an external examiner under Schedule 2; or (c) the Commissioner or a person authorised by the Commissioner to investigate a complaint or the conduct of a legal practitioner or former legal practitioner under Part 6 Division 2; or (d) a person appointed by the Society to conduct an ILP compliance audit; (b) a partnership consisting of 1 or more Australian-registered foreign lawyers or 1 or more Australian legal practitioners, or both; trust account examination means an external examination of the trust records of a law practice under Schedule 2; trust account investigation means an investigation of the affairs of a law practice under Schedule 2. (2) For the purposes of this Schedule— (a) law practice includes the Legal Services Commission; and (b) an associate of the Commission is an employee of the Commission (whether or not a legal practitioner) who is not a principal of the Commission; and (c) a principal of the Commission is a legal practitioner who is generally responsible for the provision of legal services by the Commission. (3) In this Schedule— (a) a reference to a legal practitioner is to be taken to include a reference to an Australian-registered foreign lawyer; and (b) a reference to a former legal practitioner is to be taken to include a reference to a former Australian-registered foreign lawyer. Part 2—Requirements relating to documents, information and other assistance 2—Application of Part This Part applies to— (b) trust account examinations; and (c) complaint investigations; and (d) ILP compliance audits. 3—Requirements that may be imposed for investigations, examinations and audits under Schedule 2 (1) For the purpose of carrying out a trust account investigation or trust account examination in relation to a law practice, an investigator may, on production of evidence of his or her appointment, require the practice or an associate or former associate of the practice or any other person (including, for example, an ADI, auditor or liquidator) who has or has had control of documents relating to the affairs of the practice to give the investigator either or both of the following: (a) access to the documents relating to the affairs of the practice the investigator reasonably requires; (b) information relating to the affairs of the practice the investigator reasonably requires (verified by statutory declaration if the requirement so states). (2) A person who is subject to a requirement under subclause (1) must comply with the requirement. Maximum penalty: $50 000 or imprisonment for 1 year. 4—Requirements that may be imposed for investigations under Part 6 (1) For the purpose of carrying out a complaint investigation in relation to a legal practitioner or former legal practitioner, an investigator may, by notice served on the practitioner or former practitioner, require the practitioner or former practitioner to do any 1 or more of the following: (a) to produce, at or before a specified time and at a specified place, any specified document (or a copy of the document); (b) to provide written information on or before a specified date (verified by statutory declaration if the requirement so states); (c) to otherwise assist in, or cooperate with, the investigation of the complaint in a specified manner. (2) For the purpose of carrying out a complaint investigation in relation to a legal practitioner or former legal practitioner, an investigator may, on production of evidence of their appointment, require any person who has or has had control of documents or information that may be relevant to the investigation of the complaint to produce, or provide a copy of, the documents or information to the investigator. (3) A person who is subject to a requirement under subclause (1) or (2) must comply with the requirement. Maximum penalty: $50 000 or imprisonment for 1 year. (4) A requirement imposed on a person under this clause is to be notified in writing to the person and is to specify a reasonable time for compliance. 5—Provisions relating to requirements under this Part (1) This clause applies to a requirement imposed on a person under this Part. (2) The validity of the requirement is not affected, and the person is not excused from compliance with the requirement, on— (a) the ground that the giving of the information or access to information may tend to incriminate the person; or (b) the ground that a law practice or legal practitioner has a lien over a particular document or class of documents. (3) If compliance by a person with a requirement to answer a question or to produce, or provide a copy of, a document or information might tend to incriminate the person or make the person liable to a penalty, then— (a) in the case of a person who is required to produce, or provide a copy of, a document or information—the fact of production, or provision of a copy of, the document or the information (as distinct from the contents of the document or the information); or (b) in any other case—the answer given in compliance with the requirement, is not admissible in evidence against the person in proceedings other than disciplinary proceedings under this Act or proceedings— (c) for an offence— (i) against this Act; or (ii) relating to the keeping of trust accounts or the receipt of trust money; or (d) in respect of the making of a false or misleading statement. (4) The investigator imposing the requirement may— (a) inspect any document provided pursuant to the requirement; and (b) make copies of the document or any part of the document; and (c) retain the document for a period the investigator thinks necessary for the purposes of the investigation in relation to which it was produced. (5) The person is not subject to any liability, claim or demand merely because of compliance with the requirement. (6) A failure by a legal practitioner to comply with the requirement is capable of constituting unsatisfactory professional conduct or professional misconduct. (7) The Supreme Court may, on application by the Commissioner or the Society, or on its own initiative, suspend a legal practitioner's practising certificate while a failure by the practitioner to comply with the requirement continues. Part 3—Entry and search of premises 6—Application of Part This Part applies to— (b) complaint investigations, but does not apply to— (c) trust account examinations; or (d) ILP compliance audits. 