As reported in our earlier article, the NSW Government recently made new regulations in response to the COVID-19 pandemic to make it easier for documents to be witnessed and attested. As discussed in that article, the witnessing and attestation of documents can now take place by audio visual link.
The new regulations also expand the categories of people who are able to take statutory declarations as authorised witnesses and bring the NSW position in line with federal legislation. This is positive news for Financial Advisers and Accountants, who until now had not been able to witness NSW statutory declarations made by their clients.
Only Commonwealth statutory declarations were previously able to be taken by Financial Advisers, Accountants and other persons on the list of approved witnesses (viewable here). However, as set out below, Commonwealth statutory declarations are generally not appropriate for matters relating to the State or laws of NSW.
Importantly, a Financial Adviser must be “licenced or registered” in order to take a NSW or Commonwealth statutory declaration. An accountant must be either:
A statutory declaration is a written statement of facts that a person declares is true. Anyone can make a statutory declaration (including minors and retirees) as long as it is witnessed by a person who is authorised to take statutory declarations.
Generally speaking, a NSW statutory declaration should relate to NSW matters.
Some of the matters that a NSW statutory declaration might relate to include:
On the other hand, a Commonwealth statutory declaration should be completed if the matter relates to the Commonwealth or its laws.
As a further complication, Commonwealth and NSW statutory declarations use different forms. The prescribed form for a Commonwealth statutory declaration can be downloaded here. And the NSW forms can be downloaded here.
If you are uncertain about which form to use, it is prudent to speak with a lawyer or Justice of the Peace who is familiar with these differences.
The NSW Justice of the Peace Handbook is a useful resource for anyone witnessing a statutory declaration. We have outlined some key points from the handbook below1 along with some practical tips for witnessing NSW statutory declarations by audio visual link. The new regulations do not allow Commonwealth statutory declarations to be witnessed by using video conferencing technology.
You can identify if a document is a statutory declaration because it will contain:
Commonwealth statutory declarations are made under the Statutory Declarations Act 1959 (Cth) and NSW declarations are made under the Oaths Act 1900 (NSW).
When signing and witnessing a statutory declaration, it is good practice to read the document prior to signing.
If you are witnessing a NSW statutory declaration under the new regulations, you should take appropriate steps to ensure that the document you sign to confirm the signature of the declarant is the same as the document signed by the declarant.
You must see the face of the person making the statutory declaration.
If a person is wearing a face covering, you should politely ask the person to remove as much of the face covering as will allow you to view the person’s face. This includes sunglasses that cover the eyes or a hat that covers the forehead.
Importantly, you do not have any authority to make a person remove a face covering. If the person refuses to remove his or her face covering, you must decline to witness the statutory declaration, unless you are satisfied the person has a ‘legitimate medical reason’ for not removing the face covering.
For guidance on what amounts to a ‘legitimate medical reason’ see Appendix D of the NSW Justice of the Peace Handbook.
If you are witnessing a NSW statutory declaration by video conferencing technology and cannot clearly see the declarant’s face, you should ask her or him to adjust the lighting or angle of the video to improve the picture.
Once you see the declarant’s face, you will then need to confirm their identity. You will need to ensure that their identity matches the name that is written at the start of the declaration.
This can be done in one of two ways:
Note, if you are witnessing a statutory declaration via audio visual link, you should ask the declarant to hold an approved identification document in front of their camera. It is also good practice to ask the declarant to send you a scanned copy of the identification document to review prior to signing conference.
If you cannot view an approved identification document clearly or are unable to confirm the person’s identity, you should decline to witness the statutory declaration.
You must closely review the statutory declaration for blank spaces or alterations. If the statutory declaration contains any alteration or deletion, you should:
Any blank space at the end of a statutory declaration should be crossed out and if you are taking a NSW statutory declaration in accordance with the new regulations, any blank space should be crossed out on both documents (i.e. the document signed by the declarant and the document signed by you to confirm the declarants signature).
You should ensure that the declarant understands the purpose, effect and contents of the statutory declaration. This can be done by asking open-ended questions such as:
If the declarant is unfamiliar with the contents of the statutory declaration, you should give them an opportunity to read the document. You should then ask the above questions again. If the declarant does not appear to understand the purpose and effect of the statutory declaration you must decline to witness it.
If you are satisfied that the declarant understands the purpose and effect of the statutory declaration, you must warn the declarant that:
You should ask the declarant appropriate questions to confirm they understand the warning.
