What happens after your document is notarised? Authentication and Apostille in New South Wales

People who have not had any prior experience obtaining a Sydney Notary Public may find the process of notarising their documentation a little confusing. Often, a new client may think that getting the certification from the notary is enough to have their documentation recognised in a foreign jurisdiction (i.e. in a foreign court, tribunal or administrative body). With very few exceptions,* this is not the case. Depending on the country in which the notarised document is to be used, it will almost certainly require further steps before it is ready for presentation. Clients should therefore be very careful that they have followed all the steps in the process before sending their material to where it needs to be viewed or cited.

The Australian and New Zealand College of Notaries has published a very useful guide to notarial practitioners that outlines the basics of what happens after a document is certified and sealed in New South Wales. This is a valuable reminder to practitioners to either (a) properly inform their clients what they are supposed to do after their signature and seal is placed on the documentation, or (b) ensure that the practitioner himself takes the necessary steps to give effect to the notarisation. In essence, the guide provides for the following general information:

1. What is the Purpose of the Notarisation, and why does DFAT need to be involved?

The purpose of notarisation is to establish the authenticity of a document or item, or information contained in the document, or to take  Declaration or witness that a signature belongs to the person signing a document. However, because an overseas authority will have no objective way to ascertain whether a notary who notarises a document is indeed authorised to certify such a document or item, DFAT will be involved in the process by establishing the notary’s authenticity. A foreign court, administrative body or tribunal will accept that DFAT has the power to declare whether or not a notarial seal is genuine because DFAT has a record of all current notaries’ signatures and seals. When DFAT is asked to place an apostille or authentication on the document that has had the notary’s signature and seal applied, that apostille or authentication attests to the authenticity of that signature and seal. This is why it is essential for DFAT to be involved in the final stages of the notarisation.

2. How do I know whether my Document needs an Apostille or an Authentication?

Whether DFAT applies an apostille or authorisation will depend on the jurisdiction (counrty) to which the notarised document will be sent. Countries that have signed the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents (1961) will require the apostille. Generally, all other countries will require an authentication. The ANZCN suggests that these other countries will include China (PRC), Vietnam and most fo the states in the Middle East. It should be remembered that if a notarisation will need an authentication, there is a third step in the process: that document, after obtaining the authentication from DFAT, will then need to be taken to the diplomatic mission of the country it will be presented to, and there it will be receive legalisation.

3. What should I do to ensure that my Document is properly notarised?

Apostilles and Authentications can be obtained by sending the notarised document to DFAT along with a fee. At the date of this post, that fee is set at $80. The fee is payable to DFAT and not the NSW Public Notary. The fee includes binding and return by post, however, if the client wishes to have their documents returned by registered post or express post, a pre-paid envelope will have to be provided along with the document itself (this will not have the effect of reducing the fee payable to DFAT). Providing DFAT with the documentation can be done either “over the counter” by appointment or by post. Clients should allow the authorities a week to process the documentation before it is returned either to the client or the notary.

A Notary Public in Sydney may providing his signature and seal to the client’s documentation, or he may take it upon himself to follow any additional steps so that the documentation is ready to be sent overseas. Either way, the steps above will be essential to complete the task at hand. A notary may chose not to take the additional steps of securing an authentication or an apostille himself so as to keep the costs to the client to a minimum (notaries are entitled to charge for their time and pass on the costs of DFAT onto the client). However, in this circumstance, the client will therefore have to remember that the work of the notary himself constitutes only part of the process of notarisation and acquiring an apostille or authentication will become his own obligation. So that confusion and misunderstanding is avoided, the notary should properly advice and instruct his client what the circumstances require and the client should take heed of this advice before using the notarised document.

For more information about the process involved after the notary has applied his signature and seal to the document, see the following relevant sections:

* In some cases, the requirement of obtaining an apostille may not be necessary. There are Commonwealth countries where the apostille is not needed, such as the United Kingdom, New Zealand and Singapore. It is essential, however, to always check the Notary Public in NSW so that documents are not embarrassingly rejected when they are inspected, relied upon or otherwise used overseas.

