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Practice Note No. 82

REPEALED - Admission And Enrolment Under The Mutual Recognition Act 1992 (Commonwealth)


Date:
07/04/1994







    PRACTICE NOTE NO 82

    Admission And Enrolment Under The Mutual Recognition Act 1992 (Commonwealth)

    1 Practice Note No 78 is rescinded.

    2 The above Act allows a person, who is registered in a State to which the Act applies for an occupation, to obtain registration in any other State to which the Act applies for the equivalent occupation. "State" includes the Australian Capital Territory and the Northern Territory.

    3 In order to practise as a barrister or solicitor in New South Wales, it is necessary to be admitted as a legal practitioner by the Supreme Court of New South Wales ("the Court") and to hold a current practising certificate issued by the Council of the New South Wales Bar Association or the Council of the Law Society of New South Wales, as the case requires. Thus both the Court and the appropriate Council are local registration authorities, within the meaning of the Act, in respect of a barrister or a solicitor and it is necessary to apply separately to each of them. This Practice Note and the attachments deal only with an application to the Court.

    4 Attached are -

        (a) a sample form of notice, incorporating a statutory declaration under the Statutory Declarations Act 1959 of the Commonwealth;

        (b) a sample form of Oath of Office; and

        (c) copies of rules of Court and forms relating specifically to applications under the Act and of some other rules of general application.

        Part 65C rule 4 is of particular importance.

    5 The sample form of notice is designed for routine cases. In cases having unusual aspects, applicants should consult the Supreme Court Act 1970 and the Supreme Court Rules 1970 in the same way as would any other party involved in proceedings in the Court.

    6 The notice should be signed at the foot of every page by the applicant and the person taking the declaration.

    7 It should be noted that the rules require service of the notice on certain bodies and the filing of an affidavit of service with the notice. Service by post is permitted.

    Chief Justice

    4 July 1994






    IN THE SUPREME COURT
    OF NEW SOUTH WALES
    SYDNEY REGISTRY
    COMMON LAW DIVISION


    S. of 199







    The Application of
    PETER JOHN SMITH



    NOTICE UNDER
    THE MUTUAL
    RECOGNITION ACT 1992
    (COMMONWEALTH)



    *Peter John Smith
    5 Main Street
    Brisbane 4000
    telephone (07) 110111


    *If a solicitor is acting for
    the applicant, see Part 65
    rule 1(7).
    1 I, PETER JOHN SMITH, seek admission and enrolment as a legal practitioner of the Supreme Court of New South Wales in accordance with the mutual recognition principle.

    2 My residential address is 1 Station Street Brisbane 4000 and my business address is 5 Main Street Brisbane 4000.

    3 In this notice, unless the subject matter otherwise requires, each of the expressions -

    "equivalent";

    "mutual recognition principle";

    "occupation";

    "registration";

    "State"; and

    "substantive registration",

    has the same meaning which it has in the Mutual Recognition Act 1992 of the Commonwealth ("the Act").

    4 The information contained in this paragraph is given pursuant to section 19(2)(a) of the Act. On 1 February 1988 I was admitted as a barrister [or solicitor or solicitor and barrister or legal practitioner] of the Supreme Court of Queensland and my name is entered on the roll of barristers [or as the case may be] kept by or on behalf of that Court.

    5 I certify that the document annexed hereto and marked with the letter "A" is the original [or a complete and accurate copy of the] instrument evidencing my admission and enrolment referred to in paragraph 4. Annexed hereto and marked with the letter "B" is a certificate complying with Part 65C rule 4(2)(f) of the Supreme Court Rules 1970.

    6 I have substantive registration in the following State(s) for the occupation(s) equivalent to the occupation referred to in paragraph 4 -


    [List the other State(s)]OR

    I do not have substantive registration in any other State for the occupation equivalent to the occupation referred to in paragraph 4.


    [signed] P J Smith [signed] M Jones

    7 I am not the subject of disciplinary proceedings, or any preliminary investigations or action that might lead to disciplinary proceedings, in any State in relation to any occupation referred to in paragraph 4 [or paragraphs 4 or 6] (a "relevant occupation").

    8 My registration for any relevant occupation in any State is not cancelled or currently suspended as a result of disciplinary action.

    9 I am not otherwise personally prohibited from carrying on any relevant occupation in any State, and I am not subject to any special conditions in carrying on any relevant occupation, as a result of criminal, civil or disciplinary proceedings in any State.

    10 I am not subject to any special conditions in carrying on any relevant occupation in any State.


    OR

    I am subject only to the following special conditions in carrying on any relevant occupation in any State-
        [state special conditions and the State(s) where they apply]
    11 I consent to the making of enquires of, and the exchange of information with, the authorities of any State regarding my activities in the relevant occupation [or occupations], or otherwise regarding matters relevant to this notice.

