public notary is an officer whose job is to attest, witness and certify deeds, affidavits, statutory declarations, wills, contracts and other documents.
In WA public notaries are divided into 2 categories – general public notaries and district public notaries. General notaries work in the suburbs/districts of Perth or Fremantle while district notaries work in their respective districts.
History of Public Notaries
Notaries Public (also called “notaries” or “public notaries”) hold an ancient office which can trace its origins back to the Roman Empire, when they were called “notarius” or “tabellio”. They are easily the oldest continuing branch of the legal profession and are known all over the world from England to the rest of the European Community, USA, Chile, Russia, Japan, China and of course Australia.
They first appeared in the English legal system sometime prior to 1279 when the Pope authorised the Archbishop of Canterbury to appoint notaries.
What makes them different from others who prepare or witness documents is that their acts will be recognised and accepted by foreign courts and authorities, whereas acts performed by non-notaries will generally be ignored. That is a notary’s seal is valid while a mere justice of the peace will not in foreign countries.
Wax seals with individualized engravings or symbols were used as signatures at the end of written agreements. In later centuries, ribbons were woven into holes placed in the margin of multiple page documents to tie the pages together. Wax seals were placed over the knots to ensure no pages were added nor removed. This was the birth of the notary seal and certificate. Today a mere signature is enough.
A public notary in Western Australia is governed by the Public Notaries Act 1979 (WA). Appointments are made by the Chief Justice of the Supreme Court of Western Australia.
Functions of a Public Notary
As described above the public notary attests and prepares legal documents, they can also attest and prepare foreign documents and translate them into English and vice versa.
The public notary attests his work through his signature or official seal.
Public Notaries can charge a fee for their services and generally this amount to their hourly rate.
Basically, the most important reason for notarizing anything is to protect against fraud. The notarization is effective, valid and binding as long as the document it appears upon remains effective and valid.
Appointments should be made to see Mr Raymond Tan if there is any need for him to notarise documents on the reader’s behalf.
On the lighter side
A huge difference in my client’s defense
The day after a verdict had been entered against his client, the lawyer rushed to the judge’s chambers, demanding that the case be reopened, saying: “I have new evidence that makes a huge difference in my client’s defense.”
The judge asked, “What new evidence could you have?”
The lawyer replied, “My client has an extra $10,000, and I just found out about it!”
* * * * * * * * * * * * * * *
A university committee was selecting a new dean. They had narrowed the candidates down to a mathematician, an economist and a lawyer.
Each was asked this question during their interview: “How much is two plus two?”
The mathematician answered immediately, “Four.”
The economist thought for several minutes and finally answered, “Four, plus or minus one.”
Finally the lawyer stood up, peered around the room and motioned silently for the committee members to gather close to him. In a hushed, conspiratorial tone, he replied, “How much do you want it to be?”
* * * * * * * * * * * * * * *
Two smart, attractive, well-educated young law graduates, Sally and Edith, were competing for a prestigious job. As part of the job interview each was asked why she wanted the job. Edith answered that she wanted to work for a firm with a reputation of being concerned with truth and justice. When it was her turn, Sally simply opened her purse, took out a rather thin wallet and laid it on the senior partner’s desk. “I want to fatten it up as fast as possible,” she said.
Sally got the job.
What is Spam?
Spam is referred as “unsolicited commercial electronic messaging” in the newly enacted Spam Act 2003 (the “Act”).
Firstly, if the message is sent without prior consent, then it is considered as unsolicited.
Secondly, the message must be of a commercial nature.
Finally, “electronic messaging” doesn’t only mean junk emails; it also refers to instant messaging or SMS etc.
THE SPAM ACT 2003
Electronic messaging is an important means for business promotion as it allows simple and low cost communication. Nevertheless, the increasing volume of Spam, has interfered with the efficiency of electronic messaging.
In response, the Federal Government passed the Spam Act 2003 last December. The Act manifestly prohibits the sending of Spam. The aim of this Act is to preserve legitimate commercial communication activities and to encourage the responsible use of electronic messaging.
The Act imposes heavy financial penalties. If a business is found to be in breach of the Act, it is liable for a fine of up to $220,000. If the business re-offends, it may be subject to a maximum penalty of $1.1 million.
The penalty provisions will come into effect from 10 April 2004.