You must ask the declarant to make a declaration as per the statutory declaration form. Under the Oaths Act 1900 (NSW), you can ask the declarant of a NSW statutory declaration the following question:
“Do you solemnly and sincerely declare the contents of this declaration to be true and correct, to the best of your knowledge and belief?”
It is sufficient if the declarant responds with words which indicate an affirmative answer (e.g. ‘yes’ or ‘I do’).
If the declarant has agreed the contents are true and correct, the declarant must sign each page of the declaration and sign and date the jurat (i.e. the section where the declarant and the witness both sign).
The declarant must sign in your presence.
Where the statutory declaration comprises more than one page, it is recommended that the declarant also signs at the bottom of each proceeding page of the declaration.
Note, you must observe the person signing the document in real time.
Therefore, when witnessing via video conference the camera angle will need to allow you to see both the face and the signing hand of the person signing the document.
After you have witnessed the declarant sign each page of the statutory declaration, you must then sign each page of the declaration and sign the jurat.
Make sure to check for any annexures to the statutory declaration. If an annexure is annexed, it must:
When witnessing a NSW statutory declaration by audio visual link you should attest or confirm the signature was witnessed by signing the document or a copy of the document as soon as practicable after witnessing. The witness may sign a counterpart of the original statutory declaration or countersign a scanned version of the document. The document signed by the witness should then be endorsed with a statement outlining the method used to witness the signature and that the document was witnessed in accordance with the new regulations.
A NSW statutory declaration witnessed in accordance with the new regulations will comprise two separate documents with “wet-ink” signatures. Both of those documents should be kept together where possible.
For guidance on preparing or witnessing a statutory declaration, please feel free to contact one of the solicitors in our Private Clients group. Alternatively, you can email Terry McCabe, the Principal of the group, directly at [email protected]
Jacob Goodwin works as a Law Clerk in the Private Clients group at McCabes and is a NSW Justice of the Peace.
1 The key points outlined above in relation to witnessing a NSW statutory declaration include extracts from the NSW Justice of the Peace Handbook. For more information, you can download the handbook here.
In June 2023, a Canadian Court in South-West Terminal Ltd v Achter Land and Cattle Ltd, 2023 SKKB 116, held that the "thumbs-up" emoji carried enough weight to constitute acceptance of contractual terms, analogous to that of a "signature", to establish a legally binding contract. Facts This case involved a contractual dispute between two parties namely South-West Terminal ("SWT"), a grain and crop inputs company; and Achter Land & Cattle Ltd ("ALC"), a farming corporation. SWT sought to purchase several tonnes of flax at a price of $17 per bushel, and in March 2021, Mr Mickleborough, SWT's Farm Marketing Representative, sent a "blast" text message to several sellers indicating this intention. Following this text message, Mr Mickleborough spoke with Mr Achter, owner of ALC, whereby both parties verbally agreed by phone that ALC would supply 86 metric tonnes of flax to SWT at a price of $17 per bushel, in November 2021. After the phone call, Mr Mickleborough applied his ink signature to the contract, took a photo of it on his mobile phone and texted it to Mr Archter with the text message, "please confirm flax contract". Mr Archter responded by texting back a "thumbs-up" emoji, but ultimately did not deliver the 87 metric tonnes of flax as agreed. Issues The parties did not dispute the facts, but rather, "disagreed as to whether there was a formal meeting of the minds" and intention to enter into a legally binding agreement. The primary issue that the Court was tasked with deciding was whether Mr Achter's use of the thumbs-up emoji carried the same weight as a signature to signify acceptance of the terms of the alleged contract. Mr Mickleborough put forward the argument that the emoji sent by Mr Achter conveyed acceptance of the terms of the agreement, however Mr Achter disagreed arguing that his use of the emoji was his way of confirming receipt of the text message. By way of affidavit, Mr Achter stated "I deny that he accepted the thumbs-up emoji as a digital signature of the incomplete contract"; and "I did not have time to review the Flax agreement and merely wanted to indicate that I did receive his text message." Consensus Ad Idem In deciding this issue, the Court needed to determine whether there had been a "formal meeting of the minds". At paragraph , Justice Keene considered the reasonable bystander test: " The court is to look at “how each party’s conduct would appear to a reasonable person in the position of the other party” (Aga at para 35). The test for agreement to a contract