    12 My address for service is 5 Main Street Brisbane 4000 [or, where the applicant is represented by a solicitor, comply with Part 65C rule 4(2)(c)].

    [signed] P J Smith

    Plaintiff

    Dated 2 July 1994


    STATUTORY DECLARATION

    I, Peter John Smith, of 1 Station Street, Brisbane, in the State of Queensland, barrister, do solemnly and sincerely declare that the statements and other information contained in the above notice, signed for identification on every page by me and by the person before whom this declaration is made, are true and correct in every particular.

    And I make this solemn declaration by virtue of the Statutory Declarations Act 1959, and subject to the penalties provided by that Act for the making of false statements in Statutory Declarations, conscientiously believing the statements contained in this Declaration to be true in every particular.

    [signed] P J Smith

        Declared at Brisbane the 2nd day of July 1994.

        Before me,

    [signed] M Jones
        A Justice of the Peace [or as the case may be]


    IN THE SUPREME COURT
    OF NEW SOUTH WALES
    SYDNEY REGISTRY
    COMMON LAW DIVISION

    S. of 199





    The Application of
    PETER JOHN SMITH





    OATH OF OFFICE






    *Peter John Smith
    5 Main Street
    Brisbane 4000
    telephone (07) 110111


    *If a solicitor is acting for
    the applicant see Part 65
    rule 1(7).

    I, PETER JOHN SMITH of 1 Station Street, Brisbane, in the State of Queensland, do swear [or solemnly, sincerely and truly declare and affirm] that if I am enrolled as a legal practitioner by the Supreme Court of New South Wales I will truly and honestly conduct myself in the practice of a legal practitioner of the Supreme Court of New South Wales and I shall faithfully serve as such in the administration of the laws and the usages of that State according to the best of my knowledge, skill and ability.

    SO HELP ME GOD [or I DO]
    [signed] P J Smith
    --------------------------------------------

    CERTIFICATE

    I, Eric Black of 1 High Street, Brisbane, in the State of Queensland, certify that I duly administered the above oath on 1 July 1994.

    1 July 1994
    [signed] E Black
    -------------------------------------------------------------
    Registrar of the Supreme Court of Queensland


    SOME RULES RELEVANT TO THE MUTUAL RECOGNITION ACT 1992


    PART 1

    8(1)"Mutual Recognition Act" means the Mutual Recognition Act 1992 of the Commonwealth.

    Filing

    9A. (1) A document for filing-

        (a) in a registry or in an office of a clerk of the Court; or

        (b)in Court; or

        (c)with an associate to a Judge or master,

        is not filed unless it is accepted-

        (d)if it is received in a registry or office of a clerk of the Court - by an officer of the Court; or

        (e)otherwise - by the Court.

    (2) The date of acceptance shall be subscribed on the document-

      (a) where it is accepted under subrule (1)(d) by an officer of the Court; or

    (b)where it is accepted under subrule (1) (e) - by any person approved by the Court.

    Filing by post or document exchange

    9B.(1) Any document for filing in a registry may be filed under this rule.

    (2) A document for filing under this rule may-


      (a) be posted to the registry; or

      (b) be left, addressed to the registry-

      (i) in the exchange box of Australian Document Exchange Pty Ltd and of that registry;

      (ii) in another exchange box for transmission to the exchange box of that Company and registry; or

      (iii) if it is the registry at Sydney, in a box provided for the purpose in the registry,

      with a request that the document be filed.


    PART 9

    Mode of service

    1. Any document required or permitted to be served in any proceedings may be served personally, but need not be served personally, unless personal service is required by the rules or by order.

    Personal service: how effected

    3. (1) Personal service of a document may be effected by leaving a copy of the document with the person to be served or, if he does not accept the copy, by putting the copy down in his presence and telling him the nature of the document.

    (2) Personal service of a document on a corporation may be effected by serving the document in accordance with subrule (1) on the mayor, chairman or president, officer of the corporation or on the town clerk, secretary, treasurer or other similar officer of the corporation or where provision is made by or under any Act for service of a document on a corporation, by serving a copy of the document in accordance with that provision.

    Ordinary service: how effected

    4. (1) Where personal service of a document is not required, the document may be served-

        (a) by leaving a copy of the document at the proper address of the person to be served between the hours of nine in the morning and five in the afternoon on any day except a Sunday on which Christmas Day falls; or

        (b) by sending a copy of the document by pre-paid post addressed to the person to be served at his proper address; or

        (c) where provision is made by or under any Act for service of a document on a corporation, by serving a copy of the document in accordance with that provision; or

        (d) where the address for service of a person to be served is the office of a solicitor who has an exchange box in a document exchange in the State of Australian Document Exchange Pty Limited, by leaving a copy of the document addressed to that solicitor, in that exchange box or at another exchange box for transmission to that exchange box; or

        (e) where the address for service of a person to be served is the office of a solicitor and the solicitor adds to that address the solicitor's name and "will accept service to fax number'' together with the solicitor's facsimile transmission number, by transmitting to that number the information contained in the document by a means that reproduces, in the hands of the recipient, that information as it appears in the document.