The Act covers commercial electronic messages :
- originating in Australia that are sent to any destinations and
- originating overseas that are sent to an address accessed in Australia.
HOW TO COMPLY WITH THE ACT
There are three simple steps to comply with the Act, namely:
- obtaining the consent of the recipients,
- providing the identity of the senders and
- providing a proper unsubscribe facility for recipients of the message.
Commercial messages should only be sent when the senders have consent from the addressee. It can be either express consent or inferred consent.
Express consent can be given if a person specifically requests messages from the sender.
Consent may be inferred when the intended addressee has not directly asked for messages, but it is still clear that there is a reasonable expectation that the messages will be sent. The conduct of the addressee and the relationship between the senders and addressee are both very useful in determining whether the consent can be inferred.
Examples of where consent may be inferred from conduct are cases:
- where an addressee has provided their electronic address when they purchased goods and services.
- An addressee has provided their electronic address with the understanding that it would be used in day-to-day transactions, such as online banking or business and there is expectation that the email address may be used for additional communications, such as notification of related services or product.
- An addressee has published their electronic address in their own advertising. You may be able to send electronic messages to the addressee if the messages are related to the addressee’s intention of the published advertisement. For instance, an electrician advertises his email address. Under the Spam Act 2003, the electronic messages sent to him are not spam if they are related to electrical work. However if the advertisements state that “no spam” is to be sent to that address, then it cannot be inferred that the electrician has consented to receiving Spam messages.
Consent may also be inferred if there is an existing relationship between the sender and the addressee. Examples of where consent may be inferred from a existing relationship are:
- People who have purchased goods or services which involve ongoing warranty and service provisions.
- Magazine and newspaper subscribers.
- Registered users of online services.
- Financial members of a club.
- Bank account holders.
- Employers and employees.
A word of warning though. You cannot say that there is an existing relationship between your client and yourself, if there was a one off transaction. Eg:. If you sold a client a cup in a souvenir shop, you cannot say that your client has consented to receiving ongoing information regarding your shop.
The Act also bans the use of address-harvesting software for the purpose of sending spam. It is always advised that a sender should seek confirmation from an intended addressee whether the sender has the addressee’s consent.
The senders of commercial messages must provide sufficient information about their business identification and contact details. This can be done by amending templates that are used for emails or electronic messages.
If a sender uses another organisation ie., a third party, to send commercial electronic messages on the sender’s behalf, the sender must include accurate information about the sender’s business. The third party’s business information is not required under the Act.
The information for identifying the business and the business contact details must be reasonably likely to be accurate for a period of 30 days after the day on which the message is sent.
The sender must provide addressees the choice to unsubscribe from future commercial electronic messages. The facility needs to be easy to find and to use.
The unsubscribe facility must be reasonably likely to be functional for a period of 30 days after the day on which the message is sent.
Under the Act, a request to withdraw consent will be considered to have taken effect after five working days from the date on which the request was sent. Any commercial electronic message sent after the five day period may be considered to be in breach of the legislation.
THE AUSTRALIAN COMMUNICATIONS AUTHORITY
The Australian Communications Authority is responsible for enforcing the provisions of the Spam Act.
The ACA may choose to issue a formal warning, infringement notices, or a court action in relevant circumstances.
For more information on the Spam Act and how to comply with the Act, please contact our office. We will endeavour to provide help.
Comments from Tan and Tan Lawyers
With the implementation of the new Spam Act, it is hoped that we will all receive less SPAM. It is our belief that an addressee who does not unsubscribe from our mailing list after having received a number of emails from us prior to the implementation of the Spam Act is considered to have consented to receiving our newsletter. If that belief is wrong, please tell us immediately.
All of our newsletters include a functional unsubscribe facility, including email, telephone, fax and office address to allow the communication of the addressee’s wishes to cease receiving correspondence from Tan and Tan Lawyers.
Any request to be removed from the Tan and Tan Lawyers email database will be acted on upon receipt of that advice, whether that advice is by email, fax, telephone or mail.
We hope you continue to receive our newsletters as we believe it provides a valuable yet free service to our clients and friends.
On the lighter side
Was He Dead?
An attorney, cross-examining the local coroner, queried, “Before you signed the death certificate had you taken the man’s pulse?”
“No,” the coroner replied.
“Well, then, did you listen for a heart beat?”
