Mifsud v BHP [2002] NSWCC 46

Reported Decision : (2002) 23 NSWCCR 608

Compensation Court of New South Wales

CITATION : Mifsud v BHP [2002] NSWCC 46 Joseph Mifsud PARTIES : v BHP Steel (JLA) Pty Limited MATTER NUMBER(S) : 46113 of 2000 JUDGMENT OF: Truss J at 1 CATCHWORDS: Miscellaneous Matters :- Entitlement to interpreter LEGISLATION CITED: CASES CITED: Aslan v Shehade (Court of Appeal, 17 December 1998 - unreported) DATES OF HEARING: 13th June 2002 EX TEMPORE JUDGMENT DATE : 06/13/2002

FOR APPLICANT: Mr J Ingram instructed by Maurice May & Co LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr G BEauchamp instructed by Sparke Helmore

JUDGMENT: 1. The hearing of this matter commenced in Wollongong on 15 October 2001 when the applicant almost completed his evidence-in-chief. It was subsequently stood over for further hearing before me today and tomorrow. When the matter was called this morning Mr Ingram for the applicant sought an adjournment on the grounds that following the previous hearing the applicant had given instructions to his solicitors to organise a Maltese interpreter, that one had been arranged but called in sick today and no replacement could be. 2. The applicant was then examined on the voir dire as to the need for an interpreter. He said that his English is limited and he was concerned that he may not be able to understand properly questions put to him in cross-examination. The applicant did not have the services of an interpreter on the earlier occasion before me. Where English is not the first language of a worker who gives his or her evidence in English I am always careful to ensure that he or she fully understands the questions and is able to articulate the responses. Nothing which I observed on the previous occasion caused me any concern about the applicant's ability to understand the questions or to communicate his responses to the Court. 3. In opposing the adjournment Mr Beauchamp for the respondent relied upon a number of matters including the following: (a) he has lived in Australia since 1968. (b) the applicant gave evidence before Judge Neilson in the earlier proceedings (7984 of 1995) over 2 days without the assistance of an interpreter and there is nothing in His Honour's judgment to suggest that there were any language difficulties. (c) he brought proceedings against the respondent for unfair dismissal in the Industrial Relations Commission and gave evidence in those proceedings without an interpreter. (d) no interpreter has ever been present at any of the medical examinations and there is nothing before me to suggest that this caused any difficulties. 4. There are a number of authorities in relation to the entitlement of parties to seek the assistance of an interpreter. In Aslan v Shehade (Court of Appeal 17 December 1998 unreported) Giles J A with whom Justices Powell and Beasley JJA agreed, said: 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 parties seeking the use of an interpreter would without such use be placed at an unfair disadvantage. ( Dairy Farmers Cooperative Milk Co Ltd v Aquilina 1963 109 CLR 458 at 464 and 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 for extraneous or ulterior purposes ( Adamopoulos v Olympic Airways at 78). 5. Section 30 of the Evidence Act 1995 provides: A witness may give evidence about a fact through an interpreter unless the witness can understand and speak the English language sufficiently to enable the witness to understand, and to make an adequate reply to, questions that may be put about the fact. 6. In Aslan Giles J made reference to this provision and went on to say that 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 court's discretion. However, as in that case the applicant had expressly disclaimed any reliance upon section 30, the appeal was conducted with regard to the common law position and His Honour ultimately expressed no view as to whether or not this was modified by section 30. 7. Having regard to these authorities and to section 30 as well as the matters to which I have referred, at this point of time I am not persuaded that the requirements of section 30 have been satisfied. Whilst I am concerned to ensure that the applicant is not placed at an unfair disadvantage, court time is very precious especially as this Court is to be abolished at the end of next year and as at 1 June 2002 had a backlog of 28000 cases. Two full days were allocated for this further hearing last December thereby keeping a number of other matters out of the list. 8. What I propose to do is to order that the hearing proceed and that if at any time it becomes apparent that the applicant is having difficulty understanding or speaking English sufficiently to make an adequate response to questions either I will halt the proceedings or Mr Ingram will be entitled to renew his application. In the meantime, in order to assist the Court I direct counsel to make their questions as short as possible to phrase them in a simple manner and to use simple language. I will endeavour to do likewise. I also direct counsel to speak loudly and clearly as the applicant said that he has a hearing problem. Mr J Ingram instructed by Maurice May & Co appeared for the applicant Mr G Beauchamp instructed by Sparke Helmore appeared for the respondents