Review of the Evidence Act 1958 (Vic) and
Review of the Role and Appointment of Public Notaries

Chapter Seven - Historical Background and the Current Victorian Position

The office of notary can trace its origins back to the Roman Empire. Prior to the enactment of the Ecclesiastical Licences Act 1533 (UK), the appointment of notaries lay with the Pope. The Pope delegated his powers of appointment to his legate, the Archbishop of Canterbury.[224] It was through a licence or faculty granted by the Archbishop in the exercise of his legatine powers that a notary received the right to practise. After the passage of the 1533 Act, which was a direct result of the Reformation in England, all notary appointments were issued directly through the Court of Faculties. The Court of Faculties is attached to the office of the Archbishop of Canterbury. Victorian notaries are still appointed through the office of the Archbishop of Canterbury by the Court of Faculties. There is no legislation governing the appointment of notaries in Victoria.[225]

"Traditionally, notaries recorded matters of judicial importance as well as private transactions or events where an officially authenticated record or a document drawn up with professional skill or knowledge was required. Specifically, the functions of Victorian notaries include the attestation of documents and certification of their due execution, administering of oaths, witnessing affidavits and statutory declarations, certification of copy documents, noting and protesting of bills of exchange and the preparation of ships' protests."[226]

One example cited to the Committee by Mr Zablud in his oral evidence was the preparation and witnessing of the due execution of powers of Attorney granted by individuals for use abroad.[227] Significant weight attaches to documents certified by notaries. Documents certified by notaries are sealed with the notary's seal and are recorded by the notary in a register maintained by him/her. These are known as "notarial acts". Notarial acts and certificates are recognised in countries of the British Commonwealth and some other countries without the need for any further certification from the Australian Foreign Ministry or foreign diplomatic missions.

In countries subscribing to the Hague Convention Abolishing the Requirement for Legalisation for Foreign Public Documents ("the Convention") only one further act of certification is required. This is known as an apostille. Australia deposited its Instrument of Accession on 11 July 1994 and the Convention became operative in Australia on 16 March 1995. The Convention abolishes the requirement of legalisation of the foreign country document where that country is a signatory to the Convention. Where the country is not a signatory, the notarial seal and signature still need to be authenticated.

The role undertaken by notaries in civil law countries is much greater than in common law countries. Notaries in the former countries frequently undertake work done in this country by the Titles Office and other Government agencies.[228] The qualifications imposed by some countries is much greater. In Greece, for example, a practitioner must choose to be either a solicitor or a notary. In the England there are three classes of notaries. Scrivener notaries are the only notaries permitted to practise in the City of London. Due to their geographical proximity to many civil law countries, scrivener notaries are only appointed after five years articles to a practising notary. Scrivener notaries must be fluent in one or two foreign languages and be familiar with the principles and practice of foreign law.[229]

The other two classes of notaries in England are qualified solicitors who only practise outside the city and non-legally qualified persons who satisfy the Master of Faculties that they possess an adequate understanding of the law. Both the latter two categories are required to pass examinations set by the Master of Faculties.

Victorian notaries are still appointed through the Archbishop of Canterbury and the Court of Faculties in England. This is so even though the relevant English legislation has been repealed for that country. In Victoria, notaries are represented by the Society of Notaries of Victoria ("the Society"). The Society has 88 members, all of whom are qualified legal practitioners. Whilst there are no legislative criteria for appointment as a notary, the Society has developed standards of its own which it uses to determine whether it will support a person's application to become a notary. For practical purposes, a person's application to the Court of Faculties will not be granted unless it is supported by the Society. The Master of Faculties places great weight on the views of the Society as the local organisation. The Master retains a discretion to appoint but the issue has not been challenged since the decision in Fay's Case.[230]

7.4 Relevant Case Law

The two relevant cases in this area, were both decided in the early 1900's.[231] In both cases the Master of the Court of Faculties had to determine the question of whether to appoint the applicants as notaries for Victoria where the Society opposed the application.

