Public Notaries Act 1997 – Section 10 – Appeals
The Public Notaries Act 1997 (NSW) governs the process under which a notary public is approved and appointed in New South Wales. Earlier sections in this Act outline the criteria, rules and regulations which the Admissions Board will consider operate under for this purpose. Section 10, which is the last section in Part Two of the Act, creates a right of appeal for candidates which are refused approval for appointment by the Supreme Court. The section is broken down into four subsections and reads as follows:
(1) If the Admission Board refuses to approve of a person as a suitable candidate for admission as a public notary, the person may appeal to the Court against the refusal.
(2) The appeal is to be dealt with by way of rehearing and fresh evidence or evidence in addition to or substitution for the evidence before the Admission Board may be given.
(3) A Judge is disqualified from hearing an appeal under this section if the Judge was a member of the Admission Board when it made the decision to which the appeal relates.
(4) On an appeal under this section, the Court may make such order as it thinks fit.
A candidate whose application for approval to be appointed by the Supreme Court is not successful, can under subsection 10(1) appeal that refusal. Under subsection 10(2) that appeal will be by way of a rehearing with fresh evidence. This means that should the failed candidate believe that the Supreme Court could be swayed to reverse the Board’s decision based on some information which the Board was not initially privy to, that new information can be put before the Court for its consideration. The rehearing will take into account all the information that was before the Board.
The use of the work “substitution” in subsection 10(2) seems to indicate that the Court can nevertheless consider that some information which the Boar took into consideration when making an adverse holding against the candidate can be discarded if the candidate appealing the decision can convince the Court that some other information should be taken under consideration instead for the purposes of the appeal.
Subsection 10(3) ensures that there is no conflict of interest and that a Judge on appeal is not effectively hearing an appeal from his own decision. This subsection is intended to reinforce concepts of procedural fairness. The last subsection, 10(4) creates a plenary power for the Court to make whatever decision it believes is appropriate under the circumstances.
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