for legal purposes is whether the parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract (Aga at para 36). The question is not what the parties subjectively had in mind, but rather whether their conduct was such that a reasonable person would conclude that they had intended to be bound (Aga at para 37)." Justice Keene considered several factors including: The nature of the business relationship, notably that Mr Achter had a long-standing business relationship with SWT going back to at least 2015 when Mr Mickleborough started with SWT; and The consistency in the manner by which the parties conducted their business by way of verbal conversation either in person or over the phone to come to an agreement on price and volume of grain, which would be followed by Mr Mickleborough drafting a contract and sending it to Mr Achter. Mr Mickleborough stated, "I have done approximately fifteen to twenty contracts with Achter"; and The fact that the parties had both clearly understood responses by Mr Achter such as "looks good", "ok" or "yup" to mean confirmation of the contract and "not a mere acknowledgment of the receipt of the contract" by Mr Achter. Judgment At paragraph , Keene J said: "I am satisfied on the balance of probabilities that Chris okayed or approved the contract just like he had done before except this time he used a thumbs-up emoji. In my opinion, when considering all of the circumstances that meant approval of the flax contract and not simply that he had received the contract and was going to think about it. In my view a reasonable bystander knowing all of the background would come to the objective understanding that the parties had reached consensus ad item – a meeting of the minds – just like they had done on numerous other occasions." The court satisfied that the use of the thumbs-up emoji paralleled the prior abbreviated texts that the parties had used to confirm agreement ("looks good", "yup" and "ok"). This approach had become the established way the parties conducted their business relationship. Significance of the Thumbs-Up Emoji Justice Keene acknowledged the significance of a thumbs-up emoji as something analogous to a signature at paragraph : "This court readily acknowledges that a thumbs-up emoji is a non-traditional means to "sign" a document but nevertheless under these circumstances this was a valid way to convey the two purposes of a "signature" – to identify the signator… and… to convey Achter's acceptance of the flax contract." In support of this, Justice Keene cited the dictionary.com definition of the thumbs-up emoji: "used to express assent, approval or encouragement in digital communications, especially in western cultures", confirming that the thumbs-up emoji is an "action in an electronic form" that can be used to allow express acceptance as contemplated under the Canadian Electronic Information and Documents Act 2000. Justice Keene dismissed the concerns raised by the defence that accepting the thumbs up emoji as a sign of agreement would "open the flood gates" to new interpretations of other emojis, such as the 'fist bump' and 'handshake'. Significantly, the Court held, "I agree this case is novel (at least in Skatchewan), but nevertheless this Court cannot (nor should it) attempt to stem the tide of technology and common usage." Ultimately the Court found in favour of SWT, holding that there was a valid contract between the parties and that the defendant breached by failing to deliver the flax. Keene J made a judgment against ALC for damages in the amount of $82,200.21 payable to SWT plus interest. What does this mean for Australia? This is a Canadian decision meaning that it is not precedent in Australia. However, an Australian court is well within its rights to consider this judgment when dealing with matters that come before it with similar circumstances. This judgment is a reminder that the common law of contract has and will continue to evolve to meet the everchanging realities and challenges of our day-to-day lives. As time has progressed, we have seen the courts transition from sole acceptance of the traditional "wet ink" signature, to electronic signatures. Electronic signatures are legally recognised in Australia and are provided for by the Electronic Transactions Act 1999 and the Electronic Transactions Regulations 2020. Companies are also now able to execute certain documents via electronic means under s 127 of the Corporations Act. We have also seen the rise of electronic platforms such as "DocuSign" used in commercial relationships to facilitate the efficient signing of contracts. Furthermore, this case highlights how courts will interpret the element of "intention" when determining whether a valid contract has been formed, confirming the long-standing principle that it is to be assessed objectively from the perspective of a reasonable and objective bystander who is aware of all the relevant facts. Overall, this is an interesting development for parties engaging in commerce via electronic means and an important reminder to all to be conscious of the fact that contracts have the potential to be agreed to by use of an emoji in today's digital age.
