What is a signature?

I have spent too much of the last couple of years considering what it is for a person to sign a document, as a result of a disciplinary prosecution of my solicitor client for forgery after he wrote his wife’s name on a guarantee pursuant to a written authority and then signed his name as witness to her signing. The case was decided on an unrelated technical point.  But here’s what I’ve learnt about signatures, in a nutshell (some of it from you, dear readers):

• A person signs when they affix a mark indicating their assent to the document, either personally or by an agent: there is no obligation that people able to do so sign their usual signature or write their name;
• The agent may write the principal’s name or write their own (emulating the principal’s usual signature would presumably be problematical);
• An agent who affixes the principal’s signature may personally attest that signature;
• An agent who writes the principal’s name without the conventional ‘p.p [the principal]’ or ‘per [the principal]’ and without otherwise indicating that the document was signed through an agent generates an efficacious signature;
• Though there are Australian and UK cases in which the Court has not criticised witnesses who attest signatures affixed by agents despite the document bearing no indication of agency, there is also Australian authority that such attestation does not satisfy a statutory requirement for enforceability of a document that it be attested as having been signed ‘in the presence of the signatory’.

In Legal Services Board v Forster (2010) 29 VR 277, Emerton J accepted a submission of the Legal Services Board recorded at [41] that ‘the common law has long held that a signature is not necessarily the writing in of a name, but may be any mark which identifies it as the act of the party’, citing Morton v Copeland (1855) 16 CB 517 at 535; 139 ER 861 at 869.  More proximate a source for that proposition is Higinbotham J’s statement in R v Moore ex p Myers (1884) 10 VLR 322 at 324 that ‘A signature is only a mark and where a statute merely requires that a document shall be signed, the statute is satisfied by proof of the making of a mark upon the document by or by the authority of the signatory.’

How then may the signature be affixed? Higinbotham J has already told us that the signatory may put his mark on the document personally or through an agent. When the agent affixes the principal’s mark, it is the principal and not the agent who signs.  And that mark may take the form of, at least, the writing of the agent’s or the principal’s name: Deputy Commissioner of Taxation v Boxshall [1988] FCA 355; 19 FCR 435.

The two more difficult questions are:

1.  Can a person affix their principal’s signature and then sign their own name as witness; and

2.  Must the document state that it was executed by an agent if that is the case?

I was not a very good student and did not learn as much as I might have at law school, but I have discovered that some odd bits of information lodged somewhere without me really knowing it.  ‘Fraud undoes all’ seemed like a valuable principle to have up one’s sleeve.  And so it has proven to be: more about that anon.  But ‘anything a man may do he may do through an agent’ (qui facit per alium facit per se) must have had a handy ring to it too.  It is the touchstone of the law of agency.

Presented with the facts of my case, my initial reaction was that the starting point for analysis was qui facit …, and so that a man should be able to affix his principal’s signature in his capacity as agent and then witness that signature unless the general principle was cut down by an exception (and there are certainly plenty of exceptions to that principle).  But did the act of attestation convey a representation of personal execution so as to create a different problem, and if so, did it matter?  I thought not. Though there are situations where statute requires that a specific person or office holder sign documents as a condition of their validity and sometimes as a matter of statutory interpretation the obligation to sign is non-delegable, this was not one of those cases.  And as to whether it mattered, well: in how many situations is it legally relevant that a document was personally signed or efficaciously signed by some other means?

Now, the law is always out there (unless it’s a question of statutory interpretation).  It’s just a question of finding it.  A lovely Irish reader directed my attention to the pretty damn on point decision in Dundalk AFC Interim Co Ltd v FAI National League [2001] 1 IR 434 of the Irish High Court.  I can find no trace in Australian legal sources. In that case, whether the plaintiff, a soccer team, or Limerick, another team, played in the top (‘premier’) or second-top (‘first’) division in the next season depended on the outcome of a play-off between the third bottom team in the first division and the third top team in the second.  The plaintiff Dundalk finished fourth in the first division and Kilkenny third.  Dundalk sought to have points deducted from Kilkenny such that it would be third and Kilkenny fourth, and so have a go in the play-off.  Dundalk sought to do so by establishing that when it played Kilkenny, a Kilkenny player, Fran Carter, was unregistered.  Teams playing unregistered players were penalised three match points, which points were determinative of who came third and who fourth in the first division.

