Australian Capital Territory
Civil Law (Wrongs) South Australian Bar Association Inc Scheme 2011 (No 1)*
Disallowable instrument DI2011–283
made under the  
Civil Law (Wrongs) Act 2002, section 4.10, schedule 4 (Approval of schemes by Minister)

1	Name of instrument
This instrument is the Civil Law (Wrongs) South Australian Bar Association Inc Scheme 2011 (No 1).
2	Commencement 
This instrument commences on 1 January 2012. 
3	Approved scheme
	Pursuant to section 4.10, schedule 4 of the Civil Law (Wrongs) Act 2002 I approve the attached South Australian Bar Association Inc Scheme.

Simon Corbell MLA
Attorney General
18 October 2011

Professional Standards Act 2004 (SA)

THE SOUTH AUSTRALIAN BAR ASSOCIATION INC SCHEME

PREAMBLE	

A.	The South Australian Bar Association Inc (the Bar) is an occupational association.

B.	The Bar has made an application to the Professional Standards Council, appointed under the Professional Standards Act 2004 (SA) (the Act), for a scheme under the Act.

C.	The scheme is prepared by the Bar for the purposes of limiting occupational liability to the extent to which such liability may be limited under the Act.

D.	The scheme propounded by the Bar is to apply to ordinary members of the Bar who have professional indemnity insurance that complies with the Legal Practitioners Act 1981 (SA) in respect of a liability potentially limited by the Scheme.

E.	The Bar has furnished the Council with a detailed list of the risk management strategies intended to be implemented in respect of its members and the means by which those strategies are intended to be implemented.

F.	The scheme is intended to commence on 1 January 2012 and remain in force for five (5) years from its commencement unless, prior to that time, it is revoked, its operation ceases, or it is extended pursuant to section 34 of the Act.

G.	The scheme is also intended to apply in all other jurisdictions except Tasmania.

1	Definitions

“Act” means the Professional Standards Act 2004 (SA);

 “Acts” means the Act and each corresponding law;

 “corresponding law” means a law of another jurisdiction that corresponds to the Act;

"Court" has the same meaning as it has in the Acts;

“Duration of the Scheme” means the period commencing on the date specified in clause 7.1 and ending upon the cessation of the Scheme pursuant to clause 7.2;

“Exempted Member” means an Ordinary Member who is or was at a Relevant Time exempted by the Bar from participation in the Scheme pursuant to clause 4.3;

“Legal Practitioners Act” means the Legal Practitioners Act 1981 (SA) or any Act enacted in substitution thereof;

“Monetary Ceiling” means, in respect of a liability in respect of a cause of action founded on an act or omission occurring after the commencement of the Scheme:
(a)	the sum of $1,500,000; or
(b)	such higher amount as has been specified in relation to a specified Scheme Participant in respect of such case or class of case or generally as has been specified by the Bar pursuant to clause 5.1;

“occupational liability” has the same meaning as it has in the Acts;

“Ordinary Member” means a person who is or was at a relevant time an ordinary member within the meaning of and pursuant to the Rules of the Bar;

“person” means an individual or a body corporate;

“relevant time” means, in respect of a liability potentially limited by the Scheme, the time(s) of the act(s) or omission(s) giving rise to the liability;

“the Scheme” means the South Australian Bar Association Inc Scheme constituted herein;

“Scheme Participant” means a person referred to in clause 4.1 or 4.2

‘the Bar” means the South Australian Bar Association Inc.

2	Occupational Association

2.1	The Scheme is a scheme under the Act prepared by the Bar whose business address is 314 King William Street Adelaide South Australia.

3.	Jurisdictions in which the Scheme Applies

3.1	The Scheme applies in South Australia pursuant to the Act.

3.2	The Scheme applies in New South Wales, Victoria, Queensland, Western Australia, the ACT and the Northern Territory pursuant to the corresponding laws of each of those jurisdictions respectively.

4.	Persons to Whom the Scheme Applies

4.1	The scheme applies to all persons who:
4.1.1	are or at the relevant time were Ordinary Members of the Bar;
4.1.2	are or were at the relevant time not Exempted Members; and
4.1.3	have professional indemnity insurance that complies with the Legal Practitioners Act in respect of a liability potentially limited by the Scheme.

4.2	The scheme applies to all persons to whom the scheme applies by virtue of sections 20, 21, and 22 of the SA Act and the corresponding sections of the corresponding laws.

4.3	The Bar may, upon application by a Scheme Participant, exempt that person from participation in the Scheme with effect from a date specified by the Bar on or after the date on which the exemption is granted.

4.4	. The Bar may, upon application by a Scheme Participant, revoke an exemption of that person from participation in the Scheme with effect from a date specified by the Bar.

5.	Conferral of discretionary authority

5.1	The Scheme confers on the Bar a discretionary authority, on application by a Scheme Participant, to specify in relation to the person a higher maximum amount of liability than would otherwise apply under the Scheme in relation to the person either in all cases or in any specified case or class of case, being a specified Monetary Ceiling not exceeding $50 million.

6.	Limitation of Liability

6.1	The occupational liability of a person who is or at the relevant time was a Scheme Participant in respect of a cause of action founded on an act or omission occurring during the Duration of the Scheme is limited to the amount of the Monetary Ceiling.

6.2	The liability which is limited by clause 6.1 extends to a liability for damages (including interest and costs) within the meaning of the Acts but excludes a liability to which the Act does not apply from time to time by reason of section 5 thereof or, if the liability is governed by a corresponding law, excludes a liability to which the corresponding law does not apply from time to time by reason of its provisions.

6.3	The operation of clause 6.1 limiting the liability of a person is subject to the proviso that the person is able to satisfy the Court that:
6.3.1	the person has the benefit of an insurance policy complying with the Legal Practitioners Act  insuring the person against the occupational liability to which the cause of action relates; and
6.3.2	the amount payable under the policy in respect of that occupational liability is not less than the amount of the Monetary Ceiling.

6.4	The limitation of liability that, in accordance with this Scheme, applies in respect of an act or omission continues to apply to every cause of action founded on it, irrespective of when the proceedings are brought in respect of it, and even if the Scheme has been amended or has ceased to be in force.

6.5	For the purposes of section 28 of the Act, the Scheme only affects a liability for damages arising from a Single Claim (including a claim by a person who has 2 or more causes of action arising out of a single event) exceeding $1,500,000.

7.	Duration of the Scheme

7.1	The scheme commences on 1 January 2012.

7.2	Subject to clause 7.3, the scheme will remain in force for a period of 5 years from its commencement unless:
7.2.1	it is revoked or ceases in accordance with the Act, or
7.2.2	it is extended in accordance the Act.

7.3	The scheme will cease to operate in a jurisdiction referred to in clause 3.2 if it is revoked or ceases in accordance with the corresponding law of that jurisdiction.