Proper notarisation is essential if you want your documentation to be respected by overseas authorities. For more information about whether your material will need an apostille or an authorisation (and legalisation) see your local Sydney Notary so that proper advice can be provided to you. If the notarial act is not recognised by the relevant overseas body, consequences can include dire and long lasting damage to personal and business interests. A Notary in Sydney will be able to provide the necessary services to ensure that your document is treated in the appropriate manner.

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Notarial Acts and Intellectual Property

There is a concept known as “poor man’s copyright” where the creator of some work deals with the work in such a way that its date of creation or first use can be traced in the event that authorship may be disputed in the future by a third party. This is intended to evidence that the work was in fact created or used by the original creator or author before a third party claims to be the rightful owner or creator of the intellectual property.

A classic example is an author who mails a copy of his written work to himself and does not open the parcel; in the event that a third party plagiarizes the work or attributes its own authorship to it, the parcel can then be inspected: the date stamp along with the contents are then adduced as evidence that the work was first created by the original author at an earlier date. Unfortunately, the risk that this “evidence” can be easily manufactured or tampered with means that this kind of proof of first authorship is seldom held as conclusive evidence in support of the original author’s case.

However, it is not inconceivable that an individual may have some form of intellectual property and not be in a position to register it according to the ordinary processes associated with trade marks, trade secrets, patents or copyrights. This difficulty may arise because of momentary financial constraints or because he is still in the process of obtaining advice on the proper processes involved. Given the continued internationalisation of trade and commerce, it is easy too imagine that an individual may want to urgently create at least some basic protection over his intellectual property so that he can legitimise his claim of ownership if a future dispute were to arise before it was properly registered overseas.

In this situation, it is possible that a notary public could – depending on the nature of the intellectual property – provide his services so that the trade mark, trade secret, patent or copyright is notarised under a notarial certificate which would attest to the existence of the intellectual property at the date of the notarial act. It may be necessary for the public notary to make additional preliminary inquiries before the notarisation is provided. The certification would generally and ordinarily take the form of a declaration with any relevant exhibits, where that declaration is signed by the person seeking the protection of his property and witnessed by the notary.

This document, once it has the necessary apostille or legalisation applied, may be tendered before a foreign court, tribunal or administrative body as evidence of the facts as asserted in the declaration, however – and this cannot be emphasised strongly enough – the notarisation alone is no guarantee that the intellectual property is secured and protected under the legal provisions of the foreign jurisdiction. All that the notarial act would evidence is that a person appeared before the notary and asserted a claim, and the basis of that claim with respect to certain intellectual property, and a description of that property, only. The notarisation will not provide any further force to the individuals’ claim in the even of a future dispute.

It is therefore absolutely imperative that anyone seeking to have their intellectual property secured through the use of a notarial act or certificate not rest on this as the ultimate form of protection – it is no final protection and only provides a preliminary basis of a claim that could evidence original ownership over the intellectual property. The notarisation will at best be an interim form of protection before the trade mark, trade secret, patent or copyright is properly registered under the relevant IP legislation.

It should be further noted that notarial acts and certificates produced in common law jurisdictions, such as Australia, may not have the same authoritative force in other jurisdictions, such as those of latin states or civil law countries. While the local notarisation may provide persuasive weight behind a claim of authorship overseas, other administrative or legal processes will likely be necessary before the property is protected at law in that other jurisdiction.

Those who want to secure their intellectual property right should initially seek the services of a patent attorney or IP lawyer before making any decisions with respect to their personal or business assets.

The Notarial Act – An Instrument of Investment Security

Revista internacional del notario 119The following is a summary and commentary of a paper that appeared in issue 119 of Revista Internacional del Notariado by Lionel Galliez.*

As mentioned in our brief report concerning the publication of that issue, Lionel Galliez was the recipient of the André Ducret Award for the best scientific contribution to the notarial practice in the 2012 Congress of the Unión Internacional del Notariado (International Union of Notaries) for the presentation of his illuminating paper.

