Professional Indemnity and Notarial Practice

Most people never think about what happens if a notary gets something wrong. For an ordinary certified copy, there is little reason to. But notarial acts sit underneath property transfers, company registrations, court filings and inheritances abroad, and when one fails, the loss can be large and can fall on someone who never met the notary.

This page explains how notarial liability works in principle, where professional indemnity insurance fits, and — just as important — what it does not cover.

Who a notary owes a duty to

A solicitor's duty runs mainly to the client. A notary's is traditionally understood to run wider.

The notarial certificate is addressed, in effect, to anyone who may rely on it: a foreign registry, a court, a bank, a counterparty in another country. None of them were present. All of them are asked to accept the notary's word about what happened. The long-standing understanding of the office is that the notary owes a duty of care not only to the person who booked the appointment but to those who rely on the act.

That is the root of notarial caution. A notary who identifies a signatory on weak evidence is not only taking a risk with their own client. They may be enabling a fraud against someone overseas who cannot inquire.

Where insurance comes in

Professional indemnity insurance responds when a professional's negligence causes a loss and a claim is made. For notaries in Australia, how that cover is arranged is less uniform than people assume.

Most notaries are also practising solicitors. Practising solicitors in every Australian jurisdiction must carry professional indemnity insurance, generally through an approved scheme. Whether that insurance extends to notarial acts, or whether separate notarial cover is needed, depends on the jurisdiction, the scheme and the way the notary practises.

Some notaries no longer practise as solicitors. A notary may continue to hold the notarial office after ceasing general legal practice. Their cover is then a separate arrangement.

Notarial bodies may set their own expectations. Notarial societies and colleges may require or encourage members to hold cover for notarial work.

The detail differs by state and territory and should be checked with the notary or the relevant society rather than assumed from this page.

What a claim would actually concern

Claims against notaries are rare, because notarial work is formal and notaries are cautious. When something does go wrong, it tends to be one of a small number of things:

• Identity. An impostor was accepted as the signatory, on inadequate identification.
• Presence. The certificate says a signature was made in the notary's presence when it was not.
• Misdescription. The certificate describes the act, the document or the capacity of the signatory wrongly — for example, certifying a copy as complete when pages were missing.
• Authority. A company officer was accepted as authorised to bind the company without adequate evidence.
• Conflict. The notary acted where they had an interest.

Each of these is a failure of something the notary personally certified. That is the boundary of liability, and it is narrower than many clients expect.

What it does not cover

The contents of the document. A notary does not certify that a document's contents are true. If a statement in a notarised declaration is false, the notary has not certified otherwise, and the loss is not the notary's.

The foreign authority's requirements. A notarial act that is correct but refused abroad because the receiving body wanted different wording, a newer document or a different translation is usually a matter of instructions, not negligence. This is why notaries ask for the receiving authority's requirements in writing.

The client's own deception. A client who produces a forged original or lies about capacity cannot shift that onto the notary's insurer.

DFAT and embassy steps. Delay or refusal at the apostille, authentication or legalisation stage is outside the notarial act.

Legal advice given by someone else. If the document itself is badly drafted or legally ineffective, that is a question for whoever drafted it.

Most mistakes are corrected, not claimed

In practice, the usual consequence of a notarial error is a corrected or fresh certificate: the notary re-performs the act, the document goes back through DFAT, and the cost is time. Insurance matters for the rare case where a loss has already happened — a transaction completed on a defective act, or money paid out against a forged signature the notary should have caught.

Complaints and discipline

Separate from insurance is accountability. Notaries are appointed by the Supreme Court of a state or territory, and a notary who breaches the obligations of the office risks that appointment. Where the notary is also a solicitor, the legal profession regulator in their jurisdiction may also have a role. The correct route for a complaint differs by jurisdiction; the appointing Court or the local notarial society can indicate where to start.

Common questions

Should I ask a notary whether they are insured? You can, and a notary should answer. For routine copies it rarely matters. For a high-value transaction it is a reasonable question.

If my document is rejected overseas, can I claim? Usually not, unless the rejection resulted from an error in what the notary certified. Most rejections come from the receiving authority's own requirements.

Does a Justice of the Peace carry the same insurance? A JP is a volunteer witness for domestic purposes, and the arrangements are different. A JP certification is not accepted overseas in any case.