ANZCN Comment – Fraudulent Notarial Acts and Certificates

The Australian and New Zealand College of Notaries has circulated a Comment concerning problems and dangers that some practitioners encounter when they are presented with spurious or nonsense documents for notarisation.

The Commentary encloses an example of a document purporting to be a “Notarial Protest For Non-Payment – Non-Performance of the Bill’s Irrevocable Prerogative Writ of Commands” which is allegedly drafted pursuant to the Bills of Exchange Act 1909 (Cth). Prof. Philip Hamilton, who prepared the Commentary for the College, urges notaries to take care when they find themselves being asked by their clients to sign and seal documents that appear to be suspicious.

From the outset, there is in fact no such creature as a “Prerogative Writ of Commands” (ANZCN Comment at ¶¶ 2, 10(g)). Moreover, while the Bills of Exchange Act applies to defined bills of exchange, inland bills do not require to be protested; yet the suspicious document that the notary was asked to notarise appeared to concern parties all of whom appear to be residents within the Commonwealth. Only foreign bills of exchange can be protested, and within 48 hours after being noted (ibid at ¶¶ 4-7).

Another thing that should alert the notary to the potential danger of executing and sealing a suspicious document is that it is drafted in a manner which suggests it is the act of the notary himself. Prof Hamilton notes that “[b]y virtue of this, the notary is not merely attesting that [the client] has signed it, but is adopting it as [his], and is asserting the truth and accuracy of its contents” (ibid at ¶ 1).

Furthermore, the suspicious document, which was not drafted by the notary to whom it has been presented, purports to narrate a series of alleged factual events, which veracity the notary cannot possibly be aware (ibid at ¶ 11). In addition, the suspicious document includes further argumentative and unprofessional text which appears to go to the powers and authority of certain persons addressed in the narrative; this is then followed by “the crunch”: a claim for payment (ibid at ¶ 12).

Prof Hamilton identifies that “the entire thrust of this document is to grab onto the coattails of the Bills of Exchange Act because it uses the grossly misunderstood term ‘protest’ in relation (solely) to foreign bills of exchange” (ibid at ¶ 14) but that Public Notaries:

“[S]ould understand that protests of bills of exchange and ships’ protests are merely antiquated methods of recording a sequence of events so that, in any proceedings that arise from the facts, there is immediately available an authoritative statement of the essential facts.” (ibid at ¶ 15)

The Commentary warns notaries that the use of similar documents in the United States has resulted in criminal prosecution of  the guilty parties as well as their advisers and that some of these have had lengthy prison terms imposed at sentencing (ibid at ¶ 16).

The fact that the suspicious document makes reference to yet another document, while that other document is not attached or exhibited (ibid at ¶¶ 8-10) should raise additional concerns in the mind of the notary. A question that should naturally arise is whether or not that other document in fact exists, or whether it is itself defective or spurious if it does exist. Prof. Hamilton concludes that:

It is, in our opinion, only a matter of time before documents such as the present come before the superior courts in Australia, at which point notaries who have permitted the malefactors to engage their services by preparing, signing and sealing such patently fraudulent rubbish will be inevitably found to have been instrumental in perpetrating the fraud, which traduces the fame and office of the notary public.” (ibid at ¶ 17)

In light of the dangers that may arise when a notary seals a document that may be nonsensical or fraudulent, especially where that document is drafted as if it were issued by the notary himself, the risk of a potential finding of professional misconduct against the notary is a very serious matter. Where the notary’s signature and seal attest to the veracity of the document being notarised, “[c]ritical appraisal of every document is vital” (ibid at ¶ 19).

NB: The above is a summary and interpretation of the Practice Note. For a complete copy of the Practice Note, readers are strongly encouraged to contact the Australian and New Zealand College of Notaries directly.

Additional Comment

In light of the issues described above, some questions that the notary may wish to ask his potential client before offering his services (in circumstances similar to those outlined in the College’s Commentary above) may be:

  1. Why does the client require the document to be notarised?
  2. Who prepared the document that is requested to be notarised?
  3. Has the client received legal advice in relation to the document to be notarised?
  4. Has the client received any other advice in relation to same, and if so, from whom?
  5. Where are the other documents which are referred to in the narrative?
  6. If the other documents are unavailable, why are they unavailable?
  7. Who is attesting or declaring to the veracity of the narrative in the document?
  8. Why does the client not prefer to swear or affirm an affidavit or statutory declaration in respect of the narrative?
  9. Are there any proceedings on foot, whether legal or administrative, in relation to the subject matter in or of the document to be notarised?
  10. If there are proceedings on foot or being contemplated, is legal counsel involved, and if not, why not?
  11. If legal counsel is involved, is he aware of the fact that notarisation of the document is being requested, if not, why not?

In the words of Prof. Hamilton, “[w]e stress yet again that the notary has no duty to sign whatever is put before […] him” (at ¶ 19).

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