7—Investigator's power to enter premises (1) Subject to this clause, for the purpose of carrying out an investigation, an investigator may enter and remain on premises to exercise the powers in clause 9. (2) In the case of a trust account investigation— (a) the investigator may enter premises, other than residential premises, without the need for consent or a search warrant; and (b) the investigator may only enter residential premises as follows: (i) the investigator may enter the premises at any time with the consent of the occupier; (ii) the investigator may enter the premises under the authority of a search warrant issued under this Part; (iii) the investigator may enter the premises at any time without the consent of the occupier and without a warrant, but only if the investigator believes, on reasonable grounds, that it is urgently necessary to do so in order to prevent the destruction of or interference with relevant material. (3) In the case of a complaint investigation, the investigator may only enter premises as follows: (a) the investigator may enter the premises at any time with the consent of the occupier; (b) the investigator may enter the premises under the authority of a search warrant issued under this Part. (4) The investigator must not exercise the power in subclause (2)(b)(iii) unless the Society has, when appointing the investigator, authorised the use of that power. (5) An investigator may use reasonable force for the purposes of entering premises under subclause (2)(a) or (2)(b)(iii). (6) The investigator must, at the reasonable request of a person apparently in charge of the premises or any other person on the premises, produce evidence of his or her appointment. 8—Search warrants (1) For the purpose of carrying out an investigation, an investigator may apply to a Magistrate for a search warrant. (2) A Magistrate may, on application made under this clause, issue a search warrant to an investigator if— (a) an investigator satisfies the Magistrate that there are reasonable grounds to suspect that relevant material is located at the premises; and (b) the Magistrate is satisfied that there are reasonable grounds for issuing the warrant. (3) A search warrant authorises an investigator to enter the premises specified in the warrant, by the use of reasonable force if necessary, at the time or within the period specified in the warrant. (4) A search warrant may be executed by the investigator to whom it is issued or by any other investigator engaged in the investigation to which the warrant relates. (5) An investigator executing a warrant must, at the reasonable request of a person apparently in charge of the premises or any other person on the premises, produce the warrant. 9—Powers of investigator while on premises (1) An investigator who enters premises under this Part may exercise any or all of the following powers: (a) search the premises and examine anything on the premises; (b) search for any information, document or other material relating to the matter to which the investigation relates; (c) operate equipment or facilities on the premises for a purpose relevant to the investigation; (d) take possession of any relevant material and retain it for as long as may be necessary to examine it to determine its evidentiary value; (e) make copies of any relevant material or any part of any relevant material; (f) seize and take away any relevant material or any part of any relevant material; (g) use (free of charge) photocopying equipment on the premises for the purpose of copying any relevant material; (h) with respect to any computer or other equipment that the investigator suspects on reasonable grounds may contain any relevant material— (i) inspect and gain access to a computer or equipment; (ii) download or otherwise obtain any documents or information; (iii) make copies of any documents or information held in it; (iv) seize and take away any computer or equipment or any part of it; (i) if any relevant material found on the premises cannot be conveniently removed—secure it against interference; (j) request any person who is on the premises to do any of the following: (i) to state his or her full name, date of birth and address; (ii) to answer (orally or in writing) questions asked by the investigator relevant to the investigation; (iii) to produce relevant material; (iv) to operate equipment or facilities on the premises for a purpose relevant to the investigation; (v) to provide access (free of charge) to photocopying equipment on the premises the investigator reasonably requires to enable the copying of any relevant material; (vi) to give other assistance the investigator reasonably requires to carry out the investigation; (k) do anything else