Actions in Respect of Solicitor’s Conduct

Nature of action Time Limit Period Legislation Provision
Complaint to Legal Services Commissioner about the conduct of an Australian legal practitioner or a law practice employee. 3 years after the conduct the subject of the complaint. s 430 Legal Profession Act 2007 (Qld) If the Legal Services Commissioner receives the complaint more than 3 years after the conduct the subject of the complaint occurred, the Commissioner may:

·         refer the matter to mediation; or

·         dismiss the matter; or

·         deal with the matter (if certain criteria are met).

The 3 years is calculated from the last day the conduct happened.
Proceedings for professional negligence. 6 years after the date on which the cause of action arose. s 10(1)(a) Limitations of Actions Act 1974 (Qld) An action founded on a contract or on tort (where the damages claimed do not include damages for personal injury) shall not be brought after the expiration of 6 years from the date of the cause of action.
Compensation for defaults by law practices arising from, or constituted by, acts or omissions of associates. Within 6 months after the prospective claimant becomes aware of the default; or

(b) within a further period allowed by the law society; or

(c) if, on application as provided under the QCAT Act to the tribunal for a review of a decision of the law society to refuse to allow a further period for the claim, the tribunal allows a further period for making the claim – within the period allowed by the tribunal.

 ss 356, 374, 375, 376 and 377 Legal Profession Act 2007 (Qld) s 374 Claims about defaults

A person who suffers pecuniary loss because of a default may make a claim against the fidelity fund to the law society about the default (s 374 (1)). s 356 Definitions for part 3.6 ‘default‘, in relation to a law practice, means –

1.     a failure of the practice to pay or deliver trust money or trust property that was received by the practice in the course of legal practice by the practice, if the failure arises from an act or omission of an associate that involves dishonesty; or

2.     a fraudulent dealing with trust property that was received by the law practice in the course of legal practice by the practice, if the fraudulent dealing arises from or is constituted by an act or omission of an associate that involves dishonesty.

‘pecuniary loss’, in relation to a default, means –

1.     the amount of trust money, or the value of trust property, that is not paid or delivered; or

2.     the amount of money that a person loses or is deprived of, or the loss of value of trust property, as a result of a fraudulent dealing .

s 375 – Time limit for making claims s 375(1) Subject to section 377 (Time limit for making claims following advertisement), a claim does not lie against the fidelity fund unless the prospective claimant notifies the law society of the default concerned –

1.     within 6 months after the prospective claimant becomes aware of the default; or

2.     within a further period allowed by the law society; or

3.     if, on application as provided under the QCAT Act to the tribunal for a review of a decision of the law society to refuse to allow a further period for the claim, the tribunal allows a further period for making the claim – within the period allowed by the tribunal.

s 375(2) The tribunal or law society may allow a further period mentioned in subsection (1) only if satisfied that –

1.     it would be reasonable to do so after taking into account all ascertained and contingent liabilities of the fidelity fund; and

2.     it would be appropriate to do so in the particular case having regard to matters the tribunal or law society considers relevant.

ss 376 Advertisements and 377 Time limit for making claims following advertisement. If the law society advertises a notice seeking information about a default or inviting that claims be made in respect of a default then, notwithstanding the six month period referred to in s 375 has passed, a prospective claimant can make a claim in respect of the default:

1.     to the final date fixed under the notice;

2.     within a further period specified by the law society; or

3.     as allowed by the tribunal.