Dundalk said Carter was not properly registered because the rules required his signature on the form, properly witnessed, and it was not in contest that Carter’s manager Pat Byrne had with Carter’s (apparently oral) authority affixed Carter’s signature by writing Carter’s name on the form and then signed his own signature as witness. That there was no notice of the fact of execution by an agent may be inferred from the fact that it was necessary for the FAI National League to ask Carter to provide a writing sample on a blank piece of paper so as to establish that the signature on the registration form was not Carter’s.

Finnegan J found at 438 by reference to the common law of England that in Irish law (a common law jurisdiction) Carter had signed the document, and at 439 that it had been properly witnessed because:

‘A party to a document cannot be a witness to his own signature.  Mr Byrne in his representative capacity signed the registration form: as a matter of law this was a signing not by Mr Byrne but by Mr Carter.  Mr Byrne is not a party to the registration form.  In his personal capacity Mr Byrne signed the form as witness having … been present at the incident, namely, present when the form was signed by Mr Carter.  I take the view that Mr Byrne was entitled so to do and I have been unable to find any authority to the contrary.  It is not uncommon for a person who signs a deed in one capacity to witness the signature of another party to the deed and this practice has never been found to be ineffective.  Accordingly, I am satisfied that the signature of the registration form by Mr Carter was properly witnessed.’

The answer to the second question is less clear.  The latest authority is the Irish case, in which it is tolerably clear that the agent did not state on the document that the signature was affixed by an agent, but that problem was not specifically addressed.  It is clear that traditionally in English law, efficacity of execution has not demanded that the document make clear that execution was effected through an agent: Ex parte Hirst (1874) LR 18 Eq 704; London County Council v Agricultural Food Products Ltd [1955] 2 QB 218, approving R v Kent Justices (1873) LR 8 QB 305 and France v Dutton [1891] 2 QB 208.  In London County Council, Denning LJ alone suggested that, were he not bound by authority to the contrary (see at 223), he would say that agents signing for principals without notation to that effect on the document so signed was bad practice because it was misleading. The other judges did not say so despite the fact that this was a case where the agent signed for the principal without notation to that effect.  Denning LJ’s views in relation to signatures were stronger than the law’s more generally: see e.g. his dissent in Goodman v J. Eban Ltd [1954] 1 QB 550 at 563 cited by Parker LJ in London County Council at 225.  Denning LJ there considered that inherent in the concept of a ‘signature’ was the writing of a person’s name ‘with his own hand’.  In the 1955 case of London County Council, he probably held the same view, explaining why he considered a signature written by an agent without notation to that effect to be misleading. That such a writing of a signature is misleading is just another of Lord Denning’s unusual views which did not ultimately find a place in the law, as his Lordship acknowledged it should not by saying ‘I do not think that we should disturb cases of such long standing’.

London County Council was approved by Smith J in Ali v Hartley Poynton Ltd (2002) 20 ACLC 1006 at [109]:

‘[109] The defendant relied upon the evidence of Mr Martin to the effect that while he was aware of the existence of Liyakat Ali’s father he had assumed that Liyakat Ali was Rahmat Ali. The defendant alleged, in final submissions, that the assumption was compounded by the fact that Liyakat Ali insisted on adopting “the fraudulent and deceptive practice of signing documents in the name of ‘Rahmat Ali’ without any indication that he was purporting to do so as the agent of Rahmat (a normal practice)”. I note that the law recognises that an agent can sign using the name of the principal (LCC v Agricultural Food Products [1955] 2QB 218, 223-4). The argument is an example of the remarkable vigour with which the defence was maintained over the entire lengthy hearing.’

However in Deputy Commissioner of Taxation v Boxshall [1988] FCA 355; 19 FCR 435, Lockhart, Burchett and Gummow JJ heard a challenge to a bankruptcy notice issued at the suit of the Deputy Commissioner of Taxation.  Legislation required that the Deputy Commissioner sign a notice in the prescribed form, and the form had provision for a witness to attest that the Deputy Commissioner had done so in the presence of the witness.  An employee wrote the Commissioner’s name without indicating that she had done so as agent, and a different person attested the signature.  The Court found unanimously that the Deputy Commissioner had signed the document, but found that there was a deficiency in the attestation.  Their Honours seemed to set much store on what Denning LJ said in London County Council, but without acknowledging that Denning LJ had himself acknowledged that his views did not reflect the law, or that his Lordship had suggested that it was the signatory’s agent who should state the fact of the execution through an agent, not the witness.