The coroner answered, “No.”
“Did you check for respiration? Breathing?”, asked the attorney.
Again the coroner replied, “No.”
“Ah,” the attorney said, “So when you signed the death certificate you had not taken any steps to make sure the man was dead, had you?”
The coroner rolled his eyes, and shot back “Counselor, at the time I signed the death certificate the man’s brain was sitting in a jar on my desk. But I can see your point. For all I know he could be out there practicing law somewhere.
You are the star witness!!!. How to make sure you do not put your foot in your mouth.
What is a subpoena?
A subpoena is a court document ordering you to attend Court at a specified date and time to give evidence as a witness. Sometimes, a subpoena requires you to attend Court to produce documents in your possession.
What to do when you receive a subpoena
It is compulsory for you to attend Court at the appointed time and place and you are to be present until the case is completed. If you fail to turn up, you can be charged for contempt of court and may be fined or imprisoned.
Upon receipt of the subpoena, it is prudent to contact the firm of solicitors that caused the subpoena to be issued on you. The lawyer who issued and served the subpoena on you will certainly want to take a sworn statement from you. You may discuss the case with him and the type of questions he proposes to ask you in Court.
If you cannot speak English, be sure to inform the lawyer so that he can make provision for an interpreter to be present in Court.
Giving Evidence in Court
Your duty is to tell the truth, the whole truth and nothing but the truth to questions put to you by the lawyers, Prosecutors or the Judge.
What to wear
You are expected to dress neatly and decently.
In all cases, witnesses have to wait outside the Court until he or she is called to give evidence. Upon being called, he proceeds to the witness box. There, a Court official will ask whether he intends to give evidence on oath. For example: If you are a Christian, you may swear on the Bible “to tell the truth, the whole truth and nothing but the truth, so help me God.”
In the Local Court, you address the Magistrate as “Your Worship.”
In the District and Supreme Courts, you address the Judges as “Your Honour.”
The Court proceedings can be slow and time consuming. What you say in evidence is usually recorded down by the parties and the Judge. So be sure that you speak slowly, clearly and always look at the hand of the Judge to see if he is catching up with your evidence.
There are three stages in the giving of evidence from the witness box:
- Examination in Chief:
Firstly, the party that called you to come to court will put you on the stand and ask you to give evidence. This part of the evidence is called “examination-in-chief”. You will give the evidence after stating your name, occupation and address. You sometimes hear lawyers objecting to evidence by claiming it is “leading evidence”.
This is an example of what is termed “leading evidence”.
The lawyer who is examining you at the examination in chief stage wants you to tell the court what emotions were experienced by you when you were involved in the car crash.
He can only ask you the following question: “And when the car crashed, what did you feel.??”.
He is not allowed to say” And when the car crashed, did you feel pain in your neck.???”. By phrasing the question in that manner, he is leading you to say what he wants to hear.
Judges do not allow that type of question as it is unfair to the opposing side.
- Cross Examination.
After the Examination in chief, the opposing lawyer gets to test the veracity of your evidence. The opposing party will then proceed to ask you questions called “cross-examination”. The purpose of cross-examination is for the opposing side to put his client’s version of the facts to you. Those facts may be completely different from what you had testified. Don’t be alarmed or upset. If you disagree with the version put across, you should just politely say so.The purpose of cross examination is for the opposing lawyer to try and prove that you have been untruthful or that you may have been mistaken in the delivery of your evidence.
A skilful cross examiner makes the difference between a good lawyer and a mediocre one. During cross examination, the rule of “leading evidence does not apply”.
In fact it is a usual method of cross examination to use leading evidence to try and confuse the witness or to test the truthfulness of the witness.
Take for example, the car incident mentioned above. At cross examination, I may ask the witness the following question:
“After the crash, you did not really feel any pain in your neck did you? A witness who has earlier claimed to have been hurt and who is not alert at the cross examination may just agree thereby throwing in doubt the evidence.
After a witness’s evidence has been torn into shreds by a skilful cross examiner, the witness gets a chance to correct his story. The lawyer that called you may want to ask you further questions to clear up matters arising from the cross-examination. This process is called “re-examination”. The purpose of re-examination is basically to allow the witness a chance to re-affirm his story or clarify any errors made when he was questioned at cross examination.
