ASLAN v SHEHADIE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL POWELL, BEAZLEY and GILES JJA 15 December 1998, 17 December 1998 [1998] NSWCA 19 Procedure — interpreter — trial judge's discretion whether used — no error in exercise of discretion — Dairy Farmers Co-operative Milk Co Ltd v Acquilina (1963) 109 CLR 458; Adamopoulos v Olympic Airways SA (1991) 25 NSWLR 75 — Evidence Act 1995, s30 not relied on. Negligence — solicitor — advice that will revocable — whether negligent in failing to advise — whether if had advised non-revocation agreement would have been made — even if negligent, on facts not established non-revocation agreement would have been made — no loss. Powell JA I agree with Giles JA. Beazley JA I agree with Giles JA. Giles JA Mr Albert Cox owned properties at 70 Redfern Street, Redfern, 40 Baptist Street, Redfern, and 108 Great Buckingham Street, Redfern. He lived at 108 Great Buckingham Street, Redfern, and a Mr Elias Napti lived either there or at 70 Redfern Street, Redfern. Rooms in the properties were let to tenants. Mr Cox and Mr Napti were elderly, in their eighties, and had apparently served together in the Second World War and been friends for many years. Mr Napti had provided some money to help Mr Cox buy 40 Baptist Street, Redfern and 108 Great Buckingham Street, Redfern. The appellant, Mr Ahmed Asian, who was some years younger than Mr Cox and Mr Napti, had formerly been a partner of Mr Napti in Lebanese bread shop businesses. He had known Mr Cox from soon after he came to Australia in 1968. The appellant had also provided some money to help Mr Cox buy 108 Great Buckingham Street, Redfern. In 1986 the respondent, Mr Michael Shehadie, acted as the appellant's solicitor in two transactions. In April 1986 he prepared agreements for lease under which Mr Cox agreed to lease the three properties to the appellant for terms of ten years at rentals of $400 per property per month, on the basis that the appellant would meet all outgoings and pay for repairs and maintenance and that rooms would be provided for Mr Cox and Mr Napti. In August 1986 he prepared forms of will for execution by Mr Cox, Mr Napti and the appellant under which each appointed the other two parties as his executors and trustees and left everything to them or (probably) the survivor of them. For a reason or reasons not disclosed in the evidence, within a short time Mr Cox and the appellant fell out. In September 1986 Mr Cox repudiated the agreements for lease and gave notice of his intention to revoke his will. In October 1986 Mr Cox made a new will under which the appellant did not benefit. In June 1988 the appellant brought proceedings against Mr Cox claiming damages for repudiation of the agreements for lease, thereby accepting the repudiations. Mr Napti died in April 1989, and Mr Cox died in November 1990. 2 UNREPORTED JUDGMENTS In May 1991 the appellant brought proceedings against Mr Cox's executrix alleging breach of an agreement not to revoke the August 1986 will. The two proceedings were heard together by Windeyer J, and judgment was given in April 1993. The appellant was successful in the proceedings concerning the agreements for lease, recovering damages of $221,275 including interest less $109,257 including interest on a cross-claim. He was not successful in the proceedings concerning the will, in which it was held that an agreement not to revoke the will had not been made. An appeal in the proceedings concerning the will was dismissed in May 1993. In August and September 1993 the appellant brought proceedings against the respondent, alleging negligence in relation to the agreements for lease and the making of the wills. The two proceedings were heard together by Graham AJ, and judgment was given in December 1997. This is an appeal in the last-mentioned proceedings. The negligence proceedings As to the agreements for lease, it was alleged that the respondent was negligent in failing to prepare leases in registrable form or advise of the need to register leases for terms of ten years, and that because he did not have registered leases the appellant had suffered loss greater than the damages earlier awarded. The issue upon negligence was whether the appellant had instructed the respondent, and the respondent had agreed, to bring about registered leases (as the appellant contended), or whether the respondent had advised the appellant of the need to bring about registered leases and the appellant had instructed him to prepare the agreements for lease knowing of the lesser protection they gave (as the respondent contended). The respondent's evidence was accepted in preference to that of the appellant, and it was held that negligence had not been established. It was also held that, in any event, the appellant had failed to provide evidence on which any damages at all could be found, and for good measure that his damages could not have exceeded the damages which he had already recovered for repudiation of the agreements for lease. As to the making of the wills, it was alleged that the respondent was negligent in