Document ID: chunk:federal_register_of_legislation:C2004A01206:clause:2_34m
Version: federal_register_of_legislation:C2004A01206
Segment Type: clause
Provision Reference: sch 2 cl 34M
Character Range: 37065–39070

34M  Qualifying liabilities

 (1) A person (the practitioner) has a qualifying liability in relation to a claim made against the person if:
 (a) one of the following applies:
 (i) the liability is under a judgment or order of a court in relation to the claim, being a judgment or order that is not stayed and is not subject to appeal;
 (ii) the liability is under a settlement of the claim that takes the form of a written agreement between the parties to the claim;
 (iii) the liability is some other kind of liability of the practitioner (for example, a liability to legal costs) that relates to the claim; and
 (b) the defence of the claim against the practitioner was conducted appropriately (see subsection (2)) up to the time when:
 (i) if the liability is under a judgment or order of a court—the date on which the judgment or order became a judgment or order that is not stayed and is not subject to appeal; or
 (ii) if the liability is under a settlement of the claim—the date on which the settlement agreement was entered into; or
 (iii) if the liability is some other kind of liability—the date on which the liability was incurred; and
 (c) if the liability is under a settlement of the claim, or is under a consent order made by a court—a legal practitioner has given a statutory declaration certifying that the amount of the liability is reasonable.

 (2) For the purposes of paragraph (1)(b), the defence of the claim is conducted appropriately if, and only if:
 (a) to the extent it is conducted on the practitioner's behalf by an insurer, or by a legal practitioner engaged by the insurer—the defence is conducted to a standard that is consistent with the insurer's usual standard for the conduct of the defence of claims; and
 (b) to the extent it is conducted by the practitioner, or by a legal practitioner engaged by the practitioner—the defence is conducted prudently.

 (3) In this section:

defence of the claim includes any settlement negotiations on behalf of the practitioner.