Using the same example above. If the witness while being cross examined had said that he did not have any pain in his neck after the crash, he will be asked the following question by the lawyer who first examined him at the examination in chief stage.
” You said at cross examination that you did not feel any pain after the car crash, do you want to clarify what you meant?” At that stage, hopefully, the witness can say that he was mistaken and that he did feel some pain after the crash so as to clarify his evidence.
During all these giving of evidence, the Judge sits like an umpire and decides whether the questions are fair, leading or whether the questions should be answered or not. He may also ask you questions to clarify matters which may be important to him and which may help him to understand your evidence.
When you are in the witness box giving evidence
- Keep cool and calm. Speak clearly and slowly.
- Always give a short and precise answer. Do not exaggerate. Sometimes if you need to explain your answer in greater detail, ask the Judge for permission to do so.
- If you do not know or cannot remember, say so. Do not guess.
- Never let the opposing lawyer fluster you. It is his job to get you to say something to advance his client’s case.
- Just tell the truth, the whole truth and nothing but the truth. If you lie in Court, you can be charged with perjury and be fined or imprisoned.
- If you do not hear the question, always ask the questioner to repeat the question. If you do not understand the question, ask for it to be explained.
- Do not be sarcastic or make jokes.
After giving evidence
After you have been re-examined, with the Court’s permission, you may leave the witness box. Once outside, you are not allowed to talk to other witnesses.
TO CUT A LONG STORY SHORT:
I was involved in a 3 day trial last month. My case was proceeding very well as during cross examination of one of the defendants, I had scored several major points which went against the witness’s credibility. I would say that 40% of the witness’s version of events had been torn to shreds by the cross examination she had undergone.
Although the case was going well for my client, my client suggested that the matter settle out of court by the defendant paying my client “X” amount of money. That offer was declined by the defendants.
The second defendant then had his turn in giving his evidence. As the 1st defendant had already given his evidence, he was allowed to sit in court to hear the evidence of the 2nd defendant.
I tore into the 2nd defendant and was again scoring very important points in respect to his credibility and his version of events.
Half way through my cross examination, the judge stopped the trial. Apparently, the 1st witness who was sitting behind me in court had been trying to pass hints to the 2nd defendant in an attempt to assist their case. The judge asked the 1st defendant to stop making faces and passing hints to the 2nd defendant.
Suffice to say that at that stage, both defendants knew that their case was virtually lost as they had totally lost any credibility with the judge by their actions.
The matter was settled for “X + Y” amount of money as our case had improved significantly as a result of the cross examination.
Moral of the story:
It is always easy to be a truthful witness. Telling lies and covering them up is harder than telling the truth as we all know that one lie leads to another.
On the lighter side
Was He Dead?
An attorney, cross-examining the local coroner, queried, “Before you signed the death certificate had you taken the man’s pulse?
“No,” the coroner replied. “Well, then, did you listen for a heart beat?”
The coroner answered, “No.” “Did you check for respiration? Breathing?”, asked the attorney. Again the coroner replied, “No.”
“Ah,” the attorney said, “So when you signed the death certificate you had not taken any steps to make sure the man was dead, had you?”
The coroner rolled his eyes, and shot back “Counselor, at the time I signed the death certificate the man’s brain was sitting in a jar on my desk. But I can see your point. For all I know he could be out there practicing law somewhere.”
Am I Really Liable Because I Signed That Offer?
Contracts – What is an Offer and what is an Acceptance
Countless cases have been reported in law books in respect of this very basic but crucial legal question.
The question is “When is a contract formed?”
Essentially, a contract is formed when an offer is made by one party (the offeror) and is accepted by another party (the offeree). By using this analytical framework of offer and acceptance, we are able to determine when a contract is formed. For example, if you wish to sell your boat for $3 000 to X, you can make him an offer. If X accepts the offer to purchase your boat for $3 000, then a contract is formed on acceptance. Once the contract is formed, you are contractually obligated to sell the boat to X, and X is contractually obligated to pay you $3 000.
Although helpful, the use of offer and acceptance as a means of determining when a contract is formed is not always appropriate. For example, if you purchase from an automatic vending machine, there is no offer and acceptance as illustrated above. Other examples include auction sales, self-service shops and reward offers.