respects which, at least as the proceedings were conducted, included failing to advise the appellant that the wills could be revoked at any time, and that the appellant had thereby suffered loss in the amount of Mr Cox's net estate. It is, unnecessary to detail the other respects in which negligence was alleged, since they were not maintained on appeal. The respondent had not advised the appellant that Mr Cox's will could be revoked, or done anything about a non-revocation agreement, but it was held that he was not negligent because in the circumstances he did not owe a relevant duty of care: I will refer to that a little more fully later in these reasons. It was also held that, in any event, the appellant had not established that he had suffered loss, because he had not established that if the advice had been given a binding non-revocation agreement would have been entered into between himself, Mr Cox, and Mr Napti entitling him to equitable or other relief whereby he would get Mr Cox's net estate or damages representing its value. The appeal No less than 32 grounds of appeal were set out in the notice of appeal. Most of the grounds of appeal were abandoned. The appeal came down to two matters. First, the appellant contended that his Honour had erred in declining, in the exercise of his discretion, to allow the appellant to give his evidence through an URJ ASLAN v SHEHADIE (Giles JA) 3 interpreter. This was material to both the proceedings concerning the agreements for lease and the proceedings concerning the making of the wills. Secondly, the appellant contended that his Honour had erred in holding that the respondent was not negligent in failing to advise the appellant that the wills could be revoked at any time, and in holding that loss had not been established. Interpreter The appellant's first language was Arabic. The appellant's counsel asked that an interpreter be used, saying that problems had arisen in the proceedings before Windeyer J. An interpreter was available and sworn, but Graham AJ said that he would prefer to proceed in the beginning without using the interpreter. The evidence in chief began, and almost immediately the appellant's counsel asked that the interpreter be used, saying that the appellant had not understood a question, and his Honour said that he would "persist... for a while". A little later, as the transcript recorded - "HIS HONOUR: I am finding the witness has a reasonable facility but I am finding it hard to hear him when he goes quickly. If you could encourage him to go a little slower it would assist me and the court reporter. BENNETT: My concern is, as one often finds, the degree of facility in talking in a language may belie an absence of comprehension of many words and one gets perhaps a slightly false impression of the degree of understanding. HIS HONOUR: I would have to say the degree of comprehension has improved remarkably to my observation from your first question as to what his address was. I would like the witness to go a little slower so we don't miss the important things he wants to say." The appellant's evidence continued. Some time later, at the commencement of his cross-examination, the appellant's counsel again asked that the interpreter be used. The transcript then recorded - "HIS HONOUR: The situation is that this witness had his relevant conversations with third parties in the English language, not in Arabic. The people with whom he had the critical conversations did not speak Arabic, although there is a suggestion that Mr Shehadie spoke a little Arabic, according to this witness. When you first asked for leave to use an interpreter, there was an appearance of lack of understanding of questions, which, to my observation, did not continue after the application was refused, and it seemed to me that there was a much clearer understanding of the questions thereafter. In many instances I have noted that the witness has responded very directly and very promptly to questions, demonstrating a clear understanding. I appreciate that less expression, or articulation of his answers may be difficult, but I don't know that that necessarily demonstrates a lack of understanding of what the questions were. BENNETT: That's something, I imagine, I would have to address your Honour in due course, because I would be making a different submission in relation to that. HIS HONOUR: That's what I have observed thus far. BENNETT: My submission will be that again and again fairly simple questions were just not comprehended. Justice Windeyer comments on it in his judgment. HIS HONOUR: The greatest problem I have is he keeps his voice very soft. It's got nothing to do with language. 