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The Society of Notaries of Victoria - Annual dinner

The Society of Notaries of Victoria - Annual dinner

By Steven Sapountsis

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Good evening ladies and gentlemen.
[acknowledge and  thank the Society president and the Council]

I will shortly explain the honour, and the pressure, I feel in being asked to present an oration to this esteemed society.

But I first acknowledge the traditional owners of the lands on which we meet tonight-the Wurundjeri People of the Kulin nations. I pay my respects to their elders past and present.
I also acknowledge and extend that respect to any person of Aboriginal or Torres Straits Islander heritage here today.

Let me also make this brief connection with Indigenous matters and the MCG.

A short distance from here, at Federation Square, is the Koori Cultural Centre – a place of considerable history, information and display of materials concerning the first peoples of this country. A visit will be rewarded.

Amongst the exhibitions there, are a number of paintings – some with the geometric patterns favoured by the Victorian  Indigenous community, and many in the “dot” style favoured throughout the rest of the country. 
Amongst the latter are a number of quite excellent paintings by Gavin Wanganeen, who, of course, is amongst the best footballers ever to have played Australian Rules football, and who graced the MCG on a number of occasions.

Having brought us back to the MCG, let me tell you briefly about this room in which we meet. On match days this room is largely the preserve of the MCC office bearers who host distinguished guests and VIPs in the room.

Over its various incarnations it has welcomed many sporting greats such as Sir Donald Bradman and Keith Miller, as well as royalty, heads of government, community leaders, ambassadors and diplomats, heads of the armed services, religious leaders, the press, and even Hollywood stars such as Hugh Jackman.

Around you, is an exceptional range of paintings, photographs and memorabilia depicting the MCG’s long and proud history.

The binoculars were a trophy of war taken from a Japanese cruiser and presented to the MCC by the Royal Australian Navy. They were used by MCC secretary Ian Johnson (1957 to 1983) to monitor crowd behavior, and Sir Robert Menzies liked to sit near them, perhaps for the same reason.

As you can see for yourselves, the room also has amongst the best views on the ground. That includes the one from the loo with a view - which was apparently originally provided for Prince Philip's royal relief at the 1956 Olympics, to ensure he didn’t miss out on a moment of the games.

The loo was incorporated into the fourth pavilion when it was redeveloped in 2006. Unfortunately, the view cannot be enjoyed by the ladies here tonight – and the men should wait until after my speech to experience it for themselves. I will try not to keep you too long.

Now to the honour and the pressure of this evening’s speech.

When I was first asked to present this evening, I immediately recognised that it was an honour and a privilege that I was asked.

Your president’ s generous guidance was that the topic was “at large” – so that appeared achievable.   

But, of course there were qualifications, which is where the pressure came.

In the course of a conversation, or two, your president advised me that previous speakers at your dinners have been entertaining and informative. More recently, John advised that he expected the good turnout that we do see tonight

There was even more “guidance” to be had.

I imagine you are all familiar with that authoritative text “Principles of Notarial Practice” written by one of your past presidents, Professor Peter Zablud.

When chasing up a copy of the second edition of that book for the Law Institute library, I spoke to Peter - and then also read some of the book.

Peter’s advice about tonight’s event, and his guidance on choice of topic, included the following:

  • Notaries are particularly bright
  • They know their profession and its history well
  • and there should be some substance in this talk.

In the foreword to the first edition of the book, Peter’s friend, Dr Roderick Munday tells of the night before he was due to make the speech launching the book – where at dinner, and I quote:

“Peter eventually said,  “Well, I ask only one thing. Whatever you say, remember the quality of your audience and make it erudite….”

I don’t know if tonight’s speech will qualify as being erudite, but I again note the quality of the audience.

If there is any erudition, it might be because I have had reference to Professor Peter Zablud’s book and to a letter and article published in 1995 and 1996 that  Emilios Kyrou, now Justice Kyrou, but then a partner at Mallesons Stephen Jaques, has told was the catalyst for a fundamental change in the way that notaries public were appointed in Victoria – which also led to a fundamental change in the role of the Society of Notaries of Victoria.

Whether as a result of those changes, or because of the more inherent qualities of those who apply to be appointed as notaries public, Professor Zablud is prepared to say, in a completely impartial  assessment, that :

……Victorian notaries are now the most highly trained notaries in Australia and are among the most highly trained and best educated notaries in the common law world.
(p45 fn39)
….

I understand and accept that my invitation  to speak tonight was because I am the current president of the Law Institute of Victoria.

