Podcast
Legal Matters
| Public Notary | |
| Spam Act 2003 | |
| Subpoena | |
| What is a Contract | |
| Your Rights when Arrested | |
What is a Public Notary? by Dan Qing Yu |
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| A 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. 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 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.
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Information on Anti Spam |
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| 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 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 :
HOW TO COMPLY WITH THE ACT
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:
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:
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. Identity 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. Unsubscribe facility 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 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 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 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. |
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What do you do when you are served with a subpoena?
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| You are the star witness!!!. How to make sure you do not put your foot in your mouth.
What is a subpoena? What to do when you receive a subpoena 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 What to wear In Court 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:
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
After giving evidence TO CUT A LONG STORY SHORT: 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: On the lighter side Was He Dead? “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.”
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What Exactly Is A Contract?
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| Am I Really Liable Because I Signed That Offer?
Contracts – What is an Offer and what is an Acceptance The question is “When is a contract formed?” 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 Withdrawing an offer Making a valid acceptance 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 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 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 lawyer thought for a moment. “What’s the catch?” he asked. Question: Has the offer been accepted???
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You are in trouble and the police are coming. What are your rights when you get arrested? |
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| What is the definition of an Arrest?
There are four components involved:
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
Arrest without Warrant 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 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:
After being arrested 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
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 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.”
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