4 UNREPORTED JUDGMENTS HIS HONOUR: [ hear your application and I will bear it in mind if I find the manner in which Mr Davies expresses his questions and the degree of comprehension indicate it's warranted. Certainly the view I have is the witness is able to comprehend the questions that you have asked of him." On occasions thereafter the appellant or the appellant's counsel asked that the interpreter be used, but his Honour declined, in the course of doing so indicating that he had gained the clear impression that the appellant knew exactly what he was being asked and that "the problem is one of hearing not English"; his Honour also observed "It is no [sic; more] benefit to me what Mr Shehadie said to him in English if it is put to him in English". The appellant's evidence extended over some hours, and was concluded without use of the interpreter. As was reflected in this last observation, the dealings between the appellant and the respondent had been conducted in English. The appellant had lived in Australia for 28 years, and had conducted a number of bakery businesses. He had normally conversed with Mr Cox and Mr Napti in English, and had dealt with his solicitor in the proceedings in English although, according to the solicitor, with the solicitor speaking very carefully and very slowly and if encountering any problem getting assistance from an Arabic speaker. A reading of the transcript of the appellant's evidence demonstrates a rather fractured and less than fluent use of English and some non-responsive answers, but does not controvert his Honour's references to the appellant in many instances responding very directly and very promptly to questions and demonstrating a clear understanding, and to the difficulty being one of hearing not English. In his reasons Graham AJ said - "Notwithstanding my finding that the plaintiff was illiterate in the English language and the handicaps that undoubtedly posed for him over the years, I did not consider him to have any genuine difficulties in communicating orally with others in the English language. His evidence before me was given in English notwithstanding numerous applications by Mr Bennett and the plaintiff himself for leave to have the assistance of an interpreter who spoke Arabic, his native tongue. I was satisfied that he could understand and speak the English language sufficiently to enable him to understand, and to make an adequate reply to, questions that were put to him about facts in the case both by Mr Bennett, Mr Davies of Senior Counsel, who appeared for the defendant, and by me. Thad a strong conviction that, at times, the plaintiff adroitly used his somewhat unusual manner of expressing himself to camouflage his clear understanding of matters that were being put to him and his applications for the intervention of an interpreter, who was present in Court and available if truly necessary, were designed to escape the intensity of Mr Davies' cross-examination, which I should add, was courteously, carefully and considerately directed to the plaintiff. The spontaneity of some of the plaintiff's answers to some questions belied the difficulty which he professed in relation to others. Once I got used to the plaintiff's use of expressions such as 'Mr Shehadie signed behind my sign it' meaning 'Mr Shehadie witnessed my signature' his evidence was not all that difficult to follow. What did put both Counsel and myself at a disadvantage was that the plaintiff would not, despite repeated requests to do so, speak in an audible tone of voice." Reading the transcript does not controvert these conclusions either. At common law, whether an interpreter should be used is a matter for the discretion of the trial judge. The discretion will generally be exercised according to an assessment of whether the party seeking the use of an interpreter would without such use be placed at an unfair disadvantage (Dairy Farmers URJ ASLAN v SHEHADIE (Giles JA) 5 Co-operative Milk Co Ltd v Acquilina (1963) 109 CLR 458 at 464; Adamopoulos v Olympic Airways SA (1991) 25 NSWLR 75 at 78, 81, 84), but another relevant matter is the possibility that the request to use an interpreter may have been made for extraneous or ulterior purposes (Adamopoulos v Olympic Airways SA at 78). The Evidence Act 1995 now provides that a witness may give evidence about a fact through an interpreter unless the witness can understand and speak English sufficiently to enable him to understand, and make an adequate reply to, questions that may be put about the fact (s30). This may or may not have modified the common law position, by affecting the discretionary nature of the use of an interpreter or the matters relevant to the discretion, but the appellant expressly disclaimed any reliance on s30 and the appeal was conducted by regard to the common law position: I express no view on whether it has been modified. The exercise of the trial judge's discretion should not be interfered with on appeal except for extremely cogent reasons (Dairy Farmers Co-operative Milk Co Ltd v Acquilinia at 464). In accordance with established principles (see for example House v The King (1936) 55 CLR 499 at 504-5; Gronow v Gronow (1979) 144 CLR 513 at 534, 537-8), for an appellate court to overturn an exercise of discretion it must appear that some error has been made in exercising it, through the judge acting upon a wrong principle, allowing extraneous or irrelevant matters to guide or affect him, failing to take into account some material consideration, or