Accordingly, I have assumed that my remarks should touch upon that role, my path to that role and perhaps draw some parallels or connections between the Law Institute of Victoria and the Society of Notaries of Victoria.

Introduction

I am a migrant from a very small village in northern Greece.

Most of my primary school and first year of high school life was spent in Richmond. 

As the eldest child of a migrant family, I had to be a conduit between my non-English speaking parents (and other relatives) and the Australian business and social community.

Part of that relationship was to help with the connections between the old country and the new – which involved me trying to place some of my inchoate understandings of certain Greek institutions or processes within a similar institution or process in Australia.

So, as a very young boy, I became vaguely aware that a notary was a very important functionary in Greece, and that:

  •  for the migrant community to transact certain dealings in Greece, a notary in Australia had to do something magical to documents here that were to be remitted to Greece; and
  •  there was some expectation in our community that a notary (rather than a lawyer) would document certain transactions.

So early on, I had a feeling that notaries were very important, but I did not know what they did.

I know that, even now, many people in the law don’t know what notaries do.

Path to the LIV

After what I have often described as the best articles a person could hope to have, I worked and then became a partner in a small, but very busy practice in Brunswick. 

Looking for some type of sea change, I then worked on contract in a number of medium to large legal firms, and with the Law Institute of Victoria – always maintaining my own small private practice.

The work with the Law Institute became very regular (some may say too regular). The work is described by the various titles under which I worked: manager of receiverships; manager of litigation; deputy general manager and then General Manager of Professional Standards.

I suspect though, that it is my work in receiverships and dealing with challenging solicitors that might be of most, or at least some, interest to you.

On that assumption, let me tell you a little about that work, with a couple of “war stories” from that time.

Over a period of about 8 years, I was involved in more than 90 receiverships – a number because of the death or illness of a practitioner, but most because of some defalcation of trust money or some other misconduct. They ranged from small to large practices, in the city, the  suburbs and the country.

A number of them were mortgage practices, contributory or otherwise, with mortgage pools ranging from $3M to $20M.

With that volume and type of work, there was bound to be some challenging or traumatic experiences.

Amongst them was the particularly sad case involving solicitor Keith Allan.

Keith Allan was a solicitor of some 30 years standing. He was also a loving and loved son and brother. He owned and drove a blue Mercedes. He drank little, if at all, and while he enjoyed the races, he did not bet. 

Allan’s main practice was in Avondale Heights and he also had a small conveyancing office in Springvale.
The staff at Avondale Heights consisted of two conveyancing clerks, an office manager, a city clerk and a law clerk by the name of Julian Clarke. Julian Clarke was a signatory of the firm’s trust account

Keith Allan was last seen on the evening of Sunday, 28 May 2000, after he had met Clarke at his Avondale Heights practice. Each “went their own way” after that meeting.

When Mr Allan did not turn up at work on the Monday, and no-one knew of his whereabouts, his staff had grave concerns for his welfare. They called the police and also called in our receivership team.

When members of our team went in, it was clear that all the staff (except for Julian Clarke) loved Keith Allan and were fearful that some harm had come to him.  No one, except Julian Clarke  said a bad word about him.

But something clearly was very wrong. The police were there in force, and there was an air of menace about the place.

In the office was found a note that had been prominently placed on a computer keyboard. The note, written by Julian Clarke, was addressed to Keith Allan and suggested that Allan had taken money from the trust account, and that he should “come clean” about it, and implored him not to do anything “stupid” like take his life.

I was at the practice on the Tuesday.
I went to buy lunch for the staff from the next door fish and chip shop. I was followed into the shop by a swarthy man (swarthier than me even), dressed in a gangster overcoat, wearing dark sunglasses and holding a folded Sun newspaper under his arm. He was keen to engage me in conversation – having noticed that I had come from the practice.
He told me he was a client of the firm and that, should it be found that some harm had come to  Keith Allan, he should not be a suspect, because he had been in Queensland, and had only returned to Victoria that morning.

At that time, we were not aware of some developments that had taken place in the hours preceding our arrival at Allan’s practice.   

On the previous Sunday, Keith Allan had informed his brother, Lyle that he needed $100,000 to pay a client. He gave no further information except to say there were problems in the practice related to the performance of a member of his staff. Lyle gave him $25,000 and said it would take him a week to find the rest.

That evening Julian Clarke contacted Allan to arrange to meet him at the practice later that night. There he presented Allan with the letter that spelled out his concerns regarding the firm's financial situation, and that presented an image of Allan as a person under pressure and contemplating suicide. 
Clarke later claimed that after Allan read the letter he threw it back in his face.