reasonably necessary to obtain information or evidence for the purposes of the investigation. (2) Any documents, information or anything else obtained by the investigator may be used for the purposes of the investigation. (3) If an investigator takes anything away from the premises, the investigator must issue a receipt and— (a) if the occupier or a person apparently responsible to the occupier is present, give it to him or her; or (b) otherwise, leave it on the premises in an envelope addressed to the occupier. (4) An investigator may be accompanied by any assistants the investigator requires, including persons with accounting expertise and persons to assist in finding and gaining access to electronically stored information. Part 4—Additional powers in relation to incorporated legal practices 10—Application of Part (1) This Part applies to— (b) complaint investigations; and (c) ILP compliance audits, conducted in relation to incorporated legal practices (whether engaged in legal practice on their own account or in partnership). (2) The provisions of this Part are additional to the other provisions of this Schedule. 11—Investigative powers relating to investigations and audits An investigator conducting an investigation or audit to which this Part applies may exercise the powers set out in this Part. 12—Examination of persons (1) The investigator, by force of this clause, has and may exercise the same powers as those conferred on the Australian Securities and Investments Commission by Division 2 of Part 3 of the Australian Securities and Investments Commission Act 2001 of the Commonwealth. (2) Division 2 of Part 3 of the Australian Securities and Investments Commission Act 2001 of the Commonwealth applies to the exercise of those powers, with the following modifications (and any other necessary modifications): (a) a reference to the Australian Securities and Investments Commission (however expressed) is taken to be a reference to the investigator; (b) a reference to a matter that is being or is to be investigated under Division 1 of Part 3 of that Act is taken to be a reference to a matter that is being or is to be investigated, examined or audited by the investigator; (c) a reference in section 19 of that Act to a person is taken to be a reference to a legal practitioner or an incorporated legal practice; (d) a reference to a prescribed form is taken to be a reference to a form approved by the Society. (3) Sections 22(2) and (3), 25(2) and (2A), 26 and 27 of the Australian Securities and Investments Commission Act 2001 of the Commonwealth do not apply in respect of the exercise of the powers conferred by this clause. 13—Inspection of books (1) The investigator, by force of this clause, has and may exercise the same powers as those conferred on the Australian Securities and Investments Commission by sections 30(1), 34 and 37 to 39 of the Australian Securities and Investments Commission Act 2001 of the Commonwealth. (2) Those provisions apply to the exercise of those powers, with the following modifications (and any other necessary modifications): (a) a reference to the Australian Securities and Investments Commission (however expressed) is taken to be a reference to the investigator; (b) a reference to a body corporate (including a body corporate that is not an exempt public authority) is taken to be a reference to an incorporated legal practice; (c) a reference to an eligible person in relation to an incorporated legal practice is taken to be a reference to an officer or employee of the incorporated legal practice; (d) a reference to a member or staff member is taken to be a reference to the appropriate authority or a person authorised by the appropriate authority who is an officer or employee of the authority; (e) a reference in section 37 of that Act to a proceeding is taken to be a reference to an investigation, examination or audit to which this Part applies. appropriate authority means— (a) in the case of a complaint investigation—the Commissioner; and (b) in the case of an ILP compliance audit, a trust account investigation or a trust account examination—the Society. 14—Power to hold hearings (1) The investigator may hold hearings for the purposes of an investigation, examination or audit to which this Part applies. (2) Sections 52, 56(1), 58, 59(1), (2), (5), (6) and (8) and 60 (paragraph (b) excepted) of the Australian Securities and Investments Commission Act 2001 of the Commonwealth apply to a hearing, with the following modifications (and any other necessary modifications): (a) a reference to the Australian Securities and Investments Commission (however expressed) is taken to be a reference to the investigator; (b) a reference to a member or staff member is taken to be a reference to the appropriate authority or a person authorised by the appropriate authority who is an officer or employee of the authority; (c) a reference to a prescribed form is taken to be a reference to a form approved by the Society. appropriate authority has the same meaning as in clause 13. 