Western Australian Numbered Acts Western Australian Numbered Acts (1) In this section a
reference to clients of a legal practitioner includes a reference
to —
(a)
potential clients of a legal practitioner; and
(b) in
the case of a legal practitioner director of an incorporated legal practice,
clients and potential clients of the incorporated legal practice.
(2) If an application
for a hearing and determination is made by the Board to the
Disciplinary Tribunal under section 39(2) in respect of a legal
practitioner who is an applicant for, or holder of, a practice certificate,
the Disciplinary Tribunal has jurisdiction to make a finding that it
would —
(a) be
in the public interest or in the interest of the clients of the
legal practitioner; or
(b)
protect the integrity of the legal profession or the administration of
justice,
if the application for
the practice certificate were refused, the practice certificate were suspended
or cancelled, or conditions were imposed on the practice certificate.
(3) If an application
for a hearing and determination is made by the Board to the
Disciplinary Tribunal under section 39(3) in respect of an applicant for,
or holder of, a practice certificate, the Disciplinary Tribunal has
jurisdiction to make a finding that —
(a) the
applicant or holder is an unfit or incapable practitioner within the meaning
of section 39; and
(i)
be in the public interest or in the interest of the legal
practitioner’s clients; or
(ii)
protect the integrity of the legal profession or the
administration of justice,
if the application for
the practice certificate were refused, the practice certificate were suspended
or cancelled, or conditions were imposed on the practice certificate.
(4) If an application
has been made under section 39(2) or 39(3) in respect of a
legal practitioner, the Disciplinary Tribunal may make an interim order
suspending the practice certificate of the legal practitioner pending the
hearing and determination of the application by the Disciplinary Tribunal.
(5) Before acting
under subsection (3) the Disciplinary Tribunal may require the applicant
or holder to be medically examined by a medical practitioner nominated by the
Tribunal.
(6) A refusal or
failure by a person to comply with a requirement for medical examination under
subsection (5) may be accepted by the Disciplinary Tribunal as adverse
evidence of the person’s ability to practise.
(7) In making a
finding under subsection (3) in respect of a person’s ability to
practise the Disciplinary Tribunal is to take account of —
(a) the
person’s past training, qualifications and experience relevant to such
practice;
(b) if
the person is already practising, the person’s performance in such
practice; and
(c) all
other relevant factors that it is reasonable to take into account.
(8) The
Disciplinary Tribunal may deal with an application under this section
notwithstanding that the Complaints Committee or the Disciplinary Tribunal is
already dealing with a complaint or referral including elements of the
first-mentioned referral.
(9) On making a
finding under subsection (2) or (3) the Disciplinary Tribunal may,
by order —
(a)
refuse the application for the practice certificate;
(b)
suspend the practice certificate;
(c)
cancel the practice certificate; or
(d)
order the Board to issue the practice certificate subject to conditions
specified by the Tribunal.