mistaking the facts, and if it does not appear how the judge has exercised the discretion but on the facts it is unreasonable or plainly unjust it may be inferred that in some way there has been a failure properly to exercise it. This restraint in accordance with the established principles is particularly pertinent in a matter such as the use of an interpreter, where the trial judge has the advantage of seeing and hearing the witness and observing the dynamics of the giving of evidence. In the present case Graham AJ said that his observation of the appellant in the witness box left him with "less than full confidence in his willingness to provide truthful answers". He considered that the respondent had been "refreshingly frank with his evidence of the events of 1986", and so expressed "a strong preference for [the respondent's] account of what transpired where the important conversations between the parties were concerned". His Honour's views on credibility were important to the results in the proceedings. The appellant submitted that he was unfairly hampered in the presentation of his case, in a manner material to the assessment of credibility, because he was unable to give his evidence in his first language and, on the contrary, was required to struggle to understand questions in English and answer in English and thereby may have given the appearance of evasion and lack of frankness. Even if the appellant had facility in English sufficient to conduct a business, converse with persons such as Mr Cox and Mr Napti, and deal with solicitors in relaxed circumstances, it was submitted that it was different when he was in the unfamiliar environment of the witness box and subjected to the pressures of counsel's questioning. And it was suggested that it was not necessary to have the conversations originally conducted in English given in evidence in English. The assertion that the appellant was unfairly disadvantaged, however, assumes an incorrect exercise of his Honour's discretion, and the question on appeal is whether error has been shown in exercising the discretion. There is nothing to suggest that Graham AJ was not alive to the position of the appellant as a person whose first language was not English and who had a less than full command of 6 UNREPORTED JUDGMENTS English - plainly his Honour was made aware of, and was keenly alive to, those matters. So far as it was suggested that his Honour allowed an extraneous or irrelevant matter to guide or affect him, the desirability of having conversations originally in English recounted in evidence in English and seeking to arrive at the words originally used, I do not accept the appellant's position - in my opinion those were relevant, indeed important, considerations to be weighed with all other material matters. In the end the appellant's contention came down to the exercise of discretion being so unreasonable or plainly unjust as to warrant the conclusion that it was erroneous. I do not think it was. There was ample material on which his Honour could be satisfied that the appellant could understand and speak English sufficiently to give his evidence without the use of an interpreter. As well, his Honour was in position to, and did, come to the view that the appellant had greater facility in English than he was willing to acknowledge, and that his professed difficulty and requests to use an interpreter were for the ulterior purposes of camouflage and avoidance of cross-examination, and there is no reason to put aside what his Honour so concluded. In my opinion no appealable error has been shown in his Honour's conduct of the hearing without the use of the interpreter. Negligence and loss The respondent owed a duty of care to the appellant. The issue was what the duty of care required of him. His Honour proceeded on the basis that there was no agreement between the appellant, Mr Cox, and Mr Napti that they would not revoke the wills, both because of the so-called extended doctrine of res judicata applied to the earlier decision of Windeyer J and because he was independently of that view, and so far as the allegation of negligence included that the duty of care required the respondent to give effect to a non-revocation agreement the appellant's case failed before Graham AJ and was not maintained on appeal. As Ihave indicated, on appeal the appellant contended that the duty of care required that the respondent advise him that the wills could be revoked at any time. It followed that, even if the respondent had been negligent in failing so to advise the appellant, it was necessary for the appellant to establish the further matter that, had he been so advised, something would have been done whereby he, Mr Cox, and Mr Napti then entered into a non-revocation agreement, and further that in consequence he would have been entitled to equitable or other relief in the proceedings before Windeyer J. Expert evidence was given by Mr Neville Moses. His evidence in chief by a witness statement was that it was "standard practice" to inform a client making a will that the will could be