It should be noted from the outset that Lionel Galliez’s paper is drafted from the perspective of the civil law notary. He states that:

The notarial act does not influence the profit  that an investor will make, but it does help reduce and control the risks. Risk control thus forms the basis on which to assess what the notarial profession can offer investors and to distinguish it from the competing models proposed in traditionally Anglo-Saxon nations.” [p. 225]

Reflecting on a recent report from the French notarial profession, Galliez suggests that – based on an “economic analysis of the law” – the notarial profession “guarantees investors optimal legal certainty” [ibid.]. Galliez therefore embarks on a comparative analysis between the notarial framework of civil law and common law jurisdictions in relation to what they can offer investors business interests. His paper focuses on three types of contracts [p. 228]:

  • Sale of property;
  • Loan agreement; and
  • Lease agreement.

In light of the broad ranging contractual typology above, investors will encounter different kinds of legal risks which are associated with different kinds of agreements; those agreements will define the particular commercial investments with is being entered into and secured. Galliez states that:

Out of the different kinds of risks, a risk can be described as legal if the threat weighing on the investor results from a legal relationship. The notarial act only has a direct influence over that sort of risk, because controlling legal risks is the core business of notaries.” [p. 225]

Galliez’s analysis reveals that there are four basic legal risks that arise from the consequences of the following [p. 230]:

  • Loss of or delay in the collection of funds;
  • Increase in the costs born by an investor;
  • The depreciation in value of an asset; and
  • Reduction in the value of, or loss of, asset liquidity.

These risks will precipitate financial loss on the part of the investor, and the notarial profession (in civil law countries) can assist in mitigating or avoiding those risks because “the notarial act is much harder to contest than a private writing” [pp. 225-226]. What Galliez is suggesting here is that parties to a notarised agreement will feel more inclined to discharge their respective obligations and duties by reason of the fact that the agreement, once notarised, carries with it greater legal or evidentiary weight; in other words, it is “difficult, and even risky, for them to dispute the value of the instrument” [p. 226].

This is because, as a general proposition, the role and status of the notary public in civil law countries is greater than that of public notaries in common law countries: a civil law notary has what may be perceived from the common law perspective as almost a quasi judicial function; a notarised act, although it certainly can be contested in legal proceedings, is in-and-of itself strong evidence of a fact or proposition. Galliez states that “this quasi-incontestability [of the notarial act in a civil law country] is constituted ab initio, without the need to confirm it by the posteriori intervention of a judge” [ibid.]. Furthermore:

Probative value secures transactions as it makes it easier for the parties to make reasonable forecasts. It reduces  the risks of disputes and is thus a factor of trust which encourages the parties to enter into agreements. The security it provides helps dispel the reluctance of people who fear that the terms of the exchange will be challenged after its conclusion.” [ibid.]

It appears from the text of Galliez’s paper that a notarised agreement in civil law countries is considered to be better evidence (in the event a dispute arises) than an agreement between parties itself. Galliez’s terms of reference is notable: “[t]he mere existence of the title deed [i.e. the notarised act] is a factor that adds value to the asset” [ibid.]. The intervention of a notary into the commercial bargain between parties therefore enhanses the trust  between the operative parties because the terms of the agreement being entered into are “checked” for “balance” and “effectiveness” by a profession that is “strictly regulated and controlled” [ibid.].

The contrasts between the notarial function in civil as opposed to common law countries becomes evident. The civil law notary is expected to provide legal and other advice that the common law notary may be reluctant or even professionally prohibited from tendering to his client. In contradistinction to the notary of the “Anglo-Saxon” jurisdictions, Galliez states that the civil law “notary’s role is not that or a mere attestator; he actively contributes to the effectiveness of the act he certifies” [ibid.]. The notary public in the civil law jurisdiction is effectively involved in the creation or amendment of the terms and provisions of the commercial relationship between the parties who seek his services.  As such, the notarial act will bring with it the legitimising force of an impartial authority whose intervention imports a higher level of probaty to the terms of that relationship.

* The paper, as published in the aforementioned journal, can be cited according to the following convention: Lionel Galliez, “The Notarial Act – An Instrument of Investment Security” Revista Internacional del Notariado No 119 (December 2013) pp. 223-230 (English Translation); Lionel Galliez, “L’Acte Authentique Notarial au Service de la Sécurité des Investissements” Revista Internacional del Notariado No 119 (Décembre 2013) pp. 215-222 (French translation); Lionel Galliez, “El Documento Notarial al Servicio de la Seguridad de las Inversiones” Revista Internacional del Notariado No 119 (Diciembre 2013) pp. 207-214 (Spanish translation). The above is a summary of some key facts and salient points of interest; for more information about the issues discussed here, readers are strongly advised to refer to the original paper, as published.