    (2) For the purposes of subrule (1), the proper address of a person shall be the address for service of that person in the proceeding but if, at the time when the copy is left or posted pursuant to subrule (1), he has no address for service in the proceedings, his usual or last known place of business or of abode shall be his proper address.

    (3) The time of service of any document for the purpose of any proceedings shall, where the copy of the document-


      (i) is sent by pre-paid post in accordance with subrule (1) (b) - be seven days after the copy is sent;

      (ii) is left in an exchange box or at an exchange in accordance with subrule (1) (d) - be two days after the copy is so left;

      (iii) is transmitted in accordance with subrule (1) (e) - be one day after the document is so transmitted, or, where an earlier time is shown to be the time of receipt, the time of receipt shown.


    Identity

    4A. For the purposes of the proof of service, evidence of a statement by a person of his identity or that he holds some office is evidence of his identity or that he holds that office, as the case may be.

    Address for service

    6. (1) Subject to subrules (1A) and (8), an address for service shall be the address of a place in the State (other than a document exchange of Australian Document Exchange Pty Limited) at which documents in the proceedings may, during ordinary business hours, be left for the person whose address for service it is and to which documents in the proceedings may be posted for that person.

    (1A) not relevant

    (2) Where a person is not represented by a solicitor, or is represented by a solicitor who does not have a box in a document exchange maintained in the State by Australian Document Exchange Pty Ltd, or is represented by a solicitor who has such a box and has another solicitor acting as agent, his address for service shall-


      (a)-(d) not relevant

      (e) in any other case - be the address of a place within three kilometres of the General Post Office, Sydney.


    (3) The address for service of a person who is represented by a solicitor shall be the office of the solicitor, or, where the solicitor has another solicitor acting as agent, the office of the agent.

    (4) A person may change his address for service by filing a notice of the change showing his new address for service.

    (5) A person who files a notice of a change of his address for service shall, on the date of filing, serve the notice on each party to the proceedings.

    (6) A notice mentioned in Part 66 rule 3 (2), 4, 5, 6 (1)(a) or 7 (1) showing a new address for service constitutes a notice for the purposes of subrule (4).

    (7) not relevant

    (8) An address for service of a person who files a notice under section 19(1) of the Mutual Recognition Act and who is not represented by a solicitor need not be the address of a place in the State if it is the address of a place within Australia.

    PART 61

    1(7) A registrar may exercise the powers and perform the duties of the Court under the Mutual Recognition Act.

    PART 65 - DOCUMENTS

    First page of a document

    1. (1) A document in any proceedings shall be headed ``In the Supreme Court of New South Wales'' together with a reference to the appropriate Division or to the Court of Appeal and shall show the serial number of the proceedings.

    (2) A document in any proceedings between parties shall be entitled between the parties, and not otherwise.

    (3) A document in any proceedings in which there is no defendant shall be entitled ``The application of'' together with the name of the plaintiff, and not otherwise.

    (4) Except in the case of an originating process, a document to be served on a person not a party to the proceedings or a minute of a final judgment or final order, a document may bear an abbreviation of the title of the proceedings sufficient to identify proceedings.

    (5) The registrar may add to the title of any document filed or lodged in any proceedings in the Court any matter which he requires to add for the purpose of any record, search of which he permits.

    (6) The first page of a document prepared by a party for use in the Court shall be set out in the prescribed form.

    (7) At the foot of the left hand side of the first page of a document prepared by a party for use in the Court there shall be shown the name, address and telephone number of the solicitor for the party and, if the solicitor acts in the proceedings by an agent, the name, address and telephone number of the agent, and, where the address for service of the party is the office of a solicitor who has an exchange box in a document exchange of Australian Document Exchange Pty Limited, the solicitor's exchange box number.

    (8) Where the party preparing a document for use in the Court is not represented by a solicitor, subrule (7) shall not apply but the document shall show the name and address for service of the party at the foot of the left hand side of the first page of the document.

    Paper and writing

    2. (1)This rule applies to a document prepared by a party for use in the Court, except to the extent that the nature of the document renders compliance impracticable.

    (2) A document shall be on paper of durable quality, capable of receiving ink writing, and measuring about 297 millimetres long and 210 millimetres wide.