The McCabes Government team are pleased to have assisted Venues NSW in successfully overturning a District Court decision holding it liable in negligence for injuries sustained by a patron who slipped and fell down a set of steps at a sports stadium; Venues NSW v Kane  NSWCA 192 Principles The NSW Court of Appeal has reaffirmed the principles regarding the interpretation of the matters to be considered under sections5B of the Civil Liability Act 2002 (NSW). There is no obligation in negligence for an occupier to ensure that handrails are applied to all sets of steps in its premises. An occupier will not automatically be liable in negligence if its premises are not compliant with the Building Code of Australia (BCA). Background The plaintiff commenced proceedings in the District Court of NSW against Venues NSW (VNSW) alleging she suffered injuries when she fell down a set of steps at McDonald Jones Stadium in Newcastle on 6 July 2019. The plaintiff attended the Stadium with her husband and friend to watch an NRL rugby league match. It was raining heavily on the day. The plaintiff alleged she slipped and fell while descending a stepped aisle which comprised of concrete steps between rows of seating. The plaintiff sued VNSW in negligence alleging the stepped aisle constituted a "stairwell" under the BCA and therefore ought to have had a handrail. The plaintiff also alleged that the chamfered edge of the steps exceeded the allowed tolerance of 5mm. The Decision at Trial In finding in favour of the plaintiff, Norton DCJ found that: the steps constituted a "stairwell" and therefore were in breach of the BCA due to the absence of a handrail and the presence of a chamfered edge exceeding 5mm in length. even if handrails were not required, the use of them would have been good and reasonable practice given the stadium was open during periods of darkness, inclement weather, and used by a persons of varying levels of physical agility. VNSW ought to have arranged a risk assessment of the entire stadium, particularly the areas which provided access along stepped surfaces. installation of a handrail (or building stairs with the required chamfered edge) would not impose a serious burden on VNSW, even if required on other similar steps. Issues on Appeal VNSW appealed the decision of Norton DCJ. The primary challenge was to the trial judge's finding that VNSW was in breach of its duty of care in failing to install a handrail. In addition, VNSW challenged the findings that the steps met the definition of a 'stairwell' under the BCA as well as the trial judge's assessment of damages. Decision on Appeal The Court of Appeal found that primary judge's finding of breach of duty on the part of VNSW could not stand for multiple reasons, including that it proceeded on an erroneous construction of s5B of the Civil Liability Act 2002 and the obvious nature of the danger presented by the steps. As to the determination of breach of duty, the Court stressed that the trial judge was wrong to proceed on the basis that the Court simply has regard to each of the seven matters raised in ss 5B and 5C of the CLA and then express a conclusion as to breach. Instead, the Court emphasised that s 5B(1)(c) is a gateway, such that a plaintiff who fails to satisfy that provision cannot succeed, with the matters raised in s 5B(2) being mandatory considerations to be borne in mind when determining s 5B(1)(c). Ultimately, regarding the primary question of breach of duty, the Court found that: The stadium contained hazards which were utterly familiar and obvious to any spectator, namely, steps which needed to be navigated to get to and to leave from the tiered seating. While the trial judge considered the mandatory requirements required by s5B(2) of the CLA, those matters are not exhaustive and the trial judge failed to pay proper to attention to the fact that: the stadium had been certified as BCA compliant eight years before the incident; there was no evidence of previous falls resulting in injury despite the stairs being used by millions of spectators over the previous eight years; and the horizontal surfaces of the steps were highly slip resistant when wet. In light of the above, the Court of Appeal did not accept a reasonable person in the position of VNSW would not have installed a handrail along the stepped aisle. The burden of taking the complained of precautions includes to address similar risks of harm throughout the stadium, i.e. installing handrails on the other stepped aisles. This was a mandatory consideration under s5C(a) which was not properly taken into account. As to the question of BCA compliance, the Court of Appeal did not consider it necessary to make a firm conclusion of this issue given it did not find a breach of duty. The Court did however indicated it did not consider the stepped aisle would constitute a "stairway" under the BCA. The Court of Appeal also found that there was nothing in the trial judge's reasons explicitly connecting the risk assessment she considered VNSW ought to have carried out, with the installation of handrails on any of the aisles in the stadium and therefore could not lead to any findings regarding breach or causation. As to quantum, the Court of Appeal accepted that the trial judge erred in awarding the plaintiff a "buffer" of $10,000 for past economic loss in circumstances where there was no evidence of any loss of income. The Court of Appeal set aside the orders of the District Court and entered judgment for VNSW with costs. Why this case is important? The case confirms there is no obligation in negligence for owners and operators of public or private venues in NSW to have a handrail on every set of steps. It is also a welcome affirmation of the principles surrounding the assessment of breach of duty under s 5B and s 5C of the CLA, particularly in assessing whether precautions are required to be taken in response to hazards which are familiar and obvious to a reasonable person.
The recent decision in New Aim Pty Ltd v Leung  FCAFC 67 (New Aim) has provided some useful guidance in relation to briefing experts in litigation.