7.5

In Bailleau's case[232] the Society opposed the application on three grounds. The first ground was that there were sufficient notaries in Victoria. To counter this, Mr Bailleau presented evidence to the Master to the effect that there was a need for further notaries in Victoria because of the establishment of the Commonwealth of Australia and the development of the City of Melbourne. In relation to the first matter the Master found that there was a need for further notaries based on the population growth of Melbourne at that time:-

"The question of the proper number of notaries for any particular place is always a difficult point to deal with. The first and controlling consideration must be the convenience of the public.........The first question here, therefore, is whether I am so completely satisfied that the number of notaries in this State is already adequate as to refuse the application on that ground. No general rule can be laid down, but each case must be judged by its own circumstances."[233]

7.6

The second point argued by the Society was that Mr Bailleau was not a solicitor and therefore not duly qualified to practise as a notary. In relation to the second point the Master found that: -

"As a matter of fact, every notary admitted for the State of Victoria during the last twenty five years has been a solicitor. While this seems to me to be a wise practice, and one which is for the protection of the public and to be maintained, I am not prepared to say that under no circumstances, however exceptional, will this Court ever depart from it. What I do say is that in order to induce me to depart from it the case must be very exceptional, and I must be satisfied that the applicant's ability to perform the duties of a notary, of which the fact of being a solicitor is taken as evidence, has been established in some other way. I think this is such a case".[234]

7.7

The third point raised was that Mr Bailleau's official position as an assignee under the then Insolvency Acts of Victoria would give him an unfair advantage over other notaries. In relation to the third argument the Master found that where there was a conflict of interest between the applicant's role as assignee and as a notary, another notary must be used. However, the Master also said: -

"I do not think I ought to refuse to (make the appointment) which independently has been shown to my satisfaction to be for the public benefit".[235]

7.8

In Fay's case[236], the Society again opposed the application on the ground that there were sufficient notaries in Victoria. Mr Fay was a solicitor. The Master approved Mr Fay's application on the basis that there was ample evidence to support it. The Master appointed Mr Fay in opposition to the views of the local Society. However, he indicated in his judgment that he attached great weight to the views of the Society of Notaries. He was reluctant to ride roughshod over its views. He took the view that fresh applications should not be encouraged unless they were strongly supported:-

"I want to say at once that I attach great weight on questions of this kind to the view of the Society of Notaries concerned. The Court has again and again been assisted by notarial societies both in the colonies and in England and I think it would be quite wrong to refuse to give great weight to the view of those societies. Of course they are in the nature of trade unions, and their interest is on the side of limiting the number of notaries. But they have always dealt with the questions which come before me in a way that shewed considerable public spirit, and I find their assistance of great value. Therefore I am not at all inclined to ride roughshod over the views of the Society of Notaries in Melbourne. I confess, however, I find it difficult to believe that the number of notaries public in Melbourne is very much below what the interests of business require. I think that if that were so we should hear of it, probably in the Faculty Office or through some other public channel, and it would become known. In Mr. Bailleau's case I did not mean to say that the number of notaries public should be restricted to the number then in existence with the addition of the appointment I then made, and I do not say so now. I think an appointment should be made having regard to the evidence in this particular case. Mr. Fay must be appointed. I am bound to give weight to the evidence adduced in support of his application.

But I desire to say with regard to the future that I do not encourage applications to augment the number of notaries public in Melbourne at the present time. I do not say that no appointment would be made - it would depend on the evidence - but the application would have to be very strongly supported, as Mr. Fay's application has been. But I desire to say that I do not encourage fresh applications, as I do not think there is any urgent need, for further appointments, and I wish that to be publicly known. Unless the application was supported very strongly indeed, the probability is that I should not see my way to accede to it if the effect were to add to the number of Melbourne notaries public." [237]

7.9

The Committee considers that the following principles may be drawn from the two cases. These are:-

• The first and controlling interest in making an appointment is the convenience of the public. In both cases, the Master examined the business needs of Melbourne as a way of determining whether the appointment should be made;
• The Master indicated in Bailleau's case that he would need to be satisfied that in cases where the applicant was not legally qualified, the applicant possessed other qualifications which established suitability for appointment. The Master found that the fact of being a solicitor was evidence of ability to perform the duties of a notary;
• The Master placed great weight on the views of the local society. and Only in exceptional cases would the Master decide a matter contrary to the local society's view.

7.10

In the Matter of the Public Notaries Act 1985 Applications of Fitzpatrick and Partington[238] was a case decided in NSW, which dealt with the appointment of two notaries pursuant to the provisions of the Public Notaries Act 1985 (NSW). The Society in NSW objected to the applications. The grounds of objections in both cases were that neither Fitzpatrick or Partington were "solicitors in private practice". Mr Fitzpatrick at the time of filing the application was a legal manager for a company. He did however hold a practising certificate and was required to make contributions to the Solicitors' Fidelity Fund. By the time the matter came before the Court, Mr Fitzpatrick was a senior associate with a firm of solicitors.

