Supreme Court New South Wales Medium Neutral Citation: Advanced Timber & Hardware (Superstore) Pty Ltd v Nikola Kovacevic [2011] NSWSC 366 Hearing dates: 27 April 2011 Decision date: 04 May 2011 Jurisdiction: Common Law Before: Harrison AsJ Decision: (1) The appeal is dismissed. (2) The decision of her Honour Magistrate Longley dated 22 July 2010 is affirmed. (3) The summons filed 29 October 2010 is dismissed. (4) The plaintiff is to pay the defendant's costs as agreed or assessed. Catchwords: APPEAL - civil - evidence - admission of evidence - whether defendant's affidavit complied with rule 35.7 UCPR - whether defendant was able to understand written English. Legislation Cited: Local Court Act 2007 Oaths Act 1900 Uniform Civil Procedure Rules 2005 Cases Cited: Coulton v Holcombe (1986) 162 CLR 1 Liftronic Pty Ltd v Unver (2001) 75 ALJR 867; 179 ALR 321 R v Birks (1990) 19 NSWLR 677 Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4 University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483; 60 ALR 68 Water Board v Moustakas (1988) 180 CLR 491 Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598 Category: Principal judgment Parties: Advanced Timber & Hardware (Superstore) Pty Ltd (Plaintiff) Nikola Kovacevic (Defendant) Representation: Counsel: D Ash (Plaintiff) S W Balafoutis (Defendant) Solicitors: Joe Weller (Plaintiff) Wight & Strickland (Defendant) File Number(s): 2010/359413 Judgment 1HER HONOUR: By summons filed 29 October 2010, the plaintiff seeks, firstly, that leave be given pursuant to Rule 50(12) of the Uniform Civil Procedure Rules 2005 ("the UCPR"), for leave to be given for this appeal; secondly, the verdict and judgment of her Honour Magistrate Longley dated 22 July 2010 in Local Court proceedings 653/2004 at Burwood Local Court be set aside; thirdly, that the defendant's affidavit of 8 April 2010 not be admitted as evidence in those proceedings; and fourthly, that the matter be remitted back to Burwood Local Court to be deal with according to law. 2The plaintiff in these proceedings is Advanced Timber & Hardware (Superstore) Pty Ltd ("Advanced Timber"), who was also the plaintiff in the Local Court proceedings. The defendant in these proceedings is Nikola Kovacevic t/as Kovacevic Carpentry Pty Limited ("Mr Kovacevic"). For convenience I shall refer to the parties by name. 3In the Local Court proceedings Advanced Timber sued Mr Kovacevic for alleged non-payment of invoices for the supply of timber. On 22 July 2010, the Magistrate dismissed Advanced Timber's claim and awarded costs to Mr Kovacevic. The appeal 4Section 39 of the Local Court Act 2007 provides that a party who is dissatisfied with a judgment or order of the Court sitting in its General Division may appeal to the Supreme Court, but only on a question of law. 5Section 40 of the Local Court Act provides that the onus lies with the plaintiff to demonstrate that there has been an error of law or that leave should be granted on a mixed question of law and fact. 6Section 41 of the Local Court Act provides that this Court may determine an appeal either (a) by varying the terms of the judgment or order, or (b) by setting aside the judgment or order, or (c) by setting aside the judgment or order and remitting the matter to the Court for determination in accordance with the Supreme Court's directions, or (d) by dismissing the appeal. 7In Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4, Gleeson CJ at [2] reiterated that in the common law system of civil justice, the trial process determines the issues between the parties. The system does not regard the trial as merely the first round in a contest destined to work its way through the judicial hierarchy until the litigants have exhausted either their resources or their possibilities of further appeal. 8In Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598, where Gleeson CJ, McHugh and Gummow JJ stated, that it would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial: University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483; 60 ALR 68 at 71; Coulton v Holcombe (1986) 162 CLR 1 at 8-9; Liftronic Pty Ltd v Unver (2001) 75 ALJR 867 at 875 [44]; 179 ALR 321 at 330-1; Water Board v Moustakas (1988) 180 CLR 491 at 496-7; cf R v Birks (1990) 19 NSWLR 677 at 683-5 and that nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not taken at the trial and could or might possibly have been met by rebutting evidence or cross-examination. Ground of appeal 9The amended ground of appeal is that her Honour Magistrate Longley erred at law, in that her Honour used an affidavit made by the defendant in circumstances where the affidavit did not comply with Rule 35.7(a) and 35.7(b) of the UCPR. The relevant provisions 10Rule 35 of the UCPR relevantly reads: " 35.1 Irregularity does not invalidate affidavit An affidavit may, with the leave of the court, be used despite any irregularity in form. ... 35.7 Affidavits by persons who cannot read An affidavit made by a blind or illiterate person may not be used unless: (a) the affidavit bears a certificate referred to in section 27A of the Oaths Act 1900 , or (b) the court is otherwise satisfied: (i) that the affidavit was read to the deponent in the presence of the person before whom it was made, and (ii) that it appeared to that person that the deponent understood the affidavit." And section 27A of the Oaths Act 1900 reads: "27A Affidavits by persons unable to read If it appears to the person before whom an affidavit is made ( the authorised person ) that the person making the affidavit ( the deponent ) is blind or illiterate, the authorised person must certify, in or below the jurat: (a) that the affidavit was read to the deponent in the presence of the authorised person, and (b) that it appeared to the authorised person that the deponent understood the affidavit, and (c) that the deponent subscribed the affidavit (by signature or mark) in the presence of the authorised person." 