revoked at any time, that accordingly it was standard practice when mutual wills were being made to point out that the wills could be revoked at any time, and that if the parties proposing mutual wills were unrelated "Tt would be usual practice not merely to point out the situation in regard to revocation but also to indicate that if the parties wished it, it would be possible to enter into a contract whereby each of the parties agrees not to revoke the will (or at least those provisions of the will which favoured the other party or parties)." Mr Moses was asked in oral evidence in chief whether a solicitor who failed to act in accordance with the standard practice first mentioned would be negligent. He said that it depended on the circumstances, for example, on whether the solicitor was aware that the client knew that the will could be URJ ASLAN v SHEHADIE (Giles JA) 7 revoked at any time. He was asked in relation to the usual practice lastly mentioned whether a solicitor who did not point out "the matters referred to there" would be negligent, and said - "Well, in the circumstances there I think it would be most unusual if the solicitor confronted by unrelated parties proposing mutual wills not to ascertain the reason why the wills were being entered into in this fashion. I think it would be usual to explain all wills may be revoked and I think it would naturally follow from that if the solicitor was told that the parties didn't wish to be able to revoke the wills they be given the advice there would need to be a deed or contract in relation to the ongoing wills so they couldn't be revoked. I don't know if I think it's right for me to draw conclusions as to negligence entirely because that is for his Honour when he hears all the evidence." The cross-examination really did not touch this evidence. After referring to Mr Moses' evidence, but with omissions to which I will refer, Graham AJ held that in the circumstances the respondent did not owe a duty of care requiring that he advise the appellant of the need for a non-revocation agreement between the testators. Ihave some difficulty with his Honour's treatment of the evidence. His Honour observed that Mr Moses was unwilling to say that a solicitor who failed to act in accordance with the standard practice first mentioned would be guilty of negligence, referring to the answer so far as Mr Moses said that it depended on the circumstances but omitting the example then given. He said that no loss was said to have been suffered as a result of one of the testators failing to alter his will because the defendant failed to advise him that he could do so and "No question of negligence relevantly arises in that regard". This rather overlooked that loss may have been suffered not as a result of one of the testators failing to alter his will, but as a result of one of the testators altering his will because, advice having been given that he could do so, nothing had been done to bring about a non-revocation agreement. His Honour then set out the passage from the oral evidence of Mr Moses set out above, but omitting the last sentence, and after referring to some evidence of the respondent the relevance of which to the point is not immediately obvious said that in the circumstances he did not consider that the respondent "owed a duty of care to [the appellant] to advise him of the need for a non-revocation agreement between each of the testators if the risk of repudiation of the mutual wills was to be avoided". This went to the question of advice of the need for a non-revocation agreement, but the evidence of Mr Moses included evidence that it was the usual practice to point out "the situation in regard to revocation" and again his Honour's treatment of the evidence rather overlooked that advice that the wills could be revoked at any time might have led to the making of a non-revocation agreement. Further, it is not clear to me why the evidence of standard practice or usual practice, consistently that a solicitor would advise that a will or the wills could be revoked at any time, did not lead to the conclusion that fulfilment of the duty of care involved giving such advice to the appellant and to Mr Cox and Mr Napti. There was no evidence to the contrary of that of Mr Moses, and I do not think that his evidence was relevantly qualified. There was no suggestion that the appellant was known to be aware that a will could be revoked at any time, and Mr Moses refrained from labelling the failure in conduct put to him as negligent not because he did not think it negligent, but because he left the ultimate conclusion to the Court. 