7.11

Mr Partington, at the time of making the application was employed as corporate secretary and legal counsel with a bank.

7.12

The NSW Society's main arguments can be summarised as follows:-

• "applicants needed to hold a full practising certificate in order to provide adequate cover for their notarial acts;
• a notary should be engaged and available to the public when the need arises and should not be constrained by his/her own employment obligations;
• a notary should not only be seen to be independent but must also be independent, for example it would be inappropriate for an employee of a bank to be seen to act as a notary in the protestation of bills of exchange to which that bank is a party;
• the Society sees the need for appointment to be made on a geographic basis."[239]

7.13

Powell J, heard the matter and dealt with the terms of the Act and did not accept the Society's arguments on the basis of the interpretation he gave to the Act. His Honour said:-

"Although the Act seems, thus, intended to constitute a code on the subject of notaries, the fact that it provides (s 4 and s 7) for the continuation in office, and the continuing right to practise, of notaries appointed by the Court of Faculties would seem to suggest that, contrary to what may otherwise have been the case (see eg, Garner's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1987) 163 CLR 236 at 243-44) it might be legitimate to have regard to practices which had grown up, in the past, in relation to the appointment of notaries by the Court of Faculties. However, no evidence has been tendered by the Society which would show that the practice of the Court of Faculties, when dealing with applications for the appointment of notaries for this State, was as the Society would seem now to wish it to be indeed, the decisions of the Master of Faculties in Bailleau v Victorian Society of Notaries and Fay v Society of Notaries for the State of Victoria, would seem to indicate that, at least so far as applications for the appointment of notaries for the States of Australia were concerned, it was not regarded as necessary that an applicant have been admitted as, or be practising as, a solicitor, and, secondly, that, although regard may well have been paid to the views of the local Society of Notaries, the Court of Faculties did not always give effect to those views.

With respect to those who hold another view, it seems to me that, once the questions of personal probity, legal qualifications, knowledge of notarial practice, and general competence are satisfactorily answered, the only area within which there is room for some broad general principle to operate, is that suggested by the "public" nature of the office, in which respect, so it seems to me, the evidence tendered in support of an application should show that there may well be some advantage to the public in the making of the appointment. Translated into the context of "the corporate lawyer", which provided the basis for the objections originally lodged by the Society, it seems to me that there can hardly be said to be any advantage to the public likely to follow from the appointment of a purely "in-house" lawyer -- as Mr Fitzpatrick seems, at the time of the filing of his summons, to have been -- but that there could well be some advantage flowing to the public if "the corporate lawyer" application -- as was, and is, the case with Mr Partington, -- had, and exercised, a right of private practice, in an office that was readily available to members of the general public who wished to use his services."[240]

7.14

The Committee considers that the judgment in the Matter of Fitzpatrick and Partington endorses the points the Committee has drawn from the two earlier judgments. The NSW decision highlights the need to show public benefit in a wider sense than mere geography.

In the absence of legislation, the Society has administered the appointment of notaries in Victoria. Presently, the procedure for becoming a notary in Victoria is twofold. The applicant applies to the Society indicating a desire to become a notary. The applicant requests the Society's support for the application to the Court of Faculties. If the application is supported, the application may be made to the Archbishop of Canterbury through the Court of Faculties. It is necessary to retain instructing solicitors in London to appear on the applicant's behalf so that appropriate documentation can be lodged with the Court of Faculties. The Society has indicated that the cost may be between $1,500 - $2,000.[241]

7.16

The Society provided to the Committee the standards it has formulated to determine whether to support an application.[242] The standards formulated by the Society are threefold:-

• There must be demonstrated public need for the appointment of a notary public in the vicinity in which the applicant practises as a solicitor;
• Unless there are exceptional circumstances, the Council will not support any application for the appointment of a practitioner as a notary public unless the applicant has practised as a principal solicitor in Victoria for a minimum of ten years;
• Each applicant must supply the names of two members of the legal profession as independent referees to whom the Council may refer if necessary.

7.17

The Society submits that these are objective standards and their application assists in maintaining the integrity and international credibility of Victorian notaries.[243] Before examining the issues raised by the various parties, the Committee considers that it would be useful to look at the practice of other Australian jurisdictions where legislation governing notaries has been enacted.

Last update 19/8/99 ©Parliament of Victoria