    (3) Subject to the rules, the writing on a document shall be on one face of the paper only and a margin of not less than 25 millimetres shall be kept clear on the left hand side.

    (4) There shall be a space of not less than 3 millimetres between the lines of writing.

    (5) The writing shall be clear, sharp, legible and permanent.

    (6) A carbon copy shall not be filed.

    (7) A document shall not be filed if it bears any blotting, erasure, or such alteration as to cause material disfigurement.

    Numbers

    4. Dates, sums and other numbers shall be expressed in figures and not in words.

    Scandal etc.

    5. The Court may order to be struck out of any document any matter which is scandalous, frivolous, vexatious, irrelevant or otherwise oppressive.

    Signing documents

    8. A pleading, summons, notice of appearance, notice of motion, notice of appeal, statement, request, requisition, undertaking, list, account, note or other notice to be filed or served by a party or other person in any proceedings shall be signed by his solicitor or by him, if he has no solicitor.

    Application under the Mutual Recognition Act

    4. (1)This rule applies to proceedings commenced by notice under Section 19 (1) of the Mutual Recognition Act.

    (2) The notice must, unless the Court otherwise orders-


      (a) be lodged by filing it in the registry at Sydney;

      (b) show the name, residential address and business address of the applicant;

      (c) where the applicant is represented by a solicitor-


        (i) the name, address and telephone number of the solicitor; and

        (ii) if that solicitor has another solicitor as agent in the proceedingsthe name, address and telephone number of the agent;


      (d) show an address for service;

      (e) be dated not more than 14 days before the date on which it is filed; and

      (f) be accompanied by a certificate which-


        (i) evidences the existing registration which gives rise to the entitlement of the applicant under the Mutual Recognition Act to entry in the Roll of Legal Practitioners;

        (ii) is given by the proper officer of-


          (A) the Supreme Court; or

          (B) a body, having functions similar to the Legal Practitioners Admission Board of the State or Territory where such existing registration occurred; and

        (iii) is dated not more than 28 days before the date on which it is filed,

      unless the document mentioned in Section 19 (3) of the Mutual Recognition Act, accompanying the notice, fulfils the requirements of this paragraph.

    (3) The applicant shall, on or before the day of filing, serve the notice and accompanying documents on the Legal Practitioners Admission Board, the New South Wales Bar Association, and the Law Society of New South Wales and shall file an affidavit of service within 14 days of filing the notice.

    (4) The applicant shall-


      (a) prior to; or

      (b) within 14 days after,

      filing the notice, attend at a registry of the Court or at the office of the Supreme Court of his or her State or Territory and take the oath of office as a legal practitioner in Form 70AA, and cause the certificate included in that form to be completed and shall-

      (c) at the time of; or

      (d) within 14 days after, filing the notice, file the form of oath and the certificate and, on the same day, serve them on the Legal Practitioners Admission Board .


    (5) Notwithstanding Part 36 rule 3-

      (a) the statements and other information in the notice which are verified by statutory declaration;

      (b) the document mentioned in Section 19 (3) of the Mutual Recognition Act, certified under Section 19 (4) of that Act, accompanying the notice; and

      (c) the certificate referred to in subrule (2) (f),

      are admissible in evidence and, unless the Court otherwise orders, shall not be the subject of oral evidence by the applicant.

    (6) Part 4 rules 1 to 3 and Part 7 rule 6 shall not apply to proceedings to which this rule applies unless the Court otherwise orders.

    (7) The application for enrolment made by the notice may be determined or dealt with by the Court in the absence of the public and without any attendance by or on behalf of the applicant.

    (8) If the Court is satisfied that the applicant is entitled to enrolment, it shall order that the applicant be admitted as a legal practitioner and-


      (a) the Prothonotary shall enter or cause to be entered the name of the person admitted in the Roll of Legal Practitioners ; and

      (b) the person admitted shall be entitled to receive a certificate bearing the seal of the Court.


    SCHEDULE F


    Form 70AA

    P. 65C. rr. 3(4), 4(4).

    OATH OF OFFICE

    I, (name) of (address) do swear that (if the oath is taken in relation to proceedings commenced or proposed to be commenced under the Mutual Recognition Act, add if I am enrolled as a legal practitioner by the Supreme Court of New South Wales) I will truly and honestly conduct myself in the practice of a legal practitioner of the Supreme Court of New South Wales and I shall faithfully serve as such in the administration of the laws and the usages of that State according to the best of my knowledge, skill and ability.

    (Signature of person taking oath)

    -------------------------------------------


    CERTIFICATE

    I, (name) of (address), certify that I duly administered the above oath on (date)

    (date)

    (Signature of a person administering oath)

    ---------------------------------------------------------.

    (Office of person administering oath)




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