8 UNREPORTED JUDGMENTS However, I do not think it matters, because even if the respondent were negligent in failing to advise the appellant that the wills could be revoked at any time, I do not think the further matter required of the appellant was established. Graham AJ said, speaking of advice of the need for a non-revocation agreement but with equal significance to advice that the wills could be revoked at any time - "Tf, contrary to my view, the defendant was negligent in this regard I am unable to see how the plaintiff could have suffered any relevant loss. For the plaintiff to be able to make good his case he would need to satisfy me on the balance of probabilities that if the advice had been given a binding non-revocation agreement would have been entered into between himself, Mr Cox and Mr Napti which would not permit revocation of any of the wills on notice to the other parties. In this regard, the general standard of proof in civil actions ordinarily governs the issue of causation and the issue of whether or not a plaintiff has sustained some damage. Whilst I am happy to draw the inference that each of Mr Cox, Mr Napti and the plaintiff were well disposed towards one another the nature of the relationship has not been sufficiently established to enable me to infer that the other parties and, in particular, Mr Cox would have been willing to agree to such an arrangement especially if he was properly advised, as one would expect him to be, by the defendant or whomsoever may be acting for him in relation to the matter. Whilst it is clear that Mr Cox was anxious to have the plaintiff make a will divesting himself of his interest in Mr Cox's properties should some misfortune befall him whilst on his visit to China, there is nothing in the evidence to suggest that Mr Cox sought to have such an arrangement survive after the plaintiff's return to Australia some five weeks later. Applying common sense and experience, I could not be satisfied that the defendant's negligence, if any, caused the plaintiff to suffer any damage, nor could I be satisfied that the plaintiff did suffer some damage. This case is not one of a lost opportunity to exploit a commercial opportunity where some damage and causation have already been established." It was acknowledged in the appeal that there was no direct evidence that Mr Cox would have agreed to an irrevocable will, but it was submitted that his motivation was to protect himself while the appellant was in China and that, if he knew that the appellant could revoke the appellant's will the next day, "it may well have been that Mr Cox would have readily agreed to an irrevocable will". It was submitted that on the balance of probabilities the parties intended at the time to be bound by the wills they made to each other on a permanent basis. The evidence was scanty, and as stated by his Honour did not go further than that Mr Cox wished the appellant to make a will for fear of death on an imminent trip to China, seen as an occasion of danger. It does not at all follow that Mr Cox would have been willing to commit himself to a permanent arrangement, which was a very different thing from an agreement to meet an immediate perceived need but with freedom to change. Particularly is that so when, as his Honour pointed out, it is to be expected that Mr Cox would have received advice bringing home to him the permanency and the inhibition on his testamentary powers which it would bring, and it should not be overlooked that within about a month Mr Cox saw reason to revoke his will. The testators had not agreed not to revoke their wills, and the rejection of the asserted agreement left little foundation for the asserted intention to be bound by the wills on a permanent basis. In my opinion, URJ ASLAN v SHEHADIE (Giles JA) 9 Graham AJ was correct in his conclusion that it had not been established, on the balance of probabilities, that if the respondent had advised the appellant that the wills could be revoked at any time a binding non-revocation agreement would have been entered into. Rather in passing, the appellant suggested that the respondent's negligence caused loss of opportunity to have a binding non-revocation agreement entered into. As appears from his Honour's reasons, even if it could have been so put (as to which I say nothing) the case was not put on that basis. The grounds of appeal did not include error in failing to recognise a lost opportunity, the appellant's written submissions contended for the conclusion on the balance of probabilities that a binding non-revocation agreement would have been entered into, and the suggestion was very much an afterthought. I do not think it was open to the appellant to contend for loss by loss of an opportunity. The respondent submitted that even if a binding non-revocation agreement had been entered into, the appellant would not have been entitled to equitable or other relief in the proceedings before Windeyer J. I do not think it is necessary to go to the respondent's submission concerning the effect of a non-revocation agreement if one had been made. Apart from that, in my opinion no error has been shown in the conclusion that negligence of the respondent, if there were negligence, was not proved to have caused loss. I propose that the appeal be dismissed with costs. Appeal dismissed with costs Counsel for the appellant: A T McInnes QC and M S Abdul-Karim Solicitors for the appellant: Jeffrey Hinde & Co Counsel for the respondent: D L Davies SC Solicitors for the respondent: Colin Biggers & Paisley