Making a valid offer
It makes sense that an offer must be communicated to the offeree. If you wish to sell your boat to X, you do not make a valid offer until you have communicated the offer to X. It is not valid to make an offer in a way that deems silence by the offeree as acceptance of the offer. For example, it would not be valid to offer to sell your boat to X and say that if you do not hear back from X, you will deem that they have accepted your offer to sell your boat.
Withdrawing an offer
An offer can only be withdrawn prior to acceptance, but a withdrawal will only be effective when it has been communicated to the offeree. For example, if you have made a valid offer to X, but have been subsequently approached by Y who has offered to pay more than X, although you can validly withdraw the offer from X, you must do so before X accepts your offer. This will only be valid, however, if the withdrawal is communicated to X.
Making a valid acceptance
For an offer to be validly accepted, the offeree must both assent to the offer and promise to perform their obligations under the contract. For example, for X to validly accept your offer, s/he must assent to the offer and promise to pay you the proposed $3 000. Generally X must communicate his acceptance to you, but you may discard with this requirement.
An agreement may also be inferred through the conduct of the parties if the conduct is suggestive of mutual assent to the contract. So if X enquires into registration of the boat in his name and organises for the boat to be picked up, it will most likely be inferred that there is a contract between you and X.
When is an acceptance of an offer not an acceptance
An acceptance has to be unconditional, as a conditional acceptance is a rejection of the offer and acts as a counter-offer. This is important, as once an offer has been rejected, it cannot be revived. So if Bill replies by saying that he will buy your boat for $3 000 if you throw in the boat trailer, that will be a counter-offer which has the effect of rejecting your original offer. In this case, if Y subsequently offered to purchase your boat for $4 000, you can sell to Y as your offer to X had been rejected and cannot be revived. If X wishes to revert to your original offer, he may not do so. If Y did not make a more attractive offer, however, and the request for the trailer is reasonable, you can accept the counter offer and a valid contract will be formed.
An offer must be accepted by the person to whom the offer was made. This means that if you offered to sell to X, X’s friend, Z, could not accept the offer after hearing about it from X.
An offer must be accepted within the time stipulated, or if there is no time stipulated, within a reasonable period of time. If you required an acceptance from X within the week, if X purports to accept in a fortnight, the acceptance would not be valid in relation to that particular offer.
Things to look out for
You will be amazed how often we represent car yards that wish to sue a buyer for failing to proceed with an offer to buy the car that they agreed to buy and for which a contract has been signed. Essentially, the buyer is asked to sign an offer after they have viewed the car.
The buyer is not aware that the offer that they are signing, will, when countersigned by the car yard’s manager, constitute a valid contract.
Therefore , it is always advisable not to sign any documents until you have sought legal advice from a lawyer.
This is especially so when it comes to buying homes or businesses. You have to be very clear as to when an offer is made or accepted.
On the lighter side
The devil’s offer
The devil visited a lawyer’s office and made him an offer. “I can arrange some things for you, ” the devil said. “I’ll increase your income five-fold. Your partners will love you; your clients will respect you; you’ll have four months of vacation each year and live to be a hundred. All I require in return is that your wife’s soul, your children’s souls, and their children’s souls rot in hell for eternity.”
The lawyer thought for a moment. “What’s the catch?” he asked.
Question: Has the offer been accepted???
What is the definition of an Arrest?
There are four components involved:
- a seizure or touching of a person’s body
- followed by words such as “you are under arrest”
- the person’s submission to the compulsion and
- the police informing the person of the true grounds for his arrest.
To effect an arrest, a police must simply make clear to a person by what is said and done that he is no longer a free man.
The popular Television phrase called “Miranda rights” does not apply in Australia. That is an American legality.
There is no fixed formula when it comes to arresting a person but the arresting officer may have to use different procedures with different persons, depending on their age, ethnic origin, knowledge of English, intellectual qualities and physical or mental disabilities.
For example: The arrest by a constable of a totally deaf person who could not lip-read would be valid if the constable had done everything that a reasonable person would do in the circumstances.
An arrest constitutes an absolute restriction on a person’s freedom of movement. Hence every citizen has a fundamental right to know when he is under arrest.
Therefore, in order to avoid any doubt, as far as possible, the word “arrest” should be used by the arresting constable before he restricts your freedom.