Additional Comment

The civil law notarial system described by Galliez does appear to have its advantages insofar as it creates an environment in which contractual relationships between parties are ‘reviewed’ – so to speak – by an impartial professional with a view to achieving an equitable relationship between the parties. Indeed, this could be achieved in common law jurisdictions by way of obtaining independent legal advice on a contract (and advice from any other professional, such as an accountant, financial planner etc.). However, in the event that a term of the contract was ever to be disputed in court, such legal advise would not confer the weight of a “title deed”, in Gallez’s language, vis-a-vis the contract, despite the high professional standards expected of legal practitioners by the public.

Obtaining legal advice in the common law jurisdictions does not have the same effect as having a contract notarised by a civil law notary. Galliez’s paper therefore provides a useful comparison of the notarial profession between civil and common law countries. The common law jurisdictions do not have a comparable institution that can provide the certainty and impartial assessment of proposed commercial transactions in the same way that might be available through the operation of a notary in civil law jurisdictions.

To this reviewer, the difference between the civil and common law systems appears to be a function of a different legal culture in which similar commercial interests are mediated – and the legitimacy of same is established – through different institutional norms: whereas in the common law system these interests are pursued in the private sphere and only become subject to external legal authority if and when a dispute arises between parties, the civil law jurisdiction seems to favour a paradigm whereby private interests are ‘legitimised’, as it were, through the intervention of an external quasi-legal authority before duties, obligations and responsibilities inter partes in fact arise.

For more information on what a Sydney Notary Public may offer to a local or overseas business that wants to secure its commercial interests, see our section on Services Offered.  Notary Public in Sydney may, in some situations and depending on the location of the client or his business, be able to visit a client’s office to provide notarial services. For more information on the extent of our mobile notary, see our brief on Availability. More information for potential clients can also be found at Client Conferences and Distance Instruction as well as Foreign Language Documents.

International Wills and Foreign Language Documents

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International wills might become a more common feature in estate planning in Australia. This is because the growing body of foreign born Australians will translate into a growing body of individuals who may have foreign property and may therefore wish to draw up testaments that are enforceable here as well as overseas. The internationalisation of trade and commerce will also see an increase of Australians who have acquired property and assets located outside Australia, and this too will increase the likelihood people wanting to draw up international wills.

For these reasons, it may be prudent that those wishing to have their property disposed of – in a particular way – after their passing, might want to consider having a notarised international will signed and witnessed. This will ensure that their wishes and directions as to that property are respected after their death.

Our summary of a recent practice note outlines what the international will actually is and how it can be executed with the assistance of a Public Notary. Those who have wills drafted in a foreign language need not feel that their will or testament cannot be notarised by a local Sydney notary. As explained in our section on foreign language documents, even an international will drafted in an alphabet that does not use the English alphabet, such as Chinese (Cantonese or Mandarin) Indian (Hindi, Punjabi, Bengali, Gujarati) or Cyrillic, Japanese, Korean etc., or any other European language, all these can indeed be notarised subject to the cautions and reserved rights of the notary.

The new regime established under the legislation (which sets out the form of an international will to be notarised by a public notary) is not however mandatory. Nevertheless, the new law brings into effect the international agreement which seeks to facilitate the administration of estates which are located across borders. It is encouraged that those who believe that they may benefit from having an international will executed should make further inquiries as to its practicality.

If you are considering the production of an international will that will cover your local and foreign property and assets, a Notary Public in Sydney can assist in certifying the document so that it can be used in a foreign jurisdiction (court, tribunal, administrative body etc.). Depending on where you are located, a notary may be in a position to come to your home or office, for example in Chatswood, Epping, Mosman, Neutral Bay, Cremorne, Balmain, Roselle or the greater Sydney Central Business District (see further our section on Availability). For more information about other Sydney locations where our Notary Public can offer his services, or to get a quote for our services, we can be contacted on the details provided on this website.

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).