11So for Rule 35.7 of the UCPR to come into play, the deponent of an affidavit must be made by a person who either blind or illiterate. The hearing in the Local Court 12At the hearing in the Local Court each party relied upon one affidavit. Advanced Timber relied upon the affidavit of Mr Ireland dated 26 February 2010 and Mr Kovacevic relied on his affidavit sworn 8 April 2010. The matter was heard over two days namely on 29 April 2010 and 22 July 2010. The affidavits 13Mr Ireland's affidavit dated 26 February 2010 was brief. He deposed as follows: "1. I am an employee of the plaintiff. 2. The first defendant provided a credit application to the plaintiff. A copy is annexed and marked 'A'. 3. Copies of the following invoices, addressed to the first defendant, were raised by the plaintiff and are annexed and marked 'B'. 207178 207292 208383 208686 209374 209553 212468 4. The invoices refer to the sale of various items including timber. 5. The records of the plaintiff indicate that none of the invoices have been paid." 14The documents referred to in paragraph (2) and (3) of his affidavit were attached. However, there was no evidence to the effect that the invoices had been forwarded to Mr Kovacevic, nor whether the goods had been delivered. 15Mr Kovacevic's affidavit, dated 8 April 2010, referred to each invoice and provided an explanation that fell into one or more of the following categories: (a) the invoice was never received by him; (b) the invoice related to timber not received by him; and/or (c) the invoice amount was paid by him. The affidavit annexed copies of the business' check butts. They were written in English. Bank statements showing the cheques that had been presented for payment were also attached. There are a few handwritten comments made on the invoices. They are written in English. 16The affidavit of Mr Kovacevic dated 8 April 2010 was attested with the usual jurat. That is, the clause at the foot of the affidavit states where, when and before whom the oath was sworn. The signatures of both the deponent, a solicitor and the witness appear. 17On 29 April 2010, the Local Court at the outset dealt with an application for adjournment by Advanced Timber. The Magistrate refused that application. Advanced Timber's solicitor advised the Magistrate that he was relying upon the affidavit of Mr Ireland dated 26 February 2010. Counsel for Mr Kovacevic advised the court that he was relying upon the affidavit of Mr Kovacevic dated 8 April 2010 (T 19.20-29). 18Mr Kovacevic's counsel then took the Magistrate through Mr Kovacevic's affidavit in some detail. Prior to taking the luncheon adjournment, the Magistrate decided to adjourn early for lunch so she could read both affidavits (T 20.8-10). On her Honour's return to the bench, she stated that, "I've read the material..." 19Advanced Timber's solicitor, Mr Weller, advised the Court before Mr Kovacevic was sworn that, "If the defence is going to rely on the affidavit of Mr Kovacevic as their evidence in chief there are some small objections that I'd take." (T 26.19). Her Honour replied that she had already read the material. The solicitor for Advanced Timber made a number of objections basically as to the form of the material contained in Mr Kovacevic's affidavit. The Magistrate made rulings on those objections. At T 29.50 Mr Weller stated, "That's the extent of my objections on the face of the affidavit." No mention was made by Mr Weller that the affidavit did not comply with Rule 35.7 nor that he was seeking to have it excluded on that basis. 20Mr Kovacevic was sworn as a witness and was asked whether he swore or signed an affidavit dated 8 April 2010. He replied, "Yes, signed all the evidence." (T 31.20). He was then asked whether he understood everything that was being said. He replied, " Yeah, I understand but no speak very well English but I understand." And then, "But you do understand what is being put to you?" He replied, "Yes, yes." (T 31.35-40). After a few questions, Mr Kovacevic was asked, "Well you just told the Court that you typed something up. Did you type a document up? He replied, "What mean?" (T 32.10-12). 21Her Honour then, not surprisingly, commented, "I'm not entirely comfortable with the defendant's level of comprehension or speech. What do you say, Mr Balafoutis? (Counsel acting for Mr Kovacevic) I mean this is crucial evidence. It's the only oral evidence that this matter's going to have and your client appears to be - I wouldn't put it as high as struggling but he's not understanding. If he is understanding he's not answering the questions directly. I simply don't know." (T 32.16-21). Mr Kovacevic's counsel answered, "It's fair to say that his English isn't 100 per cent. I mean I think it's one of those difficult situations where Mr Kovacevic's English isn't 100 per cent, he understands most of what's being said but not everything. I think that's - and I think Mr Kovacevic might say he understands everything -". (T 32.27-20). Her Honour then stated, "But we're not talking about having a chat over a cup of coffee, we're talking about evidence in the courtroom. ... It has to be exact and it has to be understood so that the witness can answer the questions and so that I can understand his answers." (T 32.34-41). The Magistrate then reached conclusion that she was not comfortable proceeding without an interpreter. The matter was part heard to 22 July 2010 and an interpreter was to be present on that occasion. 