Allan and Clarke left the practice at about 9:45 p.m on Sunday night and travelled in separate cars to a Mobil Service Station in East Keilor.  They left the service station separately, shortly afterwards.  Allan has not been seen or heard from since that time.

At around 2am on the  Monday, police came across two cars – one  of which was found to be Keith Allan's Mercedes – parked in a dark no-through road in Laverton. With the cars were two men – Costas Athanasi and Sudo Cavkic.

Inside Allan's car was found a metal bar, a petrol tin containing fluid, and two shovels with fresh soil on their blades. In the car, was also found Allan's wallet with his driver's licence and credit cards, as well as some other personal items, including his mobile phone, a camera, and some documents. 

The police also found in the possession of Cavkic, a small black torch, a silver cigarette lighter, and a length of skipping rope with a wooden handle attached to one end.  Cavkic was found to be wearing an empty shoulder holster.

Later, when Cavkic was searched at Williamstown Police station, a 7.62mm Russian Tokarev self loading service pistol  with the serial number erased was found, concealed in Cavkic's pants. There was a magazine containing five rounds in the firearm. There was one round left in the chamber and a deposit of partly burnt grains of powder in the bore.

Clarke was later found to have stolen about $400,000 from the firm’s trust account that he gambled at Crown – where he had been treated like royalty.

After three trials Julian Clarke, Sudo Cavkic and Costas Athanasi were convicted of murder and received lengthy sentences.

Keith Allan’s body was never found and his mother died not knowing what happened to her son, and without knowing the outcome of the murder trials.

Although other receiverships also involved a loss of life, the Keith Allan one was perhaps the saddest.

More generally, we were reasonably successful in recovering at least some part of misappropriated funds and in one significant mortgage practice, recovering all monies for the clients.

In this case Clarke was without funds, but the affected clients would have had a claim on what was then the Legal Practitioners Fidelity fund, which most of us here today would have known as the Solicitor’s Guarantee Fund.

Later of course, the control of the Legal Practitioners Fidelity Fund was transferred to the Legal Services Board – and that became a driver in transferring other regulatory roles to the Board and its successors.

Which leads us to the regulatory role of our respective associations.

The Law Institute’s role in regulating the profession started to change from about 1996 and even more dramatically from 2006 (after the introduction of the Legal Profession Act 2004).

The changes were so significant, that it was time for me to return to private practice.

I did not know then, but I do now, that notaries, and the Society of Notaries of Victoria had undergone their own significant changes some years earlier.

The critical summary of the former position of the Society is described in the article by Emilios Kyrou (and Caron Beaton-Wells) to which I referred earlier, as :

  • the Society being the de facto decision maker as to whether one could be appointed a notary;
  • “too  few” notaries being appointed “to service Victoria’s growing population”; and
  • there being an “inherent conflict” between the Society’s public duties and its private functions of representing the interests of its members.

The Public Notaries Act 2001 introduced significant changes so that notaries are now appointed by the Chief Justice of the Supreme Court of Victoria, and professional discipline of notaries is maintained under the inherent jurisdiction of the Supreme Court.

I do hasten to here add Professor Zablud’s observation that :
Instances of notaries being disciplined for misconduct in the exercise of their office are indeed very rare….
(Zablud ed2- p 47)

Despite the changes to the Society’s role, I understand that the Society still enjoys about a 100% membership of practising notaries – a most notable achievement and a reflection of the notarial profession’s satisfaction of the work of the Society.

As I noted earlier, the Law Institute’s role in regulation too has change dramatically - to a point where it now undertakes only a small part of regulation, and that by delegation from the Legal Services Board/Commissioner.

The Law Institute presently has, as members, about 66% of practising certificate holders.

My term as president of the Law Institute commenced  on 1 January this year.

We do not have “platforms” on which we stand, but broadly, my particular interests are making practising easier and better for all lawyers, the reaching and maintenance of high standards of practice, and the continued work on diversity and inclusion in the profession.

We have also commenced, and have almost completed inquiries into:

  • What, if any role the Law Institute should have in the regulation of the legal profession; and
  • the continued registration of the Law Institute as a charity.

The ethical guidance it provides to members and the profession more generally, is one of the areas in which the Law Institute remains very strong, and in which I have been well interested for some time.  This is provided by the ethics department, the ethics committee and the ethics liaison group.

I think that that interest is shared by your president, who is the acting manager of the ethics department and who generally shows good judgement – until he asked me to speak to you tonight.

Please do not hold that against Mr Pearce.

I thank you for this kind invitation, and your hospitality, and I wish your Society continued success.

Please enjoy the rest of the evening.


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