Federal Court of Australia Roberts-Smith v Fairfax Media Publications Pty Limited (No 19) [2021] FCA 818 File numbers: NSD 1485 of 2018 NSD 1486 of 2018 NSD 1487 of 2018 Judgment of: BESANKO J Date of judgment: 19 July 2021 Date of publication of reasons: 20 July 2021 Catchwords: PRACTICE AND PROCEDURE — defamation proceedings — application by respondents to vary order providing for interpreter to be present in courtroom in Sydney while Afghan witnesses give evidence — where respondents unable to secure services of appropriately qualified interpreter in Australia — where there are no Pashto interpreters certified at the level of "Certified Interpreter" in Australia — where recommended national standards for working with interpreters in courts and tribunals provide that certified provisional interpreter of Pashto language should be engaged if one is available — where appropriately qualified and experienced interpreter available in Ontario, Canada — order varied Cases cited: Roberts-Smith v Fairfax Media Publications Pty Limited (No 10) [2021] FCA 317 Division: General Division Registry: New South Wales National Practice Area: Other Federal Jurisdiction Number of paragraphs: 12 Date of hearing: 2 June 2021 Counsel for the Applicant: Mr M Richardson Solicitor for the Applicant: Mark O'Brien Legal Counsel for the Respondents: Ms L Barnett Solicitor for the Respondents: MinterEllison Counsel for the Commonwealth of Australia Mr J Edwards Solicitor for the Commonwealth of Australia Australian Government Solicitor ORDERS NSD 1485 of 2018 BETWEEN: BEN ROBERTS-SMITH Applicant AND: FAIRFAX MEDIA PUBLICATIONS PTY LIMITED (ACN 003 357 720) (and others named in the Schedule) First Respondent NSD 1486 of 2018 BETWEEN: BEN ROBERTS-SMITH Applicant AND: THE AGE COMPANY PTY LIMITED (ACN 004 262 702) (and others named in the Schedule) First Respondent NSD 1487 of 2018 BETWEEN: BEN ROBERTS-SMITH Applicant AND: THE FEDERAL CAPITAL PRESS OF AUSTRALIA PTY LIMITED (ACN 008 394 063) (and others named in the Schedule) First Respondent order made by: besanko J DATE OF ORDER: 19 July 2021 THE COURT ORDERS THAT: 1. Order 7 of the orders made on 23 April 2021 be varied to provide that the respondents are to arrange for Mr Wali Shearzad to provide English/Pashto interpretation remotely from Ontario Canada in lieu of an interpreter present in Sydney. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT BESANKO J: 1 The respondents to three defamation proceedings in the Court seek a variation to orders made by the Court on 23 April 2021. In my opinion, the variation sought should be made. 2 On 23 April 2021, I made the following orders relevantly: 4. Pursuant to s 47A(1) of the Act the following persons be permitted to give evidence at the hearing of these proceedings by audio-visual link: (a) … (b) Person 62; (c) Person 63; (d) Person 64; and (e) Person 65. … 6. The evidence of Person 62, Person 63, Person 64 and Person 65 be given via Cisco from the offices of Kakar Advocates LLC in Kabul, Afghanistan. 7. The respondents arrange for an English/Pashto interpreter to be present in the courtroom in Sydney and at the offices of Kakar Advocates LLC at the time that Person 62, Person 63, Person 64 and Person 65 give evidence by audio-visual link. 8. The applicant be entitled to have in the hearing room in the offices of Kakar Advocates LLC at the time that Person 62, Person 63, Person 64 and Person 65 give evidence a lawyer appointed by him whose name will be provided to the Court. 9. The respondents file and serve statements of the evidence-in-chief of Person 62 and Person 63, signed by those persons, by 7 May 2021 and statements of the evidence-in-chief of Person 64 and Person 65, signed by those persons, by 14 May 2021. 3 Those orders were supported by reasons: Roberts-Smith v Fairfax Media Publications Pty Limited (No 10) [2021] FCA 317. 4 The order in paragraph 7 requires the respondents to arrange for the presence of an English/Pashto interpreter in both the courtroom in Sydney and in Kabul, Afghanistan. The respondents seek a variation of that part of the order which requires them to arrange for an English/Pashto interpreter to be present in the courtroom in Sydney. The variation which they seek is one which would enable them to have the English/Pashto interpreter envisaged in the order in Ontario, Canada rather than in the courtroom in Sydney. The reason they advance for seeking that variation is the difficulty they have experienced in securing the services of an appropriately qualified English/Pashto interpreter in Australia. 5 The respondents' application for a variation of the order was supported by an affidavit of their solicitor, Mr Peter Bartlett, sworn on 1 June 2021. Mr Bartlett has been assisted in this matter by a solicitor, Mr Dougal Hurley, and Mr Bartlett deposes to the matters in his affidavit on information and belief from Mr Hurley. 