22On 22 July 2010, the hearing resumed. An interpreter was present. Mr Kovacevic and the interpreter were sworn. Mr Weller was given the opportunity to cross examine Mr Kovacevic. Once Mr Weller and the Magistrate were satisfied that the interpreter and Mr Kovacevic understood each other, Mr Weller stated, "I have no further questions, that is the extent of my cross-examination." (T 3.40-41). In other words, there was virtually no cross examination. Mr Weller did not ask any questions directed to the issue of whether or not Mr Kovacevic understood or his level of understanding of written English. 23The Magistrate in her extempore judgment dated 22 July 2010 stated: "... The matter was first before the Court on 24 April 2010. on that day the defendant gave some evidence. He is a man of Serbian origins. On that day a great deal of that day was taken up in other matters - the hearing on that day - but in his evidence, under cross-examination, when it appeared that he was having some difficulty understanding the questions, he responded on page 31 on 29 April 2010 - to a question from myself: 'Q. Do you understand everything that's being said? A. Yeah, I understand but no speak very well English but I understand.' He is then further cross-examined with respect to his affidavit. It is put to him, "your solicitor typed this document up, is that so?" and he says, "Well I type it for myself and give to them." It is put to him under cross-examination. "What is it that you typed?" "I need prepare everything to show them what's going on" and he is further asked about his involvement in the typing of the document. The Court then intervened because, as I have said, it was clear to me that the defendant was having some trouble with his spoken English. The cross-examination did proceed, after some discussion about the level of the defendant's English, but not for any length of time and the matter was subsequently adjourned after the court had indicated concerns about his level of spoken English and the defendant agreed on the adjourned date to provide a Serbian interpreter and that, indeed, was done. There was a Serbian interpreter her this morning. The matter resumed today with the assistance of that interpreter. Questions were put to the defendant but he was not cross-examined as to the substance of his documents, nor whether he could read English. It is put on behalf of the plaintiff that the defendant's affidavit of 8 April should not be admitted into evidence because it has never been adopted, in fact, by the defendant. It is put on behalf of the plaintiff that, clearly, Mr Kovacevic has difficulty with the English language and, there being no jurat on the document, it would appear on the face of the document that he has never adopted it in his language, it has never been translated to him and, therefore, it and of course the number of annexures that are attached to it should not be admitted into evidence. ... Looking at all the material, including of course the subject affidavit; looking at the cross-examination, both on the last occasion in April and today; looking at the handwritten - what the defendant says and what is put to the Court - notes in the defendant's handwriting that appear on a number of his documents, for example - and I must say that there is a great deal of material here. I do not intend to go through all the material and do the calculations but there are, for example, "J" to the defendant's affidavit, which is page 29, there is a great deal of handwriting on that page. It is a quotation and the defendant in the substance of his affidavit says that under the heading in handwriting, the word "Hardwood, there are some calculations done and he said this and other notes - and I am not going to refer to them all individually - are written by him. Looking at all the evidence, as I have said, it was not put to him in cross-examination today whether or not any - there were no questions put to him about the level of his reading of English and, while he had an interpreter today to assist with his spoken English, the Court accepts that is his handwriting and that he is able to read English and while he may not have typed the document in the form, and of course it is in highly sophisticated language, while he may not have typed that specific document, on the basis of the evidence before the court I intend to admit that document as the defendant's document and as adopted by him." 24Counsel for Advanced Timber submitted that the Magistrate, bound by the rules of procedural fairness, was by granting the adjournment, allowing Mr Kovacevic a fair opportunity of satisfying her that the affidavit could be "used" within the meaning of Rule 35.7. According to Advanced Timber, on 22 July 2010 when the hearing continued, there was no re-examination and no application was made to use the affidavit. I accept that it was this affidavit that formed the basis for her Honour to make a finding that the plaintiff had failed to prove its case on the balance of probabilities. 