Arrest by Warrant
Persons are seldom arrested by warrants these days. This is because of the statutory enlargements of the power to arrest without warrant. There are however two instances in which arrest by warrant occurs :
- where there is an “all-points alert” or “all-points bulletin” for some identified major offender who is wanted for some offence committed locally or interstate
- where a police officer is not immediately under pressure to make an arrest and has time to obtain a warrant to ensure that the arrest will not be held to be unlawful.
Arrest without Warrant
At common law, a private person’s power of arrest without warrant are extremely limited. A private person may arrest a person who has committed treason or felony or whom he reasonably suspects of having committed treason or felony.
A police officer’s power of arrest at common law are only slightly wider than those of a private person.
In Western Australia, the Criminal Codes provide that police officers may arrest, at any time, any person found committing an “arrestable” offence. An arrestable offence means an offence punishable with imprisonment, with or without any other punishment.
Force in Arrest
Sometimes a person to be arrested may resist arrest.
The force that can be lawfully used in effecting an arrest depends upon whether it is a “confrontation” arrest involving direct physical resistance, or a “fugitive” arrest involving flight.
The common law provides that in a “confrontation” arrest situation, the arresting officer can use an amount of force reasonably necessary to effect the arrest. Hence, the degree of force permissible will vary according to the degree of resistance to the arrest.
The common law applicable to “fugitive” arrest in cases of a person seeking to avoid an arrest for eg. the crime of treason, the arresting officer may be justified in killing the fugitive if he cannot be arrested in any other way.
In Western Australia, a police officer may lawfully cause death or grievous bodily harm to a person fleeing to avoid arrest where:
- the person to be arrested may be arrested without warrant
- the person to be arrested is reasonably suspected of having committed an offence punishable by death or life imprisonment
- the person to be arrested has been called upon to surrender.
After being arrested
After the arrest, a person may be searched. The search may extend to a medical examination of an arrested person.
It may also include fingerprinting or photographing or DNA profiling.
An arrested person has the right to remain silent when interviewed by the police.
This right to silence cannot be adversely commented on by the prosecution lawyers during the trial.
Of course, during questioning, if for example, the arrested person has an alibi, the sooner it is disclosed to the arresting officer, the earlier the arresting officer will have the opportunity to make the necessary enquiries to verify it.
A person arrested without warrant must be brought before a justice as soon as practicable after he is taken into custody. Where it is not practicable to do so within 24 hours, the arrested person must be brought before a clerk of petty sessions, inspector or sub-inspector of police, or a police officer in charge of a police station. These persons must enquire into the case and grant bail, except where the offence appears to be of a “serious” nature.
Practical Matters to Consider
Very often, a person who is arrested is faced with the following questions:
- Should I make a statement to the police? Statements to the police are usually made by way of a video tape interview or a signed statement. OR
- Should I maintain my right not to say anything.
Different lawyers handle those questions differently. For example, it could be argued that if you are innocent, the sooner you give the required information to the Police, the sooner they will see that you have not committed a crime and therefore release you or not proceed to charge you. That could sometimes save you time and legal fees.
However, there are some lawyers who believe that nothing should be stated to the police if you are arrested. That will ensure that nothing incriminating (no matter how innocent) is given to the police. By doing that, you get the police to prove their case against you and do not assist them to implicate yourself.
No one can tell you which is the better stance to take. Sometimes it can be said that if you make a statement immediately, you put your story across and it is more credible as it cannot be said that you have had time to fabricate a story to cover up. However, the down side is that you may say something that may implicate you in a crime.
Therefore the best course of action is to ask to see a solicitor immediately before making a statement to the police.
On the lighter side
Why does the law society prohibit sex between lawyers and their clients? To prevent clients from being billed twice for essentially the same service.
What do you call a lawyer who doesn’t chase ambulances? Retired. How many lawyers does it take to change a light bulb?
Six. One to change the bulb and five to write the environmental impact statement.
What do you call a smiling, sober, courteous person at a bar association convention? The caterer.
Why are lawyers like nuclear weapons? If one side has one, the other side has to get one. Once launched, they cannot be recalled. When they land, they screw up everything forever.
Many years ago, a junior partner in a firm was sent to a far-away state to represent a long-term client accused of robbery. After days of trial, the case was won, the client acquitted and released. Excited about his success, the attorney telegraphed the firm: “Justice prevailed.” The senior partner replied in haste: “Appeal immediately.”