6 Mr Hurley's searches reveal that there are no Pashto interpreters certified at the level of "Certified Interpreter" in Australia. On 21 April 2021, Mr Hurley sent an email to the National Accreditation Authority for Translators and Interpreters Ltd (NAATI) in which he sought clarification on the non-existence of Pashto interpreters certified at the level of "Certified Interpreter". On 22 April 2021, NAATI responded to Mr Hurley's inquiry advising that the Pashto language is not currently offered at the certified interpreter level. NAATI makes reference to recommended national standards for working with interpreters in courts and tribunals and, in particular, to the fact that the Pashto language is listed as a Tier C language which means that a certified provisional interpreter should be engaged if there is one available. 7 Mr Bartlett deposes to the fact that, in the absence of qualified interpreters in Australia, the respondents propose that Mr Wali Shearzad be utilised as the interpreter in this matter and that Mr Shearzad interpret via audio visual link from Ontario, Canada. Mr Shearzad is a certified Pashto interpreter at the Ministry of the Attorney General Ontario, has extensive experience providing in-court simultaneous interpretation services, and also holds a Master of Laws from the Harvard Law School and two degrees from the International Islamic University. On the face of it, Mr Shearzad has impressive qualifications as a translator and certified interpreter. 8 On 18 May 2021, the respondents' solicitors wrote to the applicant's solicitors seeking their consent for Mr Shearzad to be the Court interpreter for the Afghan witnesses. On 25 May 2021, the applicant's solicitors responded by saying that, in their view, the Court and the parties will be better assisted by having an interpreter physically present in the courtroom in Sydney. That, according to the applicant, would minimise the possibility of disruption due to any issues with audio visual links and avoid the possibility of requiring the Court to sit outside normal court hours to accommodate the availability of the witnesses in Afghanistan and Mr Shearzad in Canada. On 26 May 2021, the respondents' solicitors wrote to the applicant's solicitors maintaining their position that Mr Shearzad is an appropriate interpreter. On 31 May 2021, the applicant's solicitors sent an email to the respondents' solicitors indicating that the applicant had identified a potential interpreter by the name of Baryalay Malyar. Mr Malyar gave advice that he had provided Pashto interpreting in the Federal Court, the Federal Circuit Court, as well as the Supreme and District Courts. Mr Malyar's qualifications indicate that he is certified by NAATI as a provisional interpreter. 9 The parties made brief oral submissions with respect to the topic on 2 June 2021. At that time, the applicant's counsel said that, as far as he could see, Mr Shearzad's qualifications seemed unexceptionable, although he was not able to say how those qualifications have "an equivalency in Australia or anything like that". He told the Court that the applicant had identified an interpreter in Australia whose level of qualification is as a certified provisional interpreter. He told the Court that the applicant will retain an interpreter to be present in the courtroom in Australia "no matter what happens". Counsel for the applicant summarised the applicant's position by saying that he did not oppose the application for Mr Shearzad to be the interpreter envisaged by the order in paragraph 7 and that it was unlikely the Afghan witnesses would be in the witness box for "many, many weeks". The applicant said that, in his view, it would be preferable to have an Australian interpreter in the Court, but at the same time, he conceded that an Australian interpreter of the highest level qualification is not available. 10 The respondents told the Court that they had made the application because they had a concern that the highest qualification in Australia may not be good enough. They have, therefore, looked outside of Australia to find an interpreter with significant experience and qualifications. The respondents submitted that the Court would be better assisted by having an interpreter of the quality indicated by Mr Shearzad's qualifications. The respondents told the Court that the interpreter does not require any accommodation for different time zones. 11 As I have previously indicated to the parties, in my opinion, the variation should be made. Any disadvantage in not having the interpreter in the courtroom in Sydney, as envisaged by the order in paragraph 7 of the orders made on 23 April 2021, is likely to be substantially outweighed by having an interpreter of the apparent qualifications and experience of Mr Shearzad. I consider that should difficulties arise from having the interpreter in another jurisdiction, those difficulties can be accommodated by appropriate allowances and directions as the case proceeds. 12 For these reasons, I made the following order: Order 7 of the orders made on 23 April 2021 be varied to provide that the respondents are to arrange for Mr Wali Shearzad to provide English/Pasto interpretation remotely from Ontario, Canada in lieu of an interpreter present in Sydney. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Besanko. Associate: Dated: 20 July 2021 SCHEDULE OF PARTIES NSD 1485 of 2018 NSD 1486 of 2018 NSD 1487 of 2018 Respondents Second Respondent: NICK MCKENZIE Third Respondent: CHRIS MASTERS Fourth Respondent: DAVID WROE