15—Failure to comply with investigation The following acts or omissions are capable of constituting unsatisfactory professional conduct or professional misconduct: (a) a failure by a legal practitioner to comply with any requirement made by the investigator, or a person authorised by the investigator, in the exercise of powers conferred by this Part; (b) a contravention by a legal practitioner of any condition imposed by the investigator in the exercise of powers conferred by this Part; (c) a failure by a legal practitioner director of an incorporated legal practice to ensure that the incorporated legal practice, or any officer or employee of the incorporated legal practice, complies with any of the following: (i) any requirement made by the investigator, or a person authorised by the investigator, in the exercise of powers conferred by this Part; (ii) any condition imposed by the investigator in the exercise of powers conferred by this Part. 16—Obstruction of investigator (1) A person must not, without reasonable excuse, obstruct an investigator exercising a power under this Act. (2) A person requested to do anything under clause 9(1)(j) must not, without reasonable excuse, fail to comply with the request. obstruct includes hinder, delay, resist and attempt to obstruct. 17—Obligation of legal practitioners (1) The duties imposed on a legal practitioner by this clause are additional to obligations imposed under other provisions of this Schedule, whether or not the legal practitioner is the subject of the investigation, examination or audit concerned. (2) A legal practitioner must not mislead an investigator, the Commissioner or the Society in the exercise of— (a) any power or function under this Schedule; or (b) any power or function under a provision of a corresponding law that corresponds to this Schedule. (3) A legal practitioner who is subject to— (a) a requirement under clause 4; or (b) a requirement under provisions of a corresponding law that correspond to that clause, must not, without reasonable excuse, fail to comply with the requirement. 18—Protection from liability No liability attaches to an investigator for any act or omission by the investigator done in good faith and in the exercise or purported exercise of the investigator's powers or duties under this Act. 19—Permitted disclosure of confidential information (1) Subject to this clause, the Society, the Commissioner or an investigator, or a person employed or engaged on work related to the affairs of the Society or the Commissioner, must not divulge information that comes to his or her knowledge by virtue of that office or position except— (a) in the course of carrying out the duties of that office or position; or (b) with the consent of the person to whom the information relates; or (c) as may be authorised by or under any law. (2) The Commissioner or the Council, or a person employed or engaged on work related to the affairs of the Commissioner, may divulge information referred to in subclause (1) as authorised by an agreement or arrangement that has been approved by the Attorney‑General under section 77A. (3) A person referred to in subclause (1) may disclose information obtained in the course of a trust account investigation, trust account examination, complaint investigation or ILP compliance audit to any of the following: (a) any court, tribunal or other person acting judicially; (b) any body regulating legal practitioners in any jurisdiction; (c) the Attorney‑General; (d) a person authorised to appoint an investigator; (e) any officer of or legal practitioner instructed by— (i) the Society or Commissioner or any other body regulating legal practitioners in any jurisdiction; or (ii) the Commonwealth or a State or Territory of the Commonwealth; or (iii) an authority of the Commonwealth or of a State or Territory of the Commonwealth; (f) an investigative or prosecuting authority established by or under legislation (for example, the Australian Securities and Investments Commission); (g) a law enforcement authority; (h) if the subject of the investigation, examination or audit is or was— (i) a law practice—a principal of the law practice; or (ii) an incorporated legal practice—a director or shareholder in the practice; or (iii) a legal practitioner—the practitioner or a principal of the law practice of which the practitioner is or was an associate; (i) if the subject of the investigation, examination or audit is or was— (i) a law practice—a client or former client of the practice; or (ii) a legal practitioner—a client or former client of the law practice of which the legal practitioner is or was an associate, but only to the extent that the disclosure does not breach legal professional privilege or a duty of confidentiality; (j) if the subject of the investigation, examination or audit is or was— (i) a law practice—a supervisor, manager or receiver appointed in relation to the law practice; or (ii) a legal practitioner—a supervisor, manager or receiver appointed in relation to the law practice of which the legal practitioner is or was an associate, or a legal practitioner or accountant employed by the supervisor, manager or receiver; (k) an investigator carrying out another investigation, examination or audit in relation to the law practice or legal practitioner who is or was the subject of the investigation, examination or audit. (4) Nothing in this clause prevents the disclosure of information relating to a complaint to the complainant or a person acting on behalf of the complainant. (5) No liability (including liability in defamation) is incurred by a protected person in respect of anything done or omitted to be done in good faith for the purpose of disclosing information under this clause. (6) In this clause— (a) the Commissioner; or (b) an employee or agent of the Commissioner; or (c) the Society; or (d) the Council; or (e) an officer, employee or agent of the Society; or (f) an investigator; or (g) a person acting at the direction of any person or entity referred to in this definition.