25Counsel for Advanced Timber submitted that the Magistrate was obliged to satisfy herself of both limbs of Rule 35.7. This is that the affidavit was read to Mr Kovacevic in the presence of an authorised person and that it appeared to the authorised person that Mr Kovacevic understood the affidavit. Counsel for Advanced Timber stated that the requirements could have been satisfied if the Magistrate had the affidavit read to Mr Kovacevic in court. Counsel for Advanced Timber submitted that as the Magistrate did not apply the correct test set out in Rule 35.7 it constituted an error of law. 26Witnesses and parties appear before courts having various levels of understanding of the English language. Even for those who have English as their first language, their level of understanding varies. For some English is not their first language. Some people can read and understand English but not speak it very well. Others can understand and speak English well but they cannot read written English at all or not very well. The parties and witnesses' level of comprehension of the English language, both spoken and written, vary. Courts are called upon to make assessments as to whether a party or a witness has understood what he or she has written in affidavit form and whether they understand the questions they are being asked in the witness box. Having said that, it is only when the Court, or an authorised person involved in taking the oath of a deponent that they can form a view that the deponent or witness either does not understand written or spoken English or cannot speak English. It is only when the Court or an authorised person comes to a view that English, either written or verbal, is not being understood, that additional steps are taken to ensure that the deponent or witness understands the question they are being asked and that their answer can be understood by the other parties and the Court. 27If the authorised person or the Court takes the view that a deponent is blind or illiterate, and in this case it is illiteracy that the subject of challenge, Rule 35.7 comes into play. Both the authorised person who witnessed the signing of the affidavit and the Magistrate did not consider that Mr Kovacevic was illiterate. The Magistrate took particular care in determining whether Mr Kovacevic understood the written English contained in his affidavit. The fact that Mr Kovacevic had trouble speaking English in court does not mean that he was illiterate. Her Honour considered this issue in her reasons for judgment. Her Honour referred to the lack of questions put to Mr Kovacevic about the level of his reading of English. Her Honour also referred to the number of documents attached of his affidavit, which contained his handwriting in English. Given this evidence, her Honour accepted that Mr Kovacevic was able to read English. Her Honour was satisfied that Mr Kovacevic could read and understand written English. Hence, Mr Kovacevic was not illiterate. Rule 35.7 had no role to play. It is my view that the decision of the Magistrate was correct. 28So far as it alleged that there was any procedural unfairness to Advanced Timber, counsel for Mr Kovacevic conceded that the affidavit should not have been considered without affording Advanced Timber an opportunity to challenge it. But the proceedings were adjourned for the purpose of affording Advanced Timber's lawyer an opportunity to cross examine Mr Kovacevic with the assistance of an interpreter. 29The Magistrate read the affidavits on the prior occasion, which was well prior to cross examination. The solicitor for Advanced Timber made a number of limited objections to the affidavit at the time but did not object to the admission of the affidavit as a whole. The transcript does not record that Advanced Timber drew the Court's attention to Rule 35.7 of the UCPR as a reason not to use Mr Kovacevic's affidavit. 30If the solicitor for Advanced Timber had wanted the affidavit of Mr Kovacevic excluded on the basis of Rule 35.7 he should have raised it when Mr Kovacevic was in the witness box. Had the point had been raised Mr Kovacevic could have adduced evidence of his literacy or steps could have been taken to have the affidavit read to Mr Kovacevic in his own language. 31At the commencement of the second day of the hearing, after Mr Kovacevic and the interpreter were sworn in, for reasons which are not apparent, Advanced Timber's solicitor chose not to ask Mr Kovacevic any questions about the substance of the dispute. This was a forensic decision made by the solicitor. It is not now open to Advanced Timber to complain that it did not have the opportunity to challenge the admittance into evidence of Mr Kovacevic's affidavit. The decision of the Magistrate was correct. There is no error of law. 32The appeal is dismissed. The decision of her Honour Magistrate Longley dated 22 July 2010 is affirmed. The summons filed 29 October 2010 is dismissed. 33Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendant's costs as agreed or assessed. The Court orders: (1) The appeal is dismissed. (2) The decision of her Honour Magistrate Longley dated 22 July 2010 is affirmed. (3) The summons filed 29 October 2010 is dismissed. (4) The plaintiff is